Copyright is supposed to be good§

This is my controversial stance, and the premise of my series: copyright (as properly defined) is a cohesive system, and, when executed properly, is actually good for everyone.

At this point, you might think I’m setting myself up to fail the purpose of a system is what it does test. If there’s some definition of what copyright “should” be, but it doesn’t map to the system of copyright as it actually exists, why bother spending time with a definition we fully expect not to apply to the system?

I’m not trying to imply that our current system is justified by a definition that’s meant to be its “purpose” even while the definition fails to describe how the system really works. In fact, I ultimately want to do the opposite.

The word “copyright” can refer to two very different entities.

One is copyright as a system of political power. This is the overall system, composed copyright legislation, international treaties, and systems of enforcement.

The other is copyright as a philosophical doctrine. This is the basis (at least ostensibly) for copyright law and enforcement power, and what the system is meant to derive from. Copyright as a political system should be an implementation of this philosophy, and its power derives its legitimacy from how well it maps to the philosophy and correctly implements it goals.

The philosophy should be good for artists, but the reality of the power structures is bad for artists. Not only is that bad, it also makes the discourse around the topic insufferable, because people talking about “copyright” usually aren’t referring to the same thing!

I argue that the philosophical doctrine of copyright is actually remarkably sound; the goals work, but the system of power has gone rotten. What’s more, we can identify the ways it’s gone bad by comparing it to the philosophy that it should derive from, and find that instead of being an implementation of the philosophy, it’s been corrupted, and ends up pushing a completely contrary set of goals.

What we’re subjected to today in the name of copyright does not come from the real principles of copyright. Compared to the current state of US intellectual property law, the “real copyright” I’m talking about is like grass so utterly smothered by concrete that not only do no strands poke through, everyone involved has forgotten it was ever there.

The situation is so bad that even though I think copyright should be a good thing, I think our current bastardization of it may be worse than nothing at all, to the point where we’d be better off with the problems real copyright is meant to solve than with all the new, worse problems it’s inflicted on us.

But because what we’re enduring now is a corruption of another thing and not its own original evil, we’re not limited to measuring it by the harm it inflicts: we can also measure it by its deviation from what we know it should be.

So what’s the good version? This true, unadulterated form of creative rights?

From now on, in this series, when I talk about concepts like Copyright, I’m referring to the philosophical basis defining what those concepts actually mean, not necessarily what all abuses current law allows.

The Bargain§

The fundamental purpose of creative rights is to reward creative (or, for patents, inventive) work by giving the creator a limited monopoly over the production, distribution, and first sale of their creation for a period before it falls back into the public domain.

There are three basic categories of creative rights (or, historically, “creative monopolies”): Copyright, patents, and trademarks.

• Copyright gives the creator limited exclusivity to reproduce and distribute “original works of authorship fixed in any tangible medium of expression.” In other words, it protects specific creative works after they’ve been made. It explicitly does not protect abstract ideas, concepts, or technology. Those protections are reserved for…
• Patents give the inventor limited exclusivity to profit from newly invented (man-made) technology in exchange for public disclosure of the information. But never over pre-existing methodologies (“prior art”) or abstract concepts, only new, real inventions.
• Trademarks are the odd one out because while they do clearly benefit the trademark holders, their purpose is to be a consumer protection measure to prevent impersonation and counterfeiting, not a subsidy to the firm that holds the mark.

Coherence§

Note that copyright is not a system in turmoil: it is a coherent, non-contradictory doctrine. Everything logically follows from the ultimate goal to promote the useful arts and sciences.

The creation of new creative works via the consumption of old is a necessary part of a healthy culture, and people need to be paid for their work, so provisions are made to ensure artists have a window to profit before culture — not just contract-bound art-serfs — can truly start using it. Science must be promoted, and people need to be paid for their work, so provisions are made to ensure inventors can profit even while others can immediately start developing further technologies from that research.

The creative rights system — as I’ve described it here, not as it exists in practice — is a functioning machine. There is not a grinding of gears, no piece of implementation at odds with any other, or the system as a whole. Everything follows and everything fits.

Thus, if ever something labelled “copyright” finds itself directly at odds with that goal, it’s because it’s been twisted and pitted against itself by some outside force. That’s not a proper part of the doctrine, it’s tendril of some other agenda, falsely labelled as copyright, and must¹⁰ be discarded as corrupt.

If this sounds like a whole lot of build up just for me to make a distinction without a difference, don’t worry! I’m not just making the distinction and treating it like that’s the job done. More importantly, you don’t need to personally need a religious belief in the original intent of the founders for this to matter. But there is a distinction, and even if it’s not important to you, it’s very important to see it here, early, because it’s going to matter later.

Exhaustion of Rights§

Neither copyright nor patents nor anything else give the original authors any authority over the individual instances after they sell them. This is called the exhaustion of rights, or the “first sale doctrine”: after an item is first sold, the owner’s claim on that particular item is exhausted.¹¹ You can always modify or resell your own property, even if it includes copyrighted material or uses a patented design. Even if you wouldn’t have the right to create new copies, you still own the items themselves, and the authors have already been fully-compensated, according to their own terms, at the time of sale.

The exhaustion of rights is not an exception to copyright, it is a foundational part of it. Copyright, very specifically, does not create a perpetual, feudalistic monopoly. Copyright’s monopoly grants are discrete and limited, and the “first sale” is one of many extents that define the shape of the right. As the extent of the monopoly right granted to copyright holders, it defines the right itself. The limited monopoly cannot exist at all without extents.

Monopolists predictably argue that they’re entitled to an unlimited, unbounded monopoly by default, and the consumers only have the rights explicitly granted to them in law. This argument — that “first sale rights” need to be enumerated¹² — gets it exactly backwards. Copyright does not confer an unlimited, unbounded monopoly right; the monopoly rights are the artificial privileges that are specifically defined and enumerated in law in exchange for specific concessions. Aside from these special carve-outs, the actual owners of the property — the people who bought the products — own everything else, every imaginable right not explicitly reserved from them.

First sale was eventually formalized in US law as a point of clarity, but the rights of the owners already existed without this provision. The law — very obviously — does not define the only rights property owners own over their property. That exclusive/inclusive mixup is the same misunderstanding people frequently have about the bill of rights. Both documents give clarifying reference points in a wide field of existing rights, and neither define discrete, enumerated rights. That dynamic of discrete, specific powers assigned by the government is only seen in the monopoly rights given to copyright holders, and never the rights of consumers.

The Cycle§

As you can see, none of this exists to be — as Eevee so insightfully put it — “a magical money fountain that makes you rich forever because you had an idea once”. The purpose of copyright is not to guarantee profit, it’s to enable the possibility of it existing at all. The goal isn’t to provide a guaranteed income for “artists” (read: corporations) or enshrine copyright-holders as the dominant social caste. No, it’s a social, contractual arrangement that balances the health of culture and the sciences with the practical needs of individuals to be able to create valuable work and expect due compensation for their labor.

And this is a mutually-beneficial arrangement, because it’s the force that keeps the public domain — or society, the useful arts, the intellectual commons, whatever you want to call it — healthy and sustainable. Given that art and creativity is a good thing everything is a remix (to various extents) and people can’t create in a vacuum, but we live in a system where people need to be able to make money off their work, the system of copyright-as-a-buffer arises as the natural solution.

Under a functional copyright doctrine, creators pull material and inspiration from a thriving public domain, use it to create a new artistic expression or a new scientific development, and release it themselves. But, as a special treat, because we as a society have deemed artistic expression and scientific development to be important and valuable to society as a whole, instead of their work going directly back into the public domain (as it would without such organization), we reward them with a buffer period where the natural flow of the commons is temporarily suspended, and the creator has exclusive rights over the new work for a short period.

But the full “social benefit” of the creation doesn’t kick in until the work becomes part of the public domain so the cycle can continue. Copyright’s purpose is that social benefit, though the way it incentivizes people to ensure the social benefit is by briefly delaying it.

This benefits not only society as a whole, but also both the creators and the consumers of work, because the strict delineation between the “creator” and “consumer” classes is a fiction. Any given party — a person or a corporation — is expected to consume and produce¹³. Creator and consumer are just roles. For example, Disney creates works by taking short stories and fables and classical music, combining and re-writing and animating them to create new works which then make Disney money, for a short span, before people can start making their own adaptations of those stories.

No one can be expected to just produce their own monolith of IP, keep it to themselves forever, consume only from themselves and keep selling recycled versions of their own material forever. That is completely antithetical to the idea of copyright itself, which itself depends on the idea of a thriving commons in order to accomplish its goal of ensuring the sustainability of the commons. (It is, however, exactly what we have now, with monolithic media empires like Disney whose basic operating strategy is to continue to recycle material it “owns” while “owning” a big enough stable of media rights that it doesn’t need the commons to be healthy, because it can recycle its own products.)

Real copyright, then, exists to ensure the health and sustainability of the commons, and “incentivizing creativity” with carefully limited monopoly is how copyright does this. Because consumption is non-rivalrous and creation of new art contributes to the commons, there are only two threats to the media commons. The first is creating too high a barrier to entry by making new creative works prohibitively expensive to produce: by, for instance, not giving artists any exclusivity, so their work is immediately copied and they cannot make a living at all. The second is letting people use the commons to create new works that don’t quickly return to the public domain, — i.e. enclosure, “the tragedy of the commons” — which is another way of creating a high barrier to entry by preventing other people from creating new works. These are the two factors that are balanced to ensure the health of the system.

All that to arrive at a very, very basic conclusion: Participating in copyright is a contractual arrangement that requires respecting others’ rights. Copyright isn’t a license to print money, it’s the rules for participating in the system and ensuring a clean game. Everyone needs to be protected by both sides of this at all times.

The Other Thing: Intellectual Property§

I said earlier that there are two problems with the phrase “intellectual property”: “intellectual” and “property”. We’ve hit the other problem: “intellectual” spans a vast conceptual space, far greater than the finite set of real creative rights. While actual creative rights are only over specific, discrete scenarios, the doctrine implied by the phrase “intellectual property” makes it that — as a general principle — ideas are meant to be owned, which is exactly backwards.

Copyright is a specific, limited, discrete right. As are patents. “Intellectual property” isn’t content with those: it wants to swallow the whole conceptual possibility space of ideas.

The World Intellectual Property Organization (WIPO) colloquially defines IP as such:

WIPO, “What is Intellectual Property?” Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.

IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create.

I couldn’t have pointed out the problem any better myself. The term “Intellectual Property” refers to all “creations of the mind… used in commerce”, which is a set that contains far more than “owners” have a right to control. With this definition, actual discrete legal rights are an afterthought: a set of post-hoc tools to be used to enforce a principle of automatic general supremacy. The IP grouping demands all ideas that can be used to make money — not just the specific cases protected by copyright — be treated as property. “Violations” of that “property right” can then be treated as criminal offences, simply because they challenge some corporation’s business model.

This over-grouping in the phrase “intellectual property” is a power grab emblematic of the core problem of the real conflict between copyright and IP. IP pursues private ownership and monopoly power over ideas for the sake of power rather than the true function of creative rights, or even just equality under the law. Again, this is why experts hate the term:

Richard Stallman, Did You Say “Intellectual Property”? It’s a Seductive Mirage It has become fashionable to toss copyright, patents, and trademarks—three separate and different entities involving three separate and different sets of laws—plus a dozen other laws into one pot and call it “intellectual property.” The distorting and confusing term did not become common by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely.

Cory Doctorow: …”IP” is a misleading, ideological concept that lacks the precision needed to have an adult conversation about policy, or justice, or business. It’s like “family values” or “cultural Marxism” – an empty signifier used by unserious people for unserious purposes.

Labelling enforcement of copyright and patents as “intellectual property protection” is like someone tasked with describing “New York and also LA” drew a circle around both, catching not only most of the continental United States but also four extra countries. The ideas “intellectual property” protection encircles are so disparate that the “cracks between them” are vast spaces that, vitally, must not have the protections the IP “circle” implies they should.

This power grab is the generalized intellectual property doctrine, as distinct from any real set of creative rights. “Intellectual Property” describes a set of claims that are incoherent as a category on their individual merits, but that snap into focus when you view it through the lens of corporate power.

Cory Doctorow, IP: …“intellectual property” is an incoherent category: when you assert that your work has “intellectual property” protection, do you mean that you can sue rivals to protect your customers from deception; or that the government will block rivals if you disclose the inner workings of your machines; or that you have been given just enough (but no more) incentive to publish your expressions of your ideas, with the understanding that the ideas themselves are fair game?

When you look at how “IP” is used by firms, a very precise – albeit colloquial – meaning emerges:

“IP is any law that I can invoke that allows me to control the conduct of my competitors, critics, and customers.”

That is, in a world of uncertainty, where other people’s unpredictability can erode your profits, mire you in scandal, or even tank your business, “IP” is a means of forcing other people to arrange their affairs to suit your needs, even if that undermines their own needs.
…
Copyright laws – that is, “IP laws” – ban tampering with DRM, making it a serious, jailable felony to provide others with tools to bypass DRM. … but, tellingly, the ban on breaking DRM is not limited to copyright infringement. Bypassing DRM to get your printer to accept third-party ink is not a copyright violation: you’re not reproducing its code, nor are you duplicating the traces etched into its chips. But even though you’re not breaking copyright when you jailbreak your phone, you’re still breaking copyright law. The law bans legal conduct, if you have to break DRM to engage in it. This isn’t copyright protection – it’s felony contempt of business-model.

This is the core conflict at the heart of copyright and “intellectual property law”. It’s not a question of crafting policy, it’s not even a power struggle between demographics. It’s a conflict between two fundamentally opposing ideologies.

On the one side, under the “Creative Rights” banner (where I’m sitting today) are all the creators’ rights I’ve talked about so far. These are copyright, patents, and trademarks: coherent doctrines that benefit creators and the public in turn, balancing incentives with the overall health of society. Everything I already described here as “real” creative rights.

On the other side, under the general label of “Intellectual Property” is corporations’ unlimited appetite for power and control. The real unifying thread between violations of “intellectual property” is that they’re scenarios that the extremely rich don’t want to happen. A principle of converting all ideas into a transferable property right is far more profitable for corporations than any of the real principles of creative rights. The structure represented by the intentionally-nebulous “IP” is a feudal system, where people can only build on culture if they agree to whatever demands are made by the elite few that own the culture. In this bad future, wealthy concept-landowners get the first and final say, but now with unlimited swaths of land in conceptual space.

One’s interest in an outcome does not give them a right to control it. Every business has preferred outcomes: things it wants people to do, ways it wants people to act, things it wants people to buy. Some of those outcomes involve things that business made, or things with their name on them, or just their market share. Fine so far.

But that interest doesn’t entitle them to any authority! You’re not automatically in charge of a transaction because you manufactured an involved product, you don’t have a right to control how people speak about you, you can’t force people to buy brand new products every time.

This principle — that interest alone doesn’t entitle you to control — is why businesses depend on carefully negotiated contracts and licensing. Contracts provide rightsholders a layer that does grant them more granular control with how their work is used, but such contracts also require reciprocity. They’re not unilaterally imposed things; in order to claim a right to control how an idea is used, you need to offer something of value in exchange. “Intellectual property” implies the opposite, a unilateral “ownership” rather than a relationship that must be negotiated.

But this contractual layer isn’t the default, it’s an optional extra. In the default relationship a rightsholder has with any given member of the public, the rights they do not have are endless, and the rights they do have are finite: “just enough”. Intellectual property hungers for the opposite: automatic, feudalistic power over everything in an “intellectual domain”, with real people only getting what privileges the lord affords them day-to-day.

The system we’re living under today is not aligned with the principles of copyright and creative rights, and really isn’t even a copyright regime at all. It’s better understood as this generalized Intellectual Property doctrine, in all the bad ways. This is why an accurate description of copyright and patents sounds so subversive: it is. Our current system only includes vague gestures toward those as vestigial justifications, but it has long since stopped holding up the principles.

In the next few parts of this series I’ll go through some case studies of real, recent events — ones likely immediately relevant to your life — so you can see how corporations on the “IP” side systematically fight against creative rights, including copyright and patents. You don’t have to take my word for it, it’s everywhere. And finally, at the end, I’ll talk about an option for one approach you can use in responding to the situation.

Related Reading§