The war against illegal file-sharing is like the church's age-old war against masturbation. It's a war you just can't win.
Copyright law has got to give up its obsession with 'the copy.' The law should not regulate 'copies' or 'modern reproductions' on their own. It should instead regulate uses--like public distributions of copies of copyrighted work--that connect directly to the economic incentive copyright law was intended to foster.
Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device.
By the time Apple's Macintosh operating system finally falls into the public domain, there will be no machine that could possibly run it. The term of copyright for software is effectively unlimited.
The crystal ball has a question mark in its center. There are some fundamental choices to be made. We will either choose to continue to wage a hopeless war to preserve the existing architecture for copyright by upping the stakes and using better weapons to make sure that people respect it. If we do this, public support for copyright will continue to weaken, pushing creativity underground and producing a generation that is alienated from the copyright concept.
If the only way a library can offer an Internet exhibit about the New Deal is to hire a lawyer to clear the rights to every image and sound, then the copyright system is burdening creativity in a way that has never been seen before because there are no formalities.
I think the reality is that copyright law has for a very long time been a tiny little part of American jurisprudence, far removed from traditional First Amendment jurisprudence, and that made sense before the Internet. Now there is an unavoidable link between First Amendment interests and the scope of copyright law. The legal system is recognizing for the first time the extraordinary expanse of copyright regulation and its regulation of ordinary free-speech activities.
We live in a world with "free" content, and this freedom is not an imperfection. We listen to the radio without paying for the songs we hear; we hear friends humming tunes that they have not licensed. We tell jokes that reference movie plots without the permission of the directors. We read our children books, borrowed from a library, without paying the original copyright holder for the performance rights.
I think if the copyright regime focuses on the people we are supposed to be helping, the artists and creators, and builds a system that gives them the freedom to choose and to protect and to be rewarded for their creativity, then we will have the right focus.
Now that copyrights can be just about a century long, the inability to know what is protected and what is not protected becomes a huge and obvious burden on the creative process.
Monopolies are not justified by theory; they should be permitted only when justified by facts. If there is no solid basis for extending a certain monopoly protection, then we should not extend that protection. This does not mean that every copyright must prove its value initially. That would be a far too cumbersome system of control. But it does mean that every system or category of copyright or patent should prove its worth. Before the monopoly should be permitted, there must be reason to believe it will do some good -- for society, and not just for monopoly holders.
The danger in media concentration comes not from the concentration, but instead from the feudalism that this concentration, tied to the change in copyright, produces.
The current term of protection for software is the life of an author plus 70 years, or, if it's work-for-hire, a total of 95 years. This is a bastardization of the Constitution's requirement that copyright be for "limited times."
But, like all metaphoric wars, the copyright wars are not actual conflicts of survival. Or at least, they are not conflicts for survival of a people or a society, even if they are wars of survival for certain businesses or, more accurately, business models. Thus we must keep i mind the other values or objectives that might also be affected by this war. We must make sure this war doesn't cost more than it is worth. We must be sure it is winnable, or winnable at a price we're willing to pay.
This does not mean that every copyright must prove its value initially. That would be a far too cumbersome system of control. But it does mean that every system or category of copyright or patent should prove its worth.
We established a regime that left creativity unregulated. Now it was unregulated because copyright law only covered "printing." Copyright law did not control derivative work. And copyright law granted this protection for the limited time of 14 years.
Copyrights have not expired, and will not expire, so long as Congress is free to be bought to extend them again.
Creativity builds upon the public domain. The battle that we're fighting now is about whether the public domain will continue to be fed by creative works after their copyright expires. That has been our tradition but that tradition has been perverted in the last generation. We're trying to use the Constitution to reestablish what has always been taken for granted--that the public domain would grow each year with new creative work.
We have a massive system to regulate creativity. A massive system of lawyers regulating creativity as copyright law has expanded in unrecognizable forms, going from a regulation of publishing to a regulation of copying.
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