Angry Man Without Pants

Joe Artist: I have this great idea for a book. I think you’d like it.

John Q. Public: Really? Why don’t you write it down?

Joe Artist: I can’t. I have a family to support, bills to pay, and my old age to save for. I already have a full-time job that takes up almost all of my time. It would take a year or more of dedicated work to write a book. If I had to juggle that and my day job, well, it would take forever.

John Q. Public: Gee, that’s too bad, because I think you’d be a really good writer.

JA: I’ve saved some money, so I suppose I could quit my job and work exclusively on the book, but even if it turns out really great, (which I’m sure it would), there’s no future in it.

JQP: Why do you say that?

JA: Because once I manage to sell a few copies, there’s nothing to stop people from making their own copies and either selling them cheaper than mine or giving them away for free. I’d never make enough money to live with dignity.

JQP: I see. Well, I think we need more good books (and art and music and theater for that matter). I think that would be good for everyone.

JA: Yeah, it probably would be…

JQP: I have an idea. Why don’t we give you the exclusive right to make copies of your book, and make it illegal for anyone else to. That way you can sell your book when and where you want to and negotiate the best price you can.

JA: That sounds pretty good. What’s the catch?

JQP: Well, we’re going to have to enforce this, which will take time and effort, and the whole point of the exercise is to make more cool stuff available to more people, so we don’t want you to limit the supply of your work indefinitely – we want to eventually distribute it to as many people as possible so the entire population can benefit.

JA: Well, OK. I can see your point.

JQP: So we’re thinking that you get a monopoly for, say, 14 years, then after that anyone can make as many copies as they want with or without your permission.

JA: Well, that sounds like a fair trade, except 14 years might not be long enough to recoup expenses. Sometimes it can take years to get a manuscript to print, and everyone but me would have an incentive to stall and delay until my monopoly had expired. I think I’d like it to be long enough that people wouldn’t be tempted to do that.

JQP: You’ve got a point. What if we double it to 28 years. Would that be OK?

JA: Yeah. That would be just fine.

Author’s note:

Personally, I believe I have a natural right to control works of my own creativity.  In other words, I believe I should have copyright in perpetuity on anything I create.  I’m also a realist, and recognize that enforcing that right is only possible with the cooperation of the state, but the state has no reason to enforce perpetual copyright because such enforcement would not be of any measurable benefit to the public.  I also recognize that the wide dissemination of creative works is a net benefit to the general public, and the best way to maximize that dispersal is to give them away for free.  I, however, refuse to create anything if I know I’m not going to be adequately compensated for it.  In short, the public wants me to make shiny stuff, ’cause they think it’s cool, but I won’t make any shiny stuff (especially the really cool stuff that takes a lot of time and effort) unless I get paid for it.  It’s a Mexican standoff.

One of the ways to resolve a standoff is diplomacy resulting in compromise, which is basically what happened in England in 1709.  The compromise, stripped of its posturing, legalese, and related claptrap, boils down to this:

If I create something, and someone copies my creation without my permission, the state will punish them for me.  This arrangement will only last for a limited time, however, after which anyone can freely copy my creation as much as they want.

It’s a quid-pro-quo arrangement.  I relinquish perpetual ownership of my work and in return get the opportunity to profit from my creative efforts and “live with dignity”, the public agrees to tolerate a certain amount of monopolistic behavior and in return is assured an increased supply of free shiny cool stuff.

I’m OK with this.  28 years of monopoly control of my creative work, guaranteed and enforced by the state at no extra cost to me, sounds like a good thing.  However, how we managed to get from there to our current Life+70 years still boggles my mind.  A copyright that can last anywhere from 70 to 140 years is so close to being “effectively perpetual” as makes no never-mind.  Currently, something created during my lifetime won’t enter the public domain until my great-grandchildren are adults.  The likelihood of reduced innovation and creativity caused by such long monopolies runs directly counter to the original intent of copyright legislation.  This shows that copyright holders have overreached themselves and the compromise is no longer equitable.  We’re welshing on our collective bargain.

I’m a writer and I’d be the first to support a return to shorter copyright terms of 42 or even 28 years, which would see entry of works into the public domain within the same generation as they were created.  I’m well aware that even a 14 year copyright term won’t satisfy all the pirate asshats out there who want free-shiny *now*, but that’s a different kettle of fish, which I’ll fry another day.

Lets embark on a little thought experiment.

Let’s pretend, purely for the sake of argument, that copyright terms are limited to 14 years, a la the Statute of Anne. Let’s also assume that I write a number of bestselling books and become extremely wealthy. Thirdly, lets imagine that I decide for some reason (Alzheimer’s, religious conversion, pure perversity, whatever…) that the first book I wrote no longer deserves to exist, that I hate it and want to eradicate it from the face of the planet. I’m wealthy, and persistent, so I embark on a quest to locate, buy back, and then destroy every copy that was ever printed. I hire an army of assistants who search used bookstores the world over. I contact owners of copies and persuade them to sell. I am relentless. Perhaps I bankrupt myself in the process, but whether I do or not is irrelevant to the argument. What matters is that, before my copyright expires, I manage to legally obtain and destroy every last copy of that book.

I’ll tell you what doesn’t happen on the day the copyright on that book finally expires. No one knocks on my door; no federal agents, no local constabulary, no barristers, no lawyers. Nobody tries to arrest me, or detain me, or fine me for violating the public’s right to have my book released into the public domain.

Why?

Because that right doesn’t exist and has never existed.

There is a subtle and important distinction I’m trying to illustrate here. Copyright law gives me the right to withhold my work from the public domain for the term of the copyright. Once a work exists in the public domain, you have the right to copy that work with impunity, but nobody has the right to demand that a created work be placed in the public domain. Nowhere in the world does there exist a statute recognizing the rights of the public to force works to be released into the public domain. If I write something and sell copies of it, and those copies still exist upon expiry of my copyright, then other people are allowed to make copies of those copies. That’s all.

“So what,” you say. “You’re splitting hairs. How is this relevant?”

Before I explain, let’s try a second thought experiment.

Let’s pretend I’ve written a vastly popular book. It sells hundreds of millions of copies and is insanely popular. (Think of J.K. Rowling here). The public clamors for a sequel. I write one, but instead of publishing it, I take the only copy and lock it away in a safe in my home. Please remember, that sequel is protected by copyright from the moment of its creation. I don’t need to fill out any forms. I don’t have to register with any copyright office. Specifically, I am not required to deposit a copy of my work with anyone, anywhere, to validate my copyright.

The public can be certain beyond any reasonable doubt that the sequel exists, (heck, I could even distribute a few excerpts), and many would likely feel sure that, should they somehow obtain a copy to read, they would enjoy the story. Nevertheless, that manuscript stays locked away. I continue to write other bestsellers, the public continues to enjoy my other works, and knowledge that I possess an unpublished sequel never leaves the public mind.

As before, I’ll tell you what doesn’t happen on the day the copyright on that hidden manuscript finally expires. No one visits my house to demand the safe be opened; no federal agents, no local police, no lawyers. No one tries to arrest or detain me for violating the public’s right to make copies of my book.

Why?

Because, even though the copyright on that work has expired, and anyone with access to the original is now permitted to make copies of it, they don’t have a right to demand to make copies of it. As access to the only existing copy can only be had by breaking and entering my home, which is illegal, I still get to choose who sees my work. The point being illustrated here is that no one has a right to force me to show them my work, even if it is no longer protected under copyright. People do not have an unalienable right to make copies of any work no longer protected by copyright, they simply have the right not to be prosecuted for duplicating public domain works already legally in their possession.

“So what,” you say again, “does this have to do with anything?”

It has to do with attitude, and the overweening sense of entitlement exhibited by so many of today’s denizens of the Internet.

I read a lot of message boards and discussion groups on the Internet where arguments regarding the current state of copyright legislation rage unabated. Over and over again I see variations of the complaint that “copyright holders are depriving the public domain of content that is rightfully theirs”. I hear suggestions that copyright terms should be truncated to ridiculously short durations — 5 years, 3 years, even 1 year, so that works can more quickly move into the public domain, where they belong. There exists this insidious assumption among the general public that the moment any creative work comes into existence it actually belongs to the public and is simply “on loan to the creator” for the duration of its copyright. This is false: the right not to be prosecuted for copying a creative work is not the same as the right to experience that same work. The former is recognized; the latter is not.  Even if you believe that an artistic work is truly great and is a benefit to society, you still don’t have the right to demand to experience it.

I am inundated by claims that the public has a right to experience the works of creators and other artists, that the public has a right to obtain those works for free (even though they may have made no contribution whatsoever to the original creation of those works), and that prevention of this via copyright law is an infringement of their rights.

Well, you know what?

You don’t have a right to be entertained.

You don’t have a right to see my stuff.

You certainly don’t have a right to be entertained by my stuff for free.

Now get off my lawn…