Why is a song that I play digitally or a book I read electronically subject to extensive controls that are not considered appropriate to records or books? It’s because they are subject to licenses that can’t be applied by the seller to the physical works. Why can those licences be imposed on digital works? Because the use of digital works is considered subject to copyright, whereas the use of physical works is not. Why is that? Because the act of instantiating the work for use has been described as “copying”, allowing the rules surrounding copyright to be used as a threat to back up arbitrary license terms controlling use.
When I buy a physical work, the act of selling it “exhausts” all the control over normal enjoyment of it that arises out of copyright and the entity who created it no longer has a say on how I enjoy it – they can’t demand I accept a license as a condition of use. But with a digital work, because each act of instantiation-for-use is called “copying” rather than some other name analogous with the physical world like “wrapping” or “inserting”, we’ve created a hook for the idea that a new act controlled by copyright law has taken place after the first sale of the work.
The control of the work is thus never considered exhausted and the copyright administrators are able to absolutely and indefinitely control use, including uses that save backups, uses that involve networks, uses that involve passing the work to a friend temporarily or to anyone permanently, uses that enrich society without endangering the author. All uses you’d naturally expect from something you had bought.
Controlling Culture
This control over those enjoying and using cultural works was neither precedented nor anticipated by legislators, so the basic law involved includes no attempts to balance the needs of society and of creators of works where digital works are concerned. Instead, the only limit on the controls imposed on users is the imagination of the businesses administering copyrights. The focus of that imagination is naturally the maximisation of income and control, even to the extent of creating scarcity artificially where it does not otherwise arise, so that the maximum number of control points exist for monetisation.
But even worse, the penalties the law provides for breaching those fanciful licenses are also unbalanced. They’re intended to punish people who unlawfully mass-manufacture, not those whose cultural enjoyment breaches some unreasonable-but-legal license. As a result they unjustly — but legally — apply overwhelmingly disproportionate punishments to ordinary citizens.
The licenses so devised are complex beyond the understanding of the untrained, they include arbitrary terms and restrictions, they are frequently and arbitrarily changed. All of these dimensions happen without any need to balance the needs of culture or citizens, since neither is a stakeholder for the copyright administrator. There’s no backlash because there’s little expectation of enforcement; all the same, automated enforcement is becoming increasingly common. When a market is controlled by unrestrained licensing rather than by statute that’s a clear DNA marker for malaise.
So where did we go wrong? We mistakenly allowed the technical term for moving bits between buffers to be assumed to be equivalent to the term used by authors and other makers for creating a new original work for sale. They simply aren’t the same act, and the laws that have accidentally bled from mass production into cultural enjoyment are simply not fit for that purpose – how could they be? When we said “copy”, we screwed up and it’s that error that really needs fixing.
[A revised version of this was posted to ComputerWorldUK on March 7, 2013]
Wild Webmink 
Very interesting – thanks Simon!
Unfortunately, as there is legislation which references (and exempts) transient copies, the assumption would be that all other copies not coming with in the definition of transient copies were intended to be covered by copyright.
It’s also worth bearing in mind that, if you memorise a poem, the unlawful act of copying only occurs when you write it out, not when you memorise it. Given that there is undoubtedly a copy of it in your head somewhere to enable you to copy it out, and that no one has suggested that the copy in your head is subject to copyright, then by analogy, a copy in computer memory should be regarded as something not subject to copyright.
An objection might be that the purpose of a poem is not to provide functionality, in the way that a program is, but I’m not sure that even this stands up to scrutiny. (1) running a program could be regarded as a performance, and would be controlled anyway, were it a public performance; (2) reciting “If” in your head to get yourself in an appropriate frame of mind to subdue a few natives might be regarded as ‘running the poem’, but no one has ever suggested that that should be subject to copyright.
It’s interesting to speculate how, as biological computers develop, and start to merge with electronic devices, the law would regard biologically stored data. Once Google starts to interface Glass directly with your brain, will data in the brain be regarded as subject to copyright? Should Daleks be banned from cinemas?
Reading a digital book involves your device copying it from the disk to RAM, and from there onto the screen. So every time you read a book an e-reader, you make two copies of the work.
I suggest that calling the act of “moving bits around in memory so that normal use of the work can be conducted by the purchaser” a “copy” is a big mistake.
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