Lessig

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.

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.

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?

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."

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.

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.

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.

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.

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.

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?

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.

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.

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.

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

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.

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.