the worst part of Sonny Bono lives
Ok, this is very cool. AISO GrepLaw, Detritus as set up a "Sonny Bono is Dead" site, collecting samples from the works that would have passed into the public domain, but for the Sonny Bono Copyright Term Extension Act.
Sonny Bono, I am told, was a sweet man and great friend. I'm sure that's true, and his untimely death certainly robbed the world of the very best of this man. It's therefore very sad that the worst of Sonny Bono continues to echo -- this indiscriminate extension of copyrights. Congresswoman Mary Bono had some great ideas about how to make Congresswoman Lofgren's Public Domain Enhancement Act "better," as she put it. Is there a possible Sonny Bono Public Domain Act in the works?
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Comments (41)
Mary "Forever Minus One Day" Bono had ideas to make the Eldred Act better? What were they?
I'm disinclined to trust her, to be honest.
Congresswoman Bono is anxious about the following (unlikely but possible) case: author's widow or widower forgets to renew, the work gets picked up by someone, that someone makes tons of money, author's heir gets nothing. One solution she saw to this problem would be a reserve fund like device -- if you make a commercial exploitation of a work that has passed into the public domain because of a failure to register, you must reserve, say, 2%, that a displaced author or heir can claim from, but if no claims were made within 5 years, then the fund would return to the follow-on creator. This makes it "better" not necessarily better -- better from some perspectives, though not from all.
i don't mean to be a troll, but would someone please explain to me how removing copyright protection on "(Goodbye, Broadway) Hello, Montreal!" by Ted Lewis & His Jazz Band is going to promote progress of the arts, or otherwise be of benefit to society?
it seems to me that few reasonable people argue that real property - i.e., land - should automatically pass into the public domain after some period of time: the right to keep "real" property within a family over generations is well accepted across many cultutes. yet land is a limited resource. all we have is all we have (unless of coure you're dutch.)
in stark contrast, music, and the more generally the arts, is an ever expanding volume. it does not matter how much music Sony, or BMG own - more will be made.
based on this view, it would seem that copyright could offer even STRONGER protection that that which is afforded real property without any deleterious effect on society.
public confiscation of privately owned real property is associated with some of the most pernicious political movements of the last 100 years, yet to me this is dangerously close what is being called for by the opponets of copyright. i do not say this to be offensive, but the similarities are too close to ignore.
why is it OK for land to be owned and transferred in perpetuity, but not a book or song?
since i do not reside in the US, any answer constructed on the US constitution is completely irrelevant and will receive no credit. perferrably, the answer should be constructed on generally applicable economic arguments.
persuade me.
three blind mice
We only need copyright terms to be sufficiently long to provide an incentive to make new works. Very long copyright terms do not have any benefits that short copyright terms do not have, as far as I am aware. If copyright were to be perpetual, then it would be advantageous to limit some of the powers that it gives to right holders. If copyrighted works go out of print, then perhaps the copyright should become invalid, so that works don't become unavailable because of the failure of the rights holder. Here in the UK, only limited duplication is allowed and only for educational purposes (we must have the copyright holder's permission to use mp3 players) and time-shifting is not allowed for public or repeated viewing. Perhaps such regulation of non-commercial use should be stopped. The negative effects of bad copyright law are lessened by the fact that terms are limited.
Because copyrighted works command higher prices than public domain works, the expiry of copyright means that more people can afford classic works. The original rights holder does not lose out, because they have already been paid and are probably long dead.
Public domain works allow more extensive opportunities to legally create derivative works. Though copyright does not allow rights holders to prevent all derivative works, it does inhibit new creativity. Derivative works make a tremendous contribution to our culture. Shakespeare made use of existing stories and texts and others have in turn used his works as the basis for new creativity. Some hiphop artists make illegal use of samples in their creation of new works and if more sample use was legal, then perhaps more works would be made.
One work cannot be substituted for another in the way that many of our limited number of apples could be. However, what really matters is the number of copies of each work. The supply of unique works is limited, but the number of identical copies (which can be substituted) of each work is not limited in principle. Copyright causes artificial scarcity.
...and therfore...?
Proponents of increasingly lengthy and excessively powerful copyright have actually been employing draconian measures (see the first list of bullet points on http://www.gnu.org/philosophy/why-free.html). There is a middle ground. Limited term copyright which does not regulate every kind of use would be a good idea.
We only need copyright terms to be sufficiently long to provide an incentive to make new works.
tim ivorson, this seems like an argument along the lines of a US constitutional imperative, but i will allow partial credit since you provided a thoughful and somewhat well-argued answer.
i am however still a bit unclear. we are in agreement (i believe) that ending the copyright on mickey mouse would likely give disney an incentive to make new works, but i am confused how would this add to the incentive for others to create new works?
mickey mouse is a commercial success for disney. because mickey is proprietary to disney, others who want to enjoy similar market benefits have to create some other animated character... like the simpsons, or beavis and butthead, or ren and stimpy.
the existence of the copyright on mickey mouse may have provided an commercial incentive for these works, but ending the copyright on mickey mouse and allowing everyone to use the character would result in only more mickey mouse.
"One work cannot be substituted for another in the way that many of our limited number of apples could be."
certainly there is nothing to replace side one of king crimson's discipline (except perhaps side two), but this music no longer dominates the airwaves or has any significant commercial influence so i don't quite see your point.
art is an ever expanding volume: every year new "hits" replace old "hits." i honestly do not see how ending the copyright on the white album would do anything to promote the progess of the arts when the likely result would be a plethora of bad cover albums.
i think it's actually a good thing (that due to copyright protection) celine dion cannot record a cover of savory truffle and if she could i'd be hard pressed to see how this could be an advancement of the arts.
"allowing everyone to use the character would result in only more mickey mouse."
Mickey Mouse is an important, iconic character in 20th century popular culture. I would like to see what some artist who *doesn't* work for Disney and *isn't* bound by the dictates of their marketing department could do with him. No doubt a lot of the uses of a public domain Mickey Mouse would be dreadful, but it's possible (and IMHO likely) that many of them would be brilliant, and add real value to our culture.
*Disney* certainly sees the benefits of the public domain to artistic creation--for example, several years ago they released a film called "Mickey's Christmas Carol", using the characters of Ebenezer Scrooge and Bob Crachit. Was that a bad thing? Should it have been illegal?
three blind mice
I do not take this position because it is in the constitution of some country or other. I take this position because actions (including laws and government policy) ought to judged by their effects. If it is a good idea, then that justifies including it in constitutions, but not vice-versa (it is not being in the US constitution that makes it a good idea).
It would not add to the incentive. Where the incentive already exists, it would make it easier to create new works legally. However, I believe (but I am not sure) that Mickey Mouse is also a trademark and that, as a result, he would not necessarily be available for use.
Yes, but I want a copy of every piece of good art and I don't want every good apple. You and I might dislike the current crop of hits, but not everybody does. Also remember that copyright applies not only to the worst works. Instead it applies to everything. We are restricted in our use of even the very best of recent works.
More derivative works would be legal. For example, more sampling and remixing of the white album would be legal and some of this might be good. Bad works are not worth inhibiting. Instead, we should make sure that good works are not inhibited, or perhaps even promoted. Even a truly vast quantity of bad material would not justify inhibiting good stuff. A single good cover song would make up for all possible bad cover albums.
Removing copyright's hold over works might reduce the amount of bad material that is recorded. Without copyright, there would be more derivative works and there would be less total money to be gained from selling copies of works. More material competing for less revenue would remove much of the artificial incentive for commercial rubbish, while giving people more freedom to produce works that they feel are worthwhile.
The arts benefit from an environment in which creativity is permitted, even if it builds on existing works (as most does). If Celine Dion wanted to make bad cover songs, then we could simply ommit to listen to it. If we did want her not to, then we could remove her incentive for doing so by the same process that we allow her to: by reducing the power or duration of copyright.
Lawrence Lessig wrote:
What's wrong with telling her "Too bad. It's the copyright holder's responsibility to file this incredibly low fee. If a copyright holder can't find the time to file $4 (maximum fee) with the copyright office inside of 10.5 years (or 50.5 years if the work's copyright has not been renewed before), that's just too bad." Am I missing some incredibly important point she's making here or is this just her engaging in some political dance so she can find a lame excuse to not support a perfectly reasonable bill?
Congresswoman Bono is anxious about the following (unlikely but possible) case: author’s widow or widower forgets to renew, the work gets picked up by someone, that someone makes tons of money, author’s heir gets nothing.
I may just be paranoid, but that sounds an awful lot like the proverbial camel's nose to me. Let it into the tent, and the rest of the camel is sure to follow. I can see that loophole as something subject to minor tweaks as a result of lobbying that would eventually undermine the Act, similar to what has happened to copyright terms. If the heirs deserve 2%, mightn't they also deserve 4%? 6%? 10%? And if 5 years is reasonable, isn't 8 years also fair? 10 years? Since you are setting aside money for the heirs, isn't it also fair that you locate and contact them? And with the assumption that the copyright elapsed in error, perhaps they should have the opportunity to "reclaim" the copyright?
The more I think about it, the more this "improvement" sounds like a way of having works with expired copyrights fall into a state of statutory rate licensing instead of allowing them into the public domain.
Three blind mice:
i don’t mean to be a troll, but would someone please explain to me how removing copyright protection on “(Goodbye, Broadway) Hello, Montreal!” by Ted Lewis & His Jazz Band is going to promote progress of the arts, or otherwise be of benefit to society?
While I am not familiar with “(Goodbye, Broadway) Hello, Montreal!”, and can't speak for its value, I can explain why expiring copyrights in general is good for society.
Let's look at a partial list of Disney animated movies. Every one of these movies is based on a work in the public domain. In a world where copyrights are perpetual, few if any of these movies would ever have been made. Disney made a great deal of money, and contributed much to our culture, by building on public domain works. Likewise, society would also benefit by allowing others to build on Disney works, such as Mickey Mouse.
Disney made a great deal of money, and contributed much to our culture, by building on public domain works. Likewise, society would also benefit by allowing others to build on Disney works, such as Mickey Mouse.
dave walton it seems to me that (ignorning the trademark angle) removing the copyright on disney's mickey mouse would more likely result in copies of mickey mouse products for which there is presently a market, than the creation of derivatives of mickey mouse products for there is presently not a market.
copying does very little to advance the arts (although it may lead to more innovative ways of manufacturing, presenting, or distributing works of art.)
rational economic behaviour seeks to minimise risks while maximising return. this suggests that any copyright which still has commerical value will simply be copied when the copyright is removed. the creation of derivative works, being more risky, is a less likely result.
I guess I can think of four pragmatic arguments.
First, there is a broad derivative works right in current U.S. copyright law (and, to the best of my knowledge, in every Berne country). That is inhibiting various activity that would conventionally be called "creative". Sometimes there are famous cases of this, like The Wind Done Gone and the new Peter Pan story. In fact, whole books have been written about how culture is cumulative. If the derivative works right didn't exist, all of these uses could exist regardless of copyright, but today copyright inhibits many potentially important transformative uses. When copyrights expire, those uses are enabled.
Second, expiring copyrights may promote public access to a work by making it much cheaper. Manufacturing copies of (say) a book is a productive activity, just as building a house is productive even if there is already an identical house down the street. Making existing works available more cheaply benefits prospective users of those works. If a work has already been composed, much more value will be created in the world (other things being equal) by producing more copies and distributing them more widely than by producing fewer copies. (Of course, there is still an incentive argument that the work might not have been composed if this could have been done immediately, but you seem to be happy to set aside the incentive argument. If the incentives are all assumed to be present, a longer copyright term seems to preclude lots of useful activity for no clear public benefit. There is a private benefit to the copyright holder, but if you've moved outside of the incentive question, I can't see how you can make a strictly economic argument that this is desirable.)
Third, some copyright holders use copyright to try to suppress a work (because they find it embarrassing, no longer agree with it, or whatever). Copyright expiration can be one check on the power of a copyright holder to limit public access to a work or to suppress or withdraw it entirely.
Fourth, there is a lively debate in the Eldred briefs about whether having works under copyright helps or harms preservation and cultural continuity. There are clearly some cases in which it helps and some cases in which it hurts (overlapping in part with the previous class). In some cases copyright holders are lazy, dead, perverse, or missing, and then the historical record is hurt by long copyright terms because others can't intervene to preserve works for posterity.
So:
(1) Copying is a productive activity. To the extent that
it has no ill effects, encouraging copying is good for the
public even if it doesn't produce new works.
(2) There is a market for non-Disney Mickey works. The
story of the Air Pirates proves this (and did you miss the
Illegal Art exhibit? perhaps it will come to a city near
you). Disney has repeatedly enforced its copyrights by
suppressing non-Disney uses of Disney characters. This
doesn't prove that there is no market for these works; it
proves that there is a market for them. It just happens
that that market, like many other markets, is illicit.
(3) The creation of derivative works is an empirical fact,
not a speculation. It happens constantly with both
public domain works and copyrighted works. As someone
recently said in the context of free software, since
this phenomenon does occur in the real world, any
economic theory that concludes that it is impossible is
simply mistaken and needs to be revised or discarded.
a well-argued response seth.
i am not forwarding an economic theory which says that derivative works would not be created, i'm just saying it seems to me to be a less likely outcome.
the problem i have with the "derivative" argument is the same one that i have with peer-to-peer. focusing arguments on legitimate benefits and ignoring the major harm it causes presents an incomplete picture of reality.
if the copyright on mickey expires, it seems reasonable to expect that the likely outcome would be that manufacturers would flood the market with mickey mouse copies - not derivatives. the empirical evidence of mountains of pirate copies seized every year as a result of disney's anti-pirating and anti-counterfeiting activites would seem to support this.
removing the copyright on mickey would likely cause significant (and measurable) economic harm to disney while providing marginal (and unmeasurable) benefit to the public: cheaper mickey mouse watches - and as seth points out the possibility that derivative works would be created.
causing major economic harm to disney in order to produce minor economic benefit for society does not seem to me to be a satisfying trade-off.
zealous capitalist that i am, i believe that society also has an interest in promoting successful commercial enterprises.
i suppose my original question, "why is it OK for elements of a limited and fixed resource (such as land) to be owned and transferred in perpetuity, but not elements of an unbounded, limitless resource (like intellectual property)?" will remain unanswered!
thanks everyone who replied.
so people ask me why I host a blog. exchanges like this is why. thanks to everyone (except the spammer, whose post is about to be deleted).
three blind mice, I'm a little confused about what you're looking for here.
You originally asked how limiting copyright terms "is going to promote progress of the arts, or otherwise be of benefit to society?" in terms of "generally applicable economic arguments".
I pointed out that limited copyright terms benefit the public by making existing works available more cheaply, even if you assume that nobody would ever make a derivative work. This benefit is independent of the promotion of progress of the arts and is (as you request) also independent of the U.S. constitution. You seem to discount this benefit on the grounds that it doesn't necessarily promote progress in the arts or the creation of new works.
But the idea that copyright policy's goals are limited to the creation of new works seems to be tied to that U.S. constitutional rule -- something you asked that arguments not rely on. So it's hard to understand exactly what's wrong with the observation that cheaper access to existing works benefits the public.
Perhaps the tension is resolved by your statement that "society also has an interest in promoting successful commercial enterprises" (since the profits of licensors are reduced when the copyrights they license expire). Does it matter at all whether the commercial enterprises continue to produce something of value? You might say that the existence of IBM is beneficial because it produces computers (or, if you're trying to justify the copyright or patent systems, because it produces operating systems or research). That seems like a fairly strong argument. But if we had copyrights of infinite duration and constant demand for some particular work over time, a commercial enterprise might exist solely as a licensing holding company -- and it might exist permanently and successfully, so long as tastes didn't change. It could be immortal, and never do anything. You could imagine, for example, a company solely dedicated to licensing the existing works of Gershwin. The company produces no products, but it can in principle be a "successful enterprise" for as long as copyright lasts and people enjoy Gershwin.
Depending on where you set your baseline, the existence of this company might arguably not be harming the public. (Of course, the company might, like certain not inconceivable real-world enterprises or foundations, invest a tiny portion of its revenues into making campaign contributions in support of government policies that would preserve or expand its future revenue stream. In that case, it might well end up having a more noticeable effect beyond the fate of the particular works it licenses.)
But it's not clear why society has an interest in permitting the existence of that particular kind of company. Unlike IBM, the licensing holding company is not producing anything useful. It's just collecting money.
If the only criterion for the public interest in promoting commerce were the existence of "successful commercial enterprises", we could imagine a law requiring that everyone pay an annual fee of $16 to the Consolidated Rent-Seeking Corporation (which would not need to produce any products or engage in any other business). Consolidated Rent-Seeking would certainly be a successful commercial enterprise, but the public would not clearly derive any benefit from its $16 apiece. It is difficult to see how Consolidated Rent-Seeking's situation would be far different from that of the hypothetical perpetual Gershwin licensor.
Perhaps your criterion needs to be amended to say that "society has an interest in promoting successful commercial enterprises that engage in productive economic activities".
I think 'three blind mouse' (who probably couldn't have used that name in a world with perpetual copyright :) miss the point by focusing on the wrong cases. I don't think anyone here is interested in the area of copyright, specifically because we want the right to create and sell our own Mickey Mouse comics. In the big picture Mickey Mouse is trivial, but like everything in this media world so is the focus on the trivial issue with a big media precense instead of the wider more generic issues.
Comparing owning a piece of land to owning a copyright is highly misleading. The attributes of the two are as different as they can be. For instance a plot of land has clear borders, IP has extremely fuzzy borders. You mention that new music becomes available each year, but I think it is very clear that a lot of the 'new' music that comes out is highly derrivative of earlier works. We have already seen many cases where musicians sue eachother for having 'stolen' certain passages/beats from each others songs. As the number of copyrighted songs out there increase the chance of actually writing something truly 'new' lessens, which will mean that it well be very hard for musicians eventually to write new music without being accused of copying someone elses work.
The issue is even clearer in the field of programming where there in many cases are not that many ways to do something. So even when you are writing something starting from scratch there will be many cases where the resulting code ends up looking very much like some existing code out there.
I think there is a need to understand that all currently copyrighted works are 'derrived' from earlier works in some form or fashion. And that all future works will also be derrived from what is already here. For instance we have old folk tales here in Norway about talking intelligent mice. Which means the idea of a talking intelligent mouse wasn't new to Disney (to keep with the silly Mickey Mouse example). And having read a lot of Disney comics growing up I know that the stories where very often 'stolen' from old pre-copyright classics, folk tales and religious stories.
Personally I think that anyone who thinks that Disney has made a positive contribution to culture through their works has to be an advocate of limited copyright, because as other has mentioned Disney is actually the perfect example themselves of what wonderfull new works can be created when people are allowed to base their own stories of those who has been made before by others.
three blind mice
Copyright should only be granted (if at all) because it has certain beneficial effects. These effects arise from early in the work's life. Copyright does its job by creating an expectation that publishing a work would be profitable where it would not otherwise have been expected to be. Where copyright is long enough to do so, it has no more to do for that work.
Eventually (if the duration of the copyright is sufficiently long), the benefit of copyright is reduced to less than the disadvantages. Copyright should not be perpetual because it restricts the owners' (of tangible property) freedom to use their tangible property. It means that I may not use my printing press as I like. Today it also means that I may not use my mp3 player as I like. (As a layperson) I understand possession simply to be control, so I believe that copyright infringes my possession of my tangible property. Copyright also restricts artists and the like in their attempts to create new works. Unlike perpetual tangible property, excessive copyright prevents us (all of us together) from becoming wealthier in ideas and prevents us from more fully controlling (i.e. owning) our tangible property. There are no such disadvantages (and, therefore, there is no such trade-off) for tangible property. Me owning an apple does not prevent you from using your apples, or from growing more, and it does not prevent you from making creative works.
If tangible property were to 'expire', then there would be a deficit of property. Instead, it would have to become public or collective property (or reowned in some way). There is no such requirement of posession for copyright. Copyrights can simply cease to be, whereas tangible property cannot. (A universal copyright holder could not demand that I pay royalties to everyone, or that I seek everybody's permission to create derivative works, because the copyright basis for such restrictions no longer exists).
Please find more full arguments in previous posts by myself and others.
I think that the person whose name is "three blind mice"
totally disregards, unintentionally or intentionally, the
subtle differences between the tangible things such as
land and soil and the intangible things such as art and
stories. The chemists would care very much about
the differences in chemicals because they could
generate different results. Apparently, that person
does not care about the differences.
Secondly, that person apparently forgot that our
culture and our knowledge are built on many layers
of intangible things that are in the public domain. What
will the world be like if a small group of people claims
perpetual copyright on the Torah? The world could be
very different!
Finally, that person apparently is not interested in
the Golden Rule. What we did to the intangible things
that are in the public domain, we should allow people
in the future to do the same to our intangible things.
But, no, all of the above does not matter at all for
that person thinks only in term of money.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions in
this comment in the public domain.
well, thanks everyone for your responses.
being somewhat bored with unimaginative arguments about the public's sense of entitlement to other people's unique expressions i wanted to see what economic arguments there were supporting a shorter copyright.
here is what i gleaned from the responses:
"public access to a work by making it much cheaper - Copying is a productive activity." - Seth Schoen
Purely economically, it costs me money in both taxes *and* royalties to maintain the copyright on Mickey Mouse--*and* it hurts me as an artist in that I am unable to publish a story with Mickey Mouse in it. - Evan
Copyright does its job by creating an expectation that publishing a work would be profitable where it would not otherwise have been expected to be. Where copyright is long enough to do so, it has no more to do for that work. - Tim Ivorson
all of the above does not matter at all for
that person thinks only in term of money. - Joseph Pietro Riolo
while i myself have no interest at all in money, i accept the reality of an international economic system based on money and the accumulation, trade, and transfer of capital.
i believe we are all in agreement that the issue of duration of copyright cannot be considered only in an economic light, but also that there are other non-economic considerations which must be taken into account.
the economic aspect cannot, however, be ignored. rights to make derivative works and copy existing works (yawn) should not automatically trump, nor be weighted unequally with respect to, economic considerations.
it would seem to me after reading these responses, that the economic effects of shorter copyright are neither fairly nor adequately being taken into consideration.
three blind mice
After a long time (I don't know how long, but perpetual copyrights would last long enough), all copyright would do is to move wealth around and make us less productive. It would allow the copyright holder to extract royalties from the work after this is necessary as an incentive to innovate. The artificially inflated prices would cause a reduced number of copies to be manufactured and sold. Artists would be prevented from making derivative works, so there would be fewer new works.
Could you assume for the moment that I am not deliberately ignoring the economic effects of shorter copyright? What are the economic effects of shorter copyrights of which you speak?
I'm not going to discuss things from a legal standpoint. I'm a historian. But as a historian I believe I can make another kind of point. And that is: The future is built on the past.
For instance, the works of science are "built on the shoulders of giants". Science progresses and new discoveries are made because scientists build on the successes of their forebears.
The point has been made regarding the tangible vs. intangible. But another point I should make is that there is no natural right to copyright. "Intellectual Property" is only a very recent invention that has come up as information has become more and more valuable. It is therefore in the best interests of media companies like Disney to extend copyright terms as much as possible. Up until the early part of the last century copyright was 14 years, extendible to 28 years.
This is because an idea, as represented by a story, cannot be property. It is very likely that the idea originator got his idea from some earlier idea. Some story he or she read. Or some past scientific research. Once more, the future is built on the past.
Ideas, as expressed by novels, stories, and characters, become a part of our culture. They are built upon, communicated from generation to generation. What's old becomes new again, retold in a new way. A new perspective. A good example is the retelling of A Princess Bride.
Your car can be stolen from you. Your ideas cannot. But, for a limited time, you are _given_ the priviledge--not a right--to benefit from your cleverness. Patents, which are similar to copyright in many ways, get 20 years and may not be renewed.
Perpetual copyright would slow, if not halt, the flow of information and progress. It would be an immeasurable loss to the future. It steals from the public trust.
Don't get me wrong. I support copyright itself (especially the original period of up to 28 years). But in its current form it steals from the future.
This is because an idea, as represented by a story, cannot be property. It is very likely that the idea originator got his idea from some earlier idea. Some story he or she read. Or some past scientific research. Once more, the future is built on the past.
no one is arguing, buck, that the present is not built on the past. what we are discussing are original, unique expressions which are the product of human imagination, which do not exist in nature, nor which are a natural (or obvious) consequence of history.
your argument is similar to the one advanced by the anti-software patent crowd: that everything "new" is just a repackaging of the past and that creativity, innovation, and new ideas do not exist. although reading the posts at slashdot would tend to give one the impression that software developers indeed lack creativity and imagination, i know from personal experience that this is not true.
similarly, i believe artists and authors are capable of original thoughts and expressions. to presuppose otherwise would render picasso an explorer and discoverer rather than an innovator.
society extends to artists and authors the "right" to exclude others from profiting from their works, or dilluting their value.
it is obvious that copyright is not a natural right any more than a bank vault exists in nature. they are both artificial inventions created by man to protect valuable assets.
the length of copyright is an aribtrary number: 14 years, 28 years, 100 years, this is also a creation of man. you say 28 years is enough. why only 28 years? why not 27? or 29?
what i object to is the automatic assumption that extensions of copyright are harmful and counterproductive.
i am of the opinion that a copyright holder should be allowed to extend her copyright as long as she sees fit to. it's her creation and it belongs to her. period.
if the cost to society is high, then this should be offset by an increasing schedule of maintenence fees. when the cost to society is greater than the profit derived from the right, the copyright owner will likely allow the copyright to elapse.
but it should be her choice. she should also be able to assign or transfer her right to whomever she wishes as she can do with any other negotiable paper. to restrict this would undermine its value and her liberty.
for the public to automatically at some point in time say to an author "that's enough profit, hand it over, we're taking it" seems to me capricious.
despite the thoughtful arguments for shortening (or at least not extending) this right which have been posted by others in this thread, i remain,
unpersuaded.
I think Christian Haller put it best in his comment. "Three blind mice" could not be used as an alias because that expression would be rightfully owned by the person who expressed it first. Keep in mind that copyrights are granted without registration or the presence of a copyright notice/mark.
In other words, copyright can infringe on speech and expression simply because someone else expressed it first.
Physical goods just don't have this kind of power. You might have a huge diamond passed down from generation to generation but that doesn't preclude the rest of the world from going out and finding their own diamonds. But if you say wrote "three blind mice" as the title of a poem 60 years ago you could go out suing everyone who used the term "three blind mice."
Copyright exists to encourage the creation of new works. That's what made the extension of copyright automatically bad. When someone 100 years wrote a book for the purpose of making money, he knew that he would have the commercial rights for whatever the copyright term back then was. Essentially that was the social contract. So, when an extension is done far after the work is already created, then it's essentially a gift to all the past creators that to some degree hamstrings new creators. It does nothing to encourage new works when old works are extended. For new works to be granted the new term arguably might do that.
Anyway, if you're looking for economic argument:
http://cyber.law.harvard.edu/openlaw/eldredvashcroft/supct/amici/economists.pdf
we should leave this thread while it remains a healthy debate, but since it is raining outside...
chris yu responded:
"You might have a huge diamond passed down from generation to generation but that doesn’t preclude the rest of the world from going out and finding their own diamonds. But if you say wrote “three blind mice” as the title of a poem 60 years ago you could go out suing everyone who used the term “three blind mice.”"
yes, having the legal right to transfer ownership of my huge diamond doesn't prevent others from going out and finding their own diamonds, but it does prevent others from taking MY HUGE DIAMOND.
as long as my legal right of ownership remains, and these rights are enforceable, other people have to go out and find their own diamonds.
and if the name "three blind mice" is copyrighted and my use of the name would be considered an infringement then tough luck for me. i'm forced to be creative - i can't appropriate from someone else's creativity as i, in my sloth, have done. i have to put brain to effort and think of a new name.
(btw, the mice don't sue, we always seek a negotiated settlement.)
so now i'm four blind mice. and if this is too close to a derivatve, then i'm something else.
you see there is an apparent contradiction in the argument that limited copyright promotes progress of the arts and that extending copyright hinders it. not being able to copy something, or make derivatives, forces me to create something new and different. removing the restriction allows me to do do covers.
but i am making a redundant point.
it appears to me that some of the arguments to reduce the length of copyright are motivated more by a desire for free and unfettered access to the art which exists, than as a general incentive to create a larger volume.
claims that the public confiscation of private property is a benefit to society is an argument which a free, liberal society must consider with the closest of scrutiny.
To the person whose name is "three blind mice":
In spite of your assertion, you still think in
term of money. With that kind of thinking, we
should restore the system of slavery. After all,
there is a lot of money to make with slavery.
But, no. The international economic system does not
work in vacuum. It is being tempered by the morality
system. The system of bankruptcy in the U.S. and
obliteration of personal debts after a person dies
are two examples of totally non-economic benefit.
This is unlike some countries where debts could never
be forgiven and could be passed to children and beyond.
But, you still insist on economic benefits. Let's see
what are the economic benefits that would occur if the
copyright terms were shortened.
1. Instead of a small number of publishers that are
given permissions to print copyrighted works, there
would be many more publishers who can print the same
works.
2. Because the original copyright holders have no
control over the price of the works, there will be
competition between publishers that print the same
works.
3. This in turn brings the price to reasonable level.
4. This in turn will save the customers some money.
5. The other future artists and authors will be able
to afford the creation of more works based on works
that go into the public domain as the result of
shortened copyright terms because they will not have
to pay the high cost of using the works.
6. As the result, the customers will buy new works
from these artists and authors.
7. The economic wheel happily continues.
We see the same phenomenon when the patent protection
for drugs ceases. Once a drug loses patent protection,
generic drug is produced by more than one manufacturers.
That produces many more economic benefits for the
customers.
But, I strongly suspect that you don't accept the
above because I think that you evaluate the economic
benefits from the perspective of the property holders,
not from the perspective of the customers. No
doubt, when the term of protection is shortened, property
holders lose the most. On the other hand, the customers
gain much more economic benefits.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
One of the things I noticed with the Public Domain Enhancement Act was that it allowed payment at any time for the extensions. So copyright it, then send $4 to the govt, and its protected for as long as it was before. Unless you demand payment between years 40 and 50, 50 and 60, etc, I'm not sure what good this will do...
three blind mice
No contradiction at all. Drink no water and you will die. Drink too much water and you will die. The argument is simply that copyright protection, like very many things, works best in moderation.
Why age 18 for some aspects of adulthood and age 21 for others? It's just a judgement made by fallible human beings. Ideally it's a judgement that should be periodically reexamined as objective evidence (hopefully) becomes available.
You could argue that the recent copyright extension was just such a judgement, but the grounds for that judgement certainly seem open to question.
Libs are sick and evil. They hate america.
Professor Lessig, I am glad to hear the details about Mary Bono's ideas. I am not sure why anyone would even ask Mary Bono's opinion. I am a constituent of Rep. Rick Boucher, and I am aware that Jack Valenti leaned heavily with his famous charm on Zoe Lofgren.
I think you have a winner with the proposed dollar renewal license. Jessica Litman's latest essay has a great deal to say about the statistics from the old days. Very few people found it of sufficient financial interest to renew the first term. The idea that this stranded widows and orphans is a hoary cliche from Samuel Clemens' day circa 1905.
Ms. Litman says contemporary teachers such as herself dispense entirely with the deatils of filling out a form and affixing a circle c notice! Much research indicates that the copyright owners can no longer be found ( a condition that was an important predication of ownership.) The result? A chilling of artistic expression, exacerbated by excessive lawyerism at the network TV level.
Ms. Litman touches on the truth many of us know: record labels have no paper on thousands of music copyrights in which they claim ownership. The RIAA will avoid a court showdown at all costs. They simply cannot prove ownership.
I'm glad to see that Chris Wu mentioned the Amicus brief by a large number of economics professors in the Eldred case. The main take-away from economics is that copyright is bad for two reasons.
A) As has been discussed at lenght, there are many people that may come up with ideas for derivative works. However, under copyright only the rights holder is allowed to make a derivative work and we are all worse off.
B) Economic efficiency dictates that we want to make products available at marginal cost. This ensures that the product is available to everyone who can afford to pay the cost of the good. With information good, the marginal cost (the cost of making another copy) is near zero. Thus, in the absense of copyright, copies 2 and up would be given away. This is essentially what you see on the P2P networks where goods are traded for free. There are two possible outcomes. Either the creator charges enough for copy #1 to merit the development cost of the good or the government provides him with rights that prevents others from creating and distributing copies his or her creation. The latter is the solution we're talking about here. It is bad from an economic perspective because it raises the price of the good above marginal cost thereby making it too expensive for some users that would otherwise have consumed the good. This is what economists refer to as a dead-weight loss.
There is yet another reason why the PDEA provides and economic improvement that is related to the last one. With some old goods, not only are there users that are unwilling to pay the monopoly price for a copy, it may well be the case that the original publisher cancels the distribution of the product because of the low demand (at the monopoly price). Now it may be impossible for a user with higher evaluation to get hold of the good. If, on the other hand, the good had passed into the public domain when the orignal rights holder didn't see any further value in it, there would be room for many alternative sources and increase the likelihood that a copy can be found.
The real problem with Three Blind Mice's approach is that he thinks of an intellectual property right as something similar of a physical property right when, from an economic perspective, the former is inefficient whereas the latter is efficient. Specifically property rights are useful for allocation of scarce goods. For information goods where scarcety isn't an issue, controlling the access is not socially optimal.
The real problem with Three Blind Mice’s approach is that he thinks of an intellectual property right as something similar of a physical property right when, from an economic perspective, the former is inefficient whereas the latter is efficient. Specifically property rights are useful for allocation of scarce goods. For information goods where scarcety isn’t an issue, controlling the access is not socially optimal.
i've been hanging aroung this thread too long.
fredrik wallenberg thank you for thoughtful comments, but the comparison between tangible and intangible is not as distant as you may think. you just have to use a little more imagination.
allow me, however, to first disabuse you of the pernicious fraud perpetrated by economists that ideas are non-rivalous (which is the basis of the economic argument to which you refer.)
thomas jefferson, founder of the university of virginia (and other famous achievements) writing in 1812 about “the embarrassment of an exclusive patent“, may have been the one to start this rumour when he argued:
“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 possessions 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.
mr. jefferson, whose tangible property assets included 80 to 100 africans whom he kept as slaves, was similarly unenlightened in his views concerning intangible property.
then, as now, if there is any one thing MORE susceptible than all others of exclusive property it is an idea.
knowledge, contrary to common opinion, is not a non-rivalous asset: consider that if the candle in jefferson’s possession enables him to occupy a share of the market for production of light, lighting another’s candle creates a competitor and diminishes the value of his candle.
even worse, if the recipient of his flame of knowledge has a less expensive source of candles, mr. jefferson might very well find himself quickly darkened by the market. out of business.
what if my "idea" was the the secret formula for coca-cola?
sharing the formula with others doesn't diminish my knowledge, but it certainly diminishes my competitive advantage.
ideas, you see, when they provide a competitive market advantage are inherently rivalous.
the thing is, not everything can be kept secret and some secrets are bound to be found out. if i do not have the legal instrument of IP, the non-excludeable nature of my competitive advantage renders me unable to profit from my innovations.
having legal means of establishing and enforcing ownership is even more important with ideas because i cannot build a fence around them. this, and not the rivalous, non-rivalous dichotomy, is the salient difference between tangible and intangible property.
the tension between my right of ownership and society is the level of tyranny which i must use to enforce these rights. this is the balance which must be maintained.
the longer a work is in the public domain, the greater the exertions which are needed to enforce my exclusivity. when it comes to the point where file sharers must be declared "enemy combatants" the balance has probably been lost.
getting back to the subject of this thread, my competitive advantage might run for centuries... it seem capricious to pull the rug out from me at some arbitrarily decided point in time because the public wants what i created, what i own, for free.
at the end of the day, "socially optimal" is in the eye of the beholder.
i suppose what this all leads to is that these issues need some way to be handled on a case by case basis. where the public's need of access outweighs my right of ownership, the the government can exercise due process, claim eminent domain, compensate me, and build the highway.
but to take my property away simply because the clock strikes midnight is not in my opinion good public policy.
now here comes the farmer's wife.
the mice are out of this thread.
Well, mice, thanks for hanging around for so long.
As to your point, "my competitive advantage might run for centuries… it seem capricious to pull the rug out from me at some arbitrarily decided point in time because the public wants what i created, what i own, for free."
Well, let's not forget that at a philosophical level, you, as a citizen, have come to your other fellow citizens and *asked* us for protection. Because without us (and our armies and courts) you would find it hard to defend the exclusivity of your idea at all.
So we, in return for our enforcement of the exclusivity of your idea, will demand that we get control of it at some point. It will make our society better and make our soldiers and lawyers more enthusiastic about providing support for the next guy's idea, which may or may not have anything to do with yours. When will we demand access to that idea? - At some point when you've reaped almost all the economic and social benefits you could have from it being exclusive - but not for so long that we don't get some benefit for everyone else.
You may not like us taking your idea as payment for your protection - but can you defend exclusivity without our support?
Hey, Sven. Stop.
Well, let’s not forget that at a philosophical level, you, as a citizen, have come to your other fellow citizens and *asked* us for protection. Because without us (and our armies and courts) you would find it hard to defend the exclusivity of your idea at all.
Alternatively, and just as easily, at a philosophical level, one can say that you *asked* "three blind mice" (or any other artist) to create the work. The offer of exclusivity was a significant inducement to the artist to create the work, which you and your fellow citizens prize so highly. This is not a one-way street.
So we, in return for our enforcement of the exclusivity of your idea, will demand that we get control of it at some point.
That's certainly one option. Is it the only one?
It will make our society better
That's a theory. How can you prove that it will make our society better? For that matter, what do you mean by "better"?
and make our soldiers and lawyers more enthusiastic about providing support for the next guy’s idea, which may or may not have anything to do with yours. When will we demand access to that idea?
This is a real stretch, don't you think?
- At some point when you’ve reaped almost all the economic and social benefits you could have from it being exclusive - but not for so long that we don’t get some benefit for everyone else.
If society is going to benefit from a creative work entering the public domain, does it really matter, in the big scheme of things, whether that entry happens 50 years from now? 100 years from now? 200 years from now? By definition, according to the staunchest advocates for the public domain, doesn't the work's entry to the public domain *anytime* have value?
How can you measure the economic and social cost of delaying a work's entry into the public domain for a period of time as compared to the value its creator realizes from holding exclusive rights in the work for the same period of time?
You may not like us taking your idea as payment for your protection - but can you defend exclusivity without our support?
More germanely to the instant discussion, can you obtain the same creative work without his exercise of his creative abilities? It really does work both ways.
Mice, thank you for your well thought out and written comments. I would like to continue your train of thought from your last post.
lternatively, and just as easily, at a philosophical level, one can say that you *asked* “three blind mice” (or any other artist) to create the work. The offer of exclusivity was a significant inducement to the artist to create the work, which you and your fellow citizens prize so highly. This is not a one-way street.
This is exactly the right way to think about it. From a social stand point, it is optimal for us to pay you as little as we can. Thus, we want to limit the length and breadth of the exclusivity we offer you in return for the work.
Intellectual Property Rights are all about providing sufficient incentive for the creation of the good.
I can agree that your statement provides a good reason why you should not retroactively reduce the term of copyright. If that is your motivation you should not forget that the Bono act retroactively increased terms of exisiting copyrights, something that is equally proposterous!
You make a good point that information goods being non-rival depends on your perspective. As you correctly point out, even if they are non-rival in the sense that I can keep it even if I give it away, the value of the idea can diminish when given away.
That brings us back to what is socially optimal. It is not necessarily in the eye of the beholder but it does depend on your perspective. Why do we allow strong property rights of a farm (for example)? Because we want the farm to be used for the most productive use possible. More importantly, it cannot be used by everyone at the same time. The idea about the candle on the other hand can be used by everyone at the same time. Even more importantly, once the candle has been invented we want competition to drive the price down so that everyone can afford the candle. The only reason why we would want to protect the idea from competition is because the inventor, if he anticipated immediate competition from his own idea, may opt not to invent (or disclose his invention).
The difference in our opinions may come down to one of what we find to be socially optimal. To me, maximizing individual wealth is not a socially optimal strategy, whereas maximizing total wealth of all individuals is.
To me, maximizing individual wealth is not a socially optimal strategy, whereas maximizing total wealth of all individuals is.
the mice are of the opinion that the former is the quickest and surest way to achieve the latter.
but you bring up an interesting point on which we can end this thread. a large portion of this debate is driven by political ideology.
in a book i recently read about the social conditions of pre-revolutionary paris, the author makes the following observation regarding the parisian guilds:
"In the second half of the 1700s the trades corporations came under increasing attack from enlightened thinkers, particularly from economists like Quesnay and Turgot, who saw them as impediments to trade. The trade corporations were accused of being cozy monopolies that prevented competition, wasting their energies in petty demarcation disputes, hindering innovation. There was an element of truth in all of this, but the accusations came from a particular ideological viewpoint and should be seen for the political rhetoric they were. Only recently have historians begun to recognise this bias."
if one replaces "trade corporations" with "patent/copyright" it is apparent that little has changed. this also explains (for me at least) the source of some of the zeal expressed by the opponents of extended copyright.
as this debate has been going on in different forms for more than two centuries i am not sure we would be able to finish it here, but i am grateful for the opportunity to exchange thoughts on the matter with all of those who have participated in this thread - even the spammer - i was feeling a bit alone there for a while so it was nice to not be the only one expressing a contrary point of view.
and now, while we still have our tails, the mice are running away.
Well, Mr. Boy - you raise some good points.
Yes, the contract written into our constitution between artist and society is, in fact, two-way. Society wants progress in the arts and sciences. I mentioned only one side as that was what I felt the mice were not thinking about.
And you also raise a good point - is there another ip option than the current regime of copyrights and patents? The only other official mechanism I know of in America to protect ideas is the practice of the government designating something as being classified (a humorous example is the exact color combinations that make up the paint for the White House. The shade of white is classified info. Really.). I guess you can also hide something for a long time and hope no one finds out (like Coca-cola's secret recipe).
You had also asked if it matters when something enters the public domain. Sure, it does. Maybe not if it's the Mona Lisa - but if it's the source code for Microsoft Windows, it will have a lot of value if I can build on it now (perhaps after fixing some security holes)- and it will have none in a century when there will be no computers that can use its logic. Similarly for music, it would be good to be able to rework something before all fans of that genre have died.
You also asked how you could weigh the benefit to the author versus the benefit to the society and how you would know when to let go. While I am sure there are people at the Berkman Center at Harvard who could probably impress you with good-sounding responses, I imagine the answer probably is that you probably cannot come up with something that makes sense for all intellectual property. So we'll probably have to have different rules for different types. Software should have a very limited copyright term - music longer - books the longest. (Blog postings - maybe 10 minutes!)
Well, Mr. Boy - you raise some good points.
I'm glad someone other than me thinks so. :-)
Yes, the contract written into our constitution between artist and society is, in fact, two-way. Society wants progress in the arts and sciences. I mentioned only one side as that was what I felt the mice were not thinking about.
That makes sense to me. I mentioned the creator's perspective to balance both sides of the equation.
And you also raise a good point - is there another ip option than the current regime of copyrights and patents? The only other official mechanism I know of in America to protect ideas is the practice of the government designating something as being classified (a humorous example is the exact color combinations that make up the paint for the White House. The shade of white is classified info. Really.). I guess you can also hide something for a long time and hope no one finds out (like Coca-cola’s secret recipe).
I was thinking more in terms of some sort of payment to the artist after a given period of time. I'm thinking in terms of the Fifth Amendment right to compensation when private property is taken for public use. Yes, I know that such an approach effectively sidesteps your earlier comments about the quid pro quo arrangement of exclusivity for a limited period of time in exchange for entry into the public domain in perpetuity. However, I'm brainstorming a bit here, trying to think outside the box, if you will.
You had also asked if it matters when something enters the public domain. Sure, it does. Maybe not if it’s the Mona Lisa - but if it’s the source code for Microsoft Windows, it will have a lot of value if I can build on it now (perhaps after fixing some security holes)- and it will have none in a century when there will be no computers that can use its logic. Similarly for music, it would be good to be able to rework something before all fans of that genre have died.
I think the strongest case you present is the example of the source code for Microsoft Windows. However, I don't agree that said source code will necessaruly have no value in a century. There may significant historical value in the content of the source code. It's hard to foresee the technological developments that will occur between now and 2103. However, old ideas can become new again. (Isn't that what this whole debate on the public domain is essentially about?)
Back in my former career as an IT guy, I learned a lot from looking at examples of "good" code and "bad" code, some of which was literally older than I was, yet still used on production systems. I think it's safer to say that the *nature* of the value of the source code may change over time than to conclude that the source code will have no value. Just my $0.02 on that issue.
Regarding music, that's a tricky one because musical genres and the public's appetite for them can change so frequently. Let's consider a few points about music. First, there seems to be a market for "oldies" and "retro" music. I don't know how many people who appreciate some of the older popular music of, say, the 1920s are still alive today, but some of that music may still be played.
Consider, too, the historical value of music. As a trained musician (although a really rusty and out-of-practice one right now!), I studied a lot of examples of harmony, counterpoint, and composition that were 200 years old. All of those ancient compositions are in the public domain and the original fans of those genres of music have all died. However, I can take those older works and create all sorts of variations of them today and at least some people would probably enjoy listening to them.
An easier example is simply the older music that we still listen to today. Consider Bach's Brandenburg Concertos and Beethoven's Symphony No. 5. The original fans of those works have died but we current fans of them are still very much alive. This is not a problem in your example because those works are already in the public domain.
I am sorry if this is rambling a bit. I need to catch a very early flight, but your comments inspired me to explore this subject a bit further.
You also asked how you could weigh the benefit to the author versus the benefit to the society and how you would know when to let go. While I am sure there are people at the Berkman Center at Harvard who could probably impress you with good-sounding responses, I imagine the answer probably is that you probably cannot come up with something that makes sense for all intellectual property.
I doubt they could impress me because I suspect any responses they reached would be quite arbitrary and very difficult to demonstrate empirically. I'm well aware that science and its rigorous methods are not the only means by which we humans can know things. However, I would like to see a more solid quantification of the social benefits in discussions of the value of the public domain, where the debates can be so intense!
So we’ll probably have to have different rules for different types. Software should have a very limited copyright term - music longer - books the longest. (Blog postings - maybe 10 minutes!)
Different copyright terms for different types of works could be a way to solve the problem, if such a system could be implemented in a reasonably efficient manner.
Thanks very much for your thoughtful and helpful reply!
SCO has decided that the Eldred decision invalidated the GPL, and probably the Creative Commons License as well. Would you care to comment on McBride's latest Open Letter?
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