Archives » January 22nd, 2003

January 22, 2003

Language of Copyright

Doc has written up some good thoughts on the Eldred decision over at He says:

I believe Hollywood won because they have successfully repositioned copyright as a property issue. In other words, they successfully urged the world to understand copyright in terms of property. Copyright = property may not be accurate in a strict legal sense, but it still makes common sense, even to the Supreme Court…

This isn’t just a battle of words. It’s a battle of understandings…

“The Commons” and “the public domain” might be legitimate concepts with deep and relevant histories, but they’re too arcane to most of us. […] Communist and Commonist are just a little too close for comfort. Too social. Not private enough.

I think a lot of this has come from the way media companies frame the debate and the language they use. They don’t “sell music”, they “distribute content”. People don’t “copy” songs, they “pirate” or “steal” them. And they speak in absolute terms, saying that any copying is stealing. They tried that back when the casette tape came out, and the VCR, and both times they lost the debate. The concept of Fair Use was too strong, and the courts decided that if you bought a record, and then made a cassette copy for your car, that wasn’t stealing. If you made tapes for all your friends, that was wrong. There was a line there, separating legal from illegal.

Now the record companies are trying it again, saying that digital copying is stealing. And again they’re trying to ignore that line, pretend that it doesn’t exist, pretend that they can have some kind of control over how many times you listen to the song on your computer or copy it onto a CD or a portable MP3 player. And they’re still using the same language. They’re trying to get the media outlets they control to use the language, and getting celebrities to use their words during award shows. They’re trying to spread the meme, and they’re winning.

There’s been a discussion going on about copyright: whether it’s something that the government gives and then revokes after a limited time, or whether it’s something natural and inherent that is wrested away from us by force. You can see the two sides at work there, and they’re trying to debate, but they’re using different language so they’re never going to make any progress. Aaron Swartz seems to represent one extreme, saying that works should be given into the public domain once the creator has recovered the costs of creation. That borders not only on ridiculous but also on communism, and if anything, it strengthens the other side’s arguments. But the other side thinks that copyright should be permanent, something like the deed to a house, that can be passed on to your heirs, or bought and sold. That’s the extreme the media companies hold, that’s the meme they’re selling in the halls of Congress. And Congress is buying it.

Neither of those extremes has the right idea. As usual, the truth is somewhere in the middle. The problem with the Eldred decision is that the Supreme Court was swayed by the meme the media industry has been spreading, and they gave Congress the permission to keep spreading it.