Happy Public Domain Day! It’s cool to get some new things this year. In my view, getting things into the public domain is why copyright exists at all. Copyright is for the benefit of the public at large.
By contrast, I think that holders of copyrights benefit from the intuition that whoever thinks of something first ought to control the use of it, whether by making money from it, or preventing the wrong people from using it. People think that copyright exists to serve the interests of creators, but this is completely backwards.
This moral intuition is an anti-personal, inhumane way to manage words, ideas, and art. It treats them as scarce, when they’re actually abundant. It locks up what could be shared for free to benefit everyone so that only a few benefit. A work that requires no labor for upkeep makes dividends for its rightsholder approximately forever. It’s an artificial monopoly granted by the government that prevents free choice by people who come into contact with it.
And on a personal level, we should own our own culture! Harry Potter and Superman and Baby Got Back are a huge part of all of our lives, and anyone should be able to use those stories and melodies and images as cultural building blocks next to George Washington, Achilles, and Shehrezade. We should be able to use them not just in analogies and spoken references, but in business logos, fiction, illustrations, and songs that make money directly.
All other things being equal, there is no harm to the public in a source for more Star Wars art, there is only harm to Disney. Copyright law should not be the blunt instrument that denies access to enormous swathes of cultural output that it is today, but a surgical tool for bringing more creative works into the world.
So our copright term should only be as long as it takes to encourage creators to undertake and publish their work.
Terms of copyright
Imagine this pitch in a Hollywood board room: “We’ve acquired film adaptation rights to the popular video game franchise Squirrel Kombat. We have an incredible business team behind it, and this chart here proves beyond a shadow of a doubt it’ll be profitable in 2074.” Even if you believe the chart, Squirrel Kombat: The Movie isn’t getting made. 50 years is too long for a movie to stay unprofitable. So 50 years is too long of a copyright term.
This is a heuristic, so it’s simplistic. For one thing, the creative work being produced must matter a lot. The return on investment required to publish a movie is different from a comic book or a poem. Copyright should reflect this, even if it can’t do so perfectly. Works that require a great deal to produce might be incentivized by longer copyright terms. Works that earn a great deal once published might be incentivized with shorter copyright terms. On the other hand, complexity is a barrier to legitimacy and requires costly litigation, so the public might benefit more from a one-size-fits-all term length rather than trying to provide the best term length for each different instance.
This brings us to…
All law is imperfect, so we should consider a second heuristic: Any copyright system that completely satisfies copyright holders has erred too far in their direction.
Really this is an adaptation of an old addage: “if you’ve never missed a flight, you spend too much time in airports”. Copyright law is for the public, and it has to balance the public interest of being able to use new creative works as soon as possible with the interests of creators who need to be paid in order to produce the work in the first place. Too far in either direction is bad, but if either group feels fully satisfied by the term length, that’s an indication that the other group is paying too much in the exchange.1
To be clear, under any copyright law, sometimes the public will still get a bad deal, and our heuristic says that we should expect sometimes creators get a bad deal too. The law will err, but we should strive not to err too far to either side. Historically, copyright has overwhelmingly erred on the side of ever-longer monopoly rights to creators, meaning it’s almost inconceivable that we’ve left the public bereft of creative works due to insuficient monopoly term length. But because laws are imperfect, we should expect to see works that would benefit the public, but which are too expensive under current monopoly terms. We should have a copyright law short enough that Disney can point to movies that it wants to make but wouldn’t break even until their copyright expires, sometimes. Of course we should also have the inverse, sometimes, but of course we already do.
An aside: the public could be harmed if it were possible to lie about provenance. Members of the public might care about authenticity or original authorship, and changing copyright to become a good deal for the public does not mean allowing plagiarism – deception about the source of the creative work. We could allow artists to record Taylor Swift covers without allowing them to claim that they are Taylor Swift.2
When looking at legal disputes in novel circumstances, or when considering changes to copyright law, it’s important to consider the benefit to the public. A few things that come to my mind first are listed below.
Would it be good or bad for the public if Microsoft were prevented from training Github Copilot on open source code, the outcome sought by this class action suit?
- If using open source code this way were allowed/prohibited, would it change what code is built, or what is released as open source?
- What is the public benefit if the law were to prohibit Microsoft’s use of open source software?
- The lawyers behind the suit have separately claimed “By offering Copilot as an alternative interface to a large body of open-source code, Microsoft is doing more than severing the legal relationship between open-source authors and users. Arguably, Microsoft is creating a new walled garden that will inhibit programmers from discovering traditional open-source communities. Or at the very least, remove any incentive to do so. Over time, this process will starve these communities.” Is this true? Is it more or less important to the public than access to Copilot?
New York Times
- If the NYT’s suit is not successful, will they change their reporting or business model?
- Does use of today’s ChatGPT affect NYT subscriptions or ad revenue?
- Would the public have better access to information in general if the suit succeeds or fails?
Copyright term length has been extended several times, including the 1998 Sonny Bono Copyright Term Extension Act. Did these various changes benefit the public?
- Did new works get created because of any of these changes? Can we find any that wouldn’t have been created except for these term length increases?
- Which changes allowed the greater number of works to be created, and by how much? Can we quantify it?
- Can we evaluate lawsuits that would never have been filed or turned out differently if these term length increases hadn’t come to pass?
- How do we value loss of derivative work that didn’t get created because of term extension? For instance, hip hop mixtapes never published because of use of unlicensed samples?
I was also amazed to see how important copying is for producing new creative works when I saw Everything is a Remix.
We have other IP law that is designed to work this way: trademark law. Trademark law is sometimes a good deal for the public; it is nominally designed to prevent lying about who you are to a counterparty. If you want to buy a Rolex, you are harmed if you buy a fake one thinking it is authentic. ↩︎