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

The Constitution authorizes granting copyright powers to authors. In practice, authors typically cede them to publishers; it is usually the publishers, not the authors, who exercise these powers and get most of the benefits, though authors may get a small portion. Thus it is usually the publishers that lobby to increase copyright powers. To better reflect the reality of copyright rather than the myth, this article refers to publishers rather than authors as the holders of copyright powers. It also refers to the users of copyrighted works as “readers,” even though using them does not always mean reading, because “the users” is remote and abstract.

The First Error: “Striking a Balance”

The copyright bargain places the public first: benefit for the reading public is an end in itself; benefits (if any) for publishers are just a means toward that end. Readers’ interests and publishers’ interests are thus qualitatively unequal in priority. The first step in misinterpreting the purpose of copyright is the elevation of the publishers to the same level of importance as the readers.

It is often said that US copyright law is meant to “strike a balance” between the interests of publishers and readers. Those who cite this interpretation present it as a restatement of the basic position stated in the Constitution; in other words, it is supposed to be equivalent to the copyright bargain.

But the two interpretations are far from equivalent; they are different conceptually, and different in their implications. The balance concept assumes that the readers’ and publishers’ interests differ in importance only quantitatively, in how much weight we should give them, and in what actions they apply to. The term “stakeholders” is often used to frame the issue in this way; it assumes that all kinds of interest in a policy decision are equally important. This view rejects the qualitative distinction between the readers’ and publishers’ interests which is at the root of the government’s participation in the copyright bargain.

The consequences of this alteration are far-reaching, because the great protection for the public in the copyright bargain—the idea that copyright privileges can be justified only in the name of the readers, never in the name of the publishers—is discarded by the “balance” interpretation. Since the interest of the publishers is regarded as an end in itself, it can justify copyright privileges; in other words, the “balance” concept says that privileges can be justified in the name of someone other than the public.

As a practical matter, the consequence of the “balance” concept is to reverse the burden of justification for changes in copyright law. The copyright bargain places the burden on the publishers to convince the readers to cede certain freedoms. The concept of balance reverses this burden, practically speaking, because there is generally no doubt that publishers will benefit from additional privilege. Unless harm to the readers can be proved, sufficient to “outweigh” this benefit, we are led to conclude that the publishers are entitled to almost any privilege they request.

Since the idea of “striking a balance” between publishers and readers denies the readers the primacy they are entitled to, we must reject it.

Balancing against What?

When the government buys something for the public, it acts on behalf of the public; its responsibility is to obtain the best possible deal—best for the public, not for the other party in the agreement.

For example, when signing contracts with construction companies to build highways, the government aims to spend as little as possible of the public’s money. Government agencies use competitive bidding to push the price down.

As a practical matter, the price cannot be zero, because contractors will not bid that low. Although not entitled to special consideration, they have the usual rights of citizens in a free society, including the right to refuse disadvantageous contracts; even the lowest bid will be high enough for some contractor to make money. So there is indeed a balance, of a kind. But it is not a deliberate balancing of two interests each with claim to special consideration. It is a balance between a public goal and market forces. The government tries to obtain for the taxpaying motorists the best deal they can get in the context of a free society and a free market.

In the copyright bargain, the government spends our freedom instead of our money. Freedom is more precious than money, so government’s responsibility to spend our freedom wisely and frugally is even greater than its responsibility to spend our money thus. Governments must never put the publishers’ interests on a par with the public’s freedom.

Not “Balance” but “Trade-Off”