Although this column addresses the controversy surrounding so-called Digital Rights Management, I devoted my first three essays to a discussion of the general principles concerning copyright as such. As I explained, I did that because it’s impossible to discuss DRM intelligently without understanding that all the issues involved are couched within—derive from, actually—the general principles in our society that govern copyright as a whole.

Copyright is not an issue sitting over here, with DRM being a different issue sitting over there. In reality, DRM sits right inside of copyright.

The link between the two—the cushion that DRM sits on, if you will allow me to develop this into a metaphor—is called “fair use.” It is one of the most critical aspects of copyright law, and has been since the inception of the copyright era in the early eighteenth century. And my metaphor is actually a good one, because “fair use” is exactly that—a cushion. It’s the provision in copyright law—I’m about to lower the bar for this metaphor—that keeps society’s buttocks from getting too badly bruised by the hard limits that copyright places on society’s ability to benefit from creative intellectual or artistic work.

But DRM is too heavy. It’s steadily squeezing all of the real substance out of society’s fair use cushion. By now, that cushion isn’t much more than a skimpy little pad. Before too long, the way things are going, it will be gone entirely.

The definition of “fair use” is slippery in copyright law, and always has been. In the nature of things, it’s a gray area rather than a sharp line. Trying to define it precisely, in legal terms, poses much the same problem that trying to define pornography does. One person’s filthy disgusting story is another person’s literary masterpiece. Terms which have both been applied, to give just one example, to James Joyce’s famous novel Ulysses.

Whatever the judges come up with in their various decisions, however—and those decisions are vast in number—society as a whole long ago settled comfortably into a definition of fair use that pretty much parallels Chief Justice Potter Stewart’s famous comment regarding the definition of pornography. When pressed about it, Justice Stewart said that coming up with a precise definition of pornography was probably impossible, “but I know it when I see it.”

For three centuries, now, until the advent of DRM, that was pretty much the way society as a whole handled the problem of fair use. And it worked just fine, in all but a tiny handful of instances. Just about everybody understood—closely enough for almost all purposes—what was a legitimate “infringement” of someone’s copyright and what wasn’t.

That’s what fair use is, by the way. It’s an infringement of copyright that is considered legitimate, and therefore not subject to legal penalty.

Here is a good example of the difference between the two—at least, it would have been a good example before giant corporations started shoving DRM down everyone’s throat:

If you enjoy a cartoon strip you see in your morning newspaper, clip it out, and post it on a bulletin board or your tool box or your office door at work, that’s fair use. Keep in mind that you have in fact “infringed” the cartoonist’s copyright. Oh, yes, no doubt about it. A number of people will now be able to see and enjoy the cartoon strip without paying a penny to either the cartoonist or the newspaper which holds the right to distribute the cartoonist’s work.

But nobody would have objected, in times past—including the cartoonist, unless he was an idiot. They didn’t object for two reasons:

First, because it wouldn’t have done them any good to object, anyway. The law was on the fair user’s side. Traditional copyright law was based on the understanding that society’s intellectual discourse would grind to a halt if you didn’t allow fair use. Or, at the very least, it would greatly impede that discourse. The reason is because literary and artistic intellectual work does in fact enter the public domain, regardless of what the law says. The traditional concept of “fair use” simply recognized that fact, and gave it sufficient legal protection that copyright law remained a benefit to society, instead of a hindrance.

Consider, for instance, how frequently you’ve seen or heard someone—in print, not just verbally—refer to a situation as “a Catch-22.” That notion, originally presented to the world in Joseph Heller’s novel Catch-22—a book which is still under copyright—has long since entered the public domain. Not legally, but in reality. It has, quite literally, become the common intellectual property of the human race. Or that part of it, at least, that speaks and reads English.

But neither Joseph Heller nor any publisher who paid for the rights to publish his novel, ever sued anyone for doing so. Nor, if they had been dumb enough to do so, would they have won the case in court.

Although . . .

They might be able to win such a case today, if someone used the term in a digital format. The ongoing destruction of fair use by the ever-increasing application of DRM has just about reached that level of insanity. And if you think I’m kidding, there was a case not too long ago when a director of a documentary film was forced to pay a record company for “use of copyright” because, in her film, a teenager received a phone call on her cell phone, and the signal was a few notes from a popular song the rights to which were held by that record company.

(And the music recording industry wonders why everyone despises them . . .)

Those few notes took only about two or three seconds to be heard—which is just about as long as it would take you to write “Catch-22.”

In fairness to the letter of the law, even as it stands today, if that film maker had challenged the record company in court, she would probably have won. She’d probably have won hands down, in fact. The reason she chose not to contest the record company’s demand and pay them instead was a practical one. She was an independent film maker with a limited budget, and the company demanding their Danegeld was a giant corporation with a huge staff of lawyers and a huge bank account.

Today, with society’s wealth being increasingly monopolized by giant corporations and the legislators who stooge for those corporations passing ever greater restrictions on fair use, this has become standard operating procedure. Giant corporations who have the rights to intellectual property will file law suits or threaten legal penalties even in cases which are patently absurd—knowing full well that they’re far more likely to get a private settlement than they ever are to face a courtroom, because of the tremendous disparity in wealth and power between them and their victims.

When gangsters do this, it’s called “extortion” and the police will come after them. When giant corporations do it, it’s called “defending copyright”—and the police will do nothing. Even if they lose the case in court, on the rare occasions when a small fry challenges them, these giant corporations pay no significant penalties.

To go back to my example of the cartoon strip, it’s also clear enough what would not constitute fair use. If, for instance, you started making decorative magnets for refrigerator doors using that strip and putting them up for sale on the market, you would clearly be infringing the cartoonist’s copyright, or the rights held by a distributor.

That’s because insofar as there is any single thing that marks the boundary between fair use and genuine copyright infringement, it’s money. It’s one thing for you to “borrow” an intellectual creator’s work for personal or purely intellectual purposes. That’s fair use. It’s another thing entirely if you try to make money from his work without paying him for the right to do so, as long as his work is still under copyright.

Is this complicated, for Pete’s sake?

No, it isn’t. Sure, sure, there are some gray areas here and there. Big deal. There exists no law on the books concerning any subject that doesn’t have some gray areas, here and there.

And, until DRM started sinking its vampire fangs into society’s throat, even those gray areas were not all that hard to sort out legally. To give an example, if a student or scholar made a copy of a scholarly article on a duplicating machine for his or her own purposes, that’s traditionally been considered fair use. On the other hand, if the same person or a group of persons started duplicating large quantities of that same article for the clear and obvious purposes of not having to pay to get the legal copy, the courts were likely to rule that copyright infringement had occurred.

I’d have preferred using the simpler expression “xeroxed” a copy in the paragraph above, rather than the clumsier formulation I used. In the real world, where people actually live, the term “xerox” has been a common verb that long ago entered the public domain as a matter of fact, regardless of what the law says. I did not use it, however, because under the increasingly restrictive modern laws concerning all forms of intellectual property, Xerox Corporation might sue me for “trademark infringement.”

Yes, I know it seems silly, but that’s where our society is headed. And don’t let anyone tell you that what’s involved are deep and profound legal principles—no, it’s just greed—or that any of this is a new problem created by the digital era.

Hogwash. The practice of turning very familiar proper names, trademarks and copyrighted phrases into common words and terms is one that humanity has used for a long time, because it serves our purposes well. Some examples:

Using the term “spam” to refer to unwanted email is a new one, true enough, and was occasioned by the advent of computers.

But here’s one that goes back a century:

Using the term “ping pong” either as a shorter version of “table tennis” or simply as a quick phrase that nicely depicts any number of situations. (As in: “That poor kid. In the process of getting a divorce, his parents are batting him back and forth like a ping pong ball.”)

I’m concentrating in this column on issues of copyright, but issues concerning the proper use of trademarks and patents are closely related. The basic principle involved is the same: If you don’t allow a reasonable amount of fair use of these things, you might as well be tossing sand into a machine. The reason society values the work of its intellectual creators in the first place is because that work—or the best of it, at least—is valuable. But the only way it can be valuable is if there aren’t too many burdensome restrictions placed in the way of actually using the work.

Yes, certainly, part of that requires making sure that intellectual creators get paid for the work in the first place. I’ll deal with that in a moment. But the end goal, as I discussed in my first three essays, is society’s benefit. Remove that end goal, and all forms of intellectual protection like copyright, trademarks and patents start sliding into that black hole known as “natural property right.”

What’s “natural property right”? It’s the logic behind things like the increasingly vicious manner in which giant corporations are suing anyone else who uses their name for their own business—even if they name their business after themselves or were in operation before Gargantua Inc. was.

Many of these cases are utterly preposterous—but that doesn’t stop them from happening. First, because of the huge disparity in wealth and power that usually exists between the predator corporation and its prey. And, secondly, because the trend in modern intellectual rights legislation has been increasingly more restrictive of fair use, and increasingly friendlier to giant corporations and their ongoing intellectual land grab.

And what’s been leading the way in that land grab?

So-called “Digital Rights Management.”

For three centuries, there’s always been a seesaw both in society and the courts over the proper definition of fair use. It’s the advent of DRM that has tipped the balance so heavily against fair use.

Giant corporations have always been predators, it’s in the nature of the beast. You might as well expect a great white shark to become a vegetarian as expect Megacorp to run its affairs with any goal in mind other than maximizing their profits and to hell with anyone else or society as a whole. In fact, most economists going all the way back to Adam Smith will argue that’s what businesses should do.

Well, maybe. I won’t get into that, because the subject as a whole would take us far afield of the specific purpose of this column. But I will say this:

Be careful what you wish for. You may get it.

I read an amusing article once, written by a psychologist, in which he examined corporations as if the legal status they enjoy as “individuals” were actually true. His conclusion was that although small corporations usually had the personality imprint of their owners, who directly managed the business themselves, once corporations got big enough that connection became severed and “the corporation” developed a distinct personality of its own.

And it was, almost always, the personality of a sociopath.

Quite literally. Giant corporations have all the defining character traits of a classic sociopath. The main ones being:

  1. a) An inability to see other human beings as human beings, instead of objects. (In New Corporatespeak, these objects are called “consumers” if they are customers, and “associates” if they are employees—especially employees being paid minimum wage.)
  2. b) An inability to empathize with any pain another person might be suffering.
  3. c) In particular, an inability to empathize with any pain another person might be suffering as a result of the sociopath’s own actions.
  4. d) A bottomless capacity for self-justification, no matter how absurd.
  5. d) Finally, the willingness to inflict any level of pain on others, including extreme pain, for the pettiest gain. Just as a sociopath is willing to shoot someone to get $15 from their wallet.

So it is. But until DRM came along, these titanic sociopaths were kept fairly well leashed and muzzled, when it came to copyright.

No longer. Giant corporations seized on the advent of digital media as an excuse to launch a massive assault on the fundamental principles of copyright that have served our society well for three centuries, in order to replace it with concepts derived from the theory of “natural property right” that benefit no one except themselves, and are an increasing burden on society.

How did they do it? By advancing the claim that digital media eliminates the second of the two reasons that, traditionally, kept copyright owners from being too concerned about fair use.

Remember my cartoonist, toward the beginning of this essay? I said that there were two reasons he wouldn’t object to someone posting a copy of one of his cartoon strips on their office door.

The first was because, given the former state of copyright law, he couldn’t have done anything about it anyway. That kind of “infringement” was well understood to be fair use.

But the second reason was much simpler. It was to his personal benefit in the first place. He’d have to be a cretin to object.

Unless they are absolutely incapable of thinking clearly—which some are, admittedly—cartoonists and writers have always understood that, from a commercial standpoint, the principal effect of fair use has been to increase their public visibility. And thereby, indirectly if not directly, increase their income.

I mean, this is not rocket science. If a cartoonist’s strips start appearing regularly on office doors, or bulletins boards, or tool boxes, what happens? A certain percentage of the people who look at it for free like it so much they start following that cartoonist regularly. And would not have done so, without that fair use, for the good and simple reason that they didn’t even know the cartoonist and his work existed in the first place.

If an author’s books are readily available in public libraries, what happens? Well, gee, it doesn’t require a knowledge of advanced mathematics to figure it out. Some of the people who first get exposed to an author from library books, or used books, or books lent by a friend—all of which are traditional examples of fair use—will start buying that author’s work.

If not immediately, then at some point in the future. Fair use is and always has been most important for those members of society who are strapped for resources. Youngsters, first and foremost, who usually can’t afford to buy books at all, or at least not very many.

I do not know a single person who regularly buys fiction—including me—for whom the following statement is not true:

They got introduced to many of their favorite authors through fair use. Most commonly, from reading a library book.

Let’s take me as an example. I first developed an interest in science fiction at the age of twelve, from reading three novels: A Citizen of the Galaxy, by Robert Heinlein; Space Prison (originally published as The Survivors), by Tom Godwin; and Star Rangers, by Andre Norton.

Of those three titles, only one of them was purchased in a way that generated direct income for the author. That was Heinlein’s A Citizen of the Galaxy, which my mother bought and gave me as a birthday present. Heinlein would have derived a small amount of his royalties from that sale. (Very small, to be sure, but that’s how authors make their living, from the small royalties from a lot of sales.)

The other two I acquired through fair use. I found Norton’s Star Rangers in my high school library, and I bought a used copy of Godwin’s Space Prison.

I want to spend some time on the last of these examples, the Godwin title, because it’s a perfect illustration of the way that fair use has a serendipitous effect that, in the long run, greatly benefits intellectual creators like authors. In fact, as I will argue in a later essay, fair use is absolutely vital to an author’s income.

I first read Tom Godwin’s novel at the age of twelve. I had as much influence and power over society’s workings in those days as any twelve year old has. Which is not quite zero, but so close to it you’d need the social equivalent of an electron microscope to find it.

Forty years later, things had changed. I certainly wasn’t what you’d call one of the world’s movers and shakers, but at least in the field of science fiction I now had a measurable amount of influence. By then, I was a successful author and editor, and publishers—Jim Baen, anyway—were willing to provide me the money I needed to do something I’d wanted to do for a very long time.

That was to reissue the works of those authors I most liked, whose works had largely gone out of print, that I had first encountered as a teenager—all of whom I first encountered through fair use.

The project began in the year 2000, with the first of what would eventually be a seven-volume reissue of the complete works of James H. Schmitz: Telzey Amberdon. That book is still in print, by the way, as are all seven of the volumes. Yes, that’s a shameless plug, which I am cheerfully using this essay to make in my own personal interest. As editor of the reissue, I get a small share of the royalties from every sale of that book.

If anybody reading these essays thinks I’m not a working author and editor who is fully and completely aware that my livelihood depends entirely on copyright, you’re not living on this planet. I’m writing these essays for two reasons. First—and foremost, yes—because I think the issue is important for society. But the other reason I’m doing it is because, like all intellectual work of this kind, there are thousands of avenues by which income trickles into an author’s wallet. And this is one of them—even though I’m not directly earning anything from these essays.

Not only did I, as an editor, reissue all of James Schmitz’s writings—almost all of which were out of print, and the few stories still in print were in small print run collector’s editions. As an author, I also wrote (with Mercedes Lackey and Dave Freer) a sequel to Schmitz’s best-known novel, The Witches of Karres.

Yes, that’s also still in print. Selling quite well, in fact. The title of it is The Wizard of Karres and you can find it in almost any major bookstore in the United States. It’ll be filed under Misty Lackey’s name, since the credits read Mercedes Lackey, Eric Flint and Dave Freer.

(I love shameless plugs. Yes, I can do that—because I’m writing this essay. That’s how it works. With intellectual labor that can be easily duplicated, the distinction between “I got paid” and “I didn’t” is a lot more complicated than it is for someone who sells hardware.)

Keep in mind that because Schmitz’s original novel is still under copyright, his estate receives a portion of the royalties that Wizard of Karres earns, even though Schmitz himself didn’t write a word of it. And the book is selling well enough that Baen Books gave Dave Freer and me a contract to do another sequel. That will be titled The Sorceress of Karres, and—yup—the Schmitz estate will get some money from that too.

I’m also in the process of editing a resissue of most of the works of Christopher Anvil, at least four volumes of the works of Murray Leinster, almost everything Keith Laumer wrote before he suffered his stroke and the quality of his writing went to pieces—and, in 2003, Baen Books published a one volume reissue of Tom Godwin’s best writings, which I edited. (That’s The Cold Equations & Other Stories and it’s still in print also.)

As I said, that’s how it works. A book read by a twelve year old who could only read it because of the fair use provision in copyright law, became translated four decades later into a reissue of the best works of an author who’d been almost forgotten by the world at large, and almost none of whose works had remained in print after his death in 1980.

Of course, someone can now object that I’m cherry-picking my examples.

No, actually, I’m not. To be sure, these examples are very improbable, taken by themselves. How many twelve year old boys, after all, become authors and editors successful enough forty years later that they can do something like this?

“Like this,” in the sense of these specific authors, very few. But if you step back and look at publishing as a whole, the answer is that all editors—and probably all publishers—started off as twelve year old readers. And all of them, except for perhaps a tiny handful who were born into wealthy families who gave them very large allowances, first developed their reading interests using one or another of the fair use provisions of copyright law.

It’s true that you can’t predict the way any given little stream of water will flow across a sloping landscape, if there aren’t any pre-existing waterbeds. But you can predict with absolute certainty that if you pour water onto a sloping landscape, featureless as it may be, it will all flow downhill.

So it is with fair use. No author—nor the cartoonist of my opening example—can know ahead of time which specific instance of fair use of his work will wind up personally benefiting him. But what all authors—and all cartoonists—can know for sure is that a society that allows a generous and expansive amount of fair use will produce the most expansive market for them all.

To be sure, lately many authors have gotten panicked enough by the endless drumbeat concerning “digital piracy” that they’ve abandoned that solid old-fashioned logic and are today following the Pied Piper of DRM. But that’s their problem, not mine.

This essay is now long enough that I need to break off. Here’s the closing point. The claim made by the giant corporations who launched the assault on copyright and have been the mainstay of the campaign is this:

The advent of digital media makes it so effortless to copy an intellectual creator’s work that traditional notions of “fair use” have to be abandoned. In today’s world, any sort of “fair use” will inexorably and inevitably lead to wholesale violation of copyright.

Therefore, fair use must be banned entirely—or, at a bare minimum, have tremendous restrictions placed on it.

To paraphrase the charming words of Mary McCarthy, every word in the above statement is a lie, including “the” and “and.”

I will spend many essays on this subject—that is, the practical side of dealing with the challenges of electronic publication. In the course of them, I will demonstrate that the advent of the digital era poses no genuine threat to legitimate copyright and there is absolutely no reason to abandon the practice of fair use as it has developed in our society over the past three hundred years.

“Digital Rights Management” is itself a lie. All three words in it.

The term “digital” is an excuse—a scapegoat, rather—and the term “rights” is laughable, since what’s really involved is quasi-feudal monopolistic privilege.

But the biggest lie is in the last word. “Management.” The reality is that the only reason giant corporations insist on DRM is because they are run by grossly overpaid executives who have demonstrated over and over again that they are utterly incapable of properly managing their businesses.

The corporations themselves, psychologically speaking, have the mindset of sociopaths. What makes it still worse is that they are run by people who are either lazy, or stupid, or incompetent—and often enough, all three put together.

This ariticle was originally published in Jim Baen’s Universe Vol 1 Num 4, Dec 2006