Discussion
It's not often that I find myself on the same side as the US Copyright Office. In fact, this is the first time in 25 years I've found myself cheering on the office's official actions as good for art *and* free expression, on the side of creative workers over our bosses.
-
If you'd like an essay-formatted version of this thread to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
https://pluralistic.net/2026/10/31/burn-berne/#unvictored
1/
The source of our miraculous accord: the US Copyright Office's position on AI. The CO has taken the (entirely correct) position that copyright law exists to incentivize human acts of creative expression, which means that only works of human authorship are eligible for copyright.
2/
This isn't a controversial position within legal circles. But for media executives, this is shocking; absurd, even. This gap between the industrial and the legal understanding of copyright comes from a fundamental difference over the evocatively named legal doctrine of "sweat of the brow."
3/
"Sweat of the brow" is fundamental to a correct legal understanding of copyright. Copyright rewards and protects *creativity* but it does *not* protect *hard work*. You can labor for ten years over a phone book listing the numbers of every person in a town and (as a collection of uncopyrightable facts) it will receive *no* protection *at all*. Zero. Zilch. Anyone can copy and sell that phone book:
https://en.wikipedia.org/wiki/Feist_Publications,_Inc._v._Rural_Telephone_Service_Co.
4/
Copyright law doesn't care if you slaved over that collection of facts, if you missed sleep and your kids' little league games to realize your grand vision. Copyright law doesn't care if you plowed every cent into it, remortgaging your home and cashing in your (already resentful) kids' college funds.
5/
But: if you dash off a haiku in ten seconds while sitting on the toilet, shove it into your pocket and forget about it, and then your (still resentful) kids discover that crumpled haiku after your (highly suspicious) death, your kids will be able to claim a full *70 years'* worth of copyright over that forgotten triviality (the term of copyright for works of human authorship is life plus 70 years).
6/
This is the uncontroversial and universally accepted *legal* understanding of copyright: all the copyright in the world for creative acts, no copyright at all for mere acts of labor. The "sweat of the brow" has nothing to do with a work's eligibility for copyright.
7/
But no media boss believes this. For media bosses, copyright is a pseudo-property† right, designed and operated to protect their bottom line. The point of copyright isn't to incentivize *creativity*, but rather *investment*.
† Or not-so-pseudo
8/
@pluralistic I think you’re right on the merits but it unfortunately won’t matter in the long run in the software industry. My reasons are here: https://mastodon.gamedev.place/@shanecelis/117536450202170595