Copyright versus Community in the Age of Computer Networks

Mr Stallman arrives a few minutes after the appointed hour of commencement of his talk to address a hushed and respectful audience. He speaks with great precision and almost no hesitation in a pronounced Boston accent.

OK. Copyright versus community in the age of computer networks. The principles of ethics can't change. They are the same for all situations, but to apply them to any question or situation you have to look at the facts of the situation to compare alternatives, you have to see what their consequences are, a change in technology never changes the principles of ethics, but a change in technology can alter the consequences of the same choices, so it can make a difference for the outcome of the question, and that has happened in the area of copyright law. We have a situation where changes in technology have affected the ethical factors that weigh on decisions about copyright law and change the right policy for society.

Laws that in the past may have been a good idea, now are harmful because they are in a different context. But to explain this, I should go back to the beginning to the ancient world where books were made by writing them out by hand. That was the only way to do it, and anybody who could read could also write a copy of a book. To be sure a slave who spent all day writing copies could probably do it somewhat better than someone who didn't ordinarily do that but it didn't make a tremendous difference. Essentially, anyone who could read, could copy books, about as well as they could be copied in any fashion.

In the ancient world, there wasn't the sharp distinction between authorship and copying that there tends to be today.

There was a continuum. On the one hand you might have somebody, say, writing a play. Then you might have, on the other extreme, just somebody making copies of books, but in between you might have say, somebody, who say, copies part of a book, but writes some words of his own, or writing a commentary, and this was very common, and definitely respected. Other people would copy some bits from one book, and then some bits from another book, and write something of their own words, and then copy from another book, quoting passages of various lengths from many different works, and then writing some other works to talk about them more, or relate them. And there are many ancient works--now lost--in which part of them survived in these quotations in other books that became more popular than the book that the original quote [came from].

There was a spectrum between writing an original work, and copying. There were many books that were partly copied, but mixed with original writing. I don't believe there was any idea of copyright in the ancient world and it would have been rather difficult to enforce one, because books could be copied by anyone who could read anywhere, anyone who could get some writing materials, and a feather to write with. So, that was a rather clear simple situation.

Later on, printing was developed and printing changed the situation greatly. It provided a much more efficient way to make copies of books, provided that they were all identical. And it required specialised, fairly expensive equipment that an ordinary reader would not have. So in effect it created a situation in which copies could only feasibly be made by specialised businesses, of which the number was not that large. There might have been hundreds of printing presses in a country and hundreds of thousands, or maybe even millions of actually people who could read. So the decrease in the number of places in which copies could be made was tremendous.

Now the idea of copyright developed along with the printing press. I think that there may be... I think I remember reading that Venice, which was a major centre of printing in the 1500s also had a kind of copyright but I can't find that: I couldn't find that reference again. But the system of copyright fitted in naturally with the printing press because it became rare for ordinary readers to make copies. It still happen. People who were very poor or very rich had handmade copies of books. The very rich people did this to show off their wealth: they had beautiful illuminated wealth to show that they could afford this. And poor people still sometimes copied books by hand because they couldn't afford printed copies. As the song goes "Time ain't money when all you got is time." So some poor people copied books with a pen. But for the most part the books were all made on printing presses by publishers and copyright as a system fitted in very well with the technical system. For one thing it was painless for readers, because the readers weren't going to make copies anyway, except for the very rich ones who could presumably legitimise it, or the very poor ones who were making just individual copies and no one was going to go after them with lawyers. And the system was fairly easy to enforce again because there were only a small number of places where it had to be enforced: only the printing presses, and because of this it didn't require, it didn't involve, a struggle against the public. You didn't find just about everybody trying to copy books and being threatened with arrest for doing it.

And in fact, in addition to not restricting the reader's directly, it didn't cause much of a problem for readers, because it might have added a small fraction to the price of books but it didn't double the price, so that small extra addition to the price was a very small burden for the readers. The actions restricted by copyright were actions that you couldn't do, as an ordinary reader, and therefore, it didn't cause a problem. And because of this there was no need for harsh punishments to convince readers to tolerate it and to obey.

So copyright effectively was an industrial regulation. It restricted publishers and writers but it didn't restrict the general public. It was somewhat like charging a fee for going on a boat ride across the Atlantic. You know, it's easy to collect the fee when people are getting on a boat for weeks or months.

Well, as time went on, printing got more efficient. Eventually even poor people didn't have to bother copying books by hand and the idea sort of got forgotten. I think it's in the 1800s that essentially printing got cheap enough so that essentially everyone could afford printed books, so to some extent the idea of poor people copying books by hand was lost from memory. I heard about this about ten years ago when I started talking about the subject to people.

So originally in England copyright was partly intended as a measure of censorship. People who wanted to publish books were required to get approval from the government but the idea began to change and it a different idea was expressed explicitly in the US constitution. When the US constitution was written there was a proposal that authors should be entitled to a monopoly on copying their books. This idea was rejected. Instead, a different idea of the philosophy of copyright was put into the constitution. The idea that a copyright system could be.. well, the idea is that people have the natural right to copy things but copyright as an artificial restriction on copying can be authorised for the sake of promoting progress.

So the system of copyright would have been the same more or less either way, but this was a statement about the purpose which is said to justify copyright. It is explicitly justified as a means to promote progress, not as an entitlement for copyright owners. So the system is meant to modify the behaviour of copyright owners so as to benefit the public. The benefit consists of more books being written and published and this is intended to contribute to the progress of civilisation, to spreading ideas, and as a means to this end... in other words as a means to this end copyright exists. So this also thought of as a bargain between the public and authors; that the public gives up its natural right to make copies of anything in exchange for the progress that is brought about indirectly, by encouraging more people to write.

Now it may seem like an obscure question to ask "What's the purpose of copyright?" But the purpose of any activity is the most important thing for deciding when an activity needs to be changed and how. If you firget about the purpose you are sure to get things wrong, so ever since that decision was made, the authors and especially the publishers most recently have been trying to misrepresent it and sweep it under the rug. There has been a campaign for decades to try to spread the idea that was rejected in the US constitution. The idea that copyright exists as an entitlement for copyright owners. And you can that expressed in almost everything they say about it starting and ending with the word "pirate" which is used to give the impression that making an unauthorised copy is the moral equivalent of attacking a ship and kidnapping or killing the people on board.

So if you look at the statements being made by publishers you find lots of implicit assumptions of this sort which you have to drag into the open and then start questioning.

Recent events and problems

Anyway, as long as the age of the printing press continued, copyright was painless, easy to enforce, and probably a good idea. But the age of the printing press began changing a few decades ago when things like Xerox machines and tape recorders started to be available, and more recently as computer networks have come into use the situation has changed drastically. We are now in a situation technologically more like the ancient world, where anybody who could read something could also make a copy of it that was essentially as good as the best copies anyone could make.

A situation now where once again, ordinary readers can make copies themselves. It doesn't have to be done through centralised mass production, as in the printing press. Now this change in technology changes the situation in which copyright law operates. The idea of the bargain was that the public trades away its natural right to make copies, and in exchange gets a benefit. Well, a bargain could be a good one or a bad one. It depends on the worth of what you are giving up. And the worth of what you are getting. In the age of the printing press the public traded away a freedom that it was unable to use.

It's like finding a way of selling shit: what have you got to lose? You've got it on hand anyway, if you get something for it, it can hardly be a bad deal.

It's like accepting money for promising not to travel to another star. You're not going to do it anyway

at least not in our lifetime so you might as well, if someone's going to pay you to promise not to travel to another star, you might as well take the deal. But if I presented you with a starship, then you might not think that deal was such a good deal any more. When the thing you used to sell because it was useless, you discover a use for it, then you have to reconsider the desirability of those old deals that used to be advantageous. Typically in a such a situation you decide that "I'm not going to sell all of this any more; I'm going to keep some of it and use it. " So if you were giving up a freedom that you couldn't exercise and now you can exercise it, you probably want to start retaining the right to exercise it at least partially. You might still trade part of the freedom: and there are many alternatives of different bargains which trade parts of the freedom and keep other parts. So, precisely what you want to do requires thought, but in any case you want to reconsider the old bargain, and you probably want to sell less of what you sold in the past.

But the publishers are trying to do exactly the opposite. At exactly the time when the public's interest is to keep part of the freedom to use it, the publishers are passing laws which make us give up more freedom. You see copyright was never intended to be an absolute monopoly on all the uses of a copyright work. It covered some uses and not others, but in recent times the publishers have been pushing to extend it further and further. Ending up most recently with things like the Digital Millenium Copyright Act in the US which they are also trying to turn into a treaty through the World Intellectual Property Organisation which is essentially an organisation representing the owners of copyrights and patents and which works to try to increase their power, and pretends to be doing so in the name of humanity rather than in the name of these particular companies.

Now, what are the consequences when copyright starts restricting activities that ordinary readers can do. Well, for one thing it's no longer an industrial regulation. It becomes an imposition on the public. For another, because of this, you find the public's starting to object to it You know, when it is stopping ordinary people from doing things that are natural in their lives you find ordinary people refusing to obey. Which means that copyright is no longer easy to enforce and that's why you see harsher and harsher punishments being adopted by governments that are basically serving the publishers rather than the public.

Also, you have to question whether a copyright system is still beneficial. Basically, the thing that we have been paying is now valuable for us. Maybe the deal is a bad deal now. So all the things that made technology fit in well with the technology of the printing press make it fit badly with digital information technology. So, instead of like, charging the fee to cross the Atlantic in a boat, it's like charging a fee to cross a street. It's a big nuisance, because people cross the street all along the street, and making them pay is a pain in the neck.

New kinds of copyright

Now what are some of the changes we might want to make in copyright law in order to adapt it to the situation that the public finds itself in? Well the extreme change might be to abolish copyright law but that isn't the only possible choice. There are various situations in which we could reduce the power of copyright without abolishing it entirely because there are various different actions that can be done with a copyright and there are various situations in which you might do them, and each of those is an independent question. Should copyright cover this or not? In addition, there is a question of "How long?". Copyright used to be much shorter in its period or duration, and it's been extended over and over again in the past fifty years or so and in fact in now appears that the owners of copyrights are planning to keep on extending copyrights so that they will never expire again. The US constitution says that "copyright must exist for a limited time" but the publishers have found a way around this: every twenty years they make copyright twenty years longer, and this way, no copyright will ever expire again. Now a thousand years from now, copyright might last for 1200 years, just basically enough so that copyright on Mickey Mouse can not expire.

Because that's why, people believe that US Congress passed a law to extend copyright for twenty years. Disney was paying them, and paying the President too, with campaign funds of course, to make it lawful. See, if they just gave them cash it would be a crime, but contributing indirectly to campaigns is legal and that's what they do: to buy the legislators. So they passed the Sunny Bono copyright act. Now this is interesting: Sunny Bono was a congressman and a member of the Church of Scientology, which uses copyrights to suppress knowledge of its activities. So they have their pet congressman and they pushed very hard for increased copyright powers.

Anyway, we were fortunate that Sunny Bono died but in his name they passed the Mickey Mouse Copyright Act of 1998 I believe. It's being challenged by the way, on the grounds that, there is a legal case that people hope to go to the Supreme Court and have the extension of old copyrights tossed out. In any case, there are all these different situations and questions where we could reduce the scope of copyright.

So what are some of them? Well, first of all there are various different contexts for copying. There is commercial sale of copies in the stores at one extreme and at the other there is privately making a copy for your friend once in a while, and in between there are other things, like, there's broadcasting on TV or the radio, there's posting it on the website, there's handing it out to all the people in an organisation, and some of these things could be done either commercially or non-commercially. You know, you could imagine a company handing out copies to its staff or you could imagine a school doing it, or some private, non-profit organisation doing it. Different situations, and we don't have to treat them all the same. So one way in we could reclaim the... in general though, the activities that are the most private are those that are most crucial to our freedom and our way of life, whereas the most public and commercial are those that are most useful for providing some sort of income for authors so it's a natural situation for a compromise in which the limits of copyright are put somewhere in the middle so that a substantial part of the activity still is covered and provides an income for authors, while the activities that are most directly relevant to peoples' private lives become free again. And this is the sort of thing that I propose doing with copyright for things such as novels and biographies and memoires and essays and so on. That at the very minimum, people should always havea right to share a copy with a friend. It's when governments have to prevent that kind of activity that they have to start intruding into everyone's lives and using harsh punishments. The only way basically to stop people in their private lives from sharing is with a police state, but public commercial activities can be regulated much more easily and much more painlessly.

Now, where we should draw these lines depends, I believe, on the kind of work. Different works serve different purposes for their users. Until today we've had a copyright system that treats almost everything exactly alike except for music: there are a lot of legal exceptions for music. But there's no reason why we have to elevate simplicity above the practical consequences. We can treat different kinds of works differently. I propose a classification broadly into three kinds of works: functional works, works that express personal position, and works that are fundamentally aesthetic.

Functional works include: computer software; recipes; textbooks; dictionaries and other reference works; anything that you use to get jobs done. For funtional works I believe that people need very broad freedom, including the freedom to publish modified versions. So everything I am going to say tomorrow about computer software applies to other kinds of functional works in the same way. So, this criterion of free... because it necessary to have the freedom to publish a modified version this means we have to almost completely get rid of copyright but the free software movement is showing that the progress that society wants that is supposedly the justification for society having copyright can happen in other ways. We don't have to give up these important freedoms to have progress. Now the publishers are always asking us to presuppose that their there is no way to get progress without giving up our crucial freedoms and the most important thing I think about the free software movement is to show them that their pre-supposition is unjustified.

I can't say I'm sure that in all of these areas we can't produce progress without copyright restrictions stopping people, but what we've shown is that we've got a chance: it's not a ridiculous idea. It shouldn't be dismissed. The public should not suppose that the only way to get progress is to have copyright but even for these kinds of works there can be some kinds of compromise copyright systems that are consistent with giving people the freedom to publish modified versions. Look, for example, at the GNU free documentation license, which is used to make a book free. It allows anyone to make and sell copies of a modified version, but it requires giving credit in certain ways to the original authors and publishers in a way that can give them a commercial advantage and thus I believe make it possible to have commercial publishing of free textbooks, and if this works people are just beginning to try it commmercially. The free software foundation has been selling lots of copies of various free books for almost fifteen years now and it's been successful for us. At this point though, commercial publishers are just beginning to try this particular approach, but I think that even for functional works where the freedom to publish modified works is essential, some kind of compromise copyright system can be worked out, which permits everyone that freedom.

For other kinds of works, the ethical questions apply differently, because the works are used differently. The second category of works is works that express someone's positions or views or experiences. For example, essays, offers to do business with people, statements of one's legal position, memoirs, anything that says, whose point is to say what you think or you want or what you like. Book reviews and restaurant reviews are also in this category: it's expressing a personal opinion or position. Now for these kinds of works, making a modified version is not a useful thing to do. So I see no reason why people should need to have the freedom to publish modified versions of these works. Verbatim copying is the only thing that people need to have the freedom to do and because of this we can consider the idea that the freedom to distribute copies should only apply in some situations, for example if it were limited to non-commercial distribution that would be OK I think. Ordinary citizen's lives would no longer be restricted but publishers would still be covered by copyright for these things.

Now, I used to think that maybe it would be good enough to allow people to privately redistribute copies occasionally. I used to think that maybe it would be OK if all public redistribution were still restricted by copyright for these works but the experience with Napster has convinced me that that's not so. And the reason is that it shows that lots and lots of people both want to publicly redistribute--publicly but not commercially redistribute--and it's very useful. And if it's so useful, then it's wrong to stop people from doing it. But it would still be acceptable I think, to restrict commercial redistribution of this work, because that would just be an industrial regulation and it wouldn't block the useful activities that people should be doing with these works.

Oh, also, scientific papers. Or scholarly papers in general fall into this category because publishing modified versions of them is not a good thing to do: it's falsifying the record so they should only be distributed verbatim, so scientific papers should be freely redistributable by anyone because we should be encouraging their redistribution, and I hope you will never agree to publish a scientific paper in a way that restricts verbatim redistribution on the net. Tell the journal that you won't do that.

Because scientific journals have become an obstacle to the dissemination of scientific results. They used to be a necessary mechanism. Now they are nothing but an obstruction, and those journals that restrict access and restrict redistribution [emphasis] must be abolished. They are the enemies of the dissemination of knowledge; they are the enemies of science, and this practice must come to an end.

Now there is a third category of works, which is aesthetic works, whose main use is to be appreciated; novels, plays, poems, drawings in many cases, typically and most music. Typically it's made to be appreciated. Now, they're not functional people don't have the need to modify and improve them, the way people have the need to do that with functional works. So it's a difficult question: is it vital for people to have the freedom to publish modified versions of an aesthetic work. On the one hand you have authors with a lot of ego attachment saying

"How dare anyone change a line of this?" On the other hand you have the folk process which shows that a series of people sequentially modifying the work or maybe even in parallel and then comparing versions can produce something tremendously rich, and not only beautiful songs and short poems, but even long epics have been produced in this way, and there was a time back before the mystique of the artist as creator, semi-divine figure was so powerful when even great writers reworked stories that had been written by others. Some of the plays of Shakespeare involve stories that were taken from other plays written often a few decades before. If today's copyright laws had been in effect they would have called Shakespeare a quote pirate unquote for writing some of his great work and so of course you would have had the other authors saying

"How dare he change one line of my creation. He couldn't possibly make it better."

You'll hear people ridiculing this idea in exactly those terms. Well, I am not sure what we should do about publishing modified versions of these aesthetic works. One possibility is to do something like what is done in music, which is anyone's allowed to rearranged and play a piece of music, but they may have to pay for doing so, but they don't have to ask permission to perform it. Perhaps for commmercial publication of these works, either modified or unmodified, if they're making money they might have to pay some money, that's one possibility. It's a difficult question what to do about publishing modified versions of these aesthetic works and I don't have an answer that I'm fully satisfied with.

RMS: Let me repeat the question because he said it so fast you couldn't possibly have understood it. He said "What kind of category should computer games go in?" Well, I would say that the game engine is functional and the game scenario is aesthetic.

RMS: Those are part of the scenario probably. The specific pictures are part of the scenario; they are aesthetic, whereas the software for displaying the scenes is functional. So I would say that if they combine the aesthetic and the functional into one seamless thing then the software should be treated as functional, but if they're willing to separate the engine and the scenario then it would be legitimate to say, well the engine is functional but the scenario is aesthetic.

Now, how long should copyright last? Well, nowadays the tendency in publishing is for books to go out of copyright faster and faster. Today in the US most books that are published are out of print within three years. They've been remaindered and they're gone. So it's clear that there's not real need for copyright to last for say 95 years: it's ridiculous. In fact, it's clear that ten year copyright would be sufficient to keep the activity of publishing going. But it should be ten years from date of publication, but it would make sense to allow an additional period before publication which could even be longer than ten years which as you see, as long as the book has not been published the copyright on it is not restricting the public. It's basically just giving the author to have it published eventually but I think that once the book is published copyright should run for some ten years or so, then that's it.

Now, I once proposed this in a panel where the other people were all writers. And one of them said: "Ten year copyright? Why that's ridiculous! Anything more than five years is intolerable." He was an awardwinning science fiction writer who was complaining about the difficulty of retrouving, of pulling back, this is funny, French words are leaking into my English, of, of regaining the rights from the publisher who'd let his books go out of print for practical purposes but was dragging his heels about obeying the contract, which says that when the book is out of print the rights revert to the author.

The publishers treat authors terribly you have to realise. They're always demanding more power in the name of the authors and they will bring along a few very famous very successful writers who have so much clout that they can get contracts that treat them very well to testify saying that the power is really for their sake. Meanwhile most writers who are not famous and are not rich and have no particular clout are being treated horribly by the publishing industry, and it's even worse in music. I recommend all of you to read Courtney Love's article: it's in Salon magazine right?

RMS: She started out by calling the record companies quote pirates unquotes because of the way they treat the musicians. In any case we can shorten copyright more or less. We could try various lengths, we could see, we could find out empirically what length of copyright is needed to keep publication vigourous. I would say that since almost books are out of print by ten years, clearly ten years should be long enough. But it doesn't have to be the same for every kind of work. For example, maybe some aspects of copyright for movies should last for longer, like the rights to sell all the paraphernalia with the pictures and characters on them. You know, that's so crassly commercial it hardly matters if that is limited to one company in most cases. Maybe the copyright on the movies themselves, maybe that's legitimate for that to last twenty years. Meanwhile for software, I suspect that a three year copyright would be enough. you see if each version of the programme remains copyrighted for three years after its release well, unless the company is in real bad trouble they should have a new version before those three years are up and there will be a lot of people who will want to use the newer version, so if older versions are all becoming free software automatically, the company would still have a business with the newer version. Now this is a compromise as I see it, because it is a system in which not all software is free, but it might be an acceptable compromise, after all, if we had to wait three years in some cases for programs to become free... well, that's no disaster. To be using three years old software is not a disaster.

RMS: [airily] Ah that's OK. That's a minor side issue, compared with these issues of freedom encouraging, every system encourages some artificial distortions in what people, and our present system certainly encourages various kinds of artificial distortions in activity that is covered by copyright so if a changed system also encourages a few of these secondary distortions it's not a big deal I would say.

AM4: The problem with this change in the copyright laws for three would be that you wouldn't get the sources.

RMS: Right. There would have also to be a condition, a law that to sell copies of the software to the public the source code must be deposited somewhere so that three years later it can be released. So it could be deposited say, with the library of congress in the US, and I think other countries have similar institutions where copies of published books get placed, and they could also received the source code and after three years, publish it. And of course, if the source code didn't correspond to the executable that would be fraud, and in fact if it really corresponds then they ought to be able to check that very easily when the work is published initially so you're publishing the source code and somebody there says alright "dot slash configure dot slash make" and sees if produces the same executables and uh.

RMS: Right. That's the only sense I use the term. It wouldn't do that because the source code might not be available or they might try to use contracts to restrict the users instead. So making software free is not as simple as ending copyright on software: it's amore complex situation than that. In fact, if copyright were simply abolished from software then we would no longer be able to use copyleft to protect the free status of a program but meanwhile the software privateers could use other methods--contracts or withhlding the source to make software proprietary. So what would mean is, if we release a free program some greedy bastard could make a modified version and publish just the binaries and make people sign non-disclosure agreements for them. We would no longer have a way to stop them. So if we wanted to change the law that all software that was published had to be free we would have to do it in some more complex way, not just by turning copyright for software.

So, overall I would recommend we look at the various kinds of works and the various different kinds of uses and then look for a new place to draw the line: one that gives the public the most important freedoms for making use of each new kind of work while when possible retaining some kind of fairly painless kind of copyright for general public that is still of benefit to authors. In this way we can adapt the copyright system to the circumstances where we find it we find ourselves and have a system that doesn't require putting people in prison for years because they shared with their friends, but still does in various ways encourage people to write more. We can also I believe look for other ways of encouraging writing other ways of facilitating authors making money. For example, suppose that verbatim redistribution of a work is permitted and suppose that the work comes with something, so that when you are playing with it or reading it, there is a box on the side that says "click here to send one dollar to the authors or the musicians or whatever" I think that in the wealthier parts of the world a lot of people will send it because people often really love the authors and musicians that made the things that they like to read and listen to. And the interesting thing is that the royalty that they get now is such a small fraction that if you pay twenty dollars for something they're probably not getting more than one anyway.

So this will be a far more efficient system. And the interesting thing will be that when people redistribute these copies they will be helping the author. Essentially advertising them, spreading around these reasons to send them a dollar. Now right now the biggest reason why more people don't just send some money to the authors is that it's a pain in the neck to do it. What are you going to do? Write a cheque? Then who are you going to mail the cheque to? You'd have to dig up their address, which might not be easy. But with a convenient internet payment system which makes it efficient to pay someone one dollar, then we could put this into all the copies, and then I think you'd find the mechanism starting to work well. It may take five of ten years for the ideas to spread around, because it's a cultural thing, you know, at first people might find it a little surprising but once it gets normal people would become accustomed to sending the money, and it wouldn't be a lot of money compared to what it costs to buy books today.

So I think that in this way, for the works of expression, and maybe aesthetic works, maybe this could a successful method. But it won't work for the functional works, and the reason for that is that as one person after another makes a modified version and publishes it, who should the boxes point to, and how much money should they send, and you know, it's easy to do this when the work was published just once, by a certain author, or certain group of authors, and they can just agree together what they're going to do and click on the box, if no-one is publishing modified versions then every copy will contain the same box with the same URL directing money to the same people but when you have different version which have been worked on by different people there's no simple automatic way of working out who ought to get what fraction of what users donate for this version or that version. It's philosopically hard to decide how important each contribution is, and all the obvious ways of trying to measure it are [emphasis] obviously [/emphasis] wrong in some cases, they're obviously closing their eyes to some important part of the facts so I think that this kind of solution is probably not feasible when everybody is free to publish modified versions. But for thise kinds of works where it is not crucial to have the freedom to publish modified versions then this solution can be applied very simply once we have the convenient internet payment system to base it on.

With regard to the aesthetic works. If there is a system where those who commercially redistribute or maybe even those who are publishing a modified version might have to negotiate the sharing of the payments with the orginal developers and then this kind of scheme could be extended to those works too even if modified versions are permitted there could be some standard formula which could be in some cases renegotiated, so I think in some cases probably possible even with a system of permitting in some way publishing modified versions of the aesthetic works it may be possible still to have this kind of voluntary payment system.

Now I believe there a people who are trying to set up such voluntary payment systems. I heard of something called the street performer's protocol. I don't know the details of it. And I believe there is something called GreenWitch.com [transcriber's note: URL uncertain] I believe the people there are trying to set up something more or less like this. I think that what they are hoping to do is collect a bunch of payments that you make to various different people, and eventually charge your credit card once it gets to be big enough so that it's efficient. Whether those kind of systems work smoothly enough in practice that they'll get going is not clear, and whether they will become adopted widely enough for them to become a normal cultural practice is not clear. It may be that in order for these voluntary payments to truly catch on we need to have some kind of... you need to see the idea everywhere in order to... "Yeah, I outta pay" once in a while. We'll see.

There is evidence ideas like this are not unreasonable. If you look at for example public radio in the US, which is mostly supported by donations from listeners, you have I believe, millions of people donating, I'm not sure how many exactly but there are many public radio stations which are supported by their listeners and they seem to be finding it easier to get donations as time goes on. Ten years ago they would have maybe six weeks of the year when they were spending most of their time asking people "Please send some money, don't you think we're important enough" and so on 24 hours a day, and now a lot of them have found that they can raise the contributions by sending people mail who sent them donations in the past, and they don't have to spend their airtime drumming up the donations.

Fundamentally, the stated purpose of copyright: to encourage righting is a worthwhile purpose, but we have to look at ways of ways to achieve it that are not so harsh, and not so constricting of the use of the works whose developments we have encouraged and I believe that digital technology is providing us with solutions to the problem as well as creating a context where we need to solve the problem. So that's the end of this talk, and are there questions?

Questions and discussion

RMS: Oh really? So I'm late already? Well I hope Melanie will permit me to accept a few questions.

AM6 (Audience member 6): Who will decide in which of your three categories will a work fit?

RMS: I don't know. I'm sure there are various ways of deciding. You can probably tell a novel when you see one. I suspect judges can tell a novel when they see one too.

AM7: Any comment on encryption? And the interaction of encryption devices with copyrighted materials?

RMS: Well, encryption is being used as a means of controlling the public. The publishers are trying to impose various encryption systems on the public so that they can block the public from copying. Now they call these things technological methods, but really they all rest on laws prohibiting people from by-passing them, and without those laws none of these methods would accomplish its purpose, so they are all based on direct government intervention to stop people from copying and I object to them very strongly, and I will not accept those media. If as a practical matter the means to copy something are not available to me I won't buy it, and I hope you won't buy it either.

AM8: In France we have a law that says that even if the media is protected you have the right to copy again for backup purpose

AM8: Very often you sign an agreement that is illegal in France... the contract you are supposed to sign with a mouse...

RMS: [rhetorically] Well are you going to challenge them? It costs money, it takes trouble, and not only that, how would you do it? Well, you could either try to go to a court and say, "They have no right to ask people to sign this contract because it is an invalid contract" but that might be difficult if the distributor is in the US. French law about what is a valid contract couldn't be used to stop them in the US. On the other hand you could also say "I signed this contract but it;s not valid in France so I am publicly disobeying, and I challenge them to sue me." Now that you might consider doing, and if you're right and the laws are not valid in France then the case would get thrown out. I don't know. Maybe that is a good idea to do, I don't know whether, what its effects politically would be. I know that there was just a couple of years ago a law was passed in Europe to prohibit some kind of private copying of music, and the record companies trotted out some famous very popular musicians to push for this law and they got it, so it's clear that they have a lot of influence here too, and it's possible that they will get more, just pass another law to change this. We have to think about the political strategy for building the constituency to resist such changes and the actions we take should be designed to accomplish that. Now, I'm no expert on how to accomplish that in Europe but that's what people should think about.

RMS: Well, if you're not [emphasis] publishing [/emphasis] it that's a completely different issue.

AM6: No, but if I send an email to somebody, that's automatically under my copyright.

AM6: No, I don't accept that. If they're going to publish it in a newspaper. At the moment my redress is my copyright.

RMS: Well, you can't make him keep secret the contents and I'm not sure actually. I mean to me, I think there's some injustice in that. If you for example, send a letter to somebody threatening to sue him and then you tell him you can't tell anbody I did this because my threat is copyrighted, that's pretty obnoxious, and I'm not sure that it would even be upheld.

AM6: Well, there are circumstances where I want to correspond with someone and keep my (and their) reply, entirely private.

RMS: Well if you and they agree to keep it private, then that's a different matter entirely. I'm sorry the two issues can not be linked, and I don't have time to consider that issue today. There's another talk scheduled to start soon. But I think it is a total mistake for copyright to apply to such situations. The ethics of those situations are completely different from the ethics of published works and so they should be treated in an appropriate way, which is completely different.

AM6: That's fair enough, but at the moment the only redress one has is copyright...

RMS: [interrupts] No you're wrong. If people have agreed to keep something private then you have other redress. In Europe there are privacy laws, and the other thing is, you don't have a right to force someone to keep secrets for you. At most, you could force him to paraphrase it, because he has a right to tell people what you did.

AM6: Yes, but I assuming that the two people at either end are both in reasonable agreement.

RMS: Well then, don't say that copyright is your only recourse. If he's in agreement he isn't going to give it to a newspaper is he?

RMS: Oh interception. That's a totally different... [heatedly] no you didn't ask about interception. This is the first time you mentioned interception...

RMS: [still heated] Well I didn't hear you before... it's totally silly... it's like trying to... oh how can I compare?... it's like trying to kill an elephant with a waffle iron I mean they have nothing to do with each other.

RMS: Uh yes: Trade secrets has developed in a very ominous and menacing direction. It used to be that trade secrecy meant that you wanted to keep something secret so you didn't tell anybody, and later on it was something that was done within a business telling just a few people something and they would agree to keep it secret. But now, it's turning into something where the public in general is becoming conscripted into keeping secrets for business even if they have never agreed in any way to keep these secrets and that's a pressure. So those who pretend that trade secrecy is just carrying out some natural right of theirs; that's just not true any more. They're getting explicit government help in forcing other people to keep their secrets. And we might want to consider whether non-disclosure agreements should in general be considered legitimate contracts because of the anti-social nature of trade secrecy it shouldn't be considered automatic that just because somebody has promised to keep a secret that that means it's binding.

Maybe in some cases it should be and in some cases it should not be. If there's a clear public benefit from knowing then maybe that should invalidate the contract, or maybe it should be valid when it is signed with customers or maybe between a business and a, maybe when a business supplies secrets to its suppliers that should be legitimate, but to its customers, no.

There are various possibilities one can think of, but at the very start anybody who hasn't voluntarily agreed to keep the secrets should not be bound by trade secrecy. That's the way it was until not long ago. Maybe it still is that way in Europe, I'm not sure.

AM12: I have a question regarding your opinion on the scientific work on journals and textbooks. In my profession at least one official journal and textbook are available on-line, but they retain copyright, but there is free access to the resources provided they have internet access.

RMS: Well, that's good. But there are many journals where it is not like that. For example, the ACM journals you can't access unless you are a subscriber: they're blocked. So I think journals should all start opening up access on the web.

AM12: So what impact does that have on the significance of copyright on the public when you basically don't interfere with providing free access on the web.

RMS: Well, first of all, I disagree. Mirror sites are essential, so the journal should only provide open access but they should also give everyone the freedom to set up mirror sites with verbatim copies of these papers. If not then there is a danger that they will get lost. Various kinds of calamities could cause them to be lost, you know, natural disasters, political disasters, technical disasters, bureaucratic disasters, fiscal disasters... All sorts of things could cause that one site to disappear. So really what the scholarly community should logically be doing is carefully arranging to have a wide network of mirror sites making sure that every paper is available on every continent, from places near the ocean to places that are far inland and you know this is exactly the kind of thing that major libraries will feel is their mission if only they were not being stopped.

So what should be done, is that these journals should go one step further. In addition to saying everybody can access the site they should be saying, everyone can set up a mirror site. Even if they said, you have to do the whole publication of this journal, together with our advertisements, now that would still at least do the job of making the availability redundant so that it's not in danger, and other institutions would set up mirror sites, and I predict that you would find ten years down the road, a very well organised unofficial system of co-ordinating the mirroring to make sure that nothing was getting left out. At this point the amount that it costs to set up the mirror site for years of a journal is so little that it doesn't require any special funding; nobody has to work very hard: just let librarians do it. Anyway, oh there was some other thing that this raised and I can't remember what it is. Oh well, I'll just have to let it go.

AM13: The financing problem for the aesthetical works... do you think the dynamics could be... [inaudible] although I understand the problems of... I mean who's contributing? and who will be rewarded? Does the spirit of free software [inaudible]

RMS: I don't know. It's certainly suggesting the idea to people. We'll see. I don't the answers, I don't know how we're going to get there, I'm trying to think about where we should get to. I know know how we can get there. The publishers are so powerful, and can get governments to do their bidding. How we're going to build up the kind of world where the public refuses to tolerate this any more I don't know. I think the first thing we have to do is to clearly reject the term pirate and the views that go with it. Every time we hear that we have to speak out and say this is propaganda, it's not wrong for people to share these published works with each other, it's sharing with you friend, it's good. And sharing with your friend is more important than how much money these companies get. The society shouldn't be shaped for the sake of these companies. We have to keep on... because you see the idea that they've spread--that anything that reduces their income is immoral and therefore people must be restricted in any way it takes to guarantee for them to be paid for everything... that is the fundamental thing that we have to start attacking directly. People have mostly tried tactics of concentrating on secondary issues, you know, to when people, you know when the publishers demand increased power usually people saying it will cause some secondary kind of harm and arguing based on that but you rarely find anybody (except me) saying that the whole point of the change is wrong, that it's wrong to restrict it in that way, that it's legitimate for people to want to change copies and that they should be allowed to. We have to have more of this. We have to start cutting the root of their dominion not just hacking away at a few leaves.

AM14: [inaudible] this is important is to concentrate on the donations system for music.

RMS: Yes. Unfortunately though there are patents covering the technique that seems most likely to be usable.

RMS: I don't know. I think I'd better hand the floor over to Melanie whose talk was supposed to start at 3. and uh so

RMS stands in silence. There is a pause before the outbreak of applause. RMS turns to applaud the stuffed fabric gnu he placed on the overhead projector at the beginning of the talk.

Recent events and problems

New kinds of copyright

Copyright: possible solutions

Questions and discussion

Other Texts to Read