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Ask Greplaw: Right of Access?

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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 constitutional quote:
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;
(US Constitution, Article 1, Section 8, Subsection 8)
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 always takes precedence over what because without why, there 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.

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:
  • Patented medicines cannot be kept out of the hands of non-for-profit organizations.
  • Online libraries can legally share all books printed.
  • 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.
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.

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?

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