On Copyright
The following two articles were written in response to articles posted by Michael Fraase of Arts and Farces.
Michael Fraase has a three-point plan to reform copyright for the digital world at the end of his widely-linked and interesting Arts & Farces essay, When Elephants Dance. His first and second points (shorter copyright terms and recognitions of creators "moral rights" as defined earlier in the piece) are solid and reasonable, although of course they have not a snowball's chance in hell of ever being enacted into law. The idea that we could "buy back our rights" as Fraase suggests (by buying off Congress the way the corporations did) implies that what the corporations spent on lobbying is as much as they're willing to spend. It's not. They'll spend much more if they have to; it's just that in this case, they didn't have to.
His third suggestion, though... he wants to stop corporations from owning copyrights. There are major, major problems with that idea. Suppose I write a user manual for a software package and am paid for the job. Now, it won't do me a lot of good to own that copyright, since it's tied closely to the product (which I am not at liberty to reproduce), and furthermore they don't want their competitors getting it before their product actually ships, so I assign it to some officer or employee of the company. However, since the company quite reasonably doesn't want that person quitting and ruining their operation by taking away the intellectual property they depend on (imagine if Microsoft's key programmers quit and they couldn't continue selling Windows!), so his employment agreement will have a clause in it stipulating that if he leaves the company he must assign the copyright of any intellectual property he owns to someone who still works at the company.
Or, simpler than that, the company will simply require me to sign an exclusive publishing contract on the work I've done for them. I would technically continue to own the work, but they're the only ones allowed to publish it, for as long as the copyright exists. If I don't want to sign that contract, I am of course free not to. They'll just give the job to someone else who's willing to sign, just like they do now if I'm not willing to sign, say, their NDA.
In either scenario the end result is exactly the same as it is now: the corporation controls the copyright, even if they don't technically own it. Corporate ownership of intellectual property is just as important to the continued operation of a modern business as corporate ownership of physical property is. That's the point of a corporation in the first place -- everyone who worked for Henry Ford can die, yet Ford Motor Co. can continue its operations because the corporation, not any one officer or employee of the company, owns the necessary property. This is not subject to change; every business owner in the country would be dead-set against it.
By the way, patents cannot be registered to corporations, only to individuals. In other words, the patent system is already set up exactly the way Fraase wants copyrights to be set up. And, predictably, engineers routinely sign employment agreements that grant their employer exclusive rights to their patentable inventions. Fraase might look at how well the patent system has (not) worked in keeping corporations from controlling patents. Burn All GIFs is a fine place to start.
Where I've used user manuals as examples, because that's what I'm familiar with, Fraase's article uses the more glamorous (and more familiar) CDs and movies. There is in fact nothing forcing recording artists, screenwriters, and directors to turn their copyrights over to a record company or a movie studio. They do it because they want the fame that only a major distributor can give them. How badly do they want it? Tautologically: badly enough to sign over all their rights. This won't change until there is a way for independent artists to reach a wide audience and achieve fame without the middlemen. When that happens, the strong copyright protections the big boys are fighting for now will work for the creators.
And it will happen. The RIAA and MPAA can't stop technology. Copy-protected CD? Pah -- every CD player must have an analog output somewhere, and recording it back into a computer from there will degrade it so slightly as to be completely unnoticeable. Signals sent to the display of even the fanciest digital TV can be intercepted, recorded, and converted to DiVX. At some point the signal must be made manifest in the real world, in order for humans to see it, and at that point is becomes vulnerable. Worse than that, any copy-protection hardware can be completely simulated in software (a guy named Turing proved that mathematically), so in order to completely defeat the "cracking" of digital content, you basically have to ban computers. You can make defeating copy-protection punishable by death if you want, but that's only a deterrent if you can catch the pirates. One look at Usenet's plethora of "warez" groups will prove that that's a wild goose chase.
Software companies have dealt with the piracy issue for twenty-five years. The entertainment industry needs to learn from their history. You can't stop piracy, and in some cases, you don't even want to. It is a cost of doing business. The RIAA and MPAA need to accept this -- and, if they want to remain relevant, they should try to figure out ways to profit from the new order. Energy spent trying to stop this technological change is wasted as heat.
As I mentioned earlier, Michael Fraase was good enough to respond to my post here yesterday about copyright issues over at his site, Arts & Farces. Read his article, then come on back for my return volley.
I've been a technical writer for a long time, and so my example was of a user manual for a software product written for hire. "Work-made-for-hire would disappear" under Fraase's proposal, he says. Instead, companies would license just the rights they needed from the creator of the work. Of course, companies can already do this -- they just don't. Contract writers lack the leverage to get this concession, and furthermore it is of extremely limited value to them due to the pace of the software industry. Fraase mentions some potential boons to contract technical writers -- for example, if the company bought just the publishing rights for the manual, they would be obliged to return to the original author and obtain permission for an updated version to be prepared, since this would be a derivative work. This would indeed be a great thing, but they'll never go for it.
Fraase writes: "If Kindall wants to publish a book about the software product, or a magazine article about, say, power-user tips -- using the underlying material -- he's free to do so by negotiating a license for those rights with third parties. I challenge anyone to demonstrate how this in any way harms the software company." It's easy to demonstrate, actually: third-party documentation is often bought by people who have pirated the product. It's debatable whether the availability of a third-party manual actually encourages piracy (for some particularly complicated and expensive products, I'd argue it might well do just that), but even if it doesn't, the software publisher certainly wouldn't want some other company making money off work they commissioned. So, if I wanted to retain some rights, at best they'd offer me less money for the work -- assuming they didn't reject my offer outright -- and I'd be left to make up the difference by trying to repurpose the content for other outlets. It is by no means certain that I'd be able to do this. Since I have bills to pay, I'd probably go for the money and give up all my rights to the material. So the practical difference in this specific hypothetical case (and, I imagine, in most work-for-hire situations) between the way things are now and the way Fraase wants them to be is really none at all. And if there is no practical difference at all, why change the law?
Fraase also points out that I was in error when I said that the ownership of property was "the point" of a corporation. This is true. He notes that the purpose of a corporation is to deliver value to its owners, which in a corporation are called shareholders, which is also true, but it is the purpose of any business. The primary reason a business incorporates is to limit the liability of the shareholders (i.e., the shareholders cannot be held personally liable in suits against the company). Being able to own property and thus to perpetuate existence beyond the lifespan of any individual is a nice bonus, although this could also be done with partnerships and sole proprietorships; it's just that dividing ownership into small pieces called "stock" makes it much more convienient. Fraase notes that corporations were once subject to many more statutory limits, and he is clearly in favor of scaling their rights back. Of course, that can't be done with legislation; since it was a Supreme Court decision which gave corporations the rights of "natural persons," it'll take another Supreme Court decision (or a Constitutional amendment) to reverse it. Good luck.
Obviously, trying to operate a business under the restrictions Fraase wants would be a gigantic pain in the ass (the reason the case reached the Supreme Court was, in fact, because a business found the restrictions onerous enough to pursue it all that way), and a lot fewer people would bother, thereby ensuring that the only corporations that would find it worthwhile to exist were -- the biggest and most profitable. It would be a lot harder to start a corporation, so a lot more small businesses would be small proprietorships or partnerships, and thus subject to being wiped out of existence by a lawsuit, and would thus have to purchase insurance for the purpose that they might not have needed otherwise, thereby raising their costs of doing business and retarding economic growth, with all that that implies. This is really not a tremendously popular opinion to have during a downturn such as the one we're experiencing now, so I commend Mr. Fraase in sticking to his guns.
The current problem with copyright is the power differential -- that is, publishers have more power than creators. In large part this is because there are a vast number of people who want to be bestselling musicians, or novelists, or filmmakers, but only a finite amount of room in the marketplace for blockbusters. Anyone can self-publish a book or start their own small record company, and many people do just that. But to have a blockbuster, a hit, you need distribution and promotion. And that takes money. And most people don't have the money it takes. The point I'm making here is that nobody put a gun to Angie Aparo's head and made him sign a contract with Arista. He could have signed with a label like Robert Fripp's Discipline Global Mobile -- DGM's contracts explicitly leave the copyright with the artist, and in fact Fripp uses this as a selling point to both musicians and music lovers. Or he could have started his own label like Ani DiFranco did. But apparently, he thought the advantages of Arista were sufficient to merit his signature on the dotted line. How could that possibly be? An artist may not sign to a major label specifically to become famous, but every artist is egotistical enough to want their art to be seen or heard, and if the artist decides that signing with a major distributor is the best way to do that, who are we to take away their freedom to do so?
There are a hundred and one ways around any prohibition against corporations owning copyrights, in any case. Create a partnership (not a corporation) to act as a broker. The broker actually signs the contract with the artist, which is legal because they're not a corporation. The broker then assigns all rights to the recording to the record company. Outlaw partnerships or any form of business from owning copyrights? Okay, fine, the youngest, most healthy employee of the record company, or his best friend or his wife if you ban anyone materially involved with the music business, personally buys the copyright, then licenses all rights in perpetuity to the company. You solve nothing, and in trying you lay down all sorts of ridiculous restrictions on contracts between individuals. Since it can't make a difference anyway, why bother?
While I'm on the topic, it occurred to me that two of Fraase's original suggestions are in conflict. If he somehow bans corporations from owning copyrights, then artists will not be happy settling for a 14-year copyright term. Especially those artists whose careers don't take off until late in life (or even after their death). Creators will demand as long a copyright term as they can get, and in a world where our Congresscritters listen to their constituents, they will get it. On the other hand, if copyrights are short, artists will be anxious to turn a profit from them as quickly as possible, and the best way of doing that currently is -- to assign the copyright to a big company, one with lots of resources to promote it and distribute it. Hmmm.
As I said, I believe technology will eventually equalize the power differential. All that is necessary is to stop the RIAA, the MPAA, and their ilk from dictating the course of technology to prevent fair use; no major restructuring of the copyright law is currently necessary, in my opinion. The key, rather, will be for the Supreme Court to overturn any egregious provisions of any stupid legislation that Congress manages to pass, and there is plenty of legal precedent for doing so. It will all shake itself out in the end -- technological progress will see to it. And I have much more faith in technology than in Congress.
-- Jerry Kindall, March 26-27, 2002
