• Anonymous

    The excellent cartoon Tom the Dancing Bug comments on Eldred today.

  • Bruce Baugh

    I can’t see a snowball’s chance in hell of the Economist’s proposal flying…but I’d love to see it happen. That would be more than enough time to guard the actual money-making opportunities that affect folks who do the sort of writing I do, and would certainly enrich the public domain more rapidly.

  • Paul Smith

    Here’s the URL to the Tom the Dancing Bug comic referenced above, via Salon.com:

    http://www.salon.com/comics/boll/2003/01/23/boll/index1.html

  • Stan Seibert

    At first, I was intrigued by the Economist proposal. It sounded like the kind of compromise, while implausible, at least seemed more likely to be accepted. The public gets the public domain back, and the media gets the copy controls they’ve been yelling for.

    However, after thinking a while, I decided it was self-defeating. If we accept technological copy controls with open arms now, where will our public domain come from 14 years from now? It seems counterproductive to on one hand affirm the public domain with shorter copyright terms, while on the other hand dooming the future archivists of the public domain to a life of cracking copy-restricted formats and media to get access to the public domain they have been legally granted. (No one said the copyright owners had to cooperate with the transfer of content to the public domain.)

    While current experience suggests that such reverse-engineering is possible, even probable over a 14 year time frame, it would be bizarre policy. Imagine telling prisoners, “When your sentence is finished, you are free… But, you have to break out of jail first. We only promise not to arrest you in the process.”

  • http:/// Andrew Cory

    Stan brings up a good point, one that I had been considering myself (his analogy is better than anything I had come up with, though). I have a meeting with an aid to my congressman tomorrow. I am thinking about bringing along a copy of the article…

  • Anonymous Writer

    Such a proposal is anathema to midlist fiction writers, who try to build a _business_ by creating copyrighted assets. The works of such writers have traditionally been reprinted periodically, perhaps many times, with years out of print in between. Occasionally one of these old works is optioned for film or TV, and the writer actually makes some real money from his investment. (Think “successful” writers like Theodore Sturgeon, Andre Norton, and Philip K. Dick, who never had bestsellers.) Proposals to shorten copyright terms are a direct attack on such working writers and would essentially put them out of business.

    What we need is to revise the Berne treaty, reinstituting renewals so that abandoned intellectual property isn’t locked up uselessly, and reinstituting the necessity of including copyright notices to insure protection.

  • Branden Hall

    I feel sorry for those writers, but I think that 28 years for a copyright is long enough. If you can’t make money off of a work in 28 years of having sole ownership to something, that’s tough. Just because someone makes money on something doesn’t mean they have a right to continue to make money in that manner.

  • Anonymous Writer

    >If you can�t make money off of a work in 28 years of
    > having sole ownership to something, that�s tough.

    Do you feel the same way about the garage apartment you built evenings and weekends? In 28 years the rental property you created doesn’t belong to you anymore?

    Oh, that’s different. Why? Because it’s tangible instead of a work of artistic creation? Why is that less deserving of protection than a work of physical labor?

  • http://dhudson.com doogieh

    After all, what’s the value of an economist article from 1974?* See they’re just being rational actors.

    *except to Lexis-Nexis

  • http://brainwagon.org Mark VandeWettering

    One serious problem with the proposal lies in the fact that with legislation currently on the books (namely the DMCA), it virtually doesn’t matter whether material is currently copyrighted or not. It is a crime to break any DRM scheme, so we would have to rely on the original copyright holder to release their material in an unprotected form before we could make use of it.

    I currently have a DVD on my shelf of Buster Keaton films which are apparently in the public domain (there is always some confusion as to whether such a DVD is a derivative work and hence independently copyrightable, but let’s ignore that for the present). In theory these films are public domain, and not open just to fair use, but actual unrestricted use. But to excercise my rights to freely use public domain sources, I almost certainly need to violate the DMCA. It literally doesn’t matter that the underlying material is public domain: the current publisher maintains an effective monopoly on the work. The only way to circumvent this is to find original or unprotected copies of the works, which can be both time consuming, expensive and often impossible.

    We need to overhaul the copyright system entirely, not to balance the needs of copyright holders against the public, but rather to reassert the rights of the public to the intellectual property that the Constitution establishes as belonging to the people in the first place.

  • RPD

    I have to agree with Branden here. Some one who creates concrete property (say for example, chairs) gets paid for their work when they do it. IP folk (photographer, writers, musicians, etc) create their work, and then consider reasonable that they should be able to sell it for the rest of their lives, if not longer.
    They like to argue that ‘my copyrights are all I have’, does that in turn mean the rest of us have nothing? I have skill, I get paid every time I exercise that skill. If I plan well, I’ll have money and property to leave for my heirs. Content creators should be the same. They have a skill, want more money? Then exrcise that skill, create more, plan well.
    As for ‘Anonymous Writer’, nothing prevents you from renting out your book as will, just as there is no reason for you not to build an apartment identical to mine.

  • Mike

    The Economist’s idea time passed long ago. Good idea around the time that macrovision came out. Still a valid idea before CSS for DVD’s came out. Now it’s a bad idea with CSS and the DMCA. It’s illegal to break copy protection. Period. I haven’t read the legislation carefully, but I believe that it’s still illegal to break copy protection even if you do it to access works in the public domain. I buy a dvd and say it’s still good 14,28, author’s life + 70 years or however long from now. Now, I want to make a change to the movie ala Mystery Science Theater 3000 or that movie steve martin did where he’s the only actor and the rest is cut from clips of old movies. No can do, breaks the copy protection. Makes me a criminal. It also makes me a criminal to exercise fair use rights. Want to put my CD on the mp3 player? Gotta break the encryption. That is unless they actually create a good DRM scheme whereas I can register my mp3 player to me and they come up with a registration scheme for the cd that registers it to me also. Then allow me to copy among all my devices that are registered to me (good luck with that….too hard and too many links. Content producers wouldn’t do it). If we’re going to give them strong copy protection, release of the public domain needs to be built into the DRM scheme. 14 years is up, copy protection vanishes. All itmes currently under a DRM scheme, they have to release non-DRM versions when the copyright is up. I’m willing to make this trade if they can come up with a scheme that integrates all the devices I own into my fair use rights and if their scheme GUARANTEES entry into the public domain when it’s time. Simple as that and it’s not going to happen.

  • jason watkins

    Do you feel the same way about the garage apartment you built evenings and weekends? In 28 years the rental property you created doesn�t belong to you anymore?

    You’re missing the point. If you build a garage, you own it forever yes. But, I, as your neighbor can also freely build my own garage. I can take a picture of my girlfriend standing in my yard with your garage in the background, and you have no claim on it.

    Copyright is not just ownership, it’s ownership of a limited monopoly. If the design of your garage was somehow copyrighted, then you would have the athority to restrict and prevent the use of my girlfriend’s photo. Even though she was standing on my property.

    Intellectual property *is* different than simple property, and because of this, in some cases, tends to expand ownership rights beyond what is reasonable. I don’t think someone should be able to copy and sell the novel you spent 28 years writing 2 days after you publish it. But think of what the world would be like if someone owned a copyright on the most important texts of history. What if someone owned the information in every history textbook, and always would? What if you had to pay me whatever fee I decide on if you write a novel about plato?

    And you’re saying “that’s different, those arn’t created works” and I’m saying yes, that my very point is that we need to be careful about these rights, and make distinctions that prevent such insanity.

    So I think you can see there’s a lot more going on here that just simple ownership of physical property.

  • Anonymous Writer

    >Copyright is not just ownership, it�s ownership of a limited
    >monopoly.

    It isn’t a monopoly in the truest sense, anymore than Toyota has a monopoly on cars because other companies can’t produce Corolas. Anyone can write his own book on the same theme. They just can’t copy someone else’s.

    >If the design of your garage was somehow
    >copyrighted, then you would have the athority to restrict
    >and prevent the use of my girlfriend�s photo. Even though
    >she was standing on my property.

    This would be fair use, just as if a movie showed a character reading one of my books. Nothing I could do about it.

    >But think of what the world would be like if someone owned
    >a copyright on the most important texts of history. What if
    >someone owned the information in every history textbook,
    >and always would? What if you had to pay me whatever fee
    >I decide on if you write a novel about plato?

    That wouldn’t be the case. (Buckley recently published a novel about Elvis. Historical figures–actually all dead people–are fair game. [But Lord only knows the effect of celebrity rights. IANAL--all disclaimers apply.])

    Obviously some limitation is required to keep things workable, and I thought life + 50 more than reasonable. Going back to 14 + 14 is an abandonment of all that creative people have gained in the last two centuries.

    Why aren’t you folks concerned about trademarks? Those are already perpetual, as long as they’re kept in use and not allowed to become confused or generic. Obviously unfair, an attack on the public domain. And best of all, cutting them back to 14 or 28 years would really sock it to Disney!

  • Alan DeWitt

    Allow me to propose some values that an optimal system should uphold:
    1) A copyright of limited and short duration
    2) The copyright is renewable up to a finite deadline
    3) Any DRM protecting the work must open at the end of the term.

    (The last value seems especially problematic to implement, since the people with the keys have little incentive to unlock the doors at expiration.)

    Given these, I’d propose:
    A) Copyrights are automatic on publication, and last 14 years for personal and corporate authors.
    B) Person authored copyrights are renewable for additional 7 year periods, but automatically expire one year after the death of the creator.
    C) Corporate authored copyrights are renewable for additional 1 year periods (with payment of a small tax, similar to what LL proposed 1-18-03) but automatically expire 28 years after publication.
    D) It shall be required, as a condition of first copyright renewal, to donate 5 copies of the work, unencumbered by DRM, to the Library of Congress, which is charged to archive the unencumbered work and protect it from release until copyright expiration.
    E) It shall be expressly legal to circumvent any copy protection (such as encryption) on expired works.
    F) In the event of the achievement of practical immortality, in no case shall copyrights extend beyond 100 years. :)

  • ECR

    There are some property examples here that use Real Estate.

    There is an exercise I suggest you consider: Take that rental property, say it is yours and don’t pay the property taxes. Much, much sooner than 28 years it will no longer be under your name. A certain financial bestseller author expresses this by saying that you never own land, at best you rent it out from the government and this rent is called Property tax (note: I understand this may be totally inaccurate from a legal perspective, I am just mentioning it because I find it an interesting comparison).

    The Eldred act proposes a tax and a return to the public domain if unpaid. The Real Estate analogies bring up an interesting point. Maybe it would be easier to find support if the unpaid tax allows the government (Federal, State?) to foreclose on it rather than reverting it automatically to the Public Domain. The big media giants would probably love the chance of acquiring more IP at an auction. It would solve problems about finding the copyright owner. It would encourage more authors to donate works to the public domain by the time it should start paying taxes. Most, if not all, of the items auctioned and without bids would end up donated to the public domain (I strongly doubt the government wants the burden of managing something of so little value that nobody wants it) and that would solve a few accessibility problems too. An act like this wouldn’t solve all of the problems (e.g., it doesn’t address duration) but the Public Domain would probably be better off than under today’s rules.

  • Anonymous Writer

    Property taxes are local, not national, and they’re generally used for specific, voter-approved purposes, not as a punative measure designed to pry the property away from its owner.

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

    Property taxes help pay for the annual external costs your property imposes on society.

    Your rental property requires roads to get to it, police to secure it, prisons with which to threaten those who would vandalize it, schools to teach the children of those who would live in it, fire departments to keep it from burning down, ambulances to rush to the aid of those who live in it, utilities like water and sewer, clerks to record title transfers, inspectors to insure it is constructed safely, nearby parks to make it a nice place to live, snow removal to keep it accessible, and so on.

    By analogy, your copyright requires an information superhighway to access it, police and prisons with which to threaten those who would share it other than as you allow, schools to teach the people who would read it, government taskforces to promote standards for its format, anti-virus task forces and researches to ensure its integrity, clerks to record title transfers, inspectors to insure it meets social norms, access to public domain works to draw on for its creation, government studies of ways to keep it accessible after its copyright expires (or not as now the case may be), and so on.

    In the past, the bargain was that your copyright going in the public domain made up for those costs. That bargain of limited times has been forever broken with the recent Supreme Court decision. So it is time for copyright holders to start paying up — every year.

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

    I am dead set against any sort of copy protection. It will never work without seriously limiting fair use and quite possible other freedoms not directly related to copyright. See The Right to Read for a picture of what the world will become in order to make copy protection work. Anything short of the control mentioned in the article will not work as there will always be a way around copy protection. Always. I can not explain this view but I belive it in quite strongly.

    I will rather have copyrights that last forever and no copy protection than short copyrights and copy protection.

  • http://www.studioforrecording.org/ tom poe

    If I register my creative work as one that permits noncommercial use, but requires that I be contacted if there is a commercial use planned, and make that known to the world, will I suffer from others who would abuse my generous, albeit perpetual copyright arrangement? [think Grateful Dead business model]

    The Internet lets me, as a creator, develop a business strategy that does not rely on copyright as we have known it. The Creative Commons Project [ http://www.creativecommons.org/ ] provides the legal framework for the Digital Age [and it's free!]. In the not-too-distant future, society will easily be able to operate within this legal framework, and corporations that don’t participate will lose significant market share to those of us that choose Open Source, Creative Commons, and the global audiences that are easily identified through such “tagging” features built into browsers.

    The conceptual image for this thinking goes something like: A Commons, where, under the umbrella of the Commons, lies a continuum, with pure Public Domain registration without any restrictions at one end, and along the continuum, added restrictions, until, reaching the other end of the continuum, there is copyright with huge numbers of detailed restrictions.

    Is that not what everyone is trying to achieve? And, best of all, it’s already in place, thanks to visionaries like Lawrence Lessig. We should acknowledge this wonderful contribution, and make use of it. I hope everyone goes to the Creative Commons Project, and begins to replenish the Public Domain of the Digital Age.
    Tom

  • Anonymous Writer

    >>Your rental property requires roads to get to it, police to secure it, prisons with which to threaten those who would vandalize it, schools to teach the children of those who would live in it, fire departments to keep it from burning down, ambulances to rush to the aid of those who live in it, utilities like water and sewer, clerks to record title transfers, inspectors to insure it is constructed safely, nearby parks to make it a nice place to live, snow removal to keep it accessible, and so on.>By analogy, your copyright requires an information superhighway to access it,> police and prisons with which to threaten those who would share it other than as you allow,> schools to teach the people who would read it,

    You’re getting pretty extreme here. Copyright owners should finance education. Yeah, right.

    >>government taskforces to promote standards for its format, anti-virus task forces and researches to ensure its integrity,

    You’re talking about digital devices, not copyrighted works.

    >>clerks to record title transfers,

    Already paid for by the registration fee.

    >>inspectors to insure it meets social norms,

    Not in the USA. Freedom of speech, remember.

    >>access to public domain works to draw on for its creation,

    They’re free, remember. That’s what public domain means. Access is usually pretty easy at public libraries, and free.

    >>government studies of ways to keep it accessible after its copyright expires (or not as now the case may be), and so on.>In the past, the bargain was that your copyright going in the public domain made up for those costs. That bargain of limited times has been forever broken with the recent Supreme Court decision. So it is time for copyright holders to start paying up � every year.

    Keep talking like that. That way you’ll have no chance on earth of influencing anyone who actually makes laws.

    That’s a shame, too, because the current law really is a mess. Not because it protects living writers and their immediate heirs–or even because it protects big and powerful, but also extremely creative companies like Disney–but because it unnecessarily locks up material that has effectively been abandoned by its owners.

    Adios.

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

    Dear Anonymous Writer,

    Let me start by acknowledging that the presentation of my position was weak. I tried to make an point-by-point justification for an annual copyright tax identical to an annual real estate tax. For variety and from laziness, I was trying to do something different than my other discussions under the “Doc’s Diagnoses” comments elsewhere on this blog. You shot that side-by-side comparison approach down in flames, and let me congratulate you on a job well done. Real property and copyright are different things and each must be treated differently by society.

    By bringing in weaker and side issues, and not focusing on the core justifications for an annual tax on copyright (enforcement costs, chilling effects, rights research, independent reinvention, etc.) I created a situation where you could appear to rebutt the entire concept of annual taxation of copyrights by winning a numerical number of points. But obviously in hindsight, I would have been better off crafting an argument where I only had to carry one point — and then make several strong ones and hope one was sufficient to stand.

    Still, let me see what I can glean from the wreckage of that argument style and your great rebuttal.

    * You acknowledge that real property does have external costs imposed on society, some of which are taxed annually, and some of which are paid as service fees.

    * You apparently acknowledge the internet’s increasing importance in our daily lives has changed the nature of the copyright monopoly enforcement situation, and as a consequence to maintain the effectiveness of these copyright monopolies (presumably) required the recent passing of laws criminalizing copying actions which before the internet could be detterred adequately by only civil actions.

    * You suggest, regarding the internet and copyright, “Perhaps these new expenses should be financed by taxing ISPs or manufacturers, since they created the problem by making it so easy to copy and distribute other people’s work.” [I think this point acknowledging additional new expenses could be the start of a very interesting debate over who should pay these increased costs once they are fully identified and quantified -- rights holders, communications providers, manufacturers, or users.]

    * You acknowledge “current law .. unnecessarily locks up material that has effectively been abandoned by its owners.”

    Let me recraft my arguement then, to focus on strong points. Perpetual copyright monopolies (such as just essentially upheld by the U.S. Supreme Court) in the internet age impose large unreimbursed annual costs on society. These costs are not all easy to identify or quantify, but major ones include the cost of copyright related law enforcement and incarceration, the chilling effects of broad and long copyrights have on the creation of new similar or derived works, the loss of previous fair use value of copyrighted materials given new restricitive laws (such as the difference between a book under “first sale doctrine” and an e-book under a typical license), the theft from the public domain of works that otherwise would have entered it (whose value would be far greater to the public as a source of raw material than to the rights holder), the difficulty and cost of locating the owner of a copyrighted work — let alone negoiating an ad-hoc permission to use the work given a lack of any compulsary licensing laws for non-musical works, the loss of privacy of users of copyrighted works when they are protected by digital rights management, and the subsidy by the goverment of new communications technology allowing rights holders to profit from copyright distribution in new and potentially more profitable ways. If even one of these costs is proveable, then copyright holders should pay that external cost directly out of fairness — ideally annually now that copyrights are essentially perpetual (which broke the bargain that the work going into the public domain in a short while repaid these annual costs). These annual costs are likely to increase in the future, especially if it is found that an effort similar in scope to the “War on drugs” is needed to stop sharing. The direct incarceration cost of the war on drugs of a million non-volent drug related offendors (doubling prison populations since the 1970s) is about $20-40 billion dollars a year, so one can estimate a similar amount (or greater) to this soon to be a direct cost of copyright in the internet age. The indirect cost are much harder to quantify, especially as they may effect the quality of works and the quality of life in the U.S.A. To pay for these costs fairly, I propose an annual tax on copyrights of 3% of the value the rights holder self-assesses of keeping these works out of the public domain. To keep this self-assessment process fair, anyone may pay the rights holder this amount to place the work immediately into the public domain. This annual taxation approach, in addition to helping pay these external costs, will also cause many works that have been effectively abandoned by their owners to move immediately into the public domain, where they will be of greater value to society at no direct economic loss to the current rights holder.

    >> In the past, the bargain was that your copyright going in the
    >> public domain made up for those costs. That bargain of
    >> limited times has been forever broken with the recent
    >> Supreme Court decision. So it is time for copyright holders
    >> to start paying up � every year.
    > Keep talking like that. That way you�ll have no chance on earth
    > of influencing anyone who actually makes laws.

    As above, I admit the argument style was weak — in part because I did not want to just repeat all the supporting arguments I posted in a related thread on this blog: see the “Doc’s diagnoses” comments.

    Still, I think what this comes down to is money. If I was, say, financeer George Soros (who fights, for example, the war on drugs), and had just said I was committing a billion dollars to see copyright annually taxed (or eliminated or reduced or whatever), I don’t think you’d make that point. But you’re right in the sense that (off the top of my head) I’d guess RIAA, MPAA, Disney and others spent about $50 million dollars to buy legislation over the last 27 years that was in their favor, through a process Richard Stallman describes as: “… the campaign finance system that we have in the U.S. … is essentially legalized bribery where the candidates are bought by business before they even get elected.”
    href=”http://www.memes.net/index.php3?request=displaypage&NodeID=650
    So, do I have $50 million or so to oppose these laws (or several times that as I get into a spending war over legislation with MPAA, RIAA, etc?) Frankly, no. But some people do.

    Still, I can hope that enough public opinion might change so that enough people get concerned enough about theft from the public domain and rising levels of copyright related imprisonment and other costs that something is done (whether this annual tax approach or another one). The notion of an annual tax doesn’t seem much in the public consciousness (compared say to the notion that copyrights are like simple property), so I am adding that annual taxation notion to the debate. At the very least, what has emerged from this (as mentioned above) is that there should be a debate over what these costs are and who should pay these increased costs once they are identified and quantified — rights holders, communications providers, manufacturers, or users. Given that monopolies are generally considered anti-capitalist, I feel the monopoly holders in the U.S. should shoulder the burden of payment.

  • Anonymous Writer

    Dear Mr. Fernhout,

    I planned to drop out of this discussion, but your reasoned response demands a reply.

    I see several problems with a proposal to tax copyrights:

    1) It probably violates the �no formalities� provision of the Berne convention.

    2) It will certainly be challenged as violating the First Amendment, as an encumbrance to Free Speech and a Free Press. My guess is that the courts would toss it out on those grounds.

    3) It is contrary to the copyright clause, discouraging creativity.

    It would also be a nightmare to administer. You can no more calculate the value of a copyright than you can calculate the value of a lottery ticket before the drawing. Something that is essentially worthless today can be worth millions tomorrow, or vice versa.

    Keep in mind that such a tax would merely be a cost of business to big corporations, passed along to the consumer (in increased prices, like all business taxes), but would cripple small, independent creators. (In other words, it would strengthen the stranglehold big corporations already have on creative artists.)

    Also, I think you�re grossly overestimating the costs of copyright to society. Costs of DRM would be born by the publishers, who pay for the software or service (and pass along those costs to the consumer). Enforcement costs would be comparable to those incurred when someone reports online fraud or harassment, and it�s hardly clear that, say, the credit card industry or ISPs should be forced to bear those costs.

    I think what�s needed in this discussion is to focus on what we really want to accomplish, and what is attainable. I think the primary goal is and should be to insure that copyrighted works are available. To that end we might make extended copyright somehow contingent on availability, electronically or otherwise; a national digital archives could be a solution, with the copyright owner paying the cost of digitizing the work as the price of extended protection. There are problems here in determining availability, since printed works can go in and out of print regularly, over a period of years. Also, should the availability of used copies be calculated into the mix? A lot to work out.

    How many of us are really dying to make use of Mickey Mouse? Very few, I would suspect, and even having _Steamboat Willie_ lapse into the public domain would not accomplish that goal, since Mickey and most other iconic creations are protected by trademark. You couldn�t produce new Mickey Mouse cartoons, incorporate the character into stories or comics, or anything else other than reproducing the original cartoon or stills from it. The whole new-use argument is greatly exaggerated. I also think that it�s reasonable to differentiate between absentee copyright holders and careful stewards such as Disney. People and companies who have built businesses around their creations deserve added consideration. _Steamboat Willie_ would be long forgotten and essentially worthless if Disney hadn�t carefully built on it over all the years since its release.

    As I suggested before, I think we need to renegotiate the Berne treaty to include renewals and to allow works published without copyright notice to immediately enter the public domain. That would be a good start, though I fear we may be in so deep that it�s not possible to extricate ourselves from the current copyright mess.

    Again, thanks for your response.

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

    Dear Anonymous Writer,

    Your third point is a complex one and you make some good arguments and it will take some time and thought to respond well to all of them. In general I would agree that at the very least the law should ensure copyrighted works are available. I also tend to agree with your pessimistic conclusion that the system is probably not fixable anytime soon [although I think people should try anyway and I would support such efforts], which is why I tend towards thinking that as an alternative we need more works under free licenses (like the Creative Commons) and also a way to filter out unfree content — essentially building a free world despite the past (sort of like a DRM tool that asserts freedom to copy).

    Here are responses on the first two (less important) points:

    > 1) [A tax on copyrights] probably violates the “no formalities”
    > provision of the Berne convention.

    Possibly, but opinions seem to run both ways on this blog (in other threads). If it is a violation, then it would be one more item for the to-do list (and some on this blog suggest it would be easier to change the treaty than U.S. law).

    > 2) It will certainly be challenged as violating the First Amendment,
    > as an encumbrance to Free Speech and a Free Press. My guess is that
    > the courts would toss it out on those grounds.

    I don’t see why. Since free speech is guaranteed in the constitution, but copyright is optional, it would seem that the founders envisioned the possibility of free speech and a free press without copyright. Nothing about taxing copyrights annually restricts an individual from putting up a web page with their opinion. It just says if they want to maintain a commercial monopoly on that particular presentation, they need to pay taxes. Defamation laws prevent someone else from modifying a public domain opinion document in such a way as to attribute modified opinions to the original author and then redistributing that defamatory modified version.

  • Anonymous Writer

    We’ll have to differ on the first amendment issue; I see any kind of tax on speech as illegal. I’m sure lawyers can come up with all kinds of counter examplesa and rationales, but as we’ve just seen with the Supreme Court decisions, it’s not easy to predict what the court will decide.

    Your point about defamation is interesting. Do you know if that’s ever been used to protect a public domain work from tampering?

    A point I don’t remember ever seeing mentioned in discussions like this one is that public domain works are often subjected to editing and censorship when republished–without any acknowledgement by the new publisher. (Omissions by error are probably even more common.) I can point to Twain’s _Tom Sawyer_ as an example I’ve observed myself, including a textbook selection with dumbed-down wording. This is slightly off topic, but I would like to see some legislation (perhaps some exists that I’m unaware of) to protect the integrity of such works. If anything is changed or abridged, the publisher should be forced to prominently acknowledge that.

  • ECR

    Regarding the Berne treaty, would it make any difference if this tax is imposed _after_ the minimum 50 years? A certain period of tax exemption would be quite reasonable anyway.

    The issue mentioned by Anonymous writer on calculating and administering a tax like this is an interesting point. There are formulas that wouldn’t make it ‘a nightmare to administer’, for example, a tax that increases with the time the copyright has been held

    Anonymous writer, you consider any tax on speech as illegal. A tax on speech is not being proposed at all, please read again Paul Fernhout’s previous positing, the proposal is a tax on maintaining a _commercial_monopoly_ on it.

  • http://www.jzip.org/ adamsj

    Branden Hall said:

    > I feel sorry for those writers, but I think that 28 years for a
    > copyright is long enough. If you can�t make money off of a
    > work in 28 years of having sole ownership to something,
    > that�s tough.

    This strikes me as a callous point of view, and one not likely to help the cause of the public domain.

    Creativity is a tough way to make a living–one of the toughest–and is especially tough if you’re trying to do something lasting. There are fewer and fewer places to live where a “starving artist” can keep from starving.

    Oftentimes, someone’s great work isn’t recognized until late in the creator’s life–sometimes not until after (think John Kennedy Toole)–and that’s tough enough. Copyright for the lifetime of the individual creator is a bare minimum.

    In one case, the world has been saved from a dreadful book by this:

    When Philip K. Dick’s Do Androids Dream of Electric Sheep was filmed as Blade Runner, he was offered an amount somewhere well into six figures to let a novelization of the movie be produced. Dick was in failing health and not doing well financially, but he told them (probably politely) to stuff it, and took instead a not-unreasonable $25,000 for a re-release of the original novel. That was tough on the developers, and tough on Dick, but he had integrity.

    In a society which made sure its great artists didn’t live in poverty and had a reasonable level of guaranteed health care, this twenty-eight and out approach might not be so unreasonable from a cash dollar point of view.

    But that’s not on the agenda, and besides, money isn’t the only thing.

    P.S. Here’s another link for Tom the Dancing Bug, which will work today.

    P.P.S. Good thing I previewed my post–how come italics aren’t allowed?

  • Ryan Henrie

    Some people have brought up the problem with stronger DRM measures that after the 14/28 years, we couldn’t crack open the work even if we had the right to.

    What if, in order to get your copyright, you had to send an un-DRM’d electronic copy of your (music/book/movie/whatever) to the Copyright Office, and after the 14/28 years, they would make a copy upon request to anyone that wanted it?

    For software, it would require including the libraries and tools to compile the software (which would also be in the public doman by that time).

    The other point I wanted to make is that what if each DRM feature had to recognize a date stamp, and after the 14/28 years from creation, it stopped scrambling/blocking/etc? If the copyright is for limited times, then anti-copying measures should recognize an expiration date!

    Just a few ideas.

    Ryan

  • phr

    IMO, when you make a chair and put it on your porch, it’s your property to do whatever you want with–charge people to sit in it, or whatever. But if you choose to put the chair in a public building (say a school), you have voluntarily relinquished control over it.

    Similarly, when you write a novel and hold the unpublished manuscript in your hands, it’s your property, you own it and you can control it any way you want. But the moment you choose to publish it, you’ve voluntarily injected it into the surrounding culture which you do not own. And as the novel over time can become an inseparable part of the culture, it’s absolutely necessary that anyone’s control over it must eventually cease.

    If you want to keep permanent control over your chair, keep it in your house. If you want to keep permanent control over your novel, don’t publish. There is no inherent right to keep any control over your novel once you’ve voluntarily published it. There’s simply a social policy that recognizes publication as a social or economic good, and grants some temporary control as an incentive to encourage publication. The best comparison I know is with the tax credit for low-emission vehicles granted by the Clean Air Act. There’s no inherent right to that credit, but society has recognized that combatting pollution is a good thing, so it rewards users of low-pollution cars. If the parameters of the system change (nature of pollution problem, cleaner normal cars, etc.), the tax credit can change (or be eliminated) as well.

  • jason watkins

    >>If the design of your garage was somehow
    >>copyrighted, then you would have the athority to restrict
    >>and prevent the use of my girlfriend�s photo. Even though
    >>she was standing on my property.

    >This would be fair use, just as if a movie showed a >character reading one of my books. Nothing I could do >about it.

    Legal action has happened over this very issue when it comes to trademarks, etc. Movie productions now have to consider replacing billboards when they film in public areas. It *should* be fair use, but yet, the domain of fair use is shrinking quickly. My point was not specificly about copyright, but the nature of IP, and that information tends to be reused often, even incidently.

  • http://home.uchicago.edu/~kldavis Karl

    The fall of Empire, gentlemen, is a massive thing, and not easily fought. It is dictated by a rising of bureaucracy, a receding initiative… a damming of curiousity…

    -Asimov, Foundation

  • http://wings.buffalo.edu/~koepsell Anonymous

    I like the idea of a shortened copyright term, but only if we eliminate the patent regime and use a singualr form of IP protection for all expressions (utilitarian and Aesthetic alike). I recoomend this in my book, _The Ontology of Cyberspace_. However, 14 years is too short. I’d say, 25 years for any expression is plenty.

  • Roy Berman

    I think that everyone complaining about how the DMCA and DRM would interfere with the Economist’s copyright proposal are missing the point. They are suggesting an overhaul of the entire system, with a focus on creating an enforcable 14 (or 28) year term of copyright. Clearly were the government ever willing to adopt this proposal many of the provisions in the DMCA would be revised. As I see it, an ideal solution would be for all copyright registrations require an un-encrypted copy of the work to be submitted to the Library of Congress, to be made avaliable to the public free of charge (well, possibly with some sort of reasonable duplication service charge) at the time of the copyright’s expiry. In fact, if this escrow system existed, the anti-circumvention rules of the DMCA would be slightly more reasonable. Well, thinking about how the law has been employed, perhaps they wouldn’t be particularly reasonable even in this case, but a system of escrow run by the LoC and copyright office, automatically releasing expired works into the public domain, would solve the access problem of DRM in the long-term. It would no longer be theoretically possible for someone to release their copyrighted works under uncrackable DRM protection, and retain effective control of the work even after the legal protection of copyright has expired.

    In response to the statement above that even if “Steamboat Willy” were to lapse into public domain then trademark law would prevent the creation of derivative works. This is simply untrue. All trademark protects is the trademark itself. As I understand it, the product itself could not be labeled as ‘Mickey Mouse’ and the name ‘Mickey Mouse’ could not be used in advertising, but it could still be used in context in the film, when characters address each other by name for example. A good example of this is the old computer game Star Control 2:The Ur-quan Masters. The developers of the game recently decided to release the program source code under the GPL and the content of the game itself as shareware (not public domain I believe, but I could be wrong). The developers own the copyright to the game, but not the trademark ‘star control’, and therefore this re-release can only legally be called by the subtitle. The phrase ‘star control’ still exists in the game, in the context that this refers to a specific organization within the game fiction, but the trademarked phrase is never used to refer to the product itself. I believe that Mickey Mouse would exist in exactly the same situation. After akk, Disney’s trademark protection does not prevent discussion of Mickey Mouse today, only commercial use of the name for brand identification and advertising.

    On an unrelated topic, I’m afraid I can’t resist nitpicking this quote from adamsj above me – “Dick was in failing health and not doing well financially, but he told them (probably politely) to stuff it, and took instead a not-unreasonable $25,000 for a re-release of the original novel.”

    As far as I remember from all the reading I’ve done about Dick’s life, he was actually rather well off the last few years of his life (at least solidly comfortable, which was a huge step up for him). Also, despite the fact that he happened to die shortly after he thought he was in good health.

  • Mike Weisman

    Dear Mr. T. Jefferson;

    I would like to offer my personal congratulations to you today on the passage of the new Copyright Act in the Congress. Your new legislation sets the copyright term at 14 years, renewable once. This is a salutory acheivement and one that future generations will certainly appreciate and honor.
    The Act will offer authors a fair chance to profit from their works. As an working author yourself, I know you are familiar with the difficulties of obtaining reasonable compensation for an endeavor.
    When you consider, Mr. Jefferson, that the copyright period could be as long as 28 years, it is nearly the entire working lifetime of the author. Certainly, this is more than fair, for what dignified man could wish for mere money after he has departed this Earthly domain. Public appreciation and the honor of imitation are the complements accruing the best of intellectual ancestors, after all. Would Shakespeare, Pliny, or Homer deny us access to their estate over a few gold coins?

    Your obediant correspondent,

    Adams

  • Ward

    The economist article we should focus on is the recent one about Hernando DeSoto and his ideas about bringing property rights from the informal to the formal economy. I wonder if the 3rd world will wind up teaching the 1st some new things about property rights.

  • Michael

    Can someone explain something to me?

    The Sonny Bono copyright extension act passed via a voice vote. I called my congressman to see where he stood on that issue, Frank Wolf (R) Virginia. He posts all his votes online, but since it was a voice vote, no record was taken.

    One of his aides called me back today. He said voice votes only occur in the House with unanimous consent. Not a single congressman stood up to say “No, we are going to have a roll call vote.” The aide says this only occurs when there really isn’t any opposition.

    I may not watch C-SPAN 24/7, but I tend to have to agree with the aide. The opposition, even in defeat, always wants the votes to be for the record, so they have issues to run on.

    Does this mean that all this talk in the Economist, and other websites is really just a dead issue, because NOBODY in Congress is even listening?

    I’d appreciate your comments.

    Michael

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

    I wanted to address in some more detail some of Anonymous Writer’s comments against the notion of an annual copyright tax in this and subsequent posts. All these issues indirectly get at why the Economist’s proposal is too little, too late. I think these sort of pulls together my other comments on this blog and elsewhere into a somewhat reasoned position (thanks for the inspiration, Mr./Ms. Anonymous). So, the following posts address points direct or implicit in the critique and the quoted parts are those from Anonymous Writer.

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

    > [An annual tax on copyrights] would also be a nightmare to administer.

    Network Solutions and other registrars administer domain names which can be renewed annually. I see no reason the technical implementation of annual taxation on copyrights would require significantly more that this sort of effort. If initial registration also required submitting a digital copy of the work, then for music or movies I could see the need for a larger infrastructure, but there is nothing required that is not in principle doable, especially as hardware prices and bandwidth prices continue to fall. The GUI software over the web is trivial and the hardware server farms are quite doable. The hardest part is the back end dealing with re-authentication, lost passwords, lawsuit related ownership change requests, and so fort — sort of like Department of Motor Vehicles type problems. It would end up looking like network solutions (or one of the more responsive registrars — e.g. Tucows, Pairnic). On the plus side, one could add on licensing features as a middleman (perhaps cutting out publishers?) which could raise a few billion by skimming a percentage of such (compulsory?) licensing transactions. Since I can point to a profit center, perhaps someone can raise a few billions through an IPO and then like Disney and RIAA and MPAA essentially buy favorable laws to make this copyright registering and tax payment accepting company profitable as government’s sole vendor. However, I’d rather see government run this critical function though considering the Network Solutions cautionary example and that it would be another monopoly.

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

    > You can no more calculate the value of a copyright than you can
    > calculate the value of a lottery ticket before the drawing.
    > Something that is essentially worthless today can be worth
    > millions tomorrow, or vice versa.

    You have a good point that publishers (but not necessarily by desire writers) treat copyrights now often like lottery tickets and as such it makes each one difficult to value by them. I am resistant to the notion that a group of copyrights could be aggregated in value for taxation purposes, because that might lead to a publisher aggregating all their works at a smaller total value with the expectation no one could raise the total amount to buy them into the public domain, and so the works would be under-appraised (although possibly at risk of not earning enough if bought out as a group). One of the issues here is the implicit notion that the publisher is doing the valuing and they don’t really care in detail about the work — they just want to back one of the rapidly growing winners they catch in their nets. I think an art or science of evaluating the cost of keeping a copyright out of the public domain would evolve. Remember, each year the value could be reappraised. And I might point out, that if copyrights are lottery tickets, then perhaps something is wrong with the system. By implication then, the only people who could afford to produce copyrights based on a notion of expected return would have to be large publishers, who spread the risk across many many tickets. This implies centralization of publishing, and is to an extent what we have now in the book publishing and record publishing world. However, part of the reason for this feast or famine situation is also that these large publishers only promote a very small number of copyrights to any large degree — effectively creating brands around a book or CD by massive advertising or payola. By forcing rights holders to think deeply about the value of each copyright, the public might be better served by niche works having a reasonable but not extreme value, and this might translate into differing business practices by publishers allowing more artists to make a decent living, vs. the star/starvation system we now have for artists.

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

    > Keep in mind that such a tax would merely be a cost of business
    > to big corporations, passed along to the consumer (in increased
    > prices, like all business taxes), but would cripple small,
    > independent creators. (In other words, it would strengthen
    > the stranglehold big corporations already have on creative
    > artists.)

    I agree with the first part of this, but not the second. First, implicit in your statement is the notion that small independent creators are for profit. Yet clearly the vast majority of novelists, musicians, and other sorts of artists are not making a living at it. Really, are there more than 1000 such people in the U.S. who make a full time living at this (without supplementing it with teaching, performing, bar-tending, and so on)? The millions of U.S. citizens who do not make a living at art and yet wish to create would greatly benefit by the enlarged public domain which they could then draw from. As to the 1000 or so full time artists in the U.S., it might or might not benefit them, depending on how the publishing industry changed. Since more and more people are able and willing to buy directly over the internet, these people might actually benefit more from such a system. They could price their own works based on their expectations of income, and if their fans bought the works out into the public domain, they would still be making money directly.

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

    > Also, I think you’re grossly overestimating the costs of copyright
    > to society.

    For about the last ten years, copyright violation in the U.S. has been a criminal act, starting for around copying $1000 of retail valued materials (say, 100 CDs, or distributing 1 CD to 100 people). So, there are already millions of such criminals in the U.S. The statute of limitations is a few years. These people can be put in prison for several years and directly exposed to the risk of death from prison rape by those with AIDS. So, essentially, you risk execution by using Kaaza, just as you risk execution for marijuana use. Consider that RIAA just won a suit forcing Verizon to disclose the identity of a Kaaza user. Copyright will need a huge enforcement similar to the scope of the war on drugs given the ease of making copies on the internet. That enforcement effort will have a high cost which someone will need to pay. If it is the average tax payer, then it is a subsidy to copyright holders.

    As for costs, admittedly estimating an annual cost of a full blown war on copyright sharers is speculative — so my $40 billion or so annual estimate for incarceration may be off depending on how many young people need to be locked up for long sentences. But it is a place to start, since the war on drugs is a somewhat similar situation — essentially a decision to restrict something many people want wisely or not. Granted, songs are not as addictive, but studies show only a small percentage of casual drug users are addicts, and the personal and social damage done by listening to music or watching videos or reading novels is much less than that done by drugs. So I think in balance, it is reasonable to assume the scales of incarceration and related costs needed to deter either behavior are similar.

    Some pundits think the collapse of the stock market was related to the successful lawsuit against Napster limiting how consumers could share works as fair use, and so it is possible the cost of strong copyright is actually the recent four trillion dollar or so loss there. So from this perspective, RIAA, MPAA, Disney, and others have many trillions of dollars in direct costs to answer for already. Presumably these organizations or their constituent members will recoup some of this money in increased revenues now. An annual copyright tax would recapture some of these windfall profits directly, sort of like the windfall profit tax on oil was judged fair during the 1970s oil crisis.

    Another long term cost of copyright is the use of the U.S.military (just like the approaching $200+ billion dollar War on Iraq is a subsidy to the oil industry.) Historically, a developing country such as the U.S. 100 years ago has ignored foreign copyrights and patents. In fact, the U.S. manufacturing base rests on the fruits of industrial espionage a hundred or so years ago to steal secrets of textile mill construction England did not want to share, just like English silk production rests on the theft of the silk worm from China (some were smuggled out in a hollow walking cane). Given this history, and the fact that the U.S. holds a bulk of copyrights and patents, it is a possible step to see the U.S. military being used to force other developing countries to use U.S. copyrights and patents even against their national interests. It’s completely ironic, but then again many Europeans laughed at American’s talking about freedom in 1776 when the country was largely based on the African slave trade (which it retained for 100 years, only ended by a bloody brother-vs-brother civil war).
    My point is that these fundamental inconsistencies (consistent only with a trend for those holding monopolies to defend them) point to turbulent times ahead if attitudes don’t change in such a way as to allow the world’s economy to transcend to a post-scarcity society.

    From: http://www.trimtab.com/buckybio.html
    “The Dark Ages still reign over all humanity, and the depth and persistence of this domination are only now becoming clear. This Dark Ages prison has no steel bars, chains, or locks. Instead, it is locked by misorientation and built of misinformation. Caught up in a plethora of conditioned reflexes and driven by the human ego, both warden and prisoner attempt meagerly to compete with God. All are intractably skeptical [of] what they do not understand. We are powerfully imprisoned in these Dark Ages simply by the terms in which we have been conditioned to think.”
    - R. Buckminster Fuller, from “Cosmography” (MacMillan, 1932)

    A deeper question to ask is why don’t you (or anyone else) have at your fingertips estimates from economists about the costs of copyright monopolies? Part of it is that it is difficult to estimate the value of all the derived works never made or individuals never benefited (at no loss to the rights holder) because of the chilling effects. The rest of answer is — this is a part of the deal copyright holders don’t want the general public to think about, just like the oil industry doesn’t want people to think about the routine oil losses from oil tankers which are something like ten times the Exxon Valdez spill every year, or the related environmental risks from releasing so much carbon in the air. My point — these are external costs of a way of doing business, and they need to be determined and factored into the economic equation somehow if our economic system is to have a fair enough bargain underneath it to be worthy of support.

    Look, there are lots of situations in our society where external costs are passed on to the public because of commercial practices (often due to quasi-monopolies). Some other examples are the environmental cost of the oil industry (carbon releases, oil spills), the defense costs of the oil industry (oil would be at something like $100+ per barrel of the U.S. military cost of defending the Persian Gulf was factored in). disaster risks of large scale centralized nuclear power (insured by the government since no one else will), the health cost of the chemical agricultural industry (soil fertility loss, health impacts of pesticides on consumers and farmers, creating “super bugs” through widespread antibiotic use in animal feed), and so on. Alternatives exist to these systems (wind power, solar, home insulation, 10X more efficient refrigerators, organic agriculture) but they have trouble competing because the playing field is not level. If you ask a solar pioneer for example what they want — in general it is not for a subsidy for themselves, but it is to see the oil and nuclear industries lose their trillion dollars in subsidies (from tax credits, direct grants, depletion allowances, cheap use of public lands, and so on). Rather than outright prohibition, all these issues can be addressed by taxes — a tax on oil in relation to these damages, a tax on nuclear proportional to the disaster risk, a tax on conventional agriculture relative to the increased health risk from an antibiotic resistant super bug, etc. Now the fact that there are so many of these unreimbursed external costs for so long shows that there is something fundamentally broken in our legislative process — but that’s a deeper, more general issue about the U.S.

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

    > Costs of DRM would be born by the publishers, who pay
    > for the software or service (and pass along those costs to the
    > consumer).

    This annual taxation proposal has nothing directly to do with Digital Rights Management, which in general I think is detrimental to publishers in the long term (it has already failed for software in the past as consumers resist it).

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

    > Enforcement costs would be comparable to those incurred
    > when someone reports online fraud or harassment, and it’s hardly
    > clear that, say, the credit card industry or ISPs should be forced
    > to bear those costs.

    Fraud and harassment have always been with us since Ancient Egyptian times and earlier. But granted to the extent the internet changes the ease of doing these — one should look at it. Certainly credit card and credit reporting agencies could be charged by the government for not using better security (which they know how to do), in the same way the government has sued tobacco companies successfully. Consumer Identity theft is essentially an external cost of the way that banks and credit reporting agencies have chosen to do business, so perhaps you have put your finger on a consumer class action suit waiting to happen. I don’t think it fair to place the burden on ISPs anymore than the burden should fall on telephone companies or the U.S. postal service (or restaurants where people meet face to face and do business). However, banks and credit reporting agencies that for example use a social security number instead of a PIN or other key to authenticate a user (as opposed to uniquely identifying them with it) should in my opinion be held liable for the consequences of such a silly approach (since you can’t change your SSN easily and it is a matter of public record in numerous places). Copyright is a relatively new invention in the last few hundred years — so I would think the burden of proof and cost should rest directly on it and rights holders.

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

    > I think what’s needed in this discussion is to focus on what we
    > really want to accomplish, and what is attainable.

    I would agree in general with this sentiment, but in my opinion the system is so far out of place and the entrenched interests have so much money to fight this, and have been doing for so long to shape the debate, that even the smallest effort will be a huge battle. So I think one should go for something big to make the battle worth the effort — thus the suggestion of an annual tax. Such taxes (like the “Carbon Tax”) are often proposed as a free market way to adjust for external costs as opposed to regulation.

    > [Good suggestion snipped to insure that copyrighted works are available.]

    A good start. It might be nice to add compulsory licensing for redistribution and for derived works as well (although again, the issue arises then of how much to to charge for a license based on how much the work is thought to be worth…)

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

    > How many of us are really dying to make use of Mickey Mouse?

    While I personally don’t care much for Micky (people have documented how he is essentially derivative of Buster Keaton and Steamboat Bill, who I prefer) the deeper point is that cultural icons need to be evolvable by the culture. Still, there is a general issue of rewarding people who create worlds of characters as opposed to letting them have total monopoly control forever of this virtual world they have invited others into — I think this issue needs to be thought about more, and ultimately may be one more of morality than commerce.

    > Very few, I would suspect, and even having _Steamboat Willie_ lapse
    > into the public domain would not accomplish that goal, since
    > Mickey and most other iconic creations are protected by trademark.
    > You couldn’t produce new Mickey Mouse cartoons, incorporate the
    > character into stories or comics, or anything else other than
    > reproducing the original cartoon or stills from it.
    > The whole new-use argument is greatly exaggerated.

    There is a post above by Roy Berman talking about this trademark point. While I agree with their sentiment, I have to agree in practice you are probably right as far as trademark law is currently being broadly interpreted. However, there are legal scholars who will state this interpretation is too broad. Perhaps a new law is needed to address this overstepping of the judiciary. Essentially, trademarks are supposed to prevent confusion in the marketplace, and are supposed to therefore be like adjectives. So a Micky Mouse(TM) watch is a good use of Micky Mouse as a trademark (distinguishing it say from a Timex watch). But when terms come into common use and are used like nouns, then generally the trademark is weakened or lost– like on Kleenex, Escalator, or Xerox. Micky Mouse and other characters are widely used as nouns. So to generalize on that, I feel content should not be trademarkable — only its brand descriptor. However, to repeat, it seems like the current rulings seem supportive of your position — although some new law may still be being made in relation to the bounds of fan fiction sites. By the way, I was in a store the other day and looked at a Disney Character fishing rod and they used a (C) after the name (was either Micky or Goofy), not an (r) — so perhaps Disney’s threat would be hollow in the end and it knows it?

    > I also think that it’s reasonable to differentiate between absentee
    > copyright holders and careful stewards such as Disney.
    > People and companies who have built businesses around their
    > creations deserve added consideration. _Steamboat Willie_
    > would be long forgotten and essentially worthless if Disney
    > hadn’t carefully built on it over all the years since its release.

    I agree with the notion of differentiating the two, but the fact remains that copyright is a bargain — not a natural property right. And the bargain is the work goes into the public domain in a limited time, whether it is still profitably exploitable or not. Disney should have planned for this by continually innovating — which is another consequence of properly constructed copyright. With short durations for patents, companies dealing in them often really do keep innovating.

    Disney however can always still have Disney trademarked versions of Micky Mouse, so that when you see the Disney Brand version of something you know what you are getting (good or bad) just like when you go to see Disney’s Snow White you know what to expect (even if there were similar offerings by other vendors).

    For a contrast, look at Red Hat’s business model — it lets pretty much all its works be redistributed but it has focused on creating a brand identity. The presumption is when you get your Linux software directly from Red Hat, you know what to expect.

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

    This AEI-Brookings Joint Center for Regulatory Studies article by Mark S. Nadel is also relevant to showing why the Economist’s proposal is “too little, too late” for the internet age.

    http://www.aei.brookings.org/publications/abstract.php?pid=302

    From the abstract: “This article questions the economic justification for copyright law�s prohibition against unauthorized copying. Building on the thesis of Stephen Breyer�s 1970 Harvard Law Review article, “The Uneasy Case for Copyright,” it contends that not only may copyright law�s prohibition against unauthorized copying (17 U.S.C. �106) not be necessary to stimulate an optimal level of new creations, but that �106 appears to have a net negative effect on such output! It observes that the higher revenues that �106 generates for popular creations are, in the lottery-like entertainment markets, generally used for promotional efforts (rent seeking), and that such marketing crowds out many borderline creations. The article also identifies and explains how new technologies and social norms provide many viable business models for financing new creations relying on only a heavily abridged version of �106. Hence, the article questions whether the current �106 could survive the intermediate scrutiny standards of the First Amendment, given the lack of evidence that the benefits of �106 exceed its costs.”

    This is a fantastic paper. It is full of references and numbers — a lot of hard work and scholarship obviously went into it.

    Perhaps Lawrence Lessig might consider a top level blog topic about this paper?

    [Credit: I just saw this link in a comment posted by __billy blaze__ to a copyright reform mailing list hosted at infoAnarchy.]

  • http://www.babyblog.com BabyBlog

    This is all just talk. If anyone thinks that copyright / trademark laws will reverse the current trend, look at the historical data.

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

    Thanks for reading!

    Personally, I agree these are just words, although it has been said the pen is mightier than the sword. Part of writing on this topic for me and others is to think through how the internet has changed our society, and given that, to direct daylight onto the dark self-serving myths surrounding copyright. Hopefully, and eventually, this will make visible for all to see the self-serving and often flawed assumptions underneath the copyright system (especially given digital technology and Moore’s law). This exploration of the mythology surrounding copyright hopefully shows how the current copyright laws reflect a certain current social configuration of priviledge (e.g. who has capital now, who pays the costs vs. who gets the benefits), and hopefully refutes the implicit notion that copyright is a social absolute which is the only reasonable way to foster creativity and wealth and the public good. Such is the foundation for thinking through in what directions progress is possible, as well as which of these directions various individuals should pursue according to their interests and ideals.

    Still, I agree it is unlikely those with priviledge in the current system (RIAA, MPAA, successful authors, Disney, Microsoft) are going to easily give it up. The non-violent and legal options I see are:
    * persuading those with such priviledge to give it up voluntary by changing the law (unlikely, as you imply), [the closest example I can think of (with a directly far crueler aspect than copyright, admittedly) was that the continual strengthening of laws supporting the "natural rights" of U.S. citizens to hold "property" (i.e. slaves) over a period of decades through legislation and court rulings in the U.S., until the Fugitive Slave Act
    http://www.yale.edu/lawweb/avalon/fugitive.htm
    -- making third parties liable (fines, imprisonment) for helping escaped slaves -- was essentially the last straw leading a decade or so later to a bloody civil war]
    * donating works under free licenses (more likely), or
    * encouraging volunteer creators to work within the rules of the current system to move it to another configuration by making more free works (most likely).
    For me, I have concluded to spend more time making free works under the current rules, in hopes of helping society transcend the system. Yet, I think a small amount of time spent writing on these issues may have a beneficial effect.

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

    Trying to inject a few more facts into my position:

    According to:
    http://members.aol.com/nancyds/wlot1.html#top
    “According to a national survey [National Writers Union American Writers' Survey] of 1,143 writers working in seven genres, experienced writers work long hours, are highly educated, yet their median income from freelancing totals only $4,000 a year.”

    So I think this supports my position that most writers either don’t get paid (and so are probably not in the survey because it only looked at members of the National Writers Union and some other categories presuming career-ish writers) or that if they are paid, they fall in the $5K per yier tier (where given almost every writers predilection to read or consume media, they come out behind on copyright). Still looking for hard numbers on total numbers of writers in the U.S. yet.

    When rereading my comments above, I realized where I wrote:
    “This all assumes a system that rewards talent by grants”
    I should in retrospect have written:
    “This all assumes a system that enables talent by grants”.

    Presumably as a matter of public policy a society should not be “rewarding” talent (to the extent it is not a function of a virtue like sustained hard work). Rather, a society should be “enabling” talent to meet society’s unmet needs (to paraphrase WIlliam C. Norris).

  • http://www.ms.lt Anonymous

    I just want to say check this out
    http://www.reversible.org/ThisPostIsPublicDomain

  • http://www.ms.lt Andrius Kulikauskas
  • Anonymous

    Is this blog still on or was it just about Eldred hype?

  • http://home.uchicago.edu/~kldavis Karl

    Give the man a break…he was in Japan for 3 months, then came back to a whirlwind tour across most of American and parts of Europe, which ended only days before a conference that he was hosting. I don’t think the Blog is/should be his highest priority.

    -kd