March 7, 2006  ·  Lessig

I feel like one. Here’s the text of a letter I’ve sent to Congresswoman Lofgren and Congressman Boucher — the two key leaders on all things good re copyright in Congress — about the Copyright Office’s Orphan Works Report. No one will like me for this letter.

  • Joe Buck

    I’m with you except for your idea of many competing registries. The market and competition doesn’t make everything better. Better to have one place to look.

  • three blind mice

    except for the arguments in favor of rolling back the copyright term to its agrarian dimensions, it seems to us that disney should rather like professor lessig’s letter. they stand to gain as much as anyone else from the land grab that the professor’s suggestions would create. disney would, in all likelihood, be one of the sooners.

    registration and maintanence is not much of a problem for big companies. they just hire another lawyer and give her a pencil and some paper.

    but for individual authors and artists – and more importantly their decendants – who have no expertise in copyright law, who do not have the deep pockets of a corporation, the requirement for registration and maintenence is an unconscienable burden.

    professor lessig’s proposal amounts to the corporate and public confiscation of private property without compensation and a due process that is affirmative on the property owner only.

    *mices’ libertarian blood boils*

    by suggesting that there might be competing registries, professor lessig appears to give a nod to the organising efficiency of the market, but it is just the vermouth of market inspiration added to the gin of a proposal which is profoundly hostile to a competing market for expression. a commons-martini: it leaves the artists shaken and disney not stirred.

  • http://www.viscix.net Pablo

    I liked it up until you insisted on “many private, competing registries.” Market fundamentalism isn’t much of an improvement on any other kind of fundamentalism (ghettos and monopolies still exist), and the practical fact is that privatizing everything isn’t always a good idea.

    I’d be sorely tempted to just keep the current system and take advantage of CC licenses rather than have to go shopping and have new risks and unhelpful choices to make when I’m ready to hold on to some of my own copyrights.

    If you want to allow that private registries could exist, but still maintain the option of a citizen dealing directly with the copyright office and filling out some simple paperwork I wouldn’t mind, but don’t force me to use yet another private company. There are services you can use to help you file your taxes too. They don’t bother me because I can still do my own.

  • Josh Stratton

    Mice–
    but for individual authors and artists – and more importantly their decendants – who have no expertise in copyright law, who do not have the deep pockets of a corporation, the requirement for registration and maintenence is an unconscienable burden.

    Piffle.

    The burden of getting a driver’s license, or registering a car, and renewing both of them periodically are significantly higher burdens. But the vast majority of people in the country seem to be capable of it, and aside from having to wait in line (which isn’t an issue with copyright) no one seems to have a problem with it.

    Getting a copyright is a business decision, and whether you’re a multinational business or an author as sole proprietor, copyrights should be approached with a proper, serious attitude. Your argument is basically that authors are imbiciles that can’t see to their own interests, and who can’t fill out paperwork where one of the harder questions is ‘what is your name?’ You seem quite paternalistic for someone who claims to have libertarian blood.

    I don’t think that hurdles of this sort should be at all difficult for anyone to overcome. However, they should be there, since they serve an essential function in separating authors who care about copyright enough to invest trivial effort in getting one, from those authors who don’t care and can safely be treated as not needing a copyright (so that we don’t have to give them one unnecessarily).

    Copyrights are a subsidy. Indiscriminately giving it out is terribly wasteful. Especially since we could limit who gets it by requiring what amounts to a token investment for anyone. It reduces the cost (in copyrights) to the public, but still gets the subsidies to pretty much everyone we want to subsidize. Remind me: when did giving away public resources left and right, to people who don’t even lift a finger, became a libertarian ideal?

    All this said, I don’t care for the letter either. You think that Prof. Lessig goes too far. I don’t think he goes too far enough. I’d prefer to keep things within the Copyright Office, but to require all copyright applicants to comply with formalities, including applying for a copyright at or around publication, and renewing it every few years, and still having the term end way, way, sooner than we have now (or 50 years). It shouldn’t be hard — let there be informational campaigns so that authors and authorial organizations know how things work — and let there be more support for doing things over the Internet (though deposit will remain tricky) — but it should require authors to lift a finger on their own behalf. It doesn’t need to be more, since so many authors won’t even do that.

  • http://poptones.f2o.org poptones

    I see substantial merit in the idea so long ownership is, as mice put it, affirmative on the copyright owner only. Frankly I this this entire idea substantially reeks of the copyright system of Poland wherein ownership of all copyrighted works reverts to the state, essentially then giving the state ubiquitous power to then decide which “re-expressions” of older works are permissible and which are not. There are substantial differnces here with that system, but in the end it seems the greatest net difference is that the state would have no authority (barring existing unconstitutional and future potential and equally unconstitutional) censorship laws regarding creative expressions (ie censorship on “art” and not censorship regarding matters of security or libelous slander) to restrict reuse whereas Polands system pretty much implictly grants such restrictions from the instant copyright is recognized by the state.

    I strongly urge the kind prof to consider the merit of laws which foster new expressions which might be unburdened by the narrow thinking of old regimes. Usurping existing copyright protections undermines that goal in that it encourages mere reuse of existing works rather than fostering new creative expressions of those old ideas. This provides greater incentive for aspiring new artists to more freely share their work while simultaneously lending them greater ability to compete with the works owned by that old regime: it provides two avenues of securing reward for culturally responsible works while discouraging the further spread throughout our culture of what might very legitimately be equated to a “cultural pollution.”

    I like the idea of multiple competing registries, but I think the methods proposed put the cart before the horse: those same technologies that would make maintenance of registration info relatively trivial in cost also provide the potential of undermining any such need. For example, a universal and free standard for embedding ownership data in a file would completely remove much of the need for the registry: if I download an ebook and wish to locate the author, the author’s ID information could be encoded in the file itself. The ‘tracking” system needed to support such a registry is then external to copyright entirely; the same service would be equally useful to email and phone contact info – that is, a registry wherein the owner is able to regularly update an “identity token” that links others to their present contact information.

    In this way, I really believe the system will take care of itself without any new legislation. Hollywood is driving the market toward more comprehensive DRM (like it or not) and once DRM wrappers have become relatively standardized and use is available to anyone free of royalty or restriction (a notion that might well be worthy of legislative protection) then a competing system of “ubiquitous registries” to help authors maintain such credential will inevitably arise – just as many email providers already offer, for a flate rate or long term low cost licensing fee, “lifetime” email accounts.

    But even in such a system as proposed, fourteen years, I think, is far too short. I have many usenet posts that will soon be fourteen years old and many are every bit as relevant today as they were when I first wrote them because they provide scientific information regarding use of a technology (vacuum tubes) that was already archaic at the time I wrote them. Many enthusiasts today, like those of a decade ago, practice their audiphile craft using this technology, therefore those writings are still representative of the cultural and scientific state of the art. While I would have no problem with someone re-expressing the information provided by those old writings in their own voice and binding them in a book, I would very much not like those old posts simply copied and pasted and offered for sale or license in so-called “new expressions” – mostly because they reflect my “undeveloped” ability for written communication. I would not want that work bound in paper and sitting on a shelf… it’s bad enough for me knowing they’re still in the google archive and ftp newsgroup archives across the world.

    I am not dead, and I feel those old writings, even though they met with enthusiastic response at the time, might hinder my ability to obtain new work – especially if someone saw them bound in pages and sitting on a library shelf. Since I am alive and I still have to eat, why should I not be entitled – like Disney, in their prohibiting republication of Song of the South – to rights to my own speech that help me protect my own professional reputation?

  • http://onlinebooks.library.upenn.edu/ John Mark Ockerbloom

    I for one like the Copyright Office’s proposal, even better than the more complicated proposal I originally submitted to them, for its simplicity. All the various conditions and machinery in Prof. Lessig’s letter impose that many more burdens on both the user and the owner of copyrighted material.

    One’s reaction to the Office’s proposal may depend on how one feels about other parts of copyright law that use simple rather than precise conditions, such as fair use. From what I’ve read of Lessig’s writing, he’s more pessimistic about fair use than I am. But I see fair use as basically working, though not as well in some areas as others, and much preferable to the more precise and inflexible alternatives embodied in other regimes (such as DRM gatekeeping).

    But I think there’s a useful common ground here: if you think that registries are the solution, particularly if you’re willing to entertain multiple and private registries, then why not just go ahead and create one, without waiting for Congress to act? Initially it could just be a voluntary registry of contact information, in ancticipation of an Orphan Works proposal passing. If the registry system were in place, and worked well, *that* could become a de-facto clearinghouse for locating copyright holders, and thus provide brighter lines for copyright users and holders, as well as making it harder for works to become “orphaned” in the first place.

    (I’m aware a few such registries are already in existence in certain areas, but none of them have the scale and scope of what Prof. Lessig proposes, as far as I’m aware.)

    And if appropriate, the system could become part of de jure copyright procedure as well once its value was clear. But I’m wary about trading a simple, if not perfect, improvement on copyright law for an alternative dependent on a system that hasn’t even been built yet, let alone tested.

  • http://poptones.f2o.org poptones

    Josh…
    Remind me: when did giving away public resources left and right, to people who don’t even lift a finger, became a libertarian ideal?

    Never. And an individuals work, time and knowledge is not, and never has been (save for those enlightened times when slavery was culturally acceptable) a “public resource.”

  • Josh Stratton

    Poptones–
    And an individuals work, time and knowledge is not, and never has been (save for those enlightened times when slavery was culturally acceptable) a “public resource.”

    I agree. But that’s a non sequitur. The public resource I was talking about is the copyright itself. Copyrights are monopolies, impositions on freedom, and a burden which the public ends up shouldering. Such a burden should not have to be borne when it’s not needed.

    Usurping existing copyright protections undermines that goal in that it encourages mere reuse of existing works rather than fostering new creative expressions of those old ideas.

    You make that sound as though it’s a bad thing. Creating new works, creating derivative works (a form of reuse), publishing, and not having works encumbered by copyright more than necessary if at all, are all of equal importance in promoting the progress of science.

    The earlier thread seems to have reached capacity, so I’ll reuse an example I had attempted to post there. If there was only one copy of ‘Love’s Labour’s Won’ in the world, rotting away in an attic somewhere, then science would nevertheless greatly progress if only it could be discovered, reprinted, spread worldwide for everyone to enjoy, allowed to form the basis for derivative works, able to be staged, etc. By no means would it promote the progress of science less than an author who wrote his own version of what he imagined the play to be about.

    Science, as used in the clause, means knowledge. And creating new knowledge is just as important as ensuring that the knowledge survives, spreads to those that want it or need it, and can be used by them.

    Get over the totally silly idea that the only goal of copyright is to get new works created. If that were our goal, you could not explain why we have the public domain requirement in the clause, or why we’ve implemented copyright as we have for centuries. Certainly, it is a goal, and a worthy one. But it’s not the only one, and not the most important.

    Ultimately copyright represents a decision to either 1) get fewer works created but in the public domain sooner, or 2) get more works created but in the public domain later. The goal is to have the most works created in the public domain as soon as possible. The question is which implementation of the options above is better at doing it.

    reward for culturally responsible works while discouraging the further spread throughout our culture of what might very legitimately be equated to a “cultural pollution.”

    This is another problem with your position. You think that copyright policy should involve judgments of artistic merit. It absolutely shouldn’t. The art community, the public, and the market, are all much better at these sorts of decisions than you or the government. So long as a work meets the low, low threshold of copyrightability, the government should not care one iota for whether it is an artistic triumph or banal crap. This is particularly true since such a discriminatory and totally subjective judgment will pretty much inevitably result in chilling treatment (if not actual censorship) for works that those in authority don’t like. IIRC it has been known to happen in the past. Besides, one man’s banal crap is another man’s artistic triumph.

    But even in such a system as proposed, fourteen years, I think, is far too short. I have many usenet posts that will soon be fourteen years old and many are every bit as relevant today as they were when I first wrote them because they provide scientific information regarding use of a technology (vacuum tubes) that was already archaic at the time I wrote them. Many enthusiasts today, like those of a decade ago, practice their audiphile craft using this technology, therefore those writings are still representative of the cultural and scientific state of the art. While I would have no problem with someone re-expressing the information provided by those old writings in their own voice and binding them in a book, I would very much not like those old posts simply copied and pasted and offered for sale or license in so-called “new expressions” – mostly because they reflect my “undeveloped” ability for written communication. I would not want that work bound in paper and sitting on a shelf… it’s bad enough for me knowing they’re still in the google archive and ftp newsgroup archives across the world.

    And here’s the trifecta. Authors should simply not have that much control over their published works. Kafka wanted everything he wrote to be burned upon his death. His wishes were ignored, and the world is better off for it. If he wanted to maintain this level of control, he should have not published.

    Likewise, if you want any level of control beyond publication, I think you should have taken steps at the time to ensure it. If you didn’t care, or at least were unwilling to evidence this care through a token degree of effort, why should anyone else care? And why should you be able to march in long afterward?

    I am not dead, and I feel those old writings, even though they met with enthusiastic response at the time, might hinder my ability to obtain new work – especially if someone saw them bound in pages and sitting on a library shelf. Since I am alive and I still have to eat, why should I not be entitled – like Disney, in their prohibiting republication of Song of the South – to rights to my own speech that help me protect my own professional reputation?

    Your reputation is the bed you made. I think it’s better for people to be well-informed, even if it means they think little of you, than for you to conceal truths you formerly made public so that you can manipulate them for your own benefit. You don’t have a right to a good reputation, after all; just an accurate one. In any event, you’re exaggerating, and forgetting that time heals all wounds. Your old writings are unlikely to harm you precisely because they are old. If you’ve improved since then, that’s what will matter.

  • http://poptones.f2o.org poptones

    And an individuals work, time and knowledge is not, and never has been (save for those enlightened times when slavery was culturally acceptable) a “public resource.”
    .
    I agree. But that’s a non sequitur. The public resource I was talking about is the copyright itself. Copyrights are monopolies, impositions on freedom, and a burden which the public ends up shouldering. Such a burden should not have to be borne when it’s not needed.

    It is needed – in developing countries even moreso than here. Its merit has been proven over centuries. And it is my right to monopolize my work – my time and effort are not yours to command.

    The old copyright regime was a product of a world of expensive communications. It was a product of a time when knowledge was much more limited in scope and potential simply because there was less of it, and fewer new minds to invent more.

    That’s not the case now. Arguing we need less proection on these works simply because it’s easier to undermine existing rights is like arguing we should all be able to traverse the highways at 120MPH simply because so many cars now can attain that speed, or the homeowner’s rights should be usurped because it’s so much easier now just to shoot the existing owner in the head and take over. These are all artifical monopolies that exist because they have recognized social merit. We don’t need more ways to usurp ownership of IP simply because it’s so much easier now to do it. That’s a stupid thesis from the start.

    You make that sound as though it’s a bad thing. Creating new works, creating derivative works (a form of reuse), publishing, and not having works encumbered by copyright more than necessary if at all, are all of equal importance in promoting the progress of science.

    Publishing now is trivial. Communicating those published works across the developed world is now trivial. We need to give incentive to developing nations to bridge that divide and one of the best ways to do that is to point out the value of this technology to every individual. That’s not an easy thing to do when they have greater concerns, like finding food for the family or water that won’t give them a fatal disease.

    The earlier thread seems to have reached capacity, so I’ll reuse an example I had attempted to post there. If there was only one copy of ‘Love’s Labour’s Won’ in the world, rotting away in an attic somewhere, then science would nevertheless greatly progress if only it could be discovered, reprinted, spread worldwide for everyone to enjoy, allowed to form the basis for derivative works, able to be staged, etc. By no means would it promote the progress of science less than an author who wrote his own version of what he imagined the play to be about.

    And in this modern world all it takes for that to happen is the person who finds the work in their attic to scan it and post it to a newsgroup. Bingo, instantly accessible worldwide and available for any sort of reuse – at least until the author chimes in. And if this work has so much value to so many people it is our responsibility to that author to reward them for their positive contributory effort.

    Science, as used in the clause, means knowledge. And creating new knowledge is just as important as ensuring that the knowledge survives, spreads to those that want it or need it, and can be used by them.

    Spreads to those that need it: easy. can be used by them: that’s up to them and if they have a brain capable of logical and/or artistic thought processes they can “reinvent” that work in any form even without quoting it, even in part. There’s plenty of value in allowing them to quote excerpts but there is now zero value (actually, negative value) in allowing anyone to republish the work at their will simply because the barriers to communication in the developed world are now so completely trivially overcome.

    Get over the totally silly idea that the only goal of copyright is to get new works created. If that were our goal, you could not explain why we have the public domain requirement in the clause, or why we’ve implemented copyright as we have for centuries.

    Copyright has not remained unchanged over centuries. Every new technology brings with it new abilities, and some of those abilities always create need for new protections of rights.

    The goal is to have the most works created in the public domain as soon as possible.

    I disagree. That had value when communications and publication costs were high. They’re now trivial, and the laws need to reflect this.

    Donating works to the public is a noble goal and should be encouraged through social means. It is no longer necessary to legislate this ability since that ability is so very easily secured. if you legislate away protections that give incentive to creation of new works the authors and publishers will simply use this same technology to force their will without any need at all for agreement – or they will just find new work and not publish anything at all.

    reward for culturally responsible works while discouraging the further spread throughout our culture of what might very legitimately be equated to a “cultural pollution.”
    .
    This is another problem with your position. You think that copyright policy should involve judgments of artistic merit.

    I’m strongly tempted to revive a tactic from that old thread and simply call you an outright LIAR, but I won’t do that. I will instead ask you to rprovide a single quote where I said anything of the sort. What you quoted above is certainly nothing of the sort – have you not read the other front page articles at this blog? The one on “cultural environmentalism?” If “culture” is something that should be
    freely available to us all to re-express, then “pollution” is ciulture that is NOT available for such use – it is cultural toxic waste in that it allows publishing cartels to profit from their control over the channels of communication while not returning to that culture their fair share. The “pollution” is all those works locked down by corporations who sue anyone and everyone simply because they have more money than you and they can shut you up if they damn well please.

    We are culture. Our culture does not determine who we are, we determine our culture. The twentieth century has created a corporate culture of expression. We need to be freed from this culture of overwhelming corporate creative control. Embracing their creative expressions and repurposing them only helps them preserve that deadlock on our culture. We need to work toward a new culture – one in which rights are respected and those who refuse to play fair are simply left out in the cold. Doing this through legislation has far too many incidental liabilities.

    It is up to us to decide the direction of our culture. We now have the tools to do this – what we need are the financial incentives to make such a culture sustainable without having to revert to a completely socialized physical infrastructure just to keep people fed and clothed and in relatively good health.

    And here’s the trifecta. Authors should simply not have that much control over their published works. Kafka wanted everything he wrote to be burned upon his death. His wishes were ignored, and the world is better off for it. If he wanted to maintain this level of control, he should have not published.

    And here’s the trump card: if you take away the rights of these individuals to profit and even to burn all their works if they want it won’t matter – they’ll simply invent ever increasing obstacles to free exchange of their works and in the end they will be able to destroy all those old works – essentially by throwing a switch. If kafka had only published encrypted ebooks that were locked to the deadman switch on his home publishing tool he very well could have done exactly as you describe. All his works might not have been lost, but most certainly his less popular works would have fallen from public view, perhaps forever.

    Likewise, if you want any level of control beyond publication, I
    think you should have taken steps at the time to ensure it.

    I did. My work is copyrighted and even the deadtree publishers who have quoted it in their magazines contacted me for permission before doing so. Those publishers have the financial infrastructure to support such liability I don’t (and at the rate they pay, never would if I had continued pursuing that line of work).

    Your reputation is the bed you made.

    Except in this world where everything you say, ever, haunts you every time you attain any level of success. I do not embrace many ideals I used to espouse (as I pointed out when I invited you to peruse my old arstechnica postings) and it is my right as a human being to distance myself from those old works. I cna no more silence all talk of my past than can disney reclaim every existing copy of Song of the South – but I can distance my name from those expressions because they are products of my labor and knowledge and you do not have the right to take from me that which I do not give any more than you can put words in my mouth through the barrel of a gun.

  • Josh Stratton

    poptones–
    [Copyright] is needed

    The question to me is, ‘is copyright beneficial?’ If so, and I think that it currently is, then agree that copyright is needed. But we must still figure out how much copyright to have, so as to make sure that it is not only beneficial, but as beneficial as possible. I’m not arguing against copyright, just the wrong amount of copyright, whether it’s too much or too little.

    And it is my right to monopolize my work – my time and effort are not yours to command.

    I agree again. But it has nothing to do with the discussion. Copyright isn’t about labor, it’s about the fruits of labor, when those fruits are out in the world, and what we do with them long after the time and effort are over with.

    If you don’t want to create a work, then I support your decision completely. But once you’ve created the work and published it, why would you imagine that you have a right to command how I spend my time and effort in conjunction with it? That is, any right apart from what I’m willing to grant to you?

    Arguing we need less proection on these works simply because it’s easier to undermine existing rights is like arguing we should all be able to traverse the highways at 120MPH simply because so many cars now can attain that speed

    Maybe you like to spend time in the slow lane, but personally I don’t go in for that ‘journey is the reward’ business. The only reasons against it that I can see are safety and a sort of combined fuel-cost-and-efficiency/environmentalism sort of thing. And those can be good reasons. If they’re good enough, I guess I’ll have to settle for going slower. Likewise with copyright: restrictions on what we can do are bad, unless there is a sufficiently good reason to endure them. But restrictions are never good for their own sake.

    at least until the author chimes in

    With what, a ouija board? ‘Love’s Labour’s Won’ is one of the legendary lost plays of Shakespeare. I chose it because the literary and performing worlds would kill their own grandmas to get copies of it, and there would certainly not be a copyright. It’s a great example of how acts other than creation of original works can promote the progress of science.

    And if this work has so much value to so many people it is our responsibility to that author to reward them for their positive contributory effort.

    No it’s not. Authors aren’t interesting in copyright policy except that works need to be gotten out of them. We do this by bribing them. But if they’ll work for free, it’s better for the frugal public to not give them the bribe.

    can be used by them: that’s up to them and if they have a brain capable of logical and/or artistic thought processes they can “reinvent” that work in any form even without quoting it, even in part.

    That’s not good enough. Copyright isn’t interested in getting ideas to spread. That happens all the time anyway, and mere ideas are a dime a dozen. Expressions are what are wanted.

    Seriously: if you go to the theater, do you want to see a) one guy on stage who says “Boy meets girl. They fall in love. The families won’t hear of it. They try to run off together. But they die, tragically. The end.” or b) an actual performance of Romeo and Juliet. If you actually tried to charge full price for choice a, I think you might end up starting a riot.

    there is now zero value (actually, negative value) in allowing anyone to republish the work at their will

    Utterly false. Republishing works is how they spread to those that want or need them, and we want knowledge to spread as far and as easily as possible. If an author can control publication, he will inevitably miss some people who want copies. And his monopoly guarantees that he will charge monopolistic prices, rather than the marginal cost + minimal profit prices, or free, which also ensure that people who can’t spend much can get copies.

    When the work is spread around, it’s difficult to lose. How many original copies of works from antiquity still exist? The original scrolls used by Sophocles ended up in Alexandria, and burned there. It is only thanks to unrestricted copying that have any of his work. And I assure you, a summary of his lost plays is no substitute for the real thing. The first sefer Torah is long gone, but many exact copies have been made, and copies made from those, and the work is still with us. If we had to rely on Moses to make the copies, we’d be sunk.

    Copyright has not remained unchanged over centuries.

    The central idea has. Technologies are interesting, and might require a response. This response needn’t be hostile. If new technologies can be used to further the goals of copyright, then I’m all for that. Letting everyone have their own personal Library of Congress might turn out to much better for promoting the progress of science than banning such a thing.

    It is no longer necessary to legislate this ability since that ability is so very easily secured.

    So you don’t think that the federal government should obey the Constitution?

    if you legislate away protections that give incentive to creation of new works the authors and publishers will simply use this same technology to force their will without any need at all for agreement – or they will just find new work and not publish anything at all.

    In the former case, they are already doing this despite having unprecedented levels of protection and a rather easy ability to get more. So I don’t see that there is actually a connection. I don’t think that we can appease them, and I think that the cost would be too high, even if we could. I think that the problem should be tackled more directly, and I’ve already discussed my thoughts on the matter, and I’m happy to hear what others have to say about preventing such a dire outcome.

    In the latter case, that’s possible, but since fewer restrictions are valuable too, the issue becomes whether the public gains more by having less creation and less restriction, or more creation and more restriction. People balance harms and benefits all the time. Just because a particular harm is bad doesn’t mean that the same circumstances that gave rise to it cannot also give rise to a benefit such that the good outweighs the bad.

    Losing a lot of authors, if the gain was not much, would be likely be bad, and should be avoided. Losing only a few authors, with a large gain, would likely be good, and should be pursued. I cannot imagine how you can deny this, unless you refuse or are unable to look beyond the immediate circumstances to see the big picture.

    What you quoted above is certainly nothing of the sort – have you not read the other front page articles at this blog? The one on “cultural environmentalism?” If “culture” is something that should be
    freely available to us all to re-express, then “pollution” is ciulture that is NOT available for such use – it is cultural toxic waste in that it allows publishing cartels to profit from their control over the channels of communication while not returning to that culture their fair share. The “pollution” is all those works locked down by corporations who sue anyone and everyone simply because they have more money than you and they can shut you up if they damn well please.

    In that case I’ve misunderstood you, though I don’t think it’s appropriate to think of heavily-encumbered works as being ‘pollution.’ I view them as being more like parcels of land that, while they are being exploited to the benefit of the rights holder, the framework that allows the exploitation to be solely by them is detrimental to everyone else. The needs of the public need to be addressed, and this might result in reducing the degree to which the rights holder can exclusively exploit the work. But I think this still falls into my overall thesis.

    Embracing their creative expressions and repurposing them only helps them preserve that deadlock on our culture.

    Meh. I’d rather break their stranglehold than try to replace cultural works and icons overnight. If nothing else, I think it’s easier.

    We need to work toward a new culture – one in which rights are respected and those who refuse to play fair are simply left out in the cold.

    Fair enough. But I think we ought to look at the level of respect that people have, and craft the rights around that. I don’t think we should decide on an arbitrary set of rights and force people to respect it; not for something as relatively unimportant as copyright. I’ve discussed this before, when talking of cultural norms and using the Prohibition example. Right now, people’s norms seem to involve a lot of piracy. So, since this isn’t an issue where we need to fight against norms, we probably end up legalizing a lot of behavior that’s presently illegal.

    Doing this through legislation has far too many incidental liabilities.

    Weren’t you just criticizing authors and publishers that would force their will? No, I’m firm on the need for a legislative solution.

    if you take away the rights of these individuals to profit and even to burn all their works if they want it won’t matter – they’ll simply invent ever increasing obstacles to free exchange of their works and in the end they will be able to destroy all those old works – essentially by throwing a switch. If kafka had only published encrypted ebooks that were locked to the deadman switch on his home publishing tool he very well could have done exactly as you describe. All his works might not have been lost, but most certainly his less popular works would have fallen from public view, perhaps forever.

    So you’re positing a no-win scenario. Well, it’s possible that that might happen, but I remain optimistic that it can be avoided. In any event, you’re saying that I can either help authors do something I am against, or they’ll do it anyway. If so, I’ll oppose them on this. At least I will avoid having collaborated against myself, and who knows, I might even win. We won’t know unless we try.

    I did. My work is copyrighted

    Yeah, and I didn’t need you tell me that; I can read 302(a) as well as anyone. But would you have copyrighted your Usenet posts if, say, you had been posting under the 1909 Act?

    and it is my right as a human being to distance myself from those old works

    I agree. But covering up the past is no way to go about it. If you want to distance yourself from your history, then denounce what you did in the past that’s got you all a-tizzy. Frankly, I think it speaks well to one’s character to admit to past mistakes, and it shows that you’re able to grow and change as a person. I don’t think that anyone expects people to have been perfect all the time.

  • http://poptones.f2o.org poptones

    Covering up the past is no way to go about it.

    You seem to have again overlooked a large part of my point in your mad desire to sound like you are making a valid argument. I didn’t say “covering up the past” was even possible – I explicitly said that was impossible. I’m not even going to argue with you again on this because you didn’t say anything of sibstance – I’m just going to point out how you tried (again, unsuccessfully) to put words in my mouth.

    Build all the strawmen you like, you’re not going to fool anyone with your effigees.

    Meh. I’d rather break their stranglehold than try to replace cultural works and icons overnight. If nothing else, I think it’s easier.

    Again you show just how misguided you thinking really is. the fastest selling debut album of all time came from a band who built their fame in fucking MySpace! I use expletives not “at you” but simply because I myself am shocked by this most promising sign of future times.

    The “stranglehold” is already weakening. Many bands have even refused major label contracts because they simply don’t need them and they want to retain creative and financial control of their own future.

    So, your thesis is already obsolete. I suggest you invest some of your time in actual research and try again with something that better protects the interests of these artists who are abandoning that archaine system you pretend to be against.

    Authors aren’t interesting in copyright policy except that works need to be gotten out of them. We do this by bribing them. But if they’ll work for free, it’s better for the frugal public to not give them the bribe.

    Only if that “frugal public” is also going to provide them welfare checks while they work for free. Canada has done pretty much that for decades, and in the eighties they had to pass fucking laws just to get Canadian broadcasters to play Canadian artists. A lot of great artists have come from Canada, but ironically the best of those also were not the ones who got the airplay. What got airplay was the crap that mimicked Hollywood. It took years before many people even realized Bryan Adams wasn’t actually John Mellencamp.

    Again, this is stupid and pointless and I am done with you until you can prove yourself capable of logical thought. It’s obvious you’re not even listening to yourself…

    Copyright isn’t interested in getting ideas to spread… Expressions are what are wanted.

    This is exactly the point I have made and you have attempted to refute now more than 100 times. Better still, this second statement outright contradicts your previous statement. Copyright is about getting new expressions but you can’t get new expressions from people when they can’t even feed themselves and pay rent in the same month. You might feel forcing artists to choose between signing away their financial and creative rights to a corporate bully or instead just outright starving just so they can practice their craft is justifiable so long as you get your free mariah carey cds, but I find such an attitude reprehensible and, thankfully, I believe most compassionate individuals would as well.

  • three blind mice

    Getting a copyright is a business decision, and whether you’re a multinational business or an author as sole proprietor, copyrights should be approached with a proper, serious attitude.

    getting a patent – because of the investment required – is a business decision. claiming a copyright is as close to free as it gets. claiming a copyright is not a business decision; enforcing a copyright is a business decision.

    what is at issue is our ability to claim copyright.

    Your argument is basically that authors are imbiciles that can’t see to their own interests, and who can’t fill out paperwork where one of the harder questions is ‘what is your name?’

    not all are imbeciles, but some… we’re thinking songwriters and musicians… certainly are. there should be no literacy test before an artist or author can claim copyright in his or her own work.

    You seem quite paternalistic for someone who claims to have libertarian blood.

    it is perfectly consistent with libertarian views that artsts and authors should enjoy the benefits of title to their property free from harassment of the state (on behalf of public and/or corporate interests ) to deprive him of it.

  • http://shinanos.wordpress.com Shinano

    Come to Tokyo?!
    …hahahaha, that’s nice Larry. Enjoy!

  • http://www.resonant.org/ Zed Pobre

    When I was first reviewing the report, two things immediately stood out to me, one of which Mr. Lessig covered, and one of which he didn’t. The first, which he covered, was the lack of an age limit. That was truly the most critical, since it was the one that would have had the most drastic effect on current productions, and it was covered. I’m relatively happy, except that I would have picked 25 years rather than 14, but that’s just a quibble.

    The second is a little more subtle, and something you probably won’t think of unless you’re a visual artist (or to a lesser extent perhaps a musician), is that visual and audio works are basically unsearchable without existing attribution. This is a major issue for photographers, for instance, who are rarely credited anyplace obvious when their works are licensed for use in another publication, and in any case often find their works completely severed from that publication in the form of removed pages or clippings or digital scans. Cartoonists and other artists have similar problems unless they become famous enough to be instantly recognized, and I’m told that it’s possible for musicians to have similar problems (e.g. in advertising jingles), though more rarely. This means that without some technical means to search on whatever image or sound clip is found, works by small artists will become de-facto “orphan works” as soon as the minimum period elapses even if those artists are registering their works with the Copyright Office with their current address and answering mail in a timely fashion.

    This makes a decent minimum age quite essential and invites some thought as to how to best protect the interests of small artists in the long run, whether it is by further rules about crediting artists (potentially unfeasible in the case of stock photography and perhaps in other cases as well) or a technological measure making it easier to search for similar works.

  • http://poptones.f2o.org poptones

    A good point, zed, and one of the first issues raised at the hearings on this matter. Being a lowly dialup user I have yet to get all the way through that broadcast, but knowing about the technical matters I don’t think it’s at all insurmountable. Digital signal processing of wavelets – a sort of means of dividing a file down into its “waveform dna” already makes possible searching of audiovisual materials. There is even at least one desktop imaging library in the linux realm which uses wavelet theory in its search algorithm to allow the user to scribble in a small panel the basic outline of an image and then s4earch for other known images which contain those drawn elements.

    For example, you might draw a primitive bus from a certain angle, and the search will return for you all images which contain in them a bus from that angle. Likewise there are sound search services wherein a user can even whistle or hum a few notes to a song and similar songs be identified based on these clues.

    These search services are computationally fairly expensive, but Moor’s law will see to it they become less so over time. And if there were such a lucrative market for such this type of search you can be sure many big players – Google being the most obvious that comes to mind – would invest considerable resources toward refining that technoology and making it widely accessible. Overall I think that might be a good thing for the state of the art… although I still have considerable reservations to the fundamental concept here of weakening essential copyright protections.

  • three blind mice

    poptones on dialup. we never would have guessed it!

    certainly the practical issues are significant, but as poptones explains, they are not insurmountable. the NSA does this on a massive scale each and every day. since the technology is also useful to find infringers, there will be more money invested in private equivalents. poptones is probably right that Google is also not far behind.

    technical hurdles notwithstanding, the whole concept of this kind of registration is just wrong for the reasons we stated earlier.

    what this speaks to is not the need to weaken copyright…

    *mice shudder at the thought*

    what this speaks to is the need for trusted sources of copyrighted material available under cc-type licenses. this is what should be registered, nothing else. a reasonable endeavour might involve a search of the cc-server and if the content is not there, then the assumption should be that it is not available for free and the searcher should create something new and original of his or her own.

  • Informer

    Here are some people with some concerns about this (and they already started a campaign in opposition).
    http://www.asmp.org/news/spec2006/orphan_faxcall.php

  • http://www.resonant.org/ Zed Pobre

    The ASMP is incredibly premature on this, I think. Right now, we have a suggestion with bad wording made by the Copyright Office to the House Judiciary Committee, which has yet to actually draft the language to the bill. Prior to releasing the bill, at least one committee member (Zoe Lofgren) has taken the time to request analysis from an expert in the field (Larry Lessig). Other members may be similarly performing due diligence before hashing out a final bill proposal. For all we know, by the time it becomes a bill, it will be a *good* bill, well worth supporting. If your House Representative happens to be on the House Judiciary Committee, there may well be great benefit from some unsolicited input on the matter. Otherwise… I’m not really sure it’s relevant. Contacting a senator is certainly premature — by the time this makes it out of committee (assuming it ever makes it out of committee), and passes the house, I would suspect a senator would have forgotten about any letters written today on the matter.

    Poptones: if those technologies are provided as a free (or at least reasonably inexpensive with respect to a hobbyist trying to determine if something is an orphan work) service by the Copyright Office, and/or use of such technology is mandated to be part of a ‘diligent search’, I would be much less concerned by the issue. Until that time, however, it’s one of those things that just isn’t quite there yet.

    Also, Poptones, you mentioned downloading the hearings on the matter. You mean the Judiciary Committee hearings? I wasn’t aware that those were available. Would you mind posting the location?

  • http://poptones.f2o.org poptones

    Zed, sorry but the URL I had for the broadcast last night no longer works and the entire proceedings never made it through my vry poor connection. Usually mplayer using a “streamdump noframedrop” works quite well with rtsp streams, but sadly it was not to be in this case. I’m hoping the proceedings will be available in transcript form in the near future. The link to the page where I accessed these proceedings is further up the page – someone’s blog, I believe, and a link from there. I’ll definitely try to find it later when I have the time.

    I’m also compelled at this point, though I inetentionally avoided it earlier, to point out that at least regarding electronic publications this sort of search may be made even easier through the use of watermarks. If a song or image is properly watermarked even a portion of that image can contain enough embedded information to make such searches utterly trivial – porn businesses are currently a great example of publishers using this technology every day to police their materials in newsgroups and p2p networks. Some of the watermarking technology out there is atrocious and I know more than one individual who has walked away from a publisher because the technical quality of their content suffered so terribly once they adopted these low budget watermarking schemes, but others make use of watermarking products that are so ‘transparent” many of their subscribers don’t even realize the folly of “sharing” their legimately acquired stash of… um, electronic “marital aids.”

    Zed, I do think a “bill of rights” is necessary to our future freedom – but I don’t think “the right to republish any goddamn thing I can download” is one imagined “right” that would be in our collective best interest to lend legislative creed. I don’t even think such a “right” is in the cards since it would so terribly undermine copyright.

    But I do think, so long as individuals and small publishing organizations are given secure legal right through explicit legislation (and not informal corporate promises that may be revoked on a whim) to also employ any future standardized mainstream digital rights management technologies on a royalty free basis, we as a society need to provide the legacy publishers ample opportunity to tightly lock down their digital publications simply they have the infrastructure to drive widespread adoption of these technologies.

    This opinion comes from the old “give’em enough rope” school of social engineering. At some point publishers will begin locking down works so tightly it will cause them loss of market share – to the benefit of more culturally responsible publishers and artists.

  • Josh Stratton

    poptones–
    try again with something that better protects the interests of these artists who are abandoning that archaine system you pretend to be against.

    How so? If an artist decides to self-publish, then I think that’s great. But it doesn’t mean that publishing becomes easier. It just means that they are assuming the duties of a publisher in order to avoid the costs of using a third-party publisher and in order to get the benefits that would otherwise have flowed to the publisher. It’s really just a form of the old question of whether one should do a particular thing internally, or whether it should be outsourced. I don’t see why we should favor one form of publication over another. Let the market decide.

    Only if that “frugal public” is also going to provide them welfare checks while they work for free.

    Well, we are specifically talking about the artists that won’t lift a finger in order to get a copyright. This doesn’t mean they’re working for free: many artists support themselves, not from royalties etc., but from providing artistic services (I know, having been in that boat). Many artists support themselves by selling individual pieces where there is no real market for copies (fine artists usually are of this type). And of course, many artists aren’t in it for the money at all, but create art for fame, or out of some artistic impulse, or for other reasons which are not encouraged by copyright. If these people can manage to keep themselves in business without copyrights, I see no need to give them a subsidy.

    I’d also remind you that even amongst those artists that do create works where the copyright would have some value (because they expect the works to be widely reproduced, distributed, performed, etc.) that the copyright rarely ever does. So the copyright subsidy isn’t really even all that useful to them; the majority of them would probably be better off with the welfare checks, to tell the truth!

    This is also why we should never give credence to the widows and orphans nonsense. Helping them by expanding copyright is as irresponsible as helping them by giving them lottery tickets. More so since in the rare case that the copyright is worth anything still, it probably has been worth quite a bit the whole time, and if they’re still in dire straits it indicates irresponsibility. A more equitable form of aid would be available to everyone, not just already-successful artists and their families, and would actually consist of aid, rather than a slim chance of aid.

    Canada has done pretty much that for decades, and in the eighties they had to pass fucking laws just to get Canadian broadcasters to play Canadian artists.

    Actually, I think that’s meant to subsidize local artists so that they don’t end up sending yet more money on a one-way trip south. Canadian artists of the type you refer to surely have copyrights and would be willing to seek out copyrights. In the future, please provide relevant counter-examples.

    Copyright is about getting new expressions

    No, copyright is about getting new expressions, getting derivative expressions, getting those expressions published, having those expressions be as minimally encumbered as possible if at all, and having those encumberances be as short as possible in duration. That’s five things that copyright is about; not just one.

    What copyright is not about is getting ideas to spread. This means that your argument that it isn’t important for Alice’s book to be minimally encumbered because Bob can write a totally new book on the same theme is incorrect. Bob’s book can be good too, but it is no substitute for Alice’s book.

    You might feel forcing artists to choose between signing away their financial and creative rights to a corporate bully or instead just outright starving just so they can practice their craft is justifiable so long as you get your free mariah carey cds, but I find such an attitude reprehensible and, thankfully, I believe most compassionate individuals would as well.

    Good thing that that’s not my position then. Like I said, self-publishing is great, but whether you self-publish or outsource to a publisher, the ultimate amount of work, risk, and potential reward is the same. The question is how it gets divided.

    If you have enough resources to write a song, perform it, produce a record, make a lot of copies, market it to retailers and customers, and you’re willing to take the risk, then by all means, keep all the rewards to yourself. But if you are not willing or able, you’ll need help to continue, and it should not come as a surprise to anyone that such help has a cost. So long as the decision is made freely, I don’t really care which way any specific artist decides. I trust that they will do what they think is best for them.

    Likewise, bringing us back to orphan works, if an artist wants a copyright or wants to retain it, they should have a minimal burden — basically just speaking up and saying that they want it (or still want it). If they don’t, all they have to do is to be passive. I trust that they will do what they think is best for them: if they think they want the copyright, they’ll fill out the (tremendously simple) form. If they don’t think they want it, or don’t even bother to think about copyrights at all, then I can only assume that they don’t care, in which case, why should anyone else? This is why I think formalities and frequent term renewals are the solution to the orphan works problem.

    Mice–
    getting a patent – because of the investment required – is a business decision. claiming a copyright is as close to free as it gets. claiming a copyright is not a business decision; enforcing a copyright is a business decision.

    I totally disagree. Patents and copyrights are far too closely related for you to draw this kind of line between them. Artists who want to exploit their copyright for money are acting in a business capacity. It’s no different from inventors who want to exploit their patent for money. The level of investment in the subject matter is not inherent in either: it’s possible to come up with some very simple patents (much of the cost in patenting is due to the disclosure requirement and the burden of the inventor to accurately say what he wants) and to come up with creative works that take hundreds of millions of dollars and an army of people to create.

    but some… we’re thinking songwriters and musicians… certainly are. there should be no literacy test before an artist or author can claim copyright in his or her own work.

    What test? Have you seen the actual copyright forms? We all expect artists who make an income to file their income taxes. Should they be excused from this significantly harder duty as well? Are they unable to get any help from a friend, neighbor, legal clinic, etc.? Are artists unable to form societies to help each other with the sorts of simple burdens that come with their vocation? I think you’re being very paternalistic, and doing a lot of damage in trying to do a very tiny amount of good.

    it is perfectly consistent with libertarian views that artsts and authors should enjoy the benefits of title to their property free from harassment of the state (on behalf of public and/or corporate interests ) to deprive him of it.

    And that’s fine. But creative works aren’t property (which is why we have to have copyrights to begin with), and copyrights are essentially public subsidies that should not be dispensed willy-nilly.

    the assumption should be that it is not available

    I suppose that’s the ultimate difference between us. I want the burden to be on those people who want protection, to put up a fence as it were. You want the burden to be on people who don’t want protection, to take down fences.

    I still think that my side of this is superior though, since I believe that a person who wants protection will be willing to put up a fence, but that a person who doesn’t will often not want the protection out of laziness (that is, he doesn’t want to bother even trying to exploit the work) and will also be too lazy to take down the fence.

    I think this is borne out by the fact that even I, a person who doesn’t want a copyright on anything I do, unless I clearly say otherwise, am often too lazy to be bothered to say so on each individual work I create. But when I do want a copyright, I’m not too lazy to say that.

    Zed–
    visual and audio works are basically unsearchable without existing attribution

    That’s true. It would be really helpful if the notice formality was brought back to former levels of importance, and lack of notice was a more useful defense. But as poptones noted, there may be some technologies that can improve copyright searches. If only the Copyright Office was as helpful as the PTO when it came to this sort of thing. Of course, I would remind poptones that it would be hard for Google to offer such a service unless they could place whole works in their database, so that search criteria could be compared to it automatically, and so that users could see the works (or relevant parts thereof) as the search results, since no mere computer would be infallible.

  • http://poptones.f2o.org poptones

    If an artist decides to self-publish, then I think that’s great. But it doesn’t mean that publishing becomes easier.

    Of course not – because it simply can’t get much easier: sit down at computer, make a few clicks, and you’re published. Done.

    One of these days I hope perhaps you will get this through that impossibly think crust surrounding your ears: we are all publishers. These lines you continue to draw in defense of your archaic argument are artifical constructs of your invention. I doubt even a seven year old, capable of understanding the disctionary definition of “publish,” would fail to understand this simple notion… it amazes me still how you seem to think refusal to acknowledge this fundamental fact lends your argument any merit at all.

    Well, we are specifically talking about the artists that won’t lift a finger in order to get a copyright.

    No. we are talking about every human being entitled to rights to their own works. This again is a fundamental fact of humanity even acknowledged by the UN.

    Acknowledged by everyone, it seems, but you.

    This doesn’t mean they’re working for free: many artists support themselves, not from royalties etc., but from providing artistic services (I know, having been in that boat). Many artists support themselves by selling individual pieces where there is no real market for copies (fine artists usually are of this type). And of course, many artists aren’t in it for the money at all, but create art for fame, or out of some artistic impulse, or for other reasons which are not encouraged by copyright. If these people can manage to keep themselves in business without copyrights, I see no need to give them a subsidy.

    I quote this paragraph in its entirety only to point out the complete irrelevance of everything said in it. Ford makes money selling cars and it makes money leasing cars. Perhaps we should legislate and decide for them which model of income we feel is in their best interest… after all, if they can just lease, what right do they have to extort such high prices from consumers in exchange for the “mere” right of ownership?

    virtually everything you said in the two paragraphs following this one contain nothing but elitist rhetoric and ethically vapid rationalizations for denial of right to an individual’s own work and skill. I will not even dignify such ramblings with a response.

    Canada has done pretty much that for decades, and in the eighties they had to pass fucking laws just to get Canadian broadcasters to play Canadian artists.
    .
    Actually, I think that’s meant to subsidize local artists so that they don’t end up sending yet more money on a one-way trip south.

    Uh huh. Subsidize. But what gets “subsidized?” Not creativity, but copycat behavior. There were some glorious canadian artists of that time – martha and the muffins, bampff, jane siberry – the only one that attained any real fame was jane siberry. And guess what? She left the mainstream music industry because she had no real control over her own future. She was one of the pioneers of online self publishing, even offering memberships in “creative councils” where fans willing to help fund her next production would get regular access to studio sessions, early mixes, and provide her creative feedback in their evolution. She self published many albums like this and, last I looked, was still making use of this publishing model after more than a decade.

    let the market decide, indeed… doesn’t seem to be your goal at all. Let the market decide… until they take away my “right” to remix madonna into my own productions!

    Copyright is about getting new expressions
    .
    No, copyright is about getting new expressions

    Well, again I’ll point out I was quoting you. As i said: I don’t think even you listen to the nonsense blathering from your fingertips.

    getting derivative expressions, getting those expressions published, having those expressions be as minimally encumbered as possible if at all, and having those encumberances be as short as possible in duration. That’s five things that copyright is about

    Um… no. lack of encumberances was a property of a physical realm. it is not mentioned anywhere in copyright, nor in the constitution. Books themselves are an emcumberance, records – which require blank media and outrageously complicated recording lathes and pressing facilities even more so. These were properties of media, not matters of copyright. Never were, and even the SCOTUS has made this clear in multiple decisions.

    Getting derivative expressions is easy and having DRM need not even get in the way of that: see “the garbage can kiss” scene in Sid and Nancy and compare that to the “falling roses kiss” scene in “The Gay Divorcee” for a fantastic example of this. Romeo and Juliet has been rehashed countless times and no DRM in the world would have prevented it.

    What copyright is not about is getting ideas to spread. This means that your argument that it isn’t important for Alice’s book to be minimally encumbered because Bob can write a totally new book on the same theme is incorrect. Bob’s book can be good too, but it is no substitute for Alice’s book.

    Irrelevant – that’s what public libraries are for. Only we can’t have public libraries online because there is no way to secure publisher’s rights. lack of DRM is, quite obviously (though not at all to you), restricting greater cultural access to creative works.

    Like I said, self-publishing is great, but whether you self-publish or outsource to a publisher, the ultimate amount of work, risk, and potential reward is the same.

    No, it isn’t. If Disney lets a stinker their stock price falls. If I let one I starve. The liabilities and risks are nowhere near equatable.

    If you have enough resources to write a song, perform it, produce a record, make a lot of copies, market it to retailers and customers, and you’re willing to take the risk…

    ROTFL. Man, we can only hope one of these days you’ll finally wake up and realize you’ve been asleep since 1977.

    My college town doesn’t even have a fucking record store – all three of them closed because nobody bothers with such antiquted technology anymore.

    Likewise, bringing us back to orphan works, if an artist wants a copyright or wants to retain it, they should have a minimal burden — basically just speaking up and saying that they want it (or still want it).

    Infringe their rights against their will, and they will. Your elitist system of control is obsolete. Not sorry at all to say you’ve already lost.

    It’s no different from inventors who want to exploit their patent for money. The level of investment in the subject matter is not inherent in either: it’s possible to come up with some very simple patents (much of the cost in patenting is due to the disclosure requirement and the burden of the inventor to accurately say what he wants) and to come up with creative works that take hundreds of millions of dollars and an army of people to create.

    As a patent owner who has held onto other worthwhile technologies for years now simply because getting another patent is so fuck9ing ridiculously expensive, I have to say – quite adamantly – you obviously do not know what the fuck you’re talking about.

    I suppose that’s the ultimate difference between us. I want the burden to be on those people who want protection, to put up a fence as it were.

    Weaken copyright and just watch those fences rise toward the sky…

    I still think that my side of this is superior…

    Obviously. The ironic poetry in that is it simply makes even more wrong.

  • http://gnuosphere.blogspot.com Peter Rock

    Poptones says:

    Since I am alive and I still have to eat

    If you were in a state where you were actually going to starve without greater ability to control your publication, it’s highly unlikely you would have had the time/energy to have produced that publication in the first place.

    The whole – “We creator’s need to put food on our plate” argument is so specious I’m at a loss as to why I hear such rhetoric put this way so often. If you can’t make enough money to survive from your publications without holding others hostage through an overly-aggressive copyright license, then find another source of income until you are able to.

  • three blind mice

    Likewise, bringing us back to orphan works, if an artist wants a copyright or wants to retain it, they should have a minimal burden – basically just speaking up and saying that they want it (or still want it). If they don’t, all they have to do is to be passive.

    thanks for bringing it back on the rails, Josh Stratton.

    we assume that you take this position, because you want more copyrighted content to fall into the public domain. we mice do not.

    first, it seems to us that a complex, costly, and burdensome registration scheme will likely result in the copyrights of the poor and disadvantaged lapsing into the public domain. disney won’t be affected in any way at all.

    perhaps you think this confiscation will lead to innovation, but we think that increasing the commons through the public confiscation of private property will result in a miniscule addition to the volume of creative works. no copyright encourages copying, no copying encourages creativity.

    second, we believe that the public confiscation of private property will undermine the market for new works.

    of course, increasing the commons by confiscating “orphan” works might make the internets lots more funner to play with and we do concede and recognize that this may lead to one or two technical innovations.

    but, taking a fair and balanced look at the issue, we think grinding up the flesh of authors and artists to feed to the monkeys who program computers is a rather harsh and unjust social policy.

  • Josh Stratton

    poptones–
    Of course not – because it simply can’t get much easier: sit down at computer, make a few clicks, and you’re published. Done.

    Of course you ignore the skills, knowledge, and resources necessary for this (some artists will be comfortable with doing this; others not so much, possibly due to the sort of art they deal with, their customers, etc.), as well as for marketing online, marketing offline, publishing offline, etc.

    But aside from this, traditional publishers can take advantage of exactly the same technologies that self-publishers can. So if an artist only wants to publish to the degree possible by making a few clicks on the computer, it’s just as much work for him to do so as a self-publisher as it would be for a third-party publisher to do so. So to reiterate, self publishing isn’t any harder or easier, or more or less rewarding, than outsourcing publishing. It’s just that doing it yourself means that you don’t share the burdens, risks, or rewards, while outsourcing means you do. I leave it to artists to make the choice for themselves.

    we are all publishers

    I know. But we are not all equally good at it. Self publishing is not the answer for everyone. I leave it up to artists to decide whether it’s right for them.

    No. we are talking about every human being entitled to rights to their own works. This again is a fundamental fact of humanity even acknowledged by the UN.

    And if the UN was going to jump off of the 59th St. Bridge, would you jump off too? I like the UN, and I like civil liberties, but I don’t believe that there’s an inherent right to copyrights. In fact, given that I do believe there’s an inherent right of free speech, I think it’s impossible to have an inherent right to copyrights; they conflict.

    Perhaps we should legislate and decide for them which model of income we feel is in their best interest

    Where did this come from? I merely pointed out that not granting copyrights to artists that did not indicate that they wanted copyrights would likely not deprive them of an income, since so many artists don’t rely on copyrights for an income in the first place.

    I think that we should have formalities (including applications for copyrights) and renewals, in order to sort out as best we can, artists that are incentivized by copyrights (and who we therefore should give copyrights to) from artists that are not incentivized by copyrights (who therefore don’t need any). If an artist asserts a desire for a copyright, I can only assume that it must be a necessary incentive to him, since I can’t read his mind. But I think the feather-light burden should be on him to step up. He is in the best position to know what he wants and what is incentivizing him. He just needs to tell us.

    But what gets “subsidized?” Not creativity, but copycat behavior.

    No, both. The subsidy goes to artists that are Canadian. How creative they are doesn’t appear to be a factor. (Though let me point out that I dont know anything about Canadian law)

    Well, again I’ll point out I was quoting you.

    But not understanding me, nor, apparently, the idea/expression dichotomy, and the interest of copyright in the latter.

    lack of encumberances was a property of a physical realm

    Now there’s a non sequitur. I’m using the word roughly in the legal sense: a work is encumbered by copyright because people who have a copy of the work are unable to do with it as they please. Just as if your land has an encumberance on it (such as an easement), you may not be able to do as you please with it. Tangibility isn’t even slightly relevant; I cannot imagine why you would bring it up.

    Getting derivative expressions is easy and having DRM need not even get in the way of that

    Great. So if I want to create a video collage, or dub a movie into a foreign language, CSS won’t impede my efforts even a little bit? Or are you forgetting just how expansive the derivative right is? It’s actually the broadest right in copyright, you know.

    that’s what public libraries are for

    That’s shortsighted. Public libraries are a great resource, but we cannot rely on them to the exclusion of all else.

    Only we can’t have public libraries online because there is no way to secure publisher’s rights.

    Well, in a real-world library, there is also no way to secure those rights. I can take a book, or a CD, or whatever, and copy it fairly easily with little or no loss in fidelity. (Remember: even hardcopy books are digital, in that a xeroxed ‘A’ has just the same meaning as the original ‘A’) And yet we’ve had libraries for millennia, and public libraries for centuries, and in fact publishers often don’t like them, but we ignore them because libraries are more important than happy copyright holders.

    An online library is trivial. Just tweak the law so that online libraries (which likely would be similar public / educational / nonprofit institutions as their offline bretheren) can purchase a copy of a work, and reproduce and distribute copies of it online, freely, without it being infringement. And that users who use the library are not infringing even if they happen to make some copies (unavoidable, given that we’re talking about computers) in the process. We could call it 108A, and we could draft and pass it pretty rapidly, if people were willing to do it.

    But it requires that we treat online libraries basically the same, with minor allowances due to the different technologies, as we do regular libraries. And that means privileging them over copyright holders, for the most part. DRM is totally unnecessary. It astounds me how you not only think that DRM is ever good, but that it is in fact a cure for all ills. I see it as no different from how people used to ingest mercury because they thought it was medicinal.

    No, it isn’t. If Disney lets a stinker their stock price falls. If I let one I starve. The liabilities and risks are nowhere near equatable.

    First, Disney often is a self-publisher. They make their movies in house for the most part and I believe they distribute them themselves. They spend the money to make the work, they take the risk of losing the money they invested if the work flops, and they get all the reward if the work is a hit.

    The fact that they have a lot of money in the bank, and can weather some flops, doesn’t change that they’re often a self publisher. A millionaire who writes a vanity novel that flops is a self publisher too, and won’t get wiped out. You’re just saying that rich people can afford to lose money where poor people cannot. It’s a truism, and I don’t see how it furthers the discussion or whatever point you think you’re making.

    Second, the risks are equal, since the risk is that your investment in time and money will be lost or not fully recouped. How much was invested in the project as a whole is irrelevant. Outsourcing publication divides the risk — the publisher probably spends more on the project than the author, so they have more to lose than the author. For this reason, they divide the reward along similar lines. There’s nothing especially nasty about it; no one is going to invest large sums of money if their potential reward is a pittance. They have other, more promising investment opportunities, after all. You see this same kind of behavior everywhere. Venture capitalists are a good example — they invest in a growing company that needs the money, but only in exchange for a lot of stock, a lot of control, and probably the ability to run the company if they get upset with how the founders are managing the investors’ money.

    Ultimately, if you don’t want to divide the reward, you’re going to get stuck not being able to divide the risk. Sorry if you wanted to have your cake and eat it too, but risk and reward going hand-in-hand is how things are, and you’re not going to change that.

    My college town doesn’t even have a fucking record store – all three of them closed because nobody bothers with such antiquted technology anymore.

    I apologize if I confused you. Most people, however, know that record stores mostly carry CDs, rather than vinyl. I’ve really never heard anyone say ‘CD store.’

    Your elitist system of control is obsolete.

    And as a pro-reasonable-copyright, pro-authorial-choice, pro-public-interest, and pro-egalitarian-democracy sort of person, just what ‘elitist system of control’ have I been promoting? It’s just that you make these shrill claims that I’m some sort of boogeyman all the time, despite that you usually don’t appear to understand my position, so I’m wondering precisely what sort of boogeyman your fevered imagination has cast me as.

    getting another patent is so fuck9ing ridiculously expensive

    What’s with the 9? I hadn’t noticed that Prof. Lessig censors curses here, and it doesn’t seem to me to be the kind of thing he’d do.

    Anyway, inventing something can be expensive (pharmaceuticals) or cheap (the laser cat toy invention). That’s really nothing to do with the patent system, and more the fault of the universe for not being more open with all of its secrets.

    Getting a patent, on the other hand, can be done for as little as a few hundred bucks. But doing a really good job of it — that requires people with very specialized skills to spend time on research and writing, and since there’s relatively few of them, and the job isn’t easy, they can charge a lot for their services. You could get a patent without the help of patent lawyers, and if you did it right, it would protect what you want and make the examiner happy on the first go. But it’s hard, so you probably won’t do it right; that’s why people spend the big bucks. (See a similar thing with filing one’s taxes — anyone can do it, but if you want to be really aggressive about it and get away with it, you’ll want a pro)

    Congrats on the patent, by the way. Out of curiosity, what’s the number?

    The ironic poetry in that is it simply makes even more wrong.

    That’s an odd sentence. Did you leave out a word? If so, then maybe that’s an example of ironic poetry.

    Mice–
    we assume that you take this position, because you want more copyrighted content to fall into the public domain.

    I suppose you could look at it that way, but I see things from the other side here. I want to not grant copyrights unless copyrights were an necessary incentive to the author to create a work, and where a copyright is granted, I want it to only be the minimal amount of copyright that is necessary to provide an incentive to the author to create a work.

    Not being able read minds, and know who needs a copyright, and who it would be wasted on, nor how much is enough in each case, I think that the closest we can get is to ask these authors to identify themselves by stepping up, and to identify how long a copyright they need by asking them to step up again, periodically. This identification should not be laborious or expensive — it should require minimal effort, so long as we can tell the difference between people who step up and people who stand still.

    a complex, costly, and burdensome registration scheme will likely result in the copyrights of the poor and disadvantaged lapsing into the public domain. disney won’t be affected in any way at all.

    Where do you guys come up with this crap? I have said numerous times that registration should not and would not be complex. The hardest part would probably be writing down your mailing address. Nor should it be costly, though it should not be free, since then it will tend to be abused. The current $30 fee is probably in the right price range, and is helpful in covering the processing costs of the Copyright Office. And it would not be burdensome. A registration would be good for a few years, and you just follow up with a similarly-simple renewal form every few years. When you stop caring enough to send it in, presumably the copyright is no longer an incentive for you, and you need only do nothing for the copyright to lapse.

    It would be less burdensome, expensive, and complex, than registering and renewing the license on a car, which is something that most people, even a lot of poor people, seem to manage alright. Hell, I’d even say that the Copyright Office should provide assistance in doing it (probably via a hotline), but the important thing is that the authors who want a copyright step up so that we know who they are.

    As for Disney, under the 1909 Act, they did in fact allow a number of works to lapse. But frankly, I think you’re doing a disservice by invoking them. I just want works to have the least and shortest copyrights whereby we still have the most works created and the most satisfaction of the public benefit overall (which involves more than mere creation). I don’t care who the authors are particularly. If Disney feels that it needs to re-up everything, then I’ll take their word for it. I’m happy to get anything that authors no longer care about keeping copyrighted. (Though right now, even they have copyrights on more than they care about, e.g. memos and other unpublished ephemera)

    perhaps you think this confiscation will lead to innovation

    It’s not confiscation. Copyrights are given to authors by the public and the gift has its limits and conditions. I’m confident that you’re able to use accurate terminology in your posts here; please do so.

    Anyway, to an extent, yes. It’s common for works to lapse or expire and derivative works to be made based upon them. However, I’m sure that unlike poptones, you won’t overlook the public benefit in simply having the works be unencumbered so that they can spread and be enjoyed freely by the greatest possible audience.

    will undermine the market for new works.

    Demonstrably false. We didn’t have copyright until a few centuries ago, and still had serious formalities and renewals until a few decades ago. And we have had ever-increasing markets for new works. Remember, copyrights do not create value for authors; they only concentrate the value that’s there. If there is a market for new works — and there always is, since people like novelty — then all copyright does is let the author monopolize that market for a while. If there were no market for the works, all the copyright in the world wouldn’t help him make a buck.

  • ACS

    Remind me: when did giving away public resources left and right, to people who don’t even lift a finger, became a libertarian ideal?

    When did copyright become a “public resource”. I think you are again confusing a public resource with a personal resource created by public authority.

    There is a difference.

  • Josh Stratton

    ACS–
    I don’t know about that.

    When an author is granted a copyright, the public is essentially giving up, temporarily, some of their rights (free speech and press) with respect to particular works. Remember, a copyright is a negative right, in that it is not a right to do anything, but is a right to exclude others from doing something (hence the term ‘exclusive rights’) that those others must have already had a right to do. This is further evidenced by the mechanics of copyright expiration. It’s not so much a public resource as the resources of every member of the public, but I don’t think that that lessens the point I was making.

  • ACS

    Josh

    some of their rights (free speech and press) with respect to particular works

    I always forget that I am talking to Americans. It must be noted that in the rest of there is no right of freedom of speech and all works are therefore “up for grabs” as it were.

    The paradox between freedom of speech and copyright is essentially an American problem. It was this paradox that caused the US to take so long in accepting copyright law in the first place (Re Dickens).

    But there is always that lovely Oliver Wendell Holmes to remember:

    a person has a right of free speech but they cannot use thier freedoms to shout “fire” in a crowded theater

    The consequence was an acceptance of limitations on free speech including congressional acceptance of copyright laws.

    The point is that the resource is essentially the creative fibre of artists. It is not a resource that government or the public can own – for we do not allow for the ownership of citizens in any other way so be it with copyrights. Rather it is one induced into a public spectacle by incentives such as copyright.

    Criticise it if you will but always remember that the artists and novelists lived in Europe until copyright laws landed on your sovereign shores.

  • Josh Stratton

    ACS–
    It must be noted that in the rest of there [sic] is no right of freedom of speech

    Well, on the whole, if I had to pick between free speech and copyrights, I’d take free speech. Fortunately, while there is certainly a tension there, they are reconcilable and can work together well. I fear that we’re getting into dangerous territory, see e.g. Reimerdes, and that we might want to adjust copyright for First Amendment reasons if this trend continues. However, my main reason for reform is simply that I think copyright can be implemented better. If we have too little copyright, it should be increased, and if too much, it should be decreased. I think we have too much right now, which is why my proposals usually center around decreasing it.

    It was this paradox that caused the US to take so long in accepting copyright law in the first place (Re Dickens).

    Well, let me remind you that the first federal copyright law was enacted in 1790, long before Dickens was even born. And that most of the colonies enacted their own copyright laws even earlier, when they became independent from England. The Statute of Anne never really meant much here, as far as I can tell, but then again, it was some time before the King even allowed presses to be established on this side of the pond anyway, and the market was not so big for a long while.

    The issue with Dickens was not whether the US should have copyright; we did. The issue was that at the time we only granted copyrights to Americans. Of course, we would have been very happy if Mr. Dickens had become an American citizen.

    In any event, that’s been long taken care of, and even I don’t suggest that we get rid of national treatment. Hell, my position is actually that the US should engage in unilateral national treatment, and allow anyone of any nationality to obtain a copyright here, regardless of whether or not their country reciprocates. This is because I think we ought to be promoting the progress of science in order to provide a benefit to Americans, and that the nationality of authors is really not relevant. Getting the work published in the US, or at least deposited, is important, however.

    But there is always that lovely Oliver Wendell Holmes to remember:
    a person has a right of free speech but they cannot use thier freedoms to shout “fire” in a crowded theater

    Would it have killed you to directly quote accurately? “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.” Also I really hate that quote, since the case it is from, Schenck v. US is not only really awful on its own merits (Schenck was convicted for distributing leaflets that condemned the WWI draft and which called for peaceful petitions to end it — the conviction was upheld), but it is also not really good law. Holmes backed down in later cases, and cases such as Brandenburg v. Ohio supplanted it. Also, as already noted, Schenck was in 1919 and the US has had copyright since 1790.

    In any event, I have not said that copyright is inherently unconstitutional on free speech grounds. I merely said that it is in opposition to free speech, and that it is essentially paid for through a lessening of free speech. My concern is whether we are getting a good deal, when we pay for copyright in this manner.

    the resource is essentially the creative fibre of artists

    If artists could create copyrights on their own, there would be no need for the government to grant them. Your assertion is wrong, for reasons I’ve already pointed out.

    we do not allow for the ownership of citizens in any other way so be it with copyrights

    Now you’re bordering on dangerous territory. As always, I am adamantly opposed to the idea that anyone could ever force artists to create works. However, copyright is not about that. Copyright is about how we bribe artists into willingly creating works, and about the disposition of those works once they have been created.

    I see these scenarios:
    1) If an artist does not want to create a work, that’s fine with me.
    2) If an artist creates a work without needing a bribe (i.e. without needing a copyright), then I see no need to give him a bribe to do something he’s done of his own free will.
    3) If an artist has to be bribed into creating a work, I will gladly give him a bribe, provided that the work (and what I can do with it) is more valuable to me than whatever I’m bribing him with. If the bribe isn’t enough for the artist, then presumably he won’t create the work, and as I have said, I am fine with that.

    In no event would I force the artist to create, but I am also not suggesting that the public — or artists — act contrary to self-interest.

    Criticise it if you will but always remember that the artists and novelists lived in Europe until copyright laws landed on your sovereign shores.

    And they lived in Europe before Europe had copyright laws either. In fact, England had them first, and France, Germany, and as far as I know, the rest of Europe, only had them after the US did (excepting Denmark, which got in after England but before the US existed). I suspect that Europe had more authors et al for other reasons than copyright. Economics, technology, and available lesuire time probably all played significant roles. Don’t forget that things do happen in the creative world for reasons other than copyright.

  • http://poptones.f2o.org poptones

    Your argument fails again because any speech the artist “gives” you in exchange for this bribe – even if it takes ten thousand years – is still more speech than you had without the bribe. The fact you personally are prevented in some cases from repeating his speech verbatim does not mean the speech does not exist. You got what you wanted, you just don’t have rights to claim it as your own.

  • Josh Stratton

    poptones–
    any speech the artist “gives” you in exchange for this bribe – even if it takes ten thousand years – is still more speech than you had without the bribe.

    Remember that the value of the work and the value of the bribe must be weighed. Merely having more works created isn’t valuable enough to be worth having copyrights. To get to the requisite levels of value, the works must also be as minimally protected as possible (that is, the most works for the least protection) in terms of length and scope.

    For example, (and this is quite simplified) let’s arbitrarily say that with:
    No copyright, 10 works will be created
    1 year of copyright, 110 (10 + 100) works will be created
    2 years of copyright 1110 (10 + 100 + 1000) works will be created
    3 years of copyright 1210 (10 + 100 + 1000 + 100) works will be created
    4 or more years of copyright 1220 (10 + 100 + 1000 + 100 + 10) works will be created.

    We know that this roughly corresponds with the actual incentivizing power of copyright, as the incentive is the possible economic value. Of the small fraction of works with any economic value, they almost always have all of that value up front whenever they come out in a particular medium (e.g. movies make more at the box office on opening weekend than at the box office a month later, and sell more DVDs in their first week in stores than a month after that). It’s true that some works trail off more rapidly than others, but the trend is the same.

    We also should bear in mind that even where a work is not immediately profitable, but takes a long time to become so, that it is also probably a poor investment and thus a disincentive to its author. This is because there are probably better alternatives that would have been profitable sooner. And since money now is worth more than the same amount of money in the future, the sooner a work is profitable, the more profitable it ends up being. This is to say, why spend $100 and not take a day job that would provide $100, to make a work that will not repay the $200 until 20 years have elapsed, when you could have just put the $200 into something else, which would yield $200 in 2 years, and $2000 by the time you get to the 20 year mark. This further lets us predict how artists — who are investing time and money — as well as their backers, if they need backers, will respond to particular amounts of copyright.

    So given those numbers, the ideal copyright would be at 2 years. Yes, that means that 110 works that could be incentivized are not being, and thus won’t be created. But they are in the realm of diminishing returns. Better to have 2 year copyrights and get 1110 works than to increase the copyrights of everyone for an additional 2 years just to get a paltry 110 more.

    Of course, if you have a system of required registration and frequent renewals, which is my suggestion for solving the orphan works problem, then you may be able to provide the extra 2 years for the 110 works that need it, without all or many of the other 1110 works getting time they don’t need (including the 10 works that didn’t need a copyright at all in order to be created).

    In any case, this is because the value to the public isn’t simply the number of original works created, but the number of works created and much more besides, including how free we are to use, copy, etc. the works as we like. It’s just like how for two otherwise-identical pieces of land, the one with easements and covenants on it is worth less than the one that is not encumbered at all. There is significant value in having things which are unencumbered. So if adding a year of encumberance to everything yields 1000 more works, that seems like the public is getting a good deal. If adding a year yields 100 more works, then not so much. If it yields only 10 more works, then it seems to not be worth it at all. The extra works with the encumberances on them and the more easily incentivized works are simply not as valuable as fewer but less encumbered works.

    For this reason, infinitely long copyrights will never be justifiable, because however many works are incentivized, it will likely be few (since it’s not worth much economically), and the cost to the public of the encumberance totally outweighs any gain from having the extra works. Finite but long copyrights face the same problem.

    In fact, I am confident that copyrights can be remarkably short, compared to where they are now, without any significant decrease in incentive provided or the works that are created, and with much greater value to the public than the few works that won’t come along, because for the vast majority that would nonetheless be made, they are not encumbered nearly so much.

    The fact you personally are prevented in some cases from repeating his speech verbatim does not mean the speech does not exist. You got what you wanted, you just don’t have rights to claim it as your own.

    I don’t understand what you’re trying to say here. Could you rephrase it?

  • ACS

    3) If an artist has to be bribed into creating a work, I will gladly give him a bribe, provided that the work (and what I can do with it) is more valuable to me than whatever I’m bribing him with. If the bribe isn’t enough for the artist, then presumably he won’t create the work, and as I have said, I am fine with that.

    Isnt the beauty of the system that the rights in copyright are exactly equal to value of the work (since that price is determined by the market at work). What you are bribing him with is equal to the value of what he creates. Of course you will argue the term and nature of exclusivity increase the value of the bribe above that of the work but that is just a term question and I have already agreed the term should be decreased. Is there anything in the nature of exclusivity which increases the value of the bribe? Isnt it made equal according to “Fair Use”?

    However, my main reason for reform is simply that I think copyright can be implemented better.

    Well no one said the system was perfect but I note in previous posts you have moved from getting rid of DRM to Copyright at various times. Yet there seem to be very little suggestion of actual substantive changes (apart from registration) to the regime.

    Well, let me remind you that the first federal copyright law was enacted in 1790

    And it was only available to americans who registered and it was only in respect of works as accepted by the Copyright Office – IE scandalous works of fiction or fact. The system was so limited that it was only really available to white, middle class male authors – and there werent that many.

    The other thing to remember is that there were a lot of poor authors in this time but not that many poor publishers. Whilst printing presses grew up all over the country only painters (who could sell thier individual works) became relatively well off. Right into the time of Walter Randolph Hearst newspapers could steal entire stories without fear of legal suit.

    If you returned to the systems of old, including return to the requirement of registration you could again see a tyranny of publishers. This is a point I make repeatedly and which you seem not to appreciate in your posts.

    And they lived in Europe before Europe had copyright laws either.

    Yes but they got ripped off all the time.

  • Josh Stratton

    ACS–
    What you are bribing him with is equal to the value of what he creates.

    Roughly, but of course in a natural state sans copyright, that value is widely dispersed. The author can capture some of it, for example by being first to market with copies, or by giving particular copies his imprimatur. Copyright results in his acquiring more of the value than he could on his own.

    Of course, one doesn’t have an inherent right to all the value of the fruit of one’s labor. Were this not the case, much speculation and investment would be impossible. E.g. if Ford sold Model T’s rather cheaply, but they certainly can’t demand that later sellers give them the difference when they sell at a higher price, now that they’re antiques.

    increase the value of the bribe above that of the work

    Well, it shouldn’t. I’m interested in the copyright bargain favoring the public, not artists. They can benefit too, but not at our ultimate expense.

    Is there anything in the nature of exclusivity which increases the value of the bribe?

    Sure. For example, if there is an exclusive derivatives right, then the author of a book can control whether or not a movie can be made, and can get a fair amount of money by exploiting this right.

    Isnt it made equal according to “Fair Use”?

    Fair use isn’t that expansive.

    I note in previous posts you have moved from getting rid of DRM to Copyright at various times. Yet there seem to be very little suggestion of actual substantive changes (apart from registration) to the regime.

    Well, I don’t really want to get into details here. Just tagging something for attention is a lot easier than getting into the nitty gritty, which I am still in, when I can spare a little time.

    But generally I’d like to see the US withdraw from all copyright treaties. The definition of publication should be broadened. Terms should be massively shortened, but able to be renewed periodically (excepting for some works, e.g. software, which tend to ‘age’ faster). Existing terms should be reconciled with the new lengths, but in a simple to understand fashion. Formalities (registration, deposit, notice) should be made manditory for applicants, and might be strengthened a bit (e.g. supplemental deposit). Copyright restoration would be abolished. 106A would be abolished. Subject matter would be reined in (via the utility rule) so that architectural works would no longer be eligible for copyright. The merger doctrine might be codified. The infringement tests should at least be examined, as they’ve been getting abused. Everything in chapters 9 through 13 would be abolished (though I reserve the right to think on chip mask protection further). Also an anti-DRM provision, as already discussed, would be set up. A broad exception for natural persons not engaging in commercial activity would be available. Infringement would be decriminalized, and for civil infringment, strict liability should be retreated from. 117 should be redone so that it is made more applicable in the real world (possibly this will involve dealing with the EULA problem). Importation rules would be clarified. National origin would no longer be relevant, since unilateral national treatment would be available (though this means that foreign authors would have to comply with the same formalities as domestic authors). 105 would be expanded to cover any governmental works; the US would still be covered, as would the states, foreign governments, IGOs, etc. as none of these bodies need the normal incentives and in any case, governmental copyrights are a very hostile notion to the proper place of government as the servant of the people. 108 would be broadened a bit, as would 109. 107 might do with some very slight tweaks, but fair use should still be left vague, and up to the courts. Most of the other exceptions are closely tied to their industries, and merit very careful attention. I would also probably keep the homestyle exception; I don’t care for it intellectually, but small businessmen really have a tough time understanding their interactions with copyright law. Some protection for unpublished works would be available, but it would need to be carefully shaped so as to not be prone to abuse but to still deter and remedy manuscript piracy. 511 might as well go, it’s already well-known to be unconstitutional. 512 needs to be reworked, as it gets abused quite a lot; the idea is not a terrible one, though. Also the statute of limitations should be clarified as being on the injury rule. The Copyright Office might benefit from some shaping up, but mostly my beef has been with Registrars that seem to always side with authorial interests, instead of considering the public interest. Lack of typeface and font subject matter should be clarified. The 121 exception should probably be broadened; specialized formats and authorized entities are silly. I am concerned with how broadly the 106 rights are granted; is it best to rely on narrow exceptions, or should we make the rights grants narrow too? And I’d generally reorganize everything for clarity, just as the 1976 Act did for the 1909 Act.

    That’s the gist of it, bearing in mind that the industry exemptions will take the most work, and I’ve not decided what to do there. Of course, I’ve probably forgotten to list something really obvious, so I welcome suggestions and comments.

    IE scandalous works of fiction or fact.

    I think you meant, ‘not scandalous works.’ Anyway, I never said I want to bring the 1790 Act back to life, I just said that it existed when you basically claimed otherwise.

    The other thing to remember is that there were a lot of poor authors in this time but not that many poor publishers.

    And this is still the case today, all around the world; and it was also that way prior to copyright. This constant feature of the landscape probably should indicate to you that it has to do with something other than copyright.

    only painters (who could sell thier individual works) became relatively well off

    Of course, if you’re selling by the piece, copyrights aren’t relevant to you. In fact, most fine artists today don’t care much about copyright; the market that relies on copyright isn’t the one that they tend to operate in. For example, Warhol could sell a painting of his for a hefty sum, once he was established. But if I had a poster of it that was a perfect replica, I’d get what, a few bucks? The value isn’t very much in the work, in that market, it’s in the copy made by the actual artist. Which is funny, because I seem to recall another artist who never made anything anymore, but just signed the output of his assistants; he made a lot of money and made fun of his customers because they would pay so much for just a name. I’ll be damned if I can remember the name, but I’m sure it’ll come to me later. (And while I am thinking of someone specific, lots of artists use anonymous assistants in this fashion)

    Frankly, if authors would write a manuscript, never bother to print up copies, and could find some interested buyers, they might be able to get into the same market. (Though visual art is a bit more accessible than having to page through looseleaf)

    If you returned to the systems of old, including return to the requirement of registration you could again see a tyranny of publishers. This is a point I make repeatedly and which you seem not to appreciate in your posts.

    Well, that is because we still have a tyranny of publishers, we’ve always had a tyrrany of publishers, and I don’t really see how we could stop them from at least being extremely powerful in the field, or whether it would be a good idea to break them.

    And while I imagine poptones will chime in with his half-baked DRM rant, and that everyone is able to publish now, remember that publication is often not a simple matter of a few mouse clicks. Publishers have contacts that authors will tend to lack, because the publishers do more business than any author ever will, and can spend the time to do this networking really well, amortizing it across their entire business; this gives them a leg up in getting people to buy copies, in getting specialized help (e.g. a specific recording engineer, rather than just some guy). If specialized equipment is needed, such as a printing press, they tend to already have these, and can again amortize it, making it easier for them to afford. If lots of capital is required, publishers will often have that, or will have the connections to get it from investors, while authors will likely have a harder time.

    Sure, anyone can publish their homemade video online. It is harder for the independent filmmaker to get $50 million, to bring stars onboard that the filmmaker doesn’t already know personally, to get his movie distributed in theaters worldwide, to get millions of DVDs pressed and sold to retailers, etc. That’s why we have specialists — the publishers. And they put in a lot, so they demand a lot back; this is the cost of doing business with them. Or, if you can do all those things for yourself, then by all means, keep all the rewards for yourself too. Most people seem not to be able to self-publish in the way they want, or not to be willing to try. So long as it’s their choice, it’s ok with me, whatever they decide.

  • http://poptones.f2o.org poptones

    Of course, one doesn’t have an inherent right to all the value of the fruit of one’s labor.

    Bullshit. If I build a car I OWN that car. I have an inherent right to whatever value I feel it holds. If I feel it is worth more than you are willing to pay it is not your right to just take it and throw whatever “donation” at me YOU think is fair – I keep the car and you don’t get it, period. I retain 100% of the value I feel the car holds. If that ultimately means I end up sleeping in the car (parked down by the river) because I am destitute and too stubborn to trade it for food and shelter, that is my choice to make.

    Were this not the case, much speculation and investment would be impossible. E.g. if Ford sold Model T’s rather cheaply, but they certainly can’t demand that later sellers give them the difference when they sell at a higher price, now that they’re antiques.

    Ford did not build that value into the cars – the owners who purchased those cars added that value themselves – by warehousing the car, maintaining the car, refurbishing the car if need be, and then marketing the car to an audience that values traits like nostalgia and rarity. Otherwise the car is just so much scrap metal that ends up as part of someone else’s engine block or differential housing.

    The difference is, of course, that in the online realm there really is no “rarity.” One of the foremost mottos of usenet is “everything eventually gets posted… again.” Even if I put my john hancock on a work there’s nothing to stop someone from copying it in essentially infinite fashion, therefore no (present) ability to add any of the values to electronic works that apply to your (weak) car analogy.

    The other thing to remember is that there were a lot of poor authors in this time but not that many poor publishers.
    .
    And this is still the case today, all around the world

    and more predominantly so in countrieds with poor copyright enforcement. The stronger the coipyright enforcement, the greater this balance is tipping in favor of those actually creating the work as opposed to those who essentiallty provide nothing but gatekeeping and warehousing functions.

    Did you see the Arctice Monkeys on SNL? I wasn’t terribly impressed, but apparently a LOT of folks younger than myself were. And their title is essentially self publish on a small indie label, and they attained their fame via a different type of publisher – one that still acts as gatekeeper but only in the sense that whatever ain’t popular don’t get eyeballs. That new publisher doesn’t keep 70% of the profits and demand recoupment for physical infrastructure because their audience itself provides that nominal revenue as well as enough profit to make it a viable business.

    In this manner everyone benefits from stronger copyright – the fans, the artists, even the music industry which now has to take on less burden and risk when it’s time to start cranking out physical goods. This allows a more diverse selection of publishers of physical works to compete because the risk to each is not so great. It costs a fortune to market mariah on mtv, but if you already have the audience then mtv comes to you.

    You just can’t get past this antiquated view of publisher vs person, can you? Too bad for you that archaic “us vs. them” mentality renders baseless pretty much the entirety of your argument.

  • ACS

    The other thing to remember is that there were a lot of poor authors in this time but not that many poor publishers.

    And this is still the case today, all around the world; and it was also that way prior to copyright. This constant feature of the landscape probably should indicate to you that it has to do with something other than copyright.

    Yes but 50 cent would still be very poor if it werent for copyright. Professors would have to rely on University wages (as opposed to actually making it in the workforce). I think you may have to accept that some artists are poor because they dont produce a viable product. On the other hand all artists would be poor without copyright. Saying that certain artists products dont make it is not relevant when copyright exists within a free market system.

    Well, that is because we still have a tyranny of publishers, we’ve always had a tyrrany of publishers,

    A tyranny is basically where the oppresed have little or no rights. Publishers these days are not tyrannical as you suggest because they are bound not to publish works unless authorised by the author. A real tyranny is where the works are published without consent and the author has no right or recourse to remedy the problem.

    Re: Your Proposed Reforms

    Nice. I agree with some such as reducing copyright term, broadening the definition of publication and alteration to the mechanisms of protection of unpublished works.

    I dont think withdrawal from Copyright Treaties is in the US interest re foreign markets but who knows.

    I only strongly disagree with the concept of registration of copyright. It seems to me that only educated middle and upper class persons would have access to copyright in that instance. It would also provde a feast of litigation when the record companies start stealing songs etc. I think it would just end up in an unfair system –> As such that is the only issue I would want to debate.

  • Josh Stratton

    ACS–
    On the other hand all artists would be poor without copyright.

    Well, that’s demonstrably false. There were numerous non-poor artists prior to 1710 in England, or whatever the appropriate later date was elsewhere. But they were the sorts of artists discussed above that didn’t make their money from what we would consider to be copyright-type sources (e.g. royalties for each book printed, or each play performed). They were the ones that sold individual works, or worked on commission, or sold tickets, or had patrons. There’s no shame in making a living that way — when I supported myself as an artist, my income usually came from finding clients that wanted something specific done for them. Basically I was skilled labor. Now that I’m in the legal profession, I’m still working as skilled labor.

    Of course, we can get even more art made and in the public domain if we have a carefully designed copyright system. It helps the artists who can’t make a living in the way describe above. So, as long as the copyright system yields a net public benefit, it’s good to have along with the more traditional ways.

    A real tyranny is where the works are published without consent and the author has no right or recourse to remedy the problem.

    While I understand your point, you are describing works in the public domain. I would not characterize that as tyrrany. Instead, I would say that it is the — arguably not fortunate for authors — natural state of affairs. Copyright isn’t the norm, though. It’s gravy, and it’s costly. Too much copyright is bad for society, and costs too much to sustain.

    I dont think withdrawal from Copyright Treaties is in the US interest re foreign markets but who knows.

    Meh. Berne can be easily manipulated so that US authors wouldn’t really have a problem with it if the US wasn’t in Berne. Which we weren’t until quite recently, but everyone seems to have managed.

    Basically, I think that the US ought to implement the laws that are best for the US, and should allow other countries to do the same. Circumstances vary, and I think we can more safely rely on each country to do a better job of finding the ideal copyright system for their own people than WIPO can, especially if they continue to insist on minimum standards everywhere. All I want to see on the international front is unilateral national treatment, and a policy of avoiding formalities that would so conflict with the formalities of another country that an author would have to choose between them. I see no need for anything else.

    I only strongly disagree with the concept of registration of copyright. It seems to me that only educated middle and upper class persons would have access to copyright in that instance.

    I don’t think that it is that obscure, and as I have said, I am all for the Copyright Office running public information campaigns. Already, there is a lot of information at their website (copyright.gov) for anyone who cares to even casually look. However, to further address this (and some other concerns) I am willing to float the idea that we could take a page from US patent law, and provide a one year grace period to file, starting on the date of first publication. But, remedies for works in this grace period (minus a few that cannot avoid it, such as live TV that is also being recorded, where we have expanded the definition of publication to include public performance) would likely be sharply limited, since it presents problems with public certainty, as well as a problem akin to that of submarine patents.

    Nevertheless, remember that in the period of 1790-1977, publication sans registration put works in the public domain. I do not believe that there has been a significant shift in demographics regarding who seriously claims copyrights between then and now. Automatic copyrights, on the other hand, protect many many works that need no protection at all. I would rather take the risk, especially given that we’ve seen it work, than overprotect.

    Poptones–
    If I build a car I OWN that car.

    Ah? So the autoworkers own the car? Do they get to drive them home, too?

    Personally, I like the famous story on roughly this subject that is told about the 18th century Japanese judge, Ooka Tadasuke. A poor student lived over an inn. He could only afford very plain food, but the smells of cooking food wafting in from the inn downstairs made his situation bearable. The innkeeper eventually sued the student, since he wanted to be paid for the smell that the student was enjoying. Everyone thought the innkeeper didn’t have a chance, as his argument was so stupid, but Judge Ooka accepted the case anyway. His verdict, which provided a nice lesson to the innkeeper, was that the student should pay, but that the appropriate payment for the smell of food was the sound of coins clinking together.

    Like I said, just because something is the fruit of your labor, that doesn’t mean that you own it. The smell of the food wasn’t owned. Someone who improves their house, which boosts the value of neighboring houses, doesn’t get to demand anything of his neighbors. If you work to come up with an idea that doesn’t rise to the level of copyrightable expression or patentable invention, and which isn’t a trade secret, then anyone can use it freely. Hopefully you get the point.

    Of course, let’s also remember that the sweat of the brow theory is dead, dead, dead in the US, when it comes to copyright. It has no constitutional support at all. There is a good reason for copyright, but letting someone claim the fruits of their labor is not it.

    The difference is, of course, that in the online realm there really is no “rarity.” One of the foremost mottos of usenet is “everything eventually gets posted… again.” Even if I put my john hancock on a work there’s nothing to stop someone from copying it in essentially infinite fashion, therefore no (present) ability to add any of the values to electronic works that apply to your (weak) car analogy.

    Well, that’s not true at all. If Alice writes a post, and Bob copies the post bit for bit and reposts it later, the posts are still distinguishable in that Alice didn’t cause the post to be put up a second time. This isn’t really a difference in the content or anything, but it is still present, however intangibly. If you’re interested in more on this, let me refer to you an excellent essay called What Colour Are Your Bits?.

    and more predominantly so in countrieds with poor copyright enforcement.

    I don’t know if there must be a connection, though. For example, let’s imagine that the UK stopped having copyright. Artists still might be able to find foreign audiences, and foreign copyright protection, and avoid being quite so poor. Still, this is a minor counterexample.

    The stronger the coipyright enforcement, the greater this balance is tipping in favor of those actually creating the work as opposed to those who essentiallty provide nothing but gatekeeping and warehousing functions.

    Well I have a higher opinion of the value added in publishing, whether the entity doing the work is the self-publishing artist or the publisher the artist has outsourced to.

    But either way, I don’t see any basis for your claim that stronger enforcement is relevant.

    To digress a bit, strong enforcement of copyright is interesting in that it is quite independent of what copyright actually consists of — perfect, or nearly-perfect enforcement of a 1790 Act copyright might well be stronger than ordinary enforcement of a 1976 Act copyright. Because of this, and the assumption to date that however broad the law is, that it will not be fully enforced, a greater degree of enforcement would seem to require a reduction in protection in order to stay at the same overall point that the legislation was meant to put us at.

    Second, I think that you can go a long way with limited enforcement resources by choosing your battles. Rather than waste time pursuing every infringer, go after the deep pocket or the head of the snake (i.e. an infringer that feeds other infringers, such as Napster, which fed all its users).

    Third, I think that enforcement should be left in the hands of the copyright holder (infringement should not be criminalized). Since it is their work, they are in the best position to know how much enforcement they want. Further, since the enforcement basically only benefits them, and there’s no particular danger to society, it’s appropriate for it to remain a civil matter. See e.g. patents, which are entirely civil, and which are the closest thing to copyrights.

    Anyway, getting back on point, I don’t see that stronger enforcement of copyright tends to weaken the position of publishers. Authors could assert their copyrights against publishers, but then, they’ve always been able to do that, and publishers of the sort we’re talking about are not terribly difficult to find and enforce a judgment against. And merely having a greater ability to enforce copyrights doesn’t mean that one will better be able to market or publish a work on one’s own.

    While I think that we are seeing some kinder, gentler publishers, as it were, I think this has little to do with enforceability, and more to do with artists being more careful and serious in their business dealings. Some publishers are responding to that, other publishers are being formed in order to respond to that, and more authors are opting to self-publish as a result of being more informed.

    So long as the Copyright Office stayed neutral in the matter (the government is equally the government of publishers and artists after all), then I think some sort of awareness campaign regarding publication options, the rights involved, etc. would be a good idea. Nothing wrong with making sure everyone is well informed.

    Did you see the Arctice Monkeys on SNL?

    No, I’m one of those people that thinks it isn’t a very good show anymore.

    And their title is essentially self publish on a small indie label, and they attained their fame via a different type of publisher – one that still acts as gatekeeper but only in the sense that whatever ain’t popular don’t get eyeballs. That new publisher doesn’t keep 70% of the profits and demand recoupment for physical infrastructure because their audience itself provides that nominal revenue as well as enough profit to make it a viable business.

    Good for them. Look, I never said that having a publisher that demands a lot is inherently a good thing, but rather that artists should be free to make those kinds of deals, so long as it is their choice. I do not think that artists are children, who should be protected from themselves; if they make a good choice, then that’s good for them, and if they make a bad choice, then that’s too bad for them. I don’t think we should interfere.

    As I said, I think that it’s good if artists are well informed, so that they know they’re doing something that could be a bad idea, but being poorly informed isn’t a good enough reason for making the deal voidable. And hey — it could be that the artist is informed, and is deliberately signing on with the sort of publisher you don’t like. Who are we to say that they shouldn’t be allowed to? Do these publishers make rather one-sided deals? Yes, but I can see why they would (after all, they’re self interested, just as the artist surely is), and if an artist is willing to take that deal, then so be it.

    And I still fail to see the connection you’re making between stronger enforcement and nicer publishers.

    In this manner everyone benefits from stronger copyright – the fans, the artists, even the music industry which now has to take on less burden and risk when it’s time to start cranking out physical goods.

    The risk the publishers take is not that of piracy. The risk is that the artist is a flop. Hell, if there is piracy, that’s a good sign that the artist is popular. Once he’s popular, then you can turn your attention to reducing piracy, and you might even get somewhere with that. But the losses due to piracy aren’t nearly so major a concern as the losses from signing bad artists.

    For example, people were pirating the latest Star Wars film quite a lot, right around when it hit theaters, as I recall. Yet the movie still did excellent business (despite not being as good as the original ones) and Lucas, who is as close to a self publisher in the major film world as you’re going to get, did well. But the people who invested in, oh, Cutthroat Island, lost their shirts. The production company ended up going bust due to this and another big budget flop, and no one bothers to pirate it. This is because it stinks on ice.

    I would suspect that the single entity who suffers from the greatest amount of piracy (in terms of the number of pirates and the amount that the works involved sell for) would be Microsoft. And while they’ve been taking some action against this, they’re hardly hurting because of it. In fact it’s probably helped them, since free (illegal) Windows negates the price advantage of free (legal) Linux, and once someone is using Windows then at least MS can benefit indirectly from starving competitors of a user base. It can try to pick up the piratical users later, turning them to legitimate options.

    While a small author might have more difficulty weathering a lot of piracy, I suspect that if they could enforce their rights more effectively, they would have less piracy, less popularity (since at least the pirates must like the artists’s work, if nothing else), and roughly the same amount of sales. I don’t think that the casual pirate — and that’s who DRM is aimed at — will bother to go legit.

    Certainly, they couldn’t for everything. For example, if I were back in my old job, and I had just pirated everything, I would have many more programs and fonts on my computer than I did. If I had to operate legitimately (which in fact I did), then, being on a limited budget, I’d have to start making choices. I might have pirated both Illustrator and Freehand, because they were free, but if I had to pay, I would likely not buy both. Maybe not either. So while Adobe and Macromedia would have had less piracy, that does not mean they would have had more sales.

    If the level of sales stays roughly the same, with or without piracy, and especially in consideration of the (arguably minor) benefits of piracy such as spreading awareness of a work, perhaps to people who will pay for it, then an author who cannot make ends meet with piracy will not be doing any better without it.

    It costs a fortune to market mariah on mtv, but if you already have the audience then mtv comes to you.

    Well, getting the audience is the trick, isn’t it? Basically you seem to be saying that it is okay for a publisher to spend time, money, and its reputation on artists (so that it can get the audience), but that it should do so for peanuts (because the artist-with-audience no longer needs the leg up). If an artist can find a publisher willing to do that, then good for them! But I would not be surprised if many publishers refused to work on those terms. I take a wait and see attitude as to how this works out, and I think that copyright law should permit both models to function, so that the choice is left up to the market.

    You just can’t get past this antiquated view of publisher vs person, can you?

    Well, I think that the parties involved, be they publishers, authors, or the public, are all self-interested. They’ll act only when it benefits them to do so, and only in self-beneficial ways. They’ll cooperate and even compromise, but only if they will do better by doing so than they would otherwise. I think that altruism exists, and I take advantage of it where I can, but I don’t rely upon it.

    So I don’t think that I have an antiquated view of how this all works. I think that I have a pragmatic view. So, since I am interested in the public benefit, I only want to maximize that. This guides my actions. I will compromise (e.g. grant copyrights) or not, if it is in my overall interests. I will gladly let authors and publishers do whatever they want, however they want, on their own or hand in hand, if it serves my interests. And I expect that the only way to get them to do anything is to make it be in their interests too.

    Nicer publishers are fine. I have no objection to them at all, and I wish them the best of luck. But if DRM or whatever ultimately reduces the degree to which the public interest is satisfied, then I won’t stand for it. If this means that we can’t have nice publishers, then whichever one is worse from a public benefit standpoint (which involves significantly more than merely how many works are created, as I have repeatedly shown) will just have to go.