No, Copyright Is Not Like A Contract
from the goes-way-beyond-that dept
One argument that we’ve seen in favor of copyright law is that it’s no different than a contract: that is, if you agree to purchase something under copyright, it’s no different than accepting the terms of a contract. And, as they say, if you “don’t like the contract, don’t do the deal.” Thus, “if you don’t like the copyright, don’t buy the product.” However, as Rick Falkvinge points out, copyright has some significant differences that actually serve to make it antithetical to the right to contract, in that it goes way beyond just the contracting parties to absolutely everyone.
Let’s look at what happens when Alice sells a DVD to Bob (possibly through an intermediary that, for all intents and purposes, mediates the contract), and the sale includes a written condition to not share the bitpattern on the DVD with anyone else, which Bob even reads, understands, contemplates, and signs.
In this case, Bob would be bound by contract to not share that bitpattern. So far, so good. But let’s assume he does anyway. He shares the bitpattern with Carol, who manufactures a copy of the DVD using her own parts and labor.
In this, Bob would be in breach of contract with Alice. But what about Carol’s copy? Carol has signed no contract with Alice whatsoever, and contracts aren’t contagious in the sense that they follow the original object, concept, idea, or pattern; they require voluntary acceptance from an individual, which Carol has not given. Carol has signed no contract, neither with Bob nor with Alice.
Thus, Carol would not be bound by the original contract in the slightest on a functioning free market, regardless of Bob’s breach, and she would be free to share the bitpattern of her own copy of the DVD as much as she pleased with David, Erik, Fiona, and Gia, who could all manufacture their own copies from the bitpattern that Carol shared, without any breach of contract having taken place.
But, of course, that’s not what happens. Copyright isn’t like a contract because all sorts of people who never agreed to any such contract are automatically and unavoidably bound by its terms. In fact, as Falkvinge points out, at this point, it has become the exact opposite of the freedom to contract, because it bars Carol from her own freedom to contract:
The copyright monopoly limits Carol’s rights to sign contracts in her turn regarding her property that she manufactured with her own parts and labor – the DVD with the bitpattern: it limits her ability to sign contracts with David, Erik, Fiona, and Gia regarding this piece of property, should she desire to do so. For example, with the copyright monopoly in place, she cannot even legally execute one of the simplest forms of transaction – a transfer of property. She can’t make additional copies of her own property and sell them, or even give them away without any terms whatsoever.
Whether or not you think such restrictions are reasonable, it seems clearly incorrect to argue that copyright is merely a form of the right to contract.