From the perspective of somebody with a background in digital archiving, copyright is a squatter's right, defined by the ability to deny content to others.
The overwhelming majority of works are not Harry Potter, still sold, published, and making money. Most materials under copyright are not reprinted, not available, not distributed, with the rights no longer belonging to those responsible for its creation. But if an archivist tried to digitize it and make any of it available to their patrons without permission…wham! Infringement lawsuit.
The interests of digital archivists responsible for making information and materials available, and the interests of copyright holders, are directly at odds with each other.
This is very strange, because computer technology has advanced to the point that information and content are infinitely reproducible via computers. To use a Star Trek metaphor (both for accuracy and to get everybody in the right mood) a computer is like a food replicator. With enough power, it can make infinite copies.
To quote lawyer/advocate Eben Moglen, who may or may not have been a Star Trek fan:
"The great moral question of the twenty-first century is: If all knowledge, all culture, all art, all useful information, can be costlessly given to everyone at the same price that it is given to anyone — if everyone can have everything, everywhere, all the time, why is it ever moral to exclude anyone from anything?
If you could make lamb chops in endless numbers by the mere pressing of a button, there would be no moral argument for hunger ever, anywhere.
I see no system of moral philosophy generated by the economy of the past that could evolve a principle to explain the moral legitimacy of denial in the presence of infinite profusion."
"Copyright maximalists" who take the most extreme and controlling view of the function of copyright, try to phrase copyright as a moral issue, and make an overly simplistic comparison of copyright infringement to "stealing" a physical object, and argue that downloading is denying compensation to the creators.
This doesn't work because there's no 1:1 comparison between a downloaded copy and a lost sale. By that logic, a checked out library book equals a lost sale, and lending a book to a friend is a lost sale. Most of us discovered our favorite books not because we bought them outright but because someone lent them to us. In that sense, online copying serves the same function lending a book to a friend does: discovery.
As Cory Doctorow put it: the greatest enemy of creators isn't copying, but obscurity.
The "file sharing is stealing" argument gets even stranger when, in the case of some copywritten works, it makes you ask, "stealing from who?"
A perfect example would be the FASA Star Trek Starfleet Tactical Combat Simulator game, made under license by the game company FASA, printed between 1981 and 1989. The STCS occupies a strange niche between wargame simulation, board game, and roleplaying game, where, on a hex map, players take the role of competing starships battling each other.
These days, not only does FASA no longer exist, but it lost the license to print Star Trek materials. In other words, there is no way I could ever directly compensate the makers of the FASA Star Trek game, mostly because FASA ceased to exist. They no longer have the license and the materials are out of print. I could buy the game secondhand on ebay or find some dog-eared copy at an old game store, but in either case, FASA would receive no money for the same reason textbook publishers don't receive money for the sale of used books.
At the same time, I am very pleased to have found copies online of the FASA books and I have run the game with some friends and printed counters on a dry-erase hex grid. To put my discovery into context, keep in mind that I am not exactly this game's target audience. As someone who was not alive when the game was originally published and in its heyday, I first discovered and picked up a copy of the rule set because it was possible to do so online.
To my great delight, there are still some people keeping the Star Trek: Space Combat Simulation Game alive, almost entirely those who remember its heyday back in the 1980s. For instance, visit this website for the Star Trek Tactical Combat Simulator Database and Archive. The STCS archive explains its purpose like this:
Think of the STSTCSOLD&A as a nature preserve, designed to harbor a vanishing species of pencil and paper amusement. In a world now dominated by advanced computer games, the STSTCS is a beloved relic, akin to classic automobiles or vintage wine. In creating the OLD&A I am doing something similar to restoring a car, combining new parts with an old chassis, repainting the body panels and polishing the glass. As with most car restoration, the entire OLD&A project is a labour of affection, done solely for the sheer satisfaction of the thing. With my STSTCS game books slowly falling into shreds, I hope to preserve the essence of the STSTCS in a medium that cannot be dulled, dimmed, smudged, ripped, or otherwise folded and spindled by time. I also hope to bring a new generation of Trek fans into the Old World of gaming where mental activity, not processor speed, powers the action.
When copywritten material is totally lost, you're not just losing the material, but the culture around that material begins to disappear. Preserving materials is like preserving a culture. Mystery Science Theater 3000 can't obtain the rights to reprint some of the movies they licensed to spoof, so a longstanding piece of advice by Mike Nelson to his fans is to "keep on circulating the tapes." It's copyright infringement, sure, but it keeps a huge chunk of a fandom alive and saved from total oblivion. There are hundreds of episodes of Doctor Who that were thoughtlessly erased by accident by the BBC in the 1960s, which are only preserved now because fans saw fit to audio record the episodes as they watched.
Sadly, the one item most fans want most is the one item I cannot provide. At least half of all the letters I get are from relatively new and/or returning Trek fans who are just finding out about the game, or are rediscovering the game after a long time away from it. In both cases, people are desperate to try and get their hands on the game rules themselves, either because they never owned a copy of the game or because they were foolish enough to get rid of the game at some point in the past. While I would love nothing more than to provide each and every fan with a verbatim transcript of the entire STSTCS rules book, it came to my attention in 2001 that a third party purchased the rights to the rule system that the STSTCS is based upon. This third party is jealously guarding these rules and has already contacted other, older STSTCS sites in an effort to get them to take down any and all portions of the rules that have been posted on the web. So far nobody has been hauled into court, but I don't want to be a trendsetter in this regard so I am steering clear of this known legal iceberg.
That was written, by the way, in 2001, when FASA stopped printing and started licensing their intellectual properties (including famous pen and paper RPGs like Shadowrun). Since then, the company in question, which incidentally did not even create the rules and game system itself, has done absolutely nothing with the property. Does anyone still doubt me when I say copyright is at times a squatter's right?
This strategy is even more shortsighted when one considers that the future of any business model in the digital age is to directly create a personal relationship with fans, communicate with them, and give them a reason to buy. What possible reason could there be to get litigious with those who might be your greatest customers?
This is a shame, because if the FASA game was reprinted I would absolutely pay real money to buy a copy now that I know it exists. For one thing, rules are easier to consult at a gaming table if they're in printed book form, and it would be great to have "official" playtested game statistics to represent Next Generation and later era starships (due to the timeframe of FASA, only the original series is really well represented and detailed). Also, there haven't been any new FASA miniatures made since the 1980s, something people will pay for because there is a real scarcity, not an artificial one.
Because I got my hands on STCS files, a customer now exists in me (and my friends) that didn't exist before, and I am proud to talk about and promote the STCS.
What does all of this mean for digital archivists and information science professionals? Only good things, if they understand their changing role and required skill set. Institutions, like academic libraries and historical databases, should stop thinking about building their "collections," considering the spread apart, decentralized nature of modern content on the internet, and instead emphasize the reference skills of their own IS professionals to get patrons in touch with what they want, wherever it is and wherever it can be found.
