5:34 PM

I recently had a frustrating conversation about copyright with a good friend of mine. Fred and I have similar attitudes on a wide range of political and philosophical issues, so it was distressing to realize that he generally favors long copyright terms and strict control over derivative rights. Many people have similar attitudes to his on copyright, so those of us who want weaker copyright laws have to get better at presenting our arguments if we want to see real change.

The conversation started on the question of whether downloading music is right or wrong, but it quickly spread to a discussion of copyright in general. It covered a lot of ground and I'd like to repeat some of the key topics of discussion here.

The first thing that came up is that Fred is focused on morality while I'm focused on legality. At this stage I feel that I generally understand what the law is and what I would like for it to be. I have less concrete answers to the moral issues of copyright. As I see it, behaviors shouldn't necessarily be illegal just because they are immoral. Some uses of copyrighted works should not be illegal regardless of whether or not they are immoral because the harm done by criminalizing them is worse than the harm of the actions themselves. In some cases, I have remained basically undecided on the morality of certain actions because I think they shouldn't be illegal regardless. This has left me unprepared for certain discussions of the morality and copyright issues.

The example we worked with in our discussion was the Star Wars movies. We are both big fans of the original Star Wars trilogy, think The Empire Strikes Back is one of the best movies ever made, think the Special Edition versions released in 1997 don't add anything to the originals at best, and are very disappointed by the first two movies of the prequel trilogy. This gave us a common ground to discuss copyright issues based on the movies.

One of the major points of disagreement that we have is the duration of copyright, especially as applied to derivative works. Fred believes that the purity of the Star Wars story should be maintained until it has mythical status and other people should not be able to create Star Wars movies without George Lucas' permission. My belief is that Star Wars has been around for over 25 years and if other people want to create Star Wars stories which diverge from what Lucas has done, they should be able to do that. At my more extremist moments, I doubt that there should be any copyright protection for derivative works.

Fred responds by asking about the possibility of someone other than Lucas creating Star Wars Episode 7. We agree that any movie following up on Return of the Jedi is wholly unnecessary and if someone else made a sequel to it, not only would it likely be bad, but it might even be so bad as to damage the reputation of the original Star Wars movies. Fred finds this intolerable. I have more faith that the public would adopt knock-off Star Wars movies if they are good and reject them if they are poor. For that matter, Lucas has damaged Star Wars himself with his prequel movies. Hearing Ben Kenobi tell Luke about the Force just isn't the same now that we know about midichlorians.

Fred's response is that Lucas has the right, as the creator of Star Wars, to screw it up, but other people do not have that right. Besides, if there was no protection of derivative rights, someone could have made Star Wars 2 immediately after the first movie was made and prevented Lucas from making The Empire Strikes Back. I am less convinced that this is a real threat than Fred is. First of all, a Star Wars 2 would not have prevented Lucas from making Empire, although I think it might have made the movie more difficult. If the other movie had succeeded, it would have put pressure on Lucas to respond to it and it might have reduced the commercial success of Empire because the two movies would have competed with each other.

I think Star Wars 2 would have had a very hard time succeeding because it wouldn't have the credibility of a movie by Lucas. Furthermore, I think this possibility would be an incentive for more creation. If Lucas wanted to control the Star Wars setting, he would have to keep creating new movies. Otherwise, someone else could step in. I pointed to Don Quijote as an example of this. When Miguel de Cervantes wrote Don Quijote, copyright protection did not extend to derivative works and another author created a sequel. In response, Cervantes wrote his own sequel in which he repudiated the other author's work. What we think of as Don Quijote today is the combination of the two books Cervantes wrote, while the work of the other author has been forgotten. This did not convince Fred, who is worried that this would force authors to create sequels to what had been intended as stand-alone stories just to prevent other authors from writing their own sequels.

One issue that I did not bring up is the interaction between copyright and trademark. This might serve to reduce the confusion between versions that Fred fears. If Lucas controlled the trademark on Star Wars but not the derivative rights, then other people would be free to create movies set in the Star Wars universe and use the characters, but they would not be permitted to call their movie "Star Wars." This would reduce the incentive to create sequels in an attempt to cash in on name recognition while permitting more creative reuse of existing materials than is available today.

Speaking of creative reuse, I argued that Star Wars is itself an amalgation of existing ideas. I asked Fred whether he thought it was fair that Lucas used ideas from Joseph Campbell and Kurosawa, among others, but that new creators aren't free to reuse Lucas' work. Fred's response was essentially that Star Wars reuses abstract ideas in a concrete way and that it would be wrong to reuse the concrete ideas of the movie.

Another sticking point is in what I see as abuse of copyright. Since Lucas completed the Special Editions, he has surpressed the original versions of the movies. Fred and I have both gone as far as buying Laser Disc players and the original movies on Laser Disc because Lucas has said that he will never release the original versions on DVD. More recently, Lucas refused to allow the original version of Star Wars to be shown at a film retrospective. I think this is indefensible. One of the reasons why Star Wars had the impact it did in 1977 was the special effects, and insisting that a film retrospective show the version with 1997 special effects is immoral. Fred agrees that it is wrong, but he thinks Lucas has the right, as the creator, to control which version is shown. Like Disney deliberately releasing old movies on DVD for a few months and then pulling them from the market, I think this is wrong and an absolute abuse of copyright. Copyright exists as an incentive to the creation of new works and using it to suppress older works, as Lucas and Disney do, should not be permitted.

One point of agreement for us is copy protection. Fred thinks that once a customer purchases a copyrighted work, the customer should have free use of the work. Copy protection that interferes with this use is immoral and the customer should have the right to defeat the copy protection. This hit home from Fred when he considered watching movies on his laptop. He would like to be able to copy movies to his computer so he wouldn't have to worry about the DVD when he travels, but copy protection interferes with this. He thinks that he should have the right to override copy protection which prevents fair use.

I decided not to try to make the argument that what he is asking for is a personal use, not a fair use. To my mind, fair use applies to publishing a work that makes use of another work while all uses of copyrighted material short of publication or otherwise making them publically available are personal uses and should never be subject to the control of the copyright holder. I decided that since we agreed on the outcome, that's a distinction I didn't have to make at the time, but I think it is an important distinction that people should be generally aware of.

The truly frustrating thing in all this was that at the beginning of the discussion, I set out the differences between the utilitarian model of copyright and the artist's rights model, and Fred had no problems agreeing in principle to the utilitarian model. In practice, however, he returned to the artist's rights model again and again and didn't understand why I didn't agree with him. He made the point that personal ownership is highly valued in American culture and that I am essentially arguing against that ownership. I agree with him on that, but I believe ideas are essentially unownable, and arguing about copyright on an ownership basis is starting from false premises.

I'm painfully aware, however, that although I think they are false premises, Fred does not, and many people agree with him. Changing copyright law will require changing that thinking. In this case, at least, I was unable to do that. Changing the laws is a fight we can't win unless we get better about changing ideas for the basis of copyright.

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