In a release today from the Institute for Public Accuracy (1/17/13) on the legacy of Aaron Swartz, I came across a link to a great essay by Richard Stallman that appears to have been written about a decade ago. Called "Misinterpreting Copyright: A Series of Errors," it's one of the best explanations I've seen for what's wrong with the way we think about copyright.
The main idea is that the when the U.S. Constitution authorized copyright laws, it did so on the basis that it is "not a natural right of authors, but an artificial concession made to them for the sake of progress." Stallman spells out the implications of this:
The copyright system works by providing privileges and thus benefits to publishers and authors; but it does not do this for their sake. Rather, it does this to modify their behavior: to provide an incentive for authors to write more and publish more. In effect, the government spends the public's natural rights, on the public's behalf, as part of a deal to bring the public more published works. Legal scholars call this concept the "copyright bargain."…
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 U.S. 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.
Stallman stresses that the question of copyright ought to be: How much freedom does the public want to give up in the interest of increasing the production of creative work? Note that the goal is increasing such work, not maximizing its production; as Stallman points out:
The first freedoms we should trade away are those we miss the least, and whose sacrifice gives the largest encouragement to publication. As we trade additional freedoms that cut closer to home, we find that each trade is a bigger sacrifice than the last, while bringing a smaller increment in literary activity. Well before the increment becomes zero, we may well say it is not worth its incremental price; we would then settle on a bargain whose overall result is to increase the amount of publication, but not to the utmost possible extent.
Accepting the goal of maximizing publication rejects all these wiser, more advantageous bargains in advance–it dictates that the public must cede nearly all of its freedom to use published works, for just a little more publication.
This reversal of the purpose of copyright, from ensuring that readers have enough to read to providing publishers with every incentive to publish, is reflected in the rhetoric of "piracy":
The "pirate" rhetoric is typically accepted because it so pervades the media that few people realize how radical it is. It is effective because if copying by the public is fundamentally illegitimate, we can never object to the publishers' demand that we surrender our freedom to do so. In other words, when the public is challenged to show why publishers should not receive some additional power, the most important reason of all–"We want to copy"–is disqualified in advance.
Stallman suggests a scaling back of copyright to 10 years–a length more consistent with its constitutional purpose of getting the best deal for the public. He makes a persuasive case.