inamerrata

One of the fundamental properties of digital content is that the content ceases to exist if you don’t make copies. You can’t view it (that means making a copy onto the screen from what was on disk or the network), you often can’t transfer it (that involves making a copy on someone else’s hard disk, then removing it from yours). Fundamentally, the technological measures that allow an after-market in content (second hand books, rental libraries, etc) to exist without requiring copying cease to exist.

There are good reasons for this after-market to exist. It provides strong practical limits on the ability of copyright holders to rort the market (charge too much for a book? fine a library will buy a copy, and everyone’ll borrow it to read it), and increases the value of the goods (if a book is worth $10 to someone, and costs $20, it’s more likely to be bought if that someone can then sell it second hand for $12), leading to more efficient use of resources (only one book is produced, which sells for $20 and satisfies the market, rather than producing two books that sell for $10 and can’t be resold, eg).

The lack of an effective after-market in software allows the maintenance of artificially inflated prices; eg, Microsoft Windows Me currently costs $203.50, in spite of it being three years old, and in spite of most original purchasers no longer using it in place of more recent releases. For comparison, the more advance Windows XP Home and Professional Editions cost $159.50 or $248.60 respectively. Similarly, Windows 98 is almost entirely unavailable.

In essence it seems beneficial to modify copyright law to ensure the existance of a functional after-market in digital works.

How can this be done, exactly? The key point of copyright is the exclusive right to create new, saleable copies. Once you have a saleable copy, you should be able to do essentially whatever you want with it remains in your possession, and you should be able to sell it, give it away, or loan it out.

Why should people be able to do whatever they want with a product they have? The question amounts to whether the benefit to authors of being able to sell multiple copies of their work to the same person in different formats (and thus get more money from people who value the work enough to want it in multiple formats) is worth the cost of restricting purchasers from being able to enjoy the work in formats that aren’t available from the publisher. In general, it seems like the latter costs are more severe than the former benefits: the end result is forbidding people from making compilation tapes or CDs of their favourite songs for car trips, or setting up mp3 jukeboxes to provide entertainment at parties without having to worry about regularly changing CDs. Historically, the copyright holders tend to lag significantly behind creative fans in making use of new technologies, and in general it’s likely to be far more efficient to allow people to manipulate copies they already own than to authorise and distribute new copies in the desired forms from the copyright owners all the way to the consumer.

Given this, how do we define exactly what it is we want to protect with copyright law? How do we define what sort of copies are okay; or more particularly what can you do with copies you make before you violate copyright law?

I think the answer is that you should be able to make as many copies of a work you own as you like; as long as you don’t try to treat those copies or the original work independently. That is, if you sell any of the copies or the original work; everything goes with it. Ditto if you give it away, or loan it out. The copies might grant you a number of benefits, but the key benefit they should not give you is the ability to give away the work, while keeping it.

Another aspect of this is allowing people to share derived works. Clearly, giving away an mp3 of a song to someone who doesn’t have it on CD affects the owners market for the CD. However if you’re allowed to rip songs you do own on CD to mp3; there’s no great effect on owners markets if you restrict the people to whom you give copies of your mp3 to those who’d already bought the original CD. This is essentially what mp3.com did, and which was shot down by a US court.

It difficult to come up with some wording that allows this behaviour in a generic fashion; concepts as vague as “fair use” evidently don’t work, and being precise is difficult without being overly confusing. A definition that allows pretty much everything but the above is comparatively simple: you allow the creation (and destruction) of “auxiliary copies” by owners of copies to any degree they might wish, but require them and the original copy to be treated as a single unit when dealing with transfers of the work; that is it’s either all of it, or nothing when selling, loaning or giving it away.

Generalising this principle from individuals is complicated by the fact that we don’t with corporations and associations to be able to provide their employees or members with the benefits of multiple copies of the work without having to pay for them. Microsoft have a business model that relies on selling one copy of their programs for each worker in a business, as do a majority of software providers, and upsetting that model would likely have catastrophic consequences on the structure of the software industry. For groups, then, a straightforward limitation on the above principle is required: an arbitrary number of auxiliary copies can be made, as long as any ability to access those copies simultaneously is avoided.

The final issue that is probably appropriate to address by a concept of “auxiliary copies” is that of copies for more efficient distribution; such as those made on web proxies. An exemption allowing (re)distributors of copyrighted works to make as many additional copies of the work they’re distributing, provided those copies are not accessed except as part of the technical process of distributing legal copies of the work, would seem fairly effective.