Comments on: Helprin on perpetual copyright: write the reply? http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/ Blog, news, books Tue, 10 Oct 2017 06:01:00 +0000 hourly 1 http://wordpress.org/?v=3.8.2 By: Roger Lathbury http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15214 Sat, 27 Oct 2007 20:51:58 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15214 Thanks to Josh Stratton for setting me straight on the early history of copyright. I stand corrected. I ought to have said that I thought the 1909 copyright law good and that I thought its revision in 1976 was also good.

That admitted, I’m less taken with his other remarks. Of course, copyright does not exist to benefit descendants but rather to encourage production (not just authors, of course, as Josh Stratton writes). Benefits to descendants, however, are one of copyright’s ancillary effects. They are not bad. Many people have benefitted from their parents’ industry and foresight. Kept within reason and proportion, such consequences are positive. Leaving stirpes a business or a copyright is not the same as leaving a bag of lottery tickets, however; Josh’s analogy breaks down. A business can be run and directed; copyright is a property that can be managed to produce income. It is not a matter of chance. If the copyright act is not designed for ensuring the security of families, it can and often does result in such security.

Indeed the Disney family is not much in control of the Walt Disney Corporation. The Disney Corporation has the ability to (unfairly, in my judgment) manipulate the legal system for its advantage; its lawyers are smarter than the government’s lawyers. They have arranged for harmful rewriting of copyright laws, through the copyright extension act of 1998, in order to protect property of the Disney Company–Mickey Mouse, Donald Duck, etc. President Clinton should not have signed this law, the Sonny Bono Copyright Extension Act, when Congress passed it. It has vitiated the idea of copyright and resulted in straight jacketing the intellectual freedoms and productiveness copyright laws themselves were designed to encourage.

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By: CaptainReality http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15213 Sat, 07 Jul 2007 21:05:18 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15213 David desJardins writes: Yes, there are simple metrics. No, yours are not the right ones.

David, as you’ve stated that there are simple metrics, and that Josh’s metrics are wrong, perhaps you can enlighten us as to what your metrics are? Otherwise, your response boils down to nothing more than “you’re wrong, so there”.

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By: David desJardins http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15212 Tue, 05 Jun 2007 03:43:56 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15212 Josh Stratton writes: The metrics for whether a copyright law is good or bad are pretty simple. Yes, there are simple metrics. No, yours are not the right ones.

Josh Stratton writes: It is wrong and paternalistic of you to interject your opinion. No, it isn’t. Is this a discussion for extreme libertarians only? If those are the rules of debate, I can bow out now.

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By: Josh Stratton http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15211 Sat, 26 May 2007 14:17:32 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15211 David–
Yes, there is an imbalance in bargaining power. That’s nothing new or unusual in any field. But authors do have the ability to refuse to make a bargain that they’re sufficiently happy with. And they can self-publish, or look for a better deal elsewhere. If they cared, they would, and indeed, some do. But many authors don’t care. Oh, I’m sure that if they could dictate terms and have an agreement that was totally one-sided favoring them, they would. Who wouldn’t, in fact? But that’s not evidence of them caring in the real world. Indeed, the real world evidence is that authors don’t care about these rights enough to create and publish more works because they’re getting these rights now, as compared to when they weren’t, which was not too long ago. The metrics for whether a copyright law is good or bad are pretty simple, and I have described them above. If adding a restriction on the public (which is bad) is outweighed by an increase in creation and publication (which is good) then it is acceptable. This has very clearly not been the case with moral rights. Whether or not authors like them, they have zero incentivizing effect. That means it is imperative that we get rid of them immediately. They’re harmful, not helpful.

And anyway, given that no one is twisting the arms of authors, why would it bother you that they might waive or assign their rights? We are talking about adults who are able to make their own decisions in what they find to be their own best interests. It is wrong and paternalistic of you to interject your opinion onto them, and to give them unassignable, unwaivable copyrights in a misguided attempt to protect them from themselves. Why not bring back the fee tail while we’re at it? Indeed, these actually weaken their position since lack of control over a work by a later purchaser makes the work significantly less valuable to them, meaning that the author can’t make as much money. There’s also the injustice of allowing authors to terminate transfers and take advantage of the oft-times significant value that a publisher has put into a work. We don’t have these concepts enshrined into law for any other property. Toyota doesn’t have moral rights it can assert against a car owner who drives a car that’s been damaged and not repaired. They can’t sell a car outright to someone, and then decide down the road that they want it back.

As for hiring a lawyer to help negotiate and draft serious business contracts, it’s not a bad idea, actually. If you were asked to invest in a business that didn’t bother using lawyers for its major business dealings and contracts, you’d probably run screaming. That is not a safe or professional way to behave. Why should authors engaged in major business transactions be different or special? They can, of course, do the work themselves, and run a significant risk, but if they’re level headed and approach their business dealings seriously, they’ll probably get professional legal help, just like any serious businessperson. If they don’t, well, they made the bad judgment, so let them live with it. At least they’ll know better in the future.

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By: David desJardins http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15210 Fri, 25 May 2007 21:30:52 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15210 It’s just completely wrong to say that authors who sign away their rights “don’t care” about those rights, and are “apathetic”. Rather, they lack bargaining power and they lack any practical way to enforce those rights in the present system. I guess Josh’s theory is that every author who wishes to license any work should hire a copyright lawyer and negotiate a detailed contract to protect their moral rights. Needless to say, I think this is not a reasonable or practical or effective alternative.

I wonder if Josh would have let people sign themselves into indentured servitude, when the 13th amendment was being drafted. After all, if they “don’t care” enough to preserve their freedom, why should the public care?

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By: Joe Baugher http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15209 Thu, 24 May 2007 12:11:50 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15209 I think that the notion of an eternal copyright is a really bad idea. For one, it is unconstitutional, since the Constitution clearly says that copyrights (and patents) must last only for limited times. The Constitution also clearly states the purpose of copyright–it is to promote the advancement in the sciences and the useful arts. The purpose of copyright is not to enrich the Disney organization or to ensure that the George Gershwin estate will have a perpetual income. It isn’t even to provide an income for artists and inventors–this is a confusion between means and ends.

Copyright is supposed to be a bargain between the creators of works of art and the consumer–one which when properly observed is supposed to benefit the public by the encouragement of the production of new works.

Imagine for a moment what the world would be like if there really were an eternal copyright and that such a system had been in place for a long time. This would mean the the plays of Shakespeare would still be under copyright–you would have to obtain the permission of the Shakespeare estate (or the permission of some large corporation which owned Shakespeare) in order to perform Othello in public. Shakespeare scholars would have to beg permission to write about his works or quote them in certain ways. Anyone who wanted to create derivative works based on Shakespeare’s plays would have to get permission to do so–Leonard Bernstein Arthur Laurents, and Steven Sondheim would have been sued by the Shakespeare estate when they tried to write West Side Story without permission. In the sciences, it would be impossible to use Einstein’s equations of relativity in creating new works of physics without the permission of the Einstein estate. Very little in the arts and sciences is truly orginal–just about everything borrows from past works. All of our culture would be locked up under the control of large for-profit corporations, where would be virtually impossible to create anything without begging permission and paying fees. The content industry would become like the seventeenth-century English book publishing industry, with the rights to authors long dead still tied up under copyright, and the industry being a system of hereditary privilege where it would be illegal to publish anything that the Crown did not approve.

The distinction between an idea and the particular expression of the idea would become blurred–it would be impossible to build upon the past without seeking permission or paying fees, which would cripple our ability to share ideas. The notion of fair use would be obliterated–just about everything in the arts and sciences would be owned by somebody and it would be illegal to use them without seeking permission and paying some large corporation.

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By: Josh Stratton http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15208 Thu, 24 May 2007 12:03:51 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15208 David–
Artists are, after all, members of the public, and to the extent that they benefit from protection of their artistic rights, that is a public benefit.

Sure, but since that protection comes at a cost to the public, in that everyone other than the author loses some freedom with regard to the work, there’s a public detriment that goes along with that. I think it’s unlikely that the benefit to one person will outweigh the detriment to absolutely everyone other than that one person, and so it’s important to find some sort of benefit to the right that goes to all those other people in some way. Remember that what is important is not whether there is any benefit at all, but whether there is a net public benefit, i.e. whether the public benefits even after accounting for the detriment that a given regulation imposes. Otherwise you could just say that we should give a million-year copyright to the author, since he benefits, and he’s a member of the public.

Furthermore, even non-artists may prefer a system in which they have access to works as envisioned by the artist rather than as modified by a content owner with deep pockets.

I don’t see how this helps. You’re saying that in a case where the author sufficiently didn’t care enough about his work enough to assign the rights to someone else, that we should second-guess him and make sure that he has some rights anyway, even though the assignment indicates that he doesn’t care and isn’t going to assert those rights. This is paternalistic and pretty hostile to the new copyright holder, who, let’s remember, is not necessarily a bad guy.

If this is your goal, and it’s not a bad goal, then how about a system that is more finely targeted to dealing with it? I suggest that strict formalities, including deposit, should be required in order to get a copyright. This means that the author is going to have to deposit the work as he created it with the Library of Congress. And one of their missions is to preserve works. (And they really ought to have less discretion about that, than they presently do, IMO) The new copyright holder will want to protect its modified version, but that’s a derivative, and so 1) will need to be independently registered, and 2) will only be protected as to the portions of it which are original; they’ll have every interest in making sure that the original was copyrighted too, since they’re relying on that.

If we combine this with another envisioned law, that there is an exception for any otherwise infringing act engaged in by natural persons acting noncommercially, any members of the public who want to share copies of the original work can get access to the deposit copies and start making their own copies, sans the modifications of the new copyright holder.

Lastly, if there is a credit / disclaimer system as described earlier, it’ll be clear which versions are the original version the author deposited, which versions are modified, etc. making it easier for interested readers to find whichever they like.

And this can all work even if the author is apathetic about the work. Remember that there even though the public might have a desire to see the original version of the work, the author is never obligated to make sure that it survives if we give him the rights and the choice as to whether to use those rights. Authors might not want to, for instance if they fear it would offend the copyright holder with whom they wish to do more business in the future.

I think that my solution is a bit more likely to work as it doesn’t rely on the author to care on behalf of the public, but instead lets those members of the public who do care take matters into their own hands. It also doesn’t involve any non-infringing versions of the work being suppressed, which I don’t think is helpful to the public. Just as there will be those members of the public who have an interest in seeing the original work, there will be those who prefer the derivative, and those interested in the choices made to produce the derivative. Original works aren’t inherently better, you know; that’s a matter of taste which the government is not competent to make and should not use as a basis for any policy. But if you have a two, or five, or a dozen, or more versions, odds are better that at least one will be widely popular.

It cannot be simply dismissed as of no public interest.

It seems to have had no appreciable incentivizing effect on authors. And that is what any copyright law which restricts the public absolutely had better do. Actually preserving works is better accomplished by not restricting those works in relevant ways so that anyone and everyone can be involved with that who wants to. Limiting your pool of protectors isn’t a good strategy for protection. I think that the LoC has an important role, but ultimately, those works that we have left from antiquity didn’t survive to reach us because they were in central libraries. Libraries burned. They survived because they were widely disseminated and not under the control of the author.

Josh wrote: “In any event, whether the copying was for profit or not is irrelevant.” That’s certainly not true. Whether the copying was for profit is always a factor in determining whether it is fair use. Obviously, there’s a pretty broad fair use right to design and build buildings that resemble those that you have seen.

It’s irrelevant to the prima facie case. And while you could always argue fair use in an architectural work infringement case, your odds are not as good, I think, as they might have been in some other sorts of cases. For starters, the fourth factor is going to be really tough. Plus the odds are a lot greater, given the costs of construction, and the looming issue of winding up either ordered to destroy the structure, or being unable to ever sell it without the permission of the rightsholder, both of which are very real remedies in copyright law.

Personally, I’d just as soon get rid of the entire idea of copyrightable architectural works; it hasn’t encouraged architects to do anything they weren’t already doing, and it is a big imposition on the public. The architecture market is driven by other considerations AFAICT. Copyright doesn’t play a significant role at all.

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By: David desJardins http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15207 Thu, 24 May 2007 04:32:31 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15207 Josh wrote: “In any event, whether the copying was for profit or not is irrelevant.” That’s certainly not true. Whether the copying was for profit is always a factor in determining whether it is fair use. Obviously, there’s a pretty broad fair use right to design and build buildings that resemble those that you have seen.

What next? Copyrighted hairstyles? Poses when standing or sitting? Arrangements of furniture in a room? You can make copyrighted drawings of any of these things. But people have a broad fair use right to be influenced in their own lives by what they see in their day to day lives.

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By: David desJardins http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15206 Thu, 24 May 2007 04:27:02 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15206 I cannot agree with Josh that “there is no public interest in artistic integrity”. Artists are, after all, members of the public, and to the extent that they benefit from protection of their artistic rights, that is a public benefit. Furthermore, even non-artists may prefer a system in which they have access to works as envisioned by the artist rather than as modified by a content owner with deep pockets. It is a question of fact and theory as to whether, and how much, the public benefit from artistic integrity rights. It cannot be simply dismissed as of no public interest.

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By: ACS http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15205 Thu, 24 May 2007 00:50:46 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15205 Damn – I wish I got onto this debate earlier.

So A Great Idea Lives Forever. Shouldn’t Its Copyright? what do we all think about this statement. Well firstly it has not basis in history or law – it completely ignores the idea/expression dichotomy, but that isnt its worst aspect – it also completely ignores the basis on which copyright is granted in the first place (IE to reward an author for a period with exclusive rights and then provide the work to the public).

I take great offence to non-lawyers getting into the debate about copyright. It is clear that little thought has been put into this article and even less research has been undertaken.

Take for instance the statement “No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.”

Huh???? – How can real property equate to intellectual property???? That statement is a nonsense, there has never been any connection between intellectual property and real property. THe only connection is the similar right to alienation and power to move on trespassers/infringers – but that is similar as well to correlating rights in chattels. It is after all a characteristic of legal property.

If you want my opinion – the article is a load of horse s*@t

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By: Josh Stratton http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15204 Tue, 22 May 2007 23:06:13 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15204 Andy–
If someone erects a building that stands in a certain style, I am free to copy the exact blueprints of that building so long as I do not do it to achieve a profit.

In the US at least, that is not true. If an architectural work is copyrighted, making a copy of the plans is infringing. If an architectural work is not copyrighted, it is likely that the plans are, and at least a case could be made that using the building as an intermediary doesn’t avoid that your copy of the plans is a reproduction of the original copy of the plans. I’m not sure how successful this would be; I’d have to look into it. In any event, whether the copying was for profit or not is irrelevant.

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By: Andy http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15203 Tue, 22 May 2007 21:25:38 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15203 Sometimes you have to sacrifice the good faith of a few to save the hard work of the many. If someone erects a building that stands in a certain style, I am free to copy the exact blueprints of that building so long as I do not do it to achieve a profit. However, the notion is that on the internet, EVERYTHING is for profit. Here’s a thought for the narrow minded: Many people fill their web pages with content for reasons OTHER than monetary gain. So why do we treat them like they’ve literally stolen, when they should be treated as if they thought “Wow what a nice piece of writing, I’d love to have my readership take a look at that.” In fact, I’ll even cite a source.

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By: three blind mice http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15202 Tue, 22 May 2007 17:26:31 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15202 thanks for an illuminating exchange Josh Stratton. we totally derailed the thread, but it was fascinating for us to learn that Jefferson’s views on intangible property were as screwed up as his views of his tangible, human property. as bugs bunny would say jeffrerson was an ultramaroon.

wethinks however we disagree more than we agree insofar that we believe the public is best served by extending to authors and artists the maximum possible control over how their creations are published, disseminated, edited, and copied. literary and artistic talent is a rare and precious thing. those possessing it deserve all the encouragement and protection that society can offer. it is a pity that the public’s insatiable greed to copy and consume artistic works is killing the goose that lays the golden eggs.

“free culture”? you get what you pay for.

see you in another thread amigo.

mice out.

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By: Josh Stratton http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15201 Tue, 22 May 2007 14:11:41 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15201 Olivia–
It is filled with such wisdom from enlightened lawyers who know and understand far more than artists about creating and making a living.

I wouldn’t know. Before I got really interested in copyright law and went back to school, I was a self-supporting artist. So on the whole I’d say that I bring both perspectives to the table; I know, as an artist, about creating works and making a living, and I also know about the legal foundations for copyright, etc.

you’ve convinced me to surrender my immoral copyright protection

I’d say amoral, not immoral. Copyright issues are essentially amoral.

Let’s start a movement that will encourage all legal work be compensated in the manner in which it is given here: freely, and without integrity.

I get the insult, it’s very clever. However, responding seriously, let’s remember that there is a big difference between labor and the fruits of labor. I never have suggested that authors should not be compensated for labor which they do not freely give. However, this doesn’t mean that authors should be entitled to be paid for the fruits of that labor, particularly not over, and over, and over again.

Certainly if I were to, say, win a court case for a client, which established a precedent that they relied on daily, I would not get paid each time they used that precedent to their benefit. I would get paid for my labor — probably by an hourly fee — and that would be the end of it. Plenty of authors work this way. More, I suspect, than rely on copyrights. After all, there are other incentives for authors besides the economic value that might be wrung from a copyright. Where copyright is bread and butter for the video industries, it is of slightly less importance in music (where performances are common), and considerably less importance in the fine arts (where people buy and sell specific authorized copies, rather than just any old copy; you could print up all the posters of the Mona Lisa that you wanted, and not affect the value of the real one).

As for integrity jibe, my posts reflect sincere beliefs which I have based on my experience as an artist, my studies as a lawyer, etc. I have no desire to attack artists, but only to see the greatest satisfaction of the public good. I really think that reducing but not eliminating copyright is the best way to do that. I would like to see artists thrive, but they are not my sole or even primary concern. I can understand if you don’t like that, but I’d appreciate it if you would consider things from my point of view in an honest fashion.

Mice–
but it is absurd to think that even in the US “progress” can be measured simply by the number of new works produced or that this is the only value of copyright.

I absolutely concur, and I would never suggest that progress is measured merely by the number of works produced or that that is the only value of copyright. There are three public interests which compromise progress: 1) the creation and publication of original works, 2) the creation and publication of derivative works, and 3) freedom for the public to use those works as they will. I think that we can agree that an ideal world, as far as this discussion goes, would consist of a world in which everyone who had a desire to create art of any kind, whether original or derivative, could pursue it freely and to the fullest extent possible, and that everyone could have and enjoy a universal library consisting of the totality of published human knowledge, that they could share those works, use them as the basis for other works, etc.

Sadly, we do not live in an ideal world. Some authors are not going to be able to create works without the economic opportunities afforded by copyright, but in order to provide those opportunities there will be a reduction in the satisfaction of the second and third interests listed above. It’s a good thing to get more original and (some) derivative works created and published, but it’s a bad thing to restrict the creation and publication of (more) derivatives and to restrict the public generally. So long as the good outweighs the bad, copyright is a Good Thing. If the bad outweighs the good, then copyright is not fulfilling its function, and needs to be repaired.

That’s the whole of it. There’s nothing else.

copyright is also used, as we have pointed out, to defend artistic integrity

The value of which must be analyzed in the framework above. There’s no public interest in artistic integrity. Indeed, there’s probably more of an interest against it; we’re better off with Marcel Duchamps being able to produce L.H.O.O.Q. than we are with the DaVinci estate stopping him from doing so. So long as copies of the original work are preserved, and there is no fraud or confusion as to whether a work has or has not been edited, or authorized, etc. by various parties, then let there be many voices, rather than just one authoritative one.

and to combat censorship (upholding the natural rights of the author.)

Copyright is at best neutral to this issue, and at worst is itself censorship. I see no way whatsoever for copyright — which is a right to bar people from copying, etc. works, and not a right to copy, etc. works — to combat censorship. The right of authors to publish works is the same right shared by all: free speech, and free press. Even if copyright were abolished, that wouldn’t change. And of course, let us remember J. Brandeis, who wrote that “[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Again, authors have no natural rights that are special to them being authors. If they did, then we probably wouldn’t need copyright to begin with!

perhaps you wish to live in a world where corporate behemoths can edit the work of artists without their permission. we would not.

Ideally, yes, so long as the artist was not prevented from releasing his work as he intended, and so long as the editor (whether corporate behemoth or individual acting alone and noncommercially) did not confuse anyone about the provenance of the work. E.g. if Alice edits Bob’s work, she should plainly say so. It would be wrong to remove Bob’s name entirely, since his work is involved, but it is wrong to not make clear that it is Alice’s edit, since it’s not just Bob’s work.

But this isn’t a matter of moral rights, so much as it is a of matter consumer protection. If I want to buy Bob’s authorized version, I don’t want Alice to trick me. Ordinary trademark law would work fine in this regard. It’s all about source identifiers. Of course, care must be taken to not let trademark law dominate the copyright sphere; it is in fact subordinate here.

Let’s also remember that while many derivatives — just as many originals — are of poor quality, there are also some that surpass the quality of the original work. I’ve seen this too often with my own eyes to have any doubt as to this. Is Shakespeare’s version of Romeo and Juliet better than earlier versions (e.g. Brooke’s, Painter’s, Bandello’s etc.)? I bet that many people would think so.

However, in the real world, I recognize that the right to prepare derivatives may be of sufficient value to authors as to act as a strong incentive for them to create and publish in the first place. Of course, we might tweak it as to cover some derivatives and not others, or all derivatives by some persons and none by others, or some other combination or variation. After all, the US didn’t have a derivative right until the 1870 Copyright Act and we got along pretty well. Still, if it is sufficiently important to authors that by giving them a derivative right, the benefits that result (more creation and publication) outweigh the detriments (fewer derivatives, less freedom for the public), then I’d be for granting that right.

After all, I only want what is in the public interest, ideally what is most in the public interest. I am not married to any specific detail of implementation. As far as I am concerned everything is on the table. My opposition to moral rights then is not founded on a dislike for them, it’s based on the evidence that in this country they are really not providing a greater public benefit than detriment. It’s as simple as that.

So, regarding the Monty Python case, I would expect that a proper reformation of the law would still generally support them, though formalities issues might have made their position vis-a-vis their script copyrights a bit trickier. But I would have more of a problem with their Lanham Act arguments as is clear from what I’ve written above. The 2d Cir. didn’t think that disclaimers were good enough, whereas I think they probably would be, so far as they’d be relevant at all.

but it should be UP TO THE CREATOR of said content to choose to make her work available under a free culture license.

I absolutely agree. However, the parameters of copyright are on the table as well. There is no copyright regarding, say, photographs of a publicly visible structure. Thus the architect cannot meaningfully make a choice regarding that. He can, OTOH, make a choice regarding licensing the plans to a builder so that another structure can be put up. I am perfectly content to leave it to the copyright holder (who is not necessarily the creator, mind you) to decide whether and to what extent to license his copyright. The subject is of little interest to me. However, I am terribly interested in the subject of deciding what rights the copyright holder should be vested with to begin with.

what we object to – and will never surrender – is the infringement by the commons on the work of artists who DO NOT CHOOSE to have their work taken from them.

Again, I agree. The issue is defining what would constitute infringement to begin with. Just because something is infringing now doesn’t mean it has to continue to be.

Dickey47–
Oh, I still like the magical licensing agreement story. It reminds me of that one Calvin and Hobbes strip. (Calvin’s dad is a patent attorney) Also, plagarism isn’t really a legal issue. Not all plagarism is infringing, and not all infringements are plagarism.

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By: Dickey47 http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15200 Tue, 22 May 2007 13:05:17 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15200 Josh, you write the children’s story on copyright law (how about basics of plagiarism) and make it creative commons and I’ll find a way of illustrating it….

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By: three blind mice http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15199 Tue, 22 May 2007 13:03:57 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15199 Having struggled to protect my work from thieves and exploiters for years, you’ve convinced me to surrender my immoral copyright protection, all control over my artistic integrity and the proper use of my work, and give it freely to the commons. It is the only moral and right thing to do for *culture*.

hang on there Olivia – there is certainly a role for “free culture” in the world. without it, there is no room in the present culture of the internet for any other type of content.

but it should be UP TO THE CREATOR of said content to choose to make her work available under a free culture license.

what we object to – and will never surrender – is the infringement by the commons on the work of artists who DO NOT CHOOSE to have their work taken from them.

as engineers, our integrity is uncompromised by the law, and we will stand firmly on your side.

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By: three blind mice http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15198 Tue, 22 May 2007 12:38:19 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15198 awesome reply Josh Stratton. the reason we participate here is to learn and replies like yours are very much appreciated.

On the contrary, it is only about promoting progress and it is not about anything else whatsoever. Certainly the federal government has no legitimate copyright power outside of the promotion of progress of science. Nor should they. After all, by definition, any other law would either be to the detriment of progress, which cannot be argued as being a good idea, or is neutral toward progress, but still incurs a public cost, in which case the public is being harmed and not receiving any commensurately greater benefit, which is also intolerable.

we accept the argument that copyright laws IN THE US must obliquely “promote progress” in order to satisfy constitutional muster, but it is absurd to think that even in the US “progress” can be measured simply by the number of new works produced or that this is the only value of copyright.

copyright is also used, as we have pointed out, to defend artistic integrity and to combat censorship (upholding the natural rights of the author.)

in the 1970s, a british comedy troupe by the name of monty python produced a number of television programmes for the BBC. (we just finished reading michael palin’s diary “the python years”. palin was a founding member of MP.) having enjoyed tremendous success in the UK, the american television network ABC purchased the rights from the BBC to re-broadcast the MP series in the US. ABC, as they are wont to do, so edited the series that, as palin wryly commented, “it wasn’t funny.”

fearing the impact on their reputation in america if ABC were to broadcast their edited version, MP sued ABC in US federal court accusing ABC of infringing their copyright – by editing without their permission. this did not bring suit for commercial gain, in fact they insisted that no monetary damages be sought, they simply wanted to protect their artistic integrity.

a monty python sketch without the words “tits”, “jesus christ”, and “poofter” isn’t a monty python sketch.

MP lost on a technicality (lack of standing) but ultimately won on appeal – long after the damage was done. the public was denied the good and proper laugh that the unedited version (and a broader view of progress) would have produced.

perhaps you wish to live in a world where corporate behemoths can edit the work of artists without their permission. we would not.

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By: Olivia http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15197 Tue, 22 May 2007 12:04:12 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15197 This is such a great site.

It is filled with such wisdom from enlightened lawyers who know and understand far more than artists about creating and making a living. Having struggled to protect my work from thieves and exploiters for years, you’ve convinced me to surrender my immoral copyright protection, all control over my artistic integrity and the proper use of my work, and give it freely to the commons. It is the only moral and right thing to do for *culture*. I will no longer be a scum sucking bottom feeder stealing money from the public who truly own MY SELF-CREATED work.

I want to give back something back as a thank you for my enlightenment and conversion.

Let’s start a movement that will encourage all legal work be compensated in the manner in which it is given here: freely, and without integrity.

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By: Josh Stratton http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15196 Tue, 22 May 2007 11:12:22 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15196 mice–
you cannot view copyright – particularly U.S. copyright – from solely a utilitarian point of view. the “framers” of the U.S. constitution saw copyright as both a natural right and an economic one.

This is demonstrably false. Jefferson and Madison corresponded during the drafting and ratification of the Constitution, Bill of Rights, etc. and their letters survive. Jefferson wasn’t a framer, being a diplomat in France at the time, but he had a significant influence anyway.

Jefferson: I will now tell you what I do not like. First, the omission of a bill of rights, providing clearly, and without the aid of sophism, for … restriction of monopolies

Jefferson, later: The saying there shall be no monopolies, lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of fourteen years; but the benefit even of limited monopolies is too doubtful, to be opposed to that of their general suppression.

Madison, replying: With regard to monopolies, they are justly classed among the greatest nuisances in Government. But is it clear that, as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced?

Jefferson, some time later, accepting that there’s going to be a copyright and patent clause: I like the declaration of rights as far as it goes, but I should have been for going further. For instance, the following alterations and additions would have pleased me… Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding ___ years, but for no longer term, and for no other purpose.

Jefferson, following up on his last: The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government. The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind; and that no such obligation can be transmitted I think very capable of proof. I set out on this ground which I suppose to be self evident, “that the earth belongs in usufruct to the living;” that the dead have neither powers nor rights over it. The portion occupied by an individual ceases to be his when himself ceases to be, and reverts to the society. If the society has formed no rules for the appropriation of its lands in severalty, it will be taken by the first occupants. These will generally be the wife and children of the decedent. If they have formed rules of appropriation, those rules may give it to the wife and children, or to some one of them, or to the legatee of the deceased. So they may give it to his creditor. But the child, the legatee or creditor takes it, not by any natural right, but by a law of the society of which they are members, and to which they are subject. Then no man can by natural right oblige the lands he occupied, or the persons who succeed him in that occupation, to the paiment of debts contracted by him. For if he could, he might during his own life, eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to the living, which would be reverse of our principle. What is true of every member of the society individually, is true of them all collectively, since the rights of the whole can be no more than the sum of the rights of individuals. [He then runs through some actuarial calculations to determine the average number of years a person lives to over the age of 21. and gets a hard number:] Establish the principle also in the new law to be passed for protecting copy rights and new inventions, by securing the exclusive right for 19. instead of 14. years

Jefferson, who you hold as your great student of Locke, disagreed with Locke on a number of issues. This is one of them. He viewed copyrights and patents as monopolies which were at best justifiable from utility, though he doubted that this was the case. Madison, more optimistic, thought that they had utility and were thus tolerable. Jefferson, recognizing that he couldn’t do more about that, makes a decent argument for keeping a tight reign on it. (Which also makes it clear that he would be absolutely aghast at the idea of a term that continues beyond the life of the author) Neither makes an argument from natural rights because there isn’t one.

Of course, Jefferson is generally more concerned at this point in time with other matters. Even the 19 years letter takes that as a general principle for the management of debts, etc. and only connects it with copyrights and patents at the end (though the previous letter is a good indication that he was trying to think of an appropriate term length).

It’s Jefferson’s famous letter to Isaac McPherson about patents which is the most illuminating: It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre cf land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself ; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine ; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.

He’s talking about patents, since the subject of the correspondence was a particular invention and Jefferson had by this time already been Secretary of State, a duty which included patent examination. But there is absolutely nothing here which is not perfectly applicable to copyrights, and indeed it’s widely cited, even as high as the Supreme Court, for copyright matters.

It’s interesting to see Jefferson attack the idea that any kind of property right could be a natural right. He’s amenable to the idea of property as being that which you can personally defend, but anything more (and it is important to have a more stable system) is artificial. Inventions (and creative works) are no more likely to be property then, and more likely not to be, given as how they’re virtually impossible to be personally defensible, and that even the utilitarian case is sketchy to him.

Sorry, Charlie, but citing Locke — who wasn’t a framer and apparently not as influential as you thought — will not help you here.

moreover, you must be aware being a copyright lawyer and all, of many cases where authors and artists have enforced their copyright to protect their artistic integrity!

Sure. But here’s the thing. The US had no such right until 1990, when the VARA was enacted. If authors cared about this enough to not publish without such rights, and to publish with such rights, then we should have seen a dearth of creative works from the first copyright laws in the US in 1783 through 1990, and then an explosion from 1990 on. It has been 17 years since VARA. Where’s the explosion? And for that matter, what the hell kind of dearth was that before 1990? I don’t think there’s ever been an age of ‘scarcity’ that enjoyed so much plenty before.

Clearly, authors like having those rights, but they do not need them as an incentive to create and publish; they’ll do that for the money. It is absolutely clear then that there is no public benefit to be had from granting those rights to artists. It is costly to the public to absolutely no good end whatsoever. We are better off without VARA or anything like it.

copyright is not just about … “promoting progress”

On the contrary, it is only about promoting progress and it is not about anything else whatsoever. Certainly the federal government has no legitimate copyright power outside of the promotion of progress of science. Nor should they. After all, by definition, any other law would either be to the detriment of progress, which cannot be argued as being a good idea, or is neutral toward progress, but still incurs a public cost, in which case the public is being harmed and not receiving any commensurately greater benefit, which is also intolerable.

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By: three blind mice http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15195 Tue, 22 May 2007 03:26:17 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15195 Copyright is merely an incentive to get authors to create and publish works. It is nothing more, and it should consist of nothing more than the bare minimum to get them to do that, insofar as we can manage it.

Josh Stratton for someone who claims to be a copyright lawyer your views sound more like those of an economist. you cannot view copyright – particularly U.S. copyright – from solely a utilitarian point of view. the “framers” of the U.S. constitution saw copyright as both a natural right and an economic one.

we assume you know that those who authored the U.S. constitution in the 18th century were greatly influenced by John Locke’s work in the 17th century. in particular, we know Jefferson studied (and perhaps admired) Locke’s work. in his second treatise of civil government (from 1690) he makes the case for copyright (and patent) as a natural right:

… every Man has Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of His Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left in it, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property…. no Man but he can have a right to what that is once joined to…”

moreover, you must be aware being a copyright lawyer and all, of many cases where authors and artists have enforced their copyright to protect their artistic integrity! copyright is not just about money and “promoting progress” and to see it in only a pecuniary way is to miss the true genius of copyright.

you are however right about one thing: you’d never be our copyright lawyer.

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By: Josh Stratton http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15194 Tue, 22 May 2007 02:04:46 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15194 Dickey47–
1. I doubt it, for reasons of idea/expression, merger, originality, and that merely pairing two letters together, e.g. ‘CH,’ is not enough to constitute a creative work.
2. If that’s all, you’re probably okay. But yes, that is tricky, and it’s not a bright line for what are, really, sensible reasons.
3. Ideas are never copyrightable. A specific expression of those ideas may be, but there are limits to this, such as the merger doctrine. Since ideas are not copyrightable it doesn’t matter where you get them, or how well known or obscure they are. Facts also are uncopyrightable. Ditto methods or procedures. It’s the descriptions of these things that may be, with a lot of emphasis on ‘may.’

These issues lead to paranoia.

Who told you that?

At some point, people then become too worried about copyright and don’t put out works, especially ones that could be available for free under a commons type of license. I see the who argument and law as so vague that it takes an attorney to write a simple story for children. And how does that help society?

Yes, too much copyright can in fact have a negative effect upon creating and publishing works, ironically enough. The problem is largely due to monopolists naturally having rent-seeking tendencies. However, since I’m a copyright lawyer (though not your copyright lawyer, and I don’t give advice to non-clients), maybe I should write a children’s book. It could be a fantastic story, full of wonder, about drafting and negotiating licensing agreements. Well, I’m sure it’ll get better in time. Also, there will be talking mice or something. So see, society is getting helped already!

mice–
the majority is not always served by granting rights to individuals, but the public always is

This is false. If it were true, the infamous playing card monopoly would have been in the public interest and it most certainly was not. The public is the majority in a utilitarian analysis (since it consists of everyone but the author in question), and copyright is utilitarian through and through.

Roger–
Original US copyright laws (28 years, renewable for 28), as well as their first emended revision allowing a 75 year or life-of-author protection

What the hell are you talking about? The first US copyright law was the 1790 Copyright Act (several state laws preceded it), and it had 14+14 terms. The 1790 Act was never amended for a 75 year or life term. In fact, the first amendment to the 1790 Act was the 1802 act. It expanded copyright to apply to etchings and had some notice requirements. It was only in the 1909 Act that the term got to 28+28, and not until the 1976 Act that terms became life+50 (eventually life+70) or 75 (later 95).

Further, I’d strongly warn you against the idea that ‘their families were rewarded.’ That is not what copyright is good at, and it never will be. Trusting the financial security of your family to copyright is as insanely foolish as trusting that they’ll be okay by leaving them a pile of lottery tickets. The odds are about the same that it’ll actually work. If you want to take care of your family after you die, get a life insurance policy, invest wisely, that sort of thing. Nothing else will do. Copyright is merely an incentive to get authors to create and publish works. It is nothing more, and it should consist of nothing more than the bare minimum to get them to do that, insofar as we can manage it. Whether the family of the author was happy or miserable is utterly irrelevant. And if you want to pay from the public pocket to help make families happy, copyright is a terrible mechanism for it; it doesn’t know whether the family was happy or not, and it doesn’t help all unhappy families. If you’re concerned about that, support social welfare programs that would actually be useful for that.

Also the Disney empire is a big corporation; the Disney family’s involvement is not so great as you seem to think it is.

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By: Roger Lathbury http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15193 Mon, 21 May 2007 22:24:58 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15193 Original US copyright laws (28 years, renewable for 28), as well as their first emended revision allowing a 75 year or life-of-author protection, were good. Originators were rewarded. Their families were rewarded. It was a case of 56 years versus 75 years. People live longer now. The immediate descendants of originators doubtless suffered while the artistic or creative geniuses neglected them to create masterworks. Let them reap the rewards of tolerance and patience.

However, perpetual copyright is not a good idea. It defeats human progress. It impedes the use of culturally pervasive ideas. Moreover, ultimately it will be untenable.

Nonetheless, perpetual copyright is the way the present US system is tending. The Disney family, as it should have, has benefitted from Walt Disney’s energy, imagination, and commercial skill. It is time for the Disney grandchildren and great-grandchildren to develop their own talents, if any. The Joyce family benefitted, as it should have, from James Joyce’s genius, but it is time for the existing pilgrims from Joyce’s line to develop their own talents, if any.

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By: three blind mice http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15192 Mon, 21 May 2007 14:54:07 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15192 Well, even after all this time here, you still don’t understand the genius of our copyright system in the least. Authors have no rights to be balanced. Everything must favor the public.

we three think we four agree Josh Stratton …. the majority is not always served by granting rights to individuals, but the public always is. to be certain, however, authors and artists have rights (called copyrights) – granted to them (in the U.S.) by the powers vested to congress by the U.S. constitution.

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By: David desJardins http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15191 Mon, 21 May 2007 14:26:00 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15191 The disagreement is fundamentally philosophical, and not subject to logical reasoning, so I’m not sure I see the point in a response, which would just repeat arguments that have already been presented many, many times. Helprin (who is a far-right nutcase on many other issues as well) is simply an enthusiast for very strong property rights of all sorts. If he sincerely believes that it is a natural moral right for people to have unlimited and super-powerful intellectual property rights, then any arguments from the basis of logical consequences, e.g., utility maximization, are really irrelevant to him. If you start with a moral right then the moral right persists even if it has some negative economic consequences.

The only way in which I can see that any common ground or understanding could possibly be found would be in the area of abandoned works. I think most people on the “public domain” side would actually be pretty happy with an infinite term for copyright (or 999 years, or whatever) so long as the copyright requires reasonably frequent renewals, with substantial associated fees, so that the 90% or more of copyrighted works that have limited economic value do pass into the public domain (and much more quickly than under the present system). This is at least consistent with a moral belief in strong IP—although I would still be surprised if you could get any agreement from Helprin.

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By: Dickey47 http://www.lessig.org/2007/05/helprin-on-perpetual-copyright/#comment-15190 Mon, 21 May 2007 13:35:27 +0000 http://lessig.org/blog/2007/05/helprin_on_perpetual_copyright.html#comment-15190 I’m trying to author some free curriculum for elementary. In doing so, I’m trying not to step on large publishing house toes. But the problem is, it sounds like almost everything can be construed as copyrighted. Some examples:

1. In teaching writing, are phonetic representations copyrighted? For instance, putting the letter “c” and “h” together to teach a child that “ch” is a single sound. Well, that was put out over 30 years ago. So how do authors know where copyright starts and ends?

2. Where do story ideas start and end. If you want to author children stories, will big publishing houses trot out their attorneys if you put out a very short story about a boy who wears glasses and has wizard powers?

3. How about trying to write simple chemistry or earth science experiments for k-3? Are ideas on an a simple experiment copyrighted? I’ve read somewhere that an idea is common knowledge if you find it in at least 5 published articles or books. How does one know if the idea wasn’t stolen?

These issues lead to paranoia. At some point, people then become too worried about copyright and don’t put out works, especially ones that could be available for free under a commons type of license. I see the who argument and law as so vague that it takes an attorney to write a simple story for children. And how does that help society?

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