Compulsory Licensing & Chilling Effects

This morning, music industry attorney Dina LaPolt and Aerosmith front man Steven Tyler submitted written comments to the USPTO on the subject of compulsory licensing for remixing and sampling musical works. At issue is a green paper submitted by the US Department of Commerce Internet Policy Task Force that copyright reform could include a measure that would effectively mandate artists license their works whether they want to or not.  In short, any entity from a creative, young upstart to the Ku Klux Klan could legally sample and/or remix these works, and the original creators would have no say in the matter.  The compulsory license strips one of the fundamental properties of copyright, the right of choice, from the artist; and this is why Tyler and LaPolt were supported with letters from other creators including, Don Henley, Joe Walsh, Sting, Ozzy Osbourne, and Mick Fleetwood.

All of the artists who wrote letters made the central point that collaboration and licensing among creators is and has been working very well to the benefit of both creators and the public; and they insist that no change to copyright law in this regard is required.  It seems fundamental to the concept of fairness and decency that an artist should have the right to deny the use of his or her work in a form that he or she feels betrays its initial purpose or meaning.  If the artist creates from a place that is deeply personal or politically motivated, it is easy to see — indeed we have seen — how a permissionless environment invites degradation that is a disservice to cultural diversity.  A black artist writing about black issues could not stop a racist hate group from appropriating his music as long as they paid the license.  A politician who opposes everything an artist ever stood for could turn that artist’s work into his campaign soundtrack.  Or, on the simplest level, as we’ve seen in the case of GoldieBlox and the Beastie Boys, artists who simply don’t want their works used to sell products or services would lose this basic right.

LaPolt offers a compelling analysis that the potential misuses I refer to above can amount to a chilling effect on artistic expression; and those who consider copyright anathema to free speech should consider what she’s saying.  Steven Tyler and other artists who wrote letters confirm that money is not the issue.  If an artist doesn’t want his or her work used in a certain way, no amount of money will matter.  What would instead happen, suggests LaPolt, is that artists will likely choose not to produce certain works, knowing that they can be lifted and used in contexts that betray their message or meaning. I would certainly agree that the more powerful material — work that might confront a serious social issue, for instance — would be the stuff an artist would reconsider in such an environment. By contrast, the counter-argument we often hear is that artists unwilling to license their works for certain derivative uses has a chilling effect on free speech; but I happen to think that’s stretching free speech to coddle opportunists who are either too lazy or not talented enough to create their own thing.

© 2014, David Newhoff. All rights reserved.

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38 Responses to Compulsory Licensing & Chilling Effects

  1. Kevin Z. says:

    Creating something of value where nothing before existed is the essence of the artistic pursuit, and if there is no value to the artist then creation is wasted energy; compulsory licensing simply eliminates the creator from the benefit stream, and only the parasite wins. Survival of the host, then, depends upon starving the parasite; nobody wins. Eliminate the parasite and many win. Symbiosis is vastly different than parasitism.

  2. Steve says:

    I am not an expert on copyright law, but aren’t samples and remixes considered fair use anyways? Would this proposal just extend fair use to commercial contexts like ads?

    • David Newhoff says:

      Thanks, Steve. Your relatively short question could generate some rather long answers, but in a nutshell, no. Samples and remixes are not automatically fair use. Some artists invite remixes of their works, others do not; and even those who do invite remixes often do so with specific works and not with others. Fair use is not just a generic thing; there are standards and legal precedents applied when litigation occurs, so “extending fair use to commercial contexts” is sort of a loaded question that begs more questions depending on each case. Assuming, I understand where you’re going, though, compulsory licensing wouldn’t extend fair use in this regard so much as it would make the principle moot. It would mean BP could use Pete Seeger recordings to sell the upside of an oil spill.

  3. Laura S. says:

    The counter argument is based in the current culture of appropriation (See Shia Labeouf’s lame rationalizations). It’s not just about laziness or lack of talent on the part of the appropriators, it’s also about the simple acquisitive greed of a large part of the audience. Both attitudes have been promoted by corporate agenda for decades, and silencing political expression is as strong a motivation as profit.

  4. Anonymous says:

    “In short, any entity from a creative, young upstart to the Ku Klux Klan could legally sample and/or remix these works, and the original creators would have no say in the matter.”

    So you’re saying that the government, when it grants copyrights to authors, should empower viewpoint discrimination?

    I must say, it certainly reminds me a great deal of how restrictive covenants used to be used for racial discrimination. The government got itself out of the position of being roped into unconstitutional discrimination by refusing to enforce such covenants. Perhaps a good compromise would be to allow copyright holders to refuse to license their works as they saw fit, but for the government to not let copyright holders use the courts to enforce their wishes in such cases.

    More seriously, the goal of copyright is to increase the quantity of works created and published. I sincerely doubt that compulsory licensing for sampling will have any notable negative effects on songwriters and performers, just as existing compulsory licenses haven’t. There is some bitching about the rates that get set, and how much of that gets taken out by various middlemen, but I haven’t seen any musicians actually quit music altogether over it. Perhaps I’ve missed it, but it looks like they’re not willing to walk the walk.

    So with no negative effects of note on quantity, it will certainly have positive effects on the quantity of works created and published, so it sounds like a good deal.

    Of course, sampling is not really particularly different than, photocollage. One is auditory, one is visual, but they’re both often so transformative (see e.g. “Just what is it that makes today’s homes so different, so appealing?” by Richard Hamilton) that you’d expect fair use to usually cover both. Collage seems to be well established enough that if there are any cases involving it, they’re pretty rare. Unfortunately, for sampling we get asinine opinions such as in Bridgeport Music, I suspect due to judges who let their aesthetic opinions get the better of them. So a compulsory license shouldn’t really be needed, but bad precedents make it a better option than giving reactionary musicians a ridiculous veto power.

    • David Newhoff says:

      Thanks for posting, Anonymous. Your argument would be the same if you said granting the right for same sex couples to marry empowers viewpoint discrimination. In fact, that is the argument that’s been made by homophobes and religious zealots. The government doesn’t grant copyrights anymore than it grants you the right to pursue happiness on a daily basis. As a member of American society, you automatically carry that right with you just by being here, and in same way a copyright automatically exists the moment a qualifying work is born. Among the rights secured to the author of a work is the right to choose the manner in which that work is used or distributed. This right has not stifled the production of new works; in fact, I have yet to meet a creator (and I know quite a few) large or small who considers existing copyrights to be a barrier at all to his or her own creative process. In general, the overvaluation of derivative works is promoted by people who don’t understand the production of these works in the first place.

      I’m confused by the proposal in your second paragraph. A right is meaningless if an individual or entity cannot ultimately take a case of infringement into a court of law. Would you propose otherwise for any other civil right?

      Squabbles over royalties or other rates are various and have nothing to do with the subject of compulsory licensing, so I won’t go into that here.

  5. Anonymous says:

    David–
    “The government doesn’t grant copyrights”

    Well of course it does. For example, from Sony Corp. of America v. Universal City Studios, 464 US 417, 429 (1984):

    “The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.”

    “in same way a copyright automatically exists the moment a qualifying work is born”

    That is because that is the way that Congress has written the statute. In the past, copyrights were only granted for published works if various formalities were complied with. And Congress could change this once again, if they saw fit. Indeed, I’d say that the number one most important reform to copyright would be to stop granting copyrights automatically for everything.

    “Among the rights secured to the author of a work is the right to choose the manner in which that work is used or distributed. This right has not stifled the production of new works; in fact, I have yet to meet a creator (and I know quite a few) large or small who considers existing copyrights to be a barrier at all to his or her own creative process.”

    Well, I can certainly think of a lot of authors who, in order to satisfy their muses must ignore copyright, and engage in infringing activity, but I doubt that’s what you were thinking of. And you would do well to consider the derivative works right. By definition, that only functions to prevent third parties from creating new, albeit derivative works. If no one was interested in doing that, the right would be superfluous and likely no one would’ve ever thought to add it to the Copyright Act at all. The right was added, in its first form, in 1870. Unauthorized derivative works date back at least to Virgil, whose Aeneid is basically epic fanfic poetry based on the earlier works of Homer and is one of the great classics of literature. Though I suppose that the undervaluation of derivative works is promoted by people who don’t understand art.

    “I’m confused by the proposal in your second paragraph. A right is meaningless if an individual or entity cannot ultimately take a case of infringement into a court of law. Would you propose otherwise for any other civil right?”

    Well, the RIAA proposed just such a thing and got it, about 20 years ago. If you’ll recall the Audio Home Recording Act was intended to clarify copyright law when it came to members of the public engaging in home taping. My understanding is that the draft legislation was going to simply legalize home taping; the making of such copies would not be infringing. However, there was apparently a last minute change (obviously due to the effect that would’ve had on First Sale) and instead making AHRA-compliant copies is infringing, but copyright holders are prohibited from taking a case for that infringement into a court of law; they are non-actionable. So there’s a handy precedent already in the Copyright Act.

    But while my suggestion in that paragraph was basically facetious, the way it works for discriminatory restrictive covenants is that a buyer of land may agree with the seller that the buyer will not later sell to Jews, or blacks, or Catholics, or blue collar people, as the two of them see fit. But if the party who owns the land decides to sell to such a person anyway, there is no way to enforce the covenant. It still exists, it’s just moot. So presumably if we did something like that for copyright, nothing would stop a copyright holder and a licensee from coming to an agreement, but nothing would compel it either, and the use could occur regardless.

    • David Newhoff says:

      Anonymous, are you the copyright attorney who posted here before? I am sorry, but it’s a bit tough to people without a names. I also apologize that I can’t respond in too much depth given some deadlines I have and pending travel.

      Regarding Sony, I assume you’re citing language from the decision, but that doesn’t seem to get to the point I was making. While I understand you believe automatic copyright ought to be reconsidered, it is presently the law, and so I think what I said about government not “granting” copyrights is accurate. Whether or not this should be the law is another question, but I can’t go there now.

      As for derivative works, my point is that copyright in general hasn’t stopped new production, and all production is in one way or another derivative. Specifically, as pertains to the subject of this thread, the artists who spoke up cite collaborations and other mutually beneficial derivative works based on their originals that also benefitted the public. All of which is to say the system is working in this regard, don’t try to “fix” it.

      As for the right of enforcement, it sounds like you’re making a case in different words for permissionless and unfettered use. Keeping it in layman’s terms, doesn’t this mean (as I said to another commenter) that BP can use Pete Seeger recordings to spin the next oil spill? In practical terms, isn’t just about everything wrong with that? Conversely, I fail to see the upside of compulsory licensing, either for artists or the public.

      Again, my apologies for a cursory response.

      • Anonymous says:

        David–
        “Anonymous, are you the copyright attorney who posted here before?”

        I am a copyright attorney and I have posted here before.

        “Regarding Sony, I assume you’re citing language from the decision, but that doesn’t seem to get to the point I was making.”

        The quote from Sony specifically says that the government grants copyrights. Perhaps you’d like Golan v. Holder instead?:

        “Concerning the First Amendment, we recognized that some restriction on expression is the inherent and intended effect of every grant of copyright.

        Or maybe the Copyright Office’s circular 1A?:

        “The term [‘copyright’] has come to mean that body of exclusive rights granted by law to authors for protection of their work.”

        Why, even some of the language of the current Copyright Act shows us that Congress grants US copyrights. 17 USC 104A(a)(1)(B):

        “Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States.”

        But probably the best place to look would be Wheaton v. Peters:

        “Congress, then, by [the 1790 Copyright Act], instead of sanctioning an existing right, as contended for, created it. … This right, as has been shown, does not exist at common law – it originated, if at all, under the acts of congress. No one can deny that when the legislature are about to vest an exclusive right in an author or an inventor, they have the power to prescribe the conditions on which such right shall be enjoyed; and that no one can avail himself of such right who does not substantially comply with the requisitions of the law.”

        Where you seem to be confused is that you misunderstand the very low threshold that Congress has set in order for them to grant an author a copyright on a given work as an absence of any grant at all, by which you then infer that authors magically create their own copyrights as they create their own works. But that’s not so. Congress still imposes a few prerequisites: a work must be original, it must be creative, it must be a work of authorship, it must be fixed in a tangible medium of expression. Only if these requirements (and a couple of others, actually) are met, will Congress deign to grant a copyright to the author. It’s too minimalistic for my tastes, and I’d add more requirements alongside those, but mere minimal requirements do not mean that copyrights just come into being absent a grant from Congress. Nor does the automatic grant mean that it’s not still Congress granting them. That just means there’s less paperwork.

        Thanks, though, for speaking up on this. Now I can add another good reason to my list of reasons to reimpose strict formalities: without them, people may become confused as to the nature and origins of copyrights and important policy considerations regarding copyright law.

        “As for derivative works, my point is that copyright in general hasn’t stopped new production … [T]he system is working in this regard, don’t try to “fix” it.”

        Well it has absolutely stopped some new production. As I believe I said before, if there were no production occurring which authors sought to stop, there would be no reason for authors to lobby for the right to stop it.

        And just because something ain’t broke doesn’t mean it shouldn’t be fixed. There is always room to improve, and perhaps to optimize. Copyright stops some amount of production of derivatives in order to incentivize the creation and publication of more works, which will enter the public domain as swiftly and as fully as possible. If we shrank the derivative right in some manner which resulted an increase in the creation and publication of works, and which only caused an additional minor decrease in the same, the net amount of creation and publication would be increased. That’s an improvement!

        And I’ve no doubt that there are all kinds of inefficient and half-assed aspects of the current act which are dragging copyright down, and keeping it from being all that it can be. Let’s reform copyright to make it work better for everyone.

        “Keeping it in layman’s terms, doesn’t this mean (as I said to another commenter) that BP can use Pete Seeger recordings to spin the next oil spill? In practical terms, isn’t just about everything wrong with that?”

        No, it’s fine. It may be offensive, but it’s fine. If you’re upset about oil spills, copyright law is a very stupid way of doing something about it. Why not regulate the oil industry more rigorously and carefully instead? Stopping actual spills is probably more important than stopping BP from using folk music. Your priorities seem all out of whack. (Plus, what now stops BP from buying up all the ad time on a broadcast of Pete Seeger songs on the radio, getting that sort of effect, if they want it?)

        Plus, where does it end? Should the movie studios have the right to prohibit reviewers from using clips showing the terrible acting, or quotes of the bad dialog, or a précis of the horrible plot, because a bad review would offend the artistic integrity of the studio? Should the KKK have a right to prevent groups like the SPLC from using (conveniently automatically) copyrighted Klan hate literature as aids in denouncing the Klan and showing what they really stand for?

        Why should copyright holders have absolute power over their work? How does it serve the public interest to grant them such rights?

        If you concede that it might not, then consider that the current law might not serve the public interest either or at least not as much as the public interest might be served?

        “Conversely, I fail to see the upside of compulsory licensing, either for artists or the public.”

        I couldn’t care less about upsides to anything for artists. I only care about the public. If doing something that is good for the public is good for artists, then that’s great. But I don’t buy into the bogus argument that what is good for GM is good for the country.

        As already noted, the public interest is in having the most works created, and published, and in the public domain as fully and rapidly as possible.

        If we provide for compulsory licensing of this sort, and no one uses it, then we’re no worse off than we are now. If someone does use it, then more works are being created, and probably published. And all works are a little closer toward being in the public domain during the term of copyright, because copyright holders will have lost their power to exclude people who wish to use works and who comply with the terms of the compulsory license. The only way there could be a down side would be if the authors creating and publishing works now would stop due to the change in the law. In fact, even then, only if enough of them did so such that the overall number of works created and published, when you factor in the new ones using the compulsory license, decreases. I don’t think this will happen. I think that established musicians and songwriters might bitch, but would not quit or even slow down.

        A good, similar example, would relate to copyright terms. When the CTEA came into effect, and new works were granted a longer term, there was no explosion in the number of works created and published which could be attributed to the extra 20 years of term. While a certain low level of copyright might have a significant effect on the various creative industries, once you get above that, you enter a realm of diminishing returns that swiftly winds up having negligible positive impact (or even a substantial negative impact). Removing these rights thus has negligible negative impact (and may have an overall positive impact).

        So I suspect that removing the right to control licensing of some works (while still providing a right to get paid for such licenses, and to propose alternative license terms for anyone who doesn’t want to go through the compulsory process) will have overall benefits for the public.

        Or to put it another way, copyright has gone too far. We should reduce it down to being just far enough.

      • John Warr says:

        All of the above could equally be said of any property right. All such rights stem from a stable organization of society, and a granted to individuals via Government. What copyright objectors are really objecting to is the essence of property.

    • Can someone identify anonymous, so I can use a picture of him to advertise condoms?

      • David Newhoff says:

        I’m approving this comment because the point about using someone’s likeness without permission is a valid one. Nevertheless, the choice of condoms, I assume, is an implicit ad hominem, which I would not normally approve. While I think Anonymous’s reasoning is flawed in several places, he’s still expressing a point of view based on something and not randomly attacking anyone here as far as I’ve seen.

  6. AudioNomics says:

    anonymous said “I couldn’t care less about upsides to anything for artists”…

    obviously- you have made your hatred towards artist abundantly clear, thanks for confirming it in your own words. You obviously don’t have a very good grasp on the incentives to create, for a self proclaimed ‘copyright-lawyer’ (whom also seems to have an awful lot of free time…).
    As a (working) songwriter, i can tell you that i would indeed retire to greener pastures as there is not much left in the way of incentives to create anymore. And save your breath abou UGC and hobbiests…you are unneededly destroying actual small-business jobs in favor of giant corporations and ad networks. This isn’t “progress”, in my view.

  7. Anonymous says:

    AudioNomics–
    “obviously- you have made your hatred towards artist abundantly clear, thanks for confirming it in your own words.”

    No, it’s not hatred, not in the least. It’s indifference. As I said in the sentence immediately following the one you quoted, I have no problem with copyright law benefiting artists so long as it first benefits the public to the greatest extent possible.

    Think, for example, of a dairy farm: If giving the milk cows the highest quality feed, and the most luxurious stables and lushest pastures will increase the milk yield so much that the farm will turn a profit on it, even after the costs of providing those things, then that’s the best choice for the farmer. OTOH, if giving the cows mediocre feed, and crappy stables, and a dismal pasture is more profitable, even with a lower yield, because the sunk costs are so low, then that’s the best choice for the farmer. Or maybe the best choice is somewhere in between, or maybe the dairy just isn’t profitable, and the farmer should sell the cows and plant crops. No matter what, the farmer is in charge, and should act according to his self interest. The cows may have a preference, but it’s not really important what it is.

    Copyright can only be justified if it serves the public interest, and it should produce the greatest net benefit to the public that it possibly can. It’s not meant to serve authors. Whatever benefits it provides to authors are means to an end (like spending money on feeding the cows, in order to get the milk).

    I mean, if the point was to give something valuable to artists, why not just have the government give a million dollars to anyone who identifies their profession as Artist on their income taxes? That would be a lot simpler and more effective than all this copyright rigamarole.

    “You obviously don’t have a very good grasp on the incentives to create”

    Well, as far as I can tell, the main incentives are: Art for art’s sake; Practice; Social standing and fame (e.g. starting a band to get laid); Money from the sale of artistic labor; Money from formal and informal patronage; Money from the sale of objects with provenance; Money from admittance fees to a venue; Money from copyright related sources, e.g. royalties, license fees. Feel free to add to the list, I’m sure I’ve missed some.

    Since copyright didn’t exist anywhere in the world prior to 1710 (and not in most places until well into the 19th and 20th centuries), but there was a whole lot of art created back then, we know that copyright is not actually necessary for art to be created. Furthermore, even today, a lot of art isn’t created due to copyright related economic incentives. For example, in the fine arts, provenance is far more important than copyright; an original Picasso was worth a lot, but a picture postcard of a Picasso was worth very little. We know also that even once copyright came into being, it was not the sole or even the most important reason for the increased number of works that were created. Before you can credit copyright with anything, you must first remove unrelated factors, such as increased literacy rates, increased leisure time, improved and less expensive artificial lighting, better printing technologies, etc.

    True, copyright is certainly an incentive to create. But I’d bet good money that it is not the most important reason that most copyrighted works are created. I bet you didn’t write your copyrighted reply to me because you plan to make money from the royalties on it if it is republished. Telling me off — or trying to — was incentive enough for you.

    “As a (working) songwriter, i can tell you that i would indeed retire to greener pastures as there is not much left in the way of incentives to create anymore.”

    Challenge accepted. Don’t let the door hit your ass on the way out.

    “And save your breath abou UGC and hobbiests”

    Copyright isn’t about quality. It’s about quantity.

    “you are unneededly destroying actual small-business jobs in favor of giant corporations and ad networks.”

    I have no love for giant corporations or ad networks. In fact I especially hate advertising, and take steps to eliminate it from my life as much as I can.

    But again, copyright is intended to benefit the public, not to be a jobs program.

    If you just want art jobs, we could have job programs like that, as we did back in the Depression. Or we could reform our economy so as to get a Keynesian leisure society where most people don’t have to work, or don’t have to work much, but can still have comfortable lifestyles, with plenty of opportunity to create art as they saw fit. (So as you can guess, I’m not a big fan of giant corporations either) But these things don’t require copyrights, especially not the ludicrously excessive copyrights we currently have.

    John Warr–
    “All such rights stem from a stable organization of society, and a granted to individuals via Government. What copyright objectors are really objecting to is the essence of property.”

    Well I agree with you wholeheartedly on the first part, but disagree entirely on the second. In my experience, most people who have a problem with our current copyright laws don’t object to property law, or even to the most fundamental aspects of copyright. They’re just upset with the specific details of copyright as they presently exist. Copyright abolitionists are rare, and those who object to the idea of property altogether are so uncommon as to be more myth than fact.

    As an analogy, look at what’s going on with recreational drugs. In the US we have two states that are allowing people to indulge in formerly completely forbidden substances. But they didn’t just open the door to complete anarchy. Marijuana is still regulated, it’s just regulated differently, and in a way that restricts the public a little less. Even serious advocates for legalization don’t want (AFAIK) little kids getting high, or people driving recklessly under the influence.

    Most people demanding copyright reform would be content with still having copyright, just having less of it. Shorter terms, more exceptions to exclusive rights, a reintroduction of formalities, fewer restrictions on end users. Let copyright be something that matters to people in the publishing industry, and which doesn’t matter to the general public at all, and you’ll probably not hear another peep against it. It’s overreach on the part of the industry, especially in combination with new consumer technologies, that have gotten us to this point. For industry to back down would be wiser than letting things come to a head.

    • John Warr says:

      Of course they are objecting to property, they just aren’t applying their rational to their own property. All copyright does is grant a property right in some craetive work. That is no more than a title deed grants a property right on an acre of land. If you want to maintain that the public has first call on a copyright then you should allow that the public has first rights on the title deed on land, or the balance of a bank account. Copyright and a land deed are the same thing a grant of a property right by society. Lets take Jefferson and Franklin on the matter:

      [
      While it is a moot question whether the origin of any kind of property is derived from Nature at all … it is considered by those who have seriously considered the subject, that no one has, of natural right, a separate property in an acre of land … Stable ownership is the gift of social law, and is given late in the progress of society.
      Thomas Jefferson

      Private property … is a Creature of Society, and is subject to the Calls of that Society, whenever its Necessities shall require it, even to its last Farthing, its contributors therefore to the public Exigencies are not to be considered a Benefit on the Public, entitling the Contributors to the Distinctions of Honor and Power, but as the Return of an Obligation previously received, or as payment for a just Debt.
      Benjamin Franklin
      ]

      I’ll give you copyright, you give me your title deeds and bank account. K.

    • Patrik says:

      Oh come on. You’re really digging in here, eh?

      First of all, artists are part of the public.

      Cows are not. Artists are not cows. Milk and meat are fungible commodities; art is not. Going to see the Mona Lisa and instead being shown a Batman issue cover is not an interchangeable experience.

      Right there you’ve betrayed your own biases. You certainly don’t help yourself when you make claims along the lines of artists making art to get laid. Did someone steal your boyfriend?

      How about this: most artists create because there is something in their mind that doesn’t exist in the world, and they’d like to see or hear that thing. Probably because they think it would make the world a better place, at least for themselves and maybe another person. I think you’ll find that most artists are not concerned with making profit, but making enough to continue creating. That means they need to make their money back, and they need to be able to eat and house and clothe themselves. Does this really need to be explained?

      If the public, which includes other artists, think that work is remarkable enough, maybe they’ll pay for it. That’s the most an artist can hope for. How about that? Trading money for goods and services! Rather than your convoluted ideas of putting the burden of paying for art on everyone else, rather than the people who are enjoying it (not to mention giving a free ride to the entities that do profit from artists’ works).

      Your entire posting history in this thread screams “sour grapes.”

      Anonymous wrote:
      Even serious advocates for legalization don’t want (AFAIK) little kids getting high, or people driving recklessly under the influence.

      Now you’re just being naive. Who do you think is going to grow the marijuana? Dudes in North Cali? No. It will be giant corporations. I’m sure you’ll find that large entities are foaming at the mouth waiting for the chance to create stronger pot, and looking for ways to make it addictive, and they will in no time be trying to find ways to market to minors. See for instance the history of the entire tobacco industry throughout the twentieth century.

      For a person whose only concern is “the public” you seem quite incapable of actually picturing that the public is made up of individual people. Your attitude seems to be that “the public” is just another corporation. We are trees, not a forest.

  8. Anonymous says:

    John Warr–
    “All copyright does is grant a property right in some craetive work.”

    Well, it’s certainly similar, though I think its precise nature could be argued about. But that’s neither here nor there.

    “If you want to maintain that the public has first call on a copyright then you should allow that the public has first rights on the title deed on land, or the balance of a bank account.”

    Yes, they have. Both quotes you provided us directly stand for that.

    In fact, you could go further with Jefferson. I recognize that as coming from his famous letter to Isaac McPherson, in which Jefferson discusses patents. His argument is just as applicable to copyright, and has often been seen in copyright policy discussions. For your convenience, I’ll quote the whole relevant passage:

    “It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.”

    The choice sentence for our discussion here is probably the third from the end: “Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body.”

    Again, all property law is utilitarian, just as copyright law is utilitarian. All of it can be enacted, or abolished, or amended to any point in between, at any time, as is seen fit. If we reform copyright law by slightly reducing copyright’s scope (such as by introducing a new compulsory license) in order to bring about a more socially beneficial law, this is completely in accordance with our long established practice as well as the Jeffersonian language you were so kind to bring to this discussion.

    And if our society feels it is necessary to have some rights to my property — such as by establishing a property tax or a wealth tax — then I’d really have no leg to stand on to say that they cannot do that. I might complain that it is unwise, or that the particular tax is too high, but that’s a different thing. (And for the record, I support the idea of property and wealth taxation, though the devil’s in the details of course)

    Meanwhile, since you’re interested in this subject, I’d like to recommend a paper to you by someone I know and esteem. It is “Cabining Intellectual Property Through a Property Paradigm” by Prof. Michael Carrier. You should be able to download it here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=537762

    • John Warr says:

      Now that we have established that copyright as property is indistinguishable from all other forms of property, and that the same privileges and monopolies that are granted in copyright are the same as those granted in other property rights.

      Lets address the issue of compulsory licenses. The issue isn’t one of taxation, both forms are equally subject to that. The issue is whether if you have an extra bedroom in your house should you be compulsorily required to rent that room to a homeless person?

      Yes or no? And if no why not?

  9. Anonymous says:

    Patrik–
    “First of all, artists are part of the public.”

    Yes, that’s true. Which means that a perfectly spherical author will both desire a copyright monopoly for himself so that he may maximize the benefits he enjoys from his own creations, and no copyrights for anyone else, so that he may maximize the benefit he enjoys from others’ creations.

    If an author wants copyrights granted to others, which is harmful for his own self interest in their creations, this could only be because he prioritizes his self interest in his own creations, and values his own more highly. Likewise, an author who didn’t see much value — or at least copyright-related economic value — in his own creations would probably put a higher priority on getting benefits from the creations of other authors, rather than from his own.

    And while really, everyone is probably some sort of author — I’m an author insofar as I’m writing this to you now — a perfectly spherical member of the public would have no creations of his own, and thus would only benefit from others’ creations.

    So given that, when you then go and put it to a vote in some sort of democratic government, odds are good that the authors who prioritize their own creations highest, and who therefore want copyrights, are going to be seriously outnumbered.

    Historically, most people haven’t had a problem with copyright because it sounded like a decent idea and the way it was implemented never seemed to affect them much, particularly not in very visible ways. But in recent times, as the publishing industry got too greedy, the implementation of copyright is actively pissing off people who before would never have given it a second thought. Some people just want to fix it. Some people are so aggrieved that they want to abolish it entirely. The tide is turning.

    “Artists are not cows.”

    No analogy is perfect. I hope that you didn’t get hung up on that such that you missed what I was trying to say.

    “You certainly don’t help yourself when you make claims along the lines of artists making art to get laid.”

    You’ve never heard that joke about musicians starting or joining bands for that reason? In any case, I stand by my claim that one incentive to create art is to garner fame and the like.

    “How about this: most artists create because there is something in their mind that doesn’t exist in the world, and they’d like to see or hear that thing.”

    That probably would fall under the incentive I called ‘art for art’s sake.’

    “I think you’ll find that most artists are not concerned with making profit, but making enough to continue creating.”

    Well, then they’re in the wrong line of business. We have the cliche of artists starving and cold in a garret for a reason, you know. Ditto artists with day jobs as waiters. Art is usually a spectacularly unrewarding profession in an economic sense. And copyright doesn’t really change that too much; copyright funnels some of the money that can be made from a work to the copyright holder, but it doesn’t actually cause there to be more money in toto.

    If artists want to just make enough to get by, they should stop worrying about copyright and start pushing for public grants for art, or better still, improved social welfare programs for all as I was briefly mentioning earlier.

    “Rather than your convoluted ideas of putting the burden of paying for art on everyone else, rather than the people who are enjoying it (not to mention giving a free ride to the entities that do profit from artists’ works).”

    You’re the one who wants most artists to get by. I’m just pointing out that copyright is not actually a good way of accomplishing that. Also, if artists are getting by, what’s wrong with a free ride by others? Don’t tell me that it’s not enough for you to be comfortable, but that no one else can be better off too. While this sort of pathology concerning relative wealth is common, it’s pretty sad.

    “Your entire posting history in this thread screams “sour grapes.””

    No, I don’t think so. I just approach copyright from a very strictly utilitarian perspective. I have no animus against authors or copyright.

    “you seem quite incapable of actually picturing that the public is made up of individual people”

    It’s a little difficult to formulate over 300 million individual legal systems and have them all interact flawlessly with one another. Anarchists might disagree, but I’ll stick with trying to come up with a single public policy that generally works for most people.

    • David Newhoff says:

      Only chiming in at the moment to remind you, Anonymous, that if you switch ISPs or email addresses, I have to keep approving your comments. Sorry if this slows discussion.

  10. AudioNomics says:

    anonymous wrote: “No, it’s not hatred, not in the least. It’s indifference. As I said in the sentence immediately following the one you quoted, I have no problem with copyright law benefiting artists so long as it first benefits the public to the greatest extent possible.”…
    FYI the ‘public benifit’ comes from the incentive to publish or ‘make public’. Copyrights provide this incentive…without it, I would be more apt to keep creations/discoveries to myself, as the incentives would be gone ( I, for one, wouldn’t want to only rely on philanthropists to add to our public sphere… but know it or not, that is what you are advocating…)
    As for the rest of your post, i don’t have enough free time to play with you…I actually have to work for a living…

  11. Anonymous says:

    AudioNomics–
    “FYI the ‘public benifit’ comes from the incentive to publish or ‘make public’. ”

    That is half of it, and it is a good reason to not grant any more protection to unpublished works than is necessary to get them published. Author should certainly have the first opportunity to publish a work as they think it is ready for publication, but eventually enough is enough, and the public would be better served by a pirate who publishes the manuscript without permission than by the author who sits on it for far too long.

    Anyway, the other half of the public benefit comes from the public being as free as possible to use the work while it is under copyright, meaning that the scope of copyright protection should be limited, and to be completely free to use the work as soon as possible, meaning that the duration of copyright protection should also be limited.

    A copyrighted work is nice so far as it goes, but once a work is in the public domain, then it becomes really useful.

    “Copyrights provide this incentive…without it, I would be more apt to keep creations/discoveries to myself, as the incentives would be gone”

    Well as already mentioned, copyright is not the only incentive, and given how useless copyright is for the vast majority of works created, or even created and published, other incentives often are more important. Further, we should be willing to drive a hard bargain with copyright. It’s fine for you as an author to be more apt not to publish so long as you still do. Pushing you right to your limits where you are the most dissatisfied yet still willing to do your part is simple prudence from the public side of the negotiation. (Obviously we can’t do it on an individual basis for each author, but I’m sure you can see how this principle would work en masse)

    “( I, for one, wouldn’t want to only rely on philanthropists to add to our public sphere… but know it or not, that is what you are advocating…)”

    It’s not. For example, some authors will just want to make a name for themselves. Fame is an incentive for them. They can’t get it without creating and publishing, but it’s not philanthropy on their part.

    “As for the rest of your post, i don’t have enough free time to play with you…I actually have to work for a living…”

    Me too. But copyright policy is my favorite hobby, so I’ve tried to make some time in my schedule to discuss it. Sorry about the late reply though.

    • AudioNomics says:

      The thing is, you could argue “public benefit” for literally ANYthing…
      It would ‘benefit the public’ if farmers and grocery stores were forced to give away all their foodstuff. That would, of course lead to a heck of a lot less of both. Only very wealthy persons could even consider getting into that business (ie philanthropists…). I happen to see that as the very same thing you are advocating, ..only for creatives. Thank God the framers of the constitution weren’t so short-sighted.

      And as for ‘forcing’ people to publish… I’m just curious where you propose putting the surveillance cameras in our homes… for how would you know anyone created anything otherwise?

  12. Anonymous says:

    AudioNomics–
    “It would ‘benefit the public’ if farmers and grocery stores were forced to give away all their foodstuff.”

    Yes. And it’s been tried, several times in living memory, in various parts of the world. Doesn’t seem to work so well, suggesting that additional incentives are needed, such as making a profit.

    Likewise with creative works. For a long time we had no copyright, and some number of works were created, because there are incentives other than copyright. I think that copyright is fundamentally a good idea, and can provide an additional useful incentive to authors.

    OTOH, it is possible to have too much of a good thing. Farmers and grocery stores might be very happy if food prices were so high that everyone had to pay a fortune just to get cheap scraps. After all, everyone has to eat something, so there’s a great supply of customers who could be made to pay more without the farmers or grocers having to do anything more to earn it.

    Again, likewise with copyright, there is a point at which increasing copyright provides diminishing returns in the form of incentives to authors and diminishing returns in the form of quantity of works created. Eventually, too much copyright can interfere with the creation of new works (typically by new authors) because of the danger it poses to established works by established players, or simply because the tolls and blocks put in place to enforce copyright make it prohibitive for amateurs to participate.

    I’m not interested in abolishing copyright, just in making sure that we have not too little and not too much. Right now it looks like too much.

    “Thank God the framers of the constitution weren’t so short-sighted.”

    The framers of the Constitution made it so that only a utilitarian copyright system is legal at the federal level. (Although only because copyright was one of those things that was originally left to the states, and which they promptly screwed up; that’s the whole story of the Constitution right there, in fact) Everything I’ve been arguing basically flows from the Constitutional imperative that copyright promote the progress of science, with the mandate that copyright terms be limited being additional support for utilitarianism in this context. If you missed that, perhaps you’re too far-sighted and need some reading glasses. 🙂

    “And as for ‘forcing’ people to publish”

    As for forcing people to publish, I would never force anyone to publish anything, and I dare you to find an exact quote of me saying anything to the contrary.

    What I said was that if someone is creating a work, or has recently created a work, then they should have some protected breathing room so that they can prepare to publish the work once it’s ready, and in a way that they’re happy with. But that if they just sit on the work and don’t publish it, then the public isn’t being served by granting the author a copyright — even you agreed that a copyright exists to get works published — and so it may as well withdraw its legal protection.

    That doesn’t force an author to publish, but the looming deadline may entice an author to get up off of his ass and finally do so, lest he lose his copyright. And if even that isn’t enough, it at least opens the door to third parties who, at that point, would be doing a public service by pirating the manuscript, which by then would be in the public domain, and thus fair game so far as copyright is concerned. (Obviously it wouldn’t legitimize burglary, or computer hacking, or anything, but a few copies would likely have circulated outside of the author’s possession)

    You sure must be a creative person, because you keep imaging that I say things or hold positions which I absolutely don’t.

    • James_J says:

      I won’t speak for A.N., … that you think pirates have anything to serve other than their own bottom line speaks volumes to me. That pirates (can) provide a public service is insulting…. they serve their own greed. What a fuk’d up place we’ve come to when there’s a so-called ‘legitimate’ place in the discussion for these criminals.
      And speaking of reading things that aren’t there… i’ve not heard one single person (ever) on this or any other blog call for “increased” copyright… we just want our Rights protected like any other business would demand.

  13. the compulsory license absolutely does not include the right to change,rearrange or affect the original composition in any way. permission for this right and for derivative works must be obtained from the publisher only..artists who license a cover song, as its own title-but change it are subject to legal problems from that publisher..be not confused.

  14. Anonymous says:

    James_J–
    “That pirates (can) provide a public service is insulting”

    Oh, I greatly disagree. For example, the oldest extant copy of any of Plato’s writings is a 9th century Latin translation. A chain of people made copies and translations without the slightest bit of permission from Plato, or his heirs, and it is only thanks to them that such works exist today. Indeed, the vast majority of classical works exist only thanks to pirates. Then of course, there were piratical states, like Ptolemaic Egypt, where the collection of the Library of Alexandria was built by forcing anyone who came through to allow the Library to copy their books.

    (And lest you claim that this wasn’t technically piracy, as copyright didn’t exist at that time, let me point out that not only did the word ‘piracy’ in English acquire the meaning of making unauthorized copies as far back as over a century before copyright first came into being, but that even post-1710, many authors have complained about various forms of lawful copying amounting to piracy, such as how the US only granted copyrights to Americans until 1891.)

    Want a more recent example? Actors in the UK, in the 50s, had a desire to not allow TV episodes to be copied and rerun by broadcasters, since they preferred to get hired to act the episode out again. And indeed, they did manage to get royalties set so high on reruns that it really wasn’t commonly done for a long time. (This all sounds vaguely familiar to me, somehow) A consequence of this was that the BBC had a longstanding policy of destroying or erasing their copies of shows since they didn’t expect to ever rerun them. Some shows are entirely lost, others have many episodes surviving. The example that is most well known is probably Doctor Who, which is missing a lot of material from the 60’s, yet actually came through better than most programs. Some of the lost material has been recovered thanks to fans who pirated copies of the show using film cameras pointed at their tv sets, and microphones held up to the speakers. The BBC has turned out to be quite grateful to anyone who can provide them with anything that helps to cure the blunder that they made.

    And of course, there’s far too much old computer software to list which has survived ill-conceived copy protection schemes and the failures of working tapes, disks, and devices to read them, thanks to pirates.

    As I see it, anyone, who for any reason, helps to keep a work from being lost has performed a public service. No one is better off when we lose some of our artistic history to the ravages of time and neglect. Ideally, there won’t be a need for this, but it’s good to have a safety net.

    “they serve their own greed”

    So do authors. If authors didn’t want money, the incentive of copyrights — which is only about money — would have no effect on them. We wouldn’t’ve even bothered to gin it up. As Samuel Johnson famously said, “No man but a blockhead ever wrote except for money.”

    Really though, as I’ve pointed out, there are other incentives, sometimes stronger incentives, to create other than money. Likewise, some pirates have reasons to pirate other than money. Indeed, there are whole communities of pirates who love works and simply want to see them shared as widely and as rapidly as possible because of their love for the works. They don’t make money, which is to say that due to opportunity costs and sunk costs, they lose money through piracy, but this is the sort of fanaticism that one sees with fans. The anime fansub community is a good example of networks of people who record shows abroad, translate them (sometimes better than the later, official translators), subtitle them (a laborious process, I assure you) and send out copies to other fans who are not fortunate enough to be able to appreciate the work in the original.

    Another good example then, so long as fan communities are being mentioned, would be derivative works that suffer legal ‘damage’ due to problems with the licenses under which they were created. This has been showing up more and more as TV series are made available for sale. WKRP in Cincinnati is a good example; there was a lot of licensed music that due to the expense, could not be used when copies were finally sold on DVD. Instead, sound-alike recordings were used, generic substitute songs were used, and in some cases where there was dialog that couldn’t be separated from the music, different actors had to redub some lines, and shows had to be re-edited. The only way to enjoy the original as it was meant to be enjoyed is to pirate. Mystery Science Theater 3000 also suffers from this, but thanks to a strong fan community (which was encouraged to make and share tapes by the show’s creators from early days) it’s not too hard to get illegal copies of episodes which so far cannot be legitimately published.

    So what best serves the public interest? Allowing works of art to remain intact and able to reach an audience, or submitting to the greed of the licensors who couldn’t care less about having worthy works molder in a closet somewhere until they’ve lost their audience and their relevance, simply because a stiff fee wasn’t paid? Remind me who is motivated by greed?

    “And speaking of reading things that aren’t there… i’ve not heard one single person (ever) on this or any other blog call for “increased” copyright…”

    Then I guess you don’t get out much; I see it all the time. One of the latest battles, related to this one, actually, is for abolishing the existing compulsory license, which despite not having destroyed the music industry in the 105 years it’s existed, is apparently destroying the music industry. David Lowery likes to yap about that, to name one person.

    But why merely look at blogs? Blogs are just people talking. Let’s look at some of the real players:

    The World Trade Organization wants the US to abolish its homestyle exception, and given that the US lost its case to keep it, all that’s keeping that going is the strength of the restaurant and bar lobby. WIPO, the World Intellectual Property Organization, has for years been pushing its Broadcast Treaty, which would give tv broadcasters copyrights merely for transmitting works, regardless of whether they created them or not. The Trans-Pacific Partnership is being negotiated in secret right now (it’s secret because people might object to it if they knew what was in it) and would enlarge the scope of the reproduction right to non-fixed copies, would enlarge the scope of the distribution right to prohibit parallel imports (which the Supreme Court recently found was legal under the First Sale exception), as well as some other things. It also would push longer copyright terms on numerous countries, though apparently not the US, where they must already be too long enough.

    Of course, the simplest rebuttal to your claim — which really only indicates that you lack awareness of these issues — is that in 1790 copyrights in the US were only granted for books and maps, and only for 14 years, with an optional 14 year renewal term. If no one had ever called for copyright to be increased after that, we never would’ve had anything since. Obviously people call for increasing copyright, and have for centuries. I don’t think that anyone is trying to keep copyright exactly the same as it is right now. The maximalists are pushing to always make it last longer, be broader in scope, and be harsher toward infringers. Whereas reformers want it to only last long enough, to only be as broad as necessary, and to only have remedies that are both useful and just. Right now, that means reducing a lot of copyright because it’s gone too far.

    “we just want our Rights protected like any other business would demand.”

    The oil and gas companies want their rights to frack protected, and to hell with the effects on the people living nearby, who may have to suffer from polluted water supplies or increased tectonic activity. The financial industry wants their rights to buy and sell protected, and they don’t like being regulated one little bit. Amazingly enough, there are people in the US who think that no business should get to run so roughshod over the public interest.

    Further, everyone has a natural right to make copies of works, to distribute copies of works, etc. The rights you want protected are rights to prevent that, rights which have been granted to you. Who among the public would tolerate a loss to their right of free speech if it didn’t benefit them in some greater way? There are reasons for copyright and there are strings attached to it. If you don’t like it, you’re free to stop creating works or to go away, but you have no more or less of a position to argue than anyone else does. I want my rights protected too.

  15. Anonymous says:

    Anonymous, stay Anonymous. It suits you.

  16. AudioNomics says:

    Wow Anonymous, you must be a comedian in your spare time…
    Let me condense your (novel length) joke from above:
    A lawyer walks into a (room full of writers, musicians, filmmakers, artists, and other creatives).
    He tells everyone what their motivations are, while sipping on his $400 drink.
    He tells this room full of struggling artists that they are greedy to expect fair payment for their LABOR. (we’ll leave out the ‘blood-sucking-lawyer bit) ; that people’s desire for free entertainment is somehow a noble cause…so noble that you all should starve henceforth, as wanting a roof over your head and putting food on the table (or just having a table…) is the worst possible sin. That his expensive law school and hours of studing are somehow different from the dedication and expense and lifetime of honing one’s craft the artist must endure… That the product that these folk make, that happens to be sooo desirable that people will go to any means to get… that there is no value in what you do. That the 10’s and 100’s of thousands of dollars that pirate sites rake in- in advertising alone… that that is not greed, somehow.
    I’m sorry… i have somehow missed the punchline…

  17. Anonymous says:

    AudioNomics–
    “He tells this room full of struggling artists that they are greedy to expect fair payment for their LABOR.”

    Well, I’m not condemning anyone for their greed. In fact, given that copyright is only an economic incentive, it wouldn’t work if authors didn’t want money. After all, copyright can’t make people famous, or well-respected, or artistically satisfied. It doesn’t even work for all kinds of ways of exploiting a work or artistic labor for money.

    But if someone is going to condemn pirates because some of them are incentivized by a desire for money, well, we may as well condemn authors too, since they share the same incentive.

    Also, as to your specific wording, copyright doesn’t guarantee fair payment for labor. In fact, it has little to do with labor at all. Whether an author puts in a lot of labor or just a little into creating a work, the copyright he is granted is the same either way. The copyright may have a value greater than, or more likely less than, the value of the labor. And the way a copyright holder goes about exploiting a copyright in order to make money from it is typically to charge for copies of works, which is more like selling goods than labor, or to charge for a license with regard to the work as a whole, which is more like a toll than for labor, especially since if there are many licensees, the value of the labor may be paid for repeatedly without any further creative labor on the part of the author.

    This is one of the old criticisms of copyright: a laborer, like a plumber, gets paid once for his work. He doesn’t keep getting paid after that, every time you flush your toilet.

    “that people’s desire for free entertainment is somehow a noble cause”

    Desire for knowledge is generally considered to be noble, yes. And as we’re generally talking about published works here, there are no concerns about privacy v. knowledge.

    “so noble that you all should starve henceforth, as wanting a roof over your head and putting food on the table (or just having a table…) is the worst possible sin.”

    There’s that imagination again. I have no problem with authors prospering, I just prioritize the public interest. I’d like to see a situation in which everyone’s happy.

    “That his expensive law school and hours of studing are somehow different from the dedication and expense and lifetime of honing one’s craft the artist must endure…”

    No, there’s no great difference. Although I should point out that like the plumber, lawyers sell their labor. If a lawyer comes up with an innovative and successful legal strategy, such as Sir Orlando Bridgeman who, IIRC, developed the contingent trust, he only gets paid for his actual work. There are no royalties, no residuals, nothing to stop people from applying the same ideas to new situations themselves and cutting us out. I’ve had clients who got what they needed from the initial free consult and didn’t bother to hire me or pay me for anything further. Happens to lawyers all the time. If there is a difference, perhaps it is that lawyers don’t whine about it so much.

    “That the 10′s and 100′s of thousands of dollars that pirate sites rake in- in advertising alone… that that is not greed, somehow.”

    Nope, still greed.

    “I’m sorry… i have somehow missed the punchline…”

    Well, there’s no punchline, but I’d agree you’re missing something.

  18. AudioNomics says:

    Art isn’t a scientific discovery (ie, knowledge), it is personal expression… it’s not “information” it is a luxury good. Don’t confuse the product with the container.
    If you have a problem with royalties…there is an easy way around that: buy a lifetime license for the incredibly low price of one dollar for endless enjoyment of a song. If however, you intend on setting up a business that relies soley on music, you need to pay your suppliers… it is that simple. I can buy a lawnmower… or i can rent one… if you, as a music delivery (radio, streaming ,etc.) company don’t want to pay royalties, there is always the option of buying out the rights…though it would be a much higher upfront cost… so instead they “rent” their product. Do i really need to explain this?

    And as a supposed copyright lawyer, why do i need to explain to you that copyrights have ZERO to do with “ideas” (an idea is something strictly forbidden for copyright protection.).. i think you are the one who is confused… who is “missing something”

  19. Anonymous says:

    AudioNomics–
    “Art isn’t a scientific discovery (ie, knowledge), it is personal expression… it’s not “information” it is a luxury good.”

    Well, the copyright clause in the US Constitution empowers Congress “To promote the Progress of Science … by securing for limited Times to Authors … the exclusive Right to their … Writings….” In the English of the late 18th century, ‘science’ meant knowledge.

    And of course, if copyright didn’t deal with knowledge, but was merely about personal expression, one would have to wonder why the very first Copyright Act in the US only granted copyrights to books and maps. Maps are very important pieces of knowledge, but they’re no so expressive. And if only the expressive elements of a map were deemed important — the little engravings of dragons in the oceans, and such — why did engravings generally, not get protected until 1831?

    “If you have a problem with royalties”

    I don’t. Copyright holders can arrange just about any sort of payment system they like, and I won’t be bothered by it. But sometimes it is appropriate to impose a default system which can be used in the absence of a negotiated agreement. And sometimes it is appropriate to limit copyright such that no payment is owed. A nation’s copyright policy should be driven by what best serves the public interest. If that happens to also serve an author’s pocketbook, then great. If not, then equally great. I don’t think that anyone has a problem with authors prospering, it’s just that that should not set the agenda.

    “And as a supposed copyright lawyer, why do i need to explain to you that copyrights have ZERO to do with “ideas””

    Yes, yes, I’m aware of the idea/expression dichotomy, as well as the difference between an idea and an invention. But I think you understand my meaning. It’s exceedingly rare for anyone to get rights in those fruits of their labor which are not property. It’s exceedingly rare for anyone to be granted a monopoly by the government as a matter of course. Yet in the copyright world, this is all treated as being perfectly right and normal, with any deviation being utterly intolerable. If authors had to live and work as most everyone else does, I doubt that they’d really find it to be so hard as some imagine. In fact, very many authors do sell their artistic labor to make their living, rather than relying on their copyrights. It’s not a big deal and it’s not the end of the world. In fact, it’s been the norm for most of history.

  20. Patrick Landreville says:

    Copyright in no way stifles free speech. You have the right to your speech but you do NOT have the right to mine. Free speech has never meant anyone has the right to anothers speech it simply protects the rights to owns OWN speech.

  21. Anonymous says:

    Patrick–
    “Copyright in no way stifles free speech. You have the right to your speech but you do NOT have the right to mine.”

    Well, this was discussed at length around here previously, IIRC. But to quickly sum up:

    If my right of free speech only protected speech which I authored, then if I went out to the sidewalk and started reading aloud from, oh, let’s say “Tom Sawyer,” the government could prohibit me from doing so on the grounds that they didn’t like the opinions set forth in that book. And having no free speech right in the book to be recognized by the government, because I am not Mark Twain, I’d have to be silent.

    Do you think that this can be reconciled with free speech as it is generally understood? I don’t. And my understanding of First Amendment caselaw suggests that not only would it be recognized that my right of free speech encompasses the verbatim performance of Twain’s words, but that my right to do so is generally guaranteed against government interference.

    A more sensible theory of copyright is that it is an infringement on free speech, a right which encompasses both the right to engage in original or repeated speech, but that it may be an acceptable infringement provided that the benefits copyright provides to the public outweigh the harms that copyright causes the public.

    It’s similar to other regulatory infringements on what would be otherwise absolute rights. E.g. libel, broadcast licensing, gun licensing, Terry stops, etc.

    I welcome your thoughts on this.

    • John Warr says:

      Government may not interfere with your rendition but Mark Twain could.

      This is similar in scope to where teh government would not interfere with my camping out in your back yard, but affords you the right to stop me from doing so under trespass laws.

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