Copyright Critics Don’t Quite Get Artists

Copyright critics, particularly those voices murmuring in the halls of academia and legal scholarship, seem to question the purpose of copyright as though the law itself has generative properties.  While it is true that copyright imposes one kind of constraint, and that constraints in general tend to be generative in the creative process, copyright’s critics focus a great deal of attention on the productive implication in the language of the Copyright Clause itself, meaning its purpose “to promote the progress of science and the useful arts.”  A popular viewpoint asks a reasonable-sounding question:  Does copyright produce the public benefits conditionally implicit in the clause; and if not, has copyright worn out its usefulness?  This question boils down to skepticism about copyright’s presumed role as an incentive for the creation of works but fails to account for a misunderstanding of creators and their many motives.

We can no more ask copyright to produce creative works than we can ask civil rights laws to eradicate prejudice from the hearts of all mankind.  And even if critics do not mean literally to suggest that the law itself is generative, the language often used does covey this connotation.  For instance, one common argument made begins with the irrefutable statement that people created works before copyright, followed by the reasonable prediction that they will still create without copyright; and this premise then serves as the basis for skepticism about copyright as an incentive for the creator.  But this view of the creative worker choosing to engage in his or her process is both naive and cynical, in part because it begs that mercurial question about the role of money.

Artists create work because they are driven to do so, and the extent to which profit is on the mind of any particular artist during the production of a work is first, nobody’s business; and second, too complexly variegated among creators to use as a basis for examining incentive.  A traditional rap artist, for example, produces his brand of poetry out of real experiences from the streets and simultaneously hopes that his works are a path out of those streets.  There is no point in trying to parse these overlapping motives in a futile attempt to properly understand one artist’s incentive, let alone to then apply any half-baked conclusions to describe the motivations of all creators.

Copyright critics may hear artists say things like they’re “not in it for the money” or that even thinking about what might be done with a work after its completion can be detrimental to the creative process itself.  But these utterances are not so black-and-white as they might seem, and their themes are too often taken out of context in order to further support a thesis that a disconnect exists between copyright and the incentive to produce.

For instance, when the creative worker says he or she is not expecting to make money, this is usually a half truth reflecting an understanding that any attempt to predict the alignment of the stars that must happen to make a work financially successful is an exercise in madness. This does not mean that most creators are not hopeful, sometimes rather desperately, that a work-in-progress will be at least modestly remunerative; it is merely a recognition that this outcome is nearly impossible to predict in most cases.  A songwriter may write fifty songs in a year but cannot say for certain why seven of these might be recorded by various artists or why one song in particular makes the charts. Invariably, some of the rejected songs were the ones she thought were the best.  So, the venture is always risky, and no creator possessing any common sense expects a promise that his or her work will be desired by the market.  Nevertheless, out of the millions of creators who choose to engage in these ventures, often against the advice of friends and family, comes the diversity of works that collectively make life better for all of us.

Where the common critical view is faulty, I think, is its too-literal interpretation of the incentive/creation paradigm, a mistake easily made by salaried academics but not one made by artists, who are typically satisfied when any one work can generate enough compensation to more comfortably produce future works.  Using a simple hypothetical, an author may produce volumes of un-marketable works, then perhaps a profitable but pedestrian work, and then one masterwork that will become timeless.  But without his secured financial interest in that middle, profitable work, the probability that society will be the beneficiary of the masterwork is lowered.  Of course, few stories follow this linear progression, but the point of this over-simple example is that when copyright provides at least a basis for economic stability for the artist, we enjoy a system in which the vast diversity of artists continue to take all of the risks, while society is solely the beneficiary of the most favored works produced without taking any risk.  By inviting a model without copyright, we could well trade the diversity we now enjoy for a more limited number of works produced solely by creators who already have economic stability. It is perhaps not surprising that such an elitist outcome would be overlooked from the vantage point of relative security within academia, where pressure to produce certain original works does often exist, but without the kind of risks borne by the artist, who lives by the fruit of that labor alone.

This question of copyright’s relevance is, of course, one predicated on technology changing the marketplace. It is assumed (though not on the basis of any evidence) that digital tools for creation, and especially distribution, of works somehow obviates the need for authors to retain ownership of their copyrights in order to sell to the market through various licensing regimes.  In this regard, the critic’s assumptions already contradict the original claimed examination of copyright as an incentive to create works because the only relevant change that has occurred is with regard to the distribution of works after they have been created.  Yes, artists have many new digital tools for production, but nothing about the motivation to create or the labor that represents human transference of idea to rendering upon some medium has changed in any way that is relevant to examining copyright.  Only the distribution of finished works has been changed by the Internet, and so the examination by critics really should not pursue the incentive to create question in the manner that appears to be the trend in academia.

Having said that, however, it is worth noting that copyright does provide incentives other than financial that are indeed relevant to authors, even if their intent might be to make work available for free without expectation of any revenue.  And this is one way in which the highbrow copyright skeptic seems particularly cynical in failing to recognize that an anything-goes market most certainly can de-incentivize creators to produce or distribute works, if they must relinquish their power to control the manner in which their works are used.

Further, if it is true that a copyright-free future could shrink the pool of producers to those already financially secure (as predicted above), this suggests that all of the non-remunerative benefits of copyright might be of even greater value to those authors still willing and able to produce.  And in the absence of those rights, we could easily see a reduction not only in the number of producers, but also in the number of works produced by that elite few. In a practical example, imagine the trustafarian artist working in the most altruistic manner, producing wonderful works solely to be experienced; he doesn’t care about money, but he does have to accept that McDonald’s can use his work to sell hamburgers, which betrays everything he is expressing.  It is not farfetched to imagine the artist in this example will withhold works from public view, even if he continues to produce for his own pleasure.

In fact, as reported by Gabe Friedman for The Atlantic, graffiti artist David Anasagasti filed a copyright infringement suit against American Eagle Outfitters for featuring his work in their ad campaign. Graffiti is certainly a medium that represents a permission-free spirit and is a public expression offered without expectation of compensation; but Anasagasti’s suit, right or wrong, and regardless of the ruling, makes the point about copyright’s incentive in this context.  We could argue ad nauseum about the legal merits of his case, but the fact that the artist cares is what matters. Deprive any kind of artist control, particularly to fend off commercial interests, and he/she may well decide to deprive us of future works.

Once we shift attention to the matter of distribution in the digital age and the opportunities and threats faced by creators, we tend to hear less theory from academia and more from corporate interests with a financial stake in an Internet that rejects most regulations, including copyright.  The academics, it seems, tend to focus on legal theory —  the intent of the framers; distinctions between property rights and natural rights; the question of copyright’s function as an incentive, and so on. But the question that should be asked is the role of copyright as incentive for the distribution of works, with an honest look at the very complex manner in which sustainable distribution systems feed the cycle of new production.  As I say, this is usually when the conversation tends to transition from legal theory to market practices, and in that regard, we can look at data.

While it’s true that there is no one solution for all creators and all media, the general premise that is skeptical of copyright in the digital age appears to be based on a few assumptions that have almost entirely failed to manifest in the digital age.  And despite evidence to the contrary, these assumptions continue to fuel predictions of a brighter future for creators, fiddling as Rome burns. The foundational assumption is that the author of a work can sell directly to enough real fans through the nearly free distribution platform of the Internet (with free tools graciously offered by various tech companies) that she can bypass licensing regimes with traditional distributor entities.  Without the need for this kind of licensing, the author no longer “needs” copyright in order to engage in newly-available, one-to-one transactions with customers.  Moreover, the author keeps nearly 100% of all proceeds rather than a percentage of the distributing entity’s revenue, and this hypothetical revenue is expected to offset any losses resulting from unauthorized acquisition of the works.  In essence, the argument boils down to this:  That while the Internet fosters threats (e.g. piracy & lower prices), it also creates opportunities (e.g. self distribution & greater percentage back to authors) that are predicted to be more potent than both the threats and the pre-digital models.  The problem is that none of these hypothetical benefits for creators are becoming manifest at any scale that we can take seriously as a basis for questioning the catalytic role of copyright in supposedly “outdated” models.

While we do hear occasional examples of digital-age opportunities proving to be somewhat successful for specific creators, the reason we continue to encounter the same handful of anecdotes repeated in editorials, blogs, and even testimony before Congress, is that these stories are dramatically outnumbered by the millions of examples in which both artists and consumers are facing a loss of works to due to threats posed by the digital age.  This may seem counter-intuitive because to look at the market right now, there are more works available than ever, but this expansion may be temporary because we are still in a transitional period, enjoying the bounty of the moment, while not seriously considering the other side of the threshold if certain threats are not properly addressed.

Medium by medium, one has to look at threats and opportunities differently, and this conversation unavoidably includes the subjective assessment of “public benefit,” leading to the interesting but futile debate over what constitutes works of value (i.e. what we hope survives or fails).  Nevertheless, it seems reasonable to predict that if the vast majority of creative producers, including those whose work supports authors, are overwhelmed by threats, then the net result over time will be a reduction in the volume of works of value by the broadest, sensible definition of the term.  Copyright alone is not the answer to the many forces at play affecting all workers throughout the middle class; but weakening copyright for the creative sector has at least an aggravating — if not outright destructive — effect when combined with those other economic pressures in the same way that, say, stripping collective bargaining rights exacerbates the woes of another kind of labor force.  So, intellectual discourse within the comforts of academia are all well and good, but pollyanna assessments of almost any industry sector right now do reek of elitism, blind to the realities of those who depend on the rights in question.

© 2014, David Newhoff. All rights reserved.

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150 comments

  • “John would be getting an extension on his house or something, and the joke used to be, ‘Okay! Today let’s write a swimming pool.’ It was great motivation.”

    “Then in the next three hours, ‘Help!’ appears from nowhere, you’d suddenly get the idea, this’ll be a hit, this is a good one. You become aware what you were doing was making money. Making good money.” – Paul McCartney

  • This may be a very simplistic view but it is how I see copyright in my own life. When I create a work, I copyright it so no one else can claim authorship of my work. Academics cite sources all the time, the author does not get paid when they are cited in a research paper or their work is included in the bibliography. Without some sort of governing body other less creative people may take your ideas and pass them off as their own. Having your work copyrighted is way to prevent that from happening.

    My wife is an handmade paper artist and she has never copyrighted any of her work. But that has never stopped her from making and selling tons of artwork. Once the work is sold, that’s it, there is no more money to be made from that particular work.

    Obviously, some artists create work that can be put into a format that can be mass produced and each unit sold can make money. For this kind of situation their design or content needs to be copyrighted so someone else can not claim authorship and start mass producing without permission.

    What I find interesting is that there is often a difference between the one who is credited with the authorship of something and the one who gets paid because they are the rights holder. John Lennon and Paul McCartney may be authors of a particular song but they may not be the copyright holders even though they were the authors of the work. The copyright holder gets paid. So, in this situation, the creative force behind the work is not receiving any benefit from making the work, where as, less creative but perhaps more business savvy people are benefiting greatly off of the work others have made.

    So, if you have direct control over how your work is sold – you don’t need copyright. If your work can be mass produced (physically or digitally) – you need copyright or something like it. It wont guarantee payment or that your work wont get stolen/pirated but at least you tried to protect your authorship.

    • Lennon and McCartney still own the copyrights. What others own are the publishing rights, which (if im wrong, please correct me) are different.

      Lennon and McCartney automatically received royalties as required by law regardless of who the song publishers are.

      The pro -piracy crowd have pushed the “creators don’t get anything anyway” meme to justify their actions. It’s not true.

    • Can you elaborate, Jm mac?

    • I don’t understand people who believe there is something wrong with artists making money, sometimes lots of money.

      What, they should work cheap and the people who sell their work become wealthy?

      • That’s the crux of it, John. I don’t know why it’s hard to understand. Yes, in the bad old days entertainment companies sometimes screwed artists. These guys always screw artists.

  • I’ve said before that I photograph mostly historical things, and natural history. I don’t claim to be great photographer, I simply record things. Nevertheless, the photographs have been used in addition to blogs and discussion forums in: university courses, guidebooks, by national ecology societies, museums, academic articles, wildlife societies, and books. I have several thousand images on flickr, which garner about half a million views a year, and a blog site which links and describes the things that is in excess of 4500 pages.

    But I don’t need to make this stuff available. Certainly not to the advantage of some corporation, and indeed in the last year all of them were removed from Google Images, I may also remove them Bing too.

    If I can’t keep the re-usage away from commercial interests then why make them available on the internet? It won’t stop me from recording and describing more artifacts, but there is no reason, at least for me, to make any of it available for commercial exploitation.

    • Yeah this argument is very familiar, but there is already an overbearing amount of content online. Especially photographs. I know there is some kind of dream that the hive mind will finally come together and delete all the stuff online and the Internet will be a barren wasteland, that is, if it doesn’t bend to copyright lobby demands.

      • That is fine I’ve turned down many that thought they could get a freebie. The difference is that whilst there may be many images there are far fewer that have context. I managed to find a rare beetle a few months ago in central France. There are other images of this species extant, the thing is that we have a record of it in that particular location. A contact put up a photo of a dragonfly on flickr and labeled it as species X sometime later someone else came along and re-identified it as species Y last recorded in the UK in the 1950s. Again a few years ago I photographed a leafhopper (approx 5mm in size), its only other recording was is salt marshes in Kent. I was recording it in central England.

        I have detailed images of Romanesque baptismal fonts. Photos of these have been taken in the past; there are some small grainy ones from the 1960s printed in some specialist books, none however appear on the web. Those that I took are now part of an academic database on Romanesque sculpture.

        I also have 1000s of detailed images of the scenes of Gothic stonework on many of the French cathedrals, similar numbers of detailed images of French, German, Dutch, and English stained glass panels, and individual scenes from the 13-17th century. When I got back from last trip to France (2000 mile car drive) I had some 3000+ images. A similar number sit on my computer that were taken on a trip through Germany last year, and another similar batch sit there of Italian Renaissance works. All in all I’ve only made a handful of these images available.

        In my garage sit about 5000 Ektachrome images that were taken by my sister-in-laws husband, a French documentary film maker, whilst on location in Turkey and Syria during the early 1970s. These are photographs of places and landscapes that have changed beyond recognition. The question is whether I will ever be put on the web?

        Recall that none of the above appears or ever will appear in Google Images.

      • John,

        I agree that’s some fascinating and unique stuff, and maybe a little shame that some of it will just rot in your garage forever. But you know what will appears on Google Images? Billions upon billions of other pictures.

        Unless someone really wants a picture of a dragonfly taken in some specific random place, usually any decent picture of a dragonfly will do.

      • Sure any photo of a dragonfly will do is all you want is a photo of a dragonfly. But art and science are not advanced by “any old photo of a dragonfly will do”.

      • Yeah but it’s like the “tree falling in the woods” argument. You might have a great dragonfly photo but the one people will see is the one that is produced by a photographer that allowed it to be shared with the most people in the first place.

      • Isn’t your concern the promotion of art and science: quality rather than quantity? And isn’t the concern of some around here that mass dissemination has resulted in a dumbing down of music, film, etc.

        The most stunning images of dragonflies I see come from a private discussion list of Odonata photographers. The images get sent out by email when someone posts to the message board system but no images are kept on the board itself. Very few of the images are ever placed on the internet per se, and not in the resolution disseminated via the mailing list. The individual photogs have their own sites with a few example images in small sizes. Basically if you are a publisher who wants jaw dropping images of Odonata that is place to go talk to people. These are OK if all you want is an image of a dragonfly:

        https://commons.wikimedia.org/w/index.php?title=Special:Search&limit=500&offset=0&profile=images&search=odonata

        These are better not not how the number drop off as you start looking for CC-BY images only:
        https://www.flickr.com/search/?text=odonata&sort=interestingness-desc

        and the group I’m talking about well they have multiple images of a species a similar quality documenting Odonata ethology.

        Odonata BTW are relatively easy to find and photograph. Try leafhoppers:
        https://commons.wikimedia.org/w/index.php?title=Special:Search&limit=500&offset=0&profile=images&search=Cicadellidae

        https://www.flickr.com/search/?sort=interestingness-desc&text=Cicadellidae

        Once again note how the quality of the images drops off as the photog relinquishes control via the license.

      • Tree falling in the woods John. If you don’t want to share your work with the world, you haven’t done anything for the world no matter how much effort you put into it.

      • There in lies the problem. If there is no incentive to make the works available why do so? Many people refused to publish least their work was taken, that is why copyright was brought in. If copyright is no longer relevant what is the incentive to publish?

        BTW very few give a shit for the world. Robert Hooke rarely published anything in later life as he believed that his ideas had been ripped off by Newton and others, without credit.

        Many images on Commons that were uploaded from flickr have been stripped of the photogs watermarks. Check back with the flickr account and you’ll find the photog is no longer using CC licensing. Check out this photog who used to be a big Commons supporter
        https://www.flickr.com/photos/saffron_blaze/

  • David…
    Great post. Copyright IS important. Most people do not understand the legalities that lie within, and that creates many problems. The first problem involves the people who exploit those copyrights. Since probably the time of Bach or shortly thereafter, there were the usual unscrupulous agents, publishers, managers, etc. who saw an opportunity to exploit creative people who had the talent that they, themselves, did not. This situation has remained essentially unchanged until today…the only difference being that in a world-wide market, there is much more money to be made from that exploitation.

    Copyright is basically just that…the right to copy…who owns that right? In the US, it is implicit in the creator of the work. He needs fill out no forms, register nothing, send no money to anyone…At the moment of creation, the creator establishes his total, un-compromised, right of ownership of ALL RIGHTS to exploit his creation in any way that he (or she) sees fit to do so. Those rights belong to him without any need to do anything…unless he is of a mind to cede those rights to someone else. Hopefully he will get some money in return.

    If I write a song, and someone else records it…now there are two sets of rights. There is the right of ownership of the underlying material (the song) and there is the right of performance (the singer). Those rights are separate…so a record label may negotiate with the singer for the right of mechanical reproduction, the right to use the singer’s likeness in promotion, the right to record his voice…but I, as the songwriter own the copyright until I give it up…which is why record companies usually demand your publishing (the publisher controls the copyright) as a condition of your record deal.

    This, in my opinion, is why so much music sucks lately…A & R used to be a real job. It meant Artist and Repertoire. Simply put…someone who knew what they were doing would match a great song with a great singer and make a great record. Holland, Dozier, Holland never made a record…but they wrote most of Motown’s hits. Berry Gordy, by the way, owned all the publishing. Jobete Music is still one of the most valuable catalogs out there. The writers got only their writers royalties and they were lucky to get that. It was common practice for record executives to either take sole credit as writer or to add their name as writer in order to get their hands on those royalties. That still goes on today…If you know anything about the history of music, you know that Morris Levy, Berry Gordy, etc. were business people. But they knew the value of publishing. So they became “songwriters”…

    The reason that the “360 degree” deal has become so prevalent is because they aren’t even ashamed to be stealing these rights anymore. Film companies demand the publishing from a composer before they will give you a job. Imagine, if you will, a movie company demanding the publishing for an Elvis song…they would be laughed at. And yet it’s the same…it’s a piece of music stuck in a movie and one gets a sync license (and gets paid a nice piece of residual money) and one reams the composer. They don’t PAY him for the publishing, they just take it…and then, they are likely to use it in future movies, and re-title the piece…and not have to pay the composer twice…or three or four times.

    The point I’m getting to is that since we have seen what this stuff is worth, why should the artist or musician or creator give up ANY of those rights or allow his work to be used without payment? And there are many reasons, as we all know by now…but chief among them in my opinion, is that the creators…who are after all, creative people…are all too easily snowed by someone saying, “We love you, let’s get you in the studio…”

    And that opens them up to all kinds of bullshit.

    In my view there is the same gulf between the artist and the exploiter as there is between a woman’s right to choose and someone who bombs abortion clinics with the intent of killing doctors who perform them. Not less than that. The business of exploitation of the arts is set up that way…so that the business gets the steak and the artist (who makes the thing possible) gets the scraps.

    It’s also why I keep looking at a future that the Internet has made possible…where people can control their own destiny by maintaining control of their own rights. At some point, someone will get smart and realize that it might be possible to make more money by being in business with the artist than by trying to steal from him.

    Unfortunately, my experience has been that the people the entertainment business attracts are usually pretty sleazy…and that has also remained unchanged since the Middle Ages…

    • Thanks, Overviper. I do hear you, but I would counter that businesses will respond to market pressures, and it will always be suppliers, be they employees or contractors, who feel the pinch first. I just met some songwriters in Nashville who don’t feel at all exploited by their publishers. They’ve been given advances to write songs, and they know that getting an artist to record a few and that getting one or two onto the charts is essential, but the only exploitation they really see is a combination of piracy and streaming, which doesn’t pay enough to compensate for lack of music sales. In another example I know a label that had a 50/50 deal with all artists and was talking about closing shop, if they haven’t already because there is simply no substitute for not selling songs in some form. I’m not saying there aren’t sleaze balls out there, only that the so-called new models don’t work for people who are more than eager to partner with artists. I think it’s also tough to generalize about exploitation in “the arts,” when each medium/industry has its own mechanisms and challenges; and we invariably get sidetracked by matters of taste. I don’t have any interest in seeing Transformers, but I’m quite confident the costume illustrators on a gig like that don’t feel terribly exploited; it’s a cool job that pays the rent rather comfortably.

      I think the reason music or film or anything else “sucks,” if we are to agree on that aesthetic judgment, is that economic pressure will always drive investment toward safer fare that is popular with the market and reduce experimentation and risk. I don’t get the fascination with EDM, but I’m not surprised Las Vegas is investing in it. So, my overall point is systems that foster economic stability for a diversity of creators is good, and systems that exert exert economic pressure on ANY creators is bad.

      • Didn’t have time to get to this yesterday…
        Nashville seems to be a different animal in the music world…kind of always has been. There has always been more respect for the songwriter, and maybe it’s because the music that comes from there is music that has depth of lyric and tells stories instead of some whining adolescent just putting their angst in your face.

        Much of pop music today is groove oriented, not lyric oriented…and possibly the exception is the pop anthem, where the hook is repeated endlessly to the beat of a drum machine…I don’t know, maybe I’m old. I can’t get excited about it…

        You’re right about the fact that the marketplace will determine what happens…and this is basically as it should be…except…

        When you have an industry that is focused on sales instead of quality, and they are presenting product to a public that has been desensitized so they don’t really listen but instead are focused on the visual…you wind up with music in its current state…which in my opinion is just not very good or very creative.

        Not to say that such isn’t out there…but you have to go look for it. The powers-that-be do not present it to you. There’s a reason for this…they do not want you to be able to tell the difference. And the difference between good and great is vastly larger than the difference between bad and good. If the merely good is good enough, they can keep selling you endless clones of boy bands, pop divas, and the like.

        As long as you don’t demand more, you will get less…

        If the public was able to tell the difference between the Beatles and Katy Perry, there might be more respect for the artist and less of an inclination to dismiss music as “throwaway”…and less inclination to steal it. Again, maybe I’m just old…but I still pay attention…

      • I agree that Nashville is very likely its own thing, though this was my first visit, and I’m no expert. While there, though, I did wonder if people pirate country songs as much as other genres. There’s something about the blue-collar themes that don’t jibe well with ripping off the artists who created the song, but this may be pure fantasy on my part.

        Regarding contemporary work, it’s tough as hell to make these judgments, but I would say that I’m less conspiracy-minded about even the corporate powers that be. Investors/corporations have always wanted to make a profit and have always to some extent pandered to popularity, regurgitating sounds, themes, etc. that have proven popular. Thus begins the chicken/egg discussion as to whether pop culture makes audiences less sophisticated or the other way around. For sure, it’s a vicious cycle. But we do have to be careful about being old snobs about it. I was just thinking about this while in the car with my 12 year-old listening to her station. I didn’t dig the sound of the song we were listening to, but she told me its lyrics are all about kids finding the strength to deal with being bullied. Right or wrong, this is a big theme for kids today just as the Cold War was a theme for us and informed so much music of the 1980s. Yes, I think the lyrics were generally more literate and the sounds more diverse than the sampling of pop I’ve been exposed to so far, but that’s at least partly a matter of taste.

        Regardless, the point I’ll keep reiterating is that diversity is key, and a industry of investors (labels) who were able to bank on the safe bets and also invest in the unusual artists where market acceptance is less sure, used to produce a pretty good variety of works. All the schmoozing and screwing over notwithstanding. Now we probably have at least as much diversity being produced out there, but as you say, we have to go hunting for it because the artists producing those unique or “more sophisticated” sounds are very likely self-producing and self-promoting in a pool with just too damn much stuff for us to pay attention to.

        All that said, I actually suspect The Beatles et al still hold up, even for the next generation, and I’m working on post related to that subject. Thanks!

  • It’s been nearly 15 years since Napster and thinds are only getting worse. How long to creators have to wait?

    • Yeah of course it got worse. It will only get worse as communications and storage technology gets faster, cheaper, and more secure.

      It would be prudent to find an alternative to copyright, but I realize that’s not the answer you want.

      • I’ve said it before and it looks like I’ll have to say it again:

        If a business can only make money by exploiting people’s work without compensating them, they’re the ones who need to change their business plan, not those they exploit.

        Big tech is not too big to fail.

      • Except it’s ordinary people that are driving piracy. And it’s happening out of your view on darknets, in dorms in colleges, in cafeterias at high schools, at friends houses. People copying a CD for a assistant. Sometimes they don’t blog about it.

        Of course, if it nearly as easy to share a record store worth of music with someone as it is to share a single CD, and why not, people are likely to do that. Except unlike a single CD, that single act of sharing can significantly taint content spending habits for the recipient’s entire lifetime. Even if they no longer actively engage in piracy in that same time. I mean, they have hundreds of thousands or even millions of dollars dollars of content now. Basically, even if you got eliminated of piracy 100% somehow, it’s residual effects will linger for a very long time, decades or longer.

        So even if you manage to shut down Silicon Valley or the apparent evil ruler of Big Tech [which may I remind you] is more politically connected then ever: don’t be surprised if nothing changes.

        It would be prudent to find an alternative to copyright, but I realize that’s not the answer you want.

      • The ‘march of technology’ argument is a personal cop out. Technology is a tool used by people who have intent. The reason people don’t use technology (like fire, or guns) in certain destructive ways is because they have some sense of their place in society and what constitutes ethical behavior.

        This sense of ethics was short circuited amongst the members of a certain generation when they were fed balogna by some very wealthy corporate interests that co-opted the ideology of the free software movement. That’s it. That’s the only narrative for what happened that reflects reality.

      • Jason,

        The intent of piracy is probably not commonly ideological. When 7-11 does free Slurpee days there are lines out the door. If people are willing to fight over a $1 product, do you think people will not take advantage of having access to millions of dollars of free stuff? Piracy is largely motivated by some inherent desire for perservation that is deeply embedded within life itself. It’s the same drive that drove David to write this post.

      • I will also add that if people inherently had ethics, there would be no need for laws or consequences. I know it’s vogue to pretend that humans are somehow transcended from other life on this planet. I hate to break it to you, but animals, barely distinguishable biologically from chimps and gorillas.

        The jackal does not care about ethics when she steals the cheetah’s kill, nor did the cheetah care that she just murdered a gazelle.

        Nature demands the instinct of preservation (of the self, of the offspring, of the tribe). If your ancestors acted in purely altruistic manner, you wouldn’t exist. No, you exist because from a linage of 4 billion years of finely tuned selfishness. You are deceptive, you are tribalist. Great survival skills, mind you. But you aren’t altruistic or ethical.

      • Humans are distinct from the rest of the animal world because we have the ability to contemplate such existential matters. And it is the Internet utopians who believe in their Marxian naiveté that the collective consciousness of the commons obviates the need for laws because man will settle into his natural condition and behave morally. Turns out not so much.

      • I think that was more Kropotkin than Marx.

      • Fair enough. Though Marx is building upon Kropotkin, no?

      • Probably not. Communist Manifesto 1848, Kropotkin born 1842. Marx was pretty authoritarian. Kropotkin, the gentle Anarchist Prince. didn’t believe in using the bourgeois laws to enforce copyright when others were pirating his books. He and a few other East End London Anarchists instilled a bit of morality and ethics by going round and gaving the pirate printers an old fashioned working class beating.

      • You’re right. I really should not comment before coffee. Still, if memory serves (and it often does not), the Manifesto begins with a critique of capitalism that sounds very similar to Kropotkin.

      • Oddly enough a few years back a group of Italian Anarchists from Milan wrote a book on the history of the Circle-A anarchist symbol, and contacted me for permission to use an image or two.

      • For a while now, it’s been in vogue for villainy to appeal to ‘human nature’ in order to rationalize itself. This world-view is stale and has nothing to offer us. Nature is manifold, where there is competition, there is also Kropotkin’s mutual aid.

      • The property that copyright protects does not product of inherited wealth, nor of expropriation, nor of exploitation. In essence it is an Anarchist property in Pierre Proudhon’s sense of “Property is freedom” as juxtaposed to his “Property is theft”.

  • If there was a viable alternative to copyright, let’s hear it. Patronage, government or otherwise, will not work. It’s not scalable and it by definition allows outside forces to
    dictate what people can create. Compulsory licenses will not work for all media. It will definitely not work for books.

    This is not nor has it ever been about individuals copying CDs. It is about a big business that, again, makes its money off of exploiting the labor of others.

    Thing is, regardless of what they have, people still want more “content.” And if they want it, the people who made it need to be compensated.

    • “If there was a viable alternative to copyright, let’s hear it.”

      Good point, monkey. Of course, you will never hear of a viable alternative to copyright….because there isn’t one.

      Copyright is still important to artists–and no amount of blathering from the tech industry and their acolytes will change that. Sorry, M.

    • I’m not talking about copying CDs, I’m talking about copying thousands of CDs in one transaction. It’s just as easy as copying a single CD.

      It doesn’t have to be a ongoing activity either, lets say someone gets 20,000 tracks of music from her boyfriend while she is in high school. She is probably going to hold onto that for well into her adult years, even if she never pirates again. And it could negatively impact her purchasing habits for her entire lifetime. I mean, that’s a lot of music she owns and it might make her less compelled to make additional purchases.

      You can’t even detect this activity, even with mass monitoring all activity on the Internet. There is no real way to draw accurate statistics either. But I say, offline piracy is mainstream and it’s very large scale. I actually base this entirely on anecdotal evidence from my high school and college years which I assume are a bit more recent then yours. You’ll never fully have visibility into this form of piracy though, so it’s easy to dismiss. I just don’t see the piracy problem going away as easily as you think, even if you somehow achieved your goals in regards to ‘Big Tech’. Good luck though. 🙂 It would be prudent to find an alternative to copyright, but I realize that’s not the answer you want.

      • ” It would be prudent to find an alternative to copyright, but I realize that’s not the answer you want.”

        You keep repeating this mantra but as monkey says, I don’t think there is one. Sometimes there is no “alternative” to a disaster. At least not one that isn’t massively inferior to before the disaster.

        That said my cynical nature makes me agree with you that it may be impossible to stop.

      • I should add to my other comment that I wish we could stop confining discussion of this problem and its effects to music . Music, due to quirks of its consumption and production at the rise of the internet (i.e. everybody listened to music digitally, but almost no one had an electronic book reader), was merely the first to fall. This discussion applies to any economic output that can be reduced to 1’s and 0’s and put into a standalone file.

      • You’re right about this, of course. Music tends to dominate because it’s the medium that has been hit hardest and was hit first. It’s also universally loved by the young, which is not always the case with, say, reading.

      • sf46: yep. Driverless cars and trucks will be the next to put a lot of people out of work, and some day even computer scientists and IP lawyers will be obsolete, too. We have to figure this out, now

      • sf46,

        Music takes less storage space compared to video too. People often don’t often realize this but you can fit on the order 6,000 high quality tracks in the same space as a single Blu-ray quality movie. But that music is worth maybe $6,000, and that Blu-ray is worth $25 at most.

        For a perspective of value per unit, technology is better at copying music compared to movies. It’s not surprising that music industry hurts more from filesharing. Your argument with books is quite valid too, with the e-reader perhaps not being as mainstream as digital music capabilities. But transferring/storing a nice size library of books is of the same complexity as a single Blu-ray movie. I mean more books then a single person can read realistically in a entire lifetime. Books are really tiny from the digital perspective. Thus books are very much fucked, in fact, they probably have been fucked but they don’t get as much media coverage as the music business.

        But that was my original point, that as technology gets more accessible, computers get faster, computer networks get faster, storage gets cheaper, copyright will start failing harder. It’s not going to get better. It would be prudent to find an alternative to copyright, but I realize that’s not the answer you want. The point is copyright is not going to work anymore as a way of funding these industries. So either you find an alternative, or I promise content industries will find it a lot harder to earn revenues in the future.

      • M,
        My only disagreement with you is on whether there is a functional alternative to copyright. The Music industry has been trying to find one for 15 years. And contrary to many assertions there are plenty of smart people in the music industry. But there has been nothing except Spotify which seems to be possibly even worse economically than the status quo of longterm decline. The only plausible idea I have ever heard is fight the good fight to try to keep the rules of a functional marketplace. And probably lose.

        Or perhaps I should put it like this:
        I realize that its not what you want to hear but there may be no alternative to copyright.

      • sf46,

        I believe in patronage. I see it growing organically already, popular channels on YouTube are pushing patronage via services like patreon.

        I would also like to involve in the government in it, but for some reason everyone shits a brick when I mention that (haha suckers! The government is a patron for the art already via the National Endowment for the Arts, and local and state funding is probably even larger!!).

        I get people acting like government funding is the worst idea ever, even those that could benefit very much from a bigger NEA. Reminds me of how the states who get the most federal assistance are conservative.

        Basic science is funded by government patronage. We get scraps from the Googles and Microsofts of the world. Most of it comes from the goverment. Yeah it sucks that we have to sometimes stand up and beg in front of Congress for more money, be we suck it up and get our most eloquent scientist like Neil DeGrasse Tyson to do it. 🙂 But by and large, we get a lot of funding, and this is from a Congress that is as anti-science as they come. As I said, government patronage pays my salary and provides me with decent stablity and benefits. I enjoy it more then fighting over scraps in the free market, as I can focus on doing the best science I can and not worrying about how I can woo more people to hand over their wallets. Why wouldn’t this work for art as well?

      • I don’t have any problem with patronage.

        I am, however, extraordinarily skeptical that it can replace what we had with the free-market copyright system. For one thing we talk a lot about “art” but I think that word makes us think wayyy too classy. It makes us think about the theatre and museums and quiet concert halls. When I say “art” what I’m talking about is more like a consumer product. I’m talking about Slayer, the Spice Girls, The Simpsons, Stephen King, Spider Man, and Triumph the Insult Comic Dog. Governments, to my knowledge, have shown to be pretty piss-poor when it comes to making appealing consumer products that people want. Just visit any department store in Russia circa 1984.

        There are exceptions of course. I love the BBC, which has had plenty of shows that I and many others like. But the volume of scripted entertainment that I like that was made for the sole purpose of making money for Rupert Murdoch alone is probably larger*. And plenty of stuff I’ve found on the BBC has, to my knowledge, been done in association with private companies.( For instance I know a lot of the book readings they broadcast over the radio are simply privately produced audiobooks that they licensed broadcast rights for. How many of them would be produced without a private market for the recording?)

        The most successful art patronage system I’m aware of is that of the French. And I bet even theirs relies a lot on market revenue. My suspicion is that absent market sales the government funded french film industry would suffer tremendously.

        Besides the French, bless their hearts, have an utterly heroic self regard for their own culture. Not one that I’m sure we could duplicate in America. Partly because American culture in it’s bewildering diversity is so much harder to define. Let’s say you are a government grant giver and you have a spanish telenovela, a Boston Celtic punk band, a Tyler Perry-style movie comedy, and a writer who thinks he has the Next Big Thing in YA Fiction all vying for the money. Who do you give the money to? I doubt the answer is “I’ve got plenty for all of them!”

        But there used to be plenty for all of them from the market.

        I have no problem with patronage. Let’s do it! But I sincerely doubt it can make up for everything we would lose without copyright.

        *I’m reminded of “National Lampoon’s European Vacation” when they are in England. The kids excitedly turned on the TV and the only thing that was on was a channel with an identification card and two other channels both showing the same documentary on cheese making. From my own personal memories of as an American kid exposed to TV in Britain in the early 80’s this was pretty true. When I first saw the movie I didn’t even get that that was a joke. BBC’s great, but not just the BBC, please!

      • sf86,

        Personally I don’t care if low-brow stuff becomes economically nonviable. To me that’s a net cultural improvement. More programs like NOVA and less programs like Honey Boo Boo.

        Ultimately there is no other choice for the future. What will happen if you continue to work copyright without a viable alternative is instead of some funded culture there will be either no funded culture, the culture will be a social media culture run by the amateur (like what this blog and its comments section is).

        From a historical sentimentalist perspective on culture, the loss of the mass media culture might seem like some kind of tragedy. But objectively, how will the world change if culture not an industry? Would culture change for the worse? How would it change for the worse?? Or could it even be for the better, a more genuine, democratic culture?

      • M,

        Well, there you go. I say “I think we’ll lose this!” You say “You’re right but that stuff sucks anyway!”. I don’t think we have much to discuss. We both completely agree on almost everything. We agree that the bullet just fired is going to kill the dude standing in front of it. You just think that dude’s a bad guy and deserves to die. You may be right!

        My inherent Chestertonian conservatism makes me extremely resistant to tearing it all down because we assume that when we build it back it’ll all just be so wonderful. This is simply a dispositional difference between us about how we perceive the possibilities of the world. One that there is no simple “answer” to and that I’m not really interested or qualified to debate, especially not in the complicated legal, technological and moral context of copyright.

        All I can say is that I hope you’re right. because we’re certainly headed more in your direction than mine.

      • sf46 — I removed your earlier comment and edited your correction from this one. I assume it’s now in the queue where you intended.

      • You edited correctly, Mr. Newhoff. Thank you for your help. Although I’m not sure someone with my, apparently, low class tastes helps out your side of the debate. Still, I appreciate the assistance.
        😉

      • No problem. Thanks for being part of the conversation. I hope I’ve at least been clear that “my side” of copyright is one that is neutral with regard to subjective matters of taste.

      • we have already seen the result of lowbrow social network and crowd sourcing in news reporting. the general quality has plummeted. the search engines barf up the most popular sites which is like asking what should I read on peru and being told Von Danigan and Paddington Bear.

        natural news and mercola appear high in medical searchs, and conspiracy theory sites are prevalent everywhere. facebook and twitter amplify the nonsense. wikipedia is full of outrageous tosh masquarading as facts.

        for many search these days the first few results are going to be to the world’s largest collection of unreliable facts, then come alternative reality sites, then sites looking to sell you shit.

  • David–
    “Copyright critics … seem to question the purpose of copyright as though the law itself has generative properties. While it is true that copyright imposes one kind of constraint, and that constraints in general tend to be generative in the creative process”

    Do they? I can’t say that I’ve ever encountered such an odd claim before. I’d love to see some support for that.

    As far as I know, copyright is instead treated as a quid pro quo, an incentive system, rather similar to, say, issuing tax credits in exchange for desirable activity. (E.g. buying an electric car, or filming a movie in many states other than California) I’ve never heard anyone say that copyright is itself responsible for creation, which would be silly, or that it is meant to incentivize authors by constraining them.

    Indeed, the constraint of copyright on authors is a bad thing. Perhaps lemons are being made into lemonade, but just as there’s no Poetry Act that requires all poems to have a specific meter, and no Songwriting Act that requires all songs to be love songs, I don’t see how anyone would ever actually try to limit how artists can create and try to pass it off as being a wholly good and helpful thing. It’s just idiotic. If artists want to endure some constraint, they’re fully capable of choosing it for themselves. They may want to choose different constraints. Some might not want a constraint. And the whole idea would quickly run up against and be destroyed by the First Amendment anyway.

    “copyright’s critics focus a great deal of attention on the productive implication in the language of the Copyright Clause itself, meaning its purpose ‘to promote the useful arts and sciences.'”

    Minor nit: The language in the clause is “To promote the Progress of Science and useful Arts,” if you’re going to quote it, and anyway, copyright is only concerned with science, singular. The useful arts are the realm of patents.

    Anyway, is it so surprising that attention would be paid to the fundamental enabling language in our law on this subject?

    “We can no more ask copyright to produce creative works than we can ask civil rights laws to eradicate prejudice from the hearts of all mankind.”

    And as pointed out above, no one asks such things in the first place. Even a little child understands that it’s not a law against murder that keeps people from dying, it’s how people behave, including, to some extent, in response to the law.

    “For instance, one argument often made begins with the irrefutable statement that people created works before copyright, followed by the reasonable prediction that they will still create without copyright; and this premise then serves as the basis for skepticism about copyright as an incentive for the creator.”

    No, it serves as the basis for skepticism about the claim that copyright is a necessary incentive for authors, or the sole incentive for authors. It’s plainly obvious that copyright often, though not always, has an incentivizing effect. The question is whether the incentive is superfluous, because other incentives will suffice, and since not all authors will respond identically, to what extent is the incentive superfluous. For example, if 10% of authors stopped creating works in the absence of copyright, but 90% continued, the loss of the 10% might be an acceptable trade off for the benefits of abolishing copyright. If 5% of authors stopped creating works if copyright were merely reduced in scope and duration, but 95% continued, again, this might be an acceptable trade off for the benefits of reduced copyright.

    “Artists create work because they are driven to do so”

    In that case, if artists will create works regardless of our copyright policy, why should we bother to grant them copyrights? Granting them would be a whole lot of hassle for no additional benefit. It’s more likely though, that there are a multiplicity of reasons for artists to create works, with the precise mix and relative strengths of incentives differing from one artist to another, and that for some, these incentives are insufficient without the extra push of copyright.

    But if artists will create works just as surely as salmon will try to head upstream, why shouldn’t we, like the clever bear, just hang out and wait to benefit from this, without our having to do anything to help?

    “the extent that profit is on the mind of any particular artist during the production of a work is first, nobody’s business”

    It’s our business if we’re granting an economic benefit in the form of a monopoly on certain actions involving the work.

    “and second, too complexly variegated among creators to use as a basis for examining incentive”

    Any economist will disagree with you. Predicting the actions of a particular individual might not be possible, but predicting the actions of large groups is well within our grasp.

    “For instance, when the creative worker says he or she is not expecting to make money, this is usually a half truth reflecting an understanding that any attempt to predict the alignment of the stars that must happen to make a work financially successful is an exercise in madness.”

    And I’m sure that when a big name filmmaker goes to a big Hollywood studio and asks for hundreds of millions of dollars to make a movie, but says that he doesn’t expect it to make any money, the studio executives recognize that it’s perfectly fine to throw away such vast sums of other peoples’ money on the project.

    Perhaps there are some real naifs out there, but most people who have to have some awareness of their finances will recognize that if they’re going to invest money in some business endeavor, they’d better at least have a plan for not only recouping their investment but for making a profit that is greater than their next best alternative. Otherwise, it’s not a business or a profession; it’s a hobby, and therefore perhaps deserving of less respect from everyone else.

    “This does not mean that most creators are not hopeful, sometimes rather desperately, that a work-in-progress will be at least modestly remunerative; it is merely a recognition that this outcome is nearly impossible to predict in most cases. A songwriter may write a fifty songs in a year but cannot say for certain why a certain seven might be recorded by various artists or why one song in particular makes the charts. Invariably, some of the rejected songs were the ones she thought were the best. So, the venture is always risky, and no creator possessing any common sense expects a promise that his or her work will be desired by the market.”

    No. A creator such as you describe there is indeed expecting to make money. He just doesn’t know which song, if any, will succeed. But he is not acting without an economic motivation, and by creating a lot of different works, he’s likely acting rationally in order to improve his chances of success. For him to say that he is not expecting to make money is an outright lie.

    “Using a simple hypothetical, an author may produce volumes of un-marketable works, then a perhaps a profitable but pedestrian work, and then one masterwork that will become timeless.”

    Of course, that’s if you’re lucky. It’s far, far, far more likely that he will produce volumes of unmarketable works and that’s all. Works with lasting appeal are extraordinarily rare, and most authors never create one nor even come close.

    “But without his secured financial interest in that middle, profitable work, the probability that society will be the beneficiary of the masterwork is lowered.”

    So? While we’d all like to have that work added to the corpus of human creation, that does not by itself justify securing the author’s financial interest in anything. The issue is whether the cost to society of securing the financial interest is worth the benefit to society of the great work. Sometimes this will be the case, if the work is very great, and the financial interest is quite small. But the larger the financial interest gets, the less likely it is, particularly given that most of the time society will not get a master work to begin with because the author just never manages to create one.

    “Of course, few stories follow this linear progression, but the point of this over-simple example is that when copyright provides at least a basis for economic stability for the artist, we enjoy a system in which the vast diversity of artists continue to take all of the risks, while society is solely the beneficiary of the most favored works produced without taking any risk.”

    Untrue. First, as already noted, artists may not require copyright in order to produce their greatest works (as many existing great works from pre-copyright eras prove); Second, artists may only require less copyright in order to produce such works, in which case the excess copyright is wasteful; Third, copyright inherently imposes a cost on society, preventing us from fully enjoying the benefit of works, making copyright not merely a risk but something worse: a sunk cost whether great works are produced or not.

    “By inviting a model without copyright, we could well trade the diversity we now enjoy for a more limited number of works produced solely by creators who already have economic stability. It is perhaps not surprising that such an elitist outcome would be overlooked from the vantage point of relative security within academia”

    So who’s overlooking? If that produced a better outcome for society as a whole, it would be the way to go. While you may feel proud of yourself for labeling this as elitism, all you’ve accomplished is to fail to demonstrate why it would be a worse outcome. Me, I’m pragmatic; I don’t care we adopt an elitist or egalitarian stance, provided that whatever we do produces the overall best outcomes.

    “This question of copyright’s relevance is, of course, one predicated on technology changing the marketplace.”

    Not really. Some people will argue this, but many others don’t. I know that I don’t. The basic principles of copyright are the same whether we’re writing books one at a time by hand with cuneiform on clay tablets, or whether we’re blasting them around the world at the speed of light in glass fibers. Certainly we’ve had debates just like this one about copyright for centuries. So don’t pretend that anything special is going on now.

    “It is assumed (though not on the basis of any evidence) that digital tools for creation, and especially distribution, of works somehow obviates the need for authors to retain ownership of their copyrights in order to sell to the market through various licensing regimes.”

    How many of your straw men are we up to now? I confess, I’ve lost count. Such technologies may be relevant in some way; for example, if term length was predicated in part on the speed at which copies could be printed and distributed, and sales figures tallied, reported back, and analyzed, and new technologies have sped all those things up, then it is reasonable to suggest that term lengths might be reduced accordingly.

    Likewise, if the cost of writing and publishing a book has decreased slightly due to new technology — manuscript submissions in electronic form obviate the need for so much typesetting as in years past, e-books allow the elimination of paper and shipping costs (though add new hosting costs), etc. — then it is reasonable to expect that rather than allowing the author and publisher to pocket these savings, we might reduce the cost borne by the public in the form of copyright so that the savings essentially flow through to us. To put it another way, if it used to cost $X to publish a book, and now it costs $X-Y, we can reduce copyright so that instead of revenues of $X+Z the author and publisher now only get $X-Y+Z. They’re left no worse off than they were before, and the public is left better off. Sounds good!

    But it’s a rare argument to hear that merely because modern technology has made creation and publication easier, we should abolish copyrights altogether. Usually I find that abolitionist arguments are rooted more in concern for how pro-copyright parties are causing widespread harm and how they’re so exasperating to deal with that it’s easier to just wipe out copyright entirely than waste any more time or energy with them. It’s a bit like shunning, I suppose.

    “In this regard, the critic’s assumptions already contradict the original claimed examination of copyright as an incentive to create works because the only relevant change that has occurred is with regard to the distribution of works after they have been created. Yes, artists have many new digital tools for production, but nothing about the motivation to create or the labor that represents human transference of idea to rendering upon some medium has changed in any way that is relevant to examining copyright.”

    No, labor has changed. Not for everything, but for some types of works, better tools permit reduced creative labor. For example, a solo filmmaker a century ago might have been stuck with a hand-cranked camera, preventing him from ever filming his own acting (unless it was in a mirror, and the acting consisted of turning a crank at a steady pace). Once motorized cameras came out, the one-man film crew could set up his shot, then be in it, leaving the camera to take care of itself. And having worked in the visual arts, let me tell you what a godsend the humble Undo command is. Quickly being able to fix mistakes frees up a lot of labor for more creation.

    “so the examination by critics really should not pursue the incentive to create question in the manner that appears to be the trend in academia.”

    Scared, or something? The incentive to create question, as you put it, lies at the very heart of copyright. It’s always relevant, it’s always one of the first things we should ask in any consideration of copyright policy.

    “Having said that, however, it is worth noting that copyright does provide incentives other than financial that are indeed relevant to authors”

    Dubious. I note that you didn’t list any.

    “Further, if it is true that a copyright-free future could shrink the pool of producers to those already financially secure (as predicted above), this suggests that all of the non-remunerative benefits of copyright might be of even greater value to those authors still willing and able to produce.”

    Or that they don’t give a shit. Naturally, results will differ from person to person.

    “And in the absence of those rights, we could easily see a reduction in not only the number of producers, but also in the number of works produced by that elite few.”

    Again, that alone is nothing to be afraid of. The question is what produces the best outcome for society — less creation and publication but more freedom, or vice versa?

    “It is not farfetched to imagine the artist in this example will withhold works from public view, even if he continues to produce for his own pleasure.”

    And yet, this may well be an acceptable trade-off. As always, the question is about society as a whole, not about mere authors as a special group.

    “Deprive any kind of artist control, particularly to fend off commercial interests, and he/she may well decide to deprive us of future works.”

    No matter how many times you repeat this point, Cato, it still doesn’t frighten me.

    “But the question that should be asked is the role of copyright as incentive for the distribution of works, with an honest look at the very complex manner in which sustainable distribution systems feed the cycle of new production.”

    There’s nothing in copyright law that causes ‘sustainable distribution’ to occur. If a publisher wants to reinvest profits in commissioning more works in hopes that those will collectively produce yet greater profits, then of course they’re free to try. But copyright also permits an author or publisher to put out one popular work, pocket the money, and never produce a single thing ever again, and that happens all the time as well.

    So your publishing house model is really more of an emerging behavior than an intended policy outcome. As such, it may very well happen even if we change or abolish copyright law. I suggest that we find out. And if it turns out that it doesn’t, we can always change the law back, if it’s such a big deal.

    “The foundational assumption is that the author of a work can sell directly to enough real fans through the nearly free distribution platform of the Internet (with free tools graciously offered by various tech companies) that she can bypass licensing regimes with traditional distributor entities. Without the need for this kind of licensing, the author no longer “needs” copyright in order to engage in newly-available, one-to-one transactions with customers.”

    Actually those two sentences directly contradict one another. Self publishing is not the same as the absence of any publisher. Self publishing has nothing to do with copyright abolition (indeed, if there were no copyright, self publishing would almost always be a foolish idea).

    “The problem is that none of these hypothetical benefits for creators are becoming manifest at any scale that we can take seriously as a basis for questioning the catalytic role of copyright in presumptively “outdated” models.”

    Well, it’s still early yet. Copyright has existed, in parts of the world, for over three hundred years. Perhaps we should give self publishing on the Internet another century or two before we judge.

    “there are more works available than ever”

    The number of works available is great, and in the event of less or no copyright, will only increase, not decrease, but again the question is whether society enjoys a greater overall benefit from more new works but less freedom or from fewer new works but more freedom.

    “the subjective assessment of “public benefit,” leading to the interesting but futile debate over what constitutes works of value (i.e. what we hope survives or fails).”

    And you finally, finally, at least invoke the phrase ‘public benefit’ and then you go and get it all wrong again. The public benefit is a matter of quantity of works created and published and how free the public is with regard to those works. The quality of works is utterly irrelevant, given that it’s subjective, and not appropriate for the government to consider. Fortunately quality manages to take care of itself, which is good since current copyright law ignores quality too.

    Joshua Hall–
    “When I create a work, I copyright it so no one else can claim authorship of my work.”

    Wasted effort then. At least in the US, copyright almost never has anything to do with claims of authorship. There’s no law preventing you from claiming to be the author of Shakespeare’s plays. Feel free to do so anytime. And there doesn’t need to be, because usually there’s no dispute, and if there is, usually only the parties involved actually care, and usually there are good mechanisms for dealing with the issue that exist quite separately from copyright.

    “Without some sort of governing body other less creative people may take your ideas and pass them off as their own. Having your work copyrighted is way to prevent that from happening.”

    Actually, no. Copyright does not protect ideas. It famously does not protect ideas, and it’s blackletter law. Take a look at 17 USC 102(b); ideas are the very first subject matter excluded from copyright.

    “Obviously, some artists create work that can be put into a format that can be mass produced and each unit sold can make money. For this kind of situation their design or content needs to be copyrighted so someone else can not claim authorship and start mass producing without permission.”

    Why?

    The Mona Lisa is in a format that can be mass produced. Copies exist all over the world. (In fact, there is some reason to believe that da Vinci himself made another copy) But the fact that I can buy it on a postcard, or a t-shirt, or even as a hand-painted replica, does not diminish the value of the one in the Louvre. Ask your wife to explain the concept of provenance to you sometime.

    “If your work can be mass produced (physically or digitally) – you need copyright or something like it.”

    You don’t need it. You might want it, but that’s not the same thing. First you should consider whether or not the author’s revenue stream hinges on having a monopoly on making copies, or whether he can make money in connection with the work even sans copyright. Selling artistic labor is usually a good way to begin.

    Will Buckley–
    “I don’t understand people who believe there is something wrong with artists making money, sometimes lots of money.”

    I agree. I have no problem with it at all. Of course, for precisely the same reason, I don’t understand people who believe that there is something wrong with people not wanting to pay artists money, sometimes lots of money. After all, the motivations for each side are basically the same. It’s entirely possible for two self-interested parties to come to a mutually beneficial agreement. But instead there’s always all this drivel about how artists need special rights and care and attention, and never any concern about the cost to the public.

    John Warr–
    “I have detailed images of Romanesque baptismal fonts. Photos of these have been taken in the past; there are some small grainy ones from the 1960s printed in some specialist books, none however appear on the web. Those that I took are now part of an academic database on Romanesque sculpture.

    I also have 1000s of detailed images of the scenes of Gothic stonework on many of the French cathedrals, similar numbers of detailed images of French, German, Dutch, and English stained glass panels, and individual scenes from the 13-17th century. When I got back from last trip to France (2000 mile car drive) I had some 3000+ images. A similar number sit on my computer that were taken on a trip through Germany last year, and another similar batch sit there of Italian Renaissance works. All in all I’ve only made a handful of these images available.”

    Tsk tsk. I bet you didn’t get permission from the estates of the artists who created those things so many centuries ago. And yet here you are, bragging about using it without paying a penny. If scum like you keep taking pictures of Italian Renaissance works without permission nor payment, soon the galleries will have no choice but to lock everything up out of sight.

    Plus, as M points out, if there’s a demand for any of this stuff, someone is apt to fill it. You can step up, or someone else can do it. No one really cares; you’re not that special.

    Overviper–
    “Copyright is basically just that…the right to copy…who owns that right?”

    No, it’s the right to prohibit others from copying. And from doing certain other things. The right to actually make copies is part of the natural right of free speech that we all share. Easy experiment: Create a simple work, disclaim the copyright and place it into the public domain. Can you still make copies of it, even though you have no copyright? The answer will be yes. QED.

    “In the US, it is implicit in the creator of the work. He needs fill out no forms, register nothing, send no money to anyone”

    Yes, it’s a real pain in the ass that way.

    “At the moment of creation, the creator establishes his total, un-compromised, right of ownership of ALL RIGHTS to exploit his creation in any way that he (or she) sees fit to do so.”

    That’s not true. Copyright is limited to a mere handful of rights. There are loads and loads of ways for anyone to exploit the creation without infringing on the copyright. Even for money.

    “the right to use the singer’s likeness in promotion”

    Not part of copyright, incidentally.

    “but I, as the songwriter own the copyright until I give it up”

    Well, only the copyright on the underlying song. Not the copyright on the sound recording. As you said earlier in that paragraph, where a song is recorded, there are two sets of rights.

    “Simply put…someone who knew what they were doing would match a great song with a great singer and make a great record.”

    Well the reason that this has died out is basically that the performers wanted more money. And they were also the songwriters, they’d get the songwriter’s share as well as the performer’s. I’m sure a lot of musicians would be happy to perform other people’s music so long as the musicians got to pocket all the money. And yet, I’m sure we can all predict how well that would go over.

    “The reason that the “360 degree” deal has become so prevalent is because they aren’t even ashamed to be stealing these rights anymore.”

    No need for hyperbole. Nothing is being stolen. As you say, it is a deal. The parties are both agreeing to it, of their own free will. No one has a gun to their head. Anyone who signs a bad, yet legal contract really has no one to blame but themselves.

    “The point I’m getting to is that since we have seen what this stuff is worth, why should the artist or musician or creator give up ANY of those rights or allow his work to be used without payment?”

    Because then no one will do business with that person; they’re more trouble than they’re worth. And the optimism of all sorts of artists is such that there will always be someone who is willing to take that lousy deal. Your post makes me think you’re a real ‘want to have your cake and eat it too’ sort of person.

    M–
    “It would be prudent to find an alternative to copyright, but I realize that’s not the answer you want.”

    I would add that it would also be prudent to at least reform copyright so that it is more aligned with public behavior. We needn’t abolish it altogether. Disrespect for copyright spreads like gangrene. It’s time to amputate the portions that are widely violated in the interests of saving the remainder. By all means, let’s enforce copyright against business interests, but it’s time to admit that the era of enforcing copyright against individuals is over, and to change the law to reflect that.

    It’s amazing that we’re making more progress on ending the drug war (which the government lost) in Colorado and Washington than we are at ending the copyright war (which the copyright interests are losing).

    Monkey–
    “Lennon and McCartney still own the copyrights. What others own are the publishing rights, which (if im wrong, please correct me) are different.”

    Publishing rights are a subset of copyrights.

    “If there was a viable alternative to copyright, let’s hear it.”

    You’ll have to ask M for outright alternatives. Me, I’m focused on reform: Require strict formalities — registration, deposit, fees, notice, renewal — in order to get a copyright on a published work. This lets us know what’s worth protecting and what isn’t, straight from the authors’ mouths. It also serves important notice functions, which is why we register sales of land, vehicles, certain investments, etc. Sharply reduce terms, and use a system of renewals to allow terms to shrink even further when authors fail to renew. Again, this lets us focus our efforts on only those works authors deem worth protecting. And allow natural persons to engage in otherwise infringing activity, if non-commercial in nature (cf. the AHRA). This will enable otherwise illegal behavior (a bit like a needle exchange) but without the involvement of money that could instead be directed at proper licensing (or unrelated business).

    If your concern is not “about individuals copying CDs,” but instead “about a big business that, again, makes its money off of exploiting the labor of others,” then this should work out alright for you.

    Of course, I don’t believe your claim for an instant; I remember when home taping was killing music, I remember attending high-profile lawsuits that were entirely about individuals copying music, and I know that if publishers were ever successful at eliminating the highest level enablers of piracy, they’d just shift their efforts down to the next highest level below. Of course, they’ll never succeed because publishers are dumb as a sack of hammers and are increasingly too small an industry to merit special protection. But it’s transparently obvious that they are not and have not ever been willing to turn a blind eye.

    • Anonymous, the only thing I have time to reply to is your questioning the premise. If you haven’t heard this kind of rhetoric, then you may not be listening to the lingo coming out of academia. I give you Tom Bell and the Mercatus Center as a prominent example. And as I say in the post, even if these theorists don’t mean generative literally, the way they talk about copyright conveys the connotation. And when their proposals trickle down into general consciousness and the myriad ways in which these “ideas” are shared and discussed, connotation means a lot.

      Though, I now realize you were questioning two different premises. You already rejected Joe Fishman’s work about working around copyright as one of the first studies to look at the generative power of constraints, and that’s your choice. It’s the only academic study on the subject I know. All the other evidence is merely hundreds of anecdotal examples from artists themselves who can tell us why constraints in many forms are generative.

    • Someone indeed can come up and do it. They can make the things available on the internet, or behind a paywall, or on their own computer. Their choice it does not matter to me. If some publisher in California wants detailed images of Gothic stonework they can send their own photographer across to Sens or wherever to take them. If they want to do a compoarative study of works from Sens, Le Mans, Paris and Chartres. They can send other photographers to those places too. They’ll probably need to give precise instructions on what they need photographing, least the photog misses the salient points. They’ll also need to pre-arrange access for the photographer too, and pay any fees as well.

      Meanwhile they can wait for someone to upload images to WP Commons and hope that they are better than these:
      http://commons.wikimedia.org/wiki/File:Cathedrale_nd_chartres_choeur065.jpg
      http://commons.wikimedia.org/wiki/File:Cathedrale_nd_chartres_choeur035.jpg

    • Im not particuar concerned with publishers. I am very concerned with creators, and most creators do not care a whit about individual copiers.

      But if you don’t believe my claim “for an instant,” conversely I don’t believe that the majority of those lobbying to weaken copyright are most concerned with creativity.

      “But it’s transparentky obvious that they are not and have not ever been able to turn a blind eye.”

      Why the hell should they turn a blind eye to piracy – again, systematic, advertiser-funded piracy?

    • Anon writes [an entire novel, that nobody will read past the first few paragraphs]

      @David, yet another exceptional, well thought out article!

    • I’ll just respond to your comments about what i said…because you seem to be just ranting mostly…

      Overviper–
      “Copyright is basically just that…the right to copy…who owns that right?”

      No, it’s the right to prohibit others from copying. And from doing certain other things. The right to actually make copies is part of the natural right of free speech that we all share. Easy experiment: Create a simple work, disclaim the copyright and place it into the public domain. Can you still make copies of it, even though you have no copyright? The answer will be yes. QED.

      The right to copy belongs to me as the creator of the work. If I own the right, implicit in that is that I can prevent YOU from making copies…but I can copy, license, exploit…and do whatever the hell else I want…because it is MINE. It is not yours. It is MINE. If I have money in my wallet and you want to steal it because you think it’s part of free speech or some other idiotic notion, I’ll be ready…

      “In the US, it is implicit in the creator of the work. He needs fill out no forms, register nothing, send no money to anyone”

      Yes, it’s a real pain in the ass that way.

      “At the moment of creation, the creator establishes his total, un-compromised, right of ownership of ALL RIGHTS to exploit his creation in any way that he (or she) sees fit to do so.”

      That’s not true. Copyright is limited to a mere handful of rights. There are loads and loads of ways for anyone to exploit the creation without infringing on the copyright. Even for money.

      OK…what are they…? Legally?

      “the right to use the singer’s likeness in promotion”

      Not part of copyright, incidentally. Not part of MY copyright…go use an album cover without getting permission from the label.

      “but I, as the songwriter own the copyright until I give it up”

      Well, only the copyright on the underlying song. Not the copyright on the sound recording. As you said earlier in that paragraph, where a song is recorded, there are two sets of rights.

      So why are you arguing about this?

      “Simply put…someone who knew what they were doing would match a great song with a great singer and make a great record.”

      Well the reason that this has died out is basically that the performers wanted more money. And they were also the songwriters, they’d get the songwriter’s share as well as the performer’s. I’m sure a lot of musicians would be happy to perform other people’s music so long as the musicians got to pocket all the money. And yet, I’m sure we can all predict how well that would go over.

      The reason that a lot of music sucks now is because being a performer doesn’t make you a writer…but greed demands that you sing your own material and inflict it on others.

      “The reason that the “360 degree” deal has become so prevalent is because they aren’t even ashamed to be stealing these rights anymore.”

      No need for hyperbole. Nothing is being stolen. As you say, it is a deal. The parties are both agreeing to it, of their own free will. No one has a gun to their head. Anyone who signs a bad, yet legal contract really has no one to blame but themselves.

      Since the 360 deal has become the only game in town, what do you suggest as an alternative?

      “The point I’m getting to is that since we have seen what this stuff is worth, why should the artist or musician or creator give up ANY of those rights or allow his work to be used without payment?”

      Because then no one will do business with that person; they’re more trouble than they’re worth. And the optimism of all sorts of artists is such that there will always be someone who is willing to take that lousy deal. Your post makes me think you’re a real ‘want to have your cake and eat it too’ sort of person.

      I’m a person who has been so through the music business that I’m not in the business anymore for the precise reasons being discussed here. Life is too short to deal with music business weasels, and there’s a reason that the phrase even exists.

      Four words sum up Hollywood/the music business/agents/managers/you pick it…

      Pimps and Whore, Greed and Fear…

      If you don’t understand that, you haven’t been around it…

    • (RE: the stuff you directed at me)

      I agree Anonymous Esq. Copyright does work in B2B scenerios because copyright works when it is an industral regulation, which is really how it was applied before the rise of computer networks.

      Companies that became very wealthy from copyrighted product in the post-information age, like Microsoft, primarly became wealthy from B2B deals. This is even true with consumer product (you aren’t the Microsoft’s direct customer when you buy a computer running Windows, the OEM that built it is).

      • Not true the industrial abuse of copyright occurs at fixed points. This is under the control of ISPs and hosting services. The ISP/Hosting service knows what is occurring on their equipment at a level of confidence that is beyond reasonable doubt. If they had been made responsible for it 15 years ago we would either have had A) no internet, or B) a low cost technical solution that sorted it out. My guess is that if the internet is so valuable they’d have fixed it. As it was they were given a free pass to make money by allowing larceny to occur on their systems whilst extracting a tithe for doing so.

        Note that whenever these companies get their feet dragged to the flames, they may yelp and holler but they find technical solution very quickly.

      • Except your whole argument falls apart with one word: Encryption.

      • If someone is downloading GB of data each day, it matters not whether it is encrypted or not. Besides they’ll be bragging about it in their emails, tweets, and FB page.

      • Yes John, we both know that your scenario would require a surveillance and police state. I know you are going to be like “Google knows what you do yadda yadda”, but the outrage will be palpable if they start using what they know about people, maliciously (from the perspective of those being monitored).

        I don’t question that copyright can work in such a world. In fact, I say that is what is required for copyright to work. Which is why copyright is troubling for personal liberty, why someone who believes in the freedom of man can not support copyright and the consequences of its enforcement in the information age.**

        ** Excluding B2B copyright, for my and Anonymous’s given reasonings.

      • I’d mention also that HTTP/2.0 will be encrypted by default.

      • And Google does already know what you are doing.

        No one needs to monitor exactly what is occuring, one only needs to look at usage behavior.

        one pirate’s usage behaviour is the same as a million other players. You don’t need to look closely at what is transpiring you only need to match patterns.

        You don’t need to be certain to the level of criminal proof. As copyright wonks tell us piracy is no crime so lesser standards of proof will suffice. But in effect behavioral analysis will give at least 90%.

      • John. It seems we are entirely on the same page with what is required. You advocate mass monitoring, and using suspicion of guilt as equivalent to guilt.

        Usually when I argue against a copyright propoent, they are quick to dismiss these possibilites. Copyright enforcement will not require these things, they say. You are one of the few to seemingly agree that they are necessary, and even advocate for them.

        You are one scary motherfucker.

  • Great article, David!
    There will always be a big divide between people ascribing what they think others are thinking and what those others are actually thinking… unfortunately, it’s become the hobby (and business) of the great many these days to pretend they know what others (primarily creators) think.

    I don’t pretend to know what my neighbor is thinking at any time of the day, let alone an entire class of people… but everybody seems to “know” what all artist of every stripe think…

  • David–
    Well, I took a look at Tom Bell’s web page at the Mercatus Center. Didn’t see anything that seems to be what you’re complaining about. Perhaps you have a more specific reference? (I’m hoping that it won’t be a time-consuming video; I’ve been slammed with work for a good month or so and am only beginning to get a little personal time back)

    As for generative constraints, I didn’t say that constraints could not be generative. I said that it is 1) Utterly inappropriate for the government to choose those constraints, and to impose them on artists with the force of law (it would remove copyright’s content neutral position, and violate the First Amendment, among other things); and 2) Not a valid purpose of copyright. Maybe using copyright as a helpful constraint occurs, but that’s just making the best of a bad situation. It does not justify copyright one iota. I suppose that next you’ll tell us why the Hays Code was a good thing, since by prohibiting filmmakers from showing sex scenes, it spurred the creation of more innuendo.

    John Warr–
    “Someone indeed can come up and do it.”

    Or decide that it’s not worth the effort.

    “There in lies the problem. If there is no incentive to make the works available why do so?”

    That’s the flip side — while it would be nice to have the work become available, what if the value of the work to society doesn’t justify the cost of its incentive? Why should we offer incentives that are overly generous?

    “If copyright is no longer relevant what is the incentive to publish?”

    First mover advantage, revenue streams other than copyright, fame, generosity…. I could probably come up with some more. We know that at least some incentives besides copyright exist, or else nothing ever would’ve been published prior to the invention of copyright.

    “Robert Hooke rarely published anything in later life as he believed that his ideas had been ripped off by Newton and others, without credit.”

    And that, and similar events around the same time led to the scientific community realizing that promoting science was more important than keeping secrets, and a totally new model of publication arose in which everyone published everything as soon as they found out, and people tried to give credit appropriately.

    “The ISP/Hosting service knows what is occurring on their equipment at a level of confidence that is beyond reasonable doubt.”

    The ISP doesn’t generally know and doesn’t generally care or even want to know. While that might have legal benefits, the real reason is that the ISP desperately wants to have a lights-out operation, where it sets up a box and the box magically makes them money. Spying on users costs money and doesn’t help increase profits. The exception is finding ways to reduce use of the box so that its capacity can be oversold, because the only better business would be one where there’s no box and they still get the money.

    Anyway, any decent ISP is going to have too much traffic and too few staff to have that level of confidence as to what’s going on. There’s not enough people to see it all and make judgments about it.

    “As it was they were given a free pass to make money by allowing larceny to occur on their systems whilst extracting a tithe for doing so.”

    Why should they care? Ford allows people to speed in their cars, and makes money selling cars that are capable of it. ATT allows people to make drug deals over the phone, and makes money selling minutes. People are not generally responsible for the acts of other people; our society would quickly grind to a halt if that were not the case.

    “Note that whenever these companies get their feet dragged to the flames, they may yelp and holler but they find technical solution very quickly.”

    Well, the clear lack of any copyright infringement anywhere shows that they’ve done a real bang-up job.

    “If someone is downloading GB of data each day, it matters not whether it is encrypted or not.”

    It kind of does. Movie theaters have substantially shifted to a digital distribution system; they download an encrypted copy of a movie rather than receive prints of film in the mail. I frequently have to do technical support for my Mom, and I remotely login to her computer so that I can see what’s on the screen and interact with it, which can use a significant amount of bandwidth. In the legal world, discovery practices involve absolute mountains of documents, many of which are TIFF files of scanned paperwork, and sending them to and fro can involve far more than just a few GB per day. Failure to encrypt that stuff could be seen as malpractice, since it’s all confidential until produced, and much of it may be privileged.

    You may be content with your 2400 baud modem, but I’m going to have to ask you to stop pretending that you know the first thing about how people use the Internet.

    Monkey–
    “But if you don’t believe my claim “for an instant,” conversely I don’t believe that the majority of those lobbying to weaken copyright are most concerned with creativity.”

    I can’t speak for others, but I can assure you that I’m not. I’m most concerned with what’s in the public interest. Creativity is a part of that, but certainly not all of it, nor most likely the most important part.

    “Why the hell should they turn a blind eye to piracy”

    Don’t ask me; you’re the one who said they didn’t care.

    “some day even computer scientists and IP lawyers will be obsolete, too”

    It’s already getting lawyers. Large firms used to hire masses of lawyers for discovery. Now some firms are switching over to computers to do the bulk of the work, and it appears to be cheaper, more efficient, and more accurate. Plus doing discovery manually is a terrible job, which I wouldn’t wish on a dog. Sooner or later some sort of Watson-like software will come along for doing legal analysis and will prove to be reliable enough that more jobs will be lost.

    As I’ve mentioned here before, I support using automation to put people out of work, provided that we also pursue some sort of basic or guaranteed income program so that people only lose their job, not their wages. Ideally we can reach a leisure society in which machines do most of the work on their own, and we can all share in the benefits. This would also reduce the need for copyright, as artists would no longer need to make a living. So everyone wins.

    Overviper–
    “I’ll just respond to your comments about what i said…because you seem to be just ranting mostly…”

    I’m not. Why did you think I was?

    “The right to copy belongs to me as the creator of the work. If I own the right, implicit in that is that I can prevent YOU from making copies…but I can copy, license, exploit…and do whatever the hell else I want…because it is MINE. It is not yours. It is MINE. ”

    The right to make copies belongs to everyone because we’re all human beings endowed with that right by God, or nature, or what have you. We wouldn’t even need copyright if only authors had the right to make copies.

    Copyright is just a right to prevent other people from engaging in that right. It’s similar to the idea of a negative easement in property law, in which a landowner can be prohibited from using his property in certain ways by a third party; it doesn’t change the ownership of the land, it just limits its use. And note that copyright is limited; there are plenty of places where copyright law doesn’t prohibit third parties from making copies of copyrighted works. Hell, I just directly quoted you above, copying your copyrighted words exactly, and if you sued me for copying, I’d surely triumph.

    And copyright doesn’t exist because of the sort of greedy nonsense you’re going on about, all ‘mine, mine, mine.’ It exists because it’s useful for people other than you. Given that law basically requires the consent of the governed in order to function and be justifiable, why would anyone consent to suffering the harms imposed by copyright merely to help you? It only even makes sense if it somehow benefits everyone else more than the alternative.

    “OK…what are [loads and loads of ways for anyone to exploit the creation without infringing on the copyright]…? Legally?

    First, copyright is limited to less than the total of a particular creative work. This can be seen at, for example, 17 USC 102, 103, 106, and 106A. Then of the subset of the creation that copyright applies to, that’s limited further by numerous and diverse exceptions in 17 USC 107-122. And there are a few other limitations scattered here and there, such as the utility doctrine, the AHRA, etc.

    “Not part of MY copyright…go use an album cover without getting permission from the label.”

    The singer’s likeness is not part of anyone’s copyright. A photograph of a singer is copyrightable, but for just the same reason, and in just the same way, as a photograph of a rock is copyrightable; that has nothing to do with a person’s likeness. What you’re thinking of are publicity rights, which is a common law outgrowth of the right to privacy, basically. It’s based in common law state tort law, rather than statutory federal copyright law. It has no connection to copyright whatsoever.

    “Since the 360 deal has become the only game in town, what do you suggest as an alternative?”

    The options appear to be: live with it, start a new game, or take your ball and go home. While it might be possible to regulate the music industry to prohibit these sorts of deals, that won’t turn the clock back, won’t necessarily succeed, and is unlikely anyway because really hardly anyone cares. It’s not like enacting broadly appealing consumer protection laws or anything.

    • Anonymous, I’m sure we’ll disagree, but Bell and Brito’s book seems to be predicated on a thesis about copyright as an incentive, and my take is that their view is very narrow — as though it makes sense to look at the incentive for a single author to create a single work at a moment in time rather than to look holistically at copyright’s role and more broadly at society’s benefits. For instance, I certainly include 2,000 jobs working on a movie I don’t even care to see as a societal benefit, and the academic view attempting to know where that film came from is naive compared to the realities of the process. And yes, ownership in copyright is catalytic at various phases of the process.

      On constraints, there’s a world of difference between saying that the generative power of constraint is the purpose of copyright, which I did not say; and saying that copyright imposes constraints that have generative value. You’re arguing as though I am asserting the former. The constraints of copyright are not its intent, but (and this is where we differ significantly) those constraints may well foster more diversity than a market without those constraints. I believe culture based on over-use of derivative works will flatten out and become rather lifeless (Joe Fishman’s assertion), and you believe the opposite. As we’re predicting hypothetical futures, there’s not much else to say other than to agree to disagree.

      I like the Hays metaphor, and of course I don’t feel that way; but sex is an interesting subject with regard to constraints and craft. American filmmakers are no longer constrained by prudish laws, and that’s a good thing. But depictions of sex in cinema in an anything-goes market certainly comes with challenges, not the least of which is that when not “done right” for a particular project, sex can be dull, pornographic, sexist, gratuitous, and so on. A remake of An Affair to Remember might be a contemporary film if it included sex as depicted in Girls but probably not as it’s depicted in True Blood. But it might be better sticking with innuendo. The writer, director, and producer would impose those constraints depending on what they decided was the main theme of the remake. None of this has anything to do with copyright. And yes, the artists themselves should be the only ones to impose constraints. I’m just musing.

    • In the legal world, discovery practices involve absolute mountains of documents, many of which are TIFF files of scanned paperwork, and sending them to and fro can involve far more than just a few GB per day.

      You are downloading GBs of legal documents from kickass torrents ever day?

      And movie theaters aren’t downloading their films from pirate bay either.

      real reason is that the ISP desperately wants to have a lights-out operation, where it sets up a box and the box magically makes them money.

      Well DUH! That is exactly why tech companies look to weaken copyright protection. Google bitched a few years back about it costing them $500 million to deal with DMCA takedowns. I say that is a cost of business.

      led to the scientific community realizing that promoting science was more important than keeping secrets.

      And 150 years later Darwin sat on Origin of Species until he got wind that Wallace was about to publish.

      What has changed in science is that it is now mostly the work of organizations. Only research that is about to bear commercial success gets reported. IOW when that patents are being prepared.

      what if the value of the work to society doesn’t justify the cost of its incentive?

      Then no one loses anything as no one has bought it.

    • Here’s the trouble with this “guaranteed income” idea: unless it’s implemented for everyone equally and timely fashion, it will fail. When it gets to the point where truckers are obsolete, things will not run smoothly.

      And guess what? it’s not going to be implemented equally and in a timely fashion. We live in a time when people have to fight for a living wage for work they actually do. If a “guaranteed income” is the best the brain trust can come up with, we are fucked.

      Its “in the public interest” that people can afford to eat and sleep under a roof. We’re nowhere near that point, now, by striking out copyright in the name of freedom you’re just making it worse.

      (Copyright, BTW, helps much more than artists; there are jobs directly related to the retail selling of those copyrighted works, plus many more indirectly related through shipping, etc)

    • anon and co. are fond of saying ” ….revenue streams other than copyright….

      Lol, wtf does that mean? the creators get zip? Because Copyright is the one and only reason the creators have leverage over businesses that would completely run over us with a train (instead of just the bus they’re using today). How can you monetize something you can’t prove you own?… I fail to see anything other than a glaring hole in this “point” you constantly bring up.

    • Now you’re just being silly…
      The right to copy does not belong to everyone. Possibly the ABILITY to copy does, but not the right. Not in the US. It’s in the constitution. It’s there for a reason. The only exception is Fair Use…personally I would like to see that expanded, but that’s another conversation…the right to copy resides with the author of the work. There have been many court cases over the years that have tried to challenge this, but at the end of the day, if I create it…I own it.

      As to the likeness issue, possibly you have not been following the Lindsey Lohan/Manuel Noriega cases going on right this minute…where both of them are suing game makers for using their likeness without permission. Personally, I would like to argue that, because they are both public figures, their likenesses should fall under Fair Use…but their attorneys don’t see it that way. There have been many such cases over the years as studios, ad agencies, and the like have sought to use the image of a famous person to sell shampoo (or whatever).

      Try using the image of Marilyn Monroe in your ad…you will promptly be sued by the estate of Lee Strasbourg…to whom she willed everything…and the courts have found that it included her image and all rights to it.

      As to the 360 deal…I only use it as an example of the pervasive greed that is prevalent in an industry that claims it is creating “art”. It isn’t. It’s selling shampoo by another name.

  • David–
    “For instance, I certainly include 2,000 jobs working on a movie I don’t even care to see as a societal benefit”

    This also is little more than a side effect. Jobs qua jobs aren’t science, the progress of which copyright is meant to promote. And copyright clearly doesn’t care about it, because whether a movie is made by a single filmmaker working alone, or by 2,000 people, copyright law perceives no difference between them and awards both the exact same set of rights.

    Besides, if what you want are jobs, it’s quite impractical to suggest copyright as a means for doing that. Partly because copyright doesn’t guarantee work for artists, partly because lots of people who aren’t artists (and aren’t even providing other services on artistic projects) need jobs too. Basically it would be both underbroad and overbroad. If jobs are your goal, a simple jobs program that doesn’t discriminate for or against artists would work better. Or as a baby step, we could regear our economy for full employment, which we haven’t done since Nixon decided that inflation was a bigger problem.

    The kinds of social benefits we’re looking for from copyright will involve knowledge, and more of it.

    “those constraints may well foster more diversity than a market without those constraints”

    And I’d hope that that would be the case, since otherwise the constraints of copyright wind up looking even more dismal than they do now. But it shifts copyright toward being a content discriminatory infringement on speech if this becomes any kind of goal. Better to treat it as an unintended benefit.

    “I believe culture based on over-use of derivative works will flatten out and become rather lifeless … and you believe the opposite.”

    No. I have no idea what would happen. What I’m saying is that it is flatly wrong for Congress to make decisions about what sorts of art are and are not acceptable from an artistic point of view, such as ‘lifelessness.’ Artists should get to make those decisions. And given that artists can overuse public domain derivative works all they want, copyright isn’t even effective at stopping such works from being created.

    Congress can say that they want more original works created now at some slight expense at derivative works now, because it will mean more original and derivative works later. They cannot say that they want more original works created because original works are better than derivative works.

    “But it might be better sticking with innuendo.”

    I agree. I don’t have any problem with constraints, and I recognize their value. My problem is with people imposing them on artists, whatever the nature of the constraint, and then acting as though it’s in the best interests of the artist who is suddenly no longer as free to pursue his own vision.

    John Warr–
    “You are downloading GBs of legal documents from kickass torrents ever day?”

    It’s entirely possible.

    If someone looked at the internet traffic of the firm, they might see that a large quantity of data was downloaded from a server with an IP address of 12.34.56.78. That address might go to a server which is shared between some legitimate discovery service and a notorious pirate. There’s no way to know without getting more information.

    Plus of course, just because a server hosts a lot of infringing files that doesn’t legally contaminate non-infringing files on the same server, shared through the same service, by the same disreputable people, for whatever reasons. Provided that I took the sorts of measures that I would hope our discovery staffers normally take, such as heavily encrypting the files and sending the key by safe means, there’s no legal reason why this couldn’t be done.

    And in any case, there are ways of obfuscating internet traffic so as to make it harder to analyze; it may be difficult to discern whether a large file transfer is coming from file sharers or legitimate persons who nevertheless don’t like to be monitored.

    “Well DUH! That is exactly why tech companies look to weaken copyright protection.”

    I doubt they’re interested in weakening copyright. It’s not a massive conspiracy. They just don’t want to foot the bill or have to do things that their customers or users would dislike.

    “Google bitched a few years back about it costing them $500 million to deal with DMCA takedowns. I say that is a cost of business.”

    Well, if you’re going to look at it from that perspective, how about this idea then? ISPs aren’t to blame for hosting infringing files; it’s users who do that, generally with the ISP having no specific awareness about the file in question and its legal status. Only the copyright holder, and to a lesser extent, the pirate, know whether the file is infringing or not. It’s not the ISP’s place to assume that a file is what it’s named as, or isn’t subject to some sort of license that permits the use but which is not known to the ISP. So how about we amend section 512 so that copyright holders have to pay a fee to ISPs to cover the costs of implementing the takedown notice. The copyright holder can easily recover that cost when they sue the pirate, under 17 USC 505, provided that they win in the suit and convince the court to award costs. Plus, just as a registration fee obligates authors to think about whether they want a copyright or not, rather than just getting them willy-nilly, wanted or not, a takedown fee would discourage copyright holders from sending out millions of automated takedown notices that are often in error due to a lack of human confirmation about the infringement. Instead they’d act more thoughtfully.

    I like this idea. Thanks for the help!

    “‘what if the value of the work to society doesn’t justify the cost of its incentive?’

    Then no one loses anything as no one has bought it.”

    No, copyright imposes costs whether you buy a work or not. The costs are more in terms of limits on your freedom, rather than monetary, but they’re still there, unavoidably.

    “We’re nowhere near that point, now, by striking out copyright in the name of freedom you’re just making it worse.”

    I’m interested in copyright reform regardless of what we do vis a vis labor and income, because it’s needed. But any sort of reform to copyright caused by the changes in the financial situation of artists due to a guaranteed income would obviously have to come after the income were provided.

    “(Copyright, BTW, helps much more than artists; there are jobs directly related to the retail selling of those copyrighted works, plus many more indirectly related through shipping, etc)”

    First, as I mentioned to David, above, jobs aren’t the point of copyright. If that was all, we’d all be upset at how bad copyright was at it. Second, no one is stopping retailers from selling public domain works, no one is stopping shipping companies from shipping copies of such works, etc. There may be more efficient means of distribution, of course, which might become more prevalent if copyright were no longer an obstacle, but that brings us back to the notion that we should pursue such efficiencies.

    (Though I should note that my own personal ideas for reform wouldn’t involve total abolition, and wouldn’t allow a retailer to deal in piratical works)

  • odjfsodijfijsdfs@dsfjsdfsdofj.jf

    sf46–
    Well, while I don’t advocate abolishing copyright, do bear in mind that less or no copyright would not only have negative effects. While you’re worried about “everything we would lose without copyright,” don’t forget the benefits we would enjoy, in increased copying, distribution, derivatives, and performance and display. Once it was technology that made it impractical for each and every one of us to have all the world’s knowledge at our fingertips. That’s not true anymore. Now it’s just legal hurdles that could be easily cleared away, or at least reduced, if, as Lennon said about another contentious subject, we want it.

    AudioNomics–
    “‘revenue streams other than copyright’

    Lol, wtf does that mean?”

    It means just what it says. Ways of making money that work whether there is a copyright or not.

    Performing artistic services, commissioned works, selling copies that have value independent of copyright (such as due to their provenance), etc. Lots of authors do this already because despite getting copyrights, their copyrights do not produce significant value if exploited. For example, architects get copyrights, but tend to work on commission, because there’s not much of a market for lots of the exact same building. Commercial artists tend to work for wages or flat fees, selling their services just as any white collar worker does; even if the copyrights for their work are held by a different party, they may not be of material value. (I write a lot of memos, which are copyrighted, but there’s no market for the end product, just the labor) Fine artists may paint a one-of-a-kind painting which has a copyright, then fail to take advantage of their monopoly on making copies; what’s valuable is not the picture so much as that the artist made it themselves. Even a perfect copy would not be as valuable, simply because it was made by someone else.

    And there are numerous other things too. Someone said that I tend to ramble on too much, so I’ll let you think about additional ways of making money without relying on a copyright by yourself.

    But lots of artists make a living this way today, and if copyright vanished tomorrow, it wouldn’t even cause a blip for them financially.

    Overviper–
    “The right to copy does not belong to everyone.”

    So you’re saying that if I were to print up a million copies of Shakespeare’s Romeo and Juliet, the government could stop me because I had no right to make that copy? That if I printed up a million copies of Twain’s Huckleberry Finn, that the Twain estate could get an injunction against me, because I had no right to copy it, as I am not Mark Twain, himself?

    No. Of course I can do those things, even though there is no law that gives me the right to do so. I have an inherent right to make copies, just as everyone else does. This right doesn’t suddenly appear when copyright ends, and there’s certainly nothing in the Copyright Act to suggest otherwise. It’s just that when copyright ends (or when it doesn’t apply, while it still subsists in a given work), whatever underlying rights people have in the work take over.

    “It’s in the constitution”

    Actually it’s not. All the Constitution does is empower Congress to enact copyright laws. It doesn’t obligate them to, and it doesn’t do so itself. Congress is within its rights to use only a part of that power (as traditionally has been the case) or to use none of it. And it’s just one of a slew of powers granted to Congress, sitting between the power to create Post Offices and the power to grant letters of marque to privateers.

    “It’s there for a reason.”

    The reason is because we tried letting the states do copyright, which most but not all did between 1783 to 1786. And they made a mess of things. Which was par for the course in the US under our original national government as established in the Articles of Confederation. It was such a failure that the whole thing was replaced very quickly with the Constitution, and every power granted to Congress in the latter is there because the states could not be trusted to use them well. It’s not there because it’s actually important on its own merits.

    “The only exception is Fair Use”

    No, the current Copyright Act has 16 different sections that are all exceptions to copyright, and that’s just in chapter 1. A few others are scattered around here and there. And many of those sections actually contain a number of distinct exceptions, which are just grouped together for convenience. And a number of these deal with making copies. Fair use is merely one of these exceptions.

    If I own a copy of some software, I can make more copies under section 117, even when it’s not fair use. Libraries can make copies of works in their collection under certain circumstances, when it’s not fair use. Copies can be made for the use of blind people without it being fair use. Copies of some works made by certain media or equipment can be made without it being fair use under the AHRA.

    You may want to actually look at the Copyright Act before you start talking about what’s in it.

    “the right to copy resides with the author of the work … if I create it…I own it.”

    And that’s not quite true either. Everyone has the right to copy works. But copyright is alienable. Authors sell their copyrights routinely, subjecting themselves to the same restrictions on their right to make copies as everyone else. The right to prohibit other people from making copies (and thus to be the only one free to exercise their inherent right to make copies) resides with the copyright holder, whether they created the work or not.

    “There have been many court cases over the years that have tried to challenge this”

    Super. Provide the page cites, please.

    “As to the likeness issue, possibly you have not been following the Lindsey Lohan/Manuel Noriega cases going on right this minute…where both of them are suing game makers for using their likeness without permission. ”

    Noriega lost, I heard. But regardless, those lawsuits are under the right of publicity, which is a matter of state law. It has literally nothing to do with federal copyright law. I don’t even know why you’re mentioning it, other than that you don’t know what’s what, I guess.

    “Try using the image of Marilyn Monroe in your ad…you will promptly be sued by the estate of Lee Strasbourg…to whom she willed everything…and the courts have found that it included her image and all rights to it.”

    Depends on where you air the ad, actually. Since there’s no federal publicity right, state rights are a patchwork. In some states publicity rights last for a long time after the death of the person being portrayed. California, with a lot of celebrities in it, has it last for 70 years after death, as I recall. Which means I can use Marilyn Monroe in my ad beginning in 2032.

    On the other hand, a state like Massachusetts, which has relatively few celebrities, has their publicity right end upon the death of the person. Which means that Tom “Mumbles” Menino, the long-serving yet famously unintelligible mayor of Boston, who died the other day, can be used in an ad for elocution lessons as soon as right this second.

    “As to the 360 deal…I only use it as an example of the pervasive greed that is prevalent in an industry that claims it is creating “art”.”

    Meh. If artists weren’t greedy, they’d do everything for free and we wouldn’t need copyright. And if the public wasn’t greedy, they wouldn’t want more works created, nor would they want to use the works that were, and again we wouldn’t need copyright. Copyright is all about greed on all sides. It’s all about enlightened self-interest. Airy-fairy notions of the nobility of art really have no place in a discussion about copyright.

    • Once it was technology that made it impractical for each and every one of us to have all the world’s knowledge at our fingertips. That’s not true anymore. Now it’s just legal hurdles that could be easily cleared away, or at least reduced, if, as Lennon said about another contentious subject, we want it.

      This is one of the most stupid things that the freetards promulgate. Knowledge is not produced via altruism.

      I was in contact awhile ago with one of the few experts on a particular family of insects who is about to retire from his university post. He is thinking about writing a book about the family as a supplement to his pension. But before he does that he needs to make a judgement as to whether it is worthwhile doing so. As it is it looks as if it is not going financially viable, he’ll be better off improving the food production capability of his backyard. So that particular book won’t be written, and what knowledge he has in his head will go to the grave.

      Freetards seem to believe that all the worlds knowledge was compete in 2004 or whenever, and all that is needed now is cloud storage and fast search.

      Last year I was at a concert with a 70s musician, the place was packed and someone asked whether there was a new album in the works. The last one was 8 years ago. The response was that no one buys music nowadays, and no one is interested in anything new, his audience is there to hear the old stuff. Of course he hasn’t stopped writing new stuff but once again it isn’t financially viable to recorded it.

      Interesting photographers are closing down, or restricting their flickr accounts every day, because of the rampant theft of images. I restrict the size of image I upload to flickr and make available on my site so that they can’t be used commercially. Otherwise as discussed earlier they are posted in private lists and forums. Wikipedia Commons has a habit of removing watermarks from images that have been uploaded from flickr. The result is that invariable the photog changes the license of their current images and all subsequent images, and in extreme cases makes their content private. Commons may have gained a couple of images, but the result is that 1000s of others are lost.

      As discussed here before even low budget films require that the makers mortgage their house to finance the project, and that the actors work for a percentage of the revenues. If you can’t be certain of even the possibility of some return then there is no incentive to make the film.

      • “Freetards seem to believe that all the worlds knowledge was compete in 2004 or whenever, and all that is needed now is cloud storage and fast search.”

        Good way of putting it! It reminds me of how some argued that “history” ended with the collapse of the soviet Union.

      • If you look at the political and corporate agenda anyway, it’s always about promoting objective inquiry, ie. STEM. Nobody is like, “we need more artists”. It’s a nonissue.

        Science is funded by extensive government patronage, and also in the private sector by means that are not threatened by the existence of the Internet. It is not in any way in jeopardy by the future. Scienific inquiry is the most powerful kind of inquiry humanity has ever invented.

        If art becomes deemphasized over science, so fucking what? Should the whole society bend towards the will of an inquiry that can not even fundamentally prove its own worth?

      • M, I’ve repeated this and it seems to need repeating again:
        Art and entertainment seem to have enough “value” to prop up illegal businesses who make millions off of advertising geared towards people who want to download that art for free.

        You may see no value in art, and I guess that’s your prerogative, but it seems like a rather depressing existence to me.

        That doesn’t change the simple fax that people are making money of these works and not paying those who actually created it.

      • Art and entertainment seem to have enough “value” to prop up illegal businesses who make millions off of advertising geared towards people who want to download that art for free.

        If they are illegal, why are they still around? Surely, by definition, they are not illegal.

      • You may see no value in art, and I guess that’s your prerogative, but it seems like a rather depressing existence to me.

    • “If artists weren’t greedy…”
      …and needed to eat to survive…

      • lol. no doubt… those pesky artists demanding payment for their labor… sheesh!
        Meanwhile, venture capitalists and IPO’s are lauded as somehow nobel… fucking Twilight Zone…

    • “Well, while I don’t advocate abolishing copyright, do bear in mind that less or no copyright would not only have negative effects.”

      I assure you sir that I do keep that in mind. I would go so far as to say that everything ever that has or will ever happen in the universe has had both positive and negative effects. I have simply weighed the positives and negatives of copyright as I see them and think one side is better. In fact I think the conversation usually go the other way. Anti-copyrightists often completely disregard any upside to copyright.

      • The main caveat I would inject into this question is that historical evidence is all we have to go on as a rational basis for predicting the future. Societies with strong IP protections have fostered diverse cultural and technological prosperity, and those without such protections have not. Every time I hear a positive prediction about a world without copyright, it sounds very short-term, as though the predictor is looking just a few years into the future and very much through the lens of today. But I really don’t think any complex system works that way, just like ecosystems don’t work that way. Lose a species of beetle, and its ripple effects might not be felt for a few decades. If nothing else, I think weakening copyright protections and then seeing what happens over a generation may be a very big risk not worth taking. Above all, I certainly would hate to see us take such a risk in order to benefit internet companies.

      • I’m largely opposed to copyright regulations against natural persons because I can’t see how it can work. It’s unlikely copyright would have ever been thought to be a good idea of under such conditions we have today. When copyrighted was first enacted, copyrighted worked. It worked because it was an industrial regulation applied to the dealings of printers and publishers, these were the only entities truly with the means of mass production for copyrighted works. Thus you only had to apply the regulations of copyright to a specific type of business, it was entirely an industrial regulation. You had to only monitor the behavior of these businesses, you did not have to involve the general public at all, in fact, the general public did not really even have to be aware of copyright law for it to functon as intended.

        Due to the invention of the personal computer and the computer network the means of mass copying are in the hands of the public for the first time in human history. Therefore copyright is no longer an industrial regulation, but a regulation on personal dealings. Therefore I can see no way to for copyright to work without huge invasions into people’s personal dealings.

        Since I support personal liberty, I can not support copyright given the way it must be enforced to be effective.

      • M, believe it or not, there are limits to personal liberty.
        There are certainly technological means to simply removing money from someone’s bank account, but law tends to frown on that.

      • Yes, but the liberty deserved by the people don’t change because someone’s business model became harder.

      • “Yes, but the liberty deserved by the people don’t change because someone’s business model became harder.”

        AHAHAHAHAHAHAHAHAHA

        It’s rather rich to talk about “business models becoming harder” when it is in fact the pirates (or google, for that matter) who are basing their business model on infringing other people’s liberties, namely the right to be compensated properly for one’s work.

        It’s really that simple. If a company’s business plan involves making money off others’ work without compensating them, it’s the company, not the creators, whose business plan is faulty and needs to be changed.

      • If you have evidence that Google is infringing your work, why don’t you sue them?

        You want Google (and much of “technological development” that doesn’t suit you) to be illegal, not the other way around.

      • No, I do not want Google to “be illegal.” I want them to not be evil. Seems rather difficult for them these days.

    • You’re really clueless…the reason you can copy Shakespeare and Mark twain is because their works have fallen out of copyright and into public domain…So if you’re claiming that you have the right to copy works in public domain, not covered by copyright laws…uh…yeah…

      What’s that got to do with THIS discussion?

    • Most of what you’re saying about copyright itself is true, though I’m not sure why you reference copying works in the PD. But to your concluding point, I’d ask why such cynicism belongs in a discussion about copyright? Markets are very much driven by self-interest (enlightened or not), but copyright is often used by artists to control works without money as a motivating factor. To the contrary, artists who refuse for instance to allow their works to be used for commercial purposes are often turning down considerable sums.

  • Thank you, David. This brings to mind a quote from Andy Warhol: “Don’t think about making art, just get it done. Let everyone else decide if it’s good or bad, whether they love it or hate it. While they are deciding, make even more art.”

  • “If they are illegal, why are they still around? Surely, by definition, they are not illegal.”

    WTF?

  • sf46–
    “whether there is a functional alternative to copyright”

    I believe that M said that it’s prudent to find an alternative; not that there was an alternative that would be just as or more appealing to you. If copyright continues to turn into the omnishambles that it is currently on course for, and no alternative arises which you’re entirely happy with as a substitute or supplement, your discontentment will not, by it’s own power, change things.

    Suppose that Congress and the President announced that tomorrow they were abolishing copyright, and exercising the federal authority over copyright to prohibit the states from stepping in (as is the prerogative of the federal government). Suppose further that this was a sufficiently popular move that no politicians could be found in all the land who would reverse this, and no new politicians who pledged to reverse this proved to be electable, making the political actions of those who still supported copyright ineffective.

    In this hypothetical, regardless of how far-fetched you might think it is, what would you do? If it’s something more productive than quitting, I’m curious as to whether you’re doing it now, and if not, why not.

    “Anti-copyrightists often completely disregard any upside to copyright.”

    Yes, I’ve found that most abolitionists tend to either do that, or they concede that copyright has got its benefits, but that any implementation of it gets out of hand and the whole thing is more trouble than it’s worth.

    OTOH, I think that copyright is a great idea, and I’m all for it. Just not so much of it.

    John Warr–
    “Knowledge is not produced via altruism.”

    Some of it is. But quite a bit more is produced for reasons which are neither altruistic nor reliant on copyright.

    “Freetards seem to believe that all the worlds knowledge was compete in 2004 or whenever, and all that is needed now is cloud storage and fast search.”

    No, but there is a question as to whether we need to lock up so much merely in order to spur the creation of more. I suspect that we could reduce copyright substantially, enjoy more of the benefits of past creative efforts, and still sufficiently incentivize the creation of more.

    David Newhoff–
    “Societies with strong IP protections have fostered diverse cultural and technological prosperity, and those without such protections have not.”

    That’s untrue, and our historical evidence shows that clearly. The US didn’t grant copyrights to non-citizens until the end of the 19th century. The US didn’t grant copyrights for published works until the late 1970’s. And term lengths have traditionally been far, far shorter for the 220-odd years we’ve had copyright in this country. But all through those times, we fostered diverse cultural prosperity.

    Rather than have strong protection, we can have weaker protection, and have every expectation of continuing to prosper.

    “Above all, I certainly would hate to see us take such a risk in order to benefit internet companies.”

    I don’t think that there is any significant call for copyright reform in order to benefit Internet companies.

    “though I’m not sure why you reference copying works in the PD.”

    It’s the same right to copy whether works are in the public domain or not. The end of a copyright term on a given work has no effect on me; it only effects the copyright, the copyright holder, and the status of the work.

    “I’d ask why such cynicism belongs in a discussion about copyright?”

    Copyright is utterly utilitarian in nature. Romantic ideas and fuzzy thinking just lead us astray.

    “To the contrary, artists who refuse for instance to allow their works to be used for commercial purposes are often turning down considerable sums.”

    Yes, it’s used that way. But that doesn’t mean that that part of copyright served as a necessary incentive to get those authors to create and publish works which they otherwise would not have created and published. The emphasis there is on ‘necessary.’ In the US, there is a compulsory mechanical license — songwriters generally do not have the right to stop people from covering a song and selling copies of it. Are there songwriters out there who refuse to write songs because they don’t want anyone performing them without permission? Maybe, but given that we’ve had the mechanical license for over a century, I would suggest that apparently no one cares about them.

    Plus, how far would we go in catering to authors who have sticks up their asses about the purity of their work? Do parodies detract from it such that we should prohibit them? Do bad reviews, particularly bad reviews that quote from the works to show just how bad they are?

    Perhaps we could create an experiment to get some data. We could offer authors a choice: For any given work, they can have either an economic copyright subject to compulsory licenses that might harm the integrity of the work in exchange for a fee, or a more ‘moral’ copyright subject to compulsory licenses which don’t harm the integrity of the work, but where no fee is paid. So for example, under the first regime, a movie studio would automatically get the movie rights to a book if they paid a movie rights fee, and could change the story as they saw fit. OTOH, under the second, the studio could not get the movie rights, but all the publishers in the world could print copies of the book and pay no royalties, so long as they scrupulously credited the author and made no edits.

    My prediction is that while some authors are more concerned with artistic control, and would opt for choice two, most of those that copyright serves as any kind of incentive for are more concerned with money, and would opt for choice one. Further, I think that more works would be created and published under choice one, which is ultimately all we want from authors anyway. (And of course many works would be created under either, as copyright of any sort isn’t a necessary incentive for most works)

    Now I have no real problem with artists wanting both money and integrity, but the public interest is in getting the most works created, the most works published, and suffering the least amount of copyright, for the least amount of time, in order to get those. So here’s your real cynical statement: The concerns of artists are not of any consequence, except for how they can be exploited to get artists to create and publish the most for the least amount and least duration of copyright. There’s no sticks, but you want the absolute worst carrot that does the job. I’m fine with granting authors a measure of artistic control, but only if it’s useful and convenient to do so for entirely pragmatic reasons. That they might simply want it isn’t good enough.

    Overviper–
    “You’re really clueless…the reason you can copy Shakespeare and Mark twain is because their works have fallen out of copyright and into public domain”

    No, the reason that I can copy those works is because I’m a person. There is no law that grants me the power to copy those works when they’re in the public domain, nothing in the Constitution, in all of the laws passed by Congress, or in the caselaw of the courts that confers a right to me to make those copies when the works are in the public domain.

    The right therefore must be inherent. We even have a name for it: Free speech. (In fact the Constitution actually recognizes that it exists independently, since it only guarantees it, rather than claims to grant it)

    Copyright therefore can only be seen as a restriction on free speech. It may be a worthwhile restriction, it may be one which people are willing to accept, and it may be compatible with broad guarantees like the First Amendment — but it’s still a restriction.

    So while you do have a right to make copies as the creator of a work, it’s not because you’re the creator, it’s not because you’re a copyright holder (if you are), it’s because you’re a person, with the same natural rights as any other person.

    • To use your “logic of the converse”…if you believe that the right to copy works in the public domain is an inherent right AND legal, the converse must therefore be true as well…that the copying of works protected by copyright and NOT in the Public Domain must NOT be an inherent right and illegal. And guess what…the courts have backed this up many times, over and over again. You can’t have it both ways…

      Now if you want to have a conversation about copyright being too long and the value of things falling into Public Domain, we might have something we agree about. But that’s a whole other conversation.

      • “In this hypothetical, regardless of how far-fetched you might think it is, what would you do? If it’s something more productive than quitting, I’m curious as to whether you’re doing it now, and if not, why not.”

        I can’t answer this very well because I am not a copyright producer, at least not beyond a tiny hobbyist level. It’s merely an issue I became interested in for a number of weird and disparate reasons.

        Putting myself in that theoretical position I would probably do what affected people seem to be currently doing:first scramble for any money left around in the business, then focus on live performance (and tailor my works to that venue) or proprietary tech systems that have some kind of DRM (i.e. XBOX, apple apps,etc.), try to get grants/patronage, apply my brand to physical items as much as possible, and try to do corporate creative work. Probably this last one would seem especially attractive. Which is amusingly perverse given that many believe the death of copyright will somehow make things less corporate.

        In short, nothing that seems like a very good alternative. And definitely nothing that seems like a good alternative for the current “creative industry” as a whole.

        Or possibly quit.

        I would actually be quite interested as to what people on this board for whom this is a less academic question are doing.

    • Anonymous —

      On the matter of copyright systems and societies fostering prosperity, you didn’t really counter my premise so much as point out that culture and technology existed before copyright. This is true. but it is also true that the nations which have led the world in growing massive economic sectors based on the arts and sciences happen to be the same nations with strong IP regimes. I don’t think those things are coincidental, but you seem to believe that removing or severely limiting those regimes will unlock even greater potential works and corresponding economic benefits.

      Your cynicism regarding artists caring about the manner in which their works are used is duly noted, and there is nothing to debate on that point. You seem to believe either that artists don’t much care about this control or that if they care too much, they have sticks up their asses and we shouldn’t care about them. While I respect your knowledge of the law and even your proclaimed humanism, I can’t help but object to ideas that sound predicated on the notion that authors owe society a damn thing. More to the point, I absolutely reject this belief that society will be well served by what I predict would be the brief and barely literate feeding frenzy that would ensue if we acted upon your proposals. Society benefits most when creative artists or scientists make things the market didn’t even know it wanted. This is true of the iPhone, it’s true of Sgt. Peppers, and it’s true of Citizen Kane. More is just more; it isn’t necessarily better. And what would limiting rights do other than to create more derivatives, copies, and lazy work? Again, show me where copyright is stopping anyone from creating because I haven’t met that artist yet.

  • RE [societies with Strong IP protection] …”That’s untrue, and our historical evidence shows that clearly. ”

    HAHAHAHAHAHAHAHHAHAAHHAA
    Thanks, i needed a good laugh!
    You’re needed again at the Google propaganda offices… Oh, wait, that’s where you’re typing from!

  • Overviper–
    “To use your “logic of the converse”…if you believe that the right to copy works in the public domain is an inherent right AND legal, the converse must therefore be true as well…that the copying of works protected by copyright and NOT in the Public Domain must NOT be an inherent right and illegal.”

    What I’m saying is that the right to copy all works is an inherent right. The law steps in and renders some of that copying legal, and some of it illegal, but it doesn’t change the origin of the right to make copies.

    I don’t know what you imagine the ‘logic of the converse’ as you put it to be, but it doesn’t always work (e.g. All humans are mortal is true but all mortals are human is not) and it isn’t relevant here. Instead, you should be thinking more of hierarchies.

    Also, the way you wrote that suggests that the copying of works which are both protected by copyright and which are also not in the public domain (which are the same thing, btw) must not be either an inherent right but also must not be illegal. I’m pretty sure that that isn’t what you meant, and it certainly isn’t anything I said. I know that, because what I said that sometimes it’s legal and sometimes it’s not, because not all copying of a copyrighted work is restricted by copyright.

    Anyway, keep working on it, Aristotle. Maybe you’ll figure it out one of these days.

    sf46–
    “I would actually be quite interested as to what people on this board for whom this is a less academic question are doing.”

    Yeah, although it’s tough to be sure when it’s only hypothetical. For my part, when I was a professional artist, I made money by providing artistic services, rather than by exploiting copyrights. And my clients’ businesses didn’t rely on copyrights either, but would not have been well-served by copying third party materials (since it would not have been tailored to their needs). So I know that at least some artists would still be employed were we to abolish copyright.

    Still though, the point of the exercise is to find business models which are resilient against piracy in a scenario where there’s no copyright, and which can be implemented now to supplement income that’s at risk or being lost here and now in the real world, rather than putting all the eggs in the copyright basket.

    David–
    “This is true. but it is also true that the nations which have led the world in growing massive economic sectors based on the arts and sciences happen to be the same nations with strong IP regimes. I don’t think those things are coincidental, but you seem to believe that removing or severely limiting those regimes will unlock even greater potential works and corresponding economic benefits.”

    There’s strong evidence to think that it’s coincidental. For most of the history of the world, the great nations of the world didn’t have copyright. The Achaemenid Empire, the Tang Dynasty, the Umayyad Caliphate, the Roman Empire were among the greatest civilizations ever, and none of them bothered with copyright. The ascendance of European civilizations has more to do with coincidence than any innate superiority. Coincidence that constant wars without definitive continent-wide victories made them stronger, and interested in all sorts of technological innovation, and at just the right time when everyone else hit a weak point. Most of the world only have copyright laws because they were at one point or another colonies of the great 18th and 19th century European powers, and those countries had decided to have copyright so everyone else got it too, whether they liked it or not. If the issue were put to a fair vote today, you might find that international copyright is a house built on sand.

    There’s also good reason to think that concepts such as copyright are not materially responsible for our cultural output, but are instead by-products of the same root causes. Printing technologies improve, religious groups encourage greater literacy rates, authors and publishers take advantage of their new, bigger audiences, then they work to control the market to their own benefit.

    And I presented examples to you from our own country’s history of how we had tremendous prosperity with far less protection than we have now. Have the newer, far more expansive and draconian laws directly and solely produced even more vast degrees of prosperity?

    I think it’s clear that they have not. We’ve passed the point of diminishing returns some time ago. The golden age of Hollywood and of rock didn’t occur with modern copyright law; they occurred under the lesser protections of the 1909 Act — shorter terms, renewal terms, formalities, etc. We’ve added copyright for choreographic works — has dance achieved new heights? We’ve added copyright for architectural works — are the days of cookie-cutter, ticky-tacky houses a distant fading memory? Jumping over to patents for a second, you can ask just about anyone in the software industry, and they’ll tell you that software patents not only have no significant benefits for the development of software, but they actively harm the field; they are nearly universally despised. And ask trademark scholars about dilution, and you’ll generally find scorn for it.

    You might as well make your motto Post Hoc, Ergo Propter Hoc.

    And no, I don’t think that reducing protection will unlock greater potential works. I think that sensible reductions and reforms to copyright will probably have a minimal effect on creation, with somewhat fewer original works being created, but more derivative works picking up the slack. The greater benefits will come from the public being burdened with less copyright with regard to those and pre-existing works.

    “I can’t help but object to ideas that sound predicated on the notion that authors owe society a damn thing”

    I don’t think that they do. If an artist wants to hang up his pen, I wouldn’t stop him, though I’d be sad about it. My ideas are predicated on the belief that society doesn’t owe anything to artists. Copyright isn’t an inherent right of artists. It isn’t deserved by performing the noble act of creating art. It isn’t even a gift, freely granted by society.

    It is a quid pro quo, and it is intended to benefit the giver. Any benefits the recipient enjoys exist purely in order to bend them to the giver’s will, or are merely incidental.

    Society, through government, doesn’t grant artists copyright unless we want to use that to bribe them into creating art for us. It’s all carrot, no stick, but it’s not something that comes from the goodness of our hearts.

    “More is just more; it isn’t necessarily better.”

    Not only do we have no earthly idea of how to only encourage the creation of works which are better, we can’t even agree on what works are better. If we tried to do that we’d wind up with asshattery like the Institut de France (most notorious for the Academie francaise).

    The only thing to do is to encourage there to be more. Some portion of that will be worthwhile, as Sturgeon’s Law predicts. The more works there are in toto, the more good works there will be, even if the ratio of good works to all works is quite dismal.

    “And what would limiting rights do other than to create more derivatives, copies, and lazy work?”

    There is nothing wrong with making copies. Making copies is how we ensure the spread and survival of our culture, and of its works. Reducing the cost of making those copies (it’s only copyright that keeps the costs above the virtually free level thanks to modern technology dropping the marginal cost per copy) is a good thing.

    This is just a single example, but imagine that in the entire world, right now, there might be ten thousand people with really excellent and amazing natural talents at music. Some of them will get the chance to develop those talents, part of which involves listening to existing music in order to learn from it. Some of those people are poor, live in remote areas, have no or limited formal education, and thus never really get to develop their talents as fully. Imagine how the world would be improved if we could only get the great music of the world into their hands. It wouldn’t be a panacea, but it might help. But we don’t know who these people are, when they’re still just diamonds in the rough. There’s no way to know in advance who we need to help, not just to help them, but to let them create works for us. So we’d better just give copies of everything we can to everybody we can. It doesn’t really harm us when we give a universal library to someone with no real artistic talent, if the cost is low enough.

    Nor is there anything wrong with making derivatives. Shakespeare is almost all derivatives. Virgil’s Aeneid is literally nothing other than fanfic based on Homer’s epics. Loads of movies are derivative, including many of Disney’s feature length cartoons. Many books are derivative, and so many songs are derivative that we even have a special category called ‘covers’ which are derivative performances of songs. There is no qualitative difference between an original work and a derivative work, simply due to their respective natures. You’re being a ridiculous snob.

    “Again, show me where copyright is stopping anyone from creating because I haven’t met that artist yet.”

    Really? Look in your own backyard. There are always loads of movies that people want to make, which are derivative works because they’re film adaptations of other works, or are sequels, or prequels, or remakes, or what have you. And people can’t make them, no matter how driven they are to do so, or how good their ideas are, or how obviously commercially successful it would be, because the rights are unavailable.

    This forces people to go do something else, but that’s clearly a second-rate solution, or else they wouldn’t have wanted to do the derivative project in the first place. And whether the substitute is better than the derivative likely would’ve been or not, who are we to make those decisions for the filmmaker?

    James_J–
    “You’re needed again at the Google propaganda offices… Oh, wait, that’s where you’re typing from!”

    Nope. I’d be happy to have such a high-profile and wealthy client, but I’m afraid they have other counsel. No, you’re going to have to face a far more terrifying reality: I actually mean what I say, and it is my own opinion, arrived at independently. There’s no conspiracy. There’s no astroturf. It’s real. And I’m not alone. And I’m not even the most extreme person on my side of this debate.

    • a- ” There’s also good reason to think that concepts such as copyright are not materially responsible for our cultural output, but are instead by-products of the same root causes.”

      umm, this has always been the case. But probably not in the way you mean it. Art doesn’t create culture, it reflects it. Copyright is just a limited property right.

      a- ” when I was a professional artist, I made money by providing artistic services, rather than by exploiting copyrights. And my clients’ businesses didn’t rely on copyrights either, but would not have been well-served by copying third party materials (since it would not have been tailored to their needs).”

      I somehow have a hard time believing that you were a professional artist (that had free time and money to get a law degrees), but that aside:
      You most certainly did rely on copyright. You may not have registered, but copyright was a part of your business whether you realize it or not. Otherwise you had absolutely nothing to sell to your clients, unless you taught lessons or consulted. If you made something for your clients, there had to be ownership in order for you to have something to sell… unless you ran Grokster or TPB or similar, in which case you were a con artist, and that isn’t being a professional artist.

    • “So I know that at least some artists would still be employed were we to abolish copyright.”

      Well, yeah, of course. There are still professional typewriter repairmen. But lemme tell you, typewriter repair has taken a pretty big hit, as a career path. I fear “art” however you define it, will as well as people stop paying.
      We talk a lot about “business models” in this debate but there are a significant amount of artists who don’t have business models in the way that say, visual artists and music bands do. They don’t make products individually or with a small group and look to sell it. They are more like regular workers. They look to get hired to do someone else’s project. Like session musicians and actors. I’ve done a lot of stuff at the Second City organization (in a very amateur capacity). Some people there are looking to create a “business”, like a touring comedian act, etc. But most of the people there are looking to be working actors and writers. Now, there’s never been space for all of them, but it looks like we’re making that space even smaller and…. for what?

      Unless the people who hire those folks come up with alternatives to copyright which are just as profitable as copyright (and I don’t think there is one) then those jobs cease to exist. I don’t really care about this debate in terms of “culture” and “art”, etc. I see a profitable industry that employees people and makes products that people generally like that is being destroyed for no good reason. Now I guess you can say “screw you average entertainment worker! If you’re not going to create something amazing and unique then go away!” But I think that’s a shame.

  • Audionomics–
    “I somehow have a hard time believing that you were a professional artist (that had free time and money to get a law degrees)”

    State school with low in-state tuition, a scholarship, and student loans. And most schools offer a night program for students who have day jobs. It’s hard work, but law school is hard work no matter what.

    “You most certainly did rely on copyright. You may not have registered, but copyright was a part of your business whether you realize it or not. Otherwise you had absolutely nothing to sell to your clients, unless you taught lessons or consulted. If you made something for your clients, there had to be ownership in order for you to have something to sell… unless you ran Grokster or TPB or similar, in which case you were a con artist, and that isn’t being a professional artist.”

    Nope. What I sold my clients was my labor. I would perform services, and the clients were charged either an hourly rate, or a flat fee for the overall project, depending on what sort of contract we could all agree on. Nothing was done in advance. While part of the contract did involve the disposition of copyrights, that’s only because someone was being issued copyrights automatically, and that had to be dealt with. If copyright law were changed to require formalities to obtain them, or to abolish copyright altogether, it would not have affected anything, save to make life a bit easier since the issue could be ignored.

    I didn’t rely on copyrights since my income didn’t hinge on it. My clients didn’t rely on copyright since it wasn’t relevant to their business.

    It’s not unusual.

    As a lawyer, no one pays me for a memo, or a contract, they pay me for the time it took me to write it. I can’t charge a royalty if they re-use my advice in another matter. And no one I’ve ever heard of cares if people copy a contract or modify it. (Which happens constantly, by the way)

    Likewise, when the yard guy comes by, he doesn’t sell me the yard, and all new hedges or something. He gets paid for labor and that is what he provides. Not everyone is in the goods business. There is a whole giant sector of the economy that provides services as well. Artistic services are a part of that.

    Sf46–
    “Well, yeah, of course. There are still professional typewriter repairmen. But lemme tell you, typewriter repair has taken a pretty big hit, as a career path. I fear “art” however you define it, will as well as people stop paying.”

    We give copyrights to architects. We started doing this about 20-25 years ago. Do we have way, way more architects now than we used to, as a result? No. Probably not even at all. So it stands to reason that we could eliminate copyright on architectural works and not cause a “big hit” to that profession.

    We give copyrights to novelists. In 1977, a novelist would only get a copyright for a published novel if he applied for it (which involved paying a fee, sending free copies to the Library of Congress, etc.). The copyright only lasted for 28 years. It could be extended for another 28 years upon request, but rarely was. In 1978, we eliminated the requirements and lengthened the term to the life of the novelist + 50 years. (And retroactively to life + 70 years in the late 90s). Do we have way, way more novelists now than we used to, as a result? No. Probably the only thing to increase the number of novelists in recent decades has been improvements in self publishing, for which we can thank Amazon. So it stands to reason that we could undo those changes (or more accurately, make thoughtful reforms, rather than mindless rollbacks) and not harm novelists.

    Abolition is excessive, IMO, but I suspect that many reforms with the effect of reducing copyright in one way or another would have positive results for the public while causing little to no harm for authors.

    “I see a profitable industry that employees people and makes products that people generally like that is being destroyed for no good reason.”

    It used to be that the toll roads around here employed numerous toll-takers to sit in a tollbooth all day, collecting tolls (and if necessary, making change) to finance the roads. We haven’t eliminated the tolls, but modern technology provides a convenient alternative; RFID widgets allow computers to charge tolls for cars that don’t even have to slow down anymore. This put a lot of people out of work but it made life better for everyone else. Partly in convenience, and partly in reduced costs (the equipment does cost money, but it doesn’t take sick days, go on strike, or want a pension).

    If I, in my capacity as an ordinary person who reads, listens to music, watches movies, etc. no longer had to pay for it, or put up with what appear from an ordinary perspective as arbitrary limits on how, when, where, and if I can enjoy works, my life would be quite a bit better. So it’s not that there’s no good reason, it’s that behavior which is perfectly rational happens to be at odds with what some other people want.

    Want people to respect copyright more? Make sure that it is in their own interests to do so, reform copyright so that there are fewer conflicts, or some combination of those.

    • In response to the first part:
      I have no problem with reducing copyright lengths. Especially if the shorter length was complimented more aggressively enforced. Where do I sign up?!!!

      “It used to be that the toll roads around here employed numerous toll-takers to sit in a tollbooth all day, collecting tolls (and if necessary, making change) to finance the roads. We haven’t eliminated the tolls, but modern technology provides a convenient alternative;”

      This is not a good comparison at all. This is technology taking the place of people. That causes it’s own social ripples and economic hardship (on some) but it is inevitable and largely good (i.e. it is good IMHO that we have washing machines and not washer-women like we used to). That is not what’s happening in copyright related issues. Not at all. I don’t even really understand how you could make that leap. Computers aren’t writing the scripts of pirated movies (although they might be soon I suppose! Which will be a different issue to assess). People are still doing all the work, the mechanics of the system just make it impossible to collect the money. To use your road example it’s more like a situation where technology has made it easy to clone an untraceable, unbillable RFID widget that allows me to pass through the toll area. In short: technology has not replaced the toll collector – technology has made us unable to collect tolls at all.

    • I should also clarify that “tolls” are a bad comparison, at least insofar as we experience them. They seem like arbitrary punishments (even though they are not meant to). What we really have is more like a theater with a bad lock on the alley door, so anyone can sneak in and see the show for free.

  • sf46–
    “I have no problem with reducing copyright lengths. Especially if the shorter length was complimented more aggressively enforced.”

    Well, reform would not only be different, probably shorter terms. It would also involve different, probably reduced scopes of protection.

    As for enforcement, while copyright should not be a criminal matter, and taxpayers should not be obligated to pay to enforce it (beyond providing a system of federal courts), copyright holders can, of course, enforce it as vigorously as they wish to, and circumstances allow. This is true now, so I trust you’re happy.

    “This is not a good comparison at all. This is technology taking the place of people. ”

    Well, I was responding to you, when you said: “I see a profitable industry that employees people and makes products that people generally like that is being destroyed for no good reason.”

    Automation is causing people to no longer be employed, and lack of paying work for authors is generally the main complaint about infringement.

    “To use your road example it’s more like a situation where technology has made it easy to clone an untraceable, unbillable RFID widget that allows me to pass through the toll area. In short: technology has not replaced the toll collector – technology has made us unable to collect tolls at all.”

    Okay, then, how about the Post Office? The long-distance phone call more or less killed personal letters decades ago, and e-mail, texting, and social messaging seem to be killing phone calls and whatever mail correspondance was left. Online advertising is harming the bread and butter junk mail industry. Netflix was helping them by mailing a lot of discs back and forth, but now they’re trying to switch over to streaming as much as possible for some reason. Bills are increasingly being sent out and paid online, and even the banks aren’t physically sending bundles of checks around the country for processing anymore, and all the issuer gets back is a picture on a web site or in a banking app.

    Parcels are probably up, but they don’t all go by mail; UPS and FedEx poach a lot of that desirable business away from them.

    And of course conservatives in Congress seem to want to kill the Post Office because we aren’t allowed to have anything nice.

    While I like the Post Office (and would even support nationalizing the big parcel delivery businesses and rolling them into the Post Office, as well as restoring some banking features to them and giving them a more prominent role in the government), I wouldn’t be willing to lose the convenience and inexpensiveness of paying my bills online without a stamp, or depositing checks by taking a photo of them with my phone.

    “They seem like arbitrary punishments”

    I don’t think that’s true. I expect everyone understands that they’re meant as a way to raise funds based on use. A lot of the resentment stems from tolls outliving their initial purpose — to repay bonds used for construction — and just becoming a handy revenue stream. Especially for bad actors, such as Robert Moses, who as I recall got a lot of his power by having tolls available to him as a source of funding independent of a legislative body.

    • Anonymous-
      You are, fundamentally misunderstanding my concern here. You keep giving examples of new technology that supplanted old technology and killed some jobs associated with he old technology. My concern is not “someone somewhere is losing a job!”. in fact people being supplanted by technology has been a wonderful thing for humanity as whole throughout human history. The invention of the wheel threw lots of guys out of work who had previously made a living carrying stuff on their backs. Likewise the ability to buy music from an electronic box in your house rather than go to a music store throws music store employees out of work. And I don’t care! (*One caveat below)

      Competition from new technologies is not the problem, the problem is when the market breaks: When product producers cannot get their product to market intact and then negotiate a price with buyers (note: fundamental to this negotiation is being able to deny your product to a buyer who doesn’t want to pay). It doesn’t matter whether we’re talking movies or melons. And it doesn’t make a difference whether the breakdown is because of theft, infrastructure failure, or something else. For instance about a year ago in a runup to an election the Venezuelan government set extremely low price caps on a large number of consumer electronics and other goods. This was wonderful in the short term for poor people who could buy products they had never been able to afford. Just as it is wonderful to suddenly be able to download for free pretty much and video or song you want. Unfortunately it is horrible in the long term Its destroys industries that make products people want (and people DO want new entertainment, if they didn’t you’d never hear about people downloading “Game of Thrones”) and kills jobs. Not because you’ve created a replacement like the phone replaces the post office. But because you appropriate someone else’s labor and production to your own ends without payment or permission.

      (*My one caveat from above: Too much automation too quickly could conceivably cause massive economic hardship. We may be there now. But such a phenomenon would be unrelated to my copyright concerns.)

    • Oops I see the problem. I wrote “This is technology taking the place of people.” That should have read “This is NOT technology taking the place of people.”

      Obviously a little bit of a different meaning 🙂

      As I further elaborated in my response post. This is not technology taking the place of people, this is a situation where sellers cannot have an active negotiation in the marketplace, which is necessary for a functioning market.

  • anon says-“As a lawyer, no one pays me for a memo, or a contract, they pay me for the time it took me to write it. I can’t charge a royalty if they re-use my advice in another matter. ”

    Right, and as a lawyer, you aren’t forced by the government to do business with everyone and the government doesn’t set your income rate either. You aren’t forced to rent out your lawnmower to any gardner who wishes to use it and told how much you can charge. Songwriters are.

  • sf46–
    I’m looking at it from the perspective of the effect, not the cause. If an author is unable to support themselves, what does it matter what the cause is? Further, why limit ourselves to helping authors? A neutral form of assistance should be available to anyone in dire straits. A roofer can starve just as well as an author can.

    But let me get back to a point you raised: “the problem is when the market breaks.”

    The market in this case is largely artificial. Authors do not have a right to have copyright law. They do not have a right to have a market. And if there is a market, the rules of the market can largely be set by third parties who have higher priorities than the interests of authors.

    I have no problem with your example about Venezuela. I think that if we abolished copyright altogether, there would be considerably less creation of original works. Even though there would be a benefit in increased creation of derivative works, and in unrestricted copying, distribution, etc., I don’t think that the public would benefit as much in that scenario as they might in others. That’s why I don’t support abolition.

    But, because copyright is only justified if it produces a better benefit for the public than no copyright, and because the best copyright law is that which produces the best public benefit, and because the public benefits from both increased creation and publication and from lack of restrictions, an ideal copyright law is not going to come about if we cater to the desires of authors and publishers. Yet that seems to be what we’ve done.

    I think that we can carefully reduce copyright in numerous, significant ways, and increase the public benefit by reducing the amount of restrictions more than we reduce the amount of creation and publication. That is, they don’t scale at the same rates; a big reduction in copyright might cause only a small reduction in the benefits enjoyed by authors, which are used to bribe them into doing what we want.

    It’s okay if some of that industry is lost, however. Copyright is essentially a somewhat convoluted system of public subsidy for the arts. We need to get the best bang for our buck. Giving copyrights away thoughtlessly, and strengthening them without getting anything of greater value back is simply wasteful and inefficient.

    So for example, with the Venezuelans, managing industrial, trade, and economic policy to help people afford things that had been out of their reach is a good thing. Going so far as to wreck the economy in the long run is not. But to go the other way, and put plutocrats without regard for the public well being in total control is bad too. Yet that’s what we’ve done with copyright, and it has not been serving us well.

    AudioNomics–
    “Right, and as a lawyer, you aren’t forced by the government to do business with everyone and the government doesn’t set your income rate either. You aren’t forced to rent out your lawnmower to any gardner who wishes to use it and told how much you can charge. Songwriters are.”

    Actually law is a highly regulated profession. In a number of states here in the US, lawyers are required to perform pro bono work. Sometimes this involves courts assigning clients to lawyers who don’t get a choice, don’t get paid, but must represent the client as well as they would any other. We’re also generally required to pay a substantial annual fee to keep our licenses, some of which goes toward legal defense for the needy. And all states at least strongly encourage lawyers to take pro bono clients.

    In all states, our fees are limited to amounts considered reasonable. There are caps on contingency fees (which can sometimes be quite low), and caps on hourly rates. Overcharging a client not only isn’t allowed, but can give rise to sanctions including suspension or even disbarment.

    And while this is not the rule in the US, in some parts of the world (e.g. the UK, as I recall), lawyers do not have a choice as to their clients. Any client that comes in the door must be accepted so long as the client can pay, the lawyer has time, and perhaps relevant skills.

    As for your lawnmower example, you’re acting as though authors are inherently entitled to copyrights, or get to define what their rights are, which of course they are not. The restrictions and obligations go hand-in-hand with the benefits, and this is all by design. If you don’t want to be subject to compulsory licenses, then give up your copyright, or don’t write songs. You have no other options. No one is taking anything away from you. It’s just that you don’t have any more rights in your song than what you are given, and you aren’t given the right to refuse licenses in some cases.

    Monopolies, like copyright, get regulated in the public interest too. The town where I live gave a monopoly to a cable company, but required the cable company to provide free public access channels for the town’s use, and probably some other concessions too. Same sort of thing.

    • Anonymous, the fact that you continue to dismiss the civil rights aspects of intellectual property by comparing copyright to industrial monopolies is astonishing to me. Industrial monopolies, regulated by states, come about in order to get expensive infrastructure built by private entities because we Americans kind of suck at public works unless they’ve got a military component. A copyright “monopoly” is a human right available to every citizen, and the expressions of one citizen, even a large corporate citizen, does not preclude the expression of another from entering the market. You talk about copyright as though it’s a valve — that the wider it’s open the more water there will be for everyone to drink. If this were true, we’d be on the same side, but I don’t think copyright is a valve. It’s a barrier around every individual’s work just like civil liberty is a barrier around every individual person. And every individual person is entitled to act freely right up to the point where he crosses that barrier of someone else’s civil rights. Ditto creative works.

      One problem I have with the valve-like view of copyright is that it is analogous to the reverse discrimination logic of the anti-same-sex-marriage crowd. “The government is forcing me to abandon my right of religious exercise by establishing an anti-Christian right of marriage.” This bizarre view is blind to the notion of civil liberty as a barrier around every individual, taking a valve-like view of universal rights as though they are restrictions imposed by government. I am uncomfortable with this perspective regardless of the rights in question.

  • David–
    “Anonymous, the fact that you continue to dismiss the civil rights aspects of intellectual property by comparing copyright to industrial monopolies is astonishing to me.”

    Copyright is an industrial monopoly; it’s not a comparison. And it isn’t just me saying so, nor is this a recent discovery. Discussing the Constitution, Jefferson (who was in France) and Madison had this exchange in their correspondance:

    Jefferson:
    “The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression.

    Madison:
    “With regard to monopolies they are justly classified among the greatest nuisances in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the Public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our Governments, than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many and not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.”

    Of course in hindsight, we can all marvel at Madison’s naivety that the power in American politics would remain with the many.

    And then later, we have this passage from one of Macaulay’s great speeches to Parliament about copyright:
    “Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. … [W]hy should we not restore the monopoly of the East India trade to the East India Company? Why should we not revive all those old monopolies which, in Elizabeth’s reign, galled our fathers so severely that, maddened by intolerable wrong, they opposed to their sovereign a resistance before which her haughty spirit quailed for the first and for the last time? Was it the cheapness and excellence of commodities that then so violently stirred the indignation of the English people? I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company’s monopoly of tea, or by Lord Essex’s monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil but the evil ought not to last a day longer than is necessary for the purpose of securing the good.

    Anyway, back to you, David:
    “Industrial monopolies, regulated by states, come about in order to get expensive infrastructure built by private entities because we Americans kind of suck at public works unless they’ve got a military component. ”

    That’s precisely the logic underlying copyright. Copyright, created by and regulated by governments, comes about in order to get expensive works created by private entities and ultimately into the public domain, because Americans don’t want to pay to subsidize artists directly through the government without the involvement of the market.

    “A copyright “monopoly” is a human right”
    It’s not at all a human right.

    “You talk about copyright as though it’s a valve — that the wider it’s open the more water there will be for everyone to drink.”

    No, that is not my position at all. I absolutely do not believe that the more copyright there is, the better off we will all be. Nor do I believe that the less copyright there is, the better off we will all be. Like Goldilocks, I seek the certain amount of copyright which is just right; not too much, and not too little. That is how much we should have. My gut feeling is that it’s less than we have now, but I’d be happy to be proven wrong.

    “It’s a barrier around every individual’s work just like civil liberty is a barrier around every individual person.”

    The problem is that it is not a barrier which passively protects works without harming others; it is like a prison, into which everyone but the copyright holder is put, actively limiting their freedom. It is intolerable, just as any form of censorship is intolerable, barring some astonishingly good reason for having it, and perhaps not even then.

    “One problem I have with the valve-like view of copyright is that it is analogous to the reverse discrimination logic of the anti-same-sex-marriage crowd. “The government is forcing me to abandon my right of religious exercise by establishing an anti-Christian right of marriage.” This bizarre view is blind to the notion of civil liberty as a barrier around every individual, taking a valve-like view of universal rights as though they are restrictions imposed by government. I am uncomfortable with this perspective regardless of the rights in question.”

    Well, that’s not my position, for the record I’ve supported same-sex marriage for as long as I’ve been aware of it being an issue, and in any event, I don’t see any real sense in how you’ve drawn a connection between these two things.

    If Alice claims that she is less free because Bob and Charlie can get married, she’s just wrong; what Bob and Charlie do between themselves has no effect on her.

    But if Alice claims she is less free because Bob and Charlie write a book and get a copyright, she is right; if the book was written but there was no copyright, she would be free to print up copies of it herself. Bob and Charlie are using the power of the state to prevent her from doing something she’d otherwise be free to do. They are muzzling her. And that cannot be justified merely by saying that it is a nice thing for Bob and Charlie.

    • Copyright is a “monopoly” in the same way you have a “monopoly” on the use of your car… (actually, copyright is less so, as you aren’t forced to take passengers whenever a passenger wants a ride, and are told you can only charge a tenth of a penny per mile, regardless of how much you paid for your car, or what gas mileage you get…). Copyright is just a restricted property right…it is not an “industrial monopoly”, EVERY adult person owns some copyrights, unless you live in a cave.

    • Jefferson was addressing himself to patents not copyright, and 2 months after the law allowing the granting of patents remarked that it “has given a spring to invention beyond my conception.” After Jefferson’s death, leaving debts and his family in penury, Madison arranged copyright on all of Jefferson papers the publications of which gave Jefferson’s wife an income.

    • Anonymous —

      With regard to the semantics — the colloquial and the legal use of the term “monopoly,” I’ll refer anyone reading this thread to Terry Hart’s post”Three Reasons Copyright is not a Monopoly.” I’m not being lazy. It’s just that I admit consistently that I am at a disadvantage citing legal history or case law among those who have actually been to law school. I cite Terry to illustrate that there is at least debate on the subject of copyright as a monopoly and what precisely the word monopoly might mean in this context. That said, it seems to me that your recurring theme on the matter takes a stance on Hart’s second point addressing the question of whether or not copyright infringes upon someone else’s rights. You indicate here and throughout your responses that it unquestionably does, which seems to be the basis of your desire to limit copyright as much as possible without entirely removing the incentive for authors.

      In your earlier response, you referred to a cable company being granted a monopoly with certain state restrictions. This caught my attention because I don’t believe that copyright is quite comparable to the kind of monopoly granted to private institutions making investments with large stranded-costs, though if you want to fully adhere to that comparison, it seems we could make a case for very long copyright terms indeed. But let’s set that aside because I want to try to clarify my earlier comment, and I hope you know that I know you’re on the same side in the same-sex marriage “debate.” Also, in my valve analogy, I was implying that less copyright is the same as a wider aperture in the valve, which you have argued would foster more works available for public benefit. But this discussion is not about what copyright revisions may or may not produce more works, it’s about the nature of copyright itself.

      It seems the basic split between our views is whether copyright is a government-granted monopoly with government-imposed restrictions (like a utility) or a constitutional civil right with government-imposed limitations. I argue that it is the latter, or at least more like the latter. First, the word “right” happens to be part of the compound word, which literally means “the right to copy.” Second, this right is available to every citizen upon the completion of a work as long as that work meets certain criteria; and the automatic association of the right with the birth of a work has a kind of inalienable quality to it. After that, of course, we’re off to the races regarding terms and the complexities of changing markets beyond the framers’ imaginations. But the essence of copyright itself, I believe, is akin to other civil rights that also have limits.

      A common comparison, of course, is trespassing. Is the property owner infringing on the rights of citizens to go where they please by restricting access to his property? I’m guessing you will say that he is, but that it’s a restriction on liberty we can tolerate up to a point and for good reason. Maybe I’m wrong, but this appears to be your fundamental position on copyright — that it always restricts liberty, and your goal is to have it restrict as little of that liberty as possible. Fair enough, but again that gets into the practical question of revising copyright, and I think you have to demonstrate how liberty is being substantively limited in order to make a case for specific restrictions.

      Still, with regard to the essence of what kind of monopoly copyright is, your emphasis of the fact that it restricts liberty does remind me of the more complex and more subtle position of the religious conservatives on same-sex marriage than it does the trespassing comparison. This is partly because the nature of speech is more similar the nature of worship than to the nature of physical action like stepping into someone’s space. Neither you nor I agree with the position of these fundamentalists, but it is unquestionably one which states that their right to worship is being infringed if they are forced to accept same-sex marriages as legitimate. You and I will both respond, “What Sue and Betty do in their lives doesn’t infringe on anyone else’s rights in any way whatsoever,” but that’s partly because we don’t relate to the aspect of their religion (protected by the First Amendment) that says they are supposed to revile gayness as a sin. I refer to this argument, which I find abhorrent, because I think it is a grotesque stretch of their sense of right to religious exercise as protected by the First Amendment. It’s not a stretch to say they have the right to hate gayness; it is a stretch to say that right is being restricted by the state establishing a right of gayness to be granted legitimacy through marriage.

      In in a similar way, I find that the very existence of the Internet has caused a dysfunctional degree of stretching of the concept of the right of free expression. We even see hideous violations of decency and legality defended as “speech” for no other reason than that these actions occur online. And for this reason, I think the burden of proof is tremendous in a rational world to show that speech in any real sense is inherently infringed by copyright. My copyrighting a novel does not infringe upon anyone’s right of free expression. If you agree with John Parry Barlow, though, that “The Pirate Bay is speech,” then we are at an irreconcilable impasse because that, to my thinking, is a distortion of free expression equivalent in narcissistic logic to the religious exercise distortion of the anti-gay zealots.


      • whether copyright is a government-granted monopoly with government-imposed restrictions (like a utility) or a constitutional civil right with government-imposed limitations.

        There you have the crux of the issue Davis. You’ll note that Anonymous uses quotes where the word ‘privilege’ is used, you have to remember that the quotes are 17th and 18th century when ‘privilege’ was indeed the political word for a ‘civil right’ rather than a natural right. Anonymous would have us read the modern definition for ‘privilege’ which is essential that of a favour granted by Government such as a driving license which can be taken away. Go back to the 18th century and Blackstone talks about ‘privileges and immunities’ to refer to civil and natural right respectively. Madison writes that the citizens of the several states should enjoy an “equality of privileges”, Hamilton talks obout “equal privileges”. The early Constitution of Pennsylvania “Charter of Privileges for Pennsylvania.” Other state constitutions talk of “inherent privilege of every freeman, the liberty to plead his own cause” or to confront witnesses. None of this makes sense if ‘privilege’ is used in its modern sense. Beware of slippery tongued lawyers.

  • AudioNomics–
    “Copyright is a ‘monopoly’ in the same way you have a “monopoly” on the use of your car … Copyright is just a restricted property right… it is not an ‘industrial monopoly'”

    No, not at all.

    First off, creative works aren’t property, which means that copyright, being a right concerning works, is not a property right. To be property, a thing must be capable of being used and enjoyed by the owner, capable of being excluded or not from the use and enjoyment of others as the owner sees fit, and capable of being disposed of, such as by selling it or destroying it. Creative works fail at the second and third prongs; they can’t be property. And in fact that’s why we have copyright to begin with — it’s an attempt to emulate, somewhat, what it would be like if we lived in a world where creative works were capable of being property. If they were property, we wouldn’t need copyright. The regular rules for personal property, which apply to everything from cars to clothes to bricks would work fine. And given that property has appeared in one form of another in basically every culture in the world, rights in creative works would be something that had existed from time immemorial, rather than from the relatively recent year of 1710 (or later in most of the world).

    Second, you obviously have no idea what a monopoly actually is. Protip: This is not a discussion about the board game. A monopoly is when a particular entity is the only, or at least materially dominant, supplier of a particular commodity good. You don’t have a monopoly on your car, because you are not selling it, and as a singular item, it’s not a commodity. Now, if you engineered a merger of GM, Ford, and Chrysler, and wound up in charge of it, selling many cars, any of which was interchangeable with any of the same make, model, and year, then you might be a monopoly.

    A copyright is a monopoly because the copyright holder can, and routinely does exclude anyone but himself (or his licensee) from supplying the work, whether as copies, performances, etc. And copies of the same work are typically sufficiently interchangeable with one another to be commodities. One copy of Harry Potter and the Endless Revenue Stream is more or less the same as any other; no one frets about which one they pluck from the shelf at the bookstore.

    Meanwhile, copyrights are used just as any monopoly normally is. The copyright holder uses it to shut down competitors who would otherwise make copies of the same work, all in order to charge higher prices than could be had on the market if there was actual competition. For example, a typical copyrighted novel might sell for $20. A public domain novel, OTOH, might be sold at a variety of price points by anyone at all who wants to try their hand at publishing. Sometimes, as with books on Project Gutenberg, they’re given away for free. This is all to benefit the copyright holder, just as any monopolist exploits market dominance for their own benefit. There’s a high barrier to entry — in this case, it’s virtually legally impossible.

    All of this is no different from how a monopolist selling bricks, or wheat, or gasoline would behave.

    And of course, I continue to not be the only person pointing out this simple fact. How about the Supreme Court? This is from Sony v. Universal:

    ” 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.

    ‘The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, 127, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.’ It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.’ United States v. Paramount Pictures, Inc., 334 U. S. 131, 158 (1948).

    As the text of the Constitution makes plain, it is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors in order to give the public appropriate access to their work product.”

    Getting back to you, you also said “EVERY adult person owns some copyrights, unless you live in a cave.”

    That’s a total non sequitur, and it’s an unfortunate and unnecessary state of affairs as well.

  • John Warr–
    “Jefferson was addressing himself to patents not copyright”

    There is no material difference in policy at that level. Jefferson is commonly cited with regard to copyright, just as patent law has often been cited with regard to copyright (e.g. inducement liability in Grokster was based on inducement liability in patents). His good friend Madison with whom Jefferson was actually corresponding certainly understood that the points raised were equally applicable to both patents and copyrights.

    “Madison arranged copyright on all of Jefferson papers the publications of which gave Jefferson’s wife an income.”

    That would be a good trick, given that Jefferson’s wife died in 1782 and Jefferson died in 1826. Is that related in some way to retroactive term length increases?

    David–
    “I’ll refer anyone reading this thread to Terry Hart’s post ‘Three Reasons Copyright is not a Monopoly.'”

    If I only had a nickel for every time Terry’s been wrong about this sort of thing, I could probably just give away money to authors and we wouldn’t have to worry about copyright. The paper his first point relies upon is interesting, though its author cautions against relying on it, and despite some issues with his methodology, and some possible alternative explanations which are addressed but largely ignored, he still finds evidence of a 15% markup, which isn’t bad.

    But Terry’s second and third points are garbage. Terry gins up a requirement that in order for copyright to be a monopoly, the public must be able to make copies of a work before the work exists. Of course, there is no such requirement. It’s like saying that AT&T didn’t have a monopoly because before Bell invented the telephone, no one else was in the telephone racket. A monopoly which comes into existence contemporaneously with the subject matter of the monopoly still works to deprive the public from fair competition with the monopolist.

    Terry’s third point is that just because one work cannot be copied this doesn’t prevent a different work from being created. This not only isn’t correct (copyright law addresses similar but not identical works), but also fails to address the point raised, which is that each work is a commodity unto itself, and that copyright is a barrier to entering the market for that specific work.

    “there is at least debate on the subject of copyright as a monopoly”

    There is also at least debate on the subject of whether evolution occurs, and whether the earth is flat. Mere debate is not the same as worthwhile debate.

    “your desire to limit copyright as much as possible without entirely removing the incentive for authors.”

    No, I want to produce the greatest overall public benefit with regard to copyright. The means for doing so involve granting as much of a copyright-based incentive as possible to authors, while also limiting copyright as much as possible.

    “This caught my attention because I don’t believe that copyright is quite comparable to the kind of monopoly granted to private institutions making investments with large stranded-costs,”

    Isn’t the argument always that authors and publishers have large sunk costs that they have to recoup (and beyond which, profit) using copyright? That if they cannot expect to make money or at the very least break even, they will not create art any more? As for the actual amount of the investment, what matters is the ratio between investment and opportunity cost, and the amount that can be made under copyright. That a book costs less to make than a city-wide cable installation isn’t relevant.

    “Also, in my valve analogy, I was implying that less copyright is the same as a wider aperture in the valve, which you have argued would foster more works available for public benefit.”

    It might result in there being more works, but the benefit of copyright is not only a matter of the number of works created and published. It is also in the amount of freedom that people have with regard to those works.

    “First, the word ‘right’ happens to be part of the compound word, which literally means ‘the right to copy.'”

    Well, technically the original meaning would now be thought of as something like ‘a right to a manuscript,’ if you delve into 16th-18th century English etymology and law. But from the beginning, it’s always been very clearly an exclusive right. That’s a term of art; it essentially means a right to exclude others. This makes it a negative right, not a positive right to affirmatively do anything.

    The other right, the right to make copies of a work isn’t part of copyright; it’s inherent, and would and does exist even if there were no copyright. And it exists in everyone, rather than just an author.

    “Second, this right is available to every citizen upon the completion of a work as long as that work meets certain criteria; and the automatic association of the right with the birth of a work has a kind of inalienable quality to it.”

    Okay, first, you know that we only started doing that in 1978, right? Prior to that, copyrights vested when works were published having been registered. Further, the criteria have changed greatly over time (originally it was only books and maps — music and the visual and performing arts were well known, but not protected). And second, copyright isn’t inalienable. It’s always been subject to alienation, and in fact authors selling their copyrights to publishers is the traditional business model for authors. If it were inalienable, it really wouldn’t work very well.

    “A common comparison, of course, is trespassing. Is the property owner infringing on the rights of citizens to go where they please by restricting access to his property? I’m guessing you will say that he is, but that it’s a restriction on liberty we can tolerate up to a point and for good reason. Maybe I’m wrong, but this appears to be your fundamental position on copyright — that it always restricts liberty, and your goal is to have it restrict as little of that liberty as possible.”

    You had it and then you lost it.

    My fundamental position on copyright is that while yes, it always restricts liberty, it is tolerable up to a point, provided that it produces more of a benefit than harm for the people subject to the restriction. I would not, however, say that it should restrict as little as possible; that would just lead to abolition. Rather, it should be tailored to produce the greatest overall public benefit. whether that involves a little restriction or a lot. Just so long as the restriction is not in excess of the amount necessary to produce that maximum public benefit.

    “In in a similar way, I find that the very existence of the Internet has caused a dysfunctional degree of stretching of the concept of the right of free expression. We even see hideous violations of decency and legality defended as “speech” for no other reason than that these actions occur online.”

    Meh. I still remember Mutual Film Corp. v. Industrial Commission of Ohio, a 9-0 US Supreme Court case, not quite a hundred years old, which held that movies were not really speech, and were not protected by the First Amendment. There is a lot of terrible stuff online. But there is very little in the online sphere that is not speech. It’s easy to decide that speech is really only that sort of speech which one is already comfortable with and well-accustomed to, and which happens to basically be inoffensive to oneself (even while claiming that some speech can be offensive, allowing one to engage in a bit of self-congratulation for one’s open mindedness).

    But that doesn’t make it true. Really, speech is very broad, and contains a great quantity of horrible things that any ordinary person would be repulsed by. To really support the idea of free speech, to really stand behind the principle of disagreeing with what one says but defending the right to say it, really demands a liberal spirit and open mind, a willingness to tolerate discomfort, to embrace those with whom you have real hostility (rather than civil disagreement), and to adopt as a motto “Humani nihil a me alienum puto.”

    “My copyrighting a novel does not infringe upon anyone’s right of free expression.”

    It infringes my right to make a copy of that exact novel without your permission. It’s a right that you’d agree I’d have if the novel were not copyrighted, so clearly it’s the copyright that is the source of the infringement.

    “If you agree with John Parry Barlow, though, that ‘The Pirate Bay is speech'”

    It is, but the question isn’t whether it’s speech, it’s whether we will allow the state to set up a system by which its speech can be limited in some way. Libel and slander are speech, as are obscenity, false advertising, sedition and some forms of treason. You appear to want to play a game with definitions, by excluding unauthorized copying from the realm of speech right off of the bat, in order to avoid having to actually analyze it to see whether or not it is worth protecting. It’s as bogus here as it was when it was argued that burning draft cards to protest Vietnam wasn’t really speech, because it had a non-communicative effect of impeding the functioning of the draft. Bogus then, bogus now.

    If copyright is so great, it will be no problem to show why it is a good thing to have even though it infringes on speech. It should be especially easy for you, given that you know that I already support copyright from the point of view that it is an infringement, yet perhaps an allowable one, under the right circumstances. Why shy away from that?

    • Anonymous —

      You used my own oft-cited reference to the “debate” over evolution, but I hardly think it’s fair to lump Terry Hart in with unqualified, anti-science nut jobs. I think if you want to debate Hart or those who agree with his positions, you should do so, but not through people like me. I’ll maintain the premise that you and he are equals with different points of view, with the exception that Terry is not shrouded in anonymity and we can check his credentials and experience.

      Yes, I realize automatic copyrights didn’t exist before 1978, though that doesn’t negate the point of inalienability does it? What year did women get the vote or did black people in the South get to stop abiding by Jim Crow laws?

      But to your bottom line question “Why is copyright so great even though it infringes on speech?” I reject the premise that it does infringe on speech. You say my copyright on my novel infringes your right to make an exact copy of that novel without my permission. First, if I don’t write the novel at all, this is an absurdly circular conversation, which of course goes to the question of incentive. Would I write the novel if I could not enjoy a copyright on it, or more precisely, could not enjoy a copyright on it as copyright exists today? That is asking me to comment on precisely what kind of surgery ought to be done to reform copyright, though I am unconvinced it is in dire need of reform. But even if I were convinced of that need, I am not personally qualified to comment on that level. I hear various reform proposals and reject many of them as illogical from a layman’s point of view, commenting on culture and creativity. But which precise elements of the law may or may not need tweaking is very far outside my wheelhouse. Congress won’t be asking me, and that’s probably a good thing.

      All that said, where is it written that speech must include a right to copy the works of another? Speech has reasonable limitations like libel and fraud. Why can’t one of those limitations include the sovereignty of works created that meet the defined standards of protection under copyright? You’ve said you don’t fundamentally care about artists’ rights beyond the point that you need to incentivize their works. Conversely, I’ll say that I couldn’t care less about your presumed right to copy anything and don’t feel remotely chilled in my freedom to express myself. As I have said many times, neither I nor any creator I’ve met has ever sat down to work and worried much about their expression transgressing some other author’s copyrights. And I certainly do NOT care about the “rights” of a website owner that wants to monetize copies of works. Even if this activity did not infringe anything, I don’t value the model as some boon to culture the way vested interests do. Back to evolution, given all the information freely and legally available on the Web now, why are there more Darwin denying idiots than ever? So, before you ask the question, I think you have to prove the premise that copyright infringes speech other than in a very vague, theoretical construct. And I think you have to deal honestly with the proposed “value” of increased copying.

    • So not wife but daughter:
      http://rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-print-02-02-02-0778

      in any case within the context of 18th century political discussion ‘privilege’ has a meaning of ‘civil right’ and as the quotes above show you cannot always import the modern meaning of some grace and favour grant of Government. Indeed when referring to the Queen Anne act Madison talks in terms of copyright be a right of Common Law in order to justify Patents. These aren’t privileges in the modern sense. The same is true for the use of monopoly, this isn’t the same thing that stopped others from importing any tea, building any mousetraps, or publishing any works of literature. Rather the grant is limited in that it stops one from building a specific mousetrap. or a publishing a specific work of literature. The use of the word monopoly tends to the realization that the Common Law civil right can only be secured by civil society working through government.

    • I’m sorry…I’ve been staying out of this for awhile, hoping that someone else would clear the fog away…but I can see you still don’t get it. I’ll try a different way…here goes:

      You CAN make an exact copy of the novel I write…for your own personal use. You cannot sell it to anyone. This principle was pretty clearly established in the Betamax case. As a one-off use, this hurts less than a P2P site that offers people a chance to rip off wholesale.

      If I stop you from copying and selling my work, I am not in any way infringing on your right to free expression (by the way, this is NOT a right – the right is free speech…somewhat different), but rather I am protecting my own right of ownership of what I create. You did not create it…I did. If I build a piece of furniture, I own it until I sell it to you. Then YOU own it. If someone steals it from you, you’d be pissed off. If it was a really unique piece of furniture and someone made a copy of it…the one YOU paid money for would no longer be unique and might suffer in value. And you’d be pissed off.

      The creative world is somewhat more vague…words, melodies, sounds…are much more intangible and therefore lend themselves to looser interpretation by people who would like to benefit from that which they did not work for.

      If I hand make copies of Shaker furniture out of the best materials and I am a skilled craftsman who takes pride in what I do…my furniture has more value than cheaply mass-produced copies from some factory in China…even though they may look very similar.

      The customers for MY furniture and the customers for the “made in China” copies are probably very different…because mine would tend to cost a lot more….BUT, if Mr. Shaker were alive, and his designs were copyrighted (or patented, or Trademarked, or otherwise protected), he would be suing both of us for infringement of his work…the only difference being that the person who sold the most copies…would have caused him the most damage and would likely be liable for much more money…and Mr. Shaker would win that lawsuit.

      The point is…Why should YOU have any right to something I create until I very specifically grant you that right? You can bitch and moan that I’m stifling you, but if I didn’t create it, you couldn’t quote it, or copy it, or even know that the work existed until I put it out there.

  • Let's just go with 'Anonymous'

    These ongoing discussions/debates are driving me slowly insane. Clearly, musicians and songwriters have to be paid or the well dries up. On the other hand who wouldn’t want good music for free, from a service that claims, over and over, to pay artists fairly? They don’t. They fight to keep the royalty rates effectively at zero, and fuel the us-versus-them debates. After all, if they can successfully frame the debate as artists versus fans, who wins? The Streaming services win. They get to continue paying de-facto nothing for the product they sell.

    For those who make the argument that it is so much less expensive to turn out music now, and that somehow evens it all up, bear in mid that even a very low budget indie effort to put out a downloadable CD runs around $1,000 minimum, not even counting the huge amount of time involved, and cost of instruments and gear. It takes 1,250,000 streams at $0.0008 just to cover the $1,000 cost. And even though one might get performance royalties from a PRO in addition to streaming royalties, that’s a pittance as well with a 6-12 month lag time to get paid. BTW if you have no label and self publish, and you want the 50% publisher’s share of performance royalties due you, you need to register as a publisher with BMI or Ascap at $50 per year (62,500 streams per year).

    Streaming services are NOT ad supported, as that would imply that the ad revenues cover (at least ) the cost of doing business including royalty rates. The model is NOT viable and THAT should not be a problem for either the artist or the consumer. It’s the streaming services’ problem. If they want to offer music for free, cool, but just like any other business they still have to pay for the product they sell. They’re not doing that, even with 70% of revenues going to royalties. Clearly it’s a revenue problem and that means dramatically higher advertising rates. Their business model is crap and they had to have known going in that the artists would be the ones killed by this. The end game, unless something changes, is a handful of big-name mainstream artists putting out lowest-common-denominator music. All other music will be toast in the end, and that is a hugely unappealing prospect. 99+ percent of musicians will fare better buying lottery tickets than spending money to release music. Over time, when new music on the services is down to mundane redundant crap, they will die off from an attendant lack of interest. Short term thinking. Why am I not surprised? Screw the artists, buy off politicians to keep royalty rates preposterously low, get the fans pissed at the artists, and after all but a handful of artists go away, leave a legacy of really bad mundane music. Who cares? After all, money was made, and for a while, anyway, people got decent music for free.

    End of rant.

  • John Warr–
    “There you have the crux of the issue Davis. You’ll note that Anonymous uses quotes where the word ‘privilege’ is used, you have to remember that the quotes are 17th and 18th century when ‘privilege’ was indeed the political word for a ‘civil right’ rather than a natural right. Anonymous would have us read the modern definition for ‘privilege’ which is essential that of a favour granted by Government such as a driving license which can be taken away.”

    The quotes are from the 18th and 19th centuries, and both meanings were in use at that time. Privileges could mean both special rights granted above and beyond the norm to someone enjoying special favor, and it could also have the related meaning of an artificial right granted to everyone, but still above the level of a natural right to which everyone would possess even had no action been taken.

    But that’s all just a tangent. I didn’t use those quotes because of the word ‘privilege,’ I used them because they support the point that copyright is a monopoly.

    “So not wife but daughter”

    As near as I can tell without flying to the UK to look at microfilm of early 19th century original documents, Madison was interested in whether a copyright could be had on the memoirs that Jefferson’s grandson, Randolph, was putting together, which would include copies of many original letters and papers of the late Jefferson. Specifically, Madison wondered whether copyrights could be gotten in the UK and France.

    A copyright was acquired for the book in its American printing, as the copyright notice in it attests to. An English publisher also printed copies of the book at about the same time. No notice was required there, so there’s no definitive evidence (without delving into old records, as noted) if the British pirated the book. But I suspect that there was no English copyright, as they would not ordinarily grant one to an American author until far, far later. While the English publisher might’ve paid for early access to the manuscript, or at least a fair copy of the book, AFAICT they weren’t obliged to.

    Not being fluent in French, I’ll leave the mystery of whether Randolph got a copyright in that country as an exercise for someone else. But the smart money says that he didn’t get one in the UK, despite Madison’s hope to the contrary. Further investigation would be welcome on this, but I have enough to do in this century that I cannot follow up on it.

    “Common Law civil right”

    You’re contradicting yourself. A civil right is affirmatively granted by government. Common law rights are somewhat more organic. For a long time it was believed that there had been a common law copyright, but that it had been abolished and replaced by the Statute of Anne. Later scholarship has thrown doubt on the whole thing, and to the extent that the question is relevant to anything, all we can say is that if there was such a right, Anne preempted it.

    David–
    “You used my own oft-cited reference to the “debate” over evolution, but I hardly think it’s fair to lump Terry Hart in with unqualified, anti-science nut jobs.”

    Fair enough. Feel free to substitute in something like how the President should have to send in special forces to sneak up on the ebola virus and shoot it. As I’m sure any intelligent person who has watched TV news for many years now will know, just because there are two sides to an issue does not mean that the sides both have equally strong, or even legitimate arguments.

    “Yes, I realize automatic copyrights didn’t exist before 1978, though that doesn’t negate the point of inalienability does it?”

    No, but again you seem to think that copyrights are inalienable at all, and they aren’t. An inalienable right is one that cannot be assigned to someone else. My right to instruct the bank to give me money from my savings account is alienable; I can draw up papers giving a right to withdraw money to someone else, and then they, and not I, can do so. OTOH, my right to vote is inalienable; I cannot sell it to someone.

    Copyrights are, and always have been alienable. When you assign a copyright to someone else, you are alienating it. In other countries, some aspects of copyright may be treated as inalienable, but not here in the US. The closest we come is under VARA (17 USC 106A) and that almost never applies to anyone. Plus it can still be waived, which in conjunction with the ability to assign copyrights, gets around the issue neatly.

    “You say my copyright on my novel infringes your right to make an exact copy of that novel without my permission. First, if I don’t write the novel at all, this is an absurdly circular conversation”

    Yes, as I recall, that was Terry’s third point. But it doesn’t really work. Until a work has been created, the right to make a copy of it is inchoate. But once a work is created, there is a right to make copies of it. There is not a right to engage in trespass in order to access copies of it, so if it’s kept private, this may prove a stumbling block. But there is a right to copy.

    The very language of the Copyright Act supports this argument. The Act provides the copyright holder with an exclusive right to copy. ‘Exclusivity’ is a term of art; it essentially means a right to exclude others. Why would you need to exclude others if they had no right to begin with?

    “where is it written that speech must include a right to copy the works of another?”

    Are you suggesting that I cannot copy the works of Shakespeare? I assure you, I’m not him. I can also assure you that there is no part of the Copyright Act which grants a right to copy public domain works; the only thing that happens when a work enters the public domain is that the copyright holder loses the right to exclude others. If people did not innately have a right to copy, the mere loss of a right to exclude would not provide the public with a right to copy. Works would effectively still be copyrighted beyond the end of the term. We can observe that that does not describe reality. It cannot be the correct interpretation.

    Rather, there is an inherent right to copy everything, which everyone possesses, but which copyright holders have a limited right to suppress as to specific works, while they’re copyrighted, to the extent that they wish to exercise it.

    “Speech has reasonable limitations like libel and fraud. Why can’t one of those limitations include the sovereignty of works created that meet the defined standards of protection under copyright?”

    That is what copyright is. But remember: libelous speech and fraudulent speech are not protected speech, but they are speech. I don’t have a problem with having copyright limit free speech, provided that it is carefully tailored to provide greater public benefits than would be enjoyed if we didn’t have it. (Though the idea of an absolute free speech right is appealing, I admit)

    “neither I nor any creator I’ve met has ever sat down to work and worried much about their expression transgressing some other author’s copyrights”

    Yes, I am aware of this professionally. Inadvertent infringement happens all the time, and in some cases, it helps pay the bills. Personally, I’d prefer to go to a negligence standard. Strict liability is just too much.

    Overviper–
    “You CAN make an exact copy of the novel I write…for your own personal use. You cannot sell it to anyone. This principle was pretty clearly established in the Betamax case.”

    The hell it was.

    Sony held that 1) there was no secondary liability for infringement merely by making a device or technology that could be used to infringe, provided that it had legitimate uses, and 2) that in some instances, using a VCR to tape TV broadcasts could be a fair, and thus legitimate, use. But Sony doesn’t go so far as to say that all taping of TV broadcasts is fair. In fact it expects that a decent amount of it won’t be.

    Plus, it’s a completely open, and very interesting question, of how fair use applies in conjunction with first sale. The Copyright Act says that the fair use of a work, including making copies of it, is not infringing. This means that the making of a copy, if it is fair use, is lawful. The Act also says that if a copy is lawfully made, the owner of the copy can sell it without the permission of the copyright holder.

    So if I tape the broadcast of Movie for a Rained-Out Ballgame’s airing of ‘The Muppets Go Medieval,’ and the taping happens to be a fair use, (I taped it because I wasn’t home at the time), can I sell the tape later? Does later distribution reach back in time and change the fairness of the use? Does it matter if I had no intention of selling it at the time I made it? There is no good caselaw on this. It’s really fascinating to people who are dull enough to be fascinated by copyright law, though.

    tl;dr: No, you don’t know what Sony said.

    “If I stop you from copying and selling my work, I am not in any way infringing on your right to free expression (by the way, this is NOT a right – the right is free speech…somewhat different)”

    I disagree, as discussed above. I think that it does infringe, but that it may nevertheless be acceptable and sometimes even desirable.

    “If it was a really unique piece of furniture and someone made a copy of it…the one YOU paid money for would no longer be unique and might suffer in value. And you’d be pissed off.”

    And I would probably have no remedy in copyright, and quite possibly no remedy in patent either. The law does not exist to keep people from getting pissed off. In fact, I wonder if perhaps it might be the opposite.

    “BUT, if Mr. Shaker were alive”

    Wow. If that’s a joke, it’s a good one.

    “and his designs were copyrighted (or patented, or Trademarked, or otherwise protected)”

    It could only possibly be a design patent. Copyrights will fail hard on such unornamented furniture. I doubt there’s anything that would work for a utility patent; things like dovetail joints are literally prehistoric. Trademarks will fail like copyrights would for roughly the same reason.

    “Why should YOU have any right to something I create until I very specifically grant you that right?”

    Suppose that you, me, and a third person all wash up on a deserted island. We could choose to work together to survive or even thrive, but it’s not obligatory. If you build a hut, and I decide to take your hut, the only way you can stop me is with force. There are no police on the island, no courts, just us three people. Assuming we’re all evenly matched, whoever gets the third person to side with them will win, 2 against 1. Why should the third person cooperate, unless he has something to gain from it? So you might agree that if he will promise to defend your hut, you will promise to defend his hut.

    This is basically the origin of property law — anything you cannot defend by yourself, you have to get the weight of numbers behind you, which requires mutual agreement. Few if any people are going to defend your hut completely out of the goodness of their hearts.

    Copyright works the same way. You don’t have an inherent right to prevent other people from copying your work. If there were no copyright law, people would just copy whatever they felt like. We know this, we’ve seen it happen, and it describes most of the history of the world. Copyright is when a majority of people get together and refuse to allow the minority to exercise that right. The majority doesn’t do this because they are altruistic. After all, they’d benefit from copying your work too. Instead, they do it because they feel that they can gain more in the long run by having copyright law than by not having it. And not just any copyright law, but one carefully tailored to benefit the majority, whether or not this happens to coincide with the desires of the person enjoying the protection.

    You can’t grant me a right to copy your work. I can already do that. What copyright gives you is a right to tell me not to copy your work. And if you give me permission, what you’re really doing is promising not to use that right against me.

    Whether you get that right at all, however, isn’t up to you. It’s up to everyone else. If the majority decides to impose a limit on copyright, an author can scream and yell and rant and rave, but it will not help him. Garth Brooks decided he didn’t want stores to be allowed to sell his used CDs, because it cut into his profits. Society, and the government, and the law all collectively gave him the finger and we can continue to sell his used CDs as we please, not giving him a penny for it.

    This isn’t pretty, and it isn’t nice, but it’s how things really work.

    Let’s Just Go–
    “These ongoing discussions/debates are driving me slowly insane.”

    Hopefully we can speed things up.

    • But that’s all just a tangent. I didn’t use those quotes because of the word ‘privilege,’ I used them because they support the point that copyright is a monopoly.

      By using ‘privilege’ in terms of a civil right, and considering it (rightly or wrongly) to have been a Common Law right, then they are using ‘monoploy’ in a way that is inconsistent with the modern usage that you are attempting to foist up[on them. Given that the spark for the War of Independence had been over monopolies, it would be remarkable if they were using monoploy in the same way. Indeed early American jurists lamented the use of the word as it imported ‘false baggage’ into the discussions on copyright and patent.

      Judge Giles S. Rich in “Are Letters Patent Grants of Monopoly?” criticized the use of ‘monopoly’ as it imported emotional baggage into the discussion, invoked prejudice, and destroyed clear thinking.

    • In fact, it’s quite clear…if you make a copy of a baseball game because you weren’t home to watch it…and watch it later…that’s just fine. If you want to sell that tape, you are violating the law. If you think you are not, I suggest you listen to the disclaimer at the beginning of a baseball game. I just heard it when the World Series was going on…It speaks of “re-broadcast”, which is to stop other TV stations from airing the Series without paying a license fee, and goes on to say “all rights to this broadcast are owned by Major League Baseball”, which I assume is the parent corporation…If you have lots of time and money, you’re welcome to rebroadcast a game and test it in the courts…I will bet you’ll lose.

      The Betamax case established what most people believe are reasonable limits to the reach of copyright, and also what are reasonable exceptions to it. Smarmy lawyers on both sides of the issue have been trying to bend the law in both directions to suit whatever side they were being paid by ever since. But the courts decide.

      As for Fair Use, the limits of that are reasonably established as well. Education, Parody, things that can be deemed to be in the public interest can fall under it…but again, the courts have decided over time that there should be reasonable limits to protect both the creator and the public interest. If there’s a murder in a museum, and the late news shows the crime scene, and a Jeff Koonz painting is in the background…you’re probably OK doing that. If you are making a movie and you use that museum for a location shot, and the same painting is on the wall…and you have a film permit, and paid the museum a location fee, and you did not get a separate license to show the painting…Jeff Koonz or his assigns will own your movie.

      That’s copyright, my friend…you do not have the right to copy his work.

  • Ahh copyright. About as useful as a JPEG dollar system to replace the US currency.

    Because artificial scarcity works! Whatever you apply it to!

    • “Artificial scarcity” is a term invented by the same corporate interests who invented the oxymoronic “economy of abundance.”

      • Well I don’t see how that’s relevant to me since I don’t believe art is abundant.

        Art is scarce on the grounds that artists may or may not create it. That’s rather self-evident. Therefore we need to encourage artists to create in order to get the art we want. Plus of course it is within the artists’ rights to do so.

        I merely disagree with the means to which an artist may be funded. I cannot believe in copyright any more than I can believe in the empty promises of a JPEG currency. The first method of deducing if something is justified morally is to see if it will actually work in practice.

        I say JPEG currency because in that scenario, it is something the state would hold the copyright to – the state would have to “print” more digital dollars to control inflation and interest rates, and so on, and only the state may have such a power. But we all know what would really happen. Bad actors from across the globe, not just domestically, would cheat the system even if a majority behaved themselves, and ruin everything for every working class citizen. And I do not believe “the system isn’t broken, we just need to enforce it better!” would suffice as an excuse from the state upon much deserved criticism of such a hypothetical policy.

        And it is also true to say that even if copyright did work, like it may have done in the past where it was controllable as real dollars, it still would not be desirable. Just because copyright may work and some studies show so, it does not mean it is the only option on the table. There are other means to which an artist can be funded that attack the supposed “free-rider problem” trump card of the copyright advocates.

        The alternative is a paywall, in fact. A justified paywall that is. It is called the “assurance contract economy” – obtaining simultaneous payment from many for a service in return, with refund protection. That’s how tickets are used for gigs. That’s how ISPs and cable companies obtain their monthly profits. That’s how pre-orders for DVDs and games work. That’s how workers anywhere are paid, actually (except the workers provide the service while the boss hands out simultaneous payment – so it still counts). And it explains why websites like Kickstarter and Patreon have been growing so rapidly and profitably (and I know those guys would be the new boss without copyright, but they won’t quite be the same as the old boss – not if there’s no desperation of the artist to sell his/her soul to a higher corporation in exchange for expensive lawyers who can de facto begin to scratch the surface of copyright enforcement). So of course something similar to simultaneous payment can be done for, say, the production of an album or movie. We can demonstrate it can be done already.

        I would have no choice but to consider supporting limited copyright if such an option did not exist. But it does. And therefore I don’t have to support something that crushes the rights of derivative artists who are just as deserving of their fruits of labour, something that can deny works be translated into other languages if the xenophobic copyright holder so chooses, something that makes people claim they know originality when they see it, something that claims ownership of expression trumps freedom of expression in ways that if were in a political environment would receive all the condemnation it deserves, something that causes drug-cartelisation in the form of pirate websites/Google as well as Al-Caponisation in the form of Kim Dotcom (they all receive unregulated, untaxed profits from the piracy and are probably secretly in support of copyright as a result, just like the drug cartels would lobby to keep the war on drugs going if they could), something that is completely and utterly useless in stopping international piracy where China now still generates 80% of it globally, something that flat out doesn’t fucking work.

        I am not advocating abundance. Far from it. Some of us do take these things seriously and don’t want to dodge the question of artists’ rights. And some of us go further, saying that derivative artists should have equal rights to original artists. Both can be rewarded for their works, and assurance contracts will do it, not the utopia that is copyright.

      • Jameshogg-

        Your view on copyright seems limited solely to its role in effecting compensation for authors. I won’t repeat the 2,000 word post above, which contains refutations of this view. Additionally, I don’t agree that society is suffering any dearth of derivative works, especially because copyright does not stop derivatives, and in many cases, it empowers authors to foster smart derivatives. I believe the most likely result of a more open system (and ours is pretty open now) is that even more useless website owners would profit in the short-term from traffic driven toward a whole lot of nothing. Meanwhile, a bunch of derivative artists would take the bait believing they could do something with their efforts, even make a living. Piracy mitigation is an entirely different matter. Suffice to say that I have yet to hear any solid copyright revision argument that does not ultimately benefit these big corporations while doing nothing for artists or society. Anyone who thinks the music industry shrunk to half its size just because they’re too stupid to know better is deluding themselves, and clinging to that notion is exacerbating the problem.

  • John Warr-
    “then they are using ‘monoploy’ [sic] in a way that is inconsistent with the modern usage that you are attempting to foist upon them”

    And yet, all three of the quotes I provided make no distinction between patent monopolies and other monopolies in a way that would support that claim of yours.

    Jefferson says that limited monopolies, i.e. patents, are not sufficiently beneficial to justify an exception against the general ban on monopolies. He’s using it in the modern sense.

    Madison too, who says that monopolies are bad, but perhaps tolerable in the case of patents, in particular because he feels that there’s less chance of abuse in a democracy.

    And Macaulay just goes all-out and says that they’re exactly the same kind of monopolies as the modern sort, and the sort that gave rise to the Statute of Monopolies, but allows that it might nevertheless be tolerable in some cases.

    Don’t try to play word games. You’re clearly better than that, and the language quoted is far too clear to give you the leeway to do so here. It’s especially ironic in light of the interesting article you cited:

    “Judge Giles S. Rich in “Are Letters Patent Grants of Monopoly?” criticized the use of ‘monopoly’ as it imported emotional baggage into the discussion, invoked prejudice, and destroyed clear thinking.”

    I read this, and I’d like to point out that J. Rich disagrees with you. He finds that patents are monopolies, but that they are a special kind of lawful, non-odious monopoly:

    “We are faced with the fact, nevertheless, that patents for inventions were historically, and always will be, grants of privileges the same in terms as those to be found in patents granting the so-called “odious monopolies”-the sole making, using or selling of something. The difference is not in the privilege but in the status of the thing over which it is granted. If the public had the same thing before, the monopoly is illegal; if it got the thing from the patentee, the monopoly is legal.

    A monopoly, in the broadest sense of the term, is neither good nor bad. It is simply power which can be put to good or bad uses. The patent laws are one way of putting this power to a good use to the overall advantage of society.

    Unless the grant of a patent gives some kind of economic power to the patentee that he or she would not otherwise have, the patent system would not work. That power is the right to exclude others from making, using, or selling the thing patented. That right poten­ tially makes the patentee the sole seller, and that, Aristotle taught us, makes him or her a monopolist.”

    Now I would disagree with J. Rich on one point, and with you on one other. J. Rich is wrong to try to draw such a bright line, or even to try to do so to begin with. His line is that a monopoly is odious if it concerns something which predated the monopoly, and not if it doesn’t. But this is an entirely arbitrary distinction, and not even a useful one. It has nothing to do with the burden that the public must shoulder, which as the three notables I quoted from all knew was what was important. J. Rich, like Terry, defines the pertinent right as the right to use that invention (or work), and decides that it could not pre-date the invention itself. But they ignore the idea that the right is simply the right to use inventions, and that with regard to any particular one, it vests, as it were, simultaneously with the invention. It doesn’t even get discussed.

    My position is simply that all monopolies are inherently odious, and whenever an exception is to be made, it must be sufficiently justified in light of this. The public has a right to use works the instant that they are written, and a right to use inventions the instant that they are invented. (Of course this does not extend to a right to access them; people can attempt to keep secrets if they wish) Copyrights and patents can be justifiable, though there is no guarantee that this will always be the case, or that it is the case for any manner of copyright or patent. Plenty of other monopolies are permitted as well, such as for utilities, for much the same reasons.

    Which brings us to the point I disagree with you on. J. Rich didn’t say that the word ‘monopoly’ should not be used because it was prejudicial in general, such as in the case of a discussion about policy, like we’re having. He simply didn’t think it should be used in jury instructions. The information jurors are permitted is very heavily controlled, in no small part due to an overabundance of caution, and it was only in that context that J. Rich was concerned. Us, having a friendly chat? We’re fine, so far as the article goes.

    In fact, the reason I like to point out that copyrights are a monopoly, and should therefore be viewed critically, though fairly, is precisely because I want to encourage clear, unprejudiced, unemotional thinking. Remember: calling these things property, or a natural right of the artist (e.g. Overviper’s continued ridiculous claim that “I made it so it is mine, mine, mine”) is terribly prejudicial and emotional. I don’t even use the expression ‘Intellectual Property’ as a rule, because of its prejudicial effect (and because it is overwhelmingly wrong).

    Monopoly is about the most neutral thing I can see to call it. After all, it’s inherently bad, but can, under the right circumstances, be a good option, though always suspicious. Sounds right to me.

    Overviper–
    “In fact, it’s quite clear…if you make a copy of a baseball game because you weren’t home to watch it…and watch it later…that’s just fine. If you want to sell that tape, you are violating the law.”

    No, it’s clearish that making the tape for time shifting is not infringing (remember, there are no bright line rules for fair use; it’s all case-by-case), and that making the tape for the purpose of selling it is infringing.

    My question is what if I make the tape for time shifting purposes, fail to erase it, and then ten years later, sell it at a garage sale, perhaps not even remembering that anything has been recorded on it at all? The sale can only be infringing if the tape was made unlawfully to begin with; therefore for the sale to be illegal in such a case, it would have to reach back in time ten years and retroactively make the original time shifting infringing, even though it had been perfectly innocuous at the time.

    I love this kind of stuff. But there’s no indication as to how it would work out.

    “As for Fair Use, the limits of that are reasonably established as well. Education, Parody, things that can be deemed to be in the public interest can fall under it…but again, the courts have decided over time that there should be reasonable limits to protect both the creator and the public interest.”

    No. You’re making the common rookie mistake of thinking that the statute says more than it does. The actual operative language in the statute reads:

    “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work … is not an infringement of copyright.”

    Everything else in there is guidance for determining if it is a fair use, but none of the guidance is actually probative. The purposes for the use are just a non-exhaustive list of examples (and even then, not binding; there have been cases where education and parody and such were not fair use). The famous four-factor test is just a guide, to which more factors can be added, in which no factor is determinative, in which no number of factors outweighs the others, and in which, theoretically, a court could find that there was a fair use despite all four factors being against the defendant. We’ve already gotten to three and some fraction, so it’s not a big leap.

    “If you are making a movie and you use that museum for a location shot, and the same painting is on the wall…and you have a film permit, and paid the museum a location fee, and you did not get a separate license to show the painting…Jeff Koonz or his assigns will own your movie.”

    No, it’s not certain to go one way or the other. What you’re talking about is an incidental use. Obviously it would depend on the specific facts involved, but between the de minimis doctrine, fair use, and section 120 (which has had to be relied on before!), it is entirely possible to avoid liability despite a lack of permission.

    Happens all the time, too. Much as they’d like to, movie and tv crews don’t always control absolutely everything that happens in the shot.

    “That’s copyright, my friend…you do not have the right to copy his work.”

    Sure I do. You didn’t actually make an argument for that, on this go-around, so I will just point you at what I’ve said previously as well.

    • Anonymous —

      “My position is simply that all monopolies are inherently odious…”

      A valid position, perhaps, but then why so much focus on copyright, a unique monopoly available to all citizens, rather than a corporate monopoly like Amazon, which effectively threatens the entire progressive movement of the 20th century?

    • This reminds me very much of some of the stoner conversations we used to have sitting around a dorm room…just intellectualizing about things we thought we knew something about, but were really just a way to flex intellectual muscle and feel like we were being profound. But we were, at the end of the day…high as kites.

      The Jeff Koonz scenario I described is quite real. You’re correct that movies occasionally get in trouble from using something in an incidental way…but they often pay damages after the fact, and those damages vary case-by-case. But a Jeff Koonz painting would not be considered “incidental”. Furthermore, film companies are exceedingly careful about obtaining releases for anything (or anyone) that’s in a shot that might be a problem later on. If you were ever on a film set, you would know this.

      A more piquant situation arose some years ago when Ringo Starr tried to publish a coffee table book of pictures of the Beatles that he had taken over the years starting in their earliest days. He took the photos, not many people had seen them, he owned them, there was no question about any of it…

      The parent corporation (Apple – not Jobs Apple, but the Beatles Apple) stopped him from publishing the book because it was “protecting the likenesses” of the boys from exploitation, or so they said…note that Ringo was one of the likenesses they were protecting. This never made sense to me, as Ringo was also an owner in Apple Corp…but such is copyright law.

      As to the tape of the baseball game…if you sold it at a garage sale 10 years later, no one would care. If you had the only copy of that game and sold it to ESPN because there was a great play or something…you do not have the right to do that, and MLB would certainly come after you…but even before that happened, ESPN would make sure that you owned the rights to be able to sell it in the first place…which you don’t. And trust me…they have an entire department that clears those rights.

      And as far as “Fair Use”…it does vary on a case by case basis…if it ever goes to court. Most times this stuff gets settled way ahead of time based on the aggressiveness of the lawyers and what the actual infringement was. But there is a rather large body of decisions regarding Fair Use already and most judges will typically not try to rewrite what has gone before. For me, I believe that Fair Use is really useful and I would like to see shorter copyright lengths and more uses that fall under it…but that’s just my opinion…I don’t make the law.

    • Don’t try to play word games. You’re clearly better than that, and the language quoted is far too clear to give you the leeway to do so here. It’s especially ironic in light of the interesting article you cited

      “same in terms as those to be found in patents granting the so-called ‘odious monopolies’-the sole making, using or selling of something. The difference is not in the privilege but in the status of the thing over which it is granted. If the public had the same thing before, the monopoly is illegal; if it got the thing from the patentee, the monopoly is legal.”

      There you go, it is as I said earlier that the civil-right can only be secured for the individual by a form of monopoly grant. The right is a civil one, and in many of your States it is even thought to derive from the Common Law. See the recent judgements for Flo and Eddie where the New York District Court finds that they have a valid Common Law copyright in their sound recordings, the security of that property right is via a instrument similar to monoploy. This is unremarkable you have a common law right to your tangible property, the security of that right is via state enacting theft acts.

      Rich by telling you that in the context of patents the use of the word monopoly “invoked prejudice, and destroyed clear thinking.” is saying that it is a fnord: a propaganda word conditioned in the masses from a very young age to respond to, usually with fear, anxiety, or uneasiness.

  • David–
    “A valid position, perhaps, but then why so much focus on copyright, a unique monopoly available to all citizens, rather than a corporate monopoly like Amazon, which effectively threatens the entire progressive movement of the 20th century?”

    I think that’s a little hyperbolic of you.

    Also, much of Amazon’s strength comes from their suppliers’ strong insistance on remaining weak. Publishers poor business practices are what gave Amazon (and the big box bookstores before it) the opportunity to start a really big business. This has been well-recognized for a long time, yet publishers continue to do stupid things all the time, practically begging Amazon to take advantage of them. Even now, Hachette still is absolutely insistant that all of their ebooks must use DRM, despite the fact that this locks customers into the Kindle platform to the detriment of the publisher and the customers, all while it’s no secret that it does nothing to stop actual piracy.

    I have a hard time being sympathetic for a business, a whole industry, in fact, with management that is as dumb as a sack of hammers.

    Common sense copyright reforms, like effectively preventing the use of DRM, or allowing private individuals to engage in certain otherwise infringing activities, would be useful for weakening Amazon in absolute terms, though their relative power against their suppliers would probably be unaffected.

    And of course, however much people on the supply side of things might dislike Amazon, Amazon’s customers are generally huge fans because it really is a very convenient, very customer-friendly company. (And _maybe_ this will change in the future, but it hasn’t yet, and we can burn that bridge when we come to it) It’s almost Sophie’s Choice, asking me to decide whether I want to support people who produce something I want, but who are pretty awful to deal with as a rule, or people who are excellent to deal with, but have bad effects on the ultimate suppliers.

    Overviper–
    “The Jeff Koonz scenario I described is quite real.”

    Yes, it does happen. Way back in law school, I read about this sort of thing in connection with The Cosby Show. But incidental use, because it typically involves such fact dependent defenses, is rather unpredictable.

    “But a Jeff Koonz painting would not be considered “incidental”.”

    It very well could be. It’s not a matter of what is used, it’s a matter of how it is used, which makes a use incidental.

    “Furthermore, film companies are exceedingly careful about obtaining releases for anything (or anyone) that’s in a shot that might be a problem later on.”

    As I said, what’s in the shot is not always within their control. Though I guess with modern effects technology, it might be possible to replace parts of it with something else for legal reasons, without the expense being unbearable… at least for some productions.

    “The parent corporation (Apple – not Jobs Apple, but the Beatles Apple) stopped him from publishing the book because it was “protecting the likenesses” of the boys from exploitation, or so they said…note that Ringo was one of the likenesses they were protecting. This never made sense to me, as Ringo was also an owner in Apple Corp…but such is copyright law.”

    I don’t know the incident you’re talking about, but the likenesses of real people are a matter of publicity law, not copyright.

    “As to the tape of the baseball game…if you sold it at a garage sale 10 years later, no one would care.”

    That wasn’t my question. My question was, would it be an infringement? Note that who I sell it to is irrelevant with regard to the copyright issue.

    “Most times this stuff gets settled way ahead of time based on the aggressiveness of the lawyers and what the actual infringement was.”

    Nothing special there. Just as almost all copyrights are worthless, and only a small number of those have any copyright-related economic value, and for only a small number of those is the value substantial, so too are most legal causes of action never seriously addressed, most of those that are never go anywhere, most of those that do go anywhere settle, and only the tiniest fraction ever actually get litigated (with even fewer making it to a final judgment, fewer appealed).

    “For me, I believe that Fair Use is really useful and I would like to see shorter copyright lengths and more uses that fall under it…but that’s just my opinion…I don’t make the law.”

    Vote. Write your Congressman and Senators (and other members of Congress too). Donate money. Speak out about it publicly. If corruption is impeding you from making a difference, pursue that too. Don’t just give up because you haven’t tried anything, and nothing’s worked.

    • Anonymuous —

      Yes, it’s hyperbolic of me. The same hyperbole that has been uttered by Paul Krugman, Andrew Orlowski, Joel Kotkin, George Packer, Andrew Keen, and Jaron Lanier, just off the top of my head. I am sure Amazon’s treatment of its pickers is entirely due to the stupidity of the publishing industry. And I’m sure Bezos’s personal, right-libertarian, anti-labor views are entirely the fault of greedy novelists. On copyright, you have plenty to say that is interesting and enlightening, but on the social agenda and economic side, I still find it hard to believe you call yourself a liberal.

  • John Warr–
    “the civil-right can only be secured for the individual by a form of monopoly grant”

    The civil right is the monopoly grant. There is not such a thing as copyright that isn’t a monopoly, and which therefore needs the addition of a monopoly.

    “The right is a civil one, and in many of your States it is even thought to derive from the Common Law.”

    Civil rights don’t derive from Common Law; in fact the need to grant a civil right typically indicates some failure in the Common Law. Also, these cases ultimately rest on incorrect assumptions as to the outcome of Donaldson.

    As for the use of the word ‘monopoly,’ as I said, to deny that it is a monopoly, to dress copyright up with romantic notions of artistic labor, or property rights, is far more prejudicial and far worse wooly thinking than is risked by straightforward acknowledgement of its monopoly nature.

    We know how to see if monopolies are tolerable and if so, how to regulate them for the public good. Why should we not have candid discussions along these lines?

    David–
    “I am sure Amazon’s treatment of its pickers is entirely due to the stupidity of the publishing industry.”

    I think that few people would regard the gravest threat that Amazon poses to be that which its pickers are faced with. I agree that they’ve been treated badly. OTOH, Amazon is hard at work using automation to replace them, which will help to ameliorate and in time solve this problem.

    “on the social agenda and economic side, I still find it hard to believe you call yourself a liberal.”

    Like I’ve said, I think that work is for the birds, or rather, for machines. There’s no nobility in human labor when it can be done by other means. I fully support Amazon’s workers if they choose to unionize (and I think it would be a good idea), and I’d love to see higher, more progressive taxes used to help the poor and middle class. But I also don’t want to preserve our society in amber, whether it’s as it is now, or as we pretend it was in the 50’s or 60’s. I want to see us uncouple the ideas of work and of making a living as much as we can, and I want to see the benefits of technological progress shared with everyone.

    So higher, more progressive taxes, a tremendously expanded welfare state in which virtually everyone would participate, massive government spending on improving infrastructure, science, and technology, and deliberately pushing for a leisure society (which would also help the arts to flourish, since artists would not need to worry about commercial appeal or lost profits, since they typically wouldn’t need the money) — all this, and you don’t think I’m a liberal? This is hilarious to me, given how often I have to put up with people I know in real life calling me things like a radical socialist.

    • John Warr–
      “the civil-right can only be secured for the individual by a form of monopoly grant”

      The civil right is the monopoly grant. There is not such a thing as copyright that isn’t a monopoly, and which therefore needs the addition of a monopoly.>/i>

      Does any one believe that Flo and Eddie’s copyright is equivalent to the East India Companies monopoly Indian trade? Who believes that copyright of Hustler is the same as the monopoly given to Worshipful Company of Stationers by Elizabeth in order to control printing by the State and Church? Is their anyone that thinks that George Lucas controlling the Star Wars copyright is equivalent to the activities of Standard Oil?

      One one believes any of that to be true, and as such neither we topday, nor Maddison and Jefferson 200+ years ago believed it to be so either.

    • You can also argue with the Southern District Court of new York over whether there is a common law right:

      As explained above, federal law provides copyright protection for sound recordings fixed on or after February 15, 1972. See 17 U.S.C. §§ 102(a)(7), 301(c). As to those sound recordings, Congress broadly preempted equivalent state-law protections. Id. § 30l(a).
      Federal law does not, however, provide copyright protection for sound recordings fixed before February 15, 1972. Furthermore, Congress expressly declined to preempt whatever common law copyright protection was provided to those recordings by state law until February 15, 2067. Id.§ 301(c). New York has elected to fill th[e] void Congress left, by continuing to enforce its preexisting body of copyright common law for pre-1972 sound recordings …

      p14 – http://www.scribd.com/doc/247180767/Flo-Eddie-v-Sirius-XM-NY-Order

      As for civil rights lets return to Jefferson et al.

      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

      All property, indeed, except the savage’s temporary cabin, his bow, his matchcoat and other little Acquisitions absolutely necessary for his Subsistence, seems to me to be the creature of public Convention. Hence, the public has the rights of regulating Descents, and all other Conveyances of Property, and even of limiting the quantity and uses of it. All the property that is necessary to a man is his natural Right, which none may justly deprive him of, but all Property superfluous to such Purposes is the property of the Public who, by their Laws have created it and who may, by other Laws dispose of it.
      Benjamin Franklin

      these guys are telling you that most property is not a natural right but a consequence but a right that emanates from civil society. All but the most basic forms of property right s are a a privilege of society.

  • John Warr–
    “Does any one believe that Flo and Eddie’s copyright is equivalent to the East India Companies monopoly Indian trade?”

    Yes. As noted earlier, Thomas Macaulay, back in 1841, directly compared the two. I even quoted the passage. I’ll do so again, if it helps:

    “Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. … [W]hy should we not restore the monopoly of the East India trade to the East India Company? Why should we not revive all those old monopolies which, in Elizabeth’s reign, galled our fathers so severely that, maddened by intolerable wrong, they opposed to their sovereign a resistance before which her haughty spirit quailed for the first and for the last time? Was it the cheapness and excellence of commodities that then so violently stirred the indignation of the English people? I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company’s monopoly of tea, or by Lord Essex’s monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil but the evil ought not to last a day longer than is necessary for the purpose of securing the good.”

    Looks like he believed there was no difference whatsoever. He was still willing to support copyright though, as am I. The key is, you go into it with open eyes, knowing that copyright is bad, and you use this as an integral part of measuring whether copyright is providing a good which outweighs the bad. If you ignore this, you not only can’t talk about copyright in any sort of sane manner, and you also can’t begin to accurately measure one proposal against another.

    “You can also argue with the Southern District Court of new York over whether there is a common law right”

    As I said, when you trace the opinions back, you wind up at Donaldson, and Donaldson didn’t say that there was a common law right; it only said that if there were such a right, that the statute preempted it.

    “these guys are telling you that most property is not a natural right but a consequence but a right that emanates from civil society. ”

    Yes, and I’ve quoted that sort of thing before, and I agree. In fact, I don’t think I’ve ever said that there’s a natural right to property beyond at most what one can personally defend. You only quoted a little bit of Jefferson’s well-known letter. Let me supply a lengthier quote so that we can get a better idea of what he was saying. Oh and earlier you had objected to quoting Jefferson on patents in a discussion on copyright, but now you’re doing it too, so I’m glad to see that you agree that at such a fundamental level as this, copyright policy and patent policy are basically the same.

    “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 wecopied 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.

    Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.”

    So essentially Jefferson says that there is no natural right at issue, and no obligation on society to protect inventors (or, given that there’s no meaningful difference at this level, authors). He says that whether or not such rights are granted will depend on the ‘will and convenience of the society.’ At this point, enlightened self interest kicks in: is society better off by suffering the ’embarrassment’ of granting rights, or worse off? This was Macaulay’s question too: if we have copyrights, what is the good that it promotes, and how and to what extent does that good outweigh the bad?

    It looks like we’ve come full circle on this, and you seem to be endorsing a lot of the same things that I have. Kudos!

    So to sum up:

    * There is no inherent right to copyright, though there is an inherent right to free speech; together this indicates that there is an inherent right to copy the work of others, arising with regard to specific works at least as late as when those works are created.

    * Copyright is a monopoly, no different from any other

    * As a monopoly, which functions by suppressing free speech, even if only a little, copyright is inherently bad for society

    * However! Copyright can produce benefits which outweigh its inevitable harms. Obviously, in order to do so, the benefits in question must be those which are good for society. Benefits for authors as a special class are not relevant for the purpose of justifying copyright.

    * The questions then, are simply: Is there any copyright law possible which produces a net benefit for society? If so, what specific copyright law would produce the greatest net benefit for society? And if a copyright law currently exists, does it produce the greatest net benefit for society, or if not, how might it be amended in order to do so?

    My gut feeling on those questions is that copyright law can be overall beneficial, but that it needs to be substantially reduced in a number of ways, including duration and also its scope. But I’d prefer to base reforms on hard research on the subject rather than gut feelings, whether it’s my gut or someone else’s.

    Have a happy Thanksgiving!

    • Anonymous —

      “* As a monopoly, which functions by suppressing free speech, even if only a little, copyright is inherently bad for society.”

      Even if I were to agree with this premise, which I do not, you make an extra leap when you say that stifling speech even a little is inherently bad for society. I can cite any number of examples where speech itself is “bad for society,” so that really shouldn’t be the argument. Speech is the Queen Mother of all rights we Americans hold dear, but even calling it a natural right is still a construct based on human choice; it’s not encoded into our DNA. The ability to speak is so encoded, but so is the ability to pick up a cudgel and stop someone from speaking, and so is the ability to paint a historic scene depicting someone beating a speaker with a cudgel.

      I don’t think it can be disputed that copyright stifles some speech in principle; but does it really stifle speech? I don’t think so. In fact, it is rather remarkable that we can enjoy as many copyrighted works as we do while speakers continue to bang on without restraint. Copyright stifles speech in the most narrow forms as to be comparable to quantum physics. Extraordinary events occur at the quantum level all around us, but are of no practical value in applying Newtonian physics to fly an aircraft from Cleveland to Dallas. Yes, you may argue that my right to stop you from copying my novel is a boundary on your free speech, if you choose to define speech that broadly, but speech itself will more than survive this extremely narrow form of “stifling.”

      You want to argue in the purely academic sense that anything which stifles speech is by definition bad and, therefore, should be substantially restricted or abolished. Fine. But this argument only serves as a thought exercise or as talking points for the Internet industry. Copyright as it stands is already bound by limitations that protect speech; the two rights are fairly well balanced. And the only reason this argument is happening is that a handful of punks in Silicon Valley saw a way to make a pile of money and so, they set this ball in motion. But these tech tools that have expanded speech (though they haven’t necessarily made society better) imply that each narrow “stifling” by a copyright holder has even less effect overall on speech as a universal right. To the contrary, speech is now so abundant that we live in the Tower of Babel — culturally and politically. I believe this is of much greater concern than your presumed right to copy my novel ten or twenty years sooner that you’re allowed to right now.

      I think your position makes for a great discussion over some snifters of cognac but is of little practical use if the real goal is to “benefit society.”

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