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trademark (if you’ve ever heard someone say, “You need to defend
a copyright or you lose it,” you’ve found one of these people who
confuse copyright and trademark; what’s more, this statement
isn’t particularly true of trademark, either). I once got into an
argument with a senior Disney TV exec who truly believed that if
you re-broadcasted an old program, it was automatically re-copy-
righted and got another ninety-five years of exclusive use (that’s
wrong).
So this is where copyright breaks: When copyright lawyers try
to treat readers and listeners and viewers as if they were (weak
and unlucky) corporations who could be strong-armed into li-
cense agreements you wouldn’t wish on a dog. There’s no con-
ceivable world in which people are going to tiptoe around the
property they’ve bought and paid for, re-checking their licenses
to make sure that they’re abiding by the terms of an agreement
they doubtless never read. Why read something if it’s non-nego-
tiable, anyway?
The answer is simple: treat your readers’ property as property.
What readers do with their own equipment, as private, noncom-
mercial actors, is not a fit subject for copyright regulation or over-
sight. The Securities Exchange Commission doesn’t impose rules
on you when you loan a friend five bucks for lunch. Anti-gambling
laws aren’t triggered when you bet your kids an ice-cream cone
that you’ll bicycle home before them. Copyright shouldn’t come
between an end-user of a creative work and her property.
Of course, this approach is made even simpler by the fact
that practically every customer for copyrighted works
already op-
erates
on this assumption. Which is not to say that this might
make some business models more difficult to pursue. Obviously,
if there was some way to ensure that a given publisher was the
only source for a copyrighted work, that publisher could hike up
its prices, devote less money to service, and still sell its wares.
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