Section 10.1. From Movable Type to MovableType

10.1. From Movable Type to MovableType

A balanced copyright law is enshrined in the U.S. Constitution: "to promote the progress of science and useful arts," Congress was empowered to grant authors exclusive rights "for limited times." The monopoly created was limited in time and scope. The first copyright law gave authors a 14-year term, renewable once, to publish and vend maps, charts, and books. Copyright protected original expression for a short time, while leaving others free to build around that expression (translations and dramatizations, for example), and then to recycle works entirely from the public domain once copyright expired.

Copyright law has changed with the introduction of new technologies. New means of reproduction often first challenge the copyright framework, then establish themselves as new creative tools for authors and their public audiences alike. At the turn of the last century, printers bought single copies of sheet music and punched holes into rolled paper to program "piano rolls" for then-new player pianos. Composers and music publishers sued, seeking to rein in this appropriation. When the courts held that punched paper didn't "copy" inked notes, Congress updated the law with a compromisenot to ban player pianos or mechanical reproduction, but to permit anyone to produce piano rolls if they paid a "mechanical license" royalty for every roll sold. As the player piano market grew, more music reached more people, and more composers got paid for creating it.

The pattern has repeated itself many times since. Songwriters and performers denounced radio until both found that it could promote sales. Movie studios deplored the videocassette recorder, saying Sony's Betamax would be the "Boston Strangler" to their industry. When they failed to shut Sony down, however, the industry converted its peril into a profit center, finding that viewers with home recorders were potential customers for rentals and sales of appropriately priced videotapes. Meanwhile, the Supreme Court's ruling that technology makers would not be liable for users' copyright infringements so long as their devices were "capable of substantial noninfringing use" fueled a technology boom. The public and the creators shared the benefits of new technologythe public could record movies from television to videotape; studios could sell or rent videocassettes more easily than reel-to-reel.

Despite making it through these earlier transitions, the entertainment companies haven't stopped fighting technological change and the competitive threats it represents. The MP3 player is a slightly more convenient cassette deck, and the weblog is just the next step forward from the typewriter and mimeograph. This time, however, the entertainment industry has swayed many in Congress and the courts to the view that "digital is different," and induced them to change the law in ways that are different and dangerous.

This expansion of copyright's control interferes with open source development. The changes manifest themselves in layers, most notably overassertion of protection for code itself; excessive protection of other copyrighted content that code is dealing with; and misuse of copyright to control markets and maintain cartels in technologies of distribution or manipulation of code and content. Together, the copyright layers build a shell around not only proprietary code, but also around culture and innovation.