Focusing On The Copy Part Of Copyright Doesn't Make Much Sense In Today's World

from the we're-all-infringers-otherwise dept

Julian Sanchez has put up a fascinating post discussing how copyright is really a misnomer in the digital age. He's building off the various discussions about the Google book scanning project and whether or not it's fair use. The key point he makes is that thinking about a "copy" in this situation can be misleading, because you can achieve the same results without a "copy," though perhaps more awkwardly:
Suppose I tweet that I'm trying to remember which Borges story has that line about how "mirrors and copulation are abominable, because they increase the number of men." Some of my diligent friends hurry to their libraries, flip through their Borges collections, and tweet back the answer--along with a few sentences of the surrounding context. Clearly there's nothing intrinsically objectionable about the search function, and a quotation of a sufficiently limited portion of the whole work in reply would normally be protected by fair use. The problem is just that Google's search--and indeed, any computer search--technically requires that a copy be made. But to my mind, this just underscores how increasingly maladaptive it is to make "copying" the primary locus of regulation in our system of intellectual property.

Technology even complicates the question of just what constitutes a "copy"--an intriguing issue I explored in a few articles back in my days at Ars Technica. Imagine, for instance, that Google took a different approach to indexing in hopes of avoiding thorny copyright questions. Instead of storing "copies" of each book, suppose they created a huge database called Google Concordance, consisting of an enormous catalog of every word or short phrase someone might want to look up, followed by a long list, like a kind of super-index, specifying the location on every page of every book in which that word or phrase appears. ("Aardvark: Blackwell Guide to the Philosophy of Computing and Information, Page 221, Line 17, word 3...") Obviously, the Google Concordance would be a very valuable and useful reference text, and nowhere in the database would you find anything resembling a "copy" of any of the cataloged works. But just as obviously, it would contain all the information a clever programmer would need to reconstruct an arbitrary portion of the original text on the fly, assuming the database could be queried fast enough. You can imagine someone creating certain kinds of “derivative works” in a similar way: If you don't want the RIAA taking down your mashup, you might try to offer it as an algortithm specifying time segments of component tracks to be combined in a particular manner... an algorithm that might produce gibberish or Girl Talk depending on what files you feed it.

In a sense, it's always the processing algorithm that determines whether a particular binary string is a "copy" of a work or not. Open an MP3 of a Lady Gaga track in a text editor and you'll get a wholly original work of experimental literature--though not one anybody (except possibly Lady Gaga) is likely to be interested in reading. For that matter, Google's database is just an enormous collection of ones and zeroes until some program processes it to generate human-readable output. I distinguished my hypothetical Google Concordance database from a collection of copied books, but if you point to a particular file and ask whether it contains the Concordance or copies of the books, there's a very literal sense in which there just is no fact of the matter until you know what algorithm will be used to render it as alphanumeric text. This may sound like airy metaphysical hairsplitting, but the power of computers to rapidly aggregate and process dispersed information on a global network is likely to create genuine practical complications for a legal framework that takes discrete, physically contiguous chunks called "copies" as its fundamental unit of analysis. Legally speaking, it would seem to make an enormous difference whether books are scanned and stored as books, or as a comprehensive concordance database maintained by Google, or as a series of hundreds or thousands of complementary partial concordances dispersed across many servers (or even individual hard-drives linked by a p2p network). Given sufficient bandwidth and processing speed, it might make no difference at all in practice. Maybe we should take that as a hint to reexamine our categories.
Those three paragraphs do such an amazingly beautiful job showing why copyright is often the wrong tool for the job it's trying to do. It's focused on the wrong thing. And while the examples above are taking things to an extreme (though, one not out of the near-future realm of possibility), it's really the same problem that we face today all the time. For example, we've discussed the whole question of what "copy" is made when someone links to a site. If you're actually reading what copyright law says, there's nothing infringing in linking. But, at the same time, every time you visit a website, you're technically making a copy -- which could be considered infringement. More or less we sort of make up the rules as we go along with technology, because applying the letter of the law just doesn't make sense. Julian's description above is just taking that basic concept and taking it out slightly further.

He goes on to point this out, while also discussing how copyright law was really designed back in an age when making copies was expensive, and likely limited to those with commercial intent of some sort, as opposed to what we have today, where you make copies just to do almost anything on a computer. The focus on the "copy" aspect really just doesn't make sense, and Sanchez argues that perhaps it should be removed from the debate entirely, since it's really just not applicable any more:
Instead of ginning up exceptions to a general prohibition on copying just to permit publicly valuable use of content, maybe we should just admit that "copying" no longer makes sense as a primary locus of intellectual property regulation. Fair use analysis typically employs a four factor test, but the upshot is usually to see how a particular type of copying would affect the market for the original work--which makes sense, given that the purpose of copyright is to give creators a financial incentive to produce and distribute new works. If that's fundamentally what we care about, though, a default property-like right of control over copying, which now has to be riddled with exceptions to allow almost any ordinary use of content, looks like an increasingly circuitous Rube Goldberg mechanism for achieving that goal. I'm not sure what the alternative would be--or even whether rejiggering the basic categories would alter the the underlying analysis much. But--just off the top of my head--you could imagine a system where the core offense was not "copyright infringement" but some kind of tort of unfair competition with an original work. In many cases it would yield the same practical result, but at least we'd reorient the public discourse around "copyright" to focus on measurable harms to creators' earnings--and ideally get away from the confused notion that copying without permission is somehow equivalent to "stealing" by default unless it fits some pre-established exception.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Apr 1st, 2011 @ 6:36pm

    Why don't they just rename it to theftwrong?

     

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  2.  
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    Capitalist Lion Tamer (profile), Apr 1st, 2011 @ 6:54pm

    I dig this guy.

    Ran into his site via (of all places) a quote in a Megan McCardle post at the Atlantic. He's got an amazing take on the subject matter I actually care about. Yet another for the RSS feedlot.

     

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  3.  
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    ChurchHatesTucker (profile), Apr 1st, 2011 @ 7:01pm

    The whole point is to encourage copies, right? Because that will benefit the unwashed masses and all.

    So, why are we granting monopolies on copying these things? Because these monks are more virtuous?

     

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  4.  
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    Capitalist Lion Tamer (profile), Apr 1st, 2011 @ 7:04pm

    Re:

    Well, they weren't sleeping around, if that's what you mean.

     

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  5.  
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    MrWilson, Apr 1st, 2011 @ 7:36pm

    Re:

    Why don't we just call copyright maximalists, "greedtards?"

     

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  6.  
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    :Lobo Santo (profile), Apr 1st, 2011 @ 7:42pm

    Re: Re:

    Naw, sounds way too cool.

     

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  7.  
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    ChurchHatesTucker (profile), Apr 1st, 2011 @ 8:05pm

    Re: Re:

    Well, if they're not, set them to it!

    Disseminate this information! (As it were.)

     

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  8.  
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    Ken, Apr 1st, 2011 @ 8:21pm

    IP Maximalists vs The Free Flow of Ideas

    Yes the entire argument about copyright is insane in todays environment where cutting and pasting is a simple function of a web browser and that sharing is exactly what the Internet was designed to do. Infact without the free flow of information their is no open Internet.

    Copyright law will eventually come in line with the modern age unless we are willing to live in an absolute police state where every activity is closely monitored and the most trivial violation is met with the harshest of punishments which is where the IP Maximalists want to take us but it is no world anyone else would like to live in.

    It is a fact that either the Internet itself will have to fundamentally change away from being the free flow of information and ideas that we have become accustom to or a very rigid and controlled medium few would enjoy using or copyrights will have to give. They are not easily commingled and is the essence of the battles that are being played out between internet users and content owners. One will eventually have to give and it WILL not be copyright holders no matter how much they fuss because the people will not be willing to live in an absolutist world that would be required to achieve the IP maximilist's objectives.

    Copyrighters had better come up with some viable option and compromise or it will be made for them and not to their liking.

     

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  9.  
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    Chuck (profile), Apr 1st, 2011 @ 8:44pm

    But wait...

    Focusing on the Copy part might be bad... but it'd be worse if people focus on the Right part. It isn't a Right by any law of nature. For the same reason people shouldn't not be sued or even penalized in any way for quoting "Four score and seven years ago", there is no RIGHT to copyright. Monkeys at typewriters... monkeys at typewriters.

     

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  10.  
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    Greedtard (profile), Apr 1st, 2011 @ 9:13pm

    Re: Re: Re:

    Too late.

     

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  11.  
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    Greevar (profile), Apr 1st, 2011 @ 9:50pm

    Re: But wait...

    That's the thing. It's not a right, but a privilege to exclude others from obtaining a copy by any other means than that which the creator permits. There is no other right in our laws that I know of other than the IP laws that confer "rights" that have an expiration date stamped on them.

     

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  12.  
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    Greevar (profile), Apr 1st, 2011 @ 9:58pm

    Re:

    You're bringing up theft again? You're like a fly bouncing off the glass, trying to get outside. When do you people learn? It's been discussed and pointed out many, many times. Copyright infringement is not theft. It is infringement. Calling it "theftwrong" would be like calling a banana "sourfruit".

     

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  13.  
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    Greevar (profile), Apr 1st, 2011 @ 10:26pm

    Accreditation.

    That's about all the government can hope to secure for authors and artists. Any attempts to restrict or prevent copying content is going to be met with massive failure just by the merit of the fact that copying is necessary merely to access the work for its intended use.

    A computer game is a prime example. When you run a game, there are copies of the software floating about in the various components of your system. There's logic and data in the RAM that is being processed by the CPU and there is graphic information being processed by the GPU and being stored in the frame buffer. The audio hardware stores the loaded data it is requested to playback. Finally, there's the source of all of this data, the disk. In order to efficiently load and utilize the data, it is stored on the hard disk of your machine which was copied from a removable disk that you purchased. These copies are being made faster than you could hope to keep track of. They are necessary for the very execution of that game. Without it, there would be nothing but a blank screen.

    As long as there is a way to use the work as it was intended, there will always be a way to capture it and use it in unintended ways. Fighting against the act of copying is a Sisyphean task, doomed to failure. So, the only remaining part of the existing copyright system that can be defended is accreditation. If we maintain records of who created what, then those people can continue to exhibit their work to others secure in the knowledge that others cannot subvert your works to benefit their professional credit. Even still, it's not an automatic protection. One would still need to register the work and actively protect it by exposing the infringement.

     

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  14.  
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    Modplan (profile), Apr 1st, 2011 @ 10:32pm

    Re:

    How about thoughtcrime?

     

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  15.  
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    Ken, Apr 1st, 2011 @ 10:41pm

    Re: Re: But wait...

    No it is not a right. Rights are not given but something people have naturally such as ideas or speech. Society does not bestow the ability to speak or bestow ideas or give you the ability to possess a physical object such as land. Copyrights is a social contract between one who creates intellectual material and society itself. The Constitution even acknowledge this.

    "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

    We the people give the artist or writer exclusive use of their work for a limited time, not for the sole sake of the originator but for society as a whole.

    Rights are also not transferable. a person cannot give or assign their freedom of speech to someone else.

    Rights are guaranteed by the Constitution.

    Copyright is a privileged not a right.

     

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  16.  
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    Anonymous Coward, Apr 2nd, 2011 @ 5:14am

    Re: IP Maximalists vs The Free Flow of Ideas

    Infact without the free flow of information their is no open Internet.

    Actually, the design of the internet wasn't to encourage the copying of information, it was designed to let you get access to remote information directly. Since the times of Archie and Veronica, the real deal has been getting to information located remotely.

    Even in the current web based environment, the real idea isn't to copy information 1000 times and put up 1000 copies (which may get mutatated over time) rather it is the ability to make a hyperlink that can send someone to the information. The real free flow of information comes when you don't just quote the information, but rather that you let someone read it as a whole, where it comes from originally.

    Free flowing information doesn't mean replication of information. It means free flowing access to it. It means being able to find the one original, real item, not 1000 bastardized copies.

    The internet isn't about copying, it's about finding. Sadly, many people think it's about copying, and that is where they tend to run into problems. If they took the time to properly link people to source material and allowed them to freely flow to the information, the web would be a better place. Instead, everyone is greedy about keeping people on their sites, viewing their pages, checking their ads, making them money.

    It's a shame really that the pirate and "copy everything" people seem to have gotten the upper hand, because they have taken what was a beautiful thing, and turned it into a cesspool of illegal copies, false copies, misleading copies, and have actually become a fake information thicket that makes it very hard to find the real thing you search for.

     

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  17.  
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    Allan Masri (profile), Apr 2nd, 2011 @ 8:33am

    IP Maximalists

    If the internet was designed to help you find things, it was designed badly. Saying the internet isn't about copying makes no sense. The internet works by copying. When you find something on the internet, a copy of that something appears on your screen, from which you are free to copy it to your computer.

    Some people have taken advantage of mass marketing to increase the demand for their product and then sell it at a premium. The internet completely defeats this business model because anything can be copied for free.

    Calling people pirates when they use the internet as a copy machine is like calling someone a pirate who whistles a song.

     

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  18.  
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    Anonymous Coward, Apr 2nd, 2011 @ 10:11am

    Re: Re: IP Maximalists vs The Free Flow of Ideas

    Quote:
    It's a shame really that the pirate and "copy everything" people seem to have gotten the upper hand, because they have taken what was a beautiful thing, and turned it into a cesspool of illegal copies, false copies, misleading copies, and have actually become a fake information thicket that makes it very hard to find the real thing you search for.


    Back in the days, I do remember the first time someone tried to use the internet for commercial purposes if was a lawyer couple that saw and opportunity, we all knew this commerce thing would mess up things, and people send them tones of hate mail to no avail, commerce turned something beautiful into something ugly, now piracy is turning back that proposition just a little and you people get upset.

    I call that karma dude.

    On an historical note, the internet is about communication not copy, not paid access to information is about the capability for people to communicate and exchange information, it doesn't matter what that information is(i.e. video, audio, text, morse code), is about connection and that connection is important because we share, we share knowledge, we share opinions, we share data, we share information and that is what makes the internet so powerful.

    The internet is not about a product, that is second to what really matters and that is people, we are the ones building the connections, building the markets and allowing you creep to be part of it, but right now the internet is extruding something bad from it and you are it, you are the social cancer that was allowed to grow because it didn't bother anyone, now that it is bothering people you are now not welcome.

     

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  19.  
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    Ed C., Apr 2nd, 2011 @ 11:10am

    Re: IP Maximalists

    You're conflating purpose with design--like saying the purpose of a car is not as transportation, but the production of CO2, merely because it's designed to burn hydrocarbons in an internal-combustion engine. The purpose of the Internet is the same as it always has been--to accesses information from remote systems (one of the ACs actually got something right!) The purpose of the Internet is not to copy, that's merely a function of its design. Considering that DNS and search engines were later inventions, the purpose of the Internet certainly was NOT to find things either.

     

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  20.  
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    Ken, Apr 2nd, 2011 @ 11:20am

    Re: Re: Re: IP Maximalists vs The Free Flow of Ideas

    Good Anonymous Coward

    You are right. Infact eCommerce has been their own worst enemy. Sites that depend on advertisements have themselves to blame. Instead of making ads that are passive they started making obnoxious Flash ads that popped up out of nowhere, or worse yet added animation that move around the screen. Most people don't mind and even expect there to be some ads but no one likes obnoxious ads and show their disdain by not clicking on them.

    This annoyance has brought out the use of software such as AdBlock Plus that blocks all ads. IP maximalists consider this theft too just like Jamie Kellner, who is the chairman and CEO of Turner Broadcasting, said not watching TV commercials is theft. As if they believe they should have complete control over your actions while using their product which is another aspect of IP maximalists.

    Of course newspapers have decided that the Internet is a threat and therefore have mounted an attack on it. It won't work though. They are trying to hold back the ocean with a broom.

     

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  21.  
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    Anonymous Coward, Apr 2nd, 2011 @ 11:55am

    Re:

    "Why don't they just rename it to theftwrong?"
    Because it should be theftleft

     

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  22.  
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    Ken, Apr 2nd, 2011 @ 12:29pm

    Re: IP Maximalists

    Again part of the IP Maximilist agenda is to take away or restrict two way communication and make the Internet simply a way to pull information from a controlled group of sites. It would work like your cable TV where you have only limited choices of content providers and you must strictly abide by their rules.

    What makes the internet so powerful is it gives people the ability to display the pertinent part of a news item for the purpose of discussion, commenting, criticizing and contributing to topics of public interest. Even the copyright law itself acknowledges this.

     

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  23.  
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    Brendan (profile), Apr 2nd, 2011 @ 12:34pm

    beautiful description

    That was some seriously insightful analysis by Julian -- makes me want to go read more of what he has written.

    The connection made by proposing the algorithmic construction of non-copied sources perfectly illustrates why the current system is woefully trying to break down the wrong door.

    "Sorry, Mario - the princess is in another castle...."

     

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  24.  
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    Anonymous Coward, Apr 2nd, 2011 @ 6:52pm

    Re: Re: IP Maximalists vs The Free Flow of Ideas

    You mean like how the big media, like Robert Murdoch, has made it corporate policy to copy others without referring back to the original source and giving it credit while blogs, like techdirt, usually do give credit to the original source?

     

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  25.  
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    Ken (profile), Apr 2nd, 2011 @ 8:29pm

    What's money when you can have control?

    What is interesting is that many copyright holders either look at this the wrong way. Are listening to their zero sum accountants, or are just plain control freaks and feel it is more important to have tight controls than to make money.

    Accountants tend to add theoretical numbers when they estimate the amount of money "lost" due to "pirates" There is a huge assumption that if said movie was not available for download that each and every one of them would have paid instead when in reality the vast majority simply would have not bothered to see let along PAY for the movie thus the movie studio cannot claim these theoretical lost revenues.

    This is a problem for the studios and other copyright holders because they claim they are losing money when in reality they are counting phantom revenues that they NEVER would have earned in the first place with or without the "piracy".

    Also without the "piracy" a movie may never become popular in the first place without the word of mouth generated by people downloading the movie and talking about it and thus driving up legitimate sales.

    If copyrighters were successful in their efforts to quash all "pirating" of their material, which they cannot, but for the sake of argument lets say they did. They would not find the corresponding revenue increase that the zero sum accountants had promised and to make things worse their movies or other works would have a far smaller audience and thus not make as much money as it would with the "pirating". But hey what's money when you have control?

     

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  26.  
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    Anonymous Coward, Apr 2nd, 2011 @ 10:48pm

    Re: Re: IP Maximalists vs The Free Flow of Ideas

    Actually, if you want to drag history into it, what became the internet was designed as a distributed information network to facilitate the dissemination and protection of information in a wide network to preserve that information in case of nuclear strike. Everything else came after that.

     

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  27.  
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    Anonymous Coward, Apr 2nd, 2011 @ 11:05pm

    Re: Re: IP Maximalists

    The purpose and design of ARPAnet was both communications and copy, actually.

     

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  28.  
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    Jose_X, Apr 3rd, 2011 @ 12:08pm

    Here have a copy.. so I can sue you?

    >> But, at the same time, every time you visit a website, you're technically making a copy -- which could be considered infringement.

    How can it be infringement if the other side owns the copyright and sent you the copy over voluntarily?

    On the other hand, to the extent infringement would be a risk, this is all the more reason to visit websites like techdirt.com.

     

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  29.  
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    Chris Brand, Apr 4th, 2011 @ 1:54pm

    Yale paper

    I still think that the paper from Yale at http://cs-www.cs.yale.edu/homes/jf/MF.pdf said it best.
    "Under current U.S. law and common understanding, the fundamental right granted by copyright is the right of reproduction – of making copies. Indeed, the very word “copyright” appears to signify that the right to control copying must be a fundamental part of any system of copyright. Nonetheless, we claim that this assumption is incorrect."

     

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  30.  
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    Not an Electronic Rodent (profile), Apr 5th, 2011 @ 1:29am

    Re: Yale paper

    Nonetheless, we claim that this assumption is incorrect.

    Which I think is a valid thing to challenge. Whether it is still true or not I think the point at which the nature of a "copy" has fundamentally changed - i.e. from a cost-laden endeavor to a fundamentally cost-free one in many cases - is the point at which it is worth examining the original assumptions to see if they are still valid.

     

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