Free Software, Free Society: selected essays of Richard M. Stallman. 2nd edition.

• Editorial, Washington Post, “Public Data or Private Data,” 3 November 1996, sec. C, p. 6.

• Union for the Public Domain—an organization that aims to resist and reverse the overextension of copyright and patent powers.

Copyright © 1996, 2002, 2007, 2009, 2010 Richard Stallman

This essay was written in 1996 and was published in Communications of the ACM, vol. 40, n. 2, February 1997. This version is part of Free Software, Free Society: Selected Essays of Richard M. Stallman, 2nd ed. (Boston: GNU Press, 2010).

Verbatim copying and distribution of this entire chapter are permitted worldwide, without royalty, in any medium, provided this notice is preserved.

Chapter 18. Misinterpreting Copyright—A Series of Errors

Something strange and dangerous is happening in copyright law. Under the US Constitution, copyright exists to benefit users—those who read books, listen to music, watch movies, or run software—not for the sake of publishers or authors. Yet even as people tend increasingly to reject and disobey the copyright restrictions imposed on them “for their own benefit,” the US government is adding more restrictions, and trying to frighten the public into obedience with harsh new penalties.

How did copyright policies come to be diametrically opposed to their stated purpose? And how can we bring them back into alignment with that purpose? To understand, we should start by looking at the root of United States copyright law: the US Constitution.

Copyright in the US Constitution

When the US Constitution was drafted, the idea that authors were entitled to a copyright monopoly was proposed—and rejected. The founders of our country adopted a different premise, that copyright is not a natural right of authors, but an artificial concession made to them for the sake of progress. The Constitution gives permission for a copyright system with this clause (Article I, Section 8, Clause 8):

[Congress shall have the power] to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The Supreme Court has repeatedly affirmed that promoting progress means benefit for the users of copyrighted works. For example, in Fox Film v. Doyal,[1] the court said,

The sole interest of the United States and the primary object in conferring the [copyright] monopoly lie in the general benefits derived by the public from the labors of authors.

This fundamental decision explains why copyright is not required by the Constitution, only permitted as an option—and why it is supposed to last for “limited times.” If copyright were a natural right, something that authors have because they deserve it, nothing could justify terminating this right after a certain period of time, any more than everyone’s house should become public property after a certain lapse of time from its construction.

The “Copyright Bargain”

The copyright system works by providing privileges and thus benefits to publishers and authors; but it does not do this for their sake. Rather, it does this to modify their behavior: to provide an incentive for authors to write more and publish more. In effect, the government spends the public’s natural rights, on the public’s behalf, as part of a deal to bring the public more published works. Legal scholars call this concept the “copyright bargain.” It is like a government purchase of a highway or an airplane using taxpayers’ money, except that the government spends our freedom instead of our money.

But is the bargain as it exists actually a good deal for the public? Many alternative bargains are possible; which one is best? Every issue of copyright policy is part of this question. If we misunderstand the nature of the question, we will tend to decide the issues badly.