Ask Greplaw: Right of Access?
This is the first of a few articles I submitted to Greplaw over the last couple of years. I am planning on revising the whole set based on the comments I got from that discussion. There were many useful ones. This article is the oldest of the three that were not transitory in nature. This article was originally posted on Tuesday December 03, 2002.
Right of Access
I have been tossing an idea around in my head for some weeks. For a long time, I have felt that there was something wrong with copyright law that I could not put my finger on. Some weeks ago, I managed to place the anxious digit upon its mark. Owing to my increasing alarm over the growing trend of copyright extortion (exemplified by the recent GrepLaw article on the Danish Anti Piracy Group), I have decided it is time this idea was debated by people more legally inclined than I (I would not mind stimulating a discussion on a site as normally quiet as GrepLaw, either :)
My argument, in a nutshell, is this: The Constitution of the United States of America gives to its citizens an implicit right of access that supersedes a creators right to incentives from that creation. I will flesh out my argument below...
First of all, I will begin with what I will not argue.
I will not contest that creators deserve rights to
their creations or that the idea of giving incentives
to authors is a bad one. Neither will I argue that
information is or is not "property" (my argument
works in either case). I also will not argue about
which rights should be given or about the terms
of rights. These are all essays in themselves, and
although I have been tackling them in my head
for some time, I am certain that I would lose my
entire audience for lack of direction if I chose
to cover so many subjects.
As all law in the US is rooted in the Constitution
(and meaningless without it), I will begin with the obligatory
The Congress shall have Power... To promote
the Progress of Science and useful Arts, by
securing for limited Times to Authors and
Inventors the exclusive Right to their respective
Writings and Discoveries;
I have emphasized two portions of this "copyright
clause" to demonstrate a relationship. This is a
relationship of primary to secondary.
The primary is the why, and the
secondary is the what. Why
precedence over what because without
would be no what. No law is enacted without cause
(be it rational or irrational). Therefore, this incentive
system would not exist if We the People did not need
people producing inventions, ideas, art, etcetera.
It follows that all this information is created for
Us the People.
(US Constitution, Article 1, Section 8, Subsection 8)
Few people would not
accept the argument that access to more information
increases education and accelerates intellectual
growth in society as a whole, and that
the existence of more educated
people increases the potential
for even greater ideas to be created.
It follows that the most efficient way
To promote the Progress of Science and
useful Arts is to disseminate as much information
as possible to as many people as possible. This
means that dissemination of information is the
primary goal of the "copyright clause"
in the Constitution and that the means by which
this is accomplished is the secondary
goal of the "copyright clause."
Therefore, We the People of the US have an implied
right of access to all information protected under
any laws governed by the "copyright clause."
This right of access takes precedence
over a creator's right to exclusivity of incentives.
This is not fair use. All uses that did not generate
revenue would be "fair use" under this interpretation.
Does this mean that copyright is meaningless?
Absolutely not. Creators of intellectual works still
have exclusive rights to any profits generated
by their works. We the People have no right to
sell ideas protected by their rights. We have the
right to access their works. We have the right to
learn from them, to add to them, to create our
own works from them.
What are the ramifications of this? The ones
that come to mind as I write this are these:
This falls very close to Jessica Litman's argument
about most people's idea of copyright. She argues
that people do not believe in or obey laws that are
irrational. This interpretation of the Constitution
is very rational, and it invalidates most of the
uglier parts of Title 17,
including the DMCA's infamous anti-circumvention
provisions. If copy protection is illegal, it follows that
circumventing it cannot be.
- Patented medicines cannot be kept out
of the hands of non-for-profit organizations.
- Online libraries can legally share all books
- Napster is legal. The RIAA manufacturing
copy protected CDs is not.
- All copy protection is illegal.
- Sharing files with your friends is legal.
Selling CDs to your friends is not.
- Forcing people to pay for access to
online archives of old issues of newspapers
and magazines is illegal.
- No one has to fight for dwindling scraps
of "fair use" anymore.
- P2P is completely legal.
Finally, I mentioned before that this argument
works whether or not ideas are considered to
be property. Because the purpose of these
incentives is To promote
the Progress of Science and useful Arts,
We the People are the intended recipients
of this information. As the intended recipients,
We the People are the only possible owners of this information.
If ideas are property, they are the property of
Us the People of the US. If ideas are not property,
no one has the right to restrict access.
They only have the right to be the exclusive recipients
of monetary compensation for any ideas
they might have created. Creators are never
"owners" of works they create.
This negates most of
the current debate that has been centered around
"theft" of copyrighted works. From the point of view
of my argument, there is no "theft" of information as
individuals have a right to access it. Only selling
a protected work
(i.e. stealing a real sale as opposed to
"stealing" a potential sale) would be stealing.
I suppose as a geek (as opposed to a lawyer) I
will now be chastised for having expressed a legal
opinion. However, as long as it does something
to shift the track of the recent debate from its
current dead end direction, I will be able to deal
with the ill will of those who are offended by
my audacity. Let the debate begin: Do We the
People of the US have an implied right of access
to all intellectual works protected in the US?