ACTA and Copyright 2.0: Di Corinto interviews Bruce Perens

Let’s talk of copyright and about Bruce Perens. Ok?

Yes. I have been on both sides of the copyright issue. I worked at Pixar for 12 years and have had 19 years of full-time employment in the film industry. I am credited on Toy Story II and A Bug’s Life. I later became one of the founders of the Open Source movement in software, and left Pixar to pursue that. Today I help governments, companies, and lawyers understand Open Source. I’m also an Open Source software author, and am about to release a new content-management system for the Ruby on Rails rapid application development platform. I live in Berkeley, California, with my wife and 12-year-old son.

So, you can see that I’ve been on both sides of the copyright issue: I’ve made technology for feature films and have worked on the films themselves, and bought a home with my income from Pixar’s IPO. Then in my second career I made Open Source software and helped people worldwide to share the things they make, and companies and governments to understand this.

1) The juncture of conflicting interests frequently leads to a clash between copyright and other basic institutions (fundamental user rights) in our society, particularly the freedom of speech, privacy and Internet access. Is copyright, as we have known it for three centuries, an appropriate tool for the needs of creators and society in a digital environment as SOPA, Pipa and Scotus suppose?

The problem isn’t really whether copyright is appropriate, it is that there is presently no balance of the rights of the copyright holder versus the good of society. This came about because only the very large copyright holders have been represented in the drafting of copyright law, for at least a century. It is as if there had been elections in which only one party was allowed to vote. Of course the laws become progressively more extreme in such a situation.

If we look at the original enactment of copyright, the term was very short – in America it was only 28 years, and the copyright could expire in only 14 years if the author died or failed to renew the copyright. When the copyright expired, the work went into the public domain, and anyone could copy and use it as they liked. The passage of the work into the public domain was a benefit to society, to balance the benefit to the copyright holder, which was society’s grant of an artificial right of monopoly for those 28 years. So, the creator of the work was granted a monopoly right and could make a living by selling the work, but eventually the artificial monopoly expired and the work became public property.

Where is our public property now? Nowhere to be seen. In Europe, copyright endures for 70 years after the death of the author. There is an excellent graph of the extension of copyright terms in the U.S. at
As you can see, they only get longer over time. The copyright holders would have us believe that society benefits sufficiently if the copyright holder can make money and contribute to the economy. But now we are seeing the proposal of more severe laws like SOPA, which, by conscripting all operators of net resources to be copyright cops, would make it very difficult and expensive to operate the internet and would allow large copyright holders to shut down entire web sites for an accused infringement on one page, without sufficient due process. This looks like corporate totalitarianism to me. Laws like SOPA are inevitably extended to Europe through treaties of WIPO and WTO, as has happened with the ACTA treaty.

This is what we get from having only one side represented in the enactment of law. We must make sure that the interests of free society and the open internet are represented now. Protests like the shutdown of Wikipedia have awakened people to the issue, but we should not stop there.

2) both the production and distribution functions migrate from business to the public and there they can rely on excess resources available at each consumption unit. Any hint about this?

It is very exciting to see individuals more able to make things today, and to have a global audience through the internet. We already have individuals making content – video, text, music, and distributing it globally. But now there is a new thing called Open Hardware, physical objects and electronic devices that have their plans shared with the public with a broad set of rights, as if they were Open Source software. Italy is a leader of this with the Arduino project. And there is a new wave of 3-D printers like Makerbot, which can produce solid objects almost as easily as printing a document.

But you can see how these things would be considered a threat by governments. As 3-D printers improve, they will be used to make guns, and hypodermic needles, and other things that governments would rather you not own. Governments will panic and pass restrictive law if we’re not there first, representing our right to have 3-D printers that also make wonderful things. Similarly, large companies are threatened – they would rather remain the primary producers of content and technology, and they will use copyright, patent, and other laws to restrict us and will lobby for more draconian law.

3) Online piracy refers to unlawful downloading, peer-to-peer and streaming of audio and video files on the web. In its attempt to somehow quantify the lost-sale myth of such activities, government bodies (such as GAO office) and many associations said that it is impossible to gather precise data about such different traffic options (downloading, peer-to-peer and streaming), which are instead generally available to Internet service providers (ISP). Are they to become sheriffs of the web? Are they accountable for online piracy?

I don’t approve of illegal copying. But the “lost-sale myth”, the idea that film and music companies are losing tremendous sums of money from illegal copying, is a big lie. It is like having a perfume company complain that they lose money when you notice the scent of a lady walking by. People who copy film or music they don’t own are unethical, but they are not, generally, doing so as an alternative to buying them. They don’t put 20 Euros in their pocket and make a quick check for free downloads before they go to the music shop. People who copy what they don’t own would not have been customers of the film and music companies in any case. They are annoying in that they are “free riders”, but they do not represent a lost sale. But film and music companies call illegal copying piracy, as if it were the same thing as murderning people and stealing ships in Somalia. Doesn’t that seem extreme?

What bothers me most is that legitimate copying, by people who do own a film or video, is restricted in the name of stopping the illegal copying. I could put a film on my tablet to watch on the plane, but copying it from a DVD is illegal, and the program I would use to do so is a circumvention device under laws like DMCA, and would subject me to a USD$250,000 fine and other prosecution. So, the over-restrictive laws make us all into illegal-copy criminals, just for doing things that are perfectly reasonable and should be legal. So, I guess that in the eyes of those companies, you and I are “pirates” too. And thus they are now taking the next step, to severely restrict the internet.

Then there is the question of measuring the magnitude of copying. I don’t think the companies really want to measure it accurately. They currently use huge over-estimates of it to get the laws they want, making it look like they’re being heavily damaged by the internet.

The reality is that the film and music business have never done better. The music business had a bad time until they convinced themselves that they should actually sell downloads, much too late. That was their fault, not a pirate attack! Film always sells excellently in a bad economy. Families choose to spend an evening at home watching a movie when they can’t afford much else. So, the complaints of the film and music companies, as they reap huge economic windfalls, are cynical and duplicitous.

4) IP protection has increasingly proved unequal to the new challenges of innovation. At the same time network driven innovation is seen to thrive in contexts in which exclusivity has been relinquished and is to a large extent replaced by cooperative behaviour among the players, based on a combination of contractual arrangements and liability rules. Isn’t it time to reform international conventions on copyright? Is it ACTA appropriate for such a purpose?

We need several forms of reform.

First, we have to reject or repeal the present laws extending copyright’s strength beyond what it should be. These are the ACTA treaty, the U.S. DMCA (which penalizes circumvention of technology that prevents copying) and its equivalents elsewhere, and proposals like SOPA and PIPA.

Copyright term needs to be rolled back so that works enter the public domain after the authors have had a reasonable time in which to make money from them. What was so wrong with that 28 years?

A shorter copyright duration will also help to solve the problem of “orphan works”, older films, music, and books whose owners no longer make them, and thus they aren’t sold. Such works should be freely copied. Society would benefit from that, and nobody benefits from making those works rare.

5) We assumed that Copyright 1.0 should survive; and we may anticipate that this is likely to be resorted to by creators (and businesses) choosing to operate along the traditional route. Indeed, the ultimate goal is not to displace old copyright, which seems to be alive and well in many situations, but to add to the menu a second possibility, Copyright 2.0, (would operate as a default set of provisions like “Creative Commons or GNU/GPL/GFDL by default”) which should be better tailored to the characters of production and distribution of works prevailing in the current digital environment. Do you agree?

It’s astonishing, but we had this relatively recently in history. In the U.S., materials that were not marked as copyrighted were automatically in the public domain until law changes in 1976 and 1988. The same was true for other nations, with different dates depending on when they implemented various copyright treaties.

Going back to the old way wouldn’t be bad: public domain until you mark it as copyrighted. But why wait for laws? Those of us who write for Wikipedia put our work under an open license today. I suggest that people use the Creative Commons CC BY license on their works if they don’t have a reason not to. It’s not enough to just say “Creative Commons”, because there are a spectrum of licenses there, and some of them don’t grant as many rights as Open Source. So, I just say “CC BY” for casual works.

There are also means for people who wish to make money from their works to share them as well. This means you use two licenses, one for people who will share their own work to “pay” for using yours, and one for companies that would rather pay money than share their software. I created a system to do this called The Covenant, which is being used by the LexisNexis HPCC Systems division of Elsevier. Elsevier is, of course, a big media company, but even they have reason to share sometimes. My own software is licensed under this system as well, and a third company is about to announce its use of the Covenant.

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