June 27, 2012  ·  Lessig  · Reblogged from  Tumblr

In 2009, Massachusetts took a national lead in banning gifts of more than $50 to doctors from pharmaceutical and device companies. The idea was that doctors should be making such decisions on the merits, and an increasing array of data suggested that subtle forms of persuasion — including small gifts like dinners — could cloud the decisions of such doctors.

Indeed, some of the most interesting research I’ve seen suggests a U-like relationship on the effectiveness of (effective) “bribes” — both small and large are effective, while middle sized bribes are less effective. (Large are effective because, well, everyone has a price. Middle sized are not so effective because people realize they’re being bribed. Small are effective because people don’t realize they’re being bribed, but patterns of reciprocity get built subconsciously, without the target even being aware.)

These studies are not uncontested, and there are many who believe the ban is unnecessary. And if there were strong evidence suggesting the ban had no effect or was unnecessary, then of course, it should be lifted. 

But astonishingly, even the great Deval Patrick is now apparently leaning towards removing the ban. The apparent reason? Pressure from restaurants who suffer the most when doctors can’t be the targets of gifts. 

Could anything be more absurd? (Actually yes: Now a chocolate shoe maker is joining the fight against the ban since it is hurting his chocolate shoe business.)

If the ban made sense, it can’t make sense to repeal it because restaurants want more customers. If the ban doesn’t make sense, then produce the data to say so, and rely on that data. 

There’s a campaign to resist the repeal here

  • Mike

    “please spam it”? tsk, tsk.

  • http://www.aaronsw.com/ Aaron Swartz

    Remember, in Lessig’s world political spam is perfectly ok.

  • http://pngusa.net/~barner/blog/resonance.htm BA

    This is a worthwhile proposal. Thanks for bringing it to my attention.

  • john

    I think people understand that what’s meant by “spam it” was to mean to send to lots of people.

  • Fuzzy

    I think there will be opposition from the LOC, since the US$1 may not be sufficient to cover the expenses – judging by the current fees. But I do like the idea of requiring a nominal fee (so small that almost no author will object to the fee) to continue a copyright, similiar to the old renewal plan (was 17 years), so that we avoid losing older works due to damage/loss of media/inability to find the author to gain permission to make new copies. A very cool idea, whose time has returned.

  • Tim Hare

    Could you please post the “official” name of the Act, if it has been introduced into Congress, so that I may reference it when I write my Representatives and Senators? I am probably going to write via snail-mail, my gut feeling is that they pay more attention to that than to petitions. If it hasn’t been introduced into Congress – do we have lobbyists working on that?

  • Lessig

    The proposal does not have a sponsor yet, so there is no “official” name. We’re promoting it as the Public Domain Enhancement Act. Refer them to the webpage: http://eldred.cc


  • alkali

    Prof. Volokh suggests that there is a possibility that the $1 fee might be deemed a taking; is the $1 fee necessary to the proposal?

  • http://phil.codeallday.com Phil Gengler

    One of my major concerns with a law like this would be in the future. Suppose this passes, and then down the line, a bill to reduce copyright terms comes before Congress. It’s entirely likely that the corporations whose copyrights would be at stake would point to this law and say that something is already being done to limit copyright, and that any other measure affecting copyright would be unnecessary.

    I would hate to see for that to happen, and if this were to pass, the future could swing either way. Either this could begin a cascade of support to shrink the term of copyright, or it could be pointed to as a reason not to. I certainly hope that the former is how things work out, but the latter is most certainly within the realm of possibility.

  • http://blog.bitflux.ch Roger

    Does it make sense to sign it as a non US citizen? As sort of “support from the outside”?

    Or does that only give you more work, because you have to filter it?


  • Roger S

    The proposal seems to violate Berne, and doesn’t do anything about the really annoying copyrights. There is surely some better strategy than this.

  • http://www.photodude.com/ Reid Stott

    Before this is framed as Big Evil Corporations and their lobbyists against the rest of us, I’ve been striving for months to point out how your proposal will affect individuals like me. Individual people who make their living from their copyrighted creations.

    Despite the tone of the debate, copyrights are not only owned by corporations, and whatever whip you weave to wield against them will leave welts on my back as well. For example, when you claim “This legislation would strengthen the public domain without burdening copyright owners,” you don’t seem to have taken this to its logical conclusion for anyone other than the aforementioned corporations.

    I face this future under your proposal: 76 years old, sorting through hundreds of images published 50 years before, trying to decide which ones I can afford a buck to retain copyright, and wondering why other 76 years olds aren’t having their property transferred to public ownership.

    I have to ask, why must people be motivated to move work to the public domain by a penalty, in effect, a tax? Why can’t that motivation be in the form of an incentive? I think there might be a way to move more work into the public domain, not in 50 years …. today.

    Give copyright holders a limited tax credit … say $1 per copyrighted work moved into the public domain, up to $500 per year. If that was in existance, I’d make the effort to do so every year … because I’d have positive reinforcement, not the negative reinforcement of a future fee.

    Regardless of the specifics, I hope that people in this debate will begin to realize that your fight against corporate copyright abuse also beats up on individuals like me. And, frankly, we are unheard in this debate.

    Can anyone name me one individual who is prominent in this debate, who solely earns their living from their copyrighted freelance creations? Maybe I’m wrong, but it appears dominated by people who work for corporations, lawyers, academics, and other salaried people.

    If you’d like the view of someone outside that circle, someone who makes his living from his copyrighted creations as a sole proprietor, start here (I specifically addressed this proposal in January).

  • Lessig

    Reid, I think your proposal is great, but let’s do it earlier. Say — 30 years after publication, $50 for every registered work donated to the pubic domain up to some maximum.

  • http://www.photodude.com/ Reid Stott

    I’m not sure you’d even need to set a 30 year stipulation. Of course, it would depend on any rights that were granted upon “publication” (sometimes there is a year or two of exclusive usage), but in many cases, works could be voluntarily moved into the public domain … the very year they are created.

    For example, I’ve published over 1300 images in the past 2.5 years … just on my website. While I do sell prints online, and would want to retain the copyright to many of those images, a tax credit incentive would likely motivate me to move perhaps half of those images into the public domain.

    Should I do so today, without any incentive? Perhaps so, and that’s where Creative Commons comes in. But I’m not the problem, and I think a tax incentive might work better in the corporate world than some kind of extension fee. Plus, in today’s political environment, how much easier will it be to sell a tax credit than an added fee?

    There’d have to be some caps of some type, or else I could move 650 images into the public domain, and at $50 a pop, that’s 30 grand plus. $30,000 might be a significant incentive for a corporation, but it would be tax larceny for an individual. And again, that points out the difficulty in crafting a proposal that will equally affect my measly online photo collection, Microsoft Word XP, pong for bar tables (circa 1982), the Playboy centerfold spread, off Broadway plays, and online music.

    But that’s another debate. In this case, I hope you’ll consider modifying your approach towards reaching the same goals. A $1 carrot rather than a $1 stick.

  • Ben Finney

    “I face this future under your proposal: 76 years old, sorting through hundreds of images published 50 years before, trying to decide which ones I can afford a buck to retain copyright, and wondering why other 76 years olds aren�t having their property transferred to public ownership.”

    I have several objections to this.

    One, if you must “sort[...] through hundreds of images published 50 years before”, how can you claim that those images are still of commercial value to you? If the number of images worth renewing are few, then they must still be prominent enough to you that you don’t have to “sort through” to find them. If the number of commercially-worthy images is large, why not renew the lot?

    Two, I don’t believe you have any particular right to expect continual revenue from work done 50 years ago. You are granted a limited-term monopoly on the copying rights of the work, in order that the public may get the work in a reasonable amount of time.

    Three, the complaint that “other 76 years olds aren�t having their property transferred to public ownership” belies the fallacy of copyright as “property”. You are granted a *limited-term* monopoly on certain activities associated with that work; that is *not* the same as “owning” the work. It was never your “property” the moment you distributed it to others.

    The current state of the copyright system removes the incentive to provide value to others in order to receive revenue. All the “other 76 year olds” you speak of must continue to provide value in order to receive revenue, or they must have built up enough capital that they do not need to.

    You seem to be seeking some kind of exemption to this law that all of us are bound by; the fact that the current copyright system has granted it to you does not mean that should continue.

  • Nathaniel Smith

    I don’t see how this tax-incentive system would work, practically speaking. Copyright applies to everything; if I want to get the tax break for releasing 50 works into the public domain, I could just release the copyrights on 50 emails that were posted to public lists anyways, and make some easy money; anybody could easily release enough work to hit whatever cap is decided on. I have loads of stuff sitting around — old term papers, mix CDs (love that compilation copyright!), what-have-you. I could release all my term paper drafts, one-by-one!

    Of course, this isn’t the point of the proposal; somehow it should only apply to “real” works. But I don’t see any clear test to determine which works should count; I don’t even see a prospect for a fuzzy test.

    Is it possible to make this work in practice?

  • http://www.photodude.com/ Reid Stott

    Ben, you and I have highly opposed views, that spill outside this specific proposal. You assume the only reason to retain copyright is to milk commercial value, when I see and feel value to my images that does not translate to dollars, and often has as much to do with context. You assume I will have lots of free dollars to throw around in my retirement, in order to retain rights that have always been mine (I hope you’re right on that one, but I can’t make that assumption). You don’t believe I have a right to income from something created more than 50 years ago, yet I believe if someone built a house 50 years ago that people still want to rent from them, they should be allowed to do that. You don’t think a house and a photograph are the same kind of “property,” but I invite you to try and take either physical object from my hands. You say it is a fallacy, yet the law says it is fact. It is currently law that these things are mine … at least until the day I die.

    You don’t even want me to have that. 50 years, it’s over.

    If you strip artists of too much of their ability to provide for their own security, you, too, will cause damage to the public domain. Because those artists won’t be as able to create, produce, publish, and profit. Yes, I’ve read most of the arguments about this Utopia in which artists who create good works and share them will have not trouble making a living. Unfortunately, it’s usually stated by someone who collects a full time paycheck, often on tenure, not someone who lives in the freelance trenches daily like me.

    Oddly, you don’t care about the images that I haven’t “published,” and you give me no incentive to do anything with them. There’s some lovely shots that have only graced my walls. Every photographer has thousands of quality unpublished images (plus variations and outtakes of specific published images) that would be of value to the public domain.

    Don’t you want them, too? Your $1 tax won’t get them … they weren’t published. A $1 credit would get them.

    While your comment tries to engage me in some kind of wide area battle, you seem to have lost track of my suggestion on this specific issue. I strongly endorse efforts at enlarging the public domain, especially given its current frozen state. I’d just like to try and find a method that doesn’t so much screw me. I’ve simply suggested we try to find a carrot rather than a stick.

    Nathaniel, I’m certainly no tax expert, and your concerns are valid. That’s why I’d suggest a cap of some type. But there are also legal concerns about the $1 fee, as expressed here: “I think that the forfeiture for nonpayment of the registration fee may constitute a taking of property, and may thus put the federal government on the hook for compensation…”

  • Ben Finney

    Reid, thanks for addressing the specifics of my post.

    It seems I misrepresented your case (“You assume the only reason to retain copyright is to milk commercial value, when I see and feel value to my images that does not translate to dollars, and often has as much to do with context”); this reveals that I did indeed assume your concerns were purely commercial. I’m glad to see that’s not the case.

    However, you’ve compounded the fallacy of confusing physical objects and intellectual objects: “You don�t think a house and a photograph are the same kind of �property,� but I invite you to try and take either physical object from my hands.”

    The house and the photograph are physical objects. Anyone who tries to *take* them from you without your consent is robbing you of physical property. But that’s not what copyright is about: it covers *copying* of the information in the physical photograph, without affecting your physical property at all.

    Your physical property remains yours, and I have no designs on changing that. Copyright *extends* your privilege over the physical object of the photograph, to the abstract idea of the image contained in it. By copying the photograph, *nobody is taking your physical property*, and you have no claim of theft when it happens.

    It’s especially arrogant to expect that, when you yourself have allowed others to take copies of the photograph (by selling them, or handing them to a publisher, or any other means of distribution) that you then have complete monopoly, in perpetuity, over those physical objects now possessed by other people.

    If I have a copy of a photograph which happens to show an image you created 50 years ago, are you saying that — for all time — I cannot give it away? Destroy it? Show it to others? Sell it? Modify it, then sell it? Make more copies of it and sell those? The law currently grants you *some* control, for a limited time, over some of these actions. But that is not inherent in the attributes of the physical object — it is an arbitrary privilege, extended as the “carrot” you refer to, to motivate you to create and distribute them in the first place.

    Once again: The intellectual object of the “image” embodied in a photograph, and all its copies, has quite separate attributes from the physical objects of the photographs themselves. The physical photograph is yours, and you can do with it as you will. Kindly allow me the same courtesy over objects that have legally come into *my* possession, even if they embody images you worked to create 50 years ago.

  • Alastair Burt

    This is a petition to U.S. legislators. Is it appropriate that people sign it who are not US citizens?

  • John Woolverton

    Lets also be clear on the nature of property in the united states. While I am free to buy land and build a house upon it (which I have done), if I do not pay a “tax” on the property, and indeed, a further tax on the improvements I have made to the land with my own hands; I run the risk of it no longer being mine. I am not entitled to the fruits of my labor, without making some contribution towards society. I don’t particularly like it, but as David Brin says, “I am a member of a civilization”.

    Copyrights are a very new thing. Obviously having some sort of limited rights for creative works is an improvement over the past where there were no protections what-so-ever; but it is just as obvious to me that the current rights are imbalanced and need further refinement. There is plenty of room for discussion as to changes and alternatives, but what I hope most creative types can do (and I count myself as one), is not cling to the components of the current laws as if they were God given rights. Government both grant, and take away rights, on an ongoing basis. The government could decide to lower the speed limit back to 55 mph tomorrow if they wanted to. I would be upset, and complain about it; but my argument would not be that “it used to be 75!”, it would be that the higher speed limit was more appropriate and balanced the safety and throughput needs of the general driving population better, etc etc.

    Ultimately, the commercial value and economic benefit we receive from creative works is fleeting. When we are gone, it only what we contributed toward society that will live on. I very much doubt that my designs, images, or the contributions I make towards technology will be of any interest to someone 500 years from now, but perhaps if I make some contribution of ideas that helps free others to more easily build upon what was done before, they’ll make the world a better place, and I’ll have been a part of that.

  • Matt Evans

    I don’t see what this proposal would accomplish. The only things that would pass to the public domain are, by definition, worthless.

    Maybe someone can point me to copyrighted works that aren’t worth $1 to the owner but would be a great boon in the public domain. Assuming some such works exist, is there any reason to believe that I couldn’t just license the workk for a very small fee? Are transaction costs the problem?

    Please email any responses to mre@post.harvard.edu.

  • Ben Finney

    > The only things that would pass to the public domain are, by
    > definition, worthless.

    “Worth” in terms of commercial value to the copyright owner, and “worth” in terms of enrichment of the public domain, are quite different.

    There are countless books, images, audio recordings, movies, and even software that are no longer worthwhile exploiting for direct commercial gain for the original copyright holder; in most cases, the original copyright holder is a defunct corporation or they simply have no intention of ever offering the material again, in any form.

    These same works are valued by the public enough to breach existing copyright law by sharing them, modifying them and basing new works on them. These activities are natural and beneficial. If the existing copyright owner has no use for them — not even enough to pay one dollar — why should the public not be allowed to use these already-distributed works in these natural and beneficial ways?

    To recognise the value of the public domain, and decriminalise current practise where it does good without harm, seems a big gain to me.