Not so black and white

The Copyright Clause of the US Constitution gives Congress the power

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The legal tradition of copyright goes back a few decades before the Constitution, to Great Britain’s Statute of Anne, officially called “An Act for the Encouragement of Learning…,” from 1710. It is interesting that the original concept was about progress and intellectual growth, yet today it is perceived as being primarily about protecting profits.

There is a tension between the two, and finding the right regulatory balance is difficult. How long should copyright last? How loose or restrictive should regulations be? How should the rules be adapted for evolving technologies? Copying is at the heart of how the web works. Information gets copied from a server to the end user’s computer. But that kind of copying is generally okay – the copyright owner gives tacit permission to do it by putting information online. Sometimes things are put online by people other than the owners, which can be a problem.

These days, I think the balance is out of whack. The internet opens up valuable opportunities for communication, but they are inhibited by regulations. We can share all sorts of information face-to-face, but we’re entering a minefield if we do it in a conversation mediated by the web.

There was a law firm in Las Vegas whose entire business plan was built on suing bloggers who quoted news articles. For many people, the settlement fee was less than the cost of fighting the suits, so the firm made money. Yet what was being shut down was generally discussion of events and editorials rather than copyright infringement. I read of another case where a person was threatened with draconian action based on a stupid mistake made by a bot. It’s less deliberate, but kinda more scary.

GreyAlbumLawyer Lawrence Lessig gave a talk about how the law is out of touch with modern reality. I like the way he lays his argument out. Times change, technology changes, and sometimes that changes culture, and sometimes the rules and regulations don’t quite keep up. About ten years ago EMI threw a fit when The Gray Album came out. Technically it may not pass an official fair use test, but so what? It’s not like anyone would not buy The White Album because of it. Maybe what can and can’t be done with copyrighted works isn’t so black and white.

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