January 20, 2003  ·  Lessig

Doc has a brilliant and absolutely correct diagnosis at the American Open Technology Consortium website about how we lost in Eldred. Copyright is understood to be a form of simple property. The battle in Eldred thus sounded like a battle for and against property. On such a simple scale, it was clear how the majority of the Court would vote. Not because they are conservative, but because they are Americans. We have a (generally sensible) pro-property bias in this culture that makes it extremely hard for people to think critically about the most complicated form of property out there — what most call “intellectual property.” To question property of any form makes you a communist. Yet this is precisely our problem: To make it clear that we are pro-copyright without being extremists either way.

So deep is this confusion that even a smart, and traditionally leftist social commentator like Edward Rothstein makes the same fundamentally mistake in a piece published Saturday. He describes the movement, of which I am part, as “countercultural,” “radical,” and anti-corporate. Now no doubt there are some for whom those terms are true descriptors. But I for one would be ecstatic if we could just have the same copyright law that existed under Richard Nixon.

Our problem is, as Doc rightly points out, that we have so far failed to make it clear to the world who the radicals in this debate are. Until 1976, the average copyright term in the United States was 32.2 years (the maximum term was 56 years, but 85% failed to renew their copyright after 28 years). In the last forty years, that term has tripled — every single work copyrighted today will remain copyrighted for an average of at least 90 years. Rothstein says that lots has entered the public domain since 1928. Indeed, he is right. But that was because copyrights expired every year between 1928 and 1962, and copyright until 1976 required renewal for an author to get the benefit of a maximum term. Under current law, however, absolutely nothing created now will enter the public domain for at least a century. And because of the Sonny Bono Act, nothing will enter the public domain again in the United States until 2019.

How to change the debate is the hardest thing. But rather than philosophy, perspective and pragmatics seems the best way. Build a public domain (which CreativeCommons will help to do), and show people and companies how the public domain helps them. Indeed, of all the companies out there, this is the one point Disney should certainly understand: Now that they have won the Eldred case, they should be racing to embrace the Eldred Act. No company has depended more upon the public domain. The Eldred Act would give them much more to build upon.

  • http://home.telepath.com/~hrothgar Timothy Phillips

    Philosophy for me, as well as “pragmatics”. We are up against some deep-rooted folly. Systematic wisdom will be part of the solution, as well as practical demonstrations.

    My response to Rothstein’s column is at:


  • http://kevin.atkinson.dhs.org Kevin Atkinson

    Ideas are not property.

    That is what we need to teach the public. The phrase “Intellectual Property” should not be used. Nor should should the words “stealing”, and “piracy”. The public has been brainwashed by the RIAA and others that “copyright infringements” equals “stealing” and “copyright infringers” are “pirates”. All three of those words are extremely misleading and we are not going to get anywhere until we dispel the public of the notion that ideas are propriety. We need to get the public to stop using the words “stealing” and “piracy” when it comes to copyright violations. Copyright violations should be called what they are.

    The idea that ideas are propriety has been growing worse in recent years to the point where the general public (at least the younger generations) think copyright violations are the equivalent of stealing to the point where copyright messages such as “Please do not steal are stuff” or “Taking our stuff with out permission is strictly prohibited” is common amount fan sites.

    The only time I consider copyright violations a form of stealing is when plagiarism is involved because in that case one is using someone elses ideas and claiming them as their own. Unfortunately many people due not seam to distinguish plagiarism from copyright violations any more.

    I have been meaning to produce a web site to educate a public of this very thing but am afraid with out support from others it will get know where. I have only limited knowledge of copyright laws and am clueless on what to due to get the average joe to understand these issues. If I ever create a site it will be about eduction, not advocacy, that is it primary goal will be to educate the public (with an obvious bias) on the matters. It will be something like my Reasonable Drivers Unanimous site. Most of the sites I have seen are primary about advocating a particular viewpoint with very little factual information or if there is factual information it is disguised in the form of case documents. If anyone thinks this is a good idea and are generally willing to help please email me at kevin@atkinson.dhs.org.

  • Anonymous

    Whenever someone uses kazaa or other p2p mp3 file sharing program, they should feel justified .. because they all copyrighted works today are taking unfair advantage of previous works without returning their due to society.
    Who’s to say another person within 99 years couldnt have created a very similar work? Perpetual copyrights are downright wrong.

  • Duck Dodgers

    See, Kevin, that’s exactly the kind of stuff Larry is talking about — and exactly the kind of thing that makes a whole bunch of people nervous.

    I’d rather have this stuff locked up in private hands forever — and have a whole bunch of creative people cowering in the corner — than to concede to some point that people don’t have a right to protect “for limited Times to Authors and Invetors the exclusive Right to their respective Writings and Discoveries.”

    There has to be some middle ground and Larry’s looking for it, that’s what this post is about. But I’ll reach for my revolver before I concede the death of intellectual property rights to the radical free-for-all fringe. Ideas -are- property, because the Constitution says they are. It may well be a positivist, rather than natural, interpretation of property in this case, but its the right one — and one worth defending.

    What’s next in your estimation, eliminating patents?

  • http://wanjoon.bitterbuffalo.net/blog/ Walter

    I for one don’t see much in the way of a clear distinction between philosophy and pragmatics. There are philosophical issues with pragmatism, and pragmatism likewise is concered with philosophy.

    The economists’ standard of what makes a good law is whatever produces the greatest social benefit, which, from a more generalized standpoint, has to equate with social good. Pragmatists–and just about any sane person, I would think–would agree with that standard. But “social good” is a meaningless term without a definition or a unit of measurement, and it determines who gets what and why. Pragmatists can’t understand what it means to be pragmatic without such a definition, which is the very subject matter that philosophers must deal with, though I think very few philosophers could actually claim to have influenced society very much. Even Rawls and Kant can only be said to have provided a possible foundation for movements that were already underway.

    The ‘actual’ social good is determined in a chaotic fashion by all of society, and though certain trends can be seen running throughout the social good, much of it remains incoherent. The most divisive issues in society never really seem to be resolved theoretically, but generationally.

    And Kevin, I think creating an educatory website rather than one full of rhetorical fire and brimstone is a good idea, but I question the integrity of its potential content, given the biased starting point. If there’s one thing I learned in economics, the data can easily be construed to fit any conclusion, if you want it bad enough. I think a website that offered arguments from every position in a fair and unbiased manner would actually be the most helpful thing, particularly in helping the undecideds find their way. Even the most scholarly research, when presented on a website or periodical promoting a cause, fills an undecided with doubt, because he knows the content is subjectively filtered and wants to know what he’s missing before he comes to a conclusion.

    At least, that’s what I feel like when I’m undecided.

  • http://kevin.atkinson.dhs.org Kevin Atkinson

    Duck, I never said there should not be no copyrights or patents. I am just saying that IP should not be though of as traditional propriety. When you steal propriety from some one that person no longer has the item. Making a copy is not the same thing as stealing. The “exclusive right” mentioned in the constitution is not the same thing as propriety. IP is a beast of a different nature and it should not be treated as traditional propriety.

  • J.B. Nicholson-Owens

    Richard Stallman of the GNU Project (see http://www.gnu.org) and Free Software Foundation has been telling us for a long time that “intellectual property” is wrong because it mashes together different kinds of law (trademark, patent, copyright, trade secret, etc.) which started independantly, work differently, and grant powers to cover different things. Other words receive significant analysis worth reading and mulling over.

    If you listen to Stallman closely you’ll also hear him criticize the word “protect” (like in “copy protection”). As I understand his argument: You protect what can be harmed. You cannot harm a work by copying it, making a derivative work based upon it, redistributing it, or publicly performing it (the big powers granted with copyright law as I understand things–and yes, I mean to say “powers”). Therefore it makes no sense to talk about protection.

    But what do people mean by “protect”–what do they believe is being “protected”? People who talk like that probably believe it’s their business model at stake–they believe they are losing money when they let people make copies or distribute copies. Publishers encourage that belief to justify their increasingly oppressive control measures. Publishers often get away with making arguments for increasing control without ever being challenged along the lines of: how do you know the recipient of the unpaid copy would have paid for it otherwise (the publisher has no idea, of course. Nobody to my knowledge has done the survey work needed to rightfully answer this in the affirmative.)? And even if the recipient of the unpaid copy would have paid for that copy, how do you know they would have paid you, the publisher for that copy (many works can be sold used where the publisher gets paid only once but the work can be enjoyed by many people. For digital media used copies can be just as good as new copies but at a lower price).

    Large copyright holders encourage people to believe that one must have exclusive control in order to make a profit on the work. Lawrence Lessig’s article on the reality of Japanese comics and their unauthorized derivatives tells us otherwise. I believe other copyrightable works operate the same way: there can be a market for the derivative and an enhanced market for the “original” (if there truly are no new ideas under the sun, as Shakespeare said, I think the concept of originality deserves reassessment).

    You can read lots of valuable insight into these and other terms on http://www.gnu.org/philosophy/words-to-avoid.html. There is a lot of discussion of Free Software terminology there, so some of the analysis will not necessarily directly apply to what we’re talking about. But I hope you will see that one can convey considerable understanding and encourage thought by using more precise terminology. The property-centric crowd who wants infinite copyright power already knows this. I find it hard to believe anyone fighting for increased access to copyrighted works will win using the language of the oppressor.

  • http://kevin.atkinson.dhs.org Kevin Atkinson

    Walter, you don’t know me. But if you do you would know that I am not the type of person who comes to conclusions easily. I will present all data and arguments. By bias, if anything, will be based on the data presented on my web site. I am also known for changing my mind frequently when presented with new data. The only agenda I have is getting at the truth. If I do run a web site a will include checks and balances to make sure I am honest, such as posting all feedback publicly.

  • Bruce Baugh

    One argument I’d like to see made more often: the works that drive a lot of the debate over IP were made by people who knew the terms of the law as it existed then. They weighed the costs and benefits and felt it worth proceeding. Now their predecessors – corporate heirs, who generally had nothing to do with the original making – are trying to change the terms of the deal between creator and public. That’s not fair, in the way American popular culture uses the term. It’s reneging on a bargain, trying to have it both ways. American culture is broadly sympathetic to commerce but also deeply skeptical about greedy bastards. More of us have scumbag bosses (or bosses’ bosses, and so on up the ladder) than scumbag employees. :)

    So the argument here is that it’s an American, decent thing to honor the deals you’ve made. Maybe it’s good to arrange different terms for future projects, maybe not, but in any event, you made this one by publishing under these terms and you can live with ‘em just like everyone else who did.

    As for what misuse of IP harms…it harms people, of course. All property rights are really rights of persons to decide the terms on which their stuff will be used, including the right to decide that this stuff shall not be used at this time. The taking of others’ stuff is the implicit declaration that, tough, you don’t get to say after all. It’s not about the bits or atoms, it’s about the people. At least that’s how I approach it.

  • http://www.pointrel.org Paul Fernhout

    While I would much prefer Nixom-era length copyrights or shorter with notices required. somehow it seems like the meme of copyright as permanent perpetual property has become entrenched in common culture. Here is a proposal that works with that context and expands on your suggestion of a copyright tax. Copyrights should be taxed annually at 3% of a self-assessed buyout value, similar to real estate, to make up for the external costs copyrights impose on society. Watch Disney squirm as they are forced to argue the mouse is like a piece of real estate but they should not pay property tax on it. We might see an immediate increase in the public domain as rights holders decide not to pay the tax for some works and those works immediately move into the PD as a consequence. Other works that are self-assessed at low amounts to avoid taxes might be bought into the public domain by individuals paying the assessed amount directly to the rights holders. If implemented internationally, developing nations might make a tidy sum by such taxes for defending specific copyrights while at the same time having immediate access to all other materials for which rights holders decide not to pay the tax for that country. The tax payments by default reinstitute the notion of formal registration, making it easy to find rights holders and the current status of previously copyrighted works. This is an Aikido approach — rather than oppose the strong force, redirect it for your benefit. With looming defecits, this gives the US government a new revenue stream.

  • Bruce Baugh

    There’s an obvious problem with the buyout-level-based taxation: it pretty much guarantees the right of a determined corporation to take away the work of all but the wealthiest individual. There’s no buyout rate I can set and afford to pay a portion of as taxes that Microsoft or Sun or Bertlesmann or Minute Maid cannot pay with trivial effort. (And if they want it, any of them can lobby a couple of officials to have the government do it.)

    There’s no provision here for an individual to decide, during that period in which they do have control over their work, to decide neither to sell it nor to make it available, but in my experience and that of many authors, this is one of the only tools of leverage available to an individual negotiating publication terms.

  • http://politicalgraveyard.com Lawrence Kestenbaum

    There are many web sites out there, a lot of them sponsored by universities or corporations, which “explain” copyright from a risk-averse perspective that downplays fair use, by way of “debunking myths” about copyright. They are technically correct as far as they go, but hugely misleading nonetheless.

    A comprehensive, high-quality copyright info web site which is just as accurate, but written from a fair use and public domain perspective, would be very welcome. Ideally, it should be the product of some of the leading people in the field, have a simple domain name and a large bandwidth capacity, and be kept constantly up to date to reflect recent developments. It should be written with minimal legalese, and structured so as to be useful to anyone who has to deal with copyright issues, and (though we are rightly angry) not so radical as to turn off moderates. And once it is created, sites of all kinds should link to it.

  • Duck Dodgers


    That’s all property is these days, a government sanctioned control of something. So we’re just arguing over the semantics. I prefer a natural rights understanding to property (I also prefer a Shelby AC Cobra, but that ain’t going to happen) — but a car is property and so is real estate, and each obviously has very different ownership rights (forgive me if I’m sounding like a 1L in the third week of property class, but the “bundle of rights” stuff is quite applicable here). And trying to reformulate the language so the word “Intellectual Property” is, I don’t know, an “Intellectual License” I think actually makes life worse… maybe not… but I think so, because then if it’s all the government’s whimsy, we’re hoping for a democratic/legislative solution when it’s pretty clear they are the problem here.

  • http://www.pointrel.org Paul Fernhout

    Responding to Bruce Baugh’s comment above: “There�s an obvious problem with the buyout-level-based taxation: it pretty much guarantees the right of a determined corporation to take away the work of all but the wealthiest individual. There�s no buyout rate I can set and afford to pay a portion of as taxes that Microsoft or Sun or Bertlesmann or Minute Maid cannot pay with trivial effort. “

    To clarify: the self-assessed buyout amount is not to buy the rights for private use by the buyer. It is to buy the work immediately into the public domain by a direct payment from the (charitable) buyer to the rights holder (perhaps mediated by the U.S. Treasury). So, unless Microsoft (or whoever) wished your new work to be in the public domain, they would have to pay whatever rate you negotiated with them — which might be higher or lower than the public domain buyout-amount at which you self-assessed the work to pay taxes on. While it might be hard for an author to decide what the amount would be, surely there will be rules of thumb and professional advisors to help with setting the fee for new works. If you get, say, $100,000 from Microsoft to see your new program go into the public domain and are unhappy, then you just priced it too low. If you set the PD buyout rate for $100,000,000 and no one wants to pay to put your work into the public domain, and you have to pay a huge tax bill, (say 3% — or $3,000,000 per year) then that is your choice.

    I think part of this idea is sort of from my old days working with JCL (Job Control Language) on IBM mainframe batch systems — there you had to estimate how much CPU time your program would use when you submitted the job, and if your program used CPU time beyond that, it would be cancelled. But if you estimated way too high, your job would not be scheduled to run for a long time. So programmers got good at estimating these times using rules of thumb and occasionally mistakes were made and jobs were cancelled or didn’t run. But, in general, the system worked. I imagine authors would get good at estimating how much their copyrighted work was worth (and some mistakes would be made).

    The fact remains, if you are an author, and you are attempting to use copyright to control your works, even while negotiating before receiving any compensation, you are placing a burden on society through the exercise of a monopoly. Like a real estate developer putting up a new apartment building, which requiring new sewers and roads, etc. even before tenants arrived, it would seem fair for the developer to bear some of the cost of the social infrastructure that makes their venture feasible (even before it produces an income).

    All these factors work both ways. How much would Microsoft self-assess Windows at to keep some consortium from buying it into the public domain? Consider that companies like Disney and Microsoft and RIAA members and MPAA members would have to finally pay some real taxes on their business model in proportion to the effect their works have had on society. One might well anticipate a million or so young Americans in prison in the next few decades over copyright in the U.S. if the war on sharing goes anything like the war on marijuana. The cost of those incarcerations and the cost of those shattered lives would be an external cost of copyright in the internet age of wide bandwidth and huge hard drives, and ideally that cost should be paid at least in part by those who use the copyright system for their benefit.

    Remember that the whole point of copyright is “to promote the progress of science and the useful arts”. This taxation approach would shake lose all the copyrights people are just sitting on, including those that have been otherwise forgotten or for which no clear rights holder can be found. There are other issues here as well — such “the law of large numbers” which over the internet is producing much useful and interesting information (such as your comment) without direct pay. So, I think the average author (not neccesarily every professional author) will be advantaged by this tax by gaining more materials to draw on in creating new works. I would expect most authors would not even file for their tax and would let their contributions become immediately PD. You might find a Disney that zealously guards and protects a few properties (and pays their taxes) but even they would be forced to make hard choices about how much keeping Micky Mouse from the Public Domain was worth to them and be taxed accordingly.

  • Bruce Baugh

    I don’t think I’m putting a burden on society when I write a book because I see the potential for satisfying both my artistic ambitions and for making more money on the effort than I could in other ways. If I don’t write the book, nobody else does. I’m engaging in a bargain with society at large: let me make my dough from this, and in due season the rest of you can do what you want with it, too. This is mutual enrichment. I (like most creators) do not wish to cut out of our end by changing the terms later. But neither do I think that society suffers by the period of creator control. It does suffer from endlessly extended control by middlemen, but that’s not the same thing.

    And do you really think that corporations and wealthy individuals would never wish to harm their rivals by pulling works into the public domain early on? If so, I can say only that I wish I had so much confidence in human nature. I don’t think the rich and powerful are innately less moral than I am, but wealth and power make it easy to indulge petty impulses.

  • Bruce Baugh

    Actually, on further thought, I’d like to withdraw some of that last round of questions. I don’t think they’re likely to advance the cause of figuring out how to better serve creator and general-public interests with regard to copyright (to put it mildly). Paul, please feel free to skip on by that part.

    I didn’t mean to launch a general political debate; some of my frustration at a wholly unrelated problem spilled over, and I should have caught it earlier.

  • SrryNSpm

    Anyone notice this?

    In RIAA v. Verizon:

       With copyright legislation such as the DMCA, “[t]he wisdom
       of Congress’ action … is not within [the Court's] province to
       second guess.” Eldred v. Ashcroft, slip op. at 32.

    Verizon lost. The DMCA can be used to obtain customer information
    without a court order. I sure hope the Supreme Court doesn’t think
    enacting the DMCA was within Conress’ power.

  • http://adamgoldstein.com Adam Goldstein

    There’s another bit of middle-ground advocacy work that we could do, y’know. Follow the example of the GPL and Creative Commons and license works in such a way that they retain full copyright for a given duration and include in the license language that makes it clear that after a date certain (much shorter than the actual copyright term) the work is automatically released into the public domain.

    This encourages responsible copyright ownership (as do all licenses–the act of attaching a license indicates an effort to use a copyright rather than let it rot), allows an author to support reasonable intellectual property laws while making a profit on his work, and sends documents into the public domain with all the regularity and certainty of the pre-1976 Act. And, of course, it has the benefit of working right away.

    I’m going to get started on a site for something like this, I think.

  • Bruce Baugh

    That sounds promising, Adam.

  • http://www.pointrel.org Paul Fernhout

    Bruce, I think they are great questions. And we are all a little on edge here with this Supreme Court decision essentially throwing the problem in our laps of changing essentially one-sided legislation by getting legislators to resist the lure of lots of money dangled in front of their noses by mainly a few private media cartels. This gets at the very heart of a deeply broken system for financing legislative campaigns. But, as, Senator Padme said in _Attack of the Clones_: “The day we stop believing democracy can work is the day we lose it.”

  • http://www.pointrel.org Paul Fernhout

    Bruce Baugh wrote: “I don�t think I�m putting a burden on society when I write a book … I�m engaging in a bargain with society at large…”

    Maybe that would be true with Nixon-era length copyrights. It�s important to recognize the new justification for taxing copyrights now that the Supreme Court have effectively said they can be perpetual. Perpetual copyrights break the historic copyright bargain which is essentially that the public is paid for the external costs imposed on it for granting a copyright monopoly recouped with interest by having the work in a short time enter the Public Domain. These external costs include courts, police, prisons for people who share with their friends what some monopolist doesn’t want them to share, the information superhighway, researching rights holders, negotiations, chilling effects, reinventing the wheel, deprival of the needy, privacy loss, crippled copying hardware, vague unease using the web, etc. While there is nothing much bad happening to people in society when you write your book and keep it to yourself or give it away freely, when you decide to essentially use the courts and the police and the prison system and the threat of the state monopoly on physical violence (more and more often a death sentence given AIDS contracted through prison rapes) behind all that to enforce your monopoly, you are putting a burden on people in society. Real property imposes many of the same burdens — that is why it is often taxed annually, especially when it is real estate.

    Also, the Supreme Court actually sounded a little interested in the issue of why people did not complain on previous copyright extensions. Richard Stallman has discussed this in part with the argument that when copying say, books, was hard (before the internet) the average user was not effected much by copyright — as they mainly concerned big commercial publishers plagiarizing each others works. Now that copying is easy, broad copyrights are effecting the average citizen, and so are now a heavier relative burden for the general public. There has to be something wrong somewhere when the prison terms for sharing are longer than that for murder. See:
    Richard Stallman writes: “In the age of the printing press, it was unfeasible for an ordinary reader to copy a book … So when the public traded to publishers the freedom to copy books, they were selling something which they *could not use*. Trading something you cannot use for something useful and helpful is always good deal. Therefore, copyright was uncontroversial in the age of the printing press, precisely because it did not restrict anything the reading public might commonly do. … Once copying is a useful and practical activity for ordinary people, they are no longer so willing to give up the freedom to do it. They want to keep this freedom and exercise it instead of trading it away. The copyright bargain that we have is no longer a good deal for the public, and it is time to revise it–time for the law to recognize the public benefit that comes from making and sharing copies.” With 20/20 hindsight, that is really the answer to the question asked by Justice Sandra Day O’Connor about what is different about this case considering previous copyright extensions — that the nature of the burden copyright places on the average person in society has changed given easy copying.

    The only rationale I can see for copyright in the absence or reasonably limited times (3-30 years?) is the same one given for the U.S. government constructing logging roads at a huge loss through wilderness to let loggers cut down the remaining old-growth forest trees and ship them to Japan — that somehow this has a positive net economic effect on our country’s economy. Even then the issue is also — who gets the benefits (logging companies?) vs. who pays the costs (hikers, owls, people who find a spiritual value in leaving some remaining old-growth forests even if they only see pictures of them on PBS, companies like Microsoft who can draw programmers preferentially to an area of scenic beauty and natural wonder). Consider this: software developers are talking about leaving the U.S. because of overly broad software patents and overly broad copyright statutes. That’s a little like Microsoft being a less attractive company to work for and Washington State real estate values going down because of a supposed broad economic value of logging the remaining natural forests via subsidized logging monopolies on government land actually having a negative effect on the economy.

    One might suppose excessively broad copyrights might have a similar negative effect on an economy — now that copyright threats are used to stop publication of things that are even vaguely similar. You assume as an author the system might work to your commercial advantage. But remember, you are also assuming that no one can come along and claim your book is somehow a derivate work of something you may have never seen. While you might prevail in court, the costs might be ruinous. And chances are, your work has somehow been effected by something you have seen. Back when copyrights were more narrowly defined both in scope and duration, such chilling effect were less of an issue.

  • http://www.pointrel.org Paul Fernhout

    To bring this all back around to “Doc’s diagnosis” of the loss as due to the widely spread culture meme of copyrights as a simple form of property — all these issues raised show that the implications of such a meme (e.g. annual taxation) haven’t worked all the way through yet. That leaves the in-practice perpetual copyrights that we have now posing many contradictions for society — ones that may well lead to lead to a lot of suffering for many in the near future.

    No one in the 1960s would have predicted a million or so U.S. citizens behind bars for non-violent drug offenses in the 1990s (one reason other countries critize the U.S. on human rights). While I would never advocate recreational drug use for many moral reasons (I myself even avoid aspirin), let alone that they illegal, the contradictions implicit in the war on drugs (e.g. why is drug abuse in prison rampant if interdiction is feasible without corruption? why is alcohol legal but marijuana not when one often causes violence and the other does not, why after decades of prohibition is the quickest way to find a drug dealer to ask a school child to point one out, etc.), show that it may take decades of suffering and millions of U.S. citizens lives destroyed before a “copyright as simple property” meme works its way through to more reasonable social policies (as is starting to happen with the war on drugs).

    It is very sad to anticipate similar decades of suffering and lives destroyed on the order of the war on drugs — this time played out with profitable police raids on anyone owning a computer and long harsh sentences to serve as deterrents to sharing. As a response to their request for public comments on copyright legal issues, last May I sent the U.S.Justice Department a satire I wrote entitled “MicroSlaw” on what might happen if this meme worked its way into compulsary licensing fees required for talking about the law. A copy of that is here:

    Richard Stallman is one of the strongest consistent resisters of this “copyright as property” meme, for example discussing the self serving biases implicit in words like “intellectual property” or “pirates” by those pushing such phrases (and this meme). People make fun of him for his doggedness on language issues all the time — but his point is in part that if people can’t see the biases implicit in such terms, it is hard for them to ask the real questions, like how should society handle copyrights (as property or otherwise?) and are people who share with friends thieves as opposed to those who prevent sharing?

  • Bruce Baugh

    I have a question, and I don’t mean it to be snarky. Is there room in a no-IP regimen for someone to attempt to make a living selling fiction, apart from putting out a tip jar and the like? What publishers mostly buy, when they buy a manuscript, is some claims of exclusivity in various circumstances, so that they can say “we’ve got X and they don’t”. If there is no control on the author’s part over use of the manuscript once it becomes available to anyone at all, then obviously that doesn’t work, and the implications here seem bad to me.

    I can foresee, in the absence of the option of exclusivity, publishers competing for the handful of bestsellers and simply ignoring even more of the low end and midlist markets than they do now. That’d leave purely word of mouth for the rest, and this is an even harder problem with prose than it is with music, since it takes fewer tools to get started with prose and more people fancy themselves authors. I don’t underestimate the power of good net-based filtering and referrals, but it looks like a messier situation overall.

    (I am aware of Creative Commons; I admit to some skepticism because I think that most people respond to a blizzard of related-but-not-identical terms by ignoring all the details and falling back on their intuition of what’s appropriate. A clearly expounded standard would, I think, work better than allowing that much customization.)

  • ECR

    All this debate on protecting Intellectual Property leaves me even more annoyed for the following reason:

    The Public Domain is property that belongs to all of us. As a member of the public I strongly feel it is my property to enjoy. In the US Constitution, protection of the Public Domain property, in the form of promoting the Progress of Science and useful Arts, is entrusted to the US Congress. For this protection Congress is given the negotiation powers of securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Whenever Congress extends copyright terms they are giving away Public Domain property and in exchange they should obtain this progress of Science and useful arts for the Public Domain. Every time that Congress gives away Public Domain property without the Public Domain receiving anything at all in exchange, Congress is making law that completely fails in their constitutional duty to protect the property entrusted to them by the people, the ultimate owners of the Public Domain.

    The defense of property is also a reason to strike down the Sonny Bono act.

    Something ironic in the comparison between IP and physical property is that copying an idea doesn’t deprive the inventors and artists from using it but prohibition to copy and make derived works does deprive the Public Domain from it. In this sense it can be said that Public Domain’s IP is closer to physical property than Author’s IP

    Eldred vs Ascroft is over. I can only hope that a future case will bring the Congressional duty of protection of Public Domain property to the Justices’ attention. On the second front, it wouldn’t hurt to remind your congressperson that there is a Public Domain property that they’re supposed to be defending.

  • ECR

    oops, left out the h in Ashcroft in my previous post, sorry

  • http://adamgoldstein.com Adam Goldstein

    Bruce: arguably you could make a living selling fiction using nothing but contract and tort law. You could contract away the exclusive rights to publication, and with the right notice and licenses, arguably sue those who copied for tortious intereference with that contract. The work itself could include a license limiting its use to eyes only or somesuch–therefore, anyone who copied it would be in violation of the license. (Lexis Nexis does something like this, since in the U.S., a database can’t be copyrighted. Their Terms of Service put a contractual limitation where no IP limitation functionally exists.) Shrinkwrap licenses on software are valid–why not one on a book? So there’s another area for contract liability.

    More or less any of the reserved rights in copyright law can be viewed as a default contract for the use of IP when no other contract terms are stated, so virtually any of the rights issues in copyright can be replaced with licensing.

    These really aren’t any different than “fair access” concepts as we currently understand them. A work protected by copyright gets special access protection from the DMCA, but in a non-IP setting, a contract is just as valid, if harder to enforce. (If a toothpaste company wanted to put a label on the tube stating that by extracting toothpaste from the tube you agree to brush your teeth between the hours of 8 and 12 AM, you always have the choice to choose other toothpaste . . .)

  • Bruce Baugh

    Paul, I make my living right now with fiction and writing in the roleplaying game industry. So this is a matter of very direct concern to me. I realize that not a lot of people do it, but then not all that many people making their living doing some of the things whose assumptions currently drive a lot of IP debate, either.

    And in addition to those who make a living at it, there are a lot of folks who supplement some other income by selling pieces once in a while.

    Is it, then, your contention that I need to find another livelihood? I don’t feel anyone is ever guaranteed the right to do the work they’d like – or at least shouldn’t be – I’m just trying to work out the personal consequences of various proposals.

  • http://kevin.atkinson.dhs.org Kevin Atkinson

    Just to be clear I am not advocating the abolishment of copyright laws, just a return of copyright laws to what the framers had in mind.

    Perhaps the phrase “Ideas of not property” is a bit strong, a better one might be “Ideas can not be treated like traditional property”. However the use of the words “stealing” and “pirates” when talking about copyright violations is definitely wrong.

    I am fairly serious about starting a web site if I can get some honest commitments from knowledgeable people to contribute content. Yes, it will have a slight bias however, I will not intentionally distort the facts. I will accept any arguments provided that they are not FUD or B.S. I will not accept arguments from the like of the RIAA or MPAA unless they or FUD and B.S. free. So once again if you are interested email me at kevin@atkinson.dhs.org.

  • Bruce Baugh

    Kevin, I’d be very happy with the sort of copyright protection the Constitution provides for. No beef there. And I look forward to seeing your website!

  • Nathanael Nerode

    A clarification — you should have won even on property terms. The copyright extension, in property terms, is a *theft of public property* — of a future interest — and a government transfer of that property to private interests. Unfortunately, the culture of property which the seven justices subscribe to has no respect for the concept of public property whatsoever. This is the same grotesque viewpoint under which giving away public land — the commons! — to private interests at a gross discount is considered a reasonable and proper use of public property. Not to be confused with selling it at its true value.

  • http://bonoboathome.blogspot.com Edward Hugh

    Sharing as I do your concerns about the ludicrous state of current US copyright law and the associated ‘iceberg’ effect for recent culture (with 95% being sent rapidly under water), I still cannot help feeling that the unintended and unforeseen consequences are likely to be the important ones here. There’s an old argument of Darwin’s from the Descent of Man about cultural evolution which keeps knocking about in the back of my head. The relative weight of accumulated learning is greatest in a society with a generally slower rate of change. In a society like ours, however, where change is rapid and accelerating, there’s a high premium on thinking on your feet and contact with the new. This in fact should favour those who, for want of a better expression, we might call the ‘early adopters’. I don’t know what the percentage is of the really good new ideas knocking around today that are freely available on the internet, but I’d guess it’s quite high (personally I haven’t noticed a good idea recently that I’ve had to pay for). I would also guess that most freely available ideas are pro-change and adaptation. So isn’t there really something implicitly absurd about those who are by nature more resistant to change – our more conservative thinkers – making sure that their best ideas are all locked away and difficult to get at. Of course culturally this is a terrible waste, but it is rather like shooting yourself in the foot.

    Meantime initiatives like CC have enormous potential. It rather puts me in mind of the BBC trying to get all those off-shore pop-music pirate radio stations taken off the air in the 1960′s. For the young people of the day the very ‘unofficial’ nature of the music was its attraction. By the same token CC should selectively attract those with the greatest ‘fitness’ for the new environment. The tragedy in all this, if tragedy it is, is that the opponents of the public domain are not as preoccupied about the future of their own ideas as we are for them. Remember that whoever it was that said ‘people are never so innocently engaged as when they are occupied making money’ (Carlyle, De Toqueville?) probably wasn’t thinking much about making money when he said it.

  • http://home.sandiego.edu/~lsolum/ Lawrence Solum

    I just read Doc’s comment. The thesis of “Going Deep” is insightful, and I believe explanatory, up to a point. I think that there was another rhetorical trope that has great explanatory power–”tradition.” The Eldred majority was very concerned with the long tradition of retroactive extensions. This trope is connected to, but distinct from, the originalist (first-Congress) argument that is another central piece of the majority opinion. There is, of course, a nice synergy (for the pro-CTEA side) between the property trope and the tradition trope. They work together to suggest that the anti-CTEA forces are indeed “radical.”
    BUT! But, this rhetoric can be turned around. The tradition argument does not play in the context of a challenge to the anti-circumvention provisions of the DMCA. Indeed, Justice Ginsburg virtually invites an argument that the DMCA lacks the built-in protection for free speech provided by the fair use doctrine in the section of her opinion on the first amendment argument against the CTEA. The DMCA is not traditional. Indeed, imporant and influential thinkers on the right are deeply troubled by the DMCA, precisely because it interferes with traditional property rights. See Randy Barnett, Reds in Suits: A review of Larry Lessig’s, The Future of Ideas, in Regulation, Fall 2002, vol 25, p. 64. The DMCA is all about a radical break with tradition and interference with traditional property rights. Take the pro-CTEA arguments, and turn them around!

  • http://www.flatfeemlsmarketing.com Milan Cole

    The absurd corporate greed that is at work in these copyright extensions makes it hard not to be a cynic. In my mind the challenge lies in effectively communicating the importance of this subtle change to a public that does not realize what we are losing.