How Much Of Today's Copyright Mess Is Due To Bad Definitions Of The Word Copy?

from the messy-messy dept

The Guardian has up a short excerpt from William Patry's recent book, How to Fix Copyright, which is a really enjoyable read. I don't necessarily agree with everything in there, but almost all of it is thought provoking and relevant to the discussions we have around here. The excerpt is actually from the beginning of the book, it highlights how much of the confusion over today's copyright law might be because people have been confused over what definition of "copy" we're using. As he notes, "copy" can be both a verb and a noun -- and at first copyright appeared to be about the noun version, but relatively early on, people redefined it to cover both the verb and the noun, but people aren't always clear which one they really mean:
The word "copy" has two meanings. As a verb, "to copy" means reproducing content from one work into either another work (we say one song was "copied" from another song). It also means that copying into another form (you "copy" your CD onto your iPod). The verb of "copy" is what we mean by the exclusive right to reproduce a work. "Reproduce" is a synonym version of the verb to copy. The noun version of "copy" refers to a physical object, a CD or the mp3 file on your iPod that contains the intangible work (the song or the performance). When I say I own a CD "copy" of a work, I am referring to the noun.

The original use of "copy" was in the noun sense. In England, book publishers spoke of owning rights in their "copies," meaning the printed production. The 1710 Statute of Anne, in its title, also spoke of "vesting the copies of printed books in authors or purchasers of such copies...." The right granted - the verb - was the right to "print" those copies. The right to print later became the right to reproduce, with reproduce being regarded as a synonym for the verb to copy. The term "copyright," though ambiguous, referred to either the noun or the verb. Most copyright acts, including the US Copyright Act, combine both the verb and noun versions: the right granted in 17 USC 106(1) is the right to "reproduce the work in copies."
But these days, thanks to these misinterpretations, we get bizarre thinking from copyright maximalists:
Unfortunately, through mistaken interpretations of the noun "copy," the reproduction right has been wildly expanded in many countries, particularly the United States, to include transitory acts such as buffering, caching, or non-consumable versions that are necessitated by the automatic operation of computers or other digital technologies. None of these transitory acts has an independent economic value; that is, they do not harm copyright owners' markets. For example, in order to ensure that the streaming of a video is not interrupted by breaks in the transmissions, websites copy ("buffer") small parts of the video so that missing pieces can be filled during the interruption. Browsers make caches of websites that you just visited in case you hit the "back" button and want to revisit a site you just left. Other caches help with latency (response) time, and managing network traffic. Other times, a cache is made in case websites are inadvertently deleted. To consider buffering or caching to be infringing "copies" is using an eighteenth-century concept to defeat necessary twenty-first-century technologies, the only purpose of which is to increase performance. Where "copies" are made as a necessary adjunct for other legitimate purposes, no liability should exist. Amending the definition of "copy" in either the noun or verb version is an easy fix that would go far in assisting musical licensing and in removing the specter of mass, unintentional copying.
The piece goes on to note that this version of "copying" under copyright law makes all sorts of new services -- those based around access rather than ownership -- a huge minefield of potential copyright violations. And it's all made that much worse when you add in the ridiculous anti-circumvention clauses, because that effectively gives the entertainment industry a veto on technology, despite having nothing to do with violating copyright law.
The DMCA and other digital lock laws are prime examples of our march backwards, of how our laws are used to thwart innovation and creativity. The DMCA is the reason you can't load lawfully purchased copies of your DVDs into your iPod, why you can't transfer copies of many lawfully purchased works from one electronic device to another, why DVDs bought in one country may not work in another, something that greatly embarrassed (or should have) President Obama when he gave then–United Kingdom prime minister Gordon Brown a set of DVDs of American movies, which couldn't be lawfully played on Brown's DVD player.

The DMCA will permit copyright owners to control how many times you can read or watch a copyrighted work. In the DMCA world, both consumers and technology are treated as the enemy.
And, as he notes, this is unfortunate not just for technology companies -- but for consumers and the artists and content creators they want to support:
This unfortunate approach ignores that consumer expectations are greatly influenced by technologies. It is new technologies, not new works, that lead to new consumer expectations and therefore new sources of profits for authors. The Sony Walkman led to an explosion of new sales of audio cassettes. The same was true of the introduction of the CD, where for most of its product life, more money was made from consumers re-buying existing albums than from buying new ones.

But for new technologies, the copyright industries and authors would have starved long ago, since they have played no role, creatively or financially, in the development and introduction of the technologies that enable them to make money. Not a single penny was contributed by the music industry to the creation, manufacture or marketing of iTunes, the iPod, or the iPad. Not a single penny was contributed by the copyright industries to the development of the internet or to any search engine even though the copyright industries could not exist without either. New technologies provide new ways to satisfy new consumer demand and to thereby make healthy profi ts. You would never know that from the medieval mentality of moat building represented by the DMCA and copyright industries' approach to most new technologies, an approach that has failed to grasp the simple point, proved over and over again, that new technologies create new opportunities.
There's a lot more in the article that's worth reading, and even more in the full book, which I recommend highly.

Filed Under: copy, copyright, definitions, fixing copyright

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  1. icon
    DannyB (profile), 22 Mar 2012 @ 1:51pm


    > Legal file sharing is such a small amount of what is really
    > going on out there that it is laughable to try to hinge a
    > defense on it.

    First, I disagree that it is such a small amount. In fact, legal file sharing may dwarf copyright infringing file sharing.

    When I send an email with a file attachment, that is file sharing.

    In my case, the files attached to an email are legal. Often my own work.

    Now, suppose pirates started shifting to email attachments to distribute pirated music and movies. Would you then be trying to stop email attachments? Even though you probably use them yourself? (Oh, wait, dinosaurs are still stuck in the pre-email era.)

    You should not and simply cannot be allowed to outlaw the legal use of a file sharing tool, including BitTorrent which is extremely useful.

    You always want to go after everything but the actual pirates. Why is that?

    You want to kill the tool. Or the search engine. Or hyperlinks. Or shift the burden to ISP's (who cannot know what is and is not infringing since the entertainment industry cannot seem to even determine that). Or shoot first, ask questions later. Massive collateral damage doesn't seem to bother you one bit.

    I think that needs to work both ways. One bogus DMCA takedown should result in your being put out of business. That's what you do to others.

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