We Were Smarter About Copyright Law 100 Years Ago

An anonymous reader writes "James Boyle has a blog post comparing the recording industry's arguments in 1909 to those of 2009, with some lovely Google book links to the originals. Favorite quote: 'Many and numerous classes of public benefactors continue ceaselessly to pour forth their flood of useful ideas, adding to the common stock of knowledge. No one regards it as immoral or unethical to use these ideas and their authors do not suffer themselves to be paraded by sordid interests before legislative committees uttering bombastic speeches about their rights and representing themselves as the objects of "theft" and "piracy."' Industry flaks were more impressive 100 years ago. In that debate the recording industry was the upstart, battling the entrenched power of the publishers of musical scores. Also check out the cameo appearance by John Philip Sousa, comparing sound recordings to slavery. Ironically, among the subjects mentioned as clearly not the subject of property rights were business methods and seed varieties." Boyle concludes: "...one looks back at these transcripts and compares them to today's hearings — with vacuous rantings from celebrities and the bloviation of bad economics and worse legal theory from one industry representative after another — it is hard not to feel a sense of nostalgia. In 1900, it appears, we were better at understanding that copyright was a law that regulated technology, a law with constitutional restraints, that property rights were not absolute and that the public would not automatically be served by extending rights out to infinity."

Comments

They don't even go back far enough.

[symbolset]

I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot. On which side indeed should the public sympathy be when the question is whether some book as popular as Robinson Crusoe, or the Pilgrim's Progress, shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great-grandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the author when in great distress? Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.

- Thomas McCauley on copyright, 1841.

Re:They don't even go back far enough.

[eldavojohn]

I thought the same thing. Check out 1852 copyright law where it was not only fines but also jail time. We may have been smarter about enforcing it but the penalty was still life stunting. You violating copyright shouldn't be the end of your financial life or freedom. A fine, certainly but the magnitudes that have always been in place are ridiculous. It just speaks to me that with little if any methods for enforcing it, the US DoJ has settled for a penalty so harsh you are scared into observing the law. And as you look across the years, it seems to have been that way for quite sometime.

Let's face, the people holding the copyrights are the people with the money. The same now as it was then. They will push the government to extend extend extend that copyright term and to prosecute heavily offenders. That's reality because it's largely out of the public's mind what benefit public domain affords them and even artists who make derivative works or embellishments on existing works. You want to rewrite Lord of the Rings with zombies for the enemy? Tough, you'll have to go further back in time. I'm shocked 'orc' is allowed in dictionaries let alone other works of fiction.

Re:They don't even go back far enough.

[Anonymous Coward]

(+6, Thread over)

It took 160 years, but everything he said came true.

Re:They don't even go back far enough.

[cpt kangarooski]

That's not copyright law from the year 1852, that's just the sequentially numbered page on that website. If you want to read up on 19th century US copyright law, try this pdf file. It covers 1790 through 1905. It really wasn't until the end of the 19th century that any sort of infringement was criminalized. It made certain infringing public performances a misdemeanor, so infringers faced up to 1 year.

Re:They don't even go back far enough.

[girlintraining]

That's a lot of words to say this: Go too far and the public will stop respecting the law(s).

Re:They don't even go back far enough.

[hedwards]

That's not true, the penalty should be going down as the ease of distribution of copyrighted work goes down since the amount of harm that's being caused is reduced. What you're suggesting goes against the grain of modern capitalist theory. The price for any good or service in a competitive market should always approach the marginal cost of production. What you're suggesting would change that in a rather radical and significant fashion.

While the number of copies that might be ripped off is far greater today than it was decades ago, the cost per copy that would theoretically be lost is much lower now than at any time. And appears to still be going down further. Pretty much any time when there was significant development in IP there was a significant amount of borrowing, stealing and such going on. It's difficult to find periods where it wasn't happening.

We live in a society, at least in the US, where corporations are none to shy to go to legislators to demand that they not be required to compete because it's bad for the economy/jobs/consumers and tend to get there way because people like you don't understand the issue. We're getting to the point, if we haven't already gotten there where IP rights are harming the ability to innovate far more than what they were ever meant to help. Things like blocking patents, patents on unpatentable things and outright fraudulent patent trolling do very real damage to the purpose of advancing society. Same largely goes for other forms of IP as well.

Re:They don't even go back far enough.

[collinstocks]

No, by the fact that there is a rising Pirate Party in a few countries. I don't dispute that it is currently very disorganized and ill-defined, but it exists.
It is by the fact that more and more people are obtaining copyrighted content from the internet illegally.
It is by the fact that more and more people think that this is okay.

Right now, many governments of the world and the recording industry are trying to fight it. Whether they are winning or not, only time will tell. In that respect, not everything he said has come true, but what hasn't come true still has the potential to.

The main point the GP was trying to make is that he predicted that in the future it would become extremely easy to copy something; so easy, in fact, that anybody could do it. That did come true, and that did take 160 years.

Re:They don't even go back far enough.

[MinutiaeMan]

But here's the problem: the very concept of "marginal cost of production" is nearly made obsolete by computers and the Internet. It used to be that the effort to produce the copies was proportional to the number of copies being made. Not any more. (Why else would we have spam?)

Maybe the real measure of value is the total cost of production. It used to be that total cost and marginal cost were pretty closely related. But in today's world, the amount of effort to create a work has stayed the same (apparent quality of said work should be ignored for the sake of this discussion), while the effort to duplicate or distribute said work has gone way down.

This is the same situation created by the printing press in the 1500s: it used to be that monks had to transcribe documents by hand in order to distribute them thus making scrolls and so on highly prized. Suddenly people could make many, many more copies quite easily. However, it still required individual effort to make each copy, so marginal cost of production still applied.

Radio and television upset the balance even further. Someone could broadcast a work just once, and it didn't matter how many people were watching or listening. But the market managed to twist a way to apply the idea of "marginal cost" by figuring out about how many people were tuning in, thus deriving an apparent value. Hence, advertising and the Nielsen ratings.

There's not going to be an easy answer to the problem.

100 years ago...

[Techmeology]

100 years ago, we did not have the technology to replicate information as we do now. Hence there was little public demand to be able to do so. Today it is different. A law so rejected by the people is doomed to failure (Prohibition in America in the 1920s anyone?). Copyright law if far too draconian - so much so that many people violate it without realizing it, and many others deliberately do so out of apathy.

Someone will comment on this, might as well be me

[Anonymous Coward]

Another explanation might be the failure of practicing fully communal societies like the U.S.S.R. Back then it could have been construed as possible for art to flourish with everything in the public domain. After watching the few movies that came out of communist countries, I think it definitely inhibits the production of quality art.

I don't think that the problem is in the "public domain" thing but it's in the "dictatorship" thing that went on. Practically all the artists - especially those with any skill - were recruited to work for the propagandamachine.

In addition, horrible bureucratic machine added to that. Not only did it mean that many were assigned to jobs that didn't suit them best (IE: Someone with very hight artistic skill assigned to work long days at a factory) but emphasis was on numbers. Producing 10 average quality works is better than producing two very good because it doesn't show in the statistics.

As a third problem, the comparison is a bit off. People shouldn't compare the soviet union to modern countries (Germany, USA, etc.) at the time. When the revolutions happened, Europe and USA were industrialized societies, Russia was a very rural society. Their industrialization started with two wars and then a horrible dictatorship. It isn't really the best possible setting to develop a movie industry in.

So yeah. Whether public domain thingy affected things or not, I would assume that many other things affected it so much more that bringing these two up as if they were related would be misleading.

Ideology is irrelevant. Resistance is futile.

[girlintraining]

Anyone who thinks this is about anything other than a bunch of rich bastards exploiting a segment of the population is deluding themselves. They're simply upset that they got their hand caught in the cookie jar and now pay people smarter and more eloquent than them lots and lots of money to explain why the establishment owes them that cookie. Damn, I love America. Those few of us who are compelled from silence and apathy quickly settle on endless argumentation and debate, rather than activism. We weren't smarter about copyright law a hundred years ago... We were just less about words and more about actions back then. If the government screwed with the population a hundred years ago, the population screwed back. Nowadays, we all live in anonymous big cities and feel no attachment or trust with anyone else. And without trust, we can't even resist the most pathetic attempts at social control.

Re:Moral Theory of "Intellectual Property"

[kanweg]

If you studied both copyright law and patent law then
- You must have noticed that with patents, once an item covered by the patent is sold, it is out of control of the patent proprietor.
- You also must have noticed that there are very stringent requirements before a patent is granted (and if they were not met, you can do something about it), not to mention the cost involved, and comes with a territorial restriction.
- You must have noticed that patents have a limit of 20 years (and maintenance fees have to be paid).

Don't throw copyright law and patent law together like they're equally bad. Yes, don't get me started on business patents and software patents, but those are problems of a completely different order of magnitude compared to the mess called copyright law.

Bert

Copyright is holding us down

[ammorais]

The problem with today's copyright is something that as deep connections with the past and with our own society. There was a breaking point somewhere on the past that decided to use the technology, not for the good of mankind, but for the profit of some. I don't know were we could be if it wasn't for this breaking point somewhere on the past.

The problem is that copyright, patents, etc, have no moral stand besides not letting others to profit with someone's work. That problem only exist because of copyright, and patent laws on the first place, so there's really no point at all. While copyright and patents are two distinctive things on the eyes of the law, the principles and people who supports them are basically the same.

Every work today it's derivative work of someone, either were talking about music, software, art... Copyright and Patents are going to have many problems on the future, since the conflicts of interests will grow exponential over time. There will be some rupture on the future for sure. There are countries already that abolish patents, and almost copyright laws, because they realize that today's technology and free communication isn't compatible with this system. Knowledge and culture shouldn't be restricted, either because it's not fair for those who can't afford, either because it's something that slow us down in evolution.

We had things on the past that slowed us down 500 years in scientific evolution, like the Spanish inquisition. Let's us stop copyright and patents from doing the same.

Re:Was Copyright or Technology Better Understood?

[nbauman]

Another explanation might be the failure of practicing fully communal societies like the U.S.S.R. Back then it could have been construed as possible for art to flourish with everything in the public domain. After watching the few movies that came out of communist countries, I think it definitely inhibits the production of quality art.

Are you saying that the Soviet Union didn't produce good movies? There are a lot of big-name American and foreign filmmakers who would disagree with you.

When I studied filmmaking, they divided the world into before and after Eisenstein's Battleship Potemkin http://en.wikipedia.org/wiki/Sergei_Eisenstein (although by now Eisenstein has become a cliche). Eisenstein was invited to Hollywood (there's a famous picture of Eisenstein shaking hands with Micky Mouse at the Walt Disney studio), and Hollywood filmmakers deliberately set out to learn as much as they could from Eisenstein. The Soviet filmmakers were universally admired. I saw a lot of Soviet movies at the Museum of Modern Art. Don't forget, this is the land of Chekov.

Eisenstein's fortune was that (1) Lenin thought that film was a new and powerful medium that could be used to convince the masses to join in their collective struggle, and the Soviet Union put a lot of resources into it and (2) he was a favorite of Stalin, who also gave him pretty much a free hand. If you found favor with the dictator, you could be pretty creative in the USSR.

The Soviets were pretty good in all the visual arts. Do a Google Image search for http://en.wikipedia.org/wiki/Suprematism Malevich or http://en.wikipedia.org/wiki/El_Lissitzky Lissitsky. And of course they were brilliant musicians.

The great creative flourishing of Soviet art came to an unfortunate end with Stalin, but the Soviet cinema was still pretty good at least until the end of the war.

Nobody knows how Communism would have turned out if it had a more benevolent dictator than Stalin.

The great thing about the Soviet Union was that they didn't believe in copyrights or patents for most of their existence. They flooded the world with books and phonograph records cheap enough to be affordable in the third world, which an army of translators converted into every language of the world. They had good science books. There were physics courses at Columbia University that used Soviet textbooks.

If the Soviet Union were still around, and continued those patent policies, we would have the entire classical music canon in great performances in the public domain.

But the one thing the Soviets did brilliantly was make good movies.

Ideas are not copyrighted

[brit74]

"any and numerous classes of public benefactors continue ceaselessly to pour forth their flood of useful ideas, adding to the common stock of knowledge. No one regards it as immoral or unethical to use these ideas..."

Ideas are NOT copyrighted and have never been. If you think this is a decent argument against copyright, then you've already lost the argument. The only people who conflate "ideas" with "copyright" are people trying to drag you to a predefined conclusion.

Re:Economic Theory of "Intellectual Property"

[mpe]

I've seen some research to suggest that the optimal term for this monopoly is around 12-14 years. Any longer than that and the monopoly's benefit decreases until eventually it even prevents the natural flow of progress.

There's a point at which "too much" worst than none at all as well as a point where the damage is more or less total.
An analogy would be that copyright works like a nutrient, a dificency is bad, an excess is toxic, more than a lethal overdose can't make anything any more dead.

Re:Was Copyright or Technology Better Understood?

[meringuoid]

Nobody knows how Communism would have turned out if it had a more benevolent dictator than Stalin.

If Stalin had been replaced by some humane Communist who wasn't prepared to liquidate millions of kulaks in the cause of collectivising Soviet agriculture and freeing up labour for industrial work in the cities building tanks, well... I have a funny feeling that quite a lot of us would be speaking German today.

Mind you, if he'd been replaced by some moderate Communist who wasn't monumentally gullible and who actually read Mein Kampf before signing treaties with Hitler, then the Soviets might have been better prepared for a fight in the first place.

Re:Subject

[meringuoid]

Whatever happened to Winnie the Pooh in Canada? I remember a big deal was made of the fact that Canadian copyright expires 50 years after the death of the author, which would put Winnie in the Canadian PD sometime in 2006, but I never heard anything after the fact.

Not a clue. If you're in Canada, take the initiative: go fish out your copy of Winnie-the-Pooh from the big box of relics of your childhood you have in the attic, transcribe it, and upload it to gutenberg.ca. Then do The House at Pooh Corner, When We Were Very Young and Now We Are Six.

Funnily enough, these are the works that formed my views on copyright - when I was four years old or so, and we took the audio tapes of these books out from the local library, and dear old Dad showed me how to copy them on his tape decks, and we returned the originals and kept the copies...