Copyright restriction

Ethan Zuckerman writes:

Under US law, pretty much anything you write down is copyrighted. Scrawl an original note on a napkin and it’s protected until 70 years after your death.

Note: None of this post should be taken as criticism of Zuckerman. I’m just using his sentence as a foil. He is a great blogger, the above is a great post of his, which furthermore talks about the great work of some of my colleagues…

In what sense is the hypothetical scrawl above “protected” by copyright? A scrawl might be protected by a glass case or digitization, or even (somewhat remotely) by secure property rights in napkins, glass cases, and computers.

No, copyright restricts the ability of others to use representations of the scrawl legally, without obtaining permission from the scrawler or a party the scrawler has transferred this right to censor to.

Which brings us to another inaccurate phrasing, which has many variations, all along the lines of “copyright is the right to … a copyrighted work” where the ellipsis are filled by words like “publish”, “distribute”, or “perform”. Not true! Copyright is not required to have the right to publish a work, or public domain works would be illegal to publish. Instead, copyright is the right to legally restrict others from publishing, distributing, performing works.

So use of the term ‘copyright protection’ (2,930,000 Google hits) instead of ‘copyright restriction’ (19,300 Google hits) is a peeve of mine and seeing copyright equated with censorship a small joy.

13 Responses

  1. gurdonark says:

    Among the bundle of rights in any “ownership” involves a “restriction”. The notion of “trespass” as to real property, or “conversion” as to personal property, “censor” the non-owner’s “physical expression” as to the property.

    The question, I suppose, is whether an intangible right, such as a mode of expression (expression, as opposed to content or idea) should be declared property for a limited term to encourage creativity.

    I maintain that while a government “can” recognize this (and many other) forms of intangible property, the free software movement raises a simple remedy against traditional copyright and patent protection. A decision to, let’s say, invent the world-wide web open source, creates a surge of
    progress despite the existence of patent/copyright law. The creation of an operating system along, say, Linux lines, creates new value which exists and is nearly entirely unhampered by the existence of copyright law.

    I am fine with the existence of an intellectual property restriction system, based on a limited exclusivity in return for ultimate injection of innovation into the public domain.

    What we are learning,though, in science, in the arts, and in technology, is that creative people who work open source can create value for society despite the best efforts of “closed source” companies to restrict value to profit-making opporunities.

    When this spirit also infects the science commons, say, or even the movie industry, then we’ll see how far the idea can go.

    So long as it is legal for a “commons” to exist to permit liberal licensing of work, I am not troubled that a closed system exists in parallel. I see virtues in copyright and in patent, but they are not an impediment to open source–just a different route.

  2. You’re right, most any property restricts and protects access to some resource, at the same time. I argue that copyright exclusively restricts.

    I’m afraid software patents are an impediment to open source. Some see them as an existential threat.

    Of course as you say in an earlier comment, “the surest way for a creator to prevent software patents from dominating is to create open source/GNU material.”

    Also, Crosbie Fitch comments on this post at

  3. gurdonark says:


    I understand the arguments on the open source v. software patent issue.
    All kinds of software and process/use patents raise a host of issues
    which include undue restriction of uses by more or less obvious “innovations”. My hope is that more clarity will come from the Supreme Court and from Congress on this point.

    The question with which I wrestle is one outside my experience: in this hypothetical “no copyright” world, how do movies get made? The Nigerian model appears to me useful for small films, and CC/Free art/Open source has worked out (or is working out) for viral video. Yet without copyright, it would be harder, it seems to me, to make “large” movies. I will skip the part about liking indies rather than large movies, because it’s beside my point. My point is that it’s a mental wrestle for me to figure out how to reach the revenue points without the copyright protection. I recognize that many viewers are not “lost revenue” because they would not have paid anyway (in impoverished areas in particular). However, if all films were PD by law, then corporate exhibitors could show the films without
    paying royalty.

    In the software model, one can do this hedge or that hedge against non-paying users even absent a public copyright system, or one can make everything completely open source and find associated revenue generators.

    I don’t know the answer, and I don’t start from a “PD is the only way to go” perspective, but it’s in the arena of “large” movies that CC BY NC makes more sense to me than PD, due to that mental hurdle I have not jumped.

  4. That last redoubt for copyright is pretty common, even has names — $200m question and King Kong.

    I’d be happy to do without Hollywood blockbusters, since I don’t like them anyway. :)

    Eventually I intend to do a long post on this, but other (or more) salient points include that Hollywood has cost disease, otherwise technology means making fancy movies is getting less expensive, and supporting censorship because one wants fancy movies is a bit like supporting an emperor because one likes gigantic pyramids — there are always tradeoffs, and I’ll take more freedom for less eye candy.

  5. gurdonark says:

    Thanks. I’ll look forward to that post.

    The related topic–why, given that technology now permits inexpensive films, a CC film culture has not been quicker to arise–also interests me.

    The animated bunny film is a real step in the right direction, but
    there’s no reason why the technology could not create inexpensive films which went CC or PD immediately or very quickly. It’s not hard to imagine all sorts of hybrids under which films are released copyrighted for a short “burn”, such as a year, and then sent CC BY soon thereafter.
    It’s of course not hard to imagine PD. But the issue to me, in this, as in so many other things, is not how to break down the ramparts of copyright law, but instead how to create the ‘velvet revolution’ of voluntary CC creators and consumers who will change the way we experience movie media, too.

    Till then, though, I’ll wait for the long post.

  6. Oh, I should add that I think the best and maybe only way to win the $200m/KK argument is to see that more open counter-examples get created, even moreso than that’s the best way to fight software patents.

  7. For some reason your last comment was moderated, didn’t see it before my previous.

    Anyway, I agree with everything in that last comment.

  8. Gurdonark, you say “However, if all films were PD by law, then corporate exhibitors could show the films without paying royalty.”

    I don’t see why this is a problem. Corporations can use Linux without paying a royalty. So what? The deal is, if those who use it want it improved, they cough up the money.

    What’s magic about manufacturing a copy? It costs nothing. Anyone can do it.

    The value is in the art, not the copy, so pay the artist not the copier.

    This works for movies just as much as software. If you want a sequel to Big Buck Bunny, then pay the artist.

    If you’re really into paying the copier, then you can pay me $10 and I’ll make you a copy of BBB, and I get to make colossal profits. If there are enough mad folk such as you then I’ll not only gear up for this copying business, but I’ll start incentivising producers of such works with a commission to avoid saturating my market (I just know people will get bored of buying copies of the same film). Unfortunately, I don’t think there’s much of a business in manufacturing copies of Big Buck Bunny, but hey, it’s an easy business to get into so why not give it a shot? There are massive profits to be made. Of course, you can sell DVDs of BBB in nice packages at street market stalls, but then your costs have gone from near zero to a few dollars. Profits are far less. You could even show BBB as a prelude to a cartoon feature (if you were an independent cinema with a decent performance license to the main film), but again costs come into play, and your audience may not necessarily all enjoy BBB.

    So, with PD movies such as BBB, it’s very dubious that ‘corporate exhibitors’ in showing them without paying a royalty will be making money hand over fist. They’ll just about cover their costs of exhibiting the film – the value they add and are paid for.

    So who pays for films?

    The answer’s obvious. It’s the people who love the films, who want them produced.

    The audience pays for films because they like them. The cinemas pay for films because they get to add value to them. The TV companies pay for films because they need to justify their subscription fees. None of these payments requires the state’s suspension of its citizens’ natural right to copy and build upon published works.

    There is clearly a market for films. We have producers able to make them and audiences willing to pay for them. Let us imagine that there is no copyright. Why on earth does this prevent audience and artist making an exchange of movies for money? Who says those who like BBB can’t pay its producers to make a sequel? Where is it written?

    Art for money, money for art.

  9. I get no feedback to indicate that a comment has been held for moderation, so I resubmit in case the form post didn’t work. Feedback would be nice.

  10. gurdonark says:


    Thanks for sharing your thoughts on this one. The root of the legal right, as you know, is vested in the artist, who then “sells to the copyist”, either by work-for-hire sale, outright sale, license or a hybrid.

    It’s a fair critique that the market forces applied today mean the “copyist” has too much bargaining leverage. Yet in a well-regulated market, which polices out coercive or unconscionable agreements, what you term the “copyist” might instead be termed “the entity which pays money for an assignment of the artist’s right to a limited exclusivity on commercializing the work”. The right thereby acquired is derivative of the artist’s right, not a “new right” in the copyist.

    It’s a fair point, though not one with which I agree, that this exclusive right may not sufficiently subserve the interest of the public in a “free as in free speech” intellectual commons. Yet ultimately, it’s a judgment call that
    copyright makes–that a musician, say, may choose to sell to the copyist, and that the law will recognize a property right that may be sold.

    We agree with one another that an audience or a corporation could pay for the creation of a PD work. We both hope that PD (or, in my case, CC BY) works will proliferate along the Big Buck Bunny lines as the technology and consciousness continues to evolve. But that doesn’t mean we must eliminate any copyright/patent system.

    The issue as you frame it, if I understand your point correctly, is that the state is suspending a natural right to copy. This position depends on the assumption that there is a natural right which cannot be over-come by democratic choice to abridge that right as to certain creative expressions.
    I cannot argue against your assumption, as it is an assumption, a bit of credo, from which you begin. When you begin from a “natural rights” position on copying, then it’s just a different way of seeing the issue than mine.

    My view differs from yours in that I believe a reasonable IP term for patent or copyright is permissible, while I understand you to consider any such IP protections an unjustified abridgement of natural rights.

    Where our positions meet, however, is that I favor a sharing economy by creators and audiences, in which alternative ways to get artists paid for creative works and to get creative works into audiences’ hands, and your view is that such a sharing is a natural right. Although I would not discard IP laws, I want to encourage people to find the ways to make Big Buck Bunny made and distributed.

    The thing that interests me, in substantial part, is that our respective theories are less important than the problem of energizing a mass audience to pay the rhetoric BBB to make more films. I see this, much more than the CC v. PD v. reasonable copyright issue, as the real
    small mountain to be climbed to bring about the sharing economy I wish to see.

  11. Gurdonark, thanks too for sharing your views in such an agreeable manner.

    I feel it is only through recognising that copyright is an unethical abridgement of a natural, inalienable right to liberty (as slavery is), that one can see that the solution to copyright’s contemporary ineffectiveness lies not in technological reinforcement (DRM), but in recognising that it is copyright itself that is in conflict with a more fundamental natural law of information and its involvement in human intercourse.

    One can simply ignore copyright’s ineffectiveness, and focus on exploring alternative revenue models (just in case), but that mere contingency wouldn’t provide a sufficient imperative alone to warrant such continued exploration. Moreover, one should understand why the existing model is failing in case this reveals underlying foundations that have failed and hence cannot be built upon by an alternative model.

    So, my argument and work has two parts: 1) arguing my discovery that copyright is rotten and doomed, 2) explaining and demonstrating how future commerce in intellectual work can be achieved without unnatural reproduction monopolies or licensing/taxation.

    I think these go hand in hand. If people aren’t convinced by the former, then there’s little imperative to pay much attention to the latter.

    NB I do not discard intellectual property. I find the idea of intellectual property as naturally wholesome as material property. It is the unnatural reproduction monopolies that have been granted to its publishers that I believe are unachievable in this age of instantaneous diffusion, let alone unethical.

    But anyway, as you indicate, we don’t need to agree on law, if we’re both agreed on a need to explore copyleft revenue mechanisms.

  12. gurdonark says:

    It’s that need to explore alternative distribution/revenue mechanisms that fascinates me, and, from your weblog’s evidence, fascinates you as well.

    Here I think the time is ripe for what I term the “google effect”. Everyone in the CC/GNU/PD/copyleft/Free Art License can see that alternative structures for artist compensation should be possible, just as, prior to google’s formula, everyone saw that internet advertising offered immense profits. Yet it was google’s idea of coupling the search engine with an ad structure that turned the corner for google.

    The different models have been tried with limited success thus far.
    My instinct is that the right answer may look like a kind of for
    worthy PD/CC projects. Kiva sets up a really workable micro-lending model which is very easy to the consumer to use, and structured to be based on very small-scale individual contributor loans. It offers all the traditional branding advantages:
    a. it is a community in spirit;
    b. it offers transparent, informative access
    c. it offers user choice as to funding
    d. it uses automation effectively to notify the user of important developments but avoid spam
    e. it can raise sums of money, and it is easy to explain and understand
    f. although it is non-profit in orientation, it is easy to understand how in return for market risk on micro-loans and forfeiture of the use of money, a worthy goal can be accomplished.

    Imagine a kiva-model for a PD project. Someone decides, for example, to
    create a non-profit to shoot a film. The product is PD/CC/GNU, the financials transparent, the kiva-type organization vets it, and its based on a property appealing to a mass of people. The compensation to the players is worked out up front–in return for foregoing profit participations, the film instead fixes a workable return as part of the deal.

    Imagine this kiva type entity did the same, say, with Kristin Hersh’s CASH music artists. Imagine that this kiva type entity did the same with Issa (nee’ Jane Siberry); with a graphic artist’s latest graphic novel; with an open source video game.

    The key is not that the kiva need be a literal kiva–it can be a for-profit.
    The keys are web-savvy like the kiva site, and financial integrity in a vetted product. Like kiva, the compensation to the sponsor could be a straight small percentate (almost eBay-like, alternatively).

    The “problem”, it seems to me, is not in finding the right copyleft formula.
    It’s in building the right entity to with credibility “kiva” those projects.

  13. I believe Mike knows the direction I’m coming at this from, which is to create a contingency market. This is like a prediction market, but one where the future events are dependent (rather than independent of those predicting them) – events whose outcomes are expected and intended to be contrived by those involved in deals contingent upon them.

    This doesn’t actually dictate any specific process, whether compensation is worked out in advance, or not. It simply lets a number of interested parties make deals contingent upon a public event, e.g. the release of a copyleft movie.

    After all, this is essentially all we have. The publication of cultural works, audiences who value them, and artists who would produce and publish them in exchange for their audience’s money (or, initially freely for promotion), e.g. “We’ll release the source code to Blender under a GPL license if you thousands of users collect $100,000 amongst yourselves and give it to us in exchange”.

    No-one has yet created a market to enable such exchanges (because copyright, compulsory licensing, and taxation have sufficed), so that’s what I’m working on, a general purpose market for the commissioning of public events of interest to the public by the public. Such markets are only feasible with the advent of the Internet (the same thing that has made monopolies infeasible).

    I don’t believe I have a special insight into any ‘right copyleft formula’ (given my experience with and, which is why rather than try to figure out a great website, I figure my time would be better spent creating a free general purpose webservice and let everyone else (as well as myself) explore the variety of copyleft formulae and websites that can be built using it, e.g.

    I have come across many ideas of persuading audiences to become investors, but I think that misses the elephant in the room that there is no longer a future monopoly rent those investors can expect to share in. So, I wouldn’t call it an investment, but a purchase, a commission, a sponsorship, patronage, payment. Make the exchange final. The producer gets the money. The purchasers get the product. No strings. Walk away. Everyone is then free to share or build upon the cultural work produced – and then, again, in turn sell their cultural work they produce from it.

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