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 Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers.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.

[vidarlo]

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.

You were not able to break copyright rules around 1900 by accident. You don't copy a book without being pretty deliberate about it, and you certainly don't give copies of a book away for free.

So in 1900 it was a fair assumption that copyright breach of any scale to speak of was commercial by nature. Today, that argument is no longer true. So stiff legal punishment was way more in place in 1900 than it is today.

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.

[Anonymous Coward]

Even more radical, Victor Hugo wrote in 1878 (yeah, a bit later; but the'yre from the same generation: Hugo was born just 2 years later than Macaulay):

Before the publication, the author has an unquestionable and unlimited right. But once the work has been published, the author is not its master anymore. It is then the other one who seizes it. Call him the name you want: human mind, public domain, society. This character is the one who says: "I'm here, I take this work, I do what I believe I have to do with it, I, human mind ; I own it, it is now mine".

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

[clarkkent09]

True, but because it is so much easier to copy books today it is also easy to cause far greater harm to the copyright holders. Today any idiot can easily and anonymously copy and distribute a book by the millions, so it can be argued that actually today there is a greater need for stiff fines as deterrence, or alternatively, a new workable model of protecting the rights of the author and incentive to create, without the need for such strict enforcement of copyright but unfortunately there is no such model yet.

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

[clarkkent09]

Really? How do you figure that? From the fact that in the last 160 years there was an explosion of copyrighted information that is far more widely available, to more people, at a lower price, with more choice than ever before in history? From the fact that the authors are able to make a living, and in some cases get rich, while their works are still available (in paperback format at least) to the average person for the price of 2-3 cups of coffee, not to mention for free in libraries? From the fact that the piracy is not really so widespread as to make a dent in the economy of it, and on large enough scale it is relatively easily dealt by law (see the crushing Pirate Bay as an example). Nothing he said came true.

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.

[ScrewMaster]

A truly remarkable (and, as it turned out, prophetic) analysis.

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.

[Tenebrousedge]

Victor Hugo was also instrumental in getting the Berne Convention enacted.

Something tells me that the context of that quote is very important. I don't read it as being contrary to the idea of copyrights, merely an informed view of their nature.

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

[grcumb]

True, but because it is so much easier to copy books today it is also easy to cause far greater harm to the copyright holders. Today any idiot can easily and anonymously copy and distribute a book by the millions, so it can be argued that actually today there is a greater need for stiff fines as deterrence, or alternatively, a new workable model of protecting the rights of the author and incentive to create, without the need for such strict enforcement of copyright but unfortunately there is no such model yet.

I'm sympathetic to the latter argument, that a 'new, workable model' of managing creative works be considered. But you've made a mistake by assuming a priori that it will be envisioned and enacted as including a concept of 'rights of the author'. Authors' rights as a definable concept have been nebulous at best since they were first posited.

A fundamental conflict exists between the creator's benefit and society's. It's a natural desire for all creators to want recognition (and ideally, validation) for their work. Creative processes resulting in notable works are time-consuming, exacting and often quite painful on a personal level. Poet Robert Frost memorably described it as 'the pleasure of taking pains.' Unless one receives some kind of reward for those efforts, there is little if any incentive to undergo the pain and effort of the creative process.

Society, on the other hand, benefits most when the fruit of these efforts are replicated simply and as close to no-cost as possible. We can play the chicken-and-egg game of guessing whether society benefits more from its great authors or its newfound ability to reproduce their works at no cost, but the fact remains that society as a whole does not benefit from any restrictions whatsoever on the reproduction of creative works and ideas.

(You can make the argument that creating an environment that makes rewards for creative works more predictable benefits society by allowing creators to prosper, but you'd have to demonstrate some sort of causative relationship between the two. You'd also have to deal with the numerous historical counter-examples where art and culture have flourished in their absence. Until you do, I'll assume that the argument is hypothetical at best.)

The approach that copyright took was to find a happy medium in which creators make reasonable demands on the public in exchange for reasonable limitations on those demands. But those demands are becoming increasingly unreasonable (thanks to Disney et alia) and unenforceable (bittorrent, etc.). The compromise has been subverted by both parties and cannot be remade.

Which leaves is with a sticky question: Can we actually express what we mean when we talk about 'droits d'auteur?' At the risk of oversimplifying, let's start with this broad summary:

The moral rights regime differs greatly between countries, but typically includes the right to be identified as the author of the work and the right to object to any distortion or mutilation of the work which would be prejudicial to his or her honour or reputation [...]. In many countries, the moral rights of an author are perpetual.

The basic concept that creators retain some sort of moral (and therefore legal and economic) rights over their creations is implicit in many legal and philosophical arguments concerning creative works. That's all well and good, but the plain fact is that, left to itself, society doesn't recognise or respect them. It does not pay for creative works as 'just desserts'; it recognises and rewards such efforts - usually according to arbitrary and fundamentally fickle criteria.

In short, societies don't recognise author's rights. They reward the ones they like, and they often punish the ones they don't. (And because they are not monolithic, they sometimes do both at once. The list of authors who have perforce lived with this

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

[clarkkent09]

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.

So does the Monster Raving Loony Party and it's equally far away from the political mainstream. What's your point?

It is by the fact that more and more people are obtaining copyrighted content from the internet illegally.

That's not really clear. It's getting less and less easy technically to copy things due to better copyright protection technology, and the more aggressive legal action. Technically skilled people will probably always find a way to copy content but most people are not technically skilled.

It is by the fact that more and more people think that this is okay.

I am not sure of that. Was there a poll done?

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.

Sorry but that doesn't make sense at all. Please read the quote again. The gentlemen in question (the quoted one) had no way of knowing that 160 years later it will become easy to copy something. What he was predicting was a complete disaster in the immediate future following the adoption of the copyright laws, and he was 100% wrong in his predictions.

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

[brit74]

Let's not forget other things he wrote:

You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.
http://baens-universe.com/articles/salvos2

I hope more people at slashdot would recognize the way that copyright supports the creation of media.

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

[brit74]

None of your points show anything about people disrespecting copyright. The fact of the matter is that whether copyright was a 42-year copyright (as Macaulay advocated) or 100+ years doesn't make any difference to pirates' actual behavior. In many cases, I see pirates complaining about the existence of Intellectual Property in any form - i.e. they want free filesharing, with a copyright length of 0 minutes.

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.

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

[collinstocks]

Perhaps.

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

[collinstocks]

To an extent, this was what he was warning against (though he set no time constraints) -- that eventually people would complain about the existence of copyright regardless of length of time. He argued that making the law too broad and absurd (arguable - I'm not debating whether he was right on this issue) would cause people to view the entire thing as an unnecessary evil.

What we see in the past is copyright being extended and broadened continually over time, and people eventually arguing against it as a whole once they have a means to violate it easily.

Of course it is not perfectly what he predicted (and it is extremely late), but it does kind of fit some of the points.

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

[BZ]

> From the fact that in the last 160 years there was an explosion of copyrighted information
> that is far more widely available, to more people, at a lower price, with more choice than
> ever before in history?

This might have something to do with the fact that McCauley _won_ the debate and his position was adopted...

We've only been in the regime he was talking about for less than a decade, and the things he talked about are in fact coming true. Give it a few more decades....

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

[symbolset]

and he was 100% wrong in his predictions.

This is what happens when we don't read the link and then try to speak on the topic. We embarass ourselves. To wit:

I should note that Macaulay's position, slightly modified, did become the basis of copyright law in the English speaking world. And remained so (at least in the US) for a century and a half--until, on a day of infamy just a few years ago, the Walt Disney Corporation and their stooges in Congress got the law changed to the modern law, which extends copyright for a truly absurd period of time. Which--those who forget history are doomed to repeat it--is a return to the position advocated by Macaulay's (now long forgotten) opponent in the debate.

- Eric Flint

Shame, shame.

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

[noidentity]

So he's basically saying that before copyright was well-defined in law, it was enforced in the social space by almost everyone, particularly buyers, but that turning it into law would cause the social-sphere version to disappear and for common people to stop caring about its enforcement?

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

[symbolset]

No. You should read the article I linked. It's very long, but it's a good read.

There already was a copyright law, and it allowed 14 years - a term which was considered reasonable and which has been determined to be optimal. The law he was arguing against proposed the life of the author plus 25 years. It was modified to conform to his recommendation of a longer than 14 but finite and predictable length of 42 years from publication, no extensions, no consideration for the longevity of the author. It was made law in England, and then by treaty in most of the rest of the world, and remained the law until 1976 (over 130 years).

It was only until 1976, and more regrettably 1998 that the law he was arguing against was adopted in the US.

Under the current law works published in 1923 will not expire from copyright until 2019 at the earliest, or much later in others. It's reasonable to expect that copyright will be extended yet again before this date, and so on in perpetuity, rendering copyright essentially eternal. This so defeats the social contract of copyright, so defeats the stated purpose of the "promotion of progress" and is so obviously an unfair law that people simply will not comply with it. Since they're already getting in the habit of breaking the copyright law, the don't bother with subtle niceties like discriminating between ebooks of 1984 and a prerelease movie.

And so... the outcome he warned against was avoided in his lifetime. He did a good service to his nation and the world. Because we've ignored his warning we find ourselves in our current state. That's what make this thread "done in one".

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

[HardFocus]

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.

Actually, marginal cost is not made obsolete. It is very much applicable. But a low marginal cost and the larger audience that the Internet affords should dictate a lowering of the selling price.

The RIAA and its ilk are interfering with this natural process by keeping prices artificially high. The ease at which you can pirate a book or CD today is an opportunity but the incentive to pirate should not be coupled to that.

(Why else would we have spam?)

Spam is not a product for sale and is only part of the cost of whatever is being sold, so I'm not sure why you think that is relevant.

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

[SlashWombat]

Others may only produce one or two works in a lifetime -

So, perhaps these people ought to starve. We should not be expected to support these parasites for their entire lifespan + 20 years! The truth is, "artistic" works are only worth what someone will pay for them. I find that many "modern" paintings are not worth the canvas they were painted on (IMHO). Yet, some halfwit somewhere has paid a small fortune for the very same painting, thus elevating the artist to "genius" status.

Just leaf through a book of modern paintings. Personally, I find about 1 in a 100 acceptable, yet someone who has gone through the modern brainwashing experience (college/university) will find them all praise worthy!

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

[Hognoxious]

You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research.

It's like he foresaw the blogosphere.

If he'd posted that on ye slashdotte, he'd have been modded a troll and called an elitist.

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

[turbidostato]

"How does one place a cost of production on an artistic work? A book, for example, is more than paper and ink"

But it isn't, production-wise much more than paper, ink and man's effort at competitive wages. The fact that not every man can produce a given book doesn't change that (neither a burger-flipping boy can do the job of a senior engineer).

"should we count time spent as part of the cost of production as well?"

Of course. Don't we do that with everything else?

"And if so, who sets the rate?"

Free market. Who else?

"In addition, each creation is unique"

As it's each fart. So what?

"and that, too, is part of their value."

Yes. But we are here talking about cost, not value. The production side is about costs, the marketing one about value.

"how does one create a competitive market in that same way for "books written by Isaac Asimov", when there is only one Isaac Asimov?"

On one hand, the strong part of market competition is not about "books written by Isaac Asimov" but about, i.e. "Sci-Fi books". On the other hand, even on the "books written by Isaac Asimov" there *is* competition, or do you think "Murder at the ABA" sells as easy as "I, robot"? And reality shows how market forces drives competition even within Isaac Asimov's works: why do you think Asimov has produced a ton of robot books but just one detectivesque but because the former sells much better than the latter?

"You're attempting to treat such creations as though they are "goods and services""

Hell, no! It is industry itself the one that wants to treat them as "goods and services"! Why do you think all they go around is about controlling the monetarizing part? Laws about plagiarism have been almost untouched for ages, it's when money goes into the equation when copyright-management companies scratch and squeeze.

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

[turbidostato]

""The moral rights regime differs greatly between countries, but typically includes the right to be identified as the author of the work and the right to object to any distortion or mutilation of the work which would be prejudicial to his or her honour or reputation"

In short, societies don't recognise author's rights."

Quite on the contrary! Look at the very definition you pasted: When has been the time when any society hasn't recognized authorship and the moral right of the author to any modification of his work, at least as long as it retains his name? There's no need for a law anywhere to have people feeling that me telling I wrote "Romeo and Juliet" or "Don Quixote" is wrong. The point is that you made an unstated implicit: "The basic concept that creators retain some sort of moral (and therefore legal and economic) rights over their creations"; there's no such "therefore": moral rights are a different beast to legal and economic rights. We, people, feel this as well as companies do ("therefore" neither people nor companies feel any pain when author "X" passes legal and economic rights for his works to company "Y" but we know that doesn't mean that they have the right to say they are "works of Y" instead fo "works of X"). And we are quite good at managing it: there's no problem to see where one aportating to an artwork starts or ends: nobody is confused about the meaning of "Vivaldi's Four seasons" (the opus) against "von Karajan's Four Seasons" (the director's interpretation of Vivaldi's work) nor we feel any problem if it's Deutches Grammophon instead of Karajan the one that gets the money from "von Karajan's Four Seasons" recording, as long as it is not said to be "Deutches Grammophon's Four Seasons" but von Karajan's.

"In practical terms, this means that creators should look more closely at contract law and other means of asserting clear terms and conditions on the use of their creations on a case by case basis."

Big YES! But there's no novelty on this: that's the way for any artisan-like proffesion. Some "artists" feel entitled for an 'a priori' recognition of his works: they "deserve" something because they produced something. That hasn't ever worked, or else I'd feel entitled to be rewarded for my farts. The problem with my farts is that nobody asked me to produce them, or else I'd make sure a proper contract is in place and then it wouldn't be that I "deserve" something for my farts but that someone would be contractually tied to pay me for them. But that's exactly what they want to work just because they are "artists" instead of carpenters, lawyers or plumbers: they produce something nobody asked for, and then they feel entitled to some reward. Hey, Michellangelo didn't took a big piece of marble, produced the Moses and then expected someone to pay for it but the other way around: he found somebody to pay for his work and *then* he produced the Moses. Quite a more sensible approach on my opinion.

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

[vivaelamor]

Given though the change in things from copying being a natural barrier to being an unnatural barrier, do you really believe he would still think copyright the best way of doing things? The guy was very smart, I do not doubt that if he lived today he would see more opportunities than were available when he made that speech. The other aspect is given hindsight, would he lament the negative effect copyright has had to be more harmful than the positive effect he envisioned?

I would argue that given the history of the lengths people will go to abusing copyright we should focus our energies on alternative methods rather than trying to tie copyright down to what it was in the first place.

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

[symbolset]

I hope more people at slashdot would recognize the way that copyright supports the creation of media.

We have more experience with the evils of which he spoke than he did. Intellectual property monstrosities have risen up and gained political power. They demand as their stated purpose nothing less than that no work ever fall from expired copyright into public domain again. They are as much at fault in their own undoing as The Pirate Bay.

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

[shiftless]

That's not really clear. It's getting less and less easy technically to copy things due to better copyright protection technology, and the more aggressive legal action. Technically skilled people will probably always find a way to copy content but most people are not technically skilled.

Are you wilfully blind? The younger generation which knows it way around computers is perpetrating copyright infringement on a widespread scale. Nobody has to cite facts and figures to prove this, because it's obvious to ANYONE with a pair of eyes who hangs out in this peer group. Let me give you an example from my own experience--I'm currently deployed to Afghanistan as a contractor. Over here, anybody under 30-35 years old has an external hard drive full of pirated movies and music. (Generally not rips from the crap pirated DVDs they sell over here, but the real deal DVD rips downloaded off a bittorrent site.) You can buy a 2TB hard drive and easily have it filled up within a day, limited only by how fast you can send bits over a USB cable. Back home, I don't know anybody in their early 20s who purchase CDs at the rate that people now in their early 30s used to. The straight edge folks buy most of their music off iTunes but a lot of them just rip it straight off The Pirate Bay. This is real, it's widespread, and it's happening all day long every day.

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

[vuffi_raa]

Actually, marginal cost is not made obsolete. It is very much applicable. But a low marginal cost and the larger audience that the Internet affords should dictate a lowering of the selling price.

actually by this definition most music by independent artists (like myself) can tend to have an actual production cost of $0 outside of labor (since the only costs are hardware which are re-used but I do put many many hours into production ) - I do agree that there should be some compensation when applicable though for the very reason you give I usually give my music away for cheap to free.

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

[Danse]

None of your points show anything about people disrespecting copyright. The fact of the matter is that whether copyright was a 42-year copyright (as Macaulay advocated) or 100+ years doesn't make any difference to pirates' actual behavior. In many cases, I see pirates complaining about the existence of Intellectual Property in any form - i.e. they want free filesharing, with a copyright length of 0 minutes.

That's what's known as a backlash. It's what happens when something becomes so onerous that people just want it gone. Those who've actually thought things through completely don't advocate that generally (although there are some who believe an alternate system could work).

The problem is that the media industry lobby (globally, not just the American media lobby) has gotten laws passed to completely cut out any benefit to the public. That goes counter to the intentions of the copyright clause in the US Constitution, even if they believe they still haven't crossed the line technically (forever minus a day is a limit, right?)

Copyright has always been a bargain between the public and the creators. Now that they've managed to swindle the public out of their side, they've lost the respect that a just law usually receives. Exactly as McCauley predicted.

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

[Hognoxious]

the cost per copy that would theoretically be lost is much lower now than at any time.

I don't see how you come to that conclusion, since it was never the physical reproduction cost that the author/composer was losing. I doubt the amount of work needed to write a novel or symphony has changed by the same order of magnitude. Creativity doesn't auotomate well.

Was Copyright or Technology Better Understood?

[eldavojohn]

After reading some of those excerpts, I agree that it was handled better in those days. I wonder though, was the degradation of understanding on the side of the copyright law or on the side of the technology that enshrouds copyright law. I think judges and jurors understand the law quite well, it's the technology that implicates people that has increased in complexity and allowed lawyers to play with to exacerbate the situation. Music, Movies, works of art are all a very complex business today thanks to wonderful new technology. I think this is a better explanation.

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. Don't get me wrong, I'm not arguing for either extreme. I'm just saying that there's a happy medium and we're gravitating away from that.

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.

Re:Was Copyright or Technology Better Understood?

[Patch86]

The reason, one could argue, that art in the Soviet Union ended up in the doldrums is not that there was too much freedom, but not enough.

If "everything is in the public domain", that by itself implies that there are no copyright or IP laws to constrain creativity. It is intellectual freedom.

What killed creativity in the USSR was, instead,the censorship. They had great artists (in all media), but the only ones to ever be allowed to flourish were those that towed the party line. Plenty of great artists undoubtedly withered on the vine in that environment.

If you could find a society with no legal or authoritative restraints to creativity, then we can talk about comparisons. Otherwise it's just variations of the same.

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:Was Copyright or Technology Better Understood?

[ShakaUVM]

>>The great creative flourishing of Soviet art came to an unfortunate end with Stalin

You say that like it was an accident.

All communist regimes end up being dictatorial by nature (if people do what they want, it's called capitalism). Look at Mao and his blossoming of a thousand flowers for another great example of this.

Re:Was Copyright or Technology Better Understood?

[nbauman]

if people do what they want, it's called capitalism.

People in the Scandinavian countries did what they want, and they got mixed capitalism/socialism. (No health insurance premiums, no college loans.)

Capitalism doesn't inherently prevent dictatorships.

Look at Chile, Argentina, Guatemala, Haiti.

We've had dictatorships in the U.S. all the time. Look at the Alien and Sedition Acts, the McCarthy days, or the late Bush Administration. The only thing that stopped the Bush Administration from arresting anyone he pleased for any reason, including law-abiding political rivals (http://en.wikipedia.org/wiki/Don_Siegelman), was the separation of powers. It had nothing to do with the inherent qualities of capitalism.

Re:Was Copyright or Technology Better Understood?

[bky1701]

I assume you learned that in American school...

It is not the nature of Communism to allow dictators. It is the nature of lower-class revolutions to allow dictators. Unfortunately, when the lower classes do eventually break out of their grind and rebel, they will start to believe whoever they replace the old order with. Look at the French Revolution, where a small, tyrannical group could keep control and do awful things, because they were riding on the wave of lower-class hatred.

This is unfortunate, but true. Lower classes are easily manipulated, so when they attempt to seize power, the results are often disastrous. Communism has the unfortunate property that it appeals primarily to those with nothing to lose, which means they're going to be very, very angry, and they're going to be happy to have that anger pushed onto anyone other than the government they worked so hard to establish.

Re:Was Copyright or Technology Better Understood?

[ShakaUVM]

You misunderstand communism, then, or at least are confusing it with socialism. Communism, at its heart, is a centrally controlled economy where the government determines where you work, how much you earn, etc. The bits about egalitarianism, holding properties in common, and the doing away with money are essentially window dressing, and do not actually happen in any communist societies.

Someone ends up owning the farms, making decisions about what to grow, and who can or cannot leave the farm, and it's certainly not the peasants that run them. And when you have one guy that can tell another guy what he has to do with his life, that's not egalitarianism, that's tyranny worse than anything that "The Bush Administration" (!?) ever did.

It's also not coincidental that all communism regimes end up this way, as tyranny is a necessary element in getting a centrally planned economy to work.

"Socialism" like you have in the Scandinavian countries is not the Socialism of Marx, but rather the replacement of the free market with government-run enterprises. The US Postal Service is a socialist enterprise, for example.

Re:Was Copyright or Technology Better Understood?

[nbauman]

You misunderstand communism, then, or at least are confusing it with socialism. Communism, at its heart, is a centrally controlled economy where the government determines where you work, how much you earn, etc.

I don't know. It was difficult in the U.S. to get objective information about the USSR. You could go to jail in the U.S. for advocating Communism http://en.wikipedia.org/wiki/Dennis_v._United_States and teachers were fired. So I never knew who to believe.

I once read (actually copy-edited) a business school book on management accounting, and they gave case histories from the Soviet Union. Apparently the Soviet Union had internal markets, and the factories were run by managers who had a lot of autonomy. They bid on projects, and everybody in the factory was rewarded if they met their quotas, and penalized if they missed their quotas. It's quite different from Citibank and Goldman Sachs, where the managers get bonuses even if they miss their quotas. So how much economic freedom did the Soviets have? I don't know. The system was more complicated than I realized.

They were very good at large, centralized projects that benefited from economy of scale, like tractor factories. They had a good education system, particularly in science. They sent the first man into space. They weren't so good at projects that required individual resourcefulness and independence -- they had lots of electronic hobbyists who built home computers, but they were never able to clone an American PC, let alone build a PC industry, as Taiwan did. They sound like General Motors.

Someone ends up owning the farms, making decisions about what to grow, and who can or cannot leave the farm, and it's certainly not the peasants that run them.

I don't know. Farms may need managers. But have there ever been collective farms where the farmers elected their managers? I do know the Soviets educated a lot of peasants, and educated a lot of pretty good chemists and engineers. Some of them emigrated to the U.S. and did well. And they didn't have college loans to pay off.

I know people who lived through the Soviet system, and I'm well aware of its weaknesses. The flourishing of free artistic expression came to an end with Stalin. People were shot for telling jokes about Stalin.

But they did have world-class accomplishments in education, the arts and sciences. It's too simple to say that the arts flourish under capitalism and wilt under Communism.

In particular -- and the point I was raising for Slashdot -- is that under Communism, socialism, whatever, the artists and scientists were paid salaries, they had no patents or copyrights, and if that system were in existence today, their work would have been distributed free on the Internet. It's an interesting model.

Re:Was Copyright or Technology Better Understood?

[mjwx]

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.

If the western allies hadn't forced Imperial Germany to sign the treaty of Versailles, or at least reduced the war debts payable by Germany to the point where it didn't completely bankrupt the German people, forcing the price of a loaf of bread to 5 Deutschmarks (in 1920) then maybe the environment would never have allowed a radical group like the Nazi's to rise to power in the first place. Churchill himself pointed to the treaty of Versailles as the cause of WWII.

Re:Was Copyright or Technology Better Understood?

[sjames]

The USSR's big problem was that people with a flair for the arts didn't necessarily become artists, only people with a flair for ideologically correct art did. Meanwhile, decidedly non-creative bureaucrats decided what art was ideologically correct and appropriately reflected the ideals of society. The artist could agree or go do something besides art.

They not only eliminated capitol markets in the USSR, the market for ideas was also closed. What the people wanted or what the art world would praise was irrelevant, it was what the bureaucrats wanted. There was no room to produce a challenging work that would ultimately secure your place. There wasn't even room to produce the big boxoffice summer schlock that the undiscriminating teen couples would ignore while making out. It's not the lack of copyright that killed (most) art in the USSR.

It's not judges and juries that are the root problem in the West. It's the legislators. They are the ones who are supposed to write the laws to benefit society as a whole.If you read the old debates and then compare to the congressional soundbites of today, you'll find a HUGE difference. The debates back then were truly centered on what would be good for the society as a whole. They were practicing statecraft. Today the discussion seems to focus on how to carve up the pie and who gets the big piece with the cherry. They seem to have no ability or inclination to consider secondary or tertiary effects.

They're playing Chess but they only look forward one move (their own). When the obvious countermove comes, they're mystified as to how it could have gone so wrong.

Ideally, we would remove all concept of copyright AND all need for artists to make money. Since that's not a solved problem, the best we can do is allow for the artist to make money somehow, but if we use copyright to that end, we need to also make sure it does the least damage possible to society and that it doesn't decimate new art and new artists while failing in it's job to promote the useful arts and sciences. The first step would be recognizing that legislating freebies for works already created by deceased artists will not inspire them to rise from the grave and create more. The bargain on the books at the time was adequate and so they created the work. That they even considered granting extensions on already existing works shows their fundamental misunderstanding of what copyright IS and what it is FOR.

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.

Re:100 years ago...

[Compholio]

the use of the word draconian is too draconian too. can't you shills come up with a better word?

malfonian?

Re:100 years ago...

[Danse]

the use of the word draconian is too draconian too. can't you shills come up with a better word?

Ok, how about you offer a better suggestion to describe a law that results in a ~$2 million fine for downloading about 2 CDs worth of music, as well as many other unjust results.

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:Ideology is irrelevant. Resistance is futile.

[Garrett Fox]

Your sig is the start of a solution.

Re:Ideology is irrelevant. Resistance is futile.

[russotto]

Anyone who thinks this is about anything other than a bunch of rich bastards exploiting a segment of the population is deluding themselves.

That was quite a rant, but you failed to mention which side you were on.... either side would make the same claim. (on the pro-copyright side, the "rich bastards" would be well-off computer owners and their offspring, and the exploited segment would be those poor performers and songwriters)

Umm no.

[nurb432]

However we have been fed misinformation and lies by the 'industries' and a lot of the general population is beginning to believe it.

I don't call that smarter.

Grrr

[nurb432]

Ok, i missed a word in the subject and thought it said ARE, not WERE.. just ignore the comment :)

Good for a chuckle: Galambosianism!

[bonze]

Decades ago, when reading Jerome Tuccile's "It Usually Begins with Ayn Rand," I thought that Galambosianism--founded on the principle that rights in ideas should be private property in perpetuity, and subject to royalties for all uses--was just another of Tuccile's hilarious inventions.

No, the reason you never heard of the all-too-real Andrew Galambos' absolutarian IP concepts is because he had his lecture attendees sign an NDA! Would Galambos compromise his principles by giving away his startling revelations or permitting the great unwashed unrecompensed access to his revolutionary concepts? NAY!

No Way Out?

[mindbrane]

There are complexities inherent in these issues that make an immediate set of solutions highly unlikely. Philosophically it should be argued we're social creatures and all have a share in the universe of ideas we've engendered. Even the most creative people are subject to a sort of ideological horizon in place during their creative lifetime that delimits the content and reception of their output. Given ideas as universally shared social artifacts there is still the question of reimbursing creative people for their output. J.S.Bach, in his time, was unconstrained in his use of the ideas of others and others weren't constrained in their use of Bach's output. One of his sons C.P.Bach, (IIRC), was famous for loitering under Beethoven's window and stealing musical ideas literally as Beethoven struggled to create them. C.P.Bach would then incorporate Beethoven's ideas in his, often, farcical works before Beethoven had finished fully developing the ideas C.P. Bach had stolen. Copyright laws we're meant to give some measure of protection to intellectual property and justly so, but, also property is integral to most western concepts of democracy. I recall it's in the works of Locke that property rights and property owners are seen as fundamental to defining entitlement to democratic rights and privileges. Although I don't remember Locke addressing intellectual property. Today much of the impetus pushing legislation is driven by job creation and the generation of tax revenue. Intellectual property rights are being exaggerated in the name of jobs and tax revenue. Perhaps a further complicating factor is that the PC has been turned into a digital aggregator of once analogue, disparate information sources. The PC with an internet connection is a TV, Radio, Newspaper, Telephone, Postal Carrier...inter alia and all those old conduits are struggling to make sure their old piece of pie isn't downsized in the change over. With all this stuff in the pot it's unlikely a solution set will be soon in place.

Re:No Way Out?

[Halo1]

I recall it's in the works of Locke that property rights and property owners are seen as fundamental to defining entitlement to democratic rights and privileges.

You're recalling only a third of Locke's theory. The other two thirds are that after you have reserved your property rights, there has to be "enough" and "good enough" of the same left for everyone else, and that you should never appropriate more than you can use. And arguably, patents fail in those aspects (ppt).

Your presumption of harm

[symbolset]

Your presumption that the violation of copyright in some way guarantees harm done to the holder of the copyright is an interesting and novel economic theory. Have you got a citation you would like to share?

Re:Your presumption of harm

[Hognoxious]

You can argue about the proportion of piracy that involves lost sales. But if even one person downloading a free copy would have bought one instead then yes, the holder has lost some money.

That's common sense, I don't think a citation exists for it. Then again, some of us don't need one.

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

getoffmylawn, inthegoodolddays

[tylersoze]

Wow, I didn't realize there were that many 100+ year old Slashdot readers pining for the early 1900s.

Re:getoffmylawn, inthegoodolddays

[selven]

Google is over 100 years old, so why not Slashdot?

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.

Actually it's very simple.

[symbolset]

The same section of the Constitution that delegates to Congress the power to grant copyrights and patents also grants to Congress the authority to declare war. In both cases it does not compel Congress to do so.

Re:Actually it's very simple.

[Garrett Fox]

Congress has no general legislative powers, according to the Constitution. That is, if a Constitutional amendment struck the clause in Art. 1 Sec. 8 granting the explicit authority "to promote the progress of Science and the useful Arts" by granting patents and copyrights, Congress would have no authority, period, to do it. Yes, some people would say otherwise, but those arguments are based on a severe, deadly misreading of the Constitution as judged from its text, the 10th Amendment, the Federalist Papers, the state ratifying documents, the ratifying debates, and the whole point of the Constitution as establishing a limited, federated government.

Different, not "smarter"...

[mi]

What the presented material shows, is that our attitude was different from today's. Whether that was smarter or stupider, depends on one's opinions. The article provides nothing to add to the debate...

Re:Moral Theory of "Intellectual Property"

[value_added]

The Constitution's wording is ambiguous on this point, but seems to treat "intellectual property" as a privilege rather than a fundamental right. The theory echoes Jefferson's argument that ideas are like a candle-flame, such that "he that lights his taper from mine" doesn't diminish my supply of light ... We've lately been treating IP as more like a right.

That we've been treating IP like a right is hardly surprising if you pay attention to the conversations of those who have power (politicians, business leaders, think tanks, etc.). A random example:

Dear Mr. President:

Protecting intellectual property (IP) rights has been a fundamental concept in the United States since the Founders provided Congress with the power "To promote the Progress of Science and useful Arts" in the Constitution. Today, America's commitment to strong IP protection has yielded astounding results. Not only do industries based on IP employ 18 million Americans, but they also account for more than $5 trillion of the nation's GDP, and more than half of all our exports. ...

Maintaining strong IP rights is essential to economic growth and continued innovation, and protecting IP rights will not only improve the world's development but America's as well.

Sincerely,

Evan Bayh
Orrin G. Hatch
Robert F. Bennett
Debbie Stabenow
Charles E. Grassley
Arlen Specter
George V. Voinovich
John Thune
Judd Gregg
David Vitter

No point in getting excited seeing the names of the folks signing the letter as they're the same words and thoughts expressed by just about everyone when the subject of IP rights comes up.

The point here is that with $5 billion at stake, Jefferson's notions of candle flames seem almost quaint. As do moral theories.

Economic Theory of "Intellectual Property"

[symbolset]

There was a great deal of progress made before the invention of IP law. Humans are compelled by their natures to create and learn the creations of others and improve upon them. This is called progress.

Some time ago it was commonly agreed (with some dissent) that to reward creation with a monopoly on the use of that creation might accellerate progress, which is a social good.

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.

But that's moot. The creation of IP as a construct as a side evect creates rapacious corporate monstrosities. Their greed cannot be sated and the only way to kill them is to abandon the experiment and abolish the monopoly.

Re:Economic Theory of "Intellectual Property"

[Garrett Fox]

One thing that came up in my classes was data showing that most copyrights are nearly worthless within a few years. For instance, right now there's probably a sudden rush of books about Michael Jackson, but in ten years those new books will probably be forgotten. Why bother protecting them for 60+ years beyond that?

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:Economic Theory of "Intellectual Property"

[mpe]

One thing that came up in my classes was data showing that most copyrights are nearly worthless within a few years.

In some cases considerably less than that.

For instance, right now there's probably a sudden rush of books about Michael Jackson, but in ten years those new books will probably be forgotten. Why bother protecting them for 60+ years beyond that?

Because the industry is interested in milking the exceptions, which include Mr Jackson's music, for as long as possible. They can still make money, even though copyright is utterly useless for the task of encouraging him to produce more music.

Re:Economic Theory of "Intellectual Property"

[gnupun]

right now there's probably a sudden rush of books about Michael Jackson, but in ten years those new books will probably be forgotten.

Really? The crappy books will be forgotten soon. But the good and excellent books will be read for hundreds of years. People still read books by Shakespeare, Tolstoy and Dickens, hundreds of years later.

Why bother protecting them for 60+ years beyond that?

Book revenues don't drop to zero after 10 years, they still decent money for decades unless they are highly mediocre to begin with.

Re:Economic Theory of "Intellectual Property"

[Danse]

right now there's probably a sudden rush of books about Michael Jackson, but in ten years those new books will probably be forgotten.

Really? The crappy books will be forgotten soon. But the good and excellent books will be read for hundreds of years. People still read books by Shakespeare, Tolstoy and Dickens, hundreds of years later.

Why bother protecting them for 60+ years beyond that?

Book revenues don't drop to zero after 10 years, they still decent money for decades unless they are highly mediocre to begin with.

And works as great as anything written in the last few decades were written even before we decided to extend copyright practically into perpetuity. I don't see that we've really gained anything, except the ability of a relative few to milk those rare works whose longevity exceeds a handful of years forevermore. Meanwhile, all benefit to the public domain has been essentially eliminated. The public gets the shaft so that a relative few can get very very rich. Why does this not surprise me?

A different time, a different place.

[westlake]

The phonograph of 1910 would set you back $50-$250 good-as-gold dollars.

Why else do you think public performance rights -
the coin-in-the-slot nickelodeon - became the real sticking point for musicians and composers?

The phonograph record or cylinder of those days was for all practical purposes a rental.

Only the most expensive players would have had separate - acoustically linked - tonearms and horns ["speakers'] and a diamond or perhaps carbide-tipped stylus.

Edison used custom pressings and a set up like this in blind "tone tests" with live musicians and singers to demonstrate "hi-fi" reproduction.

Re:Moral Theory of "Intellectual Property"

[v(*_*)vvvv]

"Do/should we recognize a creator as having a property right to his creations because there's a moral right to control them, or only because we think it's convenient for society? Ie., is this a 'fundamental right' or a government-granted privilege?"

You are confusing philosophy, with motive, and with what works in reality. Philosophically speaking, we are free to argue over the "fundamentality of the right," but there will be no direct consequences from that argument. The real consequences (reality), if we so desire them (motive), can only come in the form of government privilege, because that is how we enforce order, and shape our behavior. Only when it is a granted privilege, can we rely on that privilege, legally.

The real question should always be about our motive. Left in the hands of the copyright lobby, we know their motive, and they make it quite clear: money. Unfortunately their behavior is within their privilege, so they are immune from ethical or moral attacks, legally. And legality is all that matters when it comes to real consequences (reality).

Here lies the real problem. Companies have one very clear motive, and that is money. They can act on it right away, and so you see rapid tactical advances on every front. They also have the capital to pay an army to achieve their goals. They are also completely immune to any moral or ethical consequences.

We the people do not have a very clear motive, nor do we have strong representation. We also spend more time fighting over morals and ethics, because it is important to us, even though they have no real consequences.

The real challenge is to implement real consequences based not on what the lobbyists want, but on what we want.

By definition, that is how we get what we want.

Now, with the current system, the corporations will always have the advantage. So I say we need to back pedal, and first decide on how we want the system to work for us.

United, we are bigger than any corporation. The moment we make the system work for the people, everything else will follow.

Get rid of copyright...

[syousef]

I like living in an era of computing and modern medicine. I don't feel nostaligic for a time when you were likely to die before you hit 40. I think we should probably abolish copyright altogether, but we could at least start by limiting it to 5 years. If the "artist" or creator can't perform their work sufficiently well to compete with others performing it (ie much better) they don't deserve the revenue. The argument that nothing new would be created is pure fud.

Most people can own and operate a camera but will still hire a professional photographer (and mosti will not the cheapest one) to shoot their wedding. Professional photography isn't dead. We haven't had to artificially regulate it. There will always be room for people to be paid to do something well, or at least well as judged by the populace.

Re:Get rid of copyright...

[Aladrin]

Copyright isn't to stop amateur photographers from taking pictures. It's to stop crooks from selling someone else's pictures. In fact, it has nothing at all to do with the actual taking of the pictures. It's the end product that is covered.

While I think Copyright is way too strong, and should be something that ends within the author's lifetime, and not a century afterward, I think dropping it altogether is too far to the extreme, too.

Re:Get rid of copyright...

[TheTurtlesMoves]

Ironically most professional photographers wanted to charge me an arm and a leg for our wedding photos *and* keep the negatives and copyrights! Then charge an arm and a leg for any prints! So in the end I got a retired photographer in the family to do the job.

Re:Slashdot's double-standard on copyright law

[Tubal-Cain]

Without copyright, the GPL has no power, and people can do whatever they want with your open source code, including sell it as a closed source product.

And FOSS people can do whatever they want with a closed-source binary. Including copy, disassemble, and reverse engineer it.

Re:Moral Theory of "Intellectual Property"

[Garrett Fox]

Well... Yes, patent is much more limited in that there's a far shorter time limit and far stricter requirements. This very comment is automatically copyrighted under US law until at least 2079, hopefully much longer -- which is absurd. (A cure for cancer would be protected for a lot less than life + 70 years, despite being infinitely more useful than this comment!) What I was getting at, though, is that both patent and copyright have that underlying question -- whether we're issuing this protection because we think there's a moral right to it, or just because it's supposedly good for society.

Re:Moral Theory of "Intellectual Property"

[Garrett Fox]

I'll ignore the insults, AC, other than to note that the state bar association would disagree with them.

The mistake above is that "right" is being used to mean both "fundamental right existing for philosophical reasons" and "government-granted privilege granted for society's benefit". "Right" was used ambiguously in this way even in the Constitution.

Re:Moral Theory of "Intellectual Property"

[Wildclaw]

- 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.

When a book is sold it is out of the control of the book owner in the exact same manner. With neither patents nor copyrighted items are you are allowed to duplicate the effort. But you are allowed to apply the first sale doctrine.

(and if they were not met, you can do something about it)

As long as the patent isn't owned by a coorporation who can play the mutually assured destruction card (a.k.a. the defensive patent doctrine). Oh, and you would have to afford to spend a huge amount of money on litigation, praying that you win.

You must have noticed that patents have a limit of 20 years (and maintenance fees have to be paid).

While the time limit is indeed shorter, the effect is much greater, as patents directly limit what others can do, and there is only a limited amount of ways to do any specific procedure. History is full of examples where patents have slowed down specific industrial advancements for 20 years.

The biggest difference between patents and copyright, is that patents only directly affect businesses, which makes it more acceptable. But I still believe that the patent system needs just as much as a reform as the copyright system.

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:Ideas are not copyrighted

[northstarlarry]

In the US, any idea fixed in a tangible medium, say, scribbled on the back of a cocktail napkin, or posted to an online forum, is in fact, without any further action, copyright of the person who did the fixing.

Re:Ideas are not copyrighted

[russotto]

Ideas are NOT copyrighted and have never been.

Yeah, right, that's why you can enforce a copyright on characters and settings, even when you do not copy the work those characters and settings appear in. The idea/expression dichotomy is not particularly strong.

Re:Ideas are not copyrighted

[rawler]

Ideas is not subject to copyright but definitely protected by intellectual property laws in many countries. The famous double-click patent, or patent on streaming media, downloading, or blinking text-marker comes to mind.

Re:Ideas are not copyrighted

[cpt kangarooski]

Well, not an idea, but an expression of an idea. Other people are free to examine that expression, determine the idea, and create their own expression of it.

Subject

[Legion303]

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.

I ask because even 50 years seems like an insane amount of time to cling to a copyright, but here in America (land of the free corporate overlords) we're looking at upwards of 120 years on some things. If I want to find PD samples to use in songs I have to scrape together what I can find from what few recordings even existed at the time. The original intent of copyright has been so thoroughly corrupted that there's little or no resemblance to what it was supposed to represent.

Re:Subject

[Sir_Lewk]

I believe Disney owns Winnie the Pooh IP, at least in America.

Knowing that, regardless of whether it actually is PD in Canada or not, I'd expect one hell of a legal fight if you tried to use it. Disney's lawyers are about as ruthless as they come.

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...

Re:Subject

[Drakkenmensch]

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.

Disney made Pooh movies, remember? It's a pretty safe bet that even if canadian copyright laws enable you to use him, the House of Mouse will sick its flying monkeys to tear you to pieces in court.

Re:Slashdot's double-standard on copyright law

[orasio]

You can use something you don't like, in order to fight it.

Copyleft (http://www.gnu.org/copyleft/) is about using copyrights in the opposite direction than proprietary software distributors.
If there were no copyright in the first place, there would be no need for copyleft, and all software would be free software.
The only issue left would be patents on software, but I wouldn't care that much, because here, outside of the US, there are not a lot of places where they are valid.

I think, myself, that copyrights are no longer serving the general public, and so have no reason to exist.
I work on software, so I'm supposed to benefit by them, but I think that the eventual benefit that the author gets is too small compared to the cost in enforcing, and the cost for society as a whole of not being able to improve on other people's work.

But that is not my reason for using piratebay.
Piratebay is just the easiest way to find what I want to see, when I want to see it. I prefer to go to the movies, and I go a lot, but when I want to see .something in particular torrents are the best. I wouldn't mind paying for a service like netflix, if they sold something like that where I live.

Re:Moral Theory of "Intellectual Property"

[mpe]

Left in the hands of the copyright lobby, we know their motive, and they make it quite clear: money.

Money for them, which may or may not be good for the entire economy. They may not even be right themselves. Considering that in the past technologies which were going to "kill the industry" have instead made them lots of money.

Re:Slashdot's double-standard on copyright law

[mpe]

Copyleft (http://www.gnu.org/copyleft/) is about using copyrights in the opposite direction than proprietary software distributors.

As well as in a way which appears to be much more "in tune" with the justification for copyright given in the US Constitution.

Re:Bitter protest against copyrights

[mpe]

But if I said I didn't have an incentive to to make beneficial or creative works without a copyright monopoly, then all of a sudden people just take it on faith, they don't even question it, they just assume that society would fall apart without them. In my humble opinion, this is intellectually dishonest, especially considering that the entire Renaissance happened without copyrights.

Copyright is very recent concept. Whereas creative works have been going on as long as there have been humans. All we know about people from tens of thousands of years ago from their artifacts and artwork.

Ideas are indeed copyrighted

[Geof]

Ideas are NOT copyrighted and have never been

Copyright law draws a distinction between idea and expression. Expressions, according to the law, are copyrightable. Ideas are not. This is important because it preserves freedom of speech: you can express the same idea with a different expression. That's the theory.

Please, then, tell me, is Mickey Mouse an idea, or an expression? If it is an expression, what idea is it expressing?

A court actually ruled on this one. Its conclusion? The "idea" of Mickey Mouse is "mouse." Everything else is expression.

Great. We have the freedom to express "mouse" in different ways. But all of the cultural meanings and emotions and passions and history around Mickey Mouse? Those are part of Mickey Mouse too. Not of "mouse." They are ideas. And yet, they are protected.

Take a piece of music. What is the "idea" of a symphony? In the U.S., a single bar of music can be copyrighted. Music is all expression. No idea. What relevance does this strange division have for music?

Take Holden Caulfield. J.D. Salinger recently sued another author for writing an apparent sequel to Catcher in the Rye. Salinger won. Not because the other author used the same names, or the same plot, but because the story and the character were similar.

These immaterial things we hold in our heads? According to the law, most of them are not in fact ideas. They are expressions.

The law can define its terms however it likes. This is what we call an analytic distinction: it does not correspond to characteristics of the world. The distinction between idea and expression is invented, just like the arbitrary line drawn on a map and called a border. It's a legal fiction. Each individual case makes the difference between "idea" and "expression" more clear, and yet more complex: the border becomes every more jagged, ever more detached from ordinary human speech and experience. Case law can say what it likes, but it does not have the authority to redefine the English language. Its terms have nothing to do what ordinary people mean when they use these words.

Yes, you can copyright an idea. That's what copyright does.

Re:Moral Theory of "Intellectual Property"

[gnupun]

I've studied patent and copyright law professionally, and still haven't seen a clear and compelling argument for how it ought to work.

Let's say you own a house. That ownership protects you from some hoodlum or unpleasant stranger barging into your house and staying there without your consent. In other words, the law recognizes that you have paid a hefty price to own an asset, and prevents other shady, unlawful characters from taking advantage of this asset.

Similarly, a book written by its author, belongs to the author unless he sells it to a publisher. Copyright law was there to prevent leeches, pirates and greedy publishers from simply using that work without compensating the author. Just take a look at all the anti-copyright comments here. A lot of human beings are greedy and want stuff for free.

Contrary to popular slashdot opinion, human beings are free individuals. They don't exist to serve the common good -- they are not slaves to the common good. Their minds, bodies and by extension, their work belongs to them and not to society. They may interact with society in a mutually beneficial manner, but are not subservient to it.

Re:Moral Theory of "Intellectual Property"

[cpt kangarooski]

We've largely abandoned the notion of fundamental rights in the US, to our great peril. Because of that abandonment it's harder to think clearly about the question.

How so? The US has long settled on a utilitarian model of copyrights and patents, and it has served us well. It's only been in the last century or so that we've allowed authors and inventors too great a voice in setting policy that things have gotten out of hand.

while a song or story is created from a person's mind and so is at least as legitimately the creator's own property?

So long as it stays within the creator's mind, sure, why not? But once he has shared it with someone else, how can the creator possibly assert a right to the minds of others? After all, copyright doesn't particularly empower the creator, it just lets the creator interfere with other people.

Re:Not a troll.

[symbolset]

It's a troll. Thomas McCaulay's speech was effective and the amendments to the law under consideration were adopted. The era of endless copyrights didn't begin until 1976 and we are only now realizing what damage it's done. The various copyright extension acts also retroactively protect works already produced - which could not in any way serve the "promote progress" goal.

Oh, and Thomas MaCaulay was a Brit was speaking in the British House of Commons about a British law. He was renowned for his eloquent and thoughtful speeches. He later traveled, wrote the History of England and other works, was made Baron Macaulay and eventually of course, died.

Re:Moral Theory of "Intellectual Property"

[kanweg]

"When a book is sold it is out of the control of the book owner in the exact same manner. With neither patents nor copyrighted items are you are allowed to duplicate the effort. But you are allowed to apply the first sale doctrine."

Like your Kindle book, or your copy of 1984? Patented devices sold don't come with a EULA. As to paper books, I grant your point for paper books, but that's not where the greatest mess of copyright law is.

"As long as the patent isn't owned by a coorporation who can play the mutually assured destruction card"
You're mixing things up with infringement.

"While the time limit is indeed shorter, the effect is much greater, as patents directly limit what others can do, and there is only a limited amount of ways to do any specific procedure. History is full of examples where patents have slowed down specific industrial advancements for 20 years."
Apart from the fact that very few patents make it for the full 20 years (if they get granted in the first place), here's another one. If you improve on a patented invention and patent that yourself, you've taken a bite out of the cake of the first proprietor. While you cannot do what is covered by the first patent, the other party cannot do what you came up with. Talking generally resolves this to the benefit of both parties.

In my daily work, I point companies/inventors to patent literature and explain them how they can benefit from the information provided there. Patents are a rather blunt tool, but while it is easy to point out to cases where a (stupid, if I may add) company slowed down progress, the opposite is quite a bit harder to show. If an inventor reports with a new idea, who knows whether that inspiration came from from knowledge gained from patent literature as well? And patent literature is free in both meanings of the word. It is open source knowledge, with instead of a GPL a time and territorial restriction.

While still in for improvement, with patent law I can see the mechanism by which society benefits and that there is a somewhat fair balance between society and inventor. With copyright law, that is a tad or thousand harder.

Bert

Similarly for history of (software) patent debate

[D4C5CE]

14:3 International Journal of Law and Information Technology 257

BTW, Stallman (RMS pour les initiés) just had some interesting things to say about these and a DRM "Swindle":
http://www.linux-magazin.de/NEWS/Video-Stallman-ueber-DRM-Patente-und-C
(interview on video in English of course - free from a famous Spanish holiday resort, beats rainy Redmond/WA ;-))

Re:Slashdot's double-standard on copyright law

[Hognoxious]

You can use something you don't like, in order to fight it.

Indeed you can. But if the Amish felt they were being repressed by the relentless encroachment of modernity and chose to fight back by flying planes into buildings I for one would find it ironic.

Re:Slashdot's double-standard on copyright law

[turbidostato]

"You guys are all about bashing copyright law... ...except in a GPL article."

Well, I for one am all about thrashing away the GPL as long as you thrash away copyright laws, and I'm sure I'm not the only one.

"Without copyright, the GPL has no power"

Yes. It's a planned obsolescense within the GPL I think all GPL supporters want to see in action.

Re:Slashdot's double-standard on copyright law

[vivaelamor]

Being ironic isn't a failure.

Re:Moral Theory of "Intellectual Property"

[vivaelamor]

Not just $5 billion but $5 trillion if you are referring to the quoted piece. I find it hilarious that politicians are prone to accept these figures without a hint of substance or peer review. Even if the figure is accurate (and I've no reason to suppose they couldn't count up $5 trillion from transactions in IP), the equation is not complete without all information being considered equally. Some ones they likely missed are:

• Diversity of wealth (how this money was spread around, how much of that $5 trillion ended up in the pockets of big business execs)
• Inefficiency (how much extra money was spent due to restrictions imposed by the system)
• Comparitive value (how much are we ending up spending on entertainment compared to other more essential services)

Those are just a few I can think of off the top of my head, there are many more considerations if you are being as thorough as you should be (and they can be described better than I have too). Basically, without some real unbiased academic brain power sorting through the figures then the figures are pointless.

Re:Slashdot's double-standard on copyright law

[Jackmn]

If there were no copyright in the first place, there would be no need for copyleft, and all software would be free software.

The GPL requires copyright law to guarantee that people have access to the source code for all GPL licensed programs. Without copyright law, there would be no way to enforce this.

Re:Slashdot's double-standard on copyright law

[Jackmn]

That should read "... the source code for all GPL licensed programs that have been distributed to them."

Those Pesky Intertubes...

[fugue]

"Are you aware that I have not broken any laws?"

"But people in the USA can download your copy. We're taking you down, pirate."

"So you're saying that Canadian citizens living in Canada are subject to USA law?"

"Oh, yes, we'd like that very much."

Careful what you do here--Disney could pretty much order the invasion of Canada.

Speaking of which, do private security companies operate across borders? Could Disney Security invade Canada? I'm sure that logistically they could... but would they? I'd rather not bet against them.

Re:Slashdot's double-standard on copyright law

[bky1701]

Actually, that would be a great protest. Of course, it would get the Amish labeled as terrorists, so it may not have the desired effect, but the irony itself would be the power behind it.

The fact of the matter is, as long as the MPAA/RIAA/MS use something to fight us, we can ether use it to fight back, or die. Personally, I'll take being a little ironic and hope that someday I won't have to be, over letting the concept of free software die forever because some shills claim it's wrong to misuse copyright that way.

Re:Slashdot's double-standard on copyright law

[Hognoxious]

It would be a failure of logic and a failure to abide by your own principle. To understand why you'd need to know what Amish are, which you don't. Or if you're Amish, you'd need to know what aircraft are.

Re:On the other hand...

[Danse]

Most people didn't have a phone and thus couldn't call emergency services. Many had no electricity. There was no cure for polio. Cancer was an absolute death sentance. Blacks rode the back of the bus and got lynched. Women couldn't vote.

In other words, let's not use nostalgia as a tool to advance reform.

Such a tactic would fit in all too well with the paleoconservative and populist movement that's threatening to give "new" direction to the Republican party. That movement already advocates a laissez-faire attitude towards certain things, based on the idea that it's "the way things were meant to be". They conveniently leave out that returning to the hands-off approach is objectively anti-labor and racist.

Did you even read TFA before posting that? It doesn't attempt to use nostalgia to advance anything. While I agree that using nostalgia as an argument resonates with a lot of people (particularly older voters), I don't see how it applies in this case.

Re:Moral Theory of "Intellectual Property"

[Danse]

4. The economic/utilitarian protection model used by the US is designed to maximize the profitability of the creator and of society by making it possible to collect large sums of money for largely successful works. The length of copyright is meant to match the period of profitability for the "best" works (but not that tiny pool of eternal works). With the addition of "second generation" profits for the estate during the 1830s, that profit model extended to serve social purposes. It has now reached the limits of that system.

Maybe current law does this, but the copyright clause of the Constitution is not designed to maximize the profitability of the work, it specifically states that it is intended to promote the progress of science and the useful arts. Making it possible to make money from these works is the mechanism, but it was hardly intended to maximize those profits. The intention was to grow the public domain, not to enrich the creators. It was a bargain. One that was long ago abandoned by the industry, which is why the public has no incentive to respect copyright law anymore. It now serves primarily as corporate welfare.