response 46 of 206:

Sep 8 21:21 UTC 2000

I'm going to put my little copyright essay here.  No slight intended to 
willard's other excellent Napster item, it just seems to fit better 
here now.
 
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Consider:  Copyrights have no moral force in our culture.
The right to tangible property goes back to the roots of Western culture:
"Thou Shalt Not Steal" is in the Ten Commandments.  And even a child 
sees that if I take something from you, you don't have it any more, and
this is a wrong.

But copying is different.  If I copy something from you, you still have
it.  The Lord did not say, "Thou shalt not copy thy neighbors' scrolls."

Copyright has never been an "absolute" right, in the sense that
most property rights are absolute.  (Let's wave off land-use regulations, OK?)
In the US, copyright law has balanced ownership incentives to
creators with access and "fair use" by the public, and the
scope of copyrights has been subject to adjustment through the years.
The Constitutional language which gives Congress control over copyright
law says that the purpose of copyright is public benefit -- *not* the
maximum profit to copyright holders.

Copyright is an economic regulation which only goes back a couple of 
hundred years, and it was designed to regulate the behavior of businesses.
It's only worked this long because until now copying machines, in the 
most general sense, were big expensive things which only businesses 
could own, and business are (1) relatively limited in number, and (2)
cost-sensitive to things like civil lawsuits.  So the civil court 
system was sufficient to keep the businesses in line.

In the 20th century, the ownership of copying machines has spilled
down into the general population.  And I had a flash of blinding
insight last night: so far, "Society" has refused to use the big
guns of copyright law against the public at large.  As the public's
copying activity has expanded, copyrights have been rolled back.

Legally, the first step was with the VCR.  In the Betamax case, the appeals 
court held Sony liable for infringement; we came very close, as a society,
to banning the VCR.  However, the Supreme Court made some new law 
out of whole cloth:  they arbitrarily decided to declare that   
"timeshifting" a TV show was not an infringement; and then they ruled
that because the VCR had newly-declared non-infringing uses, it   
could not be sued out of existence.  Copyright rolled back  
in the face of public copying activity.  

Though audio copying came first -- the music industry got really 
panicky in the heyday of cassette recorders, 
with a campaign about how "Home Taping Is Killing
Music."  -- the legal situation didn't resolve until later.
Widespread home cassette copying was tolerated for years -- I am unaware
of anyone ever being prosecuted for it.. 
Eventually in 1992, the Audio Home Recording Act 
defined a clear legal zone for private users to 
make copies without fear of being sued.  Again, copyright was rolled back.

I honestly don't know how the current struggle will turn out.
Congress gave the copyright industry and the courts a Great Big Gun
to use against the public in the Digital Millenium Copyright Act.
$1000 worth of illicit copies is now a felony
charge; by the standards of the law before 1995, this is draconian.

It's so draconian that the law has hardly been used yet.  Of the 
guesstimated 20 million Napster users, most must have $1000 worth 
of illicit songs, and so they would be slam-dunk prosecutions
under the law.  But the number of prosecutions under this
section of the DCMA is one: one poor student at the U. Oregon who 
had MP3 files on his web site.  And that prosecution was two years ago.