Prohibiting the Useful Arts?

From the U.S. Constitution:

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

There are plenty of arguments to be made regarding how this clause does not help artists and inventors, but lets pretend for the sake of argument that it does. My understanding is that there are two ways in which patents and copyrights are supposed to "promote the progress of science and the useful arts."

The first and most obvious is by giving creators an economic incentive to create by granting them a temporary monopoly on the reproduction of their work. The second and not as often discussed point is that it theoretically allows for more open information. Anybody could look at a copyrighted work or at schematics of patented works. The authors wouldn't have to worry about their work being "stolen" and others could be inspired by designs their predecessors tried, or ideas previous writers discussed. Thus these laws would promote science not only by granting an economic incentive to creation of new and useful things, but also by discouraging the hording and hiding of ideas. As for whether this is the historical outcome of U.S. copyright and patent laws or whether or not it has tended to hurt those it is meant to help I'll leave that for others to argue for now... feel free.

The point I'm getting at is a little more mundane.

Enter the Digital Millenium Copyright Act: Sec. 1201. Circumvention of copyright protection systems

`

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--

`(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

`(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

`(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

`(3) As used in this subsection--

`(A) to `circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and

`(B) a technological measure `effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

It seems to me that the U.S. copyright and patent laws should be discouraging the use of technology that limits access to copyrighted works. Of course part of the problem is that "access" in the past would have meant your eyes seeing it. Now copying and reproducing is an even simpler matter than viewing the material itself. Thus in order to protect the government granted economic incentive of artists (writers, producers, musicians) to create, i.e. their temporary monopolies on the reproduction of their work, congress must combat rather than promote that same openness and sharing of information that was thought to be so great for the progress of science and technology.

They do this by protecting technologies that restrict access to protected works, and by prohibiting techonologies that would circumvent or override the restrictive ones. Of course this does not apply to all copyrighted and patented works, only those in which it makes sense to have such techonology - dvd's, video games, computer software, etc. But how long will it be before we run afoul of the DMCA when we crack open a book on our computer?

What was once two sides of the same coin is now the two opposing sides of an informational war. On one side you have academics, researchers, computer scientists, hackers, students, and some unknown number of kids sitting in front of their home computers, and on the other side you have singers, musicians, record labels, movie producers, publishing companies, computer and software companies, electronics companies, etc.

The government granted economic incentive to create is no longer the means to an end but the end that is sought after and fought over.

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Theoretically there's always

Theoretically there's always at least one "legitimate" use for products designed to defeat copy protection: the copying of material which was legally protected at the time of purchase, but for which the copyright has expired at the time of copying.

Of course, since Congress has decided that they can retroactively extend copyrights and the SC has given them the big thumb's up, it's possible that no copyrights will ever again expire.

The problem with this line

The problem with this line of reasoning, I think, is that the whole "free exchange of ideas" thing really only applies to patents. Copyrighted works generally are not "ideas" or "information" in any meaningful sense of those words---they're entertainment products.

Scientific and technological progress may be helped along by open access to the details of how novel inventions work, but the future of Western culture doesn't hinge on my ability to download a copy of "E-Mail My Heart" (I suspect that Randall was putting us on with that one, but I'm afraid to check) for free.

I'll grant that some books, and even some video and audio footage, are more about information than entertainment, but when you really need those, it's not as though access to them is very highly restricted. You can buy them---usually for a reasonable price---and you can usually even borrow them from a library for free. And as far as I know, information and ideas can't be copyrighted---only a particular expression of them. So once you read the book, you can freely spread the ideas and information contained therein, as long as you express them in your own words.

I have some concerns about this clause of the DMCA, particularly for the reason George Weinberg mentions above, and also because it prevents making copies in different formats for personal use, but I don't see that this poses any great threat to the free exchange of ideas or the progress of the arts and sciences.

Coincidently I was thinking

Coincidently I was thinking about copyright earlier tonight. Before any government codified copyright we had contracts. That appeals to me at one level, but I noted a problem with that tonight. The typical copying contract would prevent you from copying a work or invention forever. The creator would have no incentive to do otherwise, and that sounds a lot like today's copyright law.

In light of that, the reason why government would want to codify copyrights would be to prevent the creator from placing his work under lock and key forever. I'm not a legal expert, but doesn't law trump a contract?

Here in the US it was invested in Congress to strike a balance between the creators and their fellows. It is a door way for the government to allow unlimited copying of a creation which would have been prevented under your typical copying contract.

The typical copying contract

The typical copying contract would prevent you from copying a work or invention forever.

Then the typical copying contract would be invalid, since upon the death of the copyrighter the contract becomes void. Relatedly, it's hard to see that my children would be bound by the terms of a contract they never signed if they rummage through my library after my death.

A whole category of

A whole category of copyright which I think is ethically wrong is that of file formats or formatting of devices such as hard drives. What this kind of copyright means is that someone else is able to take my personal property, the products of my hard labor, and hold it hostage inside their format.

Are you referring to, e.g., the time Unisys enforced its patent on LZW compression several years after it had come into widespread use in the context of GIF images? That's really more a patent issue than a copyright one.

IMO, patents should, like trademarks, be lost if not protected vigorously, precisely to prevent situations like this, where a company stays quiet about its patents until people start relying on it, and only then starts to enforce it.

"useful arts" -- it seems to

"useful arts" -- it seems to me that the framers of the Constitution did not have the entertainment arts in mind with this phrase. More likely what we would consider to be engineering and design of machines. There is no copyright on Whistler's Mother, in the sense that one can make a fake version of it, as long as you do not present it as a work of Whistler. I was amazed at the fact that at the Gare de Lyon in Paris, there is no restriction to taking photographs of whatever Impressionist work you would like, only that you cannot use flash.
And there is a selectivity to complaints about infringement. A movie producer/director is commonly said to be "paying homage" to someone else in the field to describe blatant copying of scenes, dialogue, or other facets of the production.

The problem with copy protection is that it doubles as a control on using the product that I have legally purchased, and therefore a form of collusion between producer of the product that I have purchased and machines that can display or play it.

A whole category of copyright which I think is ethically wrong is that of file formats or formatting of devices such as hard drives. What this kind of copyright means is that someone else is able to take my personal property, the products of my hard labor, and hold it hostage inside their format.

Finally, computer programs. Computer programs can be interpreted as simply being a set of instructions, like instructions you might give someone to get from one place to another. A verbal map, if you will. Just as there are only so many useful ways to get from point A to point B, programs tend to have similar procedures. Many think that mathematics is a kind of "universal truth", and that those who come up with new methods and formulas are really just discovering those relationships that were already there. Given the constraints of programming, writing programs is in many ways also a discovery of a method to use programming for a particular purpose.

After thinking about it, the

After thinking about it, the Impressionists may actually be in the Gare du Nord.

Stefan wrote: Then the

Stefan wrote: Then the typical copying contract would be invalid, since upon the death of the copyrighter the contract becomes void. Relatedly, it’s hard to see that my children would be bound by the terms of a contract they never signed if they rummage through my library after my death.

What about if the copyrighter is a corporation? It's unlikely to die, and I'm sure there would be provisions to transfer the contract. I'm sure with a good contract to prevent a person from freely copying a work, that any royalties and/or restrictions would be perpetual.

As far as my family inheriting works that I've licensed, there's also the chance that a corporation would only license their work out to other corporations to prevent such things or the license would extend to my estate.

Those are probably a few of the requirements of my own copying contract that I would want.

What about if the

What about if the copyrighter is a corporation?

I checked and apparently Kinsella has argued that corporations can plausibly enter into contracts under libertarianism, so you might have a point. Rather, I suppose you could alter the original example and have the seller stipulate that ownership passes to a certain person or group upon the seller's death and get the same amount.