RE: DMCA Alternatives

[Seth Johnson <seth.johnson@realmeasures.dyndns.org>]

> From: "Rick Anderson" <rickand@unr.edu>
> Date: Fri,  9 Aug 2002 12:59:23 EDT
> 
> > We offer exclusive rights in order to promote the spread of
> > information, and this is what publication is all about.
> 
> Well, sort of.  What the Constitution actually says is that
> copyright is intended "to promote the progress of science and
> the useful arts," which isn't quite the same thing as saying
> that its purpose is to promote the spread of information.
> I've always understood that language to mean that the purpose
> of copyright is to promote the _creation_ of information,

As noted, the real question is whether copyright holders should be able to
put locks on their published "content" in the first place, given the
mistake involved in using content control to support statutory exclusive
rights.  The key factor is to draw a clear distinction between private
interests and the public interest in the area of publishing.  The
determining factor for this kind of policy is the nature of information,
not of "content."  Information is free, both intrinsically and as a matter
of established jurisprudence, wherein the distinction between facts and
expression has consistently been upheld.  Putting something out under
content control isn't really publishing.  Publication is all about
promoting the spread of information, and this is what we offer exclusive
rights for.

On the meaning of "progress" in the exclusive rights clause, see Malla
Pollack, "What is Congress Supposed to Promote?"  Not yet published, but
available in prepublication form at http://ssrn.com, by searching for
author "malla pollack."  I have converted it to text from the PDF file,
with all citations.  Let me know if you would like it in that form.

> which it does by making it possible for authors and artists
> to profit from their work.  Give people a financial
> incentive to create information, and you'll tend to get
> more information.  Once it's created, you have to find a
> healthy balance between spreading that information around
> (which is both necessary and desirable, of course) and
> preserving the financial incentive to create. A system that
> only honors one side of that balance will fail.

This way of looking at the issue is sure to mislead us, since it
emphasizes a statutory principle over more essential ones.

Seth Johnson

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