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March 30, 2005

What copyright is. Responding to a Washington Post editorial about MGM v. Grokster, Matthew Yglesias makes the necessary point:
[T]he editorial suggests a kind of balancing test that will allow us to “protect both innovation and intellectual property.” This is mistaken. Protecting intellectual property is not a proper goal of intellectual property law. Rather, Article I, Section 8, Clause 8 of the Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Promoting innovation is the only legitimate goal of intellectual property law. What needs to be balanced here is the promotion of musical innovation versus the promotion of innovation in the fields of data storage, duplication, transfer, and access. Much P2P transfer is legitimate. Blocking that is a cost. Much infringing P2P transfer has no adverse impact on the financial health of copyright owners. Blocking that is also a cost. Blocking the deployment and development of new technologies is a third cost. What we need to weigh against all these costs is not that record companies will need to forgo some profits they might otherwise have made, but the risk that if Grokster is not shut down we will actually see less new music recorded in the future than we otherwise might. I don’t actually find it plausible that the continued availability of P2P software will have any adverse impact on the production of new music (basically, you’d have a situation where artists have a smaller chance of reaping windfall profits but a larger chance of securing a relatively large audience for their output). But even if it does some adverse impact on this, that adverse impact needs to be weighed against the stifling effect on new technology and the smaller resulting audience for music everywhere.

The idea that intellectual property law should have the protection of intellectual property as its purpose rather than as the means used toward the end of overall social betterment is a serious error that the content industry has been remarkably successful at inducing in American society. Needless to say, one way in which this has come about is that we all get the vast majority of our information about the world from subsidiaries of the content industry itself.

It can’t be said often enough. Copyright isn’t a “right” in the sense of the “rights of Man.” Copyright is a bargain. The object is to foster a society in which innovation is encouraged and rewarded. It isn’t to create a source of perpetual rents for an owner class. [11:50 AM]
Welcome to Electrolite's comments section.
Hard-Hitting Moderator: Teresa Nielsen Hayden.

Comments on What copyright is.:

Scott Martens ::: (view all by) ::: March 30, 2005, 01:19 PM:

But that's the whole point: As soon as you use the word "property", it's like using the word "freedom". Who could be against freedom? Taking people's freedom away is tyrrany (unless Republicans do it). Who could oppose the protection of property? To do otherwise is to sanction theft. To try to place such things in a context of social value is to relativize them, and relativism is terrorism.

Or at least, that's how it plays out on TV. Heck, these days folks act as if property was a right more fundamental than freedom of conscience, so it's hardly surprising.

Intellectual property is not property. It is not only not inalienable, it can and should be regularly alienated, preferably on a fixed and vigorously applied schedule. It is a way for the creators of intellectual works to receive compensation for creating them without creating complex, awkward machinery to value or track them or to extract compensation from a public whose use of them varies. It is no more property than scientific theories or mathematical proofs. It is just something important but abstract whose creation has a different compensation structure.

BSD ::: (view all by) ::: March 30, 2005, 01:48 PM:

Quite on the contrary, I think the purpose of our intellectual property laws should be to protect intellectual property. Promoting innovation is the purpose of intellectual property itself.

Whether or not there is a measurable harm to creators by infringers, we have chosen, as a society, to grant creators certain rights and the ability to protect those rights. Infringement is, because we have chosen propertization in order to motivate creators (rather than, say, subsidies or the patron system), theft. To say that there is no harm because that harm is not measurable is to attack any law that punishes anything that lacks a measurable economic harm (this is an attack that could certainly be made -- but if that is the attack being made here, we're talking about something much larger than IP law).

But of course, this is not really the issue. Tearing down copyright (a generally good system tainted by some rather stupid statutes) is not the way to defeat the bad actors among the content owners -- protecting copyright as a general scheme, as opposed to individual licenses for everything you read, listen to, or watch, is a good way to protect the rights of the reader/listener/watcher. What the MGM side of Grokster wants is an end to a settled principle of copyright law, the rule of Betamax, and the answer to that is to preserve Betamax and protect fair-use rights, not decide that because a crazy or two is hacking holes in the side of the ship, the ship already has holes and we'd better abandon it rather than simply taking the axes away from the idiots.

Northland ::: (view all by) ::: March 30, 2005, 01:54 PM:

"NOBODY's livelihood is being stolen. It's just not happening. There were no WMD in Iraq, there was no cocaine on that boat, and music sharing does not cost artists money."

From the excellent Copyfight blog, which you probably all know about already, but I figured I'd supply a link just in case.

David Moles ::: (view all by) ::: March 30, 2005, 02:02 PM:

Quite on the contrary, I think the purpose of our intellectual property laws should be to protect intellectual property. Promoting innovation is the purpose of intellectual property itself.

Sorry, BSD, but that's crap. Congress has no power to create an intellectual property right except what it derives from its power to promote innovation. Protecting intellectual property is only an implementation detail of promoting innovation; a law that protects intellectual property at a net cost to innovation has no business existing.

I won't even get into the host of issues swept under the rug by calling a time-limited grant of certain defined rights property.

Patrick Nielsen Hayden ::: (view all by) ::: March 30, 2005, 02:22 PM:

"Tearing down copyright (a generally good system tainted by some rather stupid statutes) is not the way to defeat the bad actors among the content owners"

Name the person in this conversation so far who has proposed "tearing down copyright." Quote the passage in which they do so.

This kind of misrepresentation has been a consistent rhetorical tactic of the radicals in charge of the content industry. They falsely claim to be defending the status quo and falsely accuse their opponents to be proposing some kind of radical change, of wanting to "tear down." In fact they are the radicals who wish to change the basic terms of our society and culture. And as Yglesias points out, since they own the biggest megaphones, they get away with pounding their lies into everyone's head.

They're still lies, and it's still a sin to tell lies.

Jonathan Vos Post ::: (view all by) ::: March 30, 2005, 02:26 PM:

I agree that Matthew Yglesias was right on target, in citing the Constitution, in distinguishing musical innovation (and by extension, literary innovation) versus technological innovation, and in puncturing the balloon of disinformation.

Which Supreme Court justice mentioned the iPod in the questioning? And, I wonder, which songs are on that justice's iPod...?

Patrick Nielsen Hayden ::: (view all by) ::: March 30, 2005, 02:35 PM:

Northland, no, I hadn't previously tracked on Copyfight. Thanks. (I note with amusement that at one post on its front page was directly caused by an email I sent Cory Doctorow yesterday.)

Alex Cohen ::: (view all by) ::: March 30, 2005, 02:49 PM:

Which Supreme Court justice mentioned the iPod in the questioning?

Souter.

And, I wonder, which songs are on that justice's iPod...?

He doesn't even use a computer.

bryan ::: (view all by) ::: March 30, 2005, 03:25 PM:

That intellectual property laws were first created to foster innovation does not mean that there is no such thing as a right to control of ones intellectual property. I suppose that there are indeed some sort of rights inherent in ones ideas, this is why we think someone is bad if they take credit for someone elses idea.

Patrick Nielsen Hayden ::: (view all by) ::: March 30, 2005, 04:15 PM:

"That intellectual property laws were first created to foster innovation does not mean that there is no such thing as a right to control of one's intellectual property."

Actually, the proposition on the table is that whereas there's a genuine issue of justice here, the language of "property" has come to distort more than it informs.

"I suppose that there are indeed some sort of rights inherent in ones ideas, this is why we think someone is bad if they take credit for someone elses idea."

Just as obviously, these "rights" are pretty darn contingent; this is why we think someone is being a jerk when they try to shake down Girl Scout troops for singing "Happy Birthday."

I would also observe, setting aside the whole complex philosophical brangle that emerges whenever "rights" are invoked, that credit and control are different things. In the current round of fights, Big Content is bidding for absolute control; appeals to our just sense that creators should be credited are in fact off the point.

Patrick Nielsen Hayden ::: (view all by) ::: March 30, 2005, 04:17 PM:

(Just to confuse matters: I am in fact a member of ASCAP.)

robert west ::: (view all by) ::: March 30, 2005, 06:11 PM:

It cannot be emphasized enough how important it is to spread the word on this. I work in the computer industry, and have many conservative- and libertarian-leaning business associates, and I've had numerous conversations with people who are absolutely convinced that "intellectual property" is property, and that copyrights and patents should never expire, and the fact that they do is immoral theft by the government.

If we don't nip this meme in the bud before it spreads into mainstream thought, the entire traditional understanding of IP is doomed, and it will become a source of perpetual rent for an ownership class.

Patrick Nielsen Hayden ::: (view all by) ::: March 30, 2005, 07:55 PM:

"I work in the computer industry, and have many conservative- and libertarian-leaning business associates, and I've had numerous conversations with people who are absolutely convinced that 'intellectual property' is property, and that copyrights and patents should never expire, and the fact that they do is immoral theft by the government."

Right. If the government doesn't enforce my artificial monopoly down to the Nth generation of my heirs, the government is immorally ripping me off. That's some pretty impressive libertarian thinking there, you bet.

Longtime Electrolite readers will be aware that I have a non-zero amount of sympathy with many strands of libertarian thought. But one of my problems is an abiding suspicion that if you make "property" the foundation of your model of rights, you unleash a monster that eventually devours every other value.

Alex Cohen ::: (view all by) ::: March 30, 2005, 08:27 PM:

But what about the incentive to create? Without giving an unlimited, non-expiring, absolute right to full control of one's creation, why would you create at all?

The danger of not giving a large enough incentive can be easily seen by examining the creative arts and sciences throughout all history; almost nothing of value was created until after the Statute of Anne in 1705.

Do you really want to go back to the world of, say, the Renaissance? Just think of what Da Vinci would have invented if he would have had patent protection.

I, for one, would never write short stories if it weren't for the slim possibility that I might receive somewhere between 3 and 9 cents per word, at some uncertain date in the future. And if, in ninety-five years, someone could just steal it and use it themselves, why, I might not even bother.

CHip ::: (view all by) ::: March 30, 2005, 08:43 PM:

The danger of not giving a large enough incentive can be easily seen by examining the creative arts and sciences throughout all history; almost nothing of value was created until after the Statute of Anne in 1705.

Alex -- do you think classical music began with Bach and Handel (b1685)? Or, for a technological hit, note that calculus was invented twice in the 1600s, movable type in the 1400s, etc.

lightning ::: (view all by) ::: March 30, 2005, 08:53 PM:

Something that everybody seems to be missing here is that we're not talking about the rights of *creators* to their intellectual property, but to the *owners* of those rights. (I have no doubt that this little confusion is being pushed relentlessly by the music business.) Those owners are generally the big entertainment companies -- and their contracts with musicians are the business equivalent of armed robbery.

Compare the terms of contracts in the music business with the contracts in the book business.

Alex Cohen ::: (view all by) ::: March 30, 2005, 09:16 PM:

Alex -- do you think classical music began with Bach and Handel (b1685)?

Yes. (See Classical Music Era (1730-1820)). And undoubtedly composers would have been as brilliant as Bach and Mozart were, but in earlier centuries, instead of writing that Renaissance and Baroque crap, if there was a decent incentive for them to do it.

Or, for a technological hit, note that calculus was invented twice in the 1600s, movable type in the 1400s, etc.

I think the Newton-Leibnitz dispute would have easily settled if there was a pan-European patent system in place. And they probably would have put a lot more effort into it. If there was a patent system in the 1600s, Newton probably would gone on and figured out relativity, too. Recall that Einstein was a patent clerk.

Patrick Nielsen Hayden ::: (view all by) ::: March 30, 2005, 09:43 PM:

Alex: Well played. Now give CHip his leg back.

CHip: You've got to be more careful on this side of the street.

Avram ::: (view all by) ::: March 30, 2005, 09:50 PM:

PNH: But one of my problems is an abiding suspicion that if you make "property" the foundation of your model of rights, you unleash a monster that eventually devours every other value.

I think this is true for anything, not just property. You could build an ethical system based on the idea that lovingkindness was the supreme virtue, trumping all others, and after a while you'd get people justifying rape, torture, and murder with appeals to lovingkindness.

Anyway, I've noticed that most of the intelligent, reflective libertarians I know (a very small subset of the set of libertarians I've conversed with) are at least somewhat skeptical about the notion of treating intellectual property as just another kind of property just like land or your laptop.

Alex Cohen ::: (view all by) ::: March 30, 2005, 09:50 PM:

Alex: Well played. Now give CHip his leg back.

But... there's still candy in me!

Oh, okay. *hangs head*

Here's your leg, CHip.

PNH: "And what do we say?"

Sorry, CHip.

Teresa Nielsen Hayden ::: (view all by) ::: March 30, 2005, 09:59 PM:

Alex, that wicked Thing, will have to settle for the glory of a couple of sharp (albeit unpaid-for) posts, and the pleasure of dancing en pointe.

Jonathan Vos Post ::: (view all by) ::: March 30, 2005, 10:39 PM:

Of course, if Newton, Leibnitz, and Baroque composers had had perpetual intellectual property rights, Neal Stephenson would be in a heap o' trouble right now... and the Jane Austen estate would be eying Susanna Clarke with fascination. Not that this argument would convince Justices who don't use computers...

Candy in him? Remember how Harlan Ellison used the word "pinata" once as a pointer to something else?

Patrick Nielsen Hayden ::: (view all by) ::: March 30, 2005, 10:51 PM:

Also, points to Alex for deployment of the Scalzi Rejoinder.

Now, don't make me stop this car.

Bryan ::: (view all by) ::: March 31, 2005, 07:05 AM:

'Actually, the proposition on the table is that whereas there's a genuine issue of justice here, the language of "property" has come to distort more than it informs. '

this did not seem to be the proposition on the table. I have often observed that those who argue against the current inequities in copyright have some Stallman-like view that there is absolutely no such thing as creator's rights, using as their basis for these claims some statements in documents from some centuries back. It seems to become a matter of faith.

'Just as obviously, these "rights" are pretty darn contingent; this is why we think someone is being a jerk when they try to shake down Girl Scout troops for singing "Happy Birthday."'

just as obviously no one should try to figure out if there are some sorts of rights and how they should be protected because someone did something asinine some time.

'In the current round of fights, Big Content is bidding for absolute control; appeals to our just sense that creators should be credited are in fact off the point.'

So because bad people 'X' have used appeals to our just sense that creators should be credited all appeals to our just sense that creators should be credited are in fact off the point.


'Sorry, BSD, but that's crap. Congress has no power to create an intellectual property right except what it derives from its power to promote innovation'

or from its power to amend the Constitution.

Patrick Nielsen Hayden ::: (view all by) ::: March 31, 2005, 07:51 AM:

You know, it would be awfully refreshing to have someone disagree with me on these issues without rushing to impute that I and the people who share my views want to "tear down copyright," or hold "some Stallman-like view that there is absolutely no such thing as creator's rights."

I think our sense of justice and fair play requires that we have some kind of system in which creators are appropriately credited and compensated. I think plain old copyright, sans immense extensions rammed through Congress by media conglomerates, did a pretty good job for a long time. I suspect the widespread availability of digital copying means we have to rethink a lot of things. I don't think this means we toss aside all notions of just credit and compensation for creators. And I wonder whether "property" isn't a subtly wrong model on which to base justice in these cases.

None of this means I agree with (or care) what Richard Stallman thinks, nor does it mean I think that "no one should try to figure out if there are some sorts of rights and how they should be protected." And, here's the point, I don't plan to argue respectfully with people who persist in imputing that I think such things. Knock it off or go somewhere else.

Charles Dodgson ::: (view all by) ::: March 31, 2005, 11:05 AM:

Actually, I'm not sure even Stallman adheres to "some Stallman-like view that there is absolutely no such thing as creator's rights", in practice. The manual he's using for his documentation (the so-called "GNU Free Documentation License") doesn't demand royalties, but it imposes many other restrictions which some find objectionable. (Most notably, it bans redistribution of even excerpts unless the off-topic political stuff he throws in is reproduced in full. I don't mean "off-topic" as a swipe at Stallman, by the way; the license actually requires that "invariant" sections like this not address the main topic of the manual directly).

I'm not completely sure that Stallman's position is reasonable, here, for several reasons -- but I'm also not sure it's how he's being portrayed.

Avram ::: (view all by) ::: March 31, 2005, 11:09 AM:

Bryan, Congress can't amend the Constitution without the state legislatures getting involved. (The reverse is not true, however.)

And doesn't "those who argue against the current inequities in copyright" include MGM and the RIAA and the DVD consortium and Disney and various other groups trying to do away with the doctrines of Fair Use and First Sale? Patrick and Matthew Yglesias and the others opposing MGM in MGM vs Grokster are conservatives (in the original sense of the word) on copyright issues.

Not that I should be surprised when radical authoritarians are succeeding in painting themselves as conservatives by shouting and pointing at the radical anti-authoritarians. It's practically the theme song of modern American politics.

bryan ::: (view all by) ::: March 31, 2005, 11:42 AM:

'You know, it would be awfully refreshing to have someone disagree with me on these issues without rushing to impute that I and the people who share my views want to "tear down copyright," or hold "some Stallman-like view that there is absolutely no such thing as creator's rights."'

well Patrick, you seem somewhat thin-skinned to me, but it's your blog and anyway it's a person's right to be thin-skinned, I didn't say anything about you wanting to tear down copyright, that was somebody else. I suppose you are lumping me and the other person together for convenience but that is really a mistake since the other person was a supporter of current copyright, and I am someone who suggests that there may be a right to intellectual property - these are not the same thing.

The imputation of a Stallman-like view was really towards the core idea that Stallman goes back to, that there is no 'right' to intellectual property as such, because copyright was proposed as a way to foster innovation. I dislike this viewpoint because it seems to me to be based on a view that rights are things granted and I like to believe that rights are things inherent. That a rather old document says that copyright is one thing does not invalidate that there may be other rights that, because they are not adequately addressed, copyright has become associated with in the common understanding and that this association has been misused by large companies - hence my statement in my second post "just as obviously no one should try to figure out if there are some sorts of rights and how they should be protected because someone did something asinine some time."


So my argument is basically that I suppose there may be a right to intellectual property although agreeing that the current legal mechanism known as copyright does not support what I would consider to be an just enforcement of such rights, I would have thought that my first comment was reasonably clear on this matter:

"That intellectual property laws were first created to foster innovation does not mean that there is no such thing as a right to control of ones intellectual property. I suppose that there are indeed some sort of rights inherent in ones ideas, this is why we think someone is bad if they take credit for someone elses idea."

although that I am not a supporter of RIAA or other current Copyright misusers is not clearly delineated I'd thought it reasonably clear that I considered a case for what rights should be available was up in the air by the use of the construct 'some sorts of rights' otherwise I would have said something stern like 'and so far the best application of the rights inherent in the creation of intellectual property is that governing the current usages of copyright' or something similar.

Avram: I'm not really understanding this:
'And doesn't "those who argue against the current inequities in copyright"...'
Why am I not understanding it? Well, when I use the phrase current inequities in copyright without scare quote around current inequities then I mean to convey that yes, I consider the current status of copyright to be inequitable. But it seems to me that you have taken it to mean that I think the current status is fine, and could maybe be improved if we did a little more for the content companies. So I'm not sure where you're going with your conservative, not conservative authoritarian thing there, but I think it's actually somewhat in a direction away from the direction I was going in.

Jo Walton ::: (view all by) ::: March 31, 2005, 11:43 AM:

I think it's worth expressing support once more for the traditional American idea of copyright. It's American, it's traditional, I like it a lot: it's 28 years, renewable for another 28 years if you're still alive and still care. It acknowledges copyright as valuable and real but different from other things. It worked for Mark Twain and it worked for Robert Heinlein, it let things go back into the soup of story, it wasn't broken and I don't see why people thought they needed to fix it. After having given a lot of thought to this, I can't see a better or fairer way of doing it.

Bring back traditional American copyright!

Avram ::: (view all by) ::: March 31, 2005, 11:51 AM:

I just realized: Natural law is the divine right of citizens!

BSD ::: (view all by) ::: March 31, 2005, 11:53 AM:

I thought I posted ~4pm yesterday something meant to be concillatory, but it seems I failed to post it.

I'm not accusing you of trying to tear down copyright, PNH, nor am I accusing copyfighters in general of doing so. I am accusing certain specific persons of doing so, and warning copyfighters in general to beware abandoning copyright (the crazies with the axes in my above metaphor were the content-cartels, and the hand-wringers preparing to jump ship and make for shore are the CC-folk (see below for my worries about EULAzation)).

And as far as my above statement being crap, I'm going to note that the purpose of the power is to promote innovation, but the individual uses of that power need not do so. Patent terms certainly stifle innovation for the duration of the term, but the bargain aids innovation down the line. And promoting progress and the useful arts is a fairly broad aim, anyway (I'm going to ref Juicy Whip here, just because I'll do so at nearly any opportunity).

And yes, treating IP as property is subtly weird-and-wrong, but it lets us do lots of neat stuff like sale, lease, partial versions of the above (life estates, fractional ownership, etc.) without creating a whole new doctrine of law, and I'm having trouble thinking of a model that gives us as many benefits as the property model for IP without about a gazillion times the work.

What really bothers me, though, is the abandonment, on both sides of the fight, of statutory copyright in favor of special contracts for every media-transfer interaction. The Creative Commons blocktext deeply worries me every time I see it, because it is a tacit abandonment of the middle (statutory) ground to the bad actors on the other side. Conversely, first-sale and fair-use excluding contracts found in things I buy worry me less (though I still hate 'em) because they're an admission by the content-owner that copyright protects these things and they need a special private contract with me to protect me from doing these things. I think the DMCA is stupid law, and would rather fight it in the courts and legislature than accede to it and its successors and have to contract into old-style copyright whenever I wanted it.

What's my point? To me, it seems like a lot of copyfighters are fighting against, rather than for, copyright.

And also, it's terribly important to distinguish between Grokster itself (protected under Betamax, but they're not going to stand on Betamax, so who the hell knows what the court will say, though I suspect it will be a Betamax-like standard) and infringing Grokster users (thieves if you envision IP as property, rights-violators if you envision it as something else).

Alex Cohen ::: (view all by) ::: March 31, 2005, 12:00 PM:

Bring back traditional American copyright!

It's probably less than you're looking for, but Creative Commons offers a "Founders' Copyright" license, which is fourteen years renewable once, just as it was in 1790.

That a rather old document says that copyright is one thing does not invalidate that there may be other rights

Without getting too deep into this, I'll just point out that the "rather old document" in question is the United States Constitution. Article I, Section 8, Clause 8: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" In the US legal system, at least according to the constitution, the role of IP is to promote progress. That's it. You can assert that other rights exist - the French legal system has something called "moral rights" held by creators, for example, but there's no constitutional basis for those in the US.

Alex Cohen ::: (view all by) ::: March 31, 2005, 12:03 PM:

Oh, I almost forgot:

Alex, that wicked Thing

Ahem. I am not the Thing. Why does Teresa keep accusing me of being the Thing?

Back on topic, everyone should take the time to read Jamie Boyle's The Second Enclosure Movement. It's among the best explanations I've read of the change of IP laws over the last few decades, as compared to the intent of people like Jefferson.

bryan ::: (view all by) ::: March 31, 2005, 12:19 PM:

'Grokster users (thieves if you envision IP as property, rights-violators if you envision it as something else).'
actually I'm not sure that I envision them as rights-violators because I'm not sure that money for individual reproductions of an item of IP is an inherent right.

Avram ::: (view all by) ::: March 31, 2005, 12:33 PM:

BSD, if you're going to ref a case, shouldn't you at least give us a link or something so we know what you're talking about?

Oh, man. Juicy Whip, Inc. v. Orange Bang, Inc. I bet the case isn't as much fun as the name. (Don't be scared of the .doc file ending in that link; that's Google's translation into HTML of a Word file.)

BSD ::: (view all by) ::: March 31, 2005, 01:59 PM:

Sorry, Avram. (You really are right here: I was not aware that this went back up to the Federal Circuit. I meant 185 F.3d 1364 (Fed. Cir. 1999). Considering that this went back up in 292 F.3d 728 (Fed. Cir. 2002) (about prior use) and in the case you cited to (about damages). Whew. I suppose I should have said Juicy Whip (I). Or just given the cite.)

And Juicy Whip v. Orange Bang IS as much fun as the name. And quite clear reading, too. (Summary is kind of unimportant, but the point is that things can be patented, even if deceitful. It's one of my favorite, and most familiar, expressions of the rule that constitutional point of a power does not necessarily restrict individual effects of the power.)

actually I'm not sure that I envision them as rights-violators because I'm not sure that money for individual reproductions of an item of IP is an inherent right.
Not inherent, perhaps, but one that we choose to grant if we choose to grant copyright. If you don't like the exclusive reproduction right, then say so.

Jim Flannery ::: (view all by) ::: March 31, 2005, 02:11 PM:

I'm still trying to figure out what Bach has to do with this, given that very little of his work was published during his lifetime, and when it was, a hundred years after his death, it was <<clears throat>> easy to do so because it was in the public domain.

bryan ::: (view all by) ::: March 31, 2005, 02:21 PM:

an exclusive reproduction right for things that are exactly the same, or adjudged to be significantly the same is okay, although the judgement as to what is significantly the same should be a great deal more stringent than it is today. A copy of a U2 song with a half second cut off the end is significantly the same, the negativeland version of where the streets have no name is different and thus distribution should not have been interfered with, although I suppose that it would be proper if negativeland had to give some percentage of their small profits to U2 for rights to make the parody. The same would apply to tshirts of bert and ernie having sex, right to distribute, sesame street should not be able to stop it, monetary percentage reserved for sesame street.

Avram ::: (view all by) ::: March 31, 2005, 02:41 PM:

Bryan, you're advocating compulsory licensing for derivative works? I could get behind that in cases that aren't covered by fair use. (In fair use cases, of course, no licensing should be needed.)

The obvious danger would be that the definition of "derivative work" would grow and swallow up a lot of what is currently fair use, like parody.

Skwid ::: (view all by) ::: March 31, 2005, 03:13 PM:

Bryan, I can think of an example closer to home, for the especially geeky part of the house, anyway.

bryan ::: (view all by) ::: March 31, 2005, 03:19 PM:

I think it should grow up and swallow parody that is for profit, or used to drive profit for something else, so yes Bored of the Rings should have to pay some portion to Tolkien (but obviously not to the Tolkien estate, I believe basically in a lifetime of the creator of content right, I suppose that this right could be transferred but if you transfer maybe it shouldn't be for lifetime anymore - maybe only for 20 years) , when I say drive profit for something else I'm thinking of parody songs in commercials for example.

bryan ::: (view all by) ::: March 31, 2005, 03:25 PM:

so basically derivative works that are non-profit should not have to pay. Thus a derivative work that has profit potential could be produced, and market tested without profit, then be released wider for profit. An example that comes immediately to mind was a Peanuts Tarot a couple years ago some guy did on his homepage, I would have gladly paid $80 for that, of course Peanuts shut him down. Actually as this was after Schultz's death in my utopian view he there would no longer have been a creator's right involved and the guy could have done whatever he wanted with the work.

CHip ::: (view all by) ::: March 31, 2005, 06:20 PM:

Ok, I'm a sucker. Points to Alex. Maybe I need a scorecard to track the players....

OTOH, points off for trying changing "classical" to "Classical"; the capitalization does make a difference. (As in the remark commonly attributed to a Harvard functionary: "The President is in Washington to see Mr. Wilson.") And half marks to Jim Flannery; Bach wasn't heavily published, but Handel was.

robert west ::: (view all by) ::: March 31, 2005, 11:14 PM:

Patrick - it's not merely some impressive libertarian thinking; it's utter lunacy.

The particular gentleman who sticks out most in my memory regarding this issue didn't even bend before my attempted reductio ad absurdam: "but if we'd followed that practice, we'd all be paying royalties to the descendants of the man who first invented fire." To which he nodded and agreed and proceeded to explain why that would be a good thing.


I have a cynical suspicion that part of the problem is that the people who advocate things like this, in my experience, can think of no greater ambition than retiring as part of a rentier class - so, of course anything which makes rentier classes more likely is a good thing. But that may just be my lingering socialism speaking.

Dave Bell ::: (view all by) ::: April 01, 2005, 01:14 AM:

Intellectual Property is more than just Copyright.

For one thing, there are trademarks.

Whether trademarks should be of indefinite duration is another issue, and whether they have any basis of "promoting innovation" seems arguable. They're different.

And when a lawyer or politician talks about "IP Law" you need to watch out for the cosh up his sleeve, because he's setting up to relabel trademarks as part of the copyright argument.

Jonathan Vos Post ::: (view all by) ::: April 02, 2005, 10:59 AM:

Can Justice Scalia
Solve the Riddles Of the Internet?

Without profit even the digital world will break down.

BY DANIEL HENNINGER
Wall Street Journal
Friday, April 1, 2005 12:01 a.m. EST

"... it would have been entirely appropriate had a subversive in the gallery pulled out his wondrous iPod, shoved a teensy PodWave external speaker into the thing and filled the grand chamber with Bob Dylan's ancient, famously prophetic lyrics: 'Something is happening here, but you don't know what it is, do you, Mister Jones?'"

Jonathan Vos Post ::: (view all by) ::: April 02, 2005, 11:07 AM:

I forgot to mention that the WSJ link above, gives one, after the story, a link to reader responses. That is, it's blogular, and some of the reader responses are of interest.

TB ::: (view all by) ::: April 07, 2005, 06:42 PM:

The danger of not giving a large enough incentive can be easily seen by examining the creative arts and sciences throughout all history; almost nothing of value was created until after the Statute of Anne in 1705.

Hang on, you people agree with this?

that Renaissance and Baroque crap

Oh so it's just "nothing that concurs with my shitty taste" that was created before then...

CHip ::: (view all by) ::: April 07, 2005, 07:15 PM:

<smug>TB: You've just won the Jerry Pournelle award for posting before finishing reading.</smug>

Patrick Nielsen Hayden ::: (view all by) ::: April 07, 2005, 09:13 PM:

Among other things, we've just seen another proof of the "you people" rule.

TB: Nobody believes that. Alex Cohen was using irony to make point. Next time, read the whole thread and have a little common sense.

TB ::: (view all by) ::: April 08, 2005, 02:07 PM:

Haaaahaha that's what I get for commenting on blogs when I haven't got any sleep. OK, please excuse me, I am the asshole :) Not the first time, or the last...

TB ::: (view all by) ::: April 08, 2005, 02:48 PM:

However, I would like to point out that I was recently reminded that my "common sense" has nothing whatever to do with what people will actually write and mean.

OK I am off

Alex Cohen ::: (view all by) ::: April 08, 2005, 03:06 PM:

I think it must be some kind of sign that although I tried to be so absurd that no one could believe it was serious even for a second, more than one person did. It wasn't meant to be a troll, or a trick that people could fall for; it was meant to be a fairly obvious ironic parody. The f*ing Renaissance!

This is the state of our discourse. Oh, moray tempura.

Patrick Nielsen Hayden ::: (view all by) ::: April 08, 2005, 04:47 PM:

Alex's hovercraft is full of lightly-breaded eels.

Jonathan Vos Post ::: (view all by) ::: April 08, 2005, 08:58 PM:

Patrick:

re: "Alex's hovercraft is full of lightly-breaded eels."

Yesterday, my wife presented the first paper at the 2005 Pacific Southwest Regional ASEE Conference, and I gave a paper later that morning, and a third paper this morning by the two of us. Said American Society of Engineering Education con entitled: "Vision of Engineering @ Year 2020." The auditorium was in a vast indoor academic mall, the building formerly world headquarters of Hughes Aircraft. We each got a nice packet of brochures, press releases, schedules, maps, pads, pens, and abstracts. The packet came in a glossy blue Loyola Marymount folder, with metallized crest.

The crest included the slogan: "Ad Majorem Dei Gloriam Tua Luce Dirige." Before my wife helped me with the Latin, I guessed:

"For the greater glory of God, put Lucy on the dirigible."

I'm thinking now that the dirigible moors at the Empire State Building, from which a transfer lets you onto the hovercraft full of eels.

Alex Cohen ::: (view all by) ::: April 08, 2005, 09:53 PM:

How to say "My Hovercraft is Full of Eels" in many languages.

In Latin, it's "Mea navicula pendens anguillarum plena est."

Is the dirigible in the opening credits of "Carnivāle" a sign that it's alternate history? Or does that rule just apply to book covers?

Come to think of it, does it apply to album covers? This would include Led Zeppelin's Led Zeppelin, to circle back to our discussion about skiffy music.