The Birth and Death of Copyright

What is a "right"?

Superstitions to the contrary, rights are not magic spells emanating from some hairy fairy in the sky.

Rather, rights are codified expressions of underlying social power relationships.

For example, Americans have the right to hum or whistle any tune they like as they drive to work.


Because of divine dispensation?

Because the RIAA out of the goodness of its heart decided to allow free exercise of this right?

No, because there is no cost-effective way of preventing Americans from doing so.

The moment a technology appears which makes it cost-effective to monitor what Americans are humming and whistling in their spare time, be assured that the RIAA will be pitching legislation to the US congress to outlaw unlicensed whistling and humming of tunes, the better to fatten quarterly profits. (And, of course, to Protect Artist's Rights, Defend The American Way, and Prevent The Collapse Of Civilization As We Know It.)

Up until the invention of the printing press, everyone had the right to copy any document he wished for the same reason: There was no cost-effective way of preventing it.

The printing press changed that because printing presses were expensive and rare, making it cost-effective for the state to control them.

Presto: Copyright!

Not because of any divine dispensation, not for the greatest good of the greatest number -- but simply because it could be done.

The printing press gave the state cost-effective control over the first mass medium, and "copyright" arose as the codified expression of that power.

To put it perfectly plainly: The printing press created copyright.

But what technological progress creates, it can also destroy.

The introduction of dirt-cheap desktop computers and Internet communication restored the pre-Gutenberg status quo ante.

Armed with a desktop computer, document reproduction has become fully as decentralized and uncontrollable as it was before the introduction of the printing press.

It was perfectly practical for the government to control every printing press, but it is no more practical for the government to control every desktop computer than it was for the government to control every quill pen. Indeed, the desktop computer is the new quill pen.

Where does that leave copyright?


Contemporary copyright law is a dinosaur too dumb to know that it is already dead.

As surely as the rise of the printing press made the birth of copyright inevitable, so the rise of the Internet made the death of copyright inevitable.

Social adaptation to changing realities takes time, of course. It took years for copyright law to reach its equilibrium form after the introduction of the printing press, and it will take years for copyright law to evaporate now that technology has obsoleted it.

Nerve impulses travel slowly down the nervous system of the dinosaur of state, and nowhere more slowly than through the hindbrain that is the morass of case law.

But the fact remains that copyright law is the codification of a state power which no longer exists, a lingering shadow which cannot long outlive the light which cast it.

Copyright -- the notion that the state has the power to tell people what they can and cannot do on their personal computers -- will seem as antiquely humorous to our grandchildren as do to us laws mandating that cars be preceded by a crier with a lantern sounding a bell.

Like the latter law, copyright laws may still be formally on the books a century from now -- but the only notice taken of them will be in humorous collections of legal curiosities.

Richard P Feynman once observed that Nature cannot be fooled.

In the long run, neither can legal fantasies prevail over technological realities.

Cynbe ru Taren
Last modified: Thu Apr 7 16:27:53 CDT 2005