The Other Shoe: or, Copyright and the Reasonable Use of Technology

by John M. Frame

 

Twenty years ago, when photocopiers first began to be common in church offices, religious and music periodicals began running articles warning us of the danger of violating copyright laws, especially in making transparencies of songs, publishing the words of hymns in bulletins, etc. The stream of such articles continued unabated for some years, and one continues to read them from time to time. Indeed, one can hardly ever pick up a piece of church music without reading stern warnings about the consequences of illegal copying. Indeed, one music publisher where I used to live regularly sent out vaguely threatening letters to all the local churches on this matter. It is hard to believe that they actually thought this sort of practice would improve their business; my own inclination is to steer far away from any involvement with such a company. But from another point of view, this publisher’s efforts were only a tiny sound amid the din of voices moralizing and legalizing about copyright.

The issue has come up again more recently in connection with web sites enabling customers to share music files with one another. Courts have ruled that free downloading constitutes violation of copyright, and some such sites have had to go out of business or to set up a system of payment.

In all this time, I waited eagerly for the other shoe to drop. It has seemed inevitable that some article, somewhere, would advocate an obvious alternative. For it is possible, after all, in our democracy, to get lawschanged. We are not constrained forever to meekly acquiesce to a system which continually threatens us with grave consequences, even for innocent oversights, on dubious moral grounds. Perhaps I have not read the religious press as carefully as I might have, but I have yet to see any article on this subject advocating anything other than groveling compliance. Hence I must drop the other shoe myself.

It might be interesting to ask why, on this particular issue– surely an issue on which reasonable persons may differ– articles in favor of legal change have been so few and far between. One thought naturally occurs: religious and music journals are, after all, publications, and are therefore controlled by publishers. Publishers are interested parties in this particular discussion. I will, however, say no more on that subject except this: that anyone who publishes the present essay will win the 1991 Frame Award for Journalistic Impartiality.1

First, let me say up front that I am not urging anyone to break the law as it now stands. I try to adhere to it scrupulously (and I did in my years as worship leader in a local church), and I would urge others to do the same. Romans 13 tells Christians to be subject to the civil powers, and there is no argument in the present context for making any exception to that principle. My point is rather that we should exert our political influence to make a few changes in the present law and/or in its application. Alternatively, we should encourage publishers, copier manufacturers, composers, authors, and other interested parties, to seek a better arrangement, a more reasonable use of technology. Here are arguments which I believe should carry some weight:

 

1. The Basis of Copyright Law

The “meek acquiescence” literature rarely speaks about the purpose or value of copyright law. Rather, it usually just sets forth what the law is and what the punishments are for disobeying it. But if we are going to raise the question of what the law should be, we must ask broader questions.

Laws are generally of two sorts: laws of morality and laws of utility. The former seek to enforce eternal moral principles: laws against murder and theft are examples. The latter merely seek to improve our quality of life in some way, even without the sanction of eternal moral principles. For example, there is no moral principle (in Scripture or anywhere else that I know of) requiring Americans to pay tariffs on imported goods. Whatever one’s view of tariffs, the justification of them is not essentially moral but is rather society’s desire to help someone (such as American industry or the U. S. Treasury). I do not deny that in that desire to help someone there may be some (true or alleged) moral motivation; but no one would claim that societies which lack such tariffs are ipso facto in violation of moral law. Even if American society is morally required to make American industry competitive, which I doubt, there are ways of aiding it other than tariffs; so tariffs are not as such required by morality.

Now what kind of law is copyright law? The literature sometimes describes copyright violation as “stealing,” and that would put copyright law in the moral category. But that is not at all obvious. When a carpenter makes a table and sells it to me, I then become the owner of the table. I can make another table like it, if I have the skill to do so; indeed, I can sell the table and its “copies” to someone else, even at a profit if that is possible.2 But copyright law insists that when I buy a piece of music I may not make additional copies (without permission), nor may I sell the originals or copies to anyone. If copyright were a moral issue, that same moral issue would arise in the case of the carpenter: morality is not a respecter of persons, for God is no respecter of persons. Why does the law give privileges to publishers (“ownership rights” of publications which continue even following their sale) which it does not give to carpenters and others?

The response to this objection, heard even more often in the discussion of copyrighted software, is that when we buy music, we are not actually buying the music, only a limited use of it. Similarly, when we buy software, we do not actually buy the software, only a “license” to use it in specified ways. Objectors say that this is a perfectly legitimate arrangement between seller and buyer, more like a rental than an actual sale.

But anyone who clicks “OK” to a software licensing agreement enters into a hugely complicated legal tangle. These agreements are written in legalese, with many abstruse provisions that most users are not able to understand. One must really question whether legal entanglements of this sort are just. The Law of Moses is straightforward, understandable. If someone pleads ignorance of the law, it is reasonable to say that such ignorance is no excuse. But modern copyright law is full of abstruse provisions designed to play “gotcha” with the unsuspecting licensee.3 How can this kind of legalism possibly be justified as a moral principle? Is it moral to sell rights to the use of something that are so qualified that the buyer has little idea of what he is buying, and risks all sorts of legal exposure?

Further, if the issue were one of morality, copyrights should never expire. If it is morally wrong to copy a piece of music in June of 1989, it is also morally wrong to copy that same piece of music in June of 1990. (Moral principles, by their very nature, are eternal, as God is eternal.) But in the present law, copyrights do expire. A piece that is under copyright in 1989 may be in public domain in 1990. The case is very different with theft. My ownership of my belongings does not exist only for a time arbitrarily specified by law. It exists until I sell or give away the belongings, or die.

Finally, this cannot be a moral issue, because it is impossible to derive a doctrine of intellectual property from biblical principles. Indeed, the biblical writers regularly quote one another freely, with sometimes only the vaguest acknowledgements, if any at all.

Indeed, the more thoughtful apologists for copyright law do not claim a moral sanction. Rather, they rest their case on utility, arguing that society has an interest in giving special aid to authors and publishers (thus encouraging free expression), just as many have argued that tariffs aid local industry. This assertion, however, is highly debatable. For one thing, where does it stop? If society gives special benefits to one industry, why not to all? If it gives special benefits to authors and publishers, why not to carpenters?

For another thing, however, I doubt if copyright laws are a very efficient means of encouraging free expression. I do not doubt that copyright laws are a boon to publishers; but I don’t think they help authors very much. Usually the apologist for copyright focuses on the benefits for authors,4 expecting readers to sympathize more with authors than with publishers. But I have seen the issue from the other side, for I hold copyright to ten books. Writing theological books is very unrewarding financially, and I can’t believe that copyright makes any positive difference. Public domain books (such as the republication of classics), if the public wants them, can be very profitable; copyrighted books can be similarly unprofitable.

But for a Christian, the bottom line has to be that Scripture nowhere gives government the right to exercise this kind of favoritism. Indeed, for government to penalize consumers in order to give special benefit to an industry might well come under the biblical definition of theft. I am inclined, incidentally, to regard most “utility” laws as in this category, including tariffs.5

 

2. The Reasonable Use of Technology

Similar issues have arisen with other recent technologies. When Video Cassette Recorders first came on the market, broadcasters were threatening to arrest any VCR owner who reproduced material under copyright, even for his/her own private, non-profit use. But of course it was unthinkable to imagine police entering people’s bedrooms, arresting them for making what certainly seems to be a reasonable use of technology. Eventually the VCR manufacturers and the copyright holders got together and some agreement was reached that did not keep ordinary people from doing what their equipment was designed to do. Of course, if the copyright owners had a moral right on their side, such negotiation would have been morally inappropriate. But as we’ve seen; copyright is not a moral right, but a special privilege. Special privileges can be negotiated, and in this case the owners were wise to accept negotiation lest their privilege be removed altogether by an outraged public.

There was also a time when computer software manufacturers spared no expense to “copy-protect” their products under copyright. The law was on their side, of course. But eventually copy protection schemes were matched by equally ingenious software programs intended to bypass copy protection. Further, many software users avoided purchase of copy protected software because computer disks do deteriorate and there are many situations in which computer workers have a legitimate and immediate need for copies of disks. So there was a period in which copy-protection was rare. More recently, however, there has been a swing back to something like the original system. Now one often cannot use a program disc unless it is licensed with the manufacturer. But the popularity of freeware programs suggests that the value of licensing and copy protection should not be taken for granted.

It may not be true that “you can’t stop progress;” but technological progress is hard to stop. And in the above cases copyright privilege has had to yield somewhat to a reasonable use of technology. Why has this not happened in the case of churches who wish to make copies of music? Surely to a Christian it should be just as unthinkable to allow police to search church files for illegal copies as it is to allow police into people’s bedrooms to search out illegal video tapes. Yet no VCR owner has ever been arrested for copying TV programs for his own use, while some churches have had to pay massive fines for making unauthorized copies of music. This may be part of the Christian-bashing which is unfortunately too prevalent in modern society. Certainly, however, Christians should not stand still for it. We have rights in a democracy, and we ought to assert them. We should insist that freedom of religion is at least as important as the “right” (actually the special privilege) of a publisher to extract the last possible penny from his enterprises.

Surely it is not reasonable, when photocopy technology is at our disposal, for a church secretary or music director to have to spend half of his/her time locating copyright owners, writing letters, sending out checks, wondering how long it will all take before the church can sing a particular song, even when this process results only in tiny benefits for the copyright owner. Christian Copyright Licensing, Inc., has aided this process enormously, to be sure, and I would definitely recommend their service to churches that use hymn transparencies, etc.6 They have arranged with many copyright owners to grant CCLI members permission to copy the words to hymns under certain circumstances. But CCLI charges annual fees which are too large for some churches. Further, in my view, CCLI’s own restrictions on the use of copyright materials are not always sufficient to allow reasonable use of technology. At present they do not permit the copying of music for instrumentalists and lead singers. And besides that, their literature is full of those threats about even inadvertent breaking of the law. Frankly I am getting tired of reading that stuff. A Christian organization (which CCLI claims to be) should seek the interests of the body of Christ, rather than the publishing industry. CCLI should be seeking to get the laws changed, rather than betting its own future on the maintenance of the status quo.

A far better solution, short of actual legal change, would be to have the photocopier manufacturers negotiate with the publishers to find a compromise that will allow photocopier owners to make reasonable use of the technology. Failing that, the law should be changed to allow churches to make transparencies of the words to songs, to publish such words in church bulletins, and to make copies for accompanists of the music and words to songs that cannot be purchased individually.7 Restrictions on copying permanently out-of-print music should be removed altogether.

Another way to a better situation would be this: just as some software manufacturers dared to produce non-copy-protected products and those came to dominate the market, so some enterprising publisher of Christian music might publish a book of widely used songs with permission to copy included in the price of the book. That is, the publisher, not the purchaser, would go through the difficult work of obtaining copy permissions (preferably with the kind of liberal conditions described above) and would add an amount to the price of the book to compensate his/her company and the copyright owners for this privilege. Such a book would be expensive, but not as expensive as it would cost a church to buy hundreds of copies, nor as costly in time or money as it would be for individual churches to make these arrangements themselves. It could be that, just as non-copy-protected software has become common, so copy-permitted music books might come to dominate the hymnal field. It could be that eventually the price of such books will come down as authors, composers and publishers come to recognize the economic value such an arrangement.8

Even more radical would be this proposal: that some composers, authors and publishers contract to publish music that is to remain in the public domain, with no copyright at all. Who can say that this would not be the best of all possible worlds?9

Well, such solutions seem reasonable to me. But we need more dialogue on the subject within the Christian community. My main purpose in writing has been to stir up such dialogue, rather than to have to endure forever the monotonous one-sidedness of the literature we have seen so far.



I awarded that prize to Antithesis magazine, which published an earlier form of this article, 2.4 (July-Aug., 1991), 10-12. That publication went out of business, not solely, I trust, because of its decision to publish my article.

I realize that sometimes a design for a table can be patented. Patents, of course, raise the same problems for me as copyrights. But for now, let us consider the simpler case, where patents are not involved.

I realize, of course, that the same objection may be lodged against many other contemporary laws, especially the horrendous federal tax code. What this principle requires in fact is a thorough overhaul of the modern legal system.

Or, in the case of recorded music, with artists and composers.

A utility law, as I have discussed it, is almost necessarily a law without scriptural sanction. If it had scriptural sanction, it would be in the moral category. This is not to rule out laws which, e.g., require motorists to drive on one side of the road. That might seem like a “utility” law, but it is in fact an application of a scriptural moral principle, namely the sixth commandment– our obligation to guard others against unjust injury and death.

Write CCLI, 6130 NE 78th Ct., Suite C11, Portland, OR 97218.

We still have the problem that publishers expect a church to buy books of 350 songs in order to have three or four songs that the church really wants to sing. That is simply unfair.

As I said earlier, many public domain books do sell, and they do make money. I suspect, indeed, that under the system I have suggested, there would be an additional benefit beyond the economic: there would be fewer books published and a higher percentage of them would be of good quality. That has been the case, e.g., with present-day publication of books from previous centuries.

My guess (and it is no more than that) is that under this arrangement a composer would contract with one publisher for the right to publish his song first. After that, those who want to publish the song would compete freely to produce it in the best selling format (much as many manufacturers compete to market the same cheese) with no legal impediments. If the song becomes popular, the composer will benefit from much greater exposure and more advertising than the song would likely receive under a one-publisher-only system. Then he will be able to offer his next song to a “first publisher” at a higher price. Again, I suspect that under this system fewer songs would be published, but those that are published would be well-compensated. And frankly, I consider it an advantage to the churches to have fewer songs published, with, presumably, greater quality.