Comments on: the radicals at the economist http://www.lessig.org/2003/01/the-radicals-at-the-economist/ Blog, news, books Mon, 06 Feb 2017 08:31:00 +0000 hourly 1 http://wordpress.org/?v=3.8.2 By: Karl http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26661 Thu, 06 Mar 2003 18:48:16 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26661 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

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By: Anonymous http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26660 Thu, 06 Mar 2003 15:21:35 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26660 Is this blog still on or was it just about Eldred hype?

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By: Andrius Kulikauskas http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26659 Sat, 15 Feb 2003 11:38:33 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26659 OK, check this out:
http://www.reversible.org/ThisPostIsPublicDomain

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By: Anonymous http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26658 Sat, 15 Feb 2003 11:24:21 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26658 I just want to say check this out
http://www.reversible.org/ThisPostIsPublicDomain

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By: Paul Fernhout http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26657 Sat, 08 Feb 2003 21:23:24 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26657 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).

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By: Paul Fernhout http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26656 Sat, 08 Feb 2003 17:20:58 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26656 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.

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By: BabyBlog http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26655 Fri, 07 Feb 2003 10:03:34 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26655 This is all just talk. If anyone thinks that copyright / trademark laws will reverse the current trend, look at the historical data.

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By: Paul Fernhout http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26654 Thu, 06 Feb 2003 12:20:04 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26654 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.]

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By: Paul Fernhout http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26653 Wed, 05 Feb 2003 13:37:28 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26653 > 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.

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By: Paul Fernhout http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26652 Wed, 05 Feb 2003 13:35:03 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26652 > 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…)

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By: Paul Fernhout http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26651 Wed, 05 Feb 2003 13:34:02 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26651 > 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.

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By: Paul Fernhout http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26650 Wed, 05 Feb 2003 13:32:53 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26650 > 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).

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By: Paul Fernhout http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26649 Wed, 05 Feb 2003 13:31:27 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26649 > 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.

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By: Paul Fernhout http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26648 Wed, 05 Feb 2003 13:23:37 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26648 > 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.

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By: Paul Fernhout http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26647 Wed, 05 Feb 2003 13:22:27 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26647 > 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.

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By: Paul Fernhout http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26646 Wed, 05 Feb 2003 13:21:13 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26646 > [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.

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By: Paul Fernhout http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26645 Wed, 05 Feb 2003 13:18:44 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26645 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.

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By: Michael http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26644 Tue, 04 Feb 2003 16:00:46 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26644 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

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By: Ward http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26643 Mon, 03 Feb 2003 19:00:32 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26643 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.

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By: Mike Weisman http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26642 Mon, 03 Feb 2003 16:55:28 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26642 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

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By: Roy Berman http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26641 Sun, 02 Feb 2003 15:34:17 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26641 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.

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By: Anonymous http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26640 Fri, 31 Jan 2003 12:46:47 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26640 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.

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By: Karl http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26639 Tue, 28 Jan 2003 23:42:14 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26639 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

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By: jason watkins http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26638 Mon, 27 Jan 2003 05:36:14 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26638 >>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.

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By: phr http://www.lessig.org/2003/01/the-radicals-at-the-economist/#comment-26637 Sun, 26 Jan 2003 19:06:45 +0000 http://lessig.org/blog/2003/01/the_radicals_at_the_economist.html#comment-26637 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.

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