In short, my income is entirely based on sales and royalties-and I will state here, flatly, that I do not want and do not need the “protection” so kindly offered to me by giant corporations who try to use me as their fig leaf. The Mouse and its 95-year copyright terms can go to hell in a handbasket, as far as I’m concerned.
I do not want my works copyrighted for my lifetime plus seventy years. That is ridiculous. It does me no good at all. It is nothing but an excuse for giant corporations to lock up society’s intellectual heritage as their monopoly for as long as they possibly can so they can gouge the public-and you may rest assured that, when the Mouse’s current 95-year protection plan runs out, the Great Rodent will start shrieking that it needs yet another extension.
Enough. The grotesquely long periods of copyright established by modern laws are not directly related to the issue of DRM, granted. But those terms make every problem connected with copyright ten times more difficult to deal with-including DRM.
DRM is bad enough, on its own terms. Add to that the fact that it will last for close to or (often) more than a century, and you put all the problems of DRM on steroids. Society could live with asinine laws that only stayed in effect for a few decades. It cannot live with asinine laws that get locked in for a hundred years-with further extensions on the horizon, be sure of it-without beginning to suffer from intellectual sclerosis and major political problems.
Not to mention social ones. The modern drive to monopolize intellectual property is not restricted to copyright. You can see the same dynamic at work with regard to patents and trademarks-where the immediate consequences are far more severe than they are with copyrights. It is quite literally true that thousands of children die in the world every day because of excessively long periods-enforced with excessive severity-of intellectual monopolies.
To go back to the beginning, never forget that copyright is an evil. There is nothing good about it, except that it is a somewhat less evil way of renumerating authors and artists for their labor than the alternatives. (Which are basically one form or another of patronage, be it private or public-all of which have their own set of well-established negative consequences.)
So, we live with it. But “live with it” is the right way to view the matter. Not the preposterous applause that I find so many authors showering on copyright. In my opinion authors have a particular responsibility to make sure-or try their best, anyway-that the copyright system that provides them with a livelihood does not become a cancer for society.
As for those authors who shrug their shoulders and say they can’t see where it’s any of their business, I will be still more blunt. If authors don’t see to it that copyright doesn’t becomes cancerous, then-sooner or later-society will simply excise copyright with surgery.
Copyright is a privilege, not a “right.” It is a privilege that society chose to extend to authors and artists and other people engaged in creative intellectual work because society gauged that this intrinsically evil monopoly would still, overall, work in society’s own interest. But if and when that ceases to be true-and we have already reached that point-then society has not only the right but the duty to eliminate copyright altogether.
To put it another way, if authors aren’t smart enough to keep their own house in order, sooner or later they will find it being done for them.
In later columns, I will address the practical aspects of the issue. I will demonstrate that it is perfectly possible, even in the supposed “new world” of the digital era-which actually poses no fundamental new problems at all-for authors and publishers to figure out ways to make a living without becoming a cancer in society. It can be done without DRM, and without any greater copyright protection than we had in times past. It’s not even hard.
But, to conclude, I didn’t want to start there because I didn’t want anyone to have the misconception that my position-or Jim Baen’s-derives fundamentally from narrow economic concerns.
It doesn’t. It’s a matter of principle. As I said earlier in this essay, first you determine what your basic principles are. Only then do you start trying to figure out a way to make money. What you don’t do-ever-is go at it the other way around. Doing so may seem smart and opportune to some people, but it isn’t. It’s just a slippery slide into an abyss.
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One last thing. I referred to Macaulay’s speeches on copyright earlier in this essay. Those speeches, as far as I’m concerned, contain just about all wisdom there is on the whole subject. “New problems,” baloney. There is not one single issue that supposedly arises due to the “digital era” that Macaulay did not already address over a century and a half ago.
I strongly urge anyone with a serious interest in this issue to read those speeches. If you’re wondering how to find them, it’s easy.
Just see below.
Prime Palaver # 4
Macaulay on copyright law
Eric Flint
September 1, 2001
These are two speeches given by Thomas Macaulay in Parliament in 1841, when the issue of copyright was being hammered out. They are, no other word for it, brilliant - and cover everything fundamental which is involved in the issue. (For those not familiar with him, Macaulay would eventually become one of the foremost British historians of the 19th century. His History of England remains in print to this day, as do many of his other writings.)
I strongly urge people to read them. Yes, they're long - almost 10,000 words - and, yes, Macaulay's oratorical style is that of an earlier era. (Although, I've got to say, I'm partial to it. Macaulay orated before the era of "sound bytes." Thank God.)
But contained herein is all wisdom on the subject, an immense learning - and plenty of wit. So relax, pour yourself some coffee (or whatever beverage of your choice) (or whatever, preferably not hallucinogenic), and take the time to read it. The "oh-so-modern" subject of "electronic piracy" contains no problems which Macaulay didn't already address, at least in essence, more than a century and a half ago.
I should note that Macaulay's position, slightly modified, did become the basis of copyright law in the English speaking world. And remained so (at least in the US) for a century and a half - until, on a day of infamy just a few years ago, the Walt Disney Corporation and their stooges in Congress got the law changed to the modern law, which extends copyright for a truly absurd period of time. Which - those who forget history are doomed to repeat it - is a return to the position advocated by Macaulay's (now long forgotten) opponent in the debate.
Eric Flint
A SPEECH DELIVERED IN THE HOUSE OF COMMONS ON THE
5TH OF FEBRUARY 1841
by Thomas Babington Macaulay
On the twenty-ninth of January 1841, Mr Serjeant Talfourd obtained leave to bring in a bill to amend the law of copyright. The object of this bill was to extend the term of copyright in a book to sixty years, reckoned from the death of the writer.
On the fifth of February Mr Serjeant Talfourd moved that the bill should be read a second time. In reply to him the following Speech was made. The bill was rejected by 45 votes to 38.
Though, Sir, it is in some sense agreeable to approach a subject with which political animosities have nothing to do, I offer myself to your notice with some reluctance. It is painful to me to take a course which may possibly be misunderstood or misrepresented as unfriendly to the interests of literature and literary men. It is painful to me, I will add, to oppose my honourable and learned friend on a question which he has taken up from the purest motives, and which he regards with a parental interest. These feelings have hitherto kept me silent when the law of copyright has been under discussion. But as I am, on full consideration, satisfied that the measure before us will, if adopted, inflict grievous injury on the public, without conferring any compensating advantage on men of letters, I think it my duty to avow that opinion and to defend it.
The first thing to be done, Sir, is to settle on what principles the question is to be argued. Are we free to legislate for the public good, or are we not? Is this a question of expediency, or is it a question of right? Many of those who have written and petitioned against the existing state of things treat the question as one of right. The law of nature, according to them, gives to every man a sacred and indefeasible property in his own ideas, in the fruits of his own reason and imagination. The legislature has indeed the power to take away this property, just as it has the power to pass an act of attainder for cutting off an innocent man's head without a trial. But, as such an act of attainder would be legal murder, so would an act invading the right of an author to his copy be, according to these gentlemen, legal robbery.
Now, Sir, if this be so, let justice be done, cost what it may. I am not prepared, like my honourable and learned friend, to agree to a compromise between right and expediency, and to commit an injustice for the public convenience. But I must say, that his theory soars far beyond the reach of my faculties. It is not necessary to go, on the present occasion, into a metaphysical inquiry about the origin of the right of property; and certainly nothing but the strongest necessity would lead me to discuss a subject so likely to be distasteful to the House. I agree, I own, with Paley in thinking that property is the creature of the law, and that the law which creates property can be defended only on this ground, that it is a law beneficial to mankind. But it is unnecessary to debate that point. For, even if I believed in a natural right of property, independent of utility and anterior to legislation, I should still deny that this right could survive the original proprietor. Few, I apprehend, even of those who have studied in the most mystical and sentimental schools of moral philosophy, will be disposed to maintain that there is a natural law of succession older and of higher authority than any human code. If there be, it is quite certain that we have abuses to reform much more serious than any connected with the question of copyright. For this natural law can be only one; and the modes of succession in the Queen's dominions are twenty. To go no further than England, land generally descends to the eldest son. In Kent the sons share and share alike. In many districts the youngest takes the whole. Formerly a portion of a man's personal property was secured to his family; and it was only of the residue that he could dispose by will. Now he can dispose of the whole by will: but you limited his power, a few years ago, by enacting that the will should not be valid unless there were two witnesses. If a man dies intestate, his personal property generally goes according to the statute of distributions; but there are local customs which modify that statute. Now which of all these systems is conformed to the eternal standard of right? Is it primogeniture, or gavelkind, or borough English? Are wills jure divino? Are the two witnesses jure divino? Might not the pars rationabilis of our old law have a fair claim to be regarded as of celestial institution? Was the statute of distributions enacted in Heaven long before it was adopted by Parliament? Or is it to Custom of York, or to Custom of London, that this pre- eminence belongs? Surely, Sir, even those who hold that there is a natural right of property must admit that rules prescribing the manner in which the effects of deceased persons shall be distributed are purely arbitrary, and originate altogether in the will of the legislature. If so, Sir, there is no controversy between my honourable and learned friend and myself as to the principles on which this question is to be argued. For the existing law gives an author copyright during his natural life; nor do I propose to invade that privilege, which I should, on the contrary, be prepared to defend strenuously against any assailant. The only point in issue between us is, how long after an author's death the State shall recognise a copyright in his representatives and assigns; and it can, I think, hardly be disputed by any rational man that this is a point which the legislature is free to determine in the way which may appear to be most conducive to the general good.
We may now, therefore, I think, descend from these high regions, where we are in danger of being lost in the clouds, to firm ground and clear light. Let us look at this question like legislators, and after fairly balancing conveniences and inconveniences, pronounce between the existing law of copyright, and the law now proposed to us. The question of copyright, Sir, like most questions of civil prudence, is neither black nor white, but grey. The system of copyright has great advantages and great disadvantages; and it is our business to ascertain what these are, and then to make an arrangement under which the advantages may be as far as possible secured, and the disadvantages as far as possible excluded. The charge which I bring against my honourable and learned friend's bill is this, that it leaves the advantages nearly what they are at present, and increases the disadvantages at least fourfold.
The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men
for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.
There have been times in which men of letters looked, not to the public, but to the government, or to a few great men, for the reward of their exertions. It was thus in the time of Maecenas and Pollio at Rome, of the Medici at Florence, of Louis the Fourteenth in France, of Lord Halifax and Lord Oxford in this country. Now, Sir, I well know that there are cases in which it is fit and graceful, nay, in which it is a sacred duty to reward the merits or to relieve the distresses of men of genius by the exercise of this species of liberality. But these cases are exceptions. I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles. I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into public scandals and pests.
Jim Baen’s Universe Page 74
