Copyright As a Social Contract

by jms

What the copyright industry is forgetting is that copyright has traditionally been a social contract.

In general, publishers agree to publish works, making them available to the public. The public gains two important benefits from this half of the bargain.

First, works are placed in the public domain in two ways. First off, the copyright is supposed to expire eventually, but there is another sense of the "public domain", which is "material available for public use." For instance, If you want to quote a paragraph from a copyrighted novel in your English paper, you are allowed to do so. This is fair use. It ensures that copyright serves the purpose of promoting learning and education.

If you want to sell your used book, you are allowed to. This is first sale. It ensures that works survive by placing copies of those works in private hands, and preventing the authors or publishers from reclaiming them or interfering with the public's use of them.

In exchange, citizens agree not to compete commercially with the publishers in exploiting their work.

This theme runs up and down through copyright law, with the notable exception of the DMCA. The DMCA is really anti-copyright. It is everything that copyright is not supposed to be. The DMCA was designed to allow publishers to renege on their half of the social contract.

Under the DMCA, the publisher is not obligated to place a work in the public domain in either sense of the word. Even after the copyright term expires, an encrypted work remains encrypted. There is no obligation, or provision, for an encrypted work to be unencrypted upon copyright expiration. And none of us will live long enough to see it happen. In the second sense of the "public domain", the DMCA allows publishers to use technological measures to prevent fair use. Want to quote a paragraph from an encrypted e-book by cutting and pasting? That's illegal if the publisher says so. Want to sell your copy of that e-book? That's also illegal if the publisher says so. not because it's illegal under copyright law, but because it's illegal under the DMCA, which is anti-copyright law.

There are probably three ways that the copyright crisis can resolve -- either:

1) The public learns to accept the fact that their rights to read, quote works, and own and trade copies of works has been permanently banished.

2) The courts strike down the DMCA.

3) Sensing that the publishing industry is no longer bound to the traditional obligations of the copyright social contract, the public abandons their half of the social contract. Copyright violation becomes like drinking during prohibition -- just another bad law waiting to be struck off the books.

Make no mistake, copyright is in crisis. When Congress wrote the DMCA, they completely got the problem backwards. The problem isn't that a thieving public is waiting breathlessly for the opportunity to strip copyright holders of all their rights. The problem is that a thieving copyright industry has been waiting breathlessly for the opportunity -- the DMCA -- to strip the public of all their rights.

The endgame is now in motion, and I predict that it will result in either the destruction of the DMCA, the destruction of consumer rights, or the destruction and abandonment of copyright itself.

Never forget that copyright originally arose as an instrument of censorship. It was a stroke of genius to transform an instrument of censorship into an instrument to promote progress, and all it took was an ignorant Congress, and an opportunistic publishing industry, to change it back.