After a yell of "Police!"; and "Open up! Search warrant!"; the door breaks down and police storm in with guns ready. Shocked occupants stumble to their feet and are forced to the ground, while men wearing jackets emblazoned with "FBI"; rush to secure computer equipment sitting on a desk. It's not a takedown of a suspected terrorist group, nor is it a crystal methamphetamine 'ice' bust. Forget the 'War on Terror' and the 'War on Drugs.' This is the Copywar.

All across America and the world, filesharers are being hauled into court. While hundreds of people at a time have had brushes with the MPAA, the RIAA, and others, piracy has abated little.

This is not another 'evils of copyright law' essay, nor is it an exercise in piracy apologetics. It is a proposed replacement for current copyright law, a 'treaty to end the Copywar.' Most proposals for improvement of the copyright system are biased (1 2 3 4 5). In contrast, I believe mine is practical, balanced, and fair.

Both pirates and copyright holders present "ideological"; arguments that are generally rationalizations of greed. Pirates claim that they have a right to "share"; copyrighted material, when in fact they only want to have stuff for free. Copyright holders claim that consumers have a moral obligation to pay for stuff, when in fact they only want to make more money. Would-be customers become won't-pay-now pirates when material is difficult or impossible to obtain through legal channels.

To explain the basis of this system, it is necessary to specify the meaning of 'rights,' as I will use it. If you ask a libertarian or a member of the John Birch Society to tell you about 'rights,' they might tell you a true 'right,' such as the right not to be murdered, cannot be given to you, but rather either exists or does not exist. While this definition has merit, it is not the definition of a 'right' that is useful here. I will call a privilege granted by the government a 'right.' Where I mean the type of 'right' defined above, I will say 'fundamental right.'

In our society, there is a difference between patent rights and copyrights. Both of them protect a form of intellectual property. Although this discussion is primarily about Copyrights, I think it is easier to describe why I think intellectual property rights are not fundamental by using a patent example.

Imagine you are a caveman living next door to cavewoman Marcy. One day, Marcy ties a rock to a stick and calls it a 'hammer.' Marcy owns her new hammer. It is Marcy's fundamental right to keep it in her cave -- which is her property -- and also never to tell anyone her idea. But Marcy wants to use her new hammer. So Marcy comes out of her cave, and you see her banging away on nuts with her hammer.

You have been using your teeth to open nuts, and you think Marcy's idea is great. Does Marcy have the fundamental human right to prevent you from making your own hammer? Of course not! If there is _any _fundamental right involved, it is your fundamental right to improve your life by using what you have learned. You won't be stealing Marcy's hammer. She will still have hers. You won't be stealing her idea, since it's still in her brain!

Unfortunately, the other cave people in your society all believe that the idea of a hammer belongs to Marcy and her heirs forever. They force you not to make any hammers. Worse yet, everyone in your society is pompous, and prefers fame over fortune. Marcy, though creative, is proud of her hammer, and won't let you make one in exchange for anything. She's happier knowing she's the only cave woman in the world who owns a hammer.

That afternoon, you're down by the river and see George, another neighbor, using a fishing pole to catch fish! You'd been using your hands all this time. You try to get George to let you make a fishing pole, but -- you guessed it. He knows Marcy has a hammer and knows everyone thinks she's cool, and he wants to be cool too. So, no fishing pole for you!

Rubbing your hands together as you walk home, you have a flash of brilliance: fire can be made by rubbing two sticks together! Soon you have a roaring fire going -- but then two cave men come over and start kicking dirt into it! They tell you Sandy, across the river, already thought of this idea, and she won't let anyone else start fires with sticks.

You wander around, and time after time you see inventions other people have made but that no one will let you use. You sulk back to your cave, knowing you must continue opening nuts with your teeth, catching fish and game with your bare hands, and waiting for lightning to strike if you want a fire.

Or you could just admit that the entire idea of intellectual property as a fundamental right is preposterous.

We already know this is true. All across the world there are poor countries who can't afford our drugs, our movies, or our software. Instead, they simply copy them. If copying intellectual property is a fundamental rights violation, Amnesty International should be notified immediately.

Part of the reason people are conned in to believing intellectual property rights are fundamental is that most people feel bad when they copy someone else's idea. Small children, who have not yet learned to feel remorse over other's misfortunes, fight over this all the time as they scream, "Hey, that was my idea!"; If you use your brother's idea to mix milk with orange juice without his say-so, you're not trampling his idea; you're being rude. You shouldn't copy someone else's thoughts without compensating them any more than you should hit on your best friend's girlfriend. You're not violating any fundamental rights -- it just makes you a rotten bastard.

Is there any difference between merely making personal use of an idea and using an idea for profit? If you (a male), George, and Marcy are the last people alive, and George says to you, "I think I'll ask Marcy to marry me,"; are you obligated not to compete with George for Marcy's affections (thus, competing for a "market monopoly";) simply because he thought of it first?

Using someone else's marketplace niche without compensating that person isn't a violation of fundamental human rights.

It just makes you a dirty rotten bastard.

True copyright would involve cave paintings and grunt-speeches, not hammers. Is there any serious difference between copyright and patent? Not really. As we are about to see, the basis for copyright and patent law are both derived from the same sentence in the U.S. Constitution. The original copyright law had a period comparable to that of patent law. The original intent was to make it easier to obtain a copyright than a patent because patent restrictions have a more negative impact on society than copyright restrictions. Having separate laws was not intended as a way to afford different lengths of protection. It wasn't until authors lobbied for extensions that copyright protection terms became so dramatically different from those of patents.

Why do we have copyright at all? Article I, Section 8, Clause 8 of the United States Constitution states, "[The Congress shall have power...] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."; We encouage creativity by "voluntarily"; and temporarily giving up the fundamental right to better our own lives with what we learn from others. (We also "voluntarily"; pay taxes.) We reward creators with temporary, exclusive exploitation rights. Patent and copyright law does not protect Marcy's non-existent right to keep you from making a hammer. It exists to encourage Marcy to go on to invent the wheel! We reward her insights with a few years of the exclusive right to be the only person on the planet with a hammer -- since that's what makes her happy.

Intellectual property laws also express our desire not to be dirty rotten bastards: the idea that someone who spends time on a creative work that benefits society deserves, out of courtesy, to be compensated for the effort, as does a person who does physical labor. Trying to make money from a book you've written in the absense of intellectual property law doesn't expose you to any fundamental rights violations. It's just a really bad business decision.

The fair use and exchange of creative information in the United States was first articulated and enforced though The Copyright Act of 1790. This law gave authors a 14-year copyright, renewable for another 14 years by the original registrant. It has since been expanded multiple times.

Everyone benefits from the product of this arrangement. Yet we do not believe that copyright holders and their heirs should receive lifetime compensation. Eventually, the public expects to be able to use the works unrestricted. After all, we were under no fundamental obligation not to do so in the first place.

For this reason, copyrights eventually expire and the covered works enter the public domain. However, copyright assignees have successfully lobbied for repeated extensions to their rights. Such extensions water down society's gains, by making us wait longer and often by making material irrelevant at its copyright expiration. No one will have any use for a public domain copy of "Windows 98"; in the year 2165.

Lawmakers seem to have forgotten or ignored the fact that the public is supposed to be the primary beneficiary. By over-extending rights, legislators have negated much of the benefit these laws were intended to engender. If a person has a guaranteed income stream for his and his heirs' entire lives, then neither he nor his descendants have much incentive to continue creating new ideas.

Repeated expansion of authorship rights without regard for the public good -- from 14 years to life-plus-70 years -- have converted works of art into 'geese that lay golden eggs.' Large companies recognized this and rushed to speculatively buy rights to copyrighted works, personal events, and stories. Owning a large portfolio of popular works amounts to being "set for life."; It has also led some authors to make bad deals with rights-buyers, due to a poor understanding of the system.

Legislators aren't the only ones forgetting the purpose of intellectual property laws. The fact that creative works usually can be duplicated with little effort has led many peer-to-peer users to justify copying, claiming they are "not hurting anyone, since it's not actually stealing."; Copyright violation is not physical theft, yet the argument is specious. Copyrights have nothing to do with preventing theft; they are intended to benefit the public by rewarding people who create.

The slow expansion of copyright terms has been swallowed by a public duped into believing authorship rights are fundamental, yet happy to violate both those purported fundamental rights and the original spirit of copyright law by duplicating the latest endeavors of others."

The introduction of easy-to-use distribution systems has dramatically altered the playing field. Copyright holders who previously saw casual piracy as a nuisance now envision the demise of their golden geese. Panicking, they have brought the Copywar to full force. They are moving to solidify their legal rights by lobbying for harsher enforcement and by trying to create uncrackable rights-management systems.

After more than a decade of rampant and joyful piracy, content users now face a complete loss of the social benefits they were intended to receive under the Constitution. Instead of pressing for reform, they are fighting back in an never-ending series of online "one-upmanships"; by cracking copy-protection systems almost as quickly as companies can create them. They ignore the law, and flirt with financial and personal disaster. Most view it as a game. Others feel cheated, believing it is their fundamental right to circumvent the law. Some view piracy as an act of civil disobedience.

How can we call a truce? Not though litigation, the primary weapon in the Copywar, but through copyright reform. To achieve such reform, it will be necessary that the interested parties substantially agree on what is fair and formalize their agreement through legislation.

Copyright holders care much more about gaining maximum profit than about the duration of their ncome. They would rather have 10 dollars now than one dollar each eek for the next ten weeks. The key to copyright reform is that, for ost modern works, the bulk of the profit is made soon after release.

Authors want to make a good living. What authors want most, though, is not to get crewed by their publishers. Unfortunately, some authors realize this too late.

The public wants to view, share, and enjoy copyrighted materials, preferably at no cost. They also want lots of new, high-quality stuff, the original intention of U.S. Constitution art. I, § 8, cl. 8.

Those who make money from peer-to-peer software, book sales, movie exhibition, and other forms of distribution want a steady stream of customers from whom to profit.

The much-maligned Family Entertainment and Copyright Act is in line with my ideas for reform. In order to profit, copyright holders must control access to the copyrighted material. Leaking pre-publication copies of films, music, books, and other works can blow massive holes in their profitability. Giving away copies of a ten-year-old Disney song will not destroy Disney, but the pre-release pirate distribution of a small company's only hit song can result in that company's bankrupty. A "well-timed"; act of piracy might improve sales, but this does not justify piracy. The law is intended to award control to the copyright holder, not maximal profit.

Prepublication piracy has severe, sweeping consequences. It victimizes not only the content creator, but also the entire public, undermining the system of encouragment and reward, and demoralizing authors. The entire economy is affected. There are fewer available creative jobs, because tasks which would have been somewhat profitable are not at all. This reduces the number of creative works we can enjoy.

Some of the things I to suggest may require a constitutional amendment. Some exceptions might have to be made for those who cannot reasonably be held accountable for their actions. Some exceptions might be necessary under the provisions of the Americans with Disabilities Act. However, I see no fundamental reason that my ideas should not be implemented.

Consider this: instead of the current system which ascribes fundamental rights to intellectual property, we declare the right to copy intellectual property a fundamental right. Then we voluntarily abridge that right for a period of time as an incentive for content creators to create.

I propose a system consisting of three easily identifiable tier groups: CopyProhibited? , CopyRestricted? , and the Public Domain. The latter two of these each consist of one same-named tier, while the first tier group contains the following tiers: PrePublication? -CopyProhibited, PreDistribution? -CopyProhibited, and GeneralCopyProhibited? .

The PrePublication? -CopyProhibited tier's time period begins with the filing of an 'Intent To Create' form at the U.S. Copyright Office. It extends until the 'first substantial intentional public display,' or for 100 years, whichever is less. During this time, 'insubstantial intentional public displays,' such as movie trailers or book excerpts, may be released under reasonable terms. The party filing isrequired to actively and aggressively protect the covered assets by warning workers and by-standers of the legal consequences of piracy, providing adequate physical barriers, and displaying standard CopyProhibited? notices. Following the first substantial intentional public display of the material, the Pre_Release_-CopyProhibited period begins. The period lasts until the first intentional public_distribution_ of the material, or two years after the first substantial intentional public display, whichever is shorter. While public display includes exhibitions, such as the presentation of a play on Broadway, distribution is defined as broadcasting on TV, or offering printed copies of materials to take home. During this period, which applies to the film industry more than anyone else, the rights holder dictates all terms of public viewing. They may require metal detectors to prevent viewers from bringing recording equipment. They may sue agents who fail to take specified precautions. They may even require agents to show ads along with their content. No copy of the work may be in the possession of the public (any non-contracted entity); this would constitute distribution, and move the work to the next tier of protection. After this period expires, copyright holders may continue showing their work in the same manner; however, they will only receive those protections granted by the GeneralCopyProhibited? tier.

The GeneralCopyProhibited? tier begins at the expiration of the prior tier, and remains in effect until the fifth anniversary of the first substantial intentional public display or distribution of the material. Of all the protection tiers described, this one is most different from today's system. During this period, covered works must bear digital watermarking causing playback equipment to notify users of their CopyProhibited? status. Any broadcast of the material must be done via a digital medium so that detection of watermarking is guaranteed. Printed matter must bear a notification of CopyProhibited? status that is obvious upon viewing or attempting to copy the material. Producers of reproduction equipment must incorporate watermarking detection technology that prevents the casual copying of CopyProhibited? materials. Copies are traceably licensed to individuals who become responsible for maintaining the CopyProhibited? status of the work.

Most of these technical requirements are already in place. Note the idea is to make sure it is nearly impossible not to know that you are in possession of CopyProhibited? materials -- not make it impossible to copy them. The DRM only needs to make it difficult to copy a work casually. For example, the same technology which now causes checks to display the word, "void,"; could be used in books to display the word, "CopyProhibited."; Of course, companies can always chose to use the old system of copyright until any needed technology becomes available.

All the public needs to understand is one word: Prohibited. Consumers may not possess any copy of a CopyProhibited? work in any form. It is easy to know if an item is legal. Either it was licensed from an authorized agent, or it is illegal. Consumers may not back up, time-shift, translate, perform in a public setting, record their own performances of, device-shift, or do anything to reproduce CopyProhibited? works without the express written approval of the rights holder. They may not even sell their used copies to other people. If they break their copy, they must license another one, unless the rights holder is kind enough to replace the damaged copy.

There are no automatic 'fair use' provisions during these periods. Libraries do not automatically gain license to lend CopyProhibited? works; neither do video rental stores. Both must gain written permission prior to doing so. Critics have to talk about films instead of showing clips from them, although copyright holders may provide such rights if they chose. Those not wishing to be traceable would still be able to attend concerts and theater exhibitions, or visit friends in possession of licensed copies, but would not be permitted to license an untraced home copy. If you don't hold a license, you can't drive a car, but those who are licensed can drive other people around in their cars.

During this tier, copyright holders profit hugely selling the same content over and over. They may charge in a pay-per-view format; they may charge separately for CD and MP3 versions of a song. They can charge more for the first viewing than the second. They can force the playback of advertising between broadcast segments, prohibit the use of the 'mute' function, permitting you only to walk away physically or to turn off the device. Ad-skipping during CopyProhibited? material is illegal. No longer do used works compete with new products. Tiny companies previously at risk for going bankrupt now turn a real profit.

Five years isn't a long time, even compared to the original copyright term of 14 years. That term was chosen as a duration sufficient for creators to profit from their efforts in the 18th century. Technology has enabled us to distribute works quickly. Also, the advancement of technology has limited the useful lifetimes of many copyrighted works: we must always remember that the purpose of copyright is to benefit the public. Ideally, most rights owners would make more money over the initial five years than they do in the current system over a period of 100 years.

After the five-year CopyProhibited? period expires, the CopyRestricted? period begins with the expiration of all watermarks. Here forward, publishers are required to provide non-Digital-Rights-Managed, non-copy protected versions to existing and new customers.

From the beginning of this period until the copyright holder's death-plus-70-years, the public is permitted to share, use, copy, time-shift, and otherwise reproduce the material, except that they may not publicly broadcast it, sell copies of it, or produce substantially similar new works based on it. This is very similar to what people already do today, except without threat of litigation. The public resumes most of its freedoms after five years of suppressed rights.

Copyright holders would still make money during the CopyRestricted? period. They would collect fees from radio stations and television broadcasters, just as they do today. Borders would still sell older books, and plenty of people would rather rent DVDs than spend time sifting through pornography on the Internet.

In addition to the copyright holder, the original creator(s) and their authorized agents would also be permitted to sell copies of the work for a profit. By law, the original creator would not be permitted to sign away this right to any party. As a society, we wish to reward and encourage the actual creators of content, not speculators or con artists. By permitting this imited competition, we encourage publishers to treat authors and artists fairly, and provide screwed authors with some profit potential for their fforts.

'Brand' rights, such as the right to use a character's name in a new book or to produce new episodes of a series, would remain substantially as they do today.

After this period expires, works enter the Public Domain."

Implementation of this system depends on stiff penalties and strict enforcement.

Peer-to-peer networks must reasonably recognize and enforce watermarks. Telecommunications companies and ISPs must, upon presentation of reasonable evidence of piracy and without a warrant, turn over the names of violators and assist investigators by keeping and providing relevant records.

Luckily, since the CopyProhibited? and CopyRestricted? tiers are so well defined, it's easy to know and prove if someone is violating the law. You may not be in possession of an unauthorized copy if the work is CopyProhibited? , and you may not sell an unauthorized copy if the work is CopyRestricted? . "Fair use"; does not apply.

Advances in technology might permit playback devices to broadcast watermarks, assising law enforcement. British officers currently detect television use in order to enforce that country's television licenses.

Intentional distribution of pre-publication content is the worst violation of copyright holders' rights. This simple act of evil is worse than destroying the original creative work. It is worse than arson, worse than embezzlement. Creators can always refilm, rebuild, collect insurance, or get another loan. They cannot always rebuild an audience eager to listen to a new story -- indeed, they may only have one story to tell.

'Intentional distribution violators' of the PrePublication? -CopyProhibited tier are fined the amount of real damage caused plus punitive amounts, and sentenced to 10-15 years in prison.

'Intentional distribution violators' of the PreRelease? -CopyProhibited tier and 'egregious distribution violators' of the General-CopyProhibited tier are fined the amount of real damage caused plus punitive amounts, and sentenced to 5-10 years in prison.

For 'intentional distribution violators' of the General-CopyProhibited tier, and for 'intentional receiving violators,' 'reckless distribution violators,' and 'copy violators' of any CopyProhibited? tier, each event of offense will be punished by a $200-$5,000 on-the-spot punitive fine. Police officers issue these fines in the same manner as traffic tickets. Violators caught more that three times within any three-year period would be punished by a $2,000-$10,000 punitive fine, a 6-week community service stint, and required attendance of copyright education classes. States would provide reasonable enforcement, and copyright holders, subject to appropriate regulation and licensure, may also conduct private enforcement in the same manner as is now currently employed with warrant bounty hunters.

'Profit violators' of the CopyRestricted? tier are punished the same as they are today.

In all cases, safeguards to uphold the principle of 'innocent until proven guilty' would be in place."

Although intellectual property rights within the U.S. exist as a social contract, outside America they are a trade issue. We should not apply the same rules to our own intellectual property outside our country as we do within it. Conversely, we should not respect the intellectual property laws of other countries blindly. Instead, we should negotiate a separate set of terms with each, or form an international standard.

Within our own country, a system like this gives copyright holders the ability to profit more and faster, and an incentive to produce. It protects their franchise rights. It eliminates time wasted prosecuting relatively innocent people. Content users get to use and share content without being sued.

Everyone wins.

People are stubborn. I doubt a system like this will ever exist. That is why this idea is rusting away in this junkyard of thoughts. Good copyright law requires mutual respect, an understanding of the underlying issues, and a willingness to commit to the societal contracts we make. This is not the status quo.