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February 24, 2006

What perpetual copyright means to me
Posted by Teresa at 09:09 AM *

We’ve recently returned from Boskone: a very nice convention. One of the interesting sights I saw there was a fellow preaching copyright absolute and everlasting. His writing belonged solely to him, he said, and should continue to belong solely to him (or, presumably, his heirs and assigns) forever more.

One hears such things from time to time.

It put me in mind of a particular passage in Robert Cawdrey’s A Table Alphabeticall of Hard Usual Words, the first dictionary in the English language. I’m fond of it. Here’s the passage:

If thou be desirous (gentle Reader) rightly and readily to vnderstand, and to profit by this Table, and such like, then thou must learne the Alphabet, to wit, the order of the Letters as they stand, perfecty without booke, and where euery Letter standeth: as (b) neere the beginning, (n) about the middest, and (t) toward the end. Nowe if the word, which thou art desirous to finde, begin with (a) then looke in the beginning of this Table, but if with (v) looke towards the end. Againe, if thy word beginne with (ca) looke in the beginning of the letter (c) but if with (cu) then looke toward the end of that letter. And so of all the rest. &c.

Isn’t that fun? You see there the advent of universal alphabetical order in our language. And if Disney or Lucasfilms or other entities I could name had been around at that time, and if they’d held the rights to Cawdrey’s dictionary, I can easily imagine them claiming perpetual ownership of the idea of organization by alphabetical order.

I wish I could recall the title of the book in which the author ingeniously explained that he’d compiled a list of the major subject headings in his book and the pages on which they occurred, and printed it at the end of the volume. That was trippy, to be momentarily in a universe where the index was a brand-new thing that had to be introduced and explained to the reader. I remember that he had a good piece of down-home advice: if the reader discovered that he’d left some necessary or useful entry out of the index, they should take pen and ink, and enter it in their own copy.

Every book is unique. Every good book encapsulates value that is unique to that book. But all writing floats in a sea of other writing, and a book’s unique elements are never the whole of the book. Every writer is part of a larger general discourse, and in the course of writing will adopt, adapt, reject, comment on, and bounce new ideas off that body of discourse.

Aren’t you glad that, three hundred years later, we’re not paying royalties to the inheritors of the Cawdrey estate every time we use alphatical order as an organizing principle?

It is right that what’s new and unique in a writer’s work be recognized as peculiarly their own. That’s fine. But copyright is not a statement of inalienable natural right. It’s a social convention, intended to reward (and thus encourage) writers and publishers to produce more books. To pervert it into a claim of perpetual ownership, especially when that claim is being forwarded by large entertainment conglomerates, is the moral equivalent of driving a fence around the commons.

Comments on What perpetual copyright means to me:
#1 ::: Kate Nepveu ::: (view all by) ::: February 24, 2006, 09:50 AM:

Was this a public statement? If so, I'd like to know who said it.

#2 ::: Teresa Nielsen Hayden ::: (view all by) ::: February 24, 2006, 09:52 AM:

He was speaking from the audience during a panel. I didn't catch his name. I've seen the assertion made elsewhere at least half a dozen times.

#3 ::: Renee ::: (view all by) ::: February 24, 2006, 10:18 AM:

Hmm.

I like the idea of 'copyright to me' through my lifetime for my writings; I made them, the profit should come to me, unless I specifically lend, trade, sell, or assign the property to someone else.

I'm less happy with my copyrights passing down to my heirs. It isn't that I don't like and love said heirs, but they didn't create the works or market them, and for the most part, they don't even care if the works exist at all. For estate purposes, yes, copyrights and their attendant royalties (if any) should pass to the next generation, but gawd... put a decent limit on that.

The current 'life plus seventy years' rule is ridiculous, IMNSHO. 'Life plus twenty years' is more reasonable; it covers the lifetime of me and any minor children I might leave behind, and if my work is still being read/reprinted after that, then the fans get a shot at hatcheting it before it becomes too badly stale-dated. I'll be dead and won't care by then.

And my heirs should get real jobs, anyway.

My 2 cents CDN.

#4 ::: fidelio ::: (view all by) ::: February 24, 2006, 10:25 AM:

Sometimes I wonder if a lot of these perpetual-copyright lovers (that is, the non-corporate ones) are under the impression that copyright is there to prevent plagiarism, so that once they're dead and gone no one can come along, claim their work, and obliterate the record of their efforts. Because a couple of people I've heard speak about copyright, with very limited grasp of what is was and how it worked, seemed to think that without copyright, we could end up with Dreadful Things happening, like Tim my next-door neighbor claiming to have written The Call of the Wild or something similar. I know, there are lots of ways to be confused about copyright, but maybe there are more people than just the two or three I've heard being at a loss who have the same confusion.
Of course, here in Nashville, Land of the Abused Songwriter, paranoia about such things is pretty common, and for good reason, because a lot of people have seen, through a range of clever dirty tricks, their rights to their work vanish the way this year's snow did down (never mind last year's snow; it went even faster). Misunderstanding copyright here is pretty common as well, which leads to people who didn't understand it to begin with having cause for paranoia.

#5 ::: david sanger ::: (view all by) ::: February 24, 2006, 10:26 AM:

Teresa - You are confusing copyright and patent. You can't copyright an idea. Perhaps Cawdrey's idea was patentable. I don't know.

Reprinting his words e.g. "If thou be desirous (gentle Reader)...." on t-shirts would be a copyright violation if the text was indeed copyrighted.

#6 ::: Lisa Spangenberg ::: (view all by) ::: February 24, 2006, 10:44 AM:

Although Teresa is confusing patent and copyright, Cawdrey couldn't patent his idea since there's prior art, though not in English.

What people forget about copyright is the idea that is embodied in Article 1 Section 8 of the Constitution:

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

You'll note it says "for limited Times." Perpetual copyright means that poorer nations won't have access to the information. It will never become public domain.

#7 ::: Sean Bosker ::: (view all by) ::: February 24, 2006, 10:59 AM:

I have an idea for a science fiction story in which the language spoken by the upper classes is patented by a corporation, and poor people are forced to speak a pidgin, an open source compiled of the few words and sounds that haven't been licensed for use.

I reckon someday we'll be paying a toll just to talk.

#8 ::: Sarah S ::: (view all by) ::: February 24, 2006, 11:06 AM:

Sean--

Have you read Ella Minnow Pea
by...Mark Dunn, I think?

It has some intriguing similarities with your idea, but not enough to invalidate what you're thinking about. You just might get a kick out of what he does with language.

#9 ::: Greg London ::: (view all by) ::: February 24, 2006, 11:33 AM:

Copyright is a government contract with writers and artists, and like all government contracts, it should be awarded to the lowest bidder.

Bounty Hunters

#10 ::: Greg London ::: (view all by) ::: February 24, 2006, 11:35 AM:

patents too.

#11 ::: Sean Bosker ::: (view all by) ::: February 24, 2006, 11:36 AM:

Hi Sarah,
I hadn't read it. I'll look for it, thanks. Since I was 15 I've had to deal with the tragic truth that somebody always beats me to pretty much every idea I have, usually by several hundred years, often by thousands.

#12 ::: Greg London ::: (view all by) ::: February 24, 2006, 11:36 AM:

shameless plug there

#13 ::: Teresa Nielsen Hayden ::: (view all by) ::: February 24, 2006, 11:41 AM:

David Sanger, I know the difference between copyright and patent. I've also seen rights claims sustained that were based, not on the words used, but on the form, ideas, and other theoretically uncopyrightable content. The winners had lots more lawyers and money to throw at the fight.

#14 ::: Dave Kuzminski ::: (view all by) ::: February 24, 2006, 11:44 AM:

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

Now if this was taken literally, only people could have copyrights. That could result in several benefits. Create something that people like and will pay for, then the corporation would have to keep you employed until your death even if you didn't create anything new. Of course, they could still produce it after you died, but then so could others. Good reason for them to want you to remain alive. Also, it would provide a good reason for corporations to attract as many brilliant people as possible and keep them happy so they don't leave to found their own corporations.

It's just sad how so many rights have been usurped by businesses that were intended to benefit people.

#15 ::: Fragano Ledgister ::: (view all by) ::: February 24, 2006, 12:00 PM:

The idea of perpetual copyright bothers me for three reasons.

(1) It can make works unavailable (if you can't contact the heirs/assigns, for example).

(2) It raises the cost of classic works and thus makes them less available for use, performance, and so on (I say this as the owner of quite a few Dover Thrift Editions, and a great lover of that press's cheap classics).

(3)It makes it all too easy to suppress ideas -- if I own the copyright to, say, the Communist Manifesto, and I'm a staunch Randroid what are the odds that it would never again see the light of day?

One of the things that I'm finding bothersome about academic publishing these days is the growing insistence of the publishers of academic journals that copyright in anything they publish be assigned to them (sure, they say they'll make reprinting/republishing easy for the writer, but still...). Perpetual copyright on top of that....

#16 ::: rhandir ::: (view all by) ::: February 24, 2006, 12:11 PM:

Renee,
I like your idea. I favor an inheritable copyright lasts a fixed term (say 40 years), long enough that a corporation can't camp on an initially unsuccessful work, and long enough that you can make a good faith effort to get the thing published.*

The significance of the heritability is simple: if you invest years of effort into creating something neat in the hopes of providing for your spouse/kids/aging parents and get hit by a truck the day after, they aren't screwed.

Have I missed anything?

-r.
*not sure if this kind of deadline would have helped a writer like Tolkien or not. Copyright is usually based on when the work is "fixed in a tangible form", so in theory drafts are protected, but in this scenario, finishing the draft starts the clock? That doesn't seem right somehow. Somebody help me out here a bit.

#17 ::: rhandir ::: (view all by) ::: February 24, 2006, 12:20 PM:

As long as I'm here...
...what about copyright on lyrics? I've seen some oddities reported, for instance, Neil Gaiman being quoted $800 for permission to quote seven words from a song. But if those lyrics were merely poetry, would fair use allow you to cite those seven words? (I know it is based on the proportion of the works cited and how the judge is feeling the day your case comes to trial.)

-r.

#18 ::: Teresa Nielsen Hayden ::: (view all by) ::: February 24, 2006, 12:30 PM:

The difficulty of quoting copyighted lyrics is a good example of what clout does to the process. The music industry has aggressively fought the use of quotations from songs, so what would be legal if the same words were poetry becomes an invitation to a lawsuit if they're set to music.

#19 ::: Peter Harkins ::: (view all by) ::: February 24, 2006, 12:35 PM:

rhandir: I think the thing that's missed in arguments for copyright surviving the death of the author is that it's a "think of the poor little children!" argument for limiting the rights of the public at large.

The business of writing is, like all business, risky. You can and almost certainly will fail, like most small businesses. This is one of the good things about the way American capitalism works: it's easy for people to try new ideas and succeed or fail so we can all keep coming up with new things to try. It's the scientific method writ large.

#20 ::: Clifton Royston ::: (view all by) ::: February 24, 2006, 12:53 PM:

A very well-executed low key[*] PR and marketing campaign over the last few decades has managed to successfully implant the idea in the public that copyright has "always" been recognized as a basic moral right. (I have just been engaged in this discussion on a mailing list as may be obvious.)

As far as I can tell, the truth is the exact opposite. There was no notion of the idea of copyright until the 1600s, maybe somewhere around 1700?, and the idea was a brilliant extension of the then-perceived inherent right of the King to grant specific royal monopolies. (For instance, the King could for a fee grant one merchant the exclusive right to sell salt or tobacco, allowing them to jack up the price to whatever they saw fit.) Selling authors an exclusive monopoly on reproduction of their own works - if the Crown got their fee - must have seemed a brilliant spin on the idea. Same goes for patents. (BTW. I would love a cite for this, or correction - I digested this from previous reading but don't have a good reference for it.)

It was popular enough for the American founders to copy it, not too many years later. Note that unlike all the moral rights listed in the Constitution. Declaration of Independence, or Bill of Rights, copyrights and patents are listed in the Constitution not as any sort of "right" but as a clever way to jump-start the economy of the fledgeling nation.

Those who view copyright as a universal moral right must certainly see the world as having been a vastly and profoundly immoral place up through the 1970s, when the laws required that you register a copyright prior to publication in the US, and failing to do so effectively voided the copyright. Indeed I gather that up through the 1950s British and American publishers gleefully reprinted each others' books if the correct hoops had not jumped, with the infamous Ace Tolkein edition merely being the best known.

This is not to say that new "rights" are bad - as I noted in the mailing list discussion, the right not to be tortured is only a few hundred years old, and I'm all for that one.

However, copyright's newness should be enough to make us all profoundly skeptical about grandiose claims for its moral basis. Copyright as a concept fundamentally could not exist until the onset of mass production via printing presses. Claiming it could pre-exist that is like asserting that we all have a fundamental moral right not to have telepaths read our sexual desires; if society does not have telepaths, that "moral right" is bizarrely useless and thus inconceivable to assert. Copyright as a concept was likewise useless and inconceivable until the means for mass reproduction were established.

* I could not type that phrase without remembering the character of "Low Key" Lyemaker in American Gods. Those who have read it will follow the connection.

#21 ::: Patrick Nielsen Hayden ::: (view all by) ::: February 24, 2006, 12:55 PM:

Arguably Teresa should have hung a lantern on the nominal difference between patent and copyright, but what's she's really doing is making a point about so-called "intellectual property" (a phrase that's come into common use only in the last generation or so).

The fact is, it's not "property" like your shirt is. It's a government-chartered monopoly. In the US, our Constitution specifically says we grant these monopolies "to promote the Progress of Science and useful Arts". However, as Cory Doctorow pointed out at Boskone, big corporate copyright owners have found they get much better results asking lawmakers to "protect intellectual property" than they do asking them to "extend our monopoly." Once again we see, as Teresa once observed, that deceiving us has become an industrial process.

#22 ::: Clifton Royston ::: (view all by) ::: February 24, 2006, 12:58 PM:

Dave Kuzminski:

Such a rule does apply to patents - only "natural persons" can apply for or be granted them. Having done it twice, I can say that it makes no difference: the employer requires employees to assign the rights to the patent to the corporation as of the time of application. Boom, done.

Unless you remove people's legal right to reassign ownership of abstract things, which would create all kinds of other legal problems, it would make no difference at all to require that copyrights have to be applied for by individuals.

#23 ::: rhandir ::: (view all by) ::: February 24, 2006, 01:05 PM:

Thank you Teresa!
I was thinking of how poetry is often reset to music, and wondering if there have been actual cases of rights being renegotiated.

Peter,
I think you dismiss the "think of the poor little children" arguement too quickly. Capitalism doesn't even enter into this. This is the basic purpose of government; balancing the interests of the individual and the group.

Look at the scenario I outlined: a fixed term. If the length of copyright can be shortened due to accident, then there has been a arbitrary taking of property from the artist/family.

Picture two writers, creating two works on the same day. The first is run over by a bus that afternoon and their family receives no income. The second lives 40 more years, and their family is supported on the sales of the work for that time.

The "think of the children" arguement based on the fact that people do not exist in isolation, and that, horror of horrors, some people support others financially. ZOMG! Somebody's getting something for nothing! Quick, call the Republicans!

If you want to get utilitarian on this, note that the marginal average increase in common good of assigning a work to the public domain even 40 years earlier probably does not offset the decrease in circumstance experienced by the individual family members!


-r.
p.s.
For those who are counting, yes, I think letting the length of copyright vary depending on the author's life that we currently have (life+70) is probably unfair too, except that there's not a whole lot of practical difference between a 130 year copyright (publish at 20, live to 80) and a 70 year copyright (publish at 80, live 5 minutes). If someone wants to use this fairness arguement to help overturn current copyright law though, be my guest.

#24 ::: Greg London ::: (view all by) ::: February 24, 2006, 01:08 PM:

The first copyright was 1710, the Statute of Anne. The first "patent" was actually a reward of 20,000 english pounds for the first person to solve the longitude problem, offered in 1714. A solution was submitted in 1761. The bounty was paid quite some time after that.

Note that the longitude reward wasn't a patent like we normally think of with exclusive rights for 20 years, it was a bounty offered to the first person who could successfully solve a real world problem.

The first bounty on earth


#25 ::: Greg London ::: (view all by) ::: February 24, 2006, 01:11 PM:

A brief history shows that copyright started out at a 14 year exclusive term, and have been going up ever since, at the request of those benefiting from copyright.

The bounties keep going up

#26 ::: Greg London ::: (view all by) ::: February 24, 2006, 01:14 PM:

A copyright term of "Life plus N" doesn't make any sense from a logical point of view. The longer an author works on a book, the shorter time they get to collect. "Life plus N" copyright terms only make sense when viewed from the point of view of authors who want eternal copyright, but will settle for a copyright that at least lasts as long as they're alive. Hell hath no fury like an author who made money from his writing and must see it pass into the public domain while they're still alive.

The argument against Life Plus N copyright terms

#27 ::: Peter Harkins ::: (view all by) ::: February 24, 2006, 01:15 PM:

rhandir: I'm not a Randroid, thanks.

#28 ::: rhandir ::: (view all by) ::: February 24, 2006, 01:20 PM:

Peter,
sorry, I uh, flamed-on.
Oops.

-r.

#29 ::: Greg London ::: (view all by) ::: February 24, 2006, 01:23 PM:

Most of the current state of affairs regarding intellectual property law can be credited to one man: Bruce Lehman. Lehman was an IP lawyer for (in his own words) "motion picture, telecommunications, pharmaceutical, computer software and broadcasting industries" for ten years. Then, in 1994, President Clinton appointed him as the Commissioner of the Patent and Trademark Office. Lehman used his position to advocate for his former employees. He did an end run around congress and the supreme court and authorized software patents be granted. He went on an international tour, stumping for WIPO modifications, and eventually pushed for and got the DMCA, and while he was commissioner, the Copyright Term Extension Act was passed, extending copyright another 20 years.

As commissioner, he was in charge of setting the bounties for patents, and should have been setting them at rates that would encourage competiton. Instead, he implemented corporate welfare for his former employers, giving them fat copyright and patent rights.

Land Grab

#30 ::: Greg London ::: (view all by) ::: February 24, 2006, 01:27 PM:

After leaving his position as patent comissioner, Bruce Lehman starts his own company, an IP lobbying machine, which, again, in his own words

"was founded with donations from private corporations. These "capital contributions" supported the organization in its formative years"

This was, no doubt, Lehman's reward for his selfless public service as patent comissioner.

Lehman gets corporate donations

#31 ::: P J Evans ::: (view all by) ::: February 24, 2006, 01:33 PM:

I have a dictionary (English-Spanish) printed in Philadelphia in (IIRC) 1839. It has no copyright on it, which is a good thing, because it's fairly clearly a copy of a British publication: it refers to the 'late Peninsular Wars'. So book copyrights are a bit later than that, at least in the US.

#32 ::: John M. Ford ::: (view all by) ::: February 24, 2006, 01:36 PM:

Lehman used his position to advocate for his former employees.

I take it that should read "employers." (This is only a copyediting point, not a quarrel with the ideas presented. If I were doing that, I would also query "former.")

#33 ::: Greg London ::: (view all by) ::: February 24, 2006, 01:36 PM:

An interesting series of coincidences can be observed in recent history. Every time Disney's "Steamboat Willie" is about to enter the public domain, Congress decides to extend copyright terms.

1928: Walt Disney makes "Steamboat Willie", the first cartoon to star Mickey Mouse. Copyright terms in 1928 were 28+28=56 years. Steamboat willie should become public domain in 1984.

1976: Congress does a massive revamp of copyright law, switching over to join the Berne Convention, which sets copyright terms to life plus 50 years. Corporate works, such as Steamboat Willie, are given a term of 70 years. Steamboat Willie will now become Public Domain in 1998.

October, 1998, Congress passes the Copyright Term Extension Act, extending all terms, private and corporate, by another 20 years. Steamboat Willie will now become Public Domain in 2018 AD.

Walt Disney currently reports a revenue of about 20 Billion Dollars a year. And the lobbying money they are required to report lists in the millions of dollars per year. Your congressmen at work.

The Immortal Mouse

#34 ::: JBWoodford ::: (view all by) ::: February 24, 2006, 01:36 PM:

IIRC, Howard Waldrop had something to say about the difficulty and expense of quoting from copyrighted songs in the intro to Flying Saucer Rock & Roll. He got around it by phonetically rendering the required phrases--I suppose this was made easier since most of the songs were doo-wop.

JBWoodford

#35 ::: Greg London ::: (view all by) ::: February 24, 2006, 01:38 PM:

John,

ooops. yep. my bad.

Greg

#36 ::: Lisa Spangenberg ::: (view all by) ::: February 24, 2006, 01:43 PM:

Copyright was born in the Crown's desire to censor the press via the Stationer's office and the Star Chamber court. Sixteeth century English printers were given exclusive rights to print acceptable material, material approved by the Crown. Milton, in 1644, wrote Aeropagitica after suffering through the Stationer's restrictions during the English Civil War. In Aeropagitica Milton passionately argues against a resurgence of censorship via the 1643 Licensing Act which proclaimed "That no Book, pamphlet, or paper shall be henceforth Printed, unless the same be first approv'd and licenc't."

Perpetual copyright means that the rights holder can choose to withhold publication indefinitely; if the DMCA weren't warped enough, perpetual copyright would effectively offer another method of censorship. It would be yet another step backward.

It's a really dumb idea. Disney would love it.

#37 ::: Greg London ::: (view all by) ::: February 24, 2006, 01:44 PM:

John,

"former". Just got it.
laughter ensued.

Greg

#38 ::: C.E. Petit ::: (view all by) ::: February 24, 2006, 02:07 PM:

Actually, copyright has a much more muddled history than even Lisa alludes to. There were certainly some censorship aspects to the chartering of the Company of Stationers by the Star Chamber in 1566. After all, that was the time of the Wycliffe bible, John Caxton, et al. However, the records of the time are pretty explicit that maintenance of monopoly control over printing was also a significant factor in chartering the Company of Stationers.

Then, too, one must remember that not everything was first done in England. The first letters patent were actually issued in Venice during the early 15th century. Italy (and, to a somewhat lesser but no less convoluted extent, France) also exerted crown control over the right to copy in the 15th century. In each instance, the right to copy was inextricably linked with the right to prevent others from copying. And the less said about "copy protection" in 16th-century Germany, the better.

The crux of the problem, at least in modern terms, is whether copyright (or more generally "innovation right", as distinct from "intellectual property" to avoid problems with trademark) is a natural or statutory right. "Perpetual copyright" theories all come from the assumption that copyright is a natural right. However, copyright (and patent) law as we know it has explicitly rejected that conception and labelled it as a statutory right. And this isn't recent--1787 in England, 1834 in the US, and the first quarter of the nineteenth century scattered across Continental Europe.

In short, Disney wants us to party like it's 1699. Just like the Amish. And that's a truly disturbing comparison (that might have more validity than I really want to envision). That, however, is not consistent with the legal foundation of copyright.

N.B. In case y'all hadn't figured it out, the historical and philosophical basis of "innovation rights" is both a scholarly and practice interest of mine. So there.

#39 ::: Greg London ::: (view all by) ::: February 24, 2006, 02:10 PM:

Part of the problem is that the infinite-copyright folks won the recent round of framing. The term "intellectual property" has become the defacto language used to describe copyrights and patents. The term isn't in the constitution. I believe it was invented in the 1970's about the time the US switched over the the Berne convention, but I could be wrong about that part.

It isn't property, except because the law makes it exclusive for a limited period of time. Intellectual property then is a subset of the complete set called Intellectual Works.

The people-for-rational-copyright failed in their initial counter-attack to the term "property". They responded for the most part by saying intellectual works are "abstract property". I even used the argument recently here, with a complete marble-mouth title called "Reification, the fallacy of property".

But then I realized that the works of copyright aren't an abstract thing, becuase that would still mean they are a thing, still property, and from a framing point of view, the term fails to reframe to the proper view.

But copyrighted works aren't "things". They are the result of a "service". Writing is not a manufacturing industry, it is a service industry.

This was behind my "Bounty Hunters" paper, showing bounty hunters providing a service of catching bad guys and getting paid for their services over a period of 20, 40, then life-plus-50 years.

But people have issues with bounty hunters, for their sometimes unseemly air about them. Then it occurred to me that there is yet another tale that still reframes the issue as a service, rather than a thing, without all the bobba fett images being tossed about.

Bell the cat

The mice have a cat problem. The solution is to put a bell on the cat. The first cat is belled as is reflected in all the old fairy tales. But after that, the home owners get more cats, the cats reproduce, and new cats continuously need to be belled. The mouse that bells the cat is doing a service for all mice. The benefit immediately enters the "public domain", because all mice can here the bell, not just the mouse who put the bell on the cat. The problem, then, is for the mice to create an incentive system that encourages mice to invest time and energy to put bells on the infinite supply of cats.

copyright has a similar problem, without copyright law, works immediately enter the public domain. The idea of copyright is to create just enough incentive to repay authors for their service of writing and creating. This coudl be done lump sum, or it coudl be done by way of exclusive rights being awarded for various terms.

But the point is that it is a service industry.

#40 ::: aphrael ::: (view all by) ::: February 24, 2006, 02:13 PM:

Teresa - i've seen the same argument made with respect to patents, and when I posited that under the perpetual-intellectual-property regime we'd all be paying royalties to the descendants of the person who first discovered fire, the person I was arguing with had no problem with that. I was stunned.

This is an interesting example of how words shape thought. The phrase "intellectual property" encourages people with certain political biases to believe that copyrights and patents ought to be treated like "real property", and obscures the fact that the "property" is property no more than, say, a ten-year lease on the mineral extraction from some government-owned land is property.

#41 ::: Clifton Royston ::: (view all by) ::: February 24, 2006, 02:26 PM:

Greg and Lisa: Thanks for the date reference and historic context! I love this place. I knew I was in the ballpark, but didn't know just when it was.

#42 ::: Greg London ::: (view all by) ::: February 24, 2006, 02:29 PM:

Aphrael, next time someone suggests infinite IP law, put it in terms of bounty hunters.

Why pay a $50,000 bounty when someone will bring in the bad guy for $10,000?

Why give 500 year terms if authors are willing to write for 40 year terms?

It clearly shows a lack of competition and the corporate welfare that inflated terms, inflated bounties, really are.

#43 ::: aphrael ::: (view all by) ::: February 24, 2006, 02:32 PM:

Greg - i'm not sure that analogy would work for someone who already views intellectual property as a natural right. From their perspective, it isn't about copyrights and patents being a price society pays to get something; it is about copyright and patent being a recognition of the creator's natural right to own what they have created, forever. To them, the public domain is nothing more than rank theft.

It's an entirely different perspective than mine; i'm more likely to consider perpetual copyright to be theft. Which is why finding common ground is difficult.

#44 ::: Greg London ::: (view all by) ::: February 24, 2006, 02:44 PM:

You must speak the words to reframe the argument. As long as they speak in terms of "natural right" and "property", and you say nothing, then that is the frame within which the debate occurs.

If you reframe the argument to be about efficiency, competition, free-markets, bounty hunters, then that becomes the frame within which the debate occurs.

The point isn't to neccessarily change the point of view of everyone. Your acquaintence who believes that copyright is a natural right may never be swayed. And that's OK. The point is to sway enough to make a difference.

If the world is hearing only that copyright is a natural right, then that's the frame they will think inside of.

"Common ground" may lead you to try to keep part of their frame in the conversation, and that won't work. "natural right" and "service industry" are diametrically oppposed. The idea is to frame it in a way that works for you and the rest of the world will say "Yeah, that works for me." To me, that's common ground. It just happens to be your common ground and you invited everyone over to your place for a party.

#45 ::: Greg London ::: (view all by) ::: February 24, 2006, 02:47 PM:

aphrael,

read Bell the cat and Setting the Bounty. They're both about 500 words short, and that's all you really need to change the conversation from "eternal copyright" to "efficient free market competition"

#46 ::: Greg London ::: (view all by) ::: February 24, 2006, 02:50 PM:

Ooh, I forgot about this one. This is a good frame that pretty much everyone in the US knows about: The thousand dollar toilet seat. Again, about 500 words.

#47 ::: John M. Ford ::: (view all by) ::: February 24, 2006, 03:04 PM:

[...] when I posited that under the perpetual-intellectual-property regime we'd all be paying royalties to the descendants of the person who first discovered fire, the person I was arguing with had no problem with that. I was stunned.

It's comprehensible, even if I don't agree with it. There's a peculiar sorcery attached to ideation in the minds of a great many people; they think that ideas are rare and precious, and if you should be so fortunate as to have one, then there should be no limit on your ability to squeeze money (the only acceptable measure of value in our society) from it. The fact that an idea alone has no value at all without a complex human implementation -- someone has to write the story or paint the picture, a lot of people have to work together to make a machine fly or stop a ruptured appendix from being a death sentence, everybody has to pull hard to keep something like democracy operating -- is lost on most folks.

All together now: what's the most stereotypical question SF/F writers get asked? It sure ain't "isn't believable characterization hard work?"

This is why a patent, at least when the Patent Office is doing its job properly, is for an idea reduced to practice, not just an idea. It isn't enough to say "wouldn't it be cool if there were a machine that cured cancer and made thousands of julienne fries in seconds, while spinning straw into gold?" Come up with an operating prototype, and there's plenty in it, though what the monetary standard will be is open to question.

And a large part of the group nature of ideation is that one can draw on the ideas and practice of the past. It used to be a fairly common idea that a secret cabal of guys who hid their knowledge of how to enrobe chocolate within an shell of confection, so that it did melt only upon the tongue, and not upon the hands that were the conveyance thereunto, was rather a bad thing. Now it's a "trade secret." It was useful, once, to refer to the guy from Avon or the Authorized Version of 1611 in a written work. Now you're likely to run into trouble from Fish 'n' Loaf Catering, a division of McDonald's.

#48 ::: Mark ::: (view all by) ::: February 24, 2006, 03:24 PM:

Hi..long time lurker...

Not so many years ago, I worked for a Major Publisher and one of my responsibilities was permissions. As a general rule, we advised authors that two lines of a song were fair use (just like poetry) unless it was more than ten percent of the entire work. (Obviously, there were gray areas and arcane little “but ifs”). I was stunned to see Neil Gaiman’s $800 quote for seven words. I would have gone ahead and used it without paying. In my nearly-a-decade of business, not once did I receive a letter of demanding a fee or c&d on something I cleared for use this way. Have permissions really changed that much or was my let-them-sue attitude simply successful?

#49 ::: Craig McDonough ::: (view all by) ::: February 24, 2006, 03:33 PM:

As Dave K. noted, copyright and patent protections are allied in the U.S. Constitution, and both are themselves facets of whatr is now referrewd to as Intellectual Property (IP).

The advent of a (supposedly) disinterested (hah!) State enforcing protections for IP is what took process protections (patents) out of the realms of craft guilds and their modes of IP enforcement -- large people with clubs and similar instruments having a Discussion With The Infringer.

I find the idea of perpetual copyrights absurd, both from the fact of restricting access to works (an earlier thread in this forum noted that some publishers, especially of music, keep recordings, in theory "in print" and never let the rights revert back to the originator) and as a foil to fools (as noted in *another* thread here [amazing way all these threads keep weaving themselves together] some heirs Several-Times-Removed or Old Enough To Know Better {or, as Renee noted, Old Enough To Get Real Jobs} seem to think that because there is any interest in reprints at all that there's gold 'tween them dar boards)

I also find the newest wrinkle enacted, that resulted in draconian retroactive copyright protection, just plain amazing and a tribute to the effiacy of The Greased Palm.

Greg London --

Please do not get me started on the ramifications of the DCMA. And, as you will likely agree, the side results from that law are not a matter of "unintended consequences." Pretty much all of the abuses of that law that we have seen were predicted at the time it was being "debated." As you say, "your congress at work." (and pay)

#50 ::: rhandir ::: (view all by) ::: February 24, 2006, 03:44 PM:

Greg London,
There is a slight flaw with the "thousand dollar toilet seat" scenario. It's an excellent parable -- but it probably isn't factual. I doubt that makes a difference.

I can't recall the details of the toliet seat fiasco, but I do recall the details of the $BIGNUM_DOLLARS "coffe pot" fiasco. (And if I was diligent, I would probably be able to come up with adequate search terms to support this, but bear with me.)

The short version is that the Air Force paid a lot of money to get a coffe pot installed in their transport planes.

The long version is that they needed a coffe pot that would keep coffe hot on a 12-18 hour flight so that paratroopers and flight crew would be fully awake when it came time to land. Said pot also needed to not burn the coffee, nor spill it on said paratroopers during arial maneouvers. (In addition to other arbitrarily specific parameters.) Basically, what the AF paid for was for a contractor to solve a one-off, custom engineering problem, that may very well have been over-spec'd by some bueaucrat. In addition, some of the controversial contracts included the AF retaining ownership of the dies and any specialized manufacturing equipment for the custom products.*

Ah, nuts. Futher googling has revealed this article on the "600$ hammer." Looks like stuff like that was due to bizzare accounting, e.g. lumping the item's individual cost with the R&D overhead to make it. I wonder if the explation I gave above is just a back-formation?

I guess I'll have to start muddling with snopes.

-r.

*For a frame of reference, custom dies for embossing business cards have a wholesale cost of 600$. Presumably at least 300$ of that isn't profit.

#51 ::: veejane ::: (view all by) ::: February 24, 2006, 03:46 PM:

I don't know many corporations that are eager to be sued by the RIAA. Personally, I'd go for it, but they never seem to put me in charge.

it's fairly clearly a copy of a British publication: it refers to the 'late Peninsular Wars'. So book copyrights are a bit later than that, at least in the US.

The US wasn't all that great about enforcing international copyright for a long, long time. I seem to recall it being an issue as late as the 50s, when Tolkien/Allen & Unwin went to publish The Lord of the Rings in the US and found ripoff reprints of the first (British) edition already here.

#52 ::: Greg London ::: (view all by) ::: February 24, 2006, 03:54 PM:

Mark: I think times have changed. lawsuits are becoming easier for organizations who have their own legal departments. Might as well put that sunk cost to use and sue somebody, awight? Fair use is not objectively defined for most uses, and is left to a judge to interpret. That is enough of a wildcard to strike fear in the hearts of writers who are weak of lawyers and thin of wallet.

Craig: Too late.

"Some have argued that because it may now be technically feasible to "meter" each use of a copyrighted work, and to charge a user a fee for the use, the concept of fair use has no place in the NII environment.” -- Bruce Lehman, 1995

The DMCA was Bruce Lehman's +44 musketball attack on decades of Fair Use doctrine, and damned if he didn't roll all 6's on his damage dice to boot.


#54 ::: Dave Bell ::: (view all by) ::: February 24, 2006, 04:12 PM:

There have been recent arguments in rec.arts.sf.fandom on these expensive hammers, toilet seats, and coffeepots. Summarising from memory:

Accounting practises are a part of the problem. At times, R&D costs have been shared across the items in a project in a quite arbitrary manner. The whole "weapons system" idea tends to bring things like ordinary tools into the package, so that the mechanic's tools, once a seperate procurement, carry a part of the R&D costs.

Apparently the expensive coffeepot is not so differently priced from the coffeepot Boeing would install in an airliner. Safety, and power, requirements will make them different from what you can buy in Wal-Mart.

And the toilet-seat story is a combination of specific requirements, and the need to make tooling for a small batch, lomg after the original production. Since that batch had to pay for the tooling, the seats were expensive. Subsequent batches cost much less.

These stories arise from people not understanding the accounting fictions, not comparing like with like, and not knowing what it costs to make something. Maybe politicians are ignorant. Maybe they are liars. Neither is all that good.

#55 ::: Clifton Royston ::: (view all by) ::: February 24, 2006, 04:12 PM:

Veejane:

There never was such an idea as "international copyrights" until the '70s or '80s. For a US copyright to be valid and enforceable during the period you're discussing, it had to be registered with the USPTO prior to its US publication or offer for sale in the US. Failure to do so meant that it did not have a US copyright and could not obtain one. I think British law was similar - if it was sold in the UK prior to registration, it was open season.

IIRC, that is how Ace seized the ability to publish the LotR here - it had something to do with the British publisher slipping up and allowing the British edition to be offered for sale in the US prior to registration.

It may have been ungentlemanly or sharp practice, but it was completely legal and "good business" on both sides of the Atlantic.

(A bit of significant computer trivia: the Unix operating system probably entered the public domain in the US by the same road, in the 1970s or early 1980s. This never got ruled on by the judge in the AT&T vs. BSDI and UC case, because the parties abruptly settled out of court, but the judge dropped some very strong hints that he might rule AT&T had lost its copyright on Unix by distributing too broadly without having registered it.)

#56 ::: Clifton Royston ::: (view all by) ::: February 24, 2006, 04:16 PM:

...he say "Ninety-five years?
Why judge, that ain't no time
I got a book set in New Orleans, gettin' life plus ninety-nine."

#57 ::: Greg London ::: (view all by) ::: February 24, 2006, 04:23 PM:

never was such an idea as "international copyrights" until the '70s or '80s

In the 1880's, Victor Hugo pushed for and got the Berne convention, a treaty between a number of European countries that agreed to recognize copyright protections from member countries. Without such a treaty, copyright was only a national law, and a work would be under copyright only in the country where the author lived. The work would be public domain everywhere else.

In 1905, the Berlin Act modified the Berne Convention to extend the Term of Copyright to the life of the Author plus 50 years.

In 1911, the United States entered the Buenos Aires Convention on Literary and Artistic Copyrights, which was the first international agreement regarding copyright for the US.

In 1952, the Universal Copyright Convention (UCC) was adopted at Geneva in 1952. The United States became a signatory. This created the phrase "All Rights Reserved", which was a requirement to have your rights enforced in other countries.

In 1976, the US joined the Berne Convention.

#58 ::: Mark ::: (view all by) ::: February 24, 2006, 04:24 PM:

Greg: I moved on from my publishing gig about eight years ago. Seems a lifetime. In any case, we actually took the attitude that if we were consistent, had general rules for fair use we always used, we could defend a use. While the author was ultimately responsible by contract, the author probably could have made the case that they were advised by the publisher and proceeded in good faith so I imagine the publisher would have joined a defense…don’t know what the end result would have been…as I said, we literally never received an objection. I think I’d still it do it today, but then I tend to be that person that flicks chips off shoulders and giggles.

Oh! Teresa, I’ve figured out the answer to your other post: obviously, with icey resolve, I braved the potential litigation storm and cleared fair use song lyrics for a moody author. That poor Arizona student found my pornographic abuse of copyright law to be morally repugnant to some people.

#59 ::: Anghara ::: (view all by) ::: February 24, 2006, 04:32 PM:

An individual author owns his or her work, check, Fifty (or seventy, or whatever) years post his or her death, I can live with copyright extending that long. But I can't imagine today's literature, at least the genre literature, the thing I read and write, without the use of common domain ideas - and it frightens me that whatever is in common domain today is all we will ever have. It doesn't bode well for future creative endeavours. We create myths today, just as our forebears created theirs - and someday, somewhere, if the human race survives that long, Star Trek is going to be somebody's mythology. It would be tragic if such things were absolutely out of a creative mind's grasp, to build future myths on.

#60 ::: Charlie Stross ::: (view all by) ::: February 24, 2006, 04:35 PM:

The semantic framing of the whole debate fascinates me.

Pet peeve: "pirates" and "piracy". It's a pretty extreme label to pin on a practice which is, on the small scale, about equal to shoplifting, and on a large commercial scale roughly equivalent to any other form of forgery (watches, scent, designer handbags, whatever). But it's an example of how the folks who pin the label on the donkey get to define the debate. Piracy, after all, is a Serious crime, and deserves draconian sentencing (twenty years! life!) ... which is a whole lot harder to argue for in the case of shoplifting. And indeed, the next time the MPAA or RIAA accuse one of their profit centers -- excuse me, infringers -- of shoplifting, it'll be the first.

#61 ::: Michael Turyn ::: (view all by) ::: February 24, 2006, 04:48 PM:
  1. Did this at Boskone end up proximate to either of Mssrs Macleod and Stross---it might have been interesting.

  2. Was he a Galambosian?---if he didn't ask you for payment for hearing his ideas, he wasn't, or he was a bad one, but it sounds like he was on his way.
  3. I won't argue about the morality of his point, but will bring up the too-infrequently--invoked question, "Can a moderate government of a relatively free people enforce this law?"
  4. I enjoy living in a society that at least ostensibly respects "natural" rights, but I've long been sceptical of the concept because "natural" often seems to be pretty subjective---I can't help but think of the Rushdoonyite who called himself a "Christian Libertarian", one who wanted government to only perform its natural functions of enforcing contract, national defence, and stoning adulterers, blasphemers, sondomites, disobedient sons, &c..
#62 ::: Josh Jasper ::: (view all by) ::: February 24, 2006, 04:54 PM:

Lots of indie labels sell without DRM. DRM is a result of the Big Four music labels conspiring to keep control of things by extraordinarily stupid means.

The thing is, the size they are, they don't have to care how many people they piss off, as long as the majority of customers keep paying whatever the market can bear.

Four corporations control about 70% of the world's music. What they say, goes.

#63 ::: Linkmeister ::: (view all by) ::: February 24, 2006, 05:50 PM:

The Ladies Professional Golf Tour is trying this "mine forever and ever amen" business on.

To get credentials, media outlets must agree to hand over ownership of their photos to the LPGA and only publish or air stories about the event as news stories. Reporters covering the event can only write about the LPGA Tour, and those stories could be used in perpetuity by the LPGA for free.

More here.

#64 ::: Kathy Li ::: (view all by) ::: February 24, 2006, 05:54 PM:

Cliff Royston wrote, about copyright/patents:
Note that unlike all the moral rights listed in the Constitution, Declaration of Independence, or Bill of Rights, copyrights and patents are listed in the Constitution not as any sort of "right" but as a clever way to jump-start the economy of the fledgeling nation.

I've also found it interesting to note, however, that it's in the main body of the Constitution--in the first Article, in fact, and not an amendment like the Bill of Rights (i.e., an "oops, we forgot something" afterthought). [Article 1, Section 8: "The Congress shall have 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... "]

It's right after Post Offices. :)

#65 ::: inge ::: (view all by) ::: February 24, 2006, 06:01 PM:

Greg, quoting: "Some have argued that because it may now be technically feasible to "meter" each use of a copyrighted work, and to charge a user a fee for the use,[...]"

I acutally wrote a novella inspired by that quote. (So have, I guess, thousands of others, and better.)

#66 ::: PhilPalmer ::: (view all by) ::: February 24, 2006, 06:14 PM:

Charlie Stross: But it's an example of how the folks who pin the label on the donkey get to define the debate.

I call it Mitnick's Revenge. (http://en.wikipedia.org/wiki/Kevin_Mitnick). Mitnick is an unlovely dolt but all he did was send stupid messages to stupid computers which then did stupid things. He did not "break into" anywhere. Anyone who has had their house broken into would know the difference.

But prosecutors, by overhyping the threat, have created a situation where really bad design decisions can be preserved long-term using the full apparatus of state power. The unnecessary and damaging restrictions resulting from this will continue for decades. Mitnick is by most accounts not someone to see the consequences of anything, but he might well have said to his prison guards, including the one who put him in solitary for eight months because he might have launched a nuclear attack by whistling into a telephone, "whatever you do to me is going to come back and bite you in the ass."

Mitnick could have appealed. Most likely he didn't because he had been threatened with even more severe treatment. But maybe he knew what a bad and unworkable precedent he was setting.

In short, we live in a zeitgeist where a period of innovation is coming to an end.

#67 ::: rhandir ::: (view all by) ::: February 24, 2006, 06:19 PM:

A few thoughts, assorted:
1. I don't like the current copyright regime. Especially for the reasons Anghara mentions: lack of common myths that can be drawn upon without fear of suit.

2. I don't mind the reification of intellectual property, but then again, I am kind of used to holding propterty that isn't strictly mine, or strictly physical property with intangible charactersitics. E.g. I "own" a house, but most of it is the bank's. Alternatively, I have a pretty, highly decorated, engraved piece of paper, that tells me that I "own" part of a corporation, which itself is a: a. "person" b. collection of factories c. set of financial structures d. group of people working together e. set of risks and f. continually varying money equivalent. Despite all this, I still think of myself as owning a kind of property, mainly because it is a convenient construct.

3. A heritable, unending copyright, like Theresa's interlocutor advocates leads to an interesting scenario in the long term. Take a "patent on making fire".
Generation 1: people pay one guy to use fire.
Generation 2: people pay a small family to use fire.
Generation 7: people pay a large family/small clan for the privelege to use fire. Hmm. Sounds like Medici's to me. Meanwhile, other useful patents have been enacted, so the fire clan pays license fees to other clans. City-states form around license monopolies. (Brad Pitt conquors Troy in order to secure the Helen license?)

By generation 10: most people owe most other people license fees for most of the useful things they use. The bookkeepers report that the equation balances out to nearly zero, (except for some recalcitrant ethnic groups that refuse to use chairs) and that given the time spent calculating the difference owed, everyone is actually in the red. The bookkeepers suggest that since almost everyone has inherited the license fees for most stuff, (and everyone benefits from the inventions anyway) that it could be moved into a special accounting category called "the public good".

In order to simplify things for future accounting, the relieved bookeepers suggest that perhaps setting a time limit on licenses would be useful. A set of politicians agree to try this out, and decide that 14 years sounds pretty good for stories, and that 10 sounds pretty good for ideas. ("But, only if they have a working copy of the idea, or a printed copy of the story.") The bookeepers sigh, and decide to go back to working on more important things, like inventing a method to track accounts using two entries.

-r.
p.s. If someone wants to take this story and re-work it into something good, go ahead.

#68 ::: Keith Kisser ::: (view all by) ::: February 24, 2006, 06:24 PM:

Aren’t you glad that, three hundred years later, we’re not paying royalties to the inheritors of the Cawdrey estate every time we use alphatical order as an organizing principle?

And yet, the Dewey Decimal System, found in most public libraries and numerous private ones, is still owned by the DDC and charges any institution who wishes to use it a fee.*

The Library of Congress system is free to anyone, but only because it's owned by the Government and in the public domain. I imagine if Bush had been around two centuries ago, and thought he could make a buck from it, he'd have privatized the system of organizing the Congressional collection and sold it to the highest bidder (probably the UAE).

* Sometimes they'll wave the fee, if the institution is needy and penniless.

#69 ::: NelC ::: (view all by) ::: February 24, 2006, 06:46 PM:

As a counter to the phrase intellectual property may I propose intellectual commons as a useful umbrella term?

#70 ::: Greg London ::: (view all by) ::: February 24, 2006, 06:52 PM:

I "own" a house, but most of it is the bank's

rhandir, that's not reification. reification is taking the act of belling a cat and calling it a "thing" owned by the brave mouse who did the belling.

A house is a house is a house. The concept of "love" is an abstract thing. Asking "where is love?" "how much does it weigh?" is the logical fallacy of reification. (it may also qualify as a zen koan, but that's a different matter)

The idea of "property" is that it is zero sum. For one to gain, another must lose. But when one mouse bells a cat, all mice benefit. If you want to set up a reward system that encourages mice to put bells on cats, that's fine, but to relate to their action of belling a cat as a "thing" is reification.

Same goes for works covered by copyright. A book is a physical thing, but the part covered by copyright is the expression, and when one person expresses something publicly, all benefit immediately. You can set up an incentive system to encourage writers to write and reward them, but to relate to their expression as if it were a physical thing is reification.

#71 ::: aphrael ::: (view all by) ::: February 24, 2006, 07:26 PM:

Rhandir - would the bookkeepers actually suggest such a thing? Or would they realize that the incredibly complex system of payments constituted job security for them, and become staunch supporters of the system?

One of the ironies of the situation is that the transaction costs of such a system would be so high that the economy would grind to a halt -- hardly something I'd expect free market zealots to support.

#72 ::: Marianne ::: (view all by) ::: February 24, 2006, 07:57 PM:

I just read Spider Robinson's tasty short story, "Melancholy Elephants," which addresses this very topic. Though from a different angle... hm, don't want to spoil the story if anyone reading this hasn't read it. But it's good! (My copy was in "New Hugo Winners, Volume 1.")

#73 ::: rhandir ::: (view all by) ::: February 24, 2006, 08:29 PM:

Aphrael,
The only bookkeeper I know is a quiet, pleasant, practical person. She doesn't seem the kind of person who would enjoy busywork.

I kinda wanted to get at a couple of things in that little story: that if you substitute "merchant guilds" for "licensor", you essentially get a pocket history of Europe/the Mediterranean/China etc.

Basically, a heritable copyright resembles nothing so much as a drop of ink in a swimming pool; well defined at time zero, but immesurably diffuse within the hour. My point was that an infinitely divideable "property" resembles a "common good" over time. (Or, more accurately, given a constant supply of infinitely divideable properties, over time ownership becomes so mixed that essentially everyone gets a piece of the action.)

This is like the idea of six degrees of seperation: if knowlege is owned by a guild, and the guild is large enough, it is difficult to find customers who will pay full price, since the odds are that you are obliged to most of your customers through other weak links. This kind of flattening out of power is pretty easy to see in places like China, where you get complex interrelationships of "owing" one another, based on how "near" or "far" a person is from you/your social group. [ref term: guanxi]


-r.

#74 ::: Scott ::: (view all by) ::: February 24, 2006, 08:36 PM:

On the topic of owning things you don't really own.

I will slit the throat of anybody who tries to deprive me of my CD collection (okay, that's an exaggeration, but only because I don't know much about knife-fighting). But really the 8 cents worth of plastic & metal that they're printed on don't mean that much to me, and everybody knows I don't own the music that those things can convince my stereo to play (thankfully, I do own that stereo). Why am I so possessive? I mean... I like liner notes, but not that much.

(Oddly and amusingly, part of the answer is that I went to so much trouble to put them where they are, and I'm defending the effort of my work.)

#75 ::: rhandir ::: (view all by) ::: February 24, 2006, 08:59 PM:

Greg London,
You correctly pointed out that the examples I gave weren't precisely reifications.

You said: A house is a house is a house. The concept of "love" is an abstract thing.
My thought is, yes, it is a house, but whose house is it, really? Through my own inaction I can "lose" it. The quality of wether something can be possessed or not is what people get hung up on. Let me explain.

If I laboriously write a manuscript, at the end of many months I have a really neat expression in the form of a stack of typewritten pages*. As long as I don't share it, its mine. My precioussssss. I can enjoy it, and no one can take advantage of this resource I've produced. So long as I retain control of the source manuscript, I "posess" the story like I would any other object, and the illusion of property is unbroken.

The problem comes in two parts:
1. The resource that I've produced is much more like "a sunny spring afternoon" than a pile of coal. (The expression has a physical** component {paper, symbols} and a nonmaterial component {plot, ideas}.)

and

2. I don't have much control over how its exploited once the idea gets out of the fixed form I put it in.

Publishing fixes problem #1: the physical form now can usefully be shlepped around in rail cars and delivered to many people. Copyright fixes problem #2: I can exert some control over how the resource is exchanged for money. But the illusion of property persists because it looks like I'm getting money in exchange for "stuff". In addition, it looks like a real life golden goose scenario: as long as I "hold onto" the story-manuscript (the publishing contract becomes the proxy for the story-manuscript) I can make as much money as I want! All illusions, of course, but it explains the irrational dreams of inheritors just fine.

My overall point is that holding a deed to a house , or a stock certificate is a lot more like "owning" a copyright than anything else (it has that mix of tangible and intangible). Given that we live in a culture where people own all kinds of abstract things, and refer to the as "property"... well I dunno.

Perhaps, maybe we are approaching this the wrong way. It may be useful to keep on referring to it as property, unless we can find a word for "something that has material and nonmaterial characteristics that can be kept, but never owned."***

-r.

*yes, yes, I know actually its little alterations in magnetic charge on a spinning disk, but I can't get too abstract!
**Or verbal, somatic, material, component(s). See 1st ed. AD&D PHB, p.43)
***Surely there is a riddle in the Celtic/Anglo-Saxon tradition along these lines?

#76 ::: Marilee ::: (view all by) ::: February 24, 2006, 09:21 PM:

As to quoting lyrics, when Allen Steele found out what it would cost him to quote Grateful Dead lyrics in his near-future books, he just made up lines that sounded like the Dead. He did a good job, if you tell that to some people, they're sure they were actual Dead lyrics.

#77 ::: DonBoy ::: (view all by) ::: February 24, 2006, 10:30 PM:

To this:

It makes it all too easy to suppress ideas -- if I own the copyright to, say, the Communist Manifesto, and I'm a staunch Randroid what are the odds that it would never again see the light of day?

-- note this trouble with Simone de Beauvoir's The Second Sex; the original translation into English is badly flawed, and there are people willing to correct it, but the English-language rightsholders don't find it worthwhile to publish a new edition, so that's that.

#78 ::: CHip ::: (view all by) ::: February 24, 2006, 10:56 PM:

I was stunned to see Neil Gaiman’s $800 quote for seven words. I would have gone ahead and used it without paying. In my nearly-a-decade of business, not once did I receive a letter of demanding a fee or c&d on something I cleared for use this way.

Legally, there's a sharp difference between following common practice and doing something one has specifically been told not to do.

Also:
- what would making trouble against your cases have gained? The value of a quote certainly couldn't be more than the yield on the book, which I understand averages rather low; Anansi Boys was not going to be an average book. (A lawsuit probably wouldn't have cost all the revenue, as I understand it did when the owners of Here Come the Brides took on Hambly's crossover Star Trek novel Ishmael, but there would have been enough money at stake to attract attention.)
- How sturdy a target was your major publishing house? It presumably had its own lawyers, whose job was to defend against assaults by other lawyers; Neil Gaiman, however much administrative support he gets from Heifetz, TFLorraine, etc., is one person, who has better things to do than dealing with a lawsuit.
He may also have been more interested in staying clearly inside the law after having spent (per elsewhere in his blog) a large amount of energy dealing with someone who had stolen his work.

#79 ::: Bruce Baugh ::: (view all by) ::: February 24, 2006, 11:42 PM:

The older I get, the more I find myself inclined to support a very strict, fixed term for copyrights, not renewable - inheritable, and transferable within some limits. Part of this is seeing ways for creators to continue to make money even when they don't have exclusive rights - "hi, this is the version I endorse" makes sales, for starters. Part of it is seeing more and more harm from the alternative.

#80 ::: Jack Ruttan ::: (view all by) ::: February 24, 2006, 11:47 PM:

What about jokes? If someone uses your joke, it's taken away from you. At least in terms of a standup comedian or cartoonist. Who wants to see my version of a Charles Addams gag, or hear me tell a Woody Allen joke? If I get there first, or become more popular, they're the losers.

Being a freelancer also doesn't put me in the all information should be free camp. Because newspapers and mags and the internet make money from your stuff, and you've lost it forever.

Electronic Rights Defense Committee

#81 ::: Mark ::: (view all by) ::: February 25, 2006, 02:05 AM:

Chip: I agree vis-à-vis common practice versus flagrant flouting. That’s what I meant by having rules to follow. To clarify a bit, for a mere seven words of a song, I wouldn’t have requested permission in the first place because in my judgment it was fair use within a realm of common practice (or, dare I say it, reasonable!). If it’s fair use, at a fundamental level, I simply don’t have to ask permission. Once I ask the question (i.e., permission), I’ve ceded the fair use decision to someone else and redefined common practice. At that point, if someone assigns a monetary value to something I think doesn’t have any, I either pay, don’t use it, or use it and risk a lawsuit predicated on the fact that I was given warning. Even if I’m right.

Imagine a world where every creator demands payment for any use, no matter how trivial. If a requestor in that world lets the creator define that rule, fair use in effect disappears even though the law recognizes the concept exists (which essentially is happening). In any case, to your point, fair use is all about defining when something’s worth it.

Which, IMHO, loops back to the perpetual copyright issue…I can say my copyright has value forever. But value is determined in the marketplace and if my fee is above the market, the creation will never be seen. If my heirs and their heirs think the same, they can sit proudly safe in the knowledge that not only is no one making a dime on my work (including them!) but no one can ever use my work to create new ones. At a certain point, an additional value of a creation is not what it sells for, but what it inspires. In our litigious world, perpetual copyright would eventually mean any inspired story is vulnerable to lawsuit if the pockets are deep enough. If the Brothers Grimm manipulated copyright the way Disney wants, Disney would never have been able to do Snow White. Creation eventual grinds to a halt (Story Inertia!).

This is really a discussion of Art versus Commerce. Cezanne inspired Picasso. Disney lobbies Congress.

#82 ::: Scraps ::: (view all by) ::: February 25, 2006, 02:18 AM:

I just ran across a great example tonight. I love the work of the nineteenth-century poet John Clare, and had not known that a copyright controversy has been roiling over his poetry for years, because one damned professor asserts the copyright to all of Clare's poetry that was unpublished in his lifetime -- which is most of it. This situation has prevailed for more than 35 years, evidently. The Guardian article is more than five years old; I don't know if there has been any improvement in the case since. Poor John Clare; why does it have to be the writers who most need the free exposure who attract the worst parasites?

#83 ::: Dave Bell ::: (view all by) ::: February 25, 2006, 02:21 AM:

Ultimately, the defence of the copyright idea depends on the assumption that otherwise a work will be exploited without payment to the creator.

In other words, if it were not for the law, the free market would force everyone to be a "pirate", including the corporations.

As has been said here before, the behavious of unconstrained corporations is often analagous to that of natural persons suffering from diagnosable mental disorders. including the behaviour a layman would label psychopathic.

So we get a bunch of psychopaths expectimng everyone to behave like them, and with the influence to get laws to prevent that behaviour. At first sight, this seems a Good Thing. Unfortunately, the insane get to write the laws, and have the resources to enforce them on others.

Of course, if a corporation is insane, shouldn't it be committed to an asylum?

#84 ::: Robert L ::: (view all by) ::: February 25, 2006, 02:49 AM:

Scott: I will slit the throat of anybody who tries to deprive me of my CD collection

"This CD is loaned for promotional purposes only and may be reclaimed at any time by the copyright holder." At least, that's what it says on a lot of my CDs.

Teresa: I wish I could remember the title and author of an sf short story I read back in the day. I think it was in Analog in the 1960s. Somebody either wrote something or invented something--something relatively minor. The galactic whoever-they-were liked it, and paid to license it. So the writer or inventor or whoever thought, cool, I made some money. But what happened was, since this bunch of galactic folks had bases all over the galaxy, and it took time to travel farther and farther away from Earth, effectively the guy was set up for life, from this one small thing: The licensing fees would keep trickling back to Earth in greater amounts as his intellectual property exanded outward like an enlarging ripple in a pond...

#85 ::: Dave Langford ::: (view all by) ::: February 25, 2006, 04:42 AM:

The story that Robert L remembers is "A World by the Tale" (Analog Oct 1963) by "Seaton McKettrig", a pseudonym of Randall Garrett. The intellectual property was the human hero's book about his trip on a galactic ship, regarded as unwittingly hilarious by the alien community. Perhaps something like The Young Visiters in space....

#86 ::: Nancy Lebovitz ::: (view all by) ::: February 25, 2006, 05:39 AM:

Mike Ford: Did people really used to think trade secrets were a bad thing? My impression was that trade secrets were viewed neutrally--they were just the way things were done. Now that I think about it, my impression is based on never having seen the topic discussed by anyone pre-modern, so I'm assuming that people weren't worked up about it.

Micael Turyn: "Can a moderate government of a relatively free people enforce this law?" is an interesting question, but I'm not sure you could get a "yes" in regards to murder.

#87 ::: liberal ::: (view all by) ::: February 25, 2006, 05:46 AM:

Renee wrote, I like the idea of 'copyright to me' through my lifetime for my writings; I made them, the profit should come to me, unless I specifically lend, trade, sell, or assign the property to someone else.

But the ultimate purpose of copywrite isn't to profit authors; it's to further the arts. See the Constitution.

Furthermore, you're using government force to infringe on others' liberty. Doesn't mean copyright is necessarily wrong, but it does mean the burden is on those favoring copyright. Note that such government-mandated rules are widely understood to be economically inefficient (because the market price is not socially optimal).

I don't see why copyrights should last longer than 10 years.

#88 ::: Alison Scott ::: (view all by) ::: February 25, 2006, 05:47 AM:

You know, it's interesting that you write about the start of alphabetical order. This generation is -- just about -- being taught long division. They only teach it to the best students, and they're pretty desultory about it. Because it's now a broadly unnecessary skill.

The equivalent for my children's children, or perhaps their children, will be alphabetical order. I do still look things up in alphabetical order, occasionally. The indices of learned books, the town plan map in Ferret-on-Sea, that sort of thing. Once we have a searchable concordance for everthing, on the internet that we keep in our pockets, those uses will cease, and 99% of the population will have no need for the skill.

#89 ::: Kevin Marks ::: (view all by) ::: February 25, 2006, 05:56 AM:

A few more links for you all:
As part of the UK Parliament public inquiry into DRM, I wrote a paper on DRM and copyright:

The UK Parliament set the precedent for Copyright law in the Statute of Queen Anne that defended authors from rapacious publishers, and which has served as the basis for global copyright law ever since. Re-reading it for this essay, I was struck by how well it balanced authors', readers' and publishers' rights:
Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families: for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books;

We also recall Macauley's judicious balancing in 1841:
It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.

With regards to the 'takings by death', that is why a fixed term is more just, and we have moved away from that. Jefferson wrote on this in 1789:
"The question Whether one generation of men has a right to bind another seems never to have been started on this [i.e., the European side -- Jefferson was writing from France] or our [American] side of the water... that no such obligation can be so transmitted I think very capable of proof. -- I set out on this ground, which I suppose to be self evident, that the earth belongs in usufruct to the living; that the dead have neither powers nor rights over it... A generation coming in and going out entire... would have a right on the first year of their self-dominion to contract a debt for 33 years, in the 10th for 24, in the 20th for 14, in the 30th for 4, whereas generations, changing daily by daily deaths and births, have one constant term, beginning at the date of their contract, and ending when a majority of those of full age at that date shall be dead. The length of that term may be estimated from the tables of mortality. Take, for instance, the tables of M. de Buffon... [according to which] half of those of 21 years [of age] and upwards living at any one instant of time will be dead in 18 years 8 months, or say 19 years as the nearest integral number. Then 19 years is the term beyond which neither the representatives of a nation, nor even the whole nation itself assembled, can validly extend a debt... This principle that the earth belongs to the living, and not to the dead, is of very extensive application... Turn this subject in your mind, my dear Sir... Your station in the councils of our country gives you an opportunity for producing it to public consideration... Establish the principle... in the new law to be passed for protecting copyrights and new inventions, by securing the exclusive right for 19 instead of 14 years."

In 1813 he wrote: "he who lights his taper at mine, receives light without darkening me."

#90 ::: Kevin Marks ::: (view all by) ::: February 25, 2006, 06:02 AM:

Oh, also, here's the
argument against copyright term extension reframed for different political views
:
Liberal collectivist
The shared culture of society should belong to the people together, not to faceless corporations.
Libertarian
Our ability to express ourselves freely should not be constrained by a state-granted monopoly.
Liberal Economist
As non-rivalrous goods with a vanishingly small marginal cost of reproduction, cultural goods reach maximum utility by being freely replicable.
Conservative
Creating property rights in goods that can be duplicated at will is inflationary, and undermines the value of real physical property that is the bedrock of a stable society.

Each of these is a facet of the issue, and a defensible position, but if you have a mismatch between the argument and the political frame of your audience, you will be met with incomprehension or hostility, and won't win for our cause.

#91 ::: DM SHERWOOD ::: (view all by) ::: February 25, 2006, 07:08 AM:

Yeah I've always held the absolute limit on any copywright should be the authior's life-maybe enuf extention build in so that his kiddies can go thru college

#92 ::: Lowell Gilbert ::: (view all by) ::: February 25, 2006, 09:24 AM:

(Charlie Stross:)
Pet peeve: "pirates" and "piracy". It's a pretty extreme label to pin on a practice which is, on the small scale, about equal to shoplifting, and on a large commercial scale roughly equivalent to any other form of forgery (watches, scent, designer handbags, whatever). But it's an example of how the folks who pin the label on the donkey get to define the debate.

One of the things I have learned in fandom (probably from Patrick, although I no longer remember for sure) is that this use isn't new. The OED lists uses of the word "piracy" in this sense going back to the 18th century. So that label was pinned on this particular donkey long before anyone currently around got to participate in the argument.

But that point is only about who to blame for the debate-framing effect; I certainly agree with Charlie that violating copyright is not comparable to a crime of violence. If you need a metaphor (and I wouldn't be surprised if writers really do need one), forgery is far closer.

#93 ::: bryan ::: (view all by) ::: February 25, 2006, 09:38 AM:

The original primary purpose of a law is not necessarily the best argument for its continued existence.

This is especially pertinent in cases where the law was first established a long time ago, in a culture radically different from the current one.

The current discussion of copyright often involves what, by opponents to the current state of copyright, is seen as a misconception that copyright somehow involves a moral right to ownership to the fruits of one's mental labor.
I do not see this as a misconception. I think instead that it is a natural viewpoint, given the conceptions of our current society, to assume that people own intellectual property.

The people who want to argue only from a original conception of copyright are as obtuse as anyone wishing to argue an original intent interpretation of the constitution. It is an irony as bitter as the one about anti-abortion activists being pro-death penalty that the people who keep arguing original intent with copyright generally deride original intent where the constitution is concerned.

That said I am not in favor of the current Copyright laws, however I believe these have had their success because their opponents have not had the
creative wherewithal to propound a narrative of rights to intellectual works in keeping with the modern sense of what is just.

Aside from that, given that people are living longer, and one keeps reading articles of how many people in their 30s now will live to be over a 100, is copyright for the life of an author any more equitable than the current life+ ?

#94 ::: Fragano Ledgister ::: (view all by) ::: February 25, 2006, 10:44 AM:

DonBoy: There's a word for that in French: merde.

#95 ::: Greg London ::: (view all by) ::: February 25, 2006, 12:49 PM:

bryan, The argument against Life Plus N. This argument stands whether N equals zero or seventy. It is a bad way to set terms.

I'd propose 40 years fixed terms, for private and commercial works, from teh date first published. That gives authors enough time to see their work turned into a book, movie, toys, DVD's, and released on cable, before anyone else can touch it. Once they've made the author has made their version and their money on their version, after 40 years, it becomes public domain.

#96 ::: Greg London ::: (view all by) ::: February 25, 2006, 12:58 PM:

rhandir, the difference is that while "ownership" itself is an abstract concept, the thing being owned itself may be physical or abstract. Whoever owns your house, there is only one house, and if burns down, it is gone. If the owner sells the house, they can no longer possess it simultaneously.

intellectual works are abstract. You can own a copy of a book, and so can a million other poeple. You can copy a work and give it to someone while keeping your original. People can gain without you losing.

That's the split between physical and abstract. Physical transactions must be a zero sum game. if you transfer ownership of a house, someone gains a house and someone loses a house. The sum of all transactions must equal zero. Abstract transactions do not have to be zero sum. You can take a work of Shakespeare, photocopy it in its entirety, and give it to someone else. Someone gains that work, without you losing it.

Copyright law turns the abstract intellectual works temporarily into property, requireing everyone to relate to the work as if it were an abstract thing. You cannot copy or distribute a work owned by someone else, meaning you must treat it as physical property, as a zero sum game, or face legal ramifications.

#97 ::: liberal ::: (view all by) ::: February 25, 2006, 01:42 PM:

bryan wrote, The current discussion of copyright often involves what, by opponents to the current state of copyright, is seen as a misconception that copyright somehow involves a moral right to ownership to the fruits of one's mental labor.


I do not see this as a misconception. I think instead that it is a natural viewpoint, given the conceptions of our current society, to assume that people own intellectual property.

You're not making any substantial argument. Looks like "appeal to popularity" to me, a logical fallacy.

#98 ::: liberal ::: (view all by) ::: February 25, 2006, 01:46 PM:

Greg London wrote, rhandir, the difference is that while "ownership" itself is an abstract concept, the thing being owned itself may be physical or abstract. ... That's the split between physical and abstract

Completely correct.

I think, for convenience and precision, the economic term non-rivalrous is better.

#99 ::: liberal ::: (view all by) ::: February 25, 2006, 01:51 PM:

Greg London wrote, I'd propose 40 years fixed terms, for private and commercial works, from teh date first published.

With the pace of intellectual progress these days, 40 years is an aeon.

I think 10 years is fine; 20, tops. Remember, the point of copyright isn't for creators to collect economic rent. It's to further the arts. The question, therefore, is what time period is optimal. I think 10 years is long enough to pay people enough to continue being creative. Longer than that, either the work isn't profitable, or if it is, the creator is collecting a windfall in excess of what's necessary to recover sunk costs and lost opportunities.

#100 ::: Clifton Royston ::: (view all by) ::: February 25, 2006, 02:15 PM:

As one who makes my living by computer programming, I think there needs to be a much shorter copyright term for software. A book written 100 or 200 years ago may still be valuable to us for use and as inspiration to other writing, but very little computer software written 40 years ago (1966) is of value today even as inspiration, let alone usable. The patent term of 19 years is long enough to be very damaging for progress in software, where it may not be for other fields.

The point of copyright is to allow a successful author to gain a reasonable return for a reasonable period, and then to ensure that the work passes into the public domain to enable and inspire other uses.

I think the copyright act of 1909 had the terms in roughly the right ballpark for literature and art - a term of 28 years, which could be automatically extended to 56 by the creator or heirs reapplying. That's an excellent provision, because it allows works in which the author sees no commercial value to pass into the public domain more swiftly. It might be reasonable to increase the terms slightly to allow for the increase in average lifespan since 1909. Say, 35 years, renewable to 70.

For computer software, a term of 10 years, renewable to 20 is just about the maximum reasonable term. If you can't make money on your software after 10 years, give it up.

Just realized, this would legalize the abandonware netherworld of early text-games and early console games that fans are running through emulators. The Infocom Zork and related games would be falling into the public domain around now. Yeah, that seems about right.

Recorded music, I don't know. Either 35/70 like literature, or lowered to somewhere between that and 10/20. Sampling and re-recording of earlier works is exactly what the copyright laws should be encouraging and promoting.

#101 ::: bryan ::: (view all by) ::: February 25, 2006, 03:06 PM:

"You're not making any substantial argument. Looks like "appeal to popularity" to me, a logical fallacy."

And you don't address a number of other points in my post so I'm going to assume you're not making a substantial effort to respond, I am also going to assume that you don't really understand the concept of 'appeal to popularity' or what I said considering that I did not make any statement regarding the number of people who may believe that there is such a thing as ownership of intellectual property, instead what I said was that it seemed a natural viewpoint to me. To argue that something is 'natural' is another fallacy altogether, but before you point it out I should also note that I did not propose it as being universally natural but as a view that seemed to derive from some unspecified qualities of our society and that the view seemed to me a natural one for people to hold in light of these unspecified qualities (without, as noted, specifying how many people I believe actually hold this idea).

Why does it seem a natural viewpoint to me (in the context of the word natural as described above)? Hard to know, what seems natural is often the hardest thing to break apart into its constituent parts.

I would observe however (and this will sound familiar to many, being a pastiche of the common arguments against original intent arguments for the Constitution) that when the concept of copy-right was originally conceived those who produced intellectual content were not only a minor part of the economy as a whole but were, in all but a few cases looked down upon socially and apt to seldomly see any profits of their work. In such a world it was impossible to formulate a concept that one had the right to such a thing as intellectual property. There are many rights that have not been formulated until recently, I submit that the right to derive economic benefit from the work of ones brain is one such right, although the right is currently defined in a bad way, having been derived from something not seen as a natural 'right' at all when first expressed, and as a consequence never having been fully enunciated as such.
In an economy where what most workers produce is intellectual in nature intellectual property is a reasonable concept, in that a worker must be trading something for their pay. This may be at the root of the tendency to see 'ownership' of the book one has written as 'natural'.

#102 ::: Christopher Davis ::: (view all by) ::: February 25, 2006, 03:14 PM:

Dave Bell's mention of weapons systems getting R&D and tooling costs rolled in to the per-unit price reminds me of the old BellSouth E911 memo in the Phrack case (US v. Neidorf). As the EFF found and published in 1991, the document was valued at $79,449 by BellSouth.

That value included $31,000 for the VAXstation II, $6000 for the printer, $22,000 for the Interleaf software, and $2500 for VMS (plus 10% for maintenance, don't forget that); after all, all of these were used to produce the document.

Said document was also for sale via Bellcore for $13.

#103 ::: bryan ::: (view all by) ::: February 25, 2006, 03:43 PM:

"The argument against Life Plus N."

I'm sorry but that is one of the worst metaphors I've ever seen.

People are apt to make bad metaphors where bookwriting and copyright are concerned, and bad metaphors are probably part of the human condition but really...
First of all, a bountry hunter gets the bounty specified for a felon. Thus the bounty hunter determines when they go after a felon, and they make that determination if the bounty is worthwhile for the amount of effort they foresee making the capture.

The derivation of profit from a copyrighted work is more of a gamble than a bounty hunter's work in that the author often has a very poor idea of how much profit can be expected to be made from the book, not to mention that the effort for writing a book is often more indeterminate than the effort for collecting a bounty. Bounty hunters as a rule do not work day in and day out on a bounty.

Second of all your argument rests on an assumption so shaky I'm worried it has palsy. 125 years of copyright does not translate into 125 years of pay, it translates into 125 years of potential pay. I'm sure we can all think of occasions where a copyrighted work has been low performing, only to perform higher later. To derive profit from a copyrighted work means work not just involved in making the work, but work done in promoting it, and deals for derivatives of the work. Thus a work may not have produced profit for 10 years, and then present an opportunity for profit, this opportunity for profit will probably involve other work from the copyright holder in order to maximise the profit. Please note that I am not personally arguing for 125 years of copyright, that was the number in Greg London's example.

Third, it is common that when one invests time without financial remuneration in the hopes of future financial remuneration that one expects to make more money than one could make working. Thus 15 years of work should not translate to 15 years of pay in order for us to have been said to have done well from the risks taken, it should translate into greater than 15 years, the amount greater probably also has something to do with how long one took to actually profit from the 15 years of work. There are also occasions where one can work for however many years and receive less years of remuneration. In the linked article "If it's true that an author needs more than their lifetime to pay for their time and expenses on a book, then that means that author is LOSING money while they are alive", yes, especially if they only write one book, and this is an especially pertinent example if every author has the exact same returns on their risks otherwise it's not so pertinent for describing a risk-based livelihood.

At any rate as said I agree the current length of copyright is too much.


If you want to indicate an equivalence between the risks of not receiving adequate remuneration for an author and the risks for a bounty hunter well, I would like to see some statistics.

#104 ::: bryan ::: (view all by) ::: February 25, 2006, 03:47 PM:

"That value included $31,000 for the VAXstation II, $6000 for the printer, $22,000 for the Interleaf software, and $2500 for VMS (plus 10% for maintenance, don't forget that); after all, all of these were used to produce the document."

costs are often overestimated in criminal cases in order to derive various benefits from the crime by those doing the reporting (of course this is often a crime in itself, I wonder if the loss of that document went in any statements anywhere) and to maximise punishment for the criminal.

#105 ::: Patrick Nielsen Hayden ::: (view all by) ::: February 25, 2006, 03:50 PM:

Greg London writes:

"Most of the current state of affairs regarding intellectual property law can be credited to one man: Bruce Lehman"

and later writes

"Every time Disney's 'Steamboat Willie' is about to enter the public domain, Congress decides to extend copyright terms."

It's hard to escape the sense that perhaps the fact noted in the second statement throws the accuracy of the first into a bit of doubt.

#106 ::: bryan ::: (view all by) ::: February 25, 2006, 03:56 PM:

"The question, therefore, is what time period is optimal. I think 10 years is long enough to pay people enough to continue being creative. Longer than that, either the work isn't profitable,"

The Princess Bride was written in 1973, the movie
was made in 1987. I'm not sure exactly how succesful the original printing was, it probably did okay though but uh, it was certainly more profitable a good time after its original publication.

" or if it is, the creator is collecting a windfall in excess of what's necessary to recover sunk costs and lost opportunities."

well, first off in a risk based enterprise one needs to recover sunk costs and lost opportunities and then have a profit on top of that, and as I've already noted the profit collected for the risk needs to be greater the greater the risk and the longer the time before collection of said profits.

Second of all, you seem to take a lot as a given in your statement there. Any statistics (I'm not going to say proof because I'm sure examples that oppose your claim could be found [although such may be rare])?

#107 ::: bryan ::: (view all by) ::: February 25, 2006, 04:03 PM:

It should be noted that the current problems with copyright can be broken into two parts which people discuss as being one constituent whole, these are:

1. Copyright is currently extended to a length far greater than in past times.
2. usages that traditionally were fair use usages are under attack.

These things are related because of the corporations that drive copyright currently, but they are not related by any actual logic. One could divide these things and argue them seperately. In doing so I think it would be pretty easy to break the current attacks on fair use. The length of copyright problem is another matter.

#108 ::: Christopher Davis ::: (view all by) ::: February 25, 2006, 04:58 PM:

bryan: "I wonder if the loss of that document went in any statements anywhere"

Yup. That link points to the letter from BellSouth to the Assistant US Attorney involved in the case...and the charges were, IIRC, based on theft of property valued over $5000.

#109 ::: bryan ::: (view all by) ::: February 25, 2006, 05:04 PM:

the reference to statements was in the context of such things as accounting statements, losses and the like, insurance claims maybe. In other words a valuation that was incorrect being put into documents where the incorrect valuation would be against the law. Their delivery to the U.S attorney of this false information could also have been actionable, but I do not believe any action was taken.

#110 ::: Lenora Rose ::: (view all by) ::: February 25, 2006, 05:23 PM:

Bryan: You're right about "fair use" being a different argument from "Copyright is too long". That finally clarified for me why some arguments I've seen used against long copyrights struck me as non-sequitors. They were.

Liberal: 10 years?

So, if (and there are some famous examples of this) the author's work does modestly well, or not even that, the first ten years of its life, but skyrockets about 20 years later, the author, though alive and well, should not reap any benefit? What if a new publisher chooses to re-release a book published by a tiny press 20 years after its initial publication, because now the author is famous and people are asking for that "Lost first novel"? What if the author is still writing the same milieu, publishing sequelae to the work (A la Terry Pratchett)? What if it's not even sequels as such, or the same general milieu, but the same greater story arc, but because the work is arbitrarily divided into book-sized pieces (And with some published works, the points of division are not the author's choice), should the earliest part fall out of the author's control before the last is written, even though the actual *story* is not finished? (Like, say, Robert Jordan?)

Please explain why the author should not receive remuneration for these situations?

Before you say "Well, they wrote it 10 years ago!" remember that it's actually true that some books were written 10 years before they were *published*. Does that mean that the book should be released immediately into the public domain because the author hasn't technically put any new effort into it?

Whatever the initial *intent* of copyright some 200+ years ago, the fact is that NOW, for some people, that is their income, or one of their incomes. And for most of those people, even the ones with no other income, it is not exactly a fortune. When discussing throwing aside any and all royalties to an author, you are talking about reducing an already rarely poverty-line income to even less.

Which translates to giving writers even less incentive to bother publishing at all.

I personally favour Life plus X, where X is modestly small (15-20 years - NOT what we're, ugh, stuck with now). I could produce my reasoning for this. I'm not *sold* on it, the way Greg London seems to be on the number 40 years (He never does say why 40 and not 30 or 50 or, for that matter, 42, in any terms that indicate he pulled the number from anywhere other than "Well it sounds about right" land). I'd accept 50 years flat, no extensions, or copyrights that last only X years, but can be renewed for a modest cost every 10 or 20 years, as long as someone thinks they'll get enough from it to recoup that expense. I'd hesitate seriously on anything less than 30 years flat. (Yes, I am aware that Life plus 15 years can equal to less than 30 years total if the author is very unlucky).

For one thing, it takes more than 10 years for a work to really establish itself into the public consciousness in the way that suggests the work should become public domain and available for others to toy with legally. (And please don't mistake "fad", even a 10 year fad, for "established in the public consciousness".)

I don't think Laurie R. King's first Sherlock Homes/Mary Russell work would have nearly the same impact if the character as Doyle wrote it wasn't established for decades first.

On the other hand, I'd deeply regret it if Laurie R King could never have written that book in the first place because copyright terms were too long.

(I concede, working SF things into the consciousness of fandom is *faster*. Fandom is its own thing, though, and should not dictate the ways of the general public any more than extremist "fundamentalist" Christians should.)

#112 ::: Dave Bell ::: (view all by) ::: February 25, 2006, 07:11 PM:

Of course, if Copyright and Patent durations are reduced, how many corporations will be trying for Trademark protection.

Having the copyright on "Steamboat Willie" doesn't look worth much; it's the Trademark on Mickey Mouse that protects Disney's money.

I've seen old movies and animations that are apparently in the Public Domain, and get issued dirt cheap. The picture quality is often terrible. If Disney have the good copy, and hold the Mickey Mouse trademark, they have all they need.

#113 ::: P J Evans ::: (view all by) ::: February 25, 2006, 07:41 PM:

I had the thought that there could be two kinds of copyright: the regular one, which might be, say, 50 years with a single renewal for 25, and a 'perpetual copyright', much more restricted, where a copyright could be had on a single image (not a film or animation), with a payment of a very large sum (I was thinking $100 million USD (year 2000 value) as an example), but! if the image or work is altered, the copyright becomes void. So Disney could get a perpetual copyright on one picture of Mickey, but if they want more, they have to shell out for each one, separately.

The idea here is that if the thing is that valuable to the copyright holder, they can have it, for a price, but otherwise it only gets a normal expiring copyright.

It probably wouldn't work. Just sayin'.

#114 ::: Bruce Baugh ::: (view all by) ::: February 25, 2006, 08:06 PM:

Why do folks keep assuming that the absence of monopoly control means a creator can't profit from an old work become suddenly popular? At a minimum, the existence of Dover Press suggests that it's possible to make decent money with prose and art from work now in the public domain. NESFA Press shows another approach. There are bound to be others as well. It's not like the passing of a work into public domain means that the creator is thereby gagged from ever mentioning their creation of the work, or endorsing a new edition, or anything like that.

I have no idea how to assess the tradeoffs in return between the occasional rare late success and the very common work that someone won't let go of even though others would like to get it out, but at a minimum it seems like something to be considered if actual results matter at all.

#115 ::: Christopher Davis ::: (view all by) ::: February 25, 2006, 08:12 PM:

One of the biggest problems with the extension of copyright isn't the stuff that's worth something; it's all the stuff that isn't. At least if you want to license something Disney owns, you know who you need to talk to to get told that you can't (or that you need to pay them ten times as much money as you're going to make). If you're trying to work with something obscure, where you can't even find the great-great-grandkids who inherited the rights....

This is why I think Eric Eldred's nuisance fee/registration proposal would be a great idea. If you want to have your copyright protected after a certain length of time (in his proposal, 50 years after first publication), you should need to spend a marginal amount of money and effort registering your contact information to allow potential licensees to talk to you about it.

#116 ::: Robert L ::: (view all by) ::: February 25, 2006, 09:17 PM:

Dave Langford: Yes, that's it! Thanks so much! And I remembered it as being by someone I'd never heard of before or since--figures it'd be another Garrett pseudonym...

#117 ::: Robert L ::: (view all by) ::: February 25, 2006, 09:25 PM:

That story now strikes me as some sort of ultimate fantasy for the hard-working author: You write one story and live comfortably off it for the rest of your life. I can really Garrett--who no doubt wrote it to take a break from pounding out another Mark Phillips serial + 3 or 4 other things--coming up with the idea...

#118 ::: clew ::: (view all by) ::: February 26, 2006, 03:48 AM:

About trade secrets: I think late-nineteenth-century US writers are often against trade secrets, which they think of as an Old World error. (Wherefore you might hit a mention of "trade-craft, king-craft, priest-craft" to insult as much of the Old World as possible.) I am pulling this out of my hat, but I'd guess this is a reflection of the professionalization of technology at the time.

On the other hand, it's also an Enlightenment idea; surely Diderot's Encyclopedie (sp?) broke as many trade secrets as it could?

---

I sometimes imagine not only that nothing now copyrighted will ever enter the public domain, but that copyright will be infectious, viral, that children will have to be raised without copyrighted entertainment to be able to write anything without paying fees. Culture restarts in the 1920s. This could be all right.

On the other hand, the public domain could be eaten away like a soft coast, and that wouldn't be all right.

#119 ::: Greg London ::: (view all by) ::: February 26, 2006, 04:07 AM:

Greg writes: Most of the current state of affairs regarding intellectual property law can be credited to one man: Bruce Lehman"

and later writes

"Every time Disney's 'Steamboat Willie' is about to enter the public domain, Congress decides to extend copyright terms."

perhaps the fact noted in the second statement throws the accuracy of the first into a bit of doubt.

Absolutely not. Lehman is to Disney like Sauroman is to Sauron.

While Disney lusts for the ring of eternal copyright, it was actually Lehman's job to make sure that the forces of evil were kept at bay. As Commisioner of the Patent Office, Lehman was supposed to represent and protect the people, not the corporate interests. Lehman betrayed his post. While Disney lay siege at the city walls, Lehman walked down and opened the gates.

The way I look at it, Disney is supposed to want more copyrights, longer terms, more rights, that's the point of private enterprise. It is my opinion that the purpose of government is supposed to balance capitalism with the good of the people.

That's actually what the constitution says about copyright and patents, "to further the arts and sciences" (for the good fo the people as a whole), "authors and inventors may secure exclusive rights to their creations for a limited time" (to make money and profit). There are actually a decision or two by the Supreme Court over the last two centuries that does nothing but firmly reinforce this idea. Copyright and Patents must balance the public good with private enterprise and it is the government's job to do that.

Lehman betrayed the job he was given. Just prior to Lehman's appointment, the Supreme Court ruled that software could not be patented. It should have taken an act of congress, an act of political representatives, to change that. Instead, Lehman, an appointed bureaucrat, as his first act as commissioner of patents, did an end run around the supreme court and congress and simply announced that the patent office would grant patents for software.

That Congress failed to yank his leash immediately after that announcement is yet another failing, but it does not condone Lehman's initial betrayal of his post.

And while Isengard was supposed to be a force to stand against mordor and Sauron, the free choice made by Sauramon to swear allegiance to the dark lord was a pure betrayal of trust.

The purpose of the patent office is to act as gatekeeper to prevent prior art, prior invention, from being granted patents. They exist solely as a hurdle to prevent corporate interests from repatenting every invention under the sun for all perpetuity. That is their only job. If they act at the beck and call of corporate interests, then they have betrayed their post. And while I don't begrudge Disney for wanting more rights and longer terms, I expect Lehman and the likes of those appointed to similar posts as he to stand watch against them, to make sure that the public good is defended, not slip the corporate army a key in the dark of night.

While Lehman was on post, he directly caused Software Patents to be recognized by the patent office, he personally advocated for (to the point of going on an international lobbying tour) and got the WIPO/DMCA passed, and the same month that the DMCA was signed, the CTEA was also signed. Lehman. He was on the dark lord's payroll, for sure, but Lehman did the actual betrayal. He had free will, and he choose the lure of money. I do not transfer blame to those who bribed him.


#120 ::: Greg London ::: (view all by) ::: February 26, 2006, 04:28 AM:

Trademarks: As far as I can tell, these should be strictly limited to names for products. Kleenex tissue. to distinguish it from, say, generic facial tissue. Mickey Mouse shouldn't be a trademark because he isn't a product, he is a character, which is an expression covered by copyright. when copyright expires, Mickey Mouse should become public domain, and no amount of lawyering and purchased congressmen should be able to change that. But then, what I think and what will happen are bound to differ.

Trade Secrets: I don't actually have a problem with trade secrets, at least in their original state. The idea of trade secrets is this: An entitity surrenders any protection afforded by copyright or patents, and instead decides to attempt to enforce exclusivity on their intellectual work by keeping it under wraps. The government went along with this by saying that employers can have employees sign NDA's and anything marked "Trade Secret" is a thing they cannot take with them to a new employer. Fine. Contract law rather than copyright/patent law. The advantage is that you can possibly get infinite terms of exclusivity. The disadvantage is that reverse engineering is completely legal, and if someone figures out your secret by taking apart a product you sold to the public, then too bad for you. You should have gotten a patent.

The problem is that trade secrets are getting abused by new angles, such as End User License Agreements, which will strictly prohibit you from attempting to reverse engineer a device, software, whatever. Anything sold to the public should be reverse engineerable, and EULA's should be wiped off the face of the earth.

Trademarks and Trade Secrets, though, are old school. You have no idea the sorts of abuses the "Anti-Circumenvention" clause of the DMCA allows. The short metaphor is this: If the DMCA were applied to automotive technolgy, then imagine if General Motors put locks on the hoods fo their cars, then you bought one, and when it broke down, you and any other mechanic you hired were legally prohibited from unlocking the hood and fixing the car you purchased. The only way to fix your DMCA car is to take it to a certified GM dealer and pay dealer prices where compeitition is illegal.

trade secrets, trademarks, and even infinite copyrights, are BB Guns, and the anti circumvention clause of the DMCA is a nuclear bomb. That's how out of their league it is compared to anything before it.

#121 ::: bryan ::: (view all by) ::: February 26, 2006, 05:11 AM:

"Why do folks keep assuming that the absence of monopoly control means a creator can't profit from an old work become suddenly popular? At a minimum, the existence of Dover Press suggests that it's possible to make decent money with prose and art from work now in the public domain."

Dover Press created the works it profits from!?

#122 ::: Bruce Baugh ::: (view all by) ::: February 26, 2006, 05:14 AM:

*sigh*

#123 ::: OG ::: (view all by) ::: February 26, 2006, 07:52 AM:

Trademarked characters were at the heart of a lawsuit brought by Marvel against the City of Heroes online game. It is possible to trademark the name and appearance of characters, and the degree of resemblance required to be a trademark violation is well defined.

That's why you see superhero names come back into use every so often, to keep the trademark from lapsing.

(IANAL. This is my understanding from reading the lawyerly discussion on the City of Heroes board before the trademark suit was thrown out.)

#124 ::: Jo Walton ::: (view all by) ::: February 26, 2006, 08:45 AM:

Copyright isn't about making money, as your Constitution says, it's about promoting the arts.

Owning the copyright to my work in my lifetime means I can choose *not* to maximise the potential money I can make from it by saying no to things I don't want done with it. If I didn't have that right, or if things were going to go out of my control while I was still here to care, I'd be much more reluctant to write, or anyway publish.

Copyright beyond the lifetime of the creator doesn't promote anything and clogs up a lot of things. I'm for copyright automatically expiring with breath.

#125 ::: Dave Bell ::: (view all by) ::: February 26, 2006, 09:28 AM:

Jo, if you delivered a work to your publisher today, and popped your clogs tomorrow, they'd have no exclusive right to it. Is that too big a risk for the publisher? Would they insist on authors supplying the medical report with the manuscript?

The current post-mortem term feels far too long, I agree, but no post-mortem copyright at all is, I think, also a failure to promote the arts.

There's other arguments, such as providing for dependents, which have been used for post-mortem copyright. And there's always the problem of the manuscript found after the author's death. The publisher needs some protection too.

Maybe there's an opening here for an insurance policy instead of copyright. It would be a different sort of world, but that could cover some of the reasons for post-mortem copyright.

But corporations don't die...

#126 ::: steve Miller ::: (view all by) ::: February 26, 2006, 10:16 AM:

I'm wondering why Bruce Baugh assumes that NESFA is publishing work that's in the public domain? As I understand it they are reprinting and paying royalties on work that has been underpublished or long out of print, *not* work from the public domain.

Dover seems merely to reprint and takes all the profit -- NESFA supports those people who help create the stories.

#127 ::: Greg London ::: (view all by) ::: February 26, 2006, 10:45 AM:

if things were going to go out of my control while I was still here to care, I'd be much more reluctant to write, or anyway publish.

Then we should offer a fixed term reward of 40 years to authors and artists who are willing to create new works and won't throw a snit if they lose control of their work four decades after they wrote it, and you can find other employment.

This is the greatest fallacy of the infinite-copyright people: that writers are an extremely rare commodity, and if you don't make them happy, they'll leave, and then no one will write, because they are irreplacable. What a load of bullocks.

in 1710, copyright terms in England were set at 21 years.

from 1790-1830, the first copyright law in US set terms at 14 years, plus the chance to renew for another 14.

from 1831-1908, terms were extended to 28+14 years.
from 1909-1975, terms were extended to 28+28 years
in 1976, terms in US were set to Life Plus Fifty years.

Now, tell me, Jo Walton, what books were written in america from 1790 to 1976? A quick perusal seems to indicate that those two centuries were certainly not a desert of copyrightable works.

Mark Twain died in 1910, meaning he was willing to write all of his works with a copyright term of only 28+14 years. If Mark Twain would write all these books for the low, low price of 28+14 years of copyright, why in God's green earth do you think we should pay you Life-Plus-N years for your writings? Are you that much better a writer than Mark Twain? Are your expenses simply that much higher than Mark Twain?

Edgar Allen Poe died in 1849, and his notable works were written knowing he would only get 28+14 years of copyright protection.

Henry David Thoreau died in 1862, meaning that his works were also only promised a term of 28+14 years. And yet he wrote.

History shows two centuries of great writers willing to write for a lot less than you demand. I see no compelling reason to pay so high a price. Better to give the work to the lowest bidders, I say, and let competition and survival of the fittest cull the herd.

#128 ::: Patrick Nielsen Hayden ::: (view all by) ::: February 26, 2006, 10:56 AM:

I'm wondering why Steve Miller and bryan are playing silly gotcha games with Bruce Baugh. Bruce didn't say that "Dover creates the works that it profits from," nor did he claim that "NESFA publishes work that's in the public domain."

Bruce said that what these businesses do suggests that other business models are possible. It would be reasonable to ask Bruce to spell out more clearly what he means by this. It's arguably less reasonable to jump all over him and start attributing moronic assertions to him that he never made.

Bruce Baugh is one of the most careful posters here and, frankly, someone who goes to great effort to grant other people the most generous possible interpretation of their often poorly-phrased remarks. Maybe we could briefly imagine that perhaps he was just being a little vague, rather than immediately suggesting that's he's a total retard. Just a thought.

#129 ::: bruce Baugh ::: (view all by) ::: February 26, 2006, 11:25 AM:

Thanks, Patrick.

If someone wants to take over management of this rash that's covering 20-50% of my body at any given moment, or the nausea, or any two of the five or so other massive allergy symptoms weighing me down at the moment, I'll be glad to be a little more elegant. But I think I shot my expository wad for the moment over in the education thread.

#130 ::: bryan ::: (view all by) ::: February 26, 2006, 11:38 AM:

well I am somewhat given towards quickness of snark, and I know that I don't like it any better when someone does it to me.

So anyway Bruce's assertion that a person in the authoring trade can derive profit from works that they do not have some form of control over reminds me of the assertions that the poor will have their lives immeasurably improved by removing of such hindrances as minumum wage laws and safety standards. These things remind me of each other because in the case of copyright we have a historical example where authors did not have copyright and they, as a class, suffered more economically than today, and in the case of Randian/Libertarian thought we have the historical example of people not having safeguards and suffering more economically. We furthermore have reasons, inductive in nature, for assuming that the improvement of economic standing was involved in both cases with these greater governmental controls.

I realize that Bruce was not arguing for removal of copyright completely, but the argument that one could still benefit without the right seems against historical example.

The examples he gave of where an author could still profit from works after copyright expiration did not seem reasonable.
I don't know anyone that is going to take the time to buy book X from publisher Y because this is the specific version of book X that its author supports, I also find the idea somewhat gauche and would think less of the author that did it. Theoretically I suppose in the case of literary works this model can be made to work, if you add in a new introduction and revisions with each edition, but I think that very few authors would benefit from that, if any, and the few that did probably wouldn't get much.

In a very short copyright world I suppose certain types of book publishing strategies can always keep a new edition in copyright and authoritative, I'm thinking specifically of such works as Leaves of Grass that are conceived of as ever changing, always updated. Of course that a poet did this is not the best argument for a viable model (especially when the poet was Whitman).

And so in short I am sorry that my boorish humor prompted a world weary sigh, but I do not think an author will benefit directly from a work no longer in their copyright.

#131 ::: bryan ::: (view all by) ::: February 26, 2006, 11:44 AM:

AS for the reason of the snark it was meant to indicate a disparity between the two things, an author and a publisher, Dover publishes and has the resources and profits from the act of publication. An author profits from the act of transfering rights to publication in a medium, or other derivations of rights. Since these are vastly different things the fact that Dover can profit from something they don't have to pay for does not mean that an author can profit from something they have no way of forcing anyone to pay them for.

The snark in this case was a boojum you see.

#132 ::: bryan ::: (view all by) ::: February 26, 2006, 12:03 PM:

"History shows two centuries of great writers willing to write for a lot less than you demand. I see no compelling reason to pay so high a price. Better to give the work to the lowest bidders, I say, and let competition and survival of the fittest cull the herd."


What you mean is basically if someone is willing to work for $5 an hour then it's just silly to pay them $10 an hour. Well yeah, so it would be best if you can adjust the wage at just the level were it will be slightly more advantageous for people to work at the job of writing then it will be for them to work at some other job. Someone will probably chime in with the observation that writers write because they are compelled internally to do so, and if this is so then essentially under Greg's plan we can probably drop the copyright even further or abolish it altogether because Writers have some weird neurosis which will make suckers of them, huzzah!

I should note that I have had some recent thoughts on the matter of if writers write because they are indeed compelled which place me not in complete accord with the ideas it expresses, at any rate writers are not compelled to publish.


#133 ::: bryan ::: (view all by) ::: February 26, 2006, 12:05 PM:

I'm also sorry I snarked on Bruce when he's sick.

#134 ::: Vicki ::: (view all by) ::: February 26, 2006, 12:23 PM:

At the risk of the obvious--copyright expiring with death means that anyone who writes a popular book, song, et cetera is giving complete strangers an incentive to have them murdered: why pay Stephen King royalties when you can slip strychnine into his dinner, and then reprint all his works without paying for the rights? (Life plus 20, or 50, puts the potential benefit enough further away from the risk of arrest and punishment that it probably doesn't have this effect.)

No, most publishers and corporations wouldn't do this--but it only takes a few unscrupulous people.

#135 ::: bryan ::: (view all by) ::: February 26, 2006, 12:51 PM:

"why pay Stephen King royalties when you can slip strychnine into his dinner, and then reprint all his works without paying for the rights?"
this is a workable premise for a book, but not a workable premise for real world action considering that having Stephen King killed would mean that you then lost the temporary rights to monopolize the publication of his works that you presumably purchased.

At any rate you would be taking the risk of murder, and all of your competitors would be benefiting equally with you.

#136 ::: bryan ::: (view all by) ::: February 26, 2006, 01:27 PM:

Some observations:

As noted earlier the copyright problem is actually splittable into two problems, the length of copyright and the limitation of fair use.

These two things are seen as benefiting corporations, but I believe the length of copyright only especially benefits corporations if the fair use is limited and with the restriction of the means of production to these same corporations. This is where a third leg of the current corporate strategy for maintaining control of creative workers comes into play: DRM.

If DRM can be mandated and the population will put up with it, then the restrictions DRM will put on passing around content can be used to keep the creatives in sujugation to corporate interests. This is an important point for non-publishing corporations, one of the greatest fears in the other creativity based industries should be that their industry could be forced into a publishing type model, because the publishing model is just not very profitable in relation to all the others.

In this context of corporate power the length of copyright is not too important a thing, it was basically brought in to maximise some profits but it is a two edged sword, because if the creatives can maintain and use fair usage rights then they will have enough access to source materials to free themselves from the corporation.

A lot of people have been discussing legal adjustments, I would think the most important possible adjustments would be monetary damages against unfair restraint of fair use (legal harassment for fair use, cease and desist letters and the like), in conjunction with the possibility of losing a copyright if that copyright has been shown to be the source of numerous and ongoing fair use restrictions.

However if DRM can not be forced on the public, and I believe it can't, then I do not believe that the length of copyright and the attack on fair use by themselves are enough to keep creative workers under control (unless fair use were restricted way beyond what is currently thought possible, for example if Disney could keep people from making animations of the Sleeping Beauty story, because Disney has animations of the Sleeping Beauty story [IIRC they have attempted this but it has not been succesful, my memory on this matter is especially fuzzy though]). The reason for this optimism is Creative Commons, which seems to have made rather large gains in a very short time.

In discussing Creative Commons it should also be noted that its model only works because of the unreasonable restrictions on fair use, and the unreasonable length of Copyright. These unreasonable controls allow a situation where creatives can actually more finely control their work than otherwise. The project's existence reinforces the idea of the work as the property of its producer because the producer can take a moral stance on how it is to be spread much more finely detailed than the large obstructionist Copyright force (I am assuming that the existence of rights are in some way related to how finely we can control them, but I have not as yet specified how this is the case and am unaware of any arguments made by others addressing the same idea).

#137 ::: Bruce Baugh ::: (view all by) ::: February 26, 2006, 01:44 PM:

Scattered thoughts

The vast majority of copyrighted works do not, I believe, earn anything at all for their creators after a decade or few. Does anyone have actual data at hand for this? I have scatteed snapshots and limited studies, but I'd really like a broader sense. I'll stake this out as a conditional bit of turf: copyright periods longer than maybe 20-30 years do not in fact do most creators any good. Nor, of course, do they do the public any good.

So what we're looking at is the just handling of the circumstances of those fortunate few. It seems rather like the challenges of working out good tax policy for the top 1% of earners. It might make the discussion of the outer edges of desirable terms more productive if we talk about the flukes as flukes, and see if we can identify some meaningful categories as starting points - the rare enduring mass-market popular work, the work of enduring interest to a tightly-focused community, the revived fad. I'm sure there are a few others. But the more I think about this, the more it seems to me that any work of real economic value justifying an ongoing monopoly of authority after the first few decades is really, really not like most works of its kind, and a bad basis for policy.

My intuition is that the question "what's a creator to do, then, after a relatively short term expires?" depends on the nature of the work's ongoing or resumed popularity. But now I'm fuzzy and blortched again. More later.

#138 ::: bryan ::: (view all by) ::: February 26, 2006, 01:55 PM:

'My intuition is that the question "what's a creator to do, then, after a relatively short term expires?" depends on the nature of the work's ongoing or resumed popularity.'

of course. But is there a fairness in those lucky few getting a great benefit? If it should be that everyone gets an equal benefit then unless it can be shown how the average benefit should be increased it is really an argument that everyone should get a small benefit.

And if all authors should get a small benefit does it really mean that consumers will get a greater benefit, or does it mean that distributors will get a greater benefit, and the consumers will get the same benefit as always?

#139 ::: bruce Baugh ::: (view all by) ::: February 26, 2006, 02:05 PM:

Bryan, just to recap: I'm arguing in favor of a fixed, not-to-be-modified term that is either right about where copyright was originally in the US (14-28 years) or not far from it. One of the counter-arguments that I take seriously is that people who do happen to hit the audience jackpot should get to continue to reap the rewards; I'm in the process of rummaging an argument that they can do this without the monopoly control of copyright in enough cases that there is a solid overall gain in keeping the term relatively short and uniform.

Are you perhaps mistaking me for someone else? I mean, my first post in this thread was "The older I get, the more I find myself inclined to support a very strict, fixed term for copyrights, not renewable - inheritable, and transferable within some limits. Part of this is seeing ways for creators to continue to make money even when they don't have exclusive rights - "hi, this is the version I endorse" makes sales, for starters. Part of it is seeing more and more harm from the alternative."

#140 ::: Rob Rusick ::: (view all by) ::: February 26, 2006, 02:20 PM:

rhandir wrote:
Futher googling has revealed this article on the "600$ hammer."
Looks like stuff like that was due to bizzare accounting,
e.g. lumping the item's individual cost with the R&D overhead to make it.

In The Hacker Crackdown by Bruce Sterling,
he describes Craig Neidorf's trial for fraud
in connection with the theft of a 'E911 Document'
from a BellSouth computer.

BellSouth asserted the value of the document stolen was $79,449.
The prosecution case collapsed when it was shown
that BellSouth had essentially the same document
(which could be ordered from a catalog over an 800 number)
available for $13.

It was later found that the $79,449 value
was derived by summing:

  1. Technical writer's time to research and write the E911 document:
    200 hours at $35 per hour. ($7000)

  2. Project manager's time overseeing the technical writer:
    200 hours at $31 per hour. ($6200)
  3. One week of typing. ($721)
  4. One week of formatting. ($721)
  5. One week for graphics. ($742)
  6. Two days editing. ($367)
  7. Box of labels. ($5)
  8. Preparing a purchase order for the document. ($129)
  9. Printing costs. ($313)
  10. Mailing costs, including clerk's time. ($858)
  11. Clerk's time placing the document in an index ($42)
  12. VT220 computer monitor ($850)
  13. VAXstationII computer ($31,000)
  14. Computer printer ($6000)
  15. Interleaf software ($22,000)
  16. VMS software ($2,500)

Part of the case concerned the proprietary nature of the information,
with the implication that it was of a sensitive nature.

This illusion was also ruined by the fact
that the document was readily available.

#141 ::: bryan ::: (view all by) ::: February 26, 2006, 03:04 PM:

Bruce, my last post wasn't an argument against any of what you're arguing for, or meant as an attack on any other argument mistakenly attributed to you, I was just making a statement of what I considered a principal point stemming from the quoted text. Sorry if that wasn't clarified well.

That said I am in disagreement with some of the points you argue, for example I don't think that the original time period for copyright is what copyright today should be.

I would probably go with life from an emotional viewpoint, but 40 years would strike me as more than fair from an economic viewpoint.

The reason why I would want more than the original spread of copyright years (other than just a basic belief in intellectual property) is that a work now is transferable into many more media formats than it originally was, it seems reasonable to me that the original creator should have the possibility of profiting in all the various media exploitable. I am not certain if there is required more time to fully exploit a work across media, but it strikes me as another reasonable assumption, especially given that translation across media follows a specific arc - and it is often not until a work gets to movie that it can be expected to produce derivatives in other media.

My original disagreement vis a vis Dover press was clarified in http://nielsenhayden.com/makinglight/archives/007266.html#114957
that is to say I can't see any relation between Dover press making a profit and a creator making a profit. Add to that an inability to conceive how "this is the version I endorse" will translate to material benefits given that the officially endorsed version and the version sold by others will be essentially the same (content-wise).

Finally as I stated in other posts I don't see the length of copyright currently as the most pressing problem in the copyright debate.

Sorry if this is rather dryly expressed, I find this kind of thing interesting but I don't write especially well on it.

#142 ::: rhandir ::: (view all by) ::: February 26, 2006, 03:45 PM:

Back to the original topic, briefly: Perpetual Copyright Nuts

Short answer:
Q: What are these people really wanting?
A: Control over their own works, as if their MSS was safely in a drawer at home.
Q: Why?
A: No control = no leverage for negotiating publication. Copyright artificially extends control over the work once it becomes available to make publishing possible.*
Q: And so the problem is...?
A: They can't forsee a time when they won't want control over their own property.

Long answer:
Q: Given the above answers, why do they want heritability?
A: Authors have dependants. Also, it makes the work-MSS behave like regular property, which simplifies the legal situation.
Q: Okay, then why indefinite, eternal, everlasting, etc.?
A: They are nu... er... they haven't thought it through. Ego plays a role, and lack of imagination. Possibly they think their 8th generation decendants will feel some connection to them. Emperical evidence suggests that this is not likely.

Break for philosophy:
Q: Why do you persist in treating a copyrightable work like property?
A: Because in its intial form, as an un-shared MSS, there is a one-to-one coorespondence between the expression and the MSS that holds it. It's like a solid.
Q: And when it is published?
A: It becomes more like a fluid. One expression, multiple instances. Spreads around a lot.
Q: That's a cheesy metaphor.
A: Yes, but when the expression leaves copyright, and diffuses into the public domain, it becomes property of us all, and can permeate new works.

My point is that copyright law lets us treat something like property that isn't, mainly for the benefit of the writer. Naturally, I continue to think of the work as an object, since it's a useful shorthand.

-r.


*okay, economically viable. You get the idea.

#143 ::: Clifton Royston ::: (view all by) ::: February 26, 2006, 04:00 PM:

Greg:
I do not wish to detract from Mark Twain's or Poe's accomplishments - but as a response to Jo Walton I think your answer was nearing the border of uncivil.

I for one would feel lessened if Jo had not felt there to be a compelling argument for her writing Tooth and Claw.

I think that we would all likewise have suffered if the indefinite expansion of copyright scope and length had meant that Jo couldn't write it for fear of Trollope's heirs or publishers suing her on the grounds that it was a "derivative work".

Jo:
I've noticed there is often a weird gap not just in length, but between the kind of control authors want and what authors get under copyright law and the mesh of systems surrounding it.

It seems to me, for example, that one of the things authors most cringe over is the prospect of a really savage and hurtful parody of their work, showing up all the things they felt uncomfortable with. Yet that is one of the few uses that's totally protected and that the author may not control, even in a commercial context. (Consider, for example, the Orbison estate vs. 2 Live Crew.) At the same time, a loving and respectful homage is not a protected use.

I gather that selling movie rights to a book usually means giving up all creative control of what happens to your poor book (unless you're a very very famous writer with screenwriting history) and often means granting some media company the right to hire some schlub to do a hack-job version of the book based on the movie, to come out under the name of your book. While I suppose the contracts generally give the author the right to just refuse if strong-willed, this again seems one of the nightmare fates the author would wish to be able to veto at all cost.

#144 ::: Clifton Royston ::: (view all by) ::: February 26, 2006, 04:02 PM:

bryan: "This is the version I endorse" apparently worked quite well for Tolkein and Ballantine in the US. Not sure that it would work so well in other cases, though.

#145 ::: rhandir ::: (view all by) ::: February 26, 2006, 04:10 PM:

Failure Modes & Future Directions

Past critiques of the current copyright regime:

Copyright is completely broken! (Everyone)
Especially fair use! (Gaiman)
The commons is being fenced in! (Doctrow?)
It's really hard to get the cooperation of heirs! (TNH)
What do you mean we need the cooperation of the publishers? (GooglePrint)
Ahem! You need the cooperation of the authors! (Scrivener's Error)

Comment:
These all point to common failure modes of copyright. If we can find solutions to these failure modes, maybe we can move this discussion beyond them. "Changing the terms of the debate" doesn't do us much good if we can't agree on what we want this brave new world to look like.

-r.

#146 ::: Charlie Stross ::: (view all by) ::: February 26, 2006, 05:12 PM:

Rewinding the debate ...

I am a writer. I earn my living as a writer.

From my point of view, what I want is a system whereby if someone is profiting from my work, I get a cut. And as a secondary requirement, I'd like my work to get the broadest readership it can.

(It doesn't get much simpler than that: nobody making any money? Then obviously nobody's depriving me of a revenue stream. Making money? Some of it ought to go toward the original creator, or the insurance plans they established, while alive, to provide for their dependents.)

I suspect a lot of authors get hot under the collar about copyright because they are confusing the means with the actual outcome of them making money. Personally I couldn't care less about copyright, other than insofar as it is the basis of the current remuneration mechanism for authors.

Anyway, for an interesting exercise, why don't we start trying to come up with entirely non-copyright based systems that provide for this requirement? Betcha there's something out there that would work better ...

#147 ::: bruce Baugh ::: (view all by) ::: February 26, 2006, 06:06 PM:

Charlie, I'm sympathetic. I like getting a cut when stuff of mine makes money. And I'm very willing to believe some basically different system would do it better - I know I've got blind spots about this.

#148 ::: Patrick Nielsen Hayden ::: (view all by) ::: February 26, 2006, 07:08 PM:

As I said on the panel at Boskone, I'm interested in thinking about the kind of compulsory licensing system used in the business of music performance. Elvis Costello hates Linda Ronstadt's covers of his songs, but he doesn't get a vote on whether she can sing them, so long as she pays the set fee to Costello via ASCAP. This system has worked well for decades. There's something to be learned here.

#149 ::: Rikibeth ::: (view all by) ::: February 26, 2006, 07:21 PM:

bryan says:

I don't know anyone that is going to take the time to buy book X from publisher Y because this is the specific version of book X that its author supports, I also find the idea somewhat gauche and would think less of the author that did it. Theoretically I suppose in the case of literary works this model can be made to work, if you add in a new introduction and revisions with each edition, but I think that very few authors would benefit from that, if any, and the few that did probably wouldn't get much.

How would you describe the phenomenon of American fans of Harry Potter going to the trouble and expense of ordering the UK editions of the books because they prefer to read them without the American-idiom changes in the language that are in the Scholastic editions?

I admit, the total revenue derived in that way's got to be small. But there are certainly fans who go to that trouble.

Just to confuse matters further, many of the fans who go to that trouble do so because they write fanfiction, which often annoys the holders of copyright, whether or not the fanfiction writers are making any money.

How does that fit in to your argument?

#150 ::: Nancy Lebovitz ::: (view all by) ::: February 26, 2006, 09:19 PM:

Charlie and bruce, I have a vague impression that in pop music, the creator gets a cut but has no control of what versions are made of their work.

#151 ::: Narnia Nerd ::: (view all by) ::: February 26, 2006, 10:28 PM:

You made a good point with the alphabetical thing-I've never thought about copyrights in that light before.

#152 ::: James D. Macdonald ::: (view all by) ::: February 26, 2006, 11:03 PM:
Mark Twain died in 1910, meaning he was willing to write all of his works with a copyright term of only 28+14 years. If Mark Twain would write all these books for the low, low price of 28+14 years of copyright, why in God's green earth do you think we should pay you Life-Plus-N years for your writings? Are you that much better a writer than Mark Twain? Are your expenses simply that much higher than Mark Twain?

Mark Twain favored perpetual copyright, and testified so before Congress.

#153 ::: Seth Breidbart ::: (view all by) ::: February 26, 2006, 11:12 PM:

Greg, the problem with letting copyright terms be set by the "low bidder" is that someone like Terry Pratchett gets (at a complete guess, order of magnitude) $1,000,000 for a book, while (I suspect) Dan Gallagher would willingly take $50. I don't want to be limited to books written by the low bidder.

As for life-only terms, I don't want to provide a disincentive causing a 70-year-old Isaac Asimov (or Jack Cohen) not to write a book. From the viewpoint of social engineering (the purpose of copyright law, according to the US Constitution), I think something like the greater of 50 years or life+30 is optimal; for stuff produced by corporations ("work for hire"), at most 50 years.

#154 ::: hamletta ::: (view all by) ::: February 27, 2006, 03:28 AM:

Gawd, I hate these fights. I was indoctrinated in C Law in college with a professor who favored the term "dirty infringer." It was just outside Nashville, so it's understandable.

I'm pretty sure Willy Nelson flat-out sold some songs. Lord knows some great songs were sold for 50 bucks and a pint. It's good that the right to grant rights (or something like that) can't be signed away, that the ultmate rights stay with the author.

And I certainly welcomed our joining the Berne Convention. I think rights X years after death makes sense. If you start a shop, you can leave it to your kids after you die—the name, goodwill, and physical stock. What they do with it is up to them. Why shouldn't artists have that same option?

Now, life + 90 years is a bit goofy. That's a good 3-4 generations, and as y'all have pointed out, by that time, people don't know what they have or what to do with it.

But Public Domain ain't all that, either. If you go to the Prellinger Archives, you can download whole movies. Great movies like Nothing Sacred. Thing is, Nothing Sacred is an early Technicolor film. And nobody's going to restore it unless they can have some guarantee that they'll have some exclusive access to it. And restoring an early Technicolor film is an especially expensive, excruciating process.

Movies get orphaned, and when nobody can make money, nobody bothers to take care of them. The market gets flooded with craptacular copies like my VHS of His Girl Friday, which I picked up at the drugstore for $3.99.

I'm just sayin'.

#155 ::: Bryan ::: (view all by) ::: February 27, 2006, 03:40 AM:

"I admit, the total revenue derived in that way's got to be small. But there are certainly fans who go to that trouble.

Just to confuse matters further, many of the fans who go to that trouble do so because they write fanfiction, which often annoys the holders of copyright, whether or not the fanfiction writers are making any money.

How does that fit in to your argument?"

Well frankly the american/english edition thing is meaningless, because both of these editions are copyrighted, if they weren't copyrighted they wouldn't need to order the English editions from England and thereby pay a premium but from whichever corporation decided to put out the noncopyrighted English edition.

Fan fiction is fair use as far as I'm concerned, however distribution of fan fiction for payment using characters that are under copyright is not fair use - this is one of the points where people argue against long copyright. I don't where you think it fits in my argument but I've made several statements already about it.

#156 ::: Charlie Stross ::: (view all by) ::: February 27, 2006, 07:26 AM:

Bryan: there are two reasons some authors dislike fan fiction. Reason (a) is that they feel a proprietorial sense towards their creation and they don't like seeing other people taking liberties with their characters (often in directions the authors consider to be inappropriate). This doesn't really hold water, though: the obvious answer is "ignore them, then".

Reason (b) is more substantive: suppose Author A writes a popular series, and Fanwriter B then sets a work in that series with Plot C. Author A then emits a new book in the series using something not dissimilar to Plot C. Can Fanwriter B then sue Author A for plagiarism? Obviously, it depends on whether the author has read the work based on Plot C before writing their new book, and it depends on whether Fanwriter B is a shit-head, but it could end up costing Author A a whole griefload of money in lawyers fees. Much easier to say "fan-fic not allowed", or "do what you will, but count me out".

(If I ever -- heaven forbid -- get into that level of popularity, I'll probably be asking my publisher to include some 6-point boilerplate legalese in the front matter, analogous to a software shrinkwrap license, saying "by opening this book I consent to hold the author blameless for any resemblance between this book and subsequent books in the series and any works of fan fiction I may create". Or something like that. I wonder why that isn't already current practice, in this recto-cranially inverted age of ass-covering?)

#157 ::: OG ::: (view all by) ::: February 27, 2006, 07:45 AM:

Reason (a) is that they feel a proprietorial sense towards their creation and they don't like seeing other people taking liberties with their characters (often in directions the authors consider to be inappropriate). This doesn't really hold water, though: the obvious answer is "ignore them, then".

I've seen a variant of that involving the "dilution of trademark" argument. I believe the thinking goes "If the central character is what defines the series, and other people write stories about that character, even though they are not marketed commercially they are still in competition with me using my creation." Ignoring them isn't then an option.

#158 ::: Jo Walton ::: (view all by) ::: February 27, 2006, 08:35 AM:

Greg: They didn't have movies in those two hundred years. The worst someone could do to your book was write an unauthorised sequel or parody of it. Nowadays, if you're not able to say no because there wasn't any copyright, they could make a film with the name of your story and the names of your characters and something they thought was your plot but which was actually a hideous travesty, and you wouldn't legally be able to do anything about it. (Killing them would be possible, but still illegal.) People would come up to you all the time and say they hadn't read the book but they'd seen the film, and you wouldn't be allowed to kill them either.

Authors need the right to be able to say no to movie "versions".

On reflection, I think the best system is the traditional American copyright system of 14 years renewable, but you need to keep on renewing it, and only in your lifetime. That way the publisher doesn't have to take a risk on the 90 year old author dying of apoplexy over the copy-edit, they still have 14 years exclusivity on the work.

#159 ::: Lowell Gilbert ::: (view all by) ::: February 27, 2006, 10:16 AM:

PNH: As I said on the panel at Boskone, I'm interested in thinking about the kind of compulsory licensing system used in the business of music performance.

It has worked well in music, but I'm not clear on how it would apply to publishing. What is the analogue of "performance" in the publishing world?

#160 ::: rhandir ::: (view all by) ::: February 27, 2006, 11:07 AM:

Lowell Gilbert, PNH,

Compulsory licensing is useful for fanfiction and derivative works. (Which, essentially what performing written music is.) It isn't useful for reproducing the primary work.

I think its a nice solution to the fanfiction problem. Provided that part of the deal is if you are the licensee, you exchange the right to sue for plagiarism for the right to sell the work.

I talked about a compulsory license idea in a previous thread, using the term "royalties escrow".

-r.

#161 ::: Greg London ::: (view all by) ::: February 27, 2006, 11:15 AM:

Mark Twain favored perpetual copyright, and testified so before Congress.

Jim, that some authors want longer terms should be a condition assumed to be true for all time, for all terms. If perpetual copyright terms existed, there would be authors arguing for more rights. That people want more is natural.

That Mark Twain wanted more is fine. But the fact is that he was willing to do it for less. And that is the point of the "lowest bidder" thing. Sure, Lockheed will build you a fighter for 80 million a piece. They'd like to charge 100 million, but Grumman said they'd do it for 90, so if they want the job, they need to go for 80.

#162 ::: Greg London ::: (view all by) ::: February 27, 2006, 11:22 AM:

the problem with letting copyright terms be set by the "low bidder" is that someone like Terry Pratchett gets (at a complete guess, order of magnitude) $1,000,000 for a book, while (I suspect) Dan Gallagher would willingly take $50. I don't want to be limited to books written by the low bidder.

Lowest bidder that gets the job done. Ya know? Like the lowest bidder for putting a man on the moon. Or lowest bidder for building an aircraft carrier. Or lowest bidder for writing books that promote the progress of arts and sciences. Remember that part?

The way it works is you look for a copyright term that would be long enough that you would still get people creating good works.

Now, the thing is that the US had rather short, fixed term copyrights for almost 2 centuries, and history shows that authors were willing to create works on short, fixed terms. Somehow, they managed to not only break even, but actually make a profit. They may have wanted more rights and longer terms, but they were willing to do it for a lot less.

Why are we paying 150 years in copyright terms now when we have two friggen centuries of history that show authors were willing to write for much, much shorter terms?

Quality wasn't an issue. That's a boogeyman argument. Those two centuries weren't two centuries of crap writings. so any argument that quality will go down the toilet if we have shorter, fixed term copyrights, is nothing but invoking the phantom menace.

#163 ::: Tim Walters ::: (view all by) ::: February 27, 2006, 11:33 AM:

As I said on the panel at Boskone, I'm interested in thinking about the kind of compulsory licensing system used in the business of music performance. Elvis Costello hates Linda Ronstadt's covers of his songs, but he doesn't get a vote on whether she can sing them, so long as she pays the set fee to Costello via ASCAP. This system has worked well for decades. There's something to be learned here.

I agree with this (although there are some who object to the government setting their salary, especially considering that it doesn't track inflation), but would like to point out that there are other aspects of the performing rights system that are totally broken. For example, it's perfectly reasonable that Michael Jackson makes more money from radio airplay than I do, since he gets a lot more of it. What's less reasonable is that

--he makes more than I do per play of a song, even if the audience is exactly the same, because under the ASCAP/BMI rules, hits get bonus points;

--the system uses an undisclosed statistical model, rather than tracking actual airplay and live performance, so that things that fly under the radar (which include, in my case, national airplay on a well-known PBS show) don't get compensated at all, and proprietors of small businesses who support local artists know that their ASCAP/BMI fees are never going to trickle down to the musicians whose music they actually play; and

--it takes up to nine months to be compensated for domestic airplay, and up to two years to be compensated for foreign airplay, presumably because ASCAP/BMI doesn't like these newfangled computer thingies.

In short, the usual monopoly racket. There's something to be learned here, too.

#164 ::: Greg London ::: (view all by) ::: February 27, 2006, 11:35 AM:

to Jo Walton I think your answer was nearing the border of uncivil.

My apologies. An argument of priciples wasn't meant to get personal.

The point that two centuries of writings occurred in america with short, fixed terms, still goes unanswered. Why offer authors a life-plus-70 year term when the US has two centuries that show people writing for a term of 14 to 56 years?

You can't look at me with a straight face and tell me that quality would actually go down if we shortened terms.

A bunch of people living off of corporate welfare in the form of eternal copyright terms will surely whine, but history shows that they will be replaced by authors who are willing to write for shorter terms.

Why pay authors longer terms when we have two centuries of history that show GOOD writers are quite willing to write for a lot less?

The arguments against shorter terms always boil down to fear of poor quality or indignation that the "natural rights" of authors will be abused.

Two centuries of US history say the fear of poor quality is a bunch of bunkum. And the constitution as well as two centuries of Supreme Court rulings all say that the idea of copyright as a "natural right" is a load of bull.

So, I ask again, why have longer terms when we have two centuries of history that show good quality works being produced for much shorter, fixed terms?

If the answer does not invoke the "fear of poor quality" or the specter of "natural right", I'd like to hear it.

#165 ::: Greg London ::: (view all by) ::: February 27, 2006, 11:47 AM:

They didn't have movies in those two hundred years. The worst someone could do to your book was write an unauthorised sequel or parody of it.

This is invoking the "natural right" boogeyman. It isn't your work forever, the constitution forbids it. You are invoking the "they'll do something to my work that I don't want them to do." which then expands into the "they might do the same to your book too" warning.

The constitution doesn't grant authors any protection towards their egos. If you will only write if you are guaranteed that your work won't be parodied, then you should consider another line of work.

As for the idea that there were no movies in those two hundred years, so what? Movies make or break within the first few weeks at the box office. I've never heard of a movie needing 40 years to finally make a profit.

and 40 years should be long enough of a monopoly that you would have a chance to control who turns your book into a movie, if someone is interested in it. If they can't produce a movie, release it, and make some money in 40 years, then they should be in another business.

Yes, after 40 years, another movie company could come along and make a derivative of your work, but you already had your chance to make your version. You can't use terms to simply prevent other versions of your work. that isn't supported by the constitution.

And audiences aren't going to say "well, there's this movie that just came out, but if we wait 40 years, a better version might become available, why don't we wait."

#166 ::: Laina ::: (view all by) ::: February 27, 2006, 12:09 PM:

I am not a writer. However, I am a printaholic, and my favorite fixes are science fiction, fantasy and mysteries.

I don't want writers who are low bidders. I want creative people to make enough money to be able to keep providing my fixes. In fact, I want them to make enough money to stay healthy and live a long time (just not enough money that they stop writing wonderful stories that provide my fixes)

And I think that they (and their heirs) should be able to control what happens with that work for the author's lifetime plus a fixed period of time. I don't believe in eternal copyright, but I find this "low bidder" language disturbing in the extreme.

#167 ::: Greg London ::: (view all by) ::: February 27, 2006, 12:09 PM:

I'm interested in thinking about the kind of compulsory licensing system

This would fix "fair use" issues, but it wouldn't fix the problem with terms that are too long.

I like the idea of compulsorary licenses for all copyrighted works, I just haven't figured out how to implement it without a lot of government bureacracy having to set prices of every little single thing. That was the point of fixed terms: a simple legal structure to cover all works, regardless of type. The way compulsorary law works, to my understanding, is basically the government has to get involved with setting the price of works, and that is just asking for trouble.

Compulsorary licenses are really a way of saying that copyrighted works can be treated like spare parts, and you can assemble them anyway you want.

There was a company called Mesa Boogey that would purchase tube guitar amps made by another company (forget the name at the moment), then Mesa Boogey would modify the amp, and resell it as their own.

You can't do that with copyrighted works. Compulsorary licenses allow you to do it. But currently, I believe the only compulsorary license that exists are for doing "cover tunes" of songs. there is no compulsorary license for "sampling" a piece of a song and putting it in your song. And there is no way to purchase that sample from the original author the way you might purchase a tube amp, modify it, put it into your own work, and sell it as your own.

You can't do that with copyrighted works. If you wanted to make a derivative of "insert current title here", you can't buy the book, cut it up, add your own stuff, reassemble it, create a derived work, and sell it. That's the holy grail of compulsory licenses.

But the problem is setting the prices for everything. how much to pay for a cover tune? how much to pay for sampling 5 seconds of music? How much to pay for using a character in a book? etc.

It is hard enough trying to define objectively what is and is not allowed by Fair Use. Compulsorary Licenses for all possible uses would be several orders of magnitude more complex. It would be great for downstream artists to be able to use someone elses work and make sure the original author got paid, but I can't figure out how to make it feasible.

And still, compulsorary licenses are orthoganal to copyright terms. A term that is too long isn't solved by compulsorary licenses. You're still paying $600 for a hammer.

#168 ::: Greg London ::: (view all by) ::: February 27, 2006, 12:13 PM:

I don't want writers who are low bidders.

Oh my dog. Everyone please stop the fear mongering that only a life-plus-70 year copyright term will be enough incentive to make the truly talented authors write their masterpieces.

The first two centuries of US history show great authors writing for much less than folks demand now. And the great thing about paying someone in exclusive rights for a fixed number of years, is that it automatically adjusts for inflation. 40 years fixed terms in 1790 is the same financial benefit as 40 years fixed term in 2006.

#169 ::: Charlie Stross ::: (view all by) ::: February 27, 2006, 12:57 PM:

Greg, I don't think you understand just how marginal a living writing already is. If I jacked it in, moved to San Francisco, and hung out my shingle as a perl monkey again, I could expect a 50% pay rise from where I am now (Hugo winner with fourteen novels either in print or under contract). Cutting the revenue stream further isn't exactly going to encourage me to keep going ...

UK figures from the Society of Authors show that 80% of full-time novelists in the UK earn less than £20,000 a year -- or about $35,000 at the current exchange rate. This is, as far as I can tell, comparable to the situation in the US. Yet, you're proposing to improve things by cutting the per-author revenue?

You're also forgetting the demographic thing. Most authors don't start publishing books until they're over 30 years old. Their life expectancy these days is probably in the 80-100 year region. So, assuming they're still in print, a 40 year copyright is going to hit them right around the time their medical bills are going up, and their ability to earn a living is right down. Bring in such a system now and you're going to have to deal with the existing authors for whom their life-plus-X rights were their pension scheme.

Finally, I think that if you plot the number of writers working per capita over time, I think you'll find it's way higher today than it was back in 1790. I don't think post-mortem copyrights have much to do with that ... but pre-mortem copyright periods are a whole 'nother matter.

#170 ::: OG ::: (view all by) ::: February 27, 2006, 02:15 PM:

Greg, many of us who work in industries where the low bidder reigns supreme are very, very skittish about the quality of work produced by that model.

#171 ::: Jenett ::: (view all by) ::: February 27, 2006, 02:22 PM:

It seems like different types of material present different copyright challenges - so it isn't really surprising that a one-size-fits-all solution doesn't work.

On the non-fiction front, my father was a university professor, and among other things, wrote about 30 books in the course of his lifetime (including the one he was working on when he was diagnosed with and then died of cancer. He was about to turn 60. I was 15.)

Several of his books remained in print (and bringing in royalties) until 10 years after his death: one or two still are, if I remember conversations with my mother right.

30 books is obviously way more than he needed for tenure. It's also more than he really needed to write to express concepts he was interested in that he couldn't do in other ways (teaching, performances, etc.) as many of them were history of theatre texts.

Now, if you have 'copyright expires as soon as he dies', what makes it worthwhile for him to take that time for writing, as opposed to other things? Especially for the last book he was working on post-diagnosis?

If, on the other hand, copyright is something that lives past him - long enough to, say, help pay for his remaining child's living and education expenses (and help out my older siblings with things like downpayments for houses, etc. that he would have done if alive) then it's quite arguably worth his time to spend time writing those books.

(Ditto is the fact that my parents treated royalties as investment fodder: even though academic writing doesn't produce lots of money to start with, it produces more when you invest it for 20 years. Or spend it on life insurance. But they could do that because of the additional income.)

If copyright doesn't make it worth time for people to write or create as opposed to whatever else they could with their time, then it'll skew who chooses to create in some weird ways.

If copyright hadn't rewarded a certain degree of long-term planning, my father would almost certainly chosen other things that would bring in assured income - more lectures and performances than he was doing, possibly more job changes, or directing more plays, rather than writing. (Or, alternately, chosen other non-paying ways to spend his time.)

He would still have been creating and doing interesting things - but they would have been accessible to far fewer people. I'm not sure I like the look of what that means, spread over the world at large.

#172 ::: clew ::: (view all by) ::: February 27, 2006, 02:36 PM:

One might set copyright periods as a proportion of life expectancy, e.g. 0.5 or 1.3. A Fixed Period has the advantage of easier bookkeeping (and a morbid Trollopianism!)

Back to history: the horror of losing movie rights has historical precedent: in the 19th c., successful authors were plagued by scurrilous, sloppy, revenue-not-sharing, sometimes madly profitable touring stage play versions.

The difficulty I have with the theory of moral right in a work is that I don't think there's an objective distinction between sloppy cupiditous imitations, which I would like to protect works against, and viciously brilliant parodies, which I think are vital to intellectual and political discourse. Perhaps the rule could be that parodists can't profit, but there's enough original work in a parody that that doesn't seem fair to me either. (Also, what should Lewis Carroll have lost for his parody poems?

#173 ::: novalis ::: (view all by) ::: February 27, 2006, 02:57 PM:

The term of copyright is a pretty blunt instrument with which to adjust the revenues of authors. Anyone who wants to make the argument that copyight terms should increased to benefit authors should provide some numbers about how this is likely to work in practice.

I'm pretty sure it was here that I saw a list of bestsellers from fourty years ago. I had heard of maybe one of them. Of course, the average reader here (being older than my 25 years) will have heard of more -- but they would be remembering them, rather than learning about and buying them now. Which is to say that most authors make most of their money in the first few years after their books are published.

If I were investing in a pension plan, it would not be one that bought book rights prospectively for fourty years in the future. Such a pension plan would have to buy a lot of books to find the one Winnie The Pooh. Economically speaking, I would be a lot more likely to buy into a plan which prospectively bought the first five years of authors' rights and put the resulting money in a shoebox.

I would guess that this is even more true in SF than in other fields. At least, Stanislaw Lem claims that SF fans are neophilic to a fault.

It's easy to point to authors and artists who don't make a living writing, but are brilliant and whose works we would be immeasurably saddened to lose. So, we would like to find a way to pay artists more. People who propose extending copyright think that their children should pay a share (this isn't unreasonable, if their children in fact benefit). But it doesn't actually get the average author a large benefit.

So, why don't we think of a better way to pay authors, instead? I don't pretend that this will work for novelists, but many webcomic creators do pretty well by working on donations and T-shirt sales. The t-shirt sales are driven by branding. I might wear a "teh" t-shirt to show that I am a fan of Questionable Content. Every economic theory says that nobody should donate to webcomic authors, since donators get no financial benefit, and no individual donation that ordinary people is going to make a webcomic creator continue writing (as opposed to going off and writing Perl or whatever). And yet, people do donate. Which maybe means we need to rethink how economics applies to things like the arts.

#174 ::: Aquila ::: (view all by) ::: February 27, 2006, 03:13 PM:

And audiences aren't going to say "well, there's this movie that just came out, but if we wait 40 years, a better version might become available, why don't we wait."

I made a decision at age eleven not to watch the Lord of the Rings cartoon versions, I waited 20 years for a movie I wanted to see. I would have waited another 20 if I thought it was going to be horribly Hollywoodised.

I also refuse to watch the scifi channels Earthsea travesty, I will wait as long as it takes for a version that respects the source text.

#175 ::: Epacris ::: (view all by) ::: February 27, 2006, 03:18 PM:

Wasn't it Ulysses S Grant who worked desperately to write his memoirs as he was dying so that his family would have an income after he died? Just an example.
I'm not sure what to think on this, even though I earn my living from a publishing firm, and have had my name on the title page of printed books.

#176 ::: clew ::: (view all by) ::: February 27, 2006, 03:24 PM:

'These problems, of political influence in commerce, are indeed the principal subject of the chapter in Book 4 of the Wealth of Nations where the invisible hand makes its fleeting appearance: they include the errors of merchants about their own interests, the influence of merchants over political regulations, and the particular difficulties of periods of transition from one regulatory regime to another. [...]

[...]"In the mercantile regulations," Smith says [...], "the interest of our manufacturers has been most peculiarly attended to"; "the boasted liberty of the subject," in restrictions on exports, is "sacrificed to the futile interests of our merchants and manufacturers." The peroration of Book 1 is similar: the interest of the order of merchants and manufacturers, Smith says, "is always in some respects different from, and even opposite to, that of the public." '

Emma Rothschild, Economic Sentiments, p. 127. Good dry fun so far.

#177 ::: Greg London ::: (view all by) ::: February 27, 2006, 05:10 PM:

OG, I've worked as an engineer for defense/space contractors before switching over to commercial. I am at least vaguely familiar with the concept of lowest bidder.

I also find it odd that while I keep being haunted by the spector of horrible quality works being churned out if copyright terms were dropped to 40 years, no one has yet to explain why in the world quality of works were fine up until 1976 when the US took on the Life-Plus-N model.

Really, its a direct question. If Twain, Poe, and Thoreau were willing to write for a fixed term of 28+14 years, why must we pay authors more?

Quality is NOT an issue. It is a red herring. It is a spook-machine brought out by the infinite copyright folks. I don't buy it, and yet people keep trying to sell it to me. Meanwhile, my original question remains unanswered. If Twain, Poe, and Thoreau write for 28+14 year terms, why pay them more?

Are people are suggesting that Twain was a cheap hack and that a real author would have written much better books back in his day, if only terms had been longer?

If not, stop trying to scare me with the "short terms = poor quality" boogeyman.

If they did it for so much less, why are we paying authors so much more?

#178 ::: Avram ::: (view all by) ::: February 27, 2006, 05:37 PM:

Greg, the reason people keep bringing up the "poor quality" issue is that it's something they're used to thinking of in discussions of government contracting and low bidders. And, of course, the reason they're thinking in those terms is that you're the one who introduced that language into the discussion.

And it's terrible language! I know you're attached to it, but the "bounty hunter frame" is an awful way of talking about copyright issues, primarily because it bears no resemblence to how things actually get done in the various industries where personal copyright issues are relevent. (It makes sense in work-for-hire cases, but in those those cases the copyright isn't owned by the artist anyway.)

What you're seeing in this thread is a product of the clunky, tone-deaf language you insist on using. For example, in that last post up above, you ask "why are we paying authors so much more?". Except, you're not using "pay" in a literal sense to refer to the money creators are getting; you're using it in a metaphoric sense to refer to the duration of copyright, which doesn't necessarily correspond to the actual stuff creators use to pay rent and buy food. And most people know that authors and artists live financially marginal lives, so what on earth are you doing using a metaphor that asks them to think of creators as people who are being paid "so much more"?

#179 ::: Greg London ::: (view all by) ::: February 27, 2006, 05:48 PM:

Yet, you're proposing to improve things by cutting the per-author revenue?

You have, to an extent, just committed a strawman of what I'm saying. What is it that I'm trying to improve? You never actually mention it in your post. You only mention how hard it is to make a living as a writer.

The thing I'm trying to improve is to put a stop to the infinite-copyright folks before they extend terms another 20 years, and another, and another. And to put a stop to the anti-circumention clause of the DMCA which is for all intents and purposes, infinite duration copyright and patent rights rolled into one.

So, what is the root cause of the problem? The entire issue has no framing that allows us to design a balanced system where authors are paid enough and the public benefits by seeing arts and science progress. So authors continue to argue for more. More. More. Authors argue for hogwash like "moral rights" and "natural rights". They argue using metaphors like family farms that they want to pass on to their kids. Well, if you take those metaphors to their natural conclusion, the one and only destination is infinite copyright terms.

The problem I am trying to fix is to frame the issue in a way that you can design a system that is naturally balanced, and corrects itself. The one and only metaphor that I've come up with that does this is the idea of figuring out how much money to offer bounty hunters to catch a bad guy. How much do you offer them? as little as possible, but just enough to get the job done. The lowest bidder.

Copyrights and Patents are the reward offered to writers/inventors. The "amount" of the reward is a combination of the rights given to authors/inventors and the duration they hold those rights. Authors and inventors want as many rights as possible, for as long as they can hold them.

The public, on the other hand, wants to pay authors and inventors as little as possible. You don't pay a bounty hunter $50k to bring in a bad guy if someone else will do it for $10k.

You now have two opposing forces, and a static balance point can be found. If all you have is authors/inventors making policy, then we would have had infinite copyright in the constitution. But that must be balanced with what the public wants to pay, which is as little as possible.

so the balance point is where you pay authors just enough that authors are willing to write and no more. This doesn't mean that all the authors who are writing now will continue to write if you shorten terms or reduce the rights you give them a monopoly on. We are currently overpaying our bounty hunters and companies such as Disney are sitting on cash cows, government granted monopolies on something they created nearly a century ago. When they can no longer milk those cash cows, you'll definitely hear them bellyache about it, and some may get out of the business entirely.

But the point is to find the balance between authors who want more, more, more, and the public who wants to pay as little as possible.

Once you find that point, then it becomes a matter of free-market competition to sort out who stays and who goes.

So, that is the thingI am proposing to improve. And yes, I am suggesting we fix it by reducing copyright terms. Will some authors stop writing? probably. But unless you can explain to me why authors used to write when terms were 28+14 or 28+28, and explain why authors now can't write for anything less than Life-Plus-70-Years, I must rely on history which says it can be done for less than we are paying now.

#180 ::: Greg London ::: (view all by) ::: February 27, 2006, 06:02 PM:

Avram, I don't think it is a tone-deaf metaphor. In fact, I know it isn't because others have read Bounty Hunters and called it a "well written piece" and compared the writing style to Richard Feynman.

On the other hand, perhas it is tone deaf in the sense that there are a lot of authors who frequent this blog, and asking authors to take a cut in pay isn't exactly going to cause a celebration here.

I have gotten quite a lot of feedback about Bounty Hunters from readers, and thus far, it's all been good.

#181 ::: Greg London ::: (view all by) ::: February 27, 2006, 06:12 PM:

Now, if you have 'copyright expires as soon as he dies', what makes it worthwhile for him to take that time for writing, as opposed to other things? Especially for the last book he was working on post-diagnosis?

Jennett, something like a 40-year fixed term would begin when the book is first published and would last a fixed term of 40 years whether or not the author had died during that time.

#182 ::: Lenora Rose ::: (view all by) ::: February 27, 2006, 06:17 PM:

GReg: "Oh my dog. Everyone please stop the fear mongering that only a life-plus-70 year copyright term will be enough incentive to make the truly talented authors write their masterpieces."

I'd respect your arguments more if you didn't seem to think that your idea or the current system are the ONLY frigging ideas being put forth.

Most of the people here have already agreed that the current term is too long, and that perpetual copyright is a terrible idea. So whining that we're fear-mongering is, to put it mildly, indication that you don't care about any thoughts put forth except the ones that say "Yes, Greg London is right, let us worship is perfect solution to this vastly complicated situation".

And no reframing is going to change that impression nearly as much as responding to criticism clearly will.

Your current "lowest bidder" approach seems to suggest that they should go back to the wages of 100 or 150 years ago, never mind the vastly different economic system, never mind inflation, never mind a significantly increased life expectancy rate. All these conditions factor into the situation.

You're coming up with nice theoretical models, which is good, then deciding they're the only ones that would ever ever work, which is, if not outright bad, then at least wrongheaded. From a "scientific method" point of view at the very least.

I've already said I'm not so sold on my current preferred suggestion as to think it's the only solution. It isn't, and others may be better (I've even favoured another, then rejected it as other arguments came up as to why it was unworkable And I think over time, the number of "+ N" years I've suggested has gone DOWN). But so far, the arguments you've put forth for a single fixed-time term are not enough to convince me it's a better system. Especially since you've failed, within at least two different subject threads on this topic, to explain where you got the number "40 years" from, and why it's so obviously superior to 50, 42, 36, or even your "28 + 14" that the unhappy Mark Twain was "willing to work for". You've said you figure this covers the effective lifespan of most works and their legally protected derivatives -- but not how you figured this.


Bruce Baugh: When you're healthier, I'm sicnerely curious as to your ideas how the original author might continue to benefit without copyright. You say "Author's preferred version" is one way. Well, Tolkien did fairly well, in a very different system and situation, but otherwise, such things only tend to sell well when there's substantial new material, per Stephen King's the Stand re-release. It *has* worked for some films, too, but again usually only in an expanded or noteably altered "Director's cut" way. And now, there are several cases of the director's cut being packaged together with the other version - Dune and Legend did this, and with Dune, David Lynch has entirely disavowed the second version, so how does endorsing oen over the other, to the degree of having his name only on one, prevent the other from selling?

All that beign said, the idea has some merit for some small profit, but the reason Dover succeeds is because they can sell *cheaper* version, which is in part by not ahving to pay estates. Perhaps an anlysis of which versions of Jane Austen's works do the best, which are, after all, all our of copyright, would be in order?

I assume you have other ideas still. I'm entirely willing to hear them all. If there are enough, and they're viable enough, they might change my mind on a Life + N term.

#183 ::: Greg London ::: (view all by) ::: February 27, 2006, 06:20 PM:

Every economic theory says that nobody should donate to webcomic authors, since donators get no financial benefit, and no individual donation that ordinary people is going to make a webcomic creator continue writing (as opposed to going off and writing Perl or whatever). And yet, people do donate.

Novalis, you can read Bounty Hunters here, in its entirety, for free. The entire book is available in HTML. Alternatively, you can also buy a paperback copy here or purchase an electronic download version.

Even though the work is available for free, even though it is licensed such that anyone can print copies and sell them, people are paying me for a copy of Bounty Hunters. I think they are doing it as a form of donation, since, obviously, they don't need to buy it to read it. But it is true: people do donate.

#184 ::: OG ::: (view all by) ::: February 27, 2006, 06:37 PM:

Greg: What Avram said. I'm just pointing out that using the words "lowest bidder" are going to get a knee-jerk reaction from people who associate it with incompetence and corruption.

Are people are suggesting that Twain was a cheap hack and that a real author would have written much better books back in his day, if only terms had been longer?

No, I think they're suggesting that the economics of professional writing aren't the same as they were in Twain's day, that the comparison is invalid.

#185 ::: Greg London ::: (view all by) ::: February 27, 2006, 06:46 PM:

you don't care about any thoughts put forth except the ones that say "Yes, Greg London is right, let us worship his perfect solution to this vastly complicated situation".

I have a number of responses to that fictionalized piece of well-written trolling, but all of them will get me disemvoweled.

Your current "lowest bidder" approach seems to suggest that they should go back to the wages of 100 or 150 years ago,

yeah, sure, that's exactly what I'm saying. Because, you see, the perfect solution, for which I demand you all worship me, is to fill factory mills with little Oliver Twists and have them churn out copy at pennies a day. I even started designing the recruiting poster here

Uhm, riiiiight....

#186 ::: Greg London ::: (view all by) ::: February 27, 2006, 07:07 PM:

I'm just pointing out that using the words "lowest bidder" are going to get a knee-jerk reaction from people who associate it with incompetence and corruption.

OG, so what do you call a system that rewards people who successfully do a job for less than anyone else is willing to do said job for?

People associate government contracts such as defense contracts and space contracts wtih incompetence, corruption, waste, and overspending. I mentioned the $700 hammer (which apparently may not have happened, but I digress).

The thing is that copyright is a government contract too. Without that one clause in the US constitution, writings and inventions would become public domain as soon as they are created.

The British offered a reward of twenty-thousand pounds to the first person who could solve the longitude problem. That example shows the government leveraging commercial interests to forward science. but it was one specific piece of technology. What if you want to create a generic system that simply encourages Progress in teh arts and sciences in general?

Give the author exclusive rights to their work for a period fo time. But how many rights and how long? It's the same as the twenty-thousand pound bounty. you don't want to overpay. But you want someone to eventually collect.

The constitution isn't direct in its wording, it simply says, authors can get some rights for some period of time, and that will be a good way to get the Arts to Progress.

It is a government contract with authors and inventors, just like a government contract with a defense contrator. But it's generic enough to work over time: You write and invent and we'll reward you with these rights for this period of time.

But too many rights and too long a term, and you actually STOP progress, you inhibit derivatives on one generation, and nothing further can be created. Too few rights and/or too short of a term, and authors have no economic incentive to write.

So, it is a government contract, but the constitution doesn't spell out how much to pay, it just says that congress can set the amount. So how much is enough? How much is too much?

As far as I can tell, the ideal point is where authors are given as few rights adn as short a term as possible but enough to give them incentive to write. That's a mouthful, so I use the phrase "lowest bidder". Because that's essentially how more specific government contracts are supposed to work. The government says what it wants, and companies say how much they'll do it for. And the government is supposed to award it to the lowest bidder. If you have a better phrase, I'm all ears.

#187 ::: Greg London ::: (view all by) ::: February 27, 2006, 07:19 PM:

the economics of professional writing aren't the same as they were in Twain's day, that the comparison is invalid.

If the economics are not the same, then you are correct that the comparison is invalid. But I don't know that the assertion that the economics are not the same is valid.

Charlie Stross mentioned some statistics that 80% of writers in the UK make less than $35,000 a year. I would be curious to know what the statistics were for writers a century ago. (adjusted for inflation, etc, of course)

#188 ::: Alexx Kay ::: (view all by) ::: February 27, 2006, 07:57 PM:

Charles Stross wrote (in response to Greg London):
Cutting the revenue stream further isn't exactly going to encourage me to keep going ...

So, Greg's talking about 40 year terms, right? Your first book came out in 2002, if Amazon is to be trusted. So he's not proposing to cut your revenue stream at all until 36 years from now. Personally, I have trouble planning what I'm doing with my income properly a *year* in avance...

You're also forgetting the demographic thing. Most authors don't start publishing books until they're over 30 years old. Their life expectancy these days is probably in the 80-100 year region. So, assuming they're still in print, a 40 year copyright is going to hit them right around the time their medical bills are going up, and their ability to earn a living is right down. Bring in such a system now and you're going to have to deal with the existing authors for whom their life-plus-X rights were their pension scheme.

So if a writer *stopped* writing when they were in their 30's -- and yet somehow managed to keep those early books in print for forty more years anyways, and popular enough to earn a living on -- that hypothetical writer might be in some trouble. But I don't think such a writer exists at all, and I'm certain that such writers are extremely rare at best. Most writers who get as far as being professional full-time writers in the first place seem to keep on writing until they are forcibly stopped by senescence or death, as far as I can tell (anecdotal, I know).

But that is all besides the main point I want to make. Practically everyone I know *except* writers has to make (or fail to make) their own plans for how to survive in their old age. We put money aside in the bank or investments (possibly with some match from our employers, but far more often not), and we find a way to squeeze that money-for-the-future out of our day-to-day income stream. The vast majority of people in the world make the vast majority of their money in one-time transactions with no lasting economic value. The boss pays me for what I did last fortnight -- he doesn't pay me for the fact that I did a good job 20 years ago. Some few businesses (mostly in the entertainment industries) have managed to create models whereby work done at one time will continue to generate income several years, or even decades, into the future. Yay for them. But it's something that most of us have to live without; about as far from a natural right as you can get.

Finally, I think that if you plot the number of writers working per capita over time, I think you'll find it's way higher today than it was back in 1790. I don't think post-mortem copyrights have much to do with that ... but pre-mortem copyright periods are a whole 'nother matter.

I suspect that it has a lot more to do with the general increase in real wealth in the world. More people can now *afford* to pursue such a marginal career than could previously. As Cory Doctorow mentioned in a number of contexts over Boskone, the reason writers generally get paid so poorly is that they aren't (as a class) rational economic actors -- they are willing to put up with poor pay without changing careers. You yourself, who I would rate as one of the most rational writers I know, acknowledge that you could get significantly more money in another career. But you get more pleasure out of writing, and the world is wealthy enough to support you in that. I think this is a good thing, because I greatly enjoy your writing! Indeed, I help support it by buying your books, often in hardcover.

#189 ::: DaveL ::: (view all by) ::: February 27, 2006, 08:21 PM:

Coming late to the party, I ask if Cawdrey's invention actually is a patentable idea, rather than something one copyrights.

The content of his dictionary would be copyrightable, of course, but the idea of organization by alphabetical order doesn't seem to be something one could copyright or trademark, though one could imagine it being something one would patent. The term of a patent is much, much shorter.

Didn't someone suggest somewhere near this space that copyrights should expire after /mutter/ years but be infinitely renewable, even by ones heirs and assigns? This would allow those who are in a state to pay attention and care (the Disneys, the A-list of authors, etc.) to keep their works in perpetuity, but would free up the works whose copyrights are forgotten by their owners to become public domain. As I recall the discussion, the question was, "can we save the history of our genre, much of which is owned by people who neither know nor care they own it?"

On the other hand, I'm somewhat unsure what (beyond the goal of saving works from extinction or obscurity) is the goal of limiting or eliminating long copyright periods? Cui bono? Certainly we are in no danger of Mickey Mouse disappearing, and a proposal such as the one I repeat above would move non-A-list works into the public domain in short order. The result would be that essentially everything would be published or available to be published. Is the goal of limiting copyrights on artistic works (software copyright is another can of worms entirely) to enable us to write our own Mickey Mouse cartoons?

I always liked Donald Duck better, myself.

#190 ::: OG ::: (view all by) ::: February 27, 2006, 10:55 PM:

OG, so what do you call a system that rewards people who successfully do a job for less than anyone else is willing to do said job for?

Nonexistant?

I don't have to base my opinion on the $700 hammer. I've been involved in the construction industry in one capacity or another for two decades, most of that at the state government level. Anyone in the industry can tell you that the low bid is only the start of your costs. And that's when you can get a legitimate low bid at all.

It's not uncommon for a contractor to deliberately lowball a bid with the intent of racking up change orders at an obscene rate. Just in the last six months, I've been involved in two lawsuits that grew out of that practice.

The first desktop computers purchased by my state transportation department weren't for CAD or for word processing. They were for statistical analysis of all bids submitted, a part of the never-ending search for ways to catch the bid-rigging that we all knew was going on.

So yes, I very strongly associate low bidders with incompetence and corruption.

(Protractor: a device that measures an angle. Contractor: a person always looking for an angle.)

If you have a better phrase, I'm all ears.

I think the phrase is actually appropriate. But then, I think the real debate should be over what the post-mortem length should be for copyright still held by the original creator's direct heirs, and that ownership of copyright by corporations should be treated differently. For me, it's a matter of respect for the creator, not economics.

I considered and rejected the idea of trying to make a go of writing as a career because of the economics. If I sit down and think through the implications of that, I can't avoid admitting that our society places little value on the writer's product. My immediate and emotional reaction to your proposal is that it devalues writing even further.

#191 ::: Lenora Rose ::: (view all by) ::: February 27, 2006, 10:55 PM:

Greg, I concede I lost my temper and wrote some inflammatory things. The first of the two things you excerpted was indeed unpardonably rude, and for that I apologize unreservedly. The second half of that paragraph, the bit you quoted, should have been cut, or never typed.

The first half stands. After once more accusing "us" of fear-mongering and demanding that copyright stay at Life Plus 70, after multiple remarks to the effect that, "Authors continue to argue for more. More. More." you missed the point of the valid half of that paragraph. Most of the authors I've seen here are NOT arguing for more than they currently have. They are arguing for LESS than they currently have, but more than you've decided they deserve. Which strikes me as a different animal, but one you consistently ignore.

This does not pardon my own rudeness, but it does surely require some answer?

For the second rude remark you quoted, it was in direct response to this quote from one of your posts:

"If they did it for so much less, why are we paying authors so much more?"
though it could have been to this similar one, or several others:
"If Twain, Poe, and Thoreau were willing to write for a fixed term of 28+14 years, why must we pay authors more?"

That's where I got the bit about wage. Your own exact words, interpreted with the standard meaning of "pay" instead of whatever meaning is in your head, say not "We should roll back overextended copyright law", which seems to be what you claim it means, but "We should go back to paying authors the same amount Twain was paid." Reread your sentences above. It's what your words mean, no matter what you think they mean. We can't read the words in your mind, and the ones on paper don't match.

I'm not sure I should apologize for that at all, since your only response was consescension at least as inflammatory as anything I wrote.

I'm willing to concede that you don't actually think that everyone who disagrees that 40 years flat is appropriate does in fact want things to stay as they are, rather than that they have different answers to a problem all (Or possibly most) agree is a problem. If you make some kind of a response that finally indicates you've absobed this rather critical piece of information.

At no point was I talking about the quality of the writing -- though I might have been, in a roundabout way, about the quality of the life of the artist. I did ask not only about how this works with inflation, but also with increasing lifespans and a visibly different economic system. (Publishing, marketing and design, age of clientele, number of books available, variety of genres developed, communications, market formats, speed of transport of physical objects, credit and debit payments, experiments with printing houses, blogging and other online formats - if you can name for me one thing about the publishing and book market that is the same as it was in 1810 besides "Pay money for book, get book," I'd like you to explain it.)

Yet, somehow, I feel that I've asked the same two questions several times over to you that you have once again failed to answer in favour of focusing ont he inflammatory bits. First, why 40 years. Do you ahve actual proof this is the reasonable break even point? How do you say 40 and not 36 or 48? If you're going to dictate the terms by which soemone else makes a living, surely you've actually made some study that proves that even novels that do survive in print that long have paid out all their significant revenue by then.

And the other question that is never answered:

If a book should, by some dumb luck, survive past 40 years, and in the 41st year of its miraculous in-print survival, *someone* is still making revenue off it, can you explain to me why that someone should be a publisher or a company alone, and not both publisher and original author, as it had been a single year before?


As to Lowest Bidder: my brother has remarked before that the only viable way of doing that is not to accept the lowest actual bid. It's to accept the lowest bid that will actually get the job done right. To which the inevitable corollary is "This is almost never the actual lowest bid."

#192 ::: Greg London ::: (view all by) ::: February 27, 2006, 11:13 PM:

Charlie: Finally, I think that if you plot the number of writers working per capita over time, I think you'll find it's way higher today than it was back in 1790. I don't think post-mortem copyrights have much to do with that ... but pre-mortem copyright periods are a whole 'nother matter.

Alexx: More people can now *afford* to pursue such a marginal career than could previously.

I'd agree that copyright law has nothing to do with teh change in writers per capita from 1790 versus 2006, and everything to do with the the fact that in 1790 the US was basically a society of farmers using horse/ox to plow small plots of land, that sometime after 1790 the industrial revolution came along, and that by 2006, a small fraction of the population use massive mechanized farm equipment to grow the food for the rest of the nation.

When you don't need to till your own land to stay alive and feed your family, you can find more genteel ways to make a living.

Electronics have further turned us into an information society, where writing is part and parcel of its own industry. software is a major component of copywritten works nowadays, and longer copyright terms had nothing to do with that.


#193 ::: Greg London ::: (view all by) ::: February 27, 2006, 11:38 PM:

OG:

It's not uncommon for a contractor to deliberately lowball a bid with the intent of racking up change orders at an obscene rate.

Well, the difference here is that setting a copyright term is a little bit different than taking bids and getting lowballed. I get the negative associations with "lowest bidder", but I think it is impossible to low ball copyright

i.e. Disney can't lowball their bid and say "we'll write Mickey Mouse for a 10 year term", and then turn around and say they need 100 years to break even.

I'm talking about bidding on rights and terms for written works in general. It isn't like a single individual gets the exclusive contract to write everything. and then can jack up their terms. It's more like the low bid sets the price for all works.

Most of the scams and problems assocated with lowest bidder and lowballing and other scams don't actually apply to setting copyright rights and terms to the lowest bidder.

My immediate and emotional reaction to your proposal is that it devalues writing even further.

Yeah, I know. It's not just you, believe me. But copyright law does not exist to compensate writers for the "value" of their works. It exists to promote progress in the useful sciences. And if you can promote teh arts just the same with a 40 year term as a 100 year term, and if a 100 year term can actually become stifling to progress, then you really need to consider the shorter term.

and finally, "value" isn't the same as "price". I value a good, honest mechanic. That doesn't mean I'm going to pay him twice what he charges me. Open Source Software is highly valuable in my opinion, and I would not want to see it taken over by the likes of microsoft. ANd at the same time, it's free. I even contribute to free software projects on rare occaision.


#194 ::: Greg London ::: (view all by) ::: February 28, 2006, 12:39 AM:

"If Twain, Poe, and Thoreau were willing to write for a fixed term of 28+14 years, why must we pay authors more?"

That's where I got the bit about wage. Your own exact words, interpreted with the standard meaning of "pay" instead of whatever meaning is in your head, say not "We should roll back overextended copyright law", which seems to be what you claim it means, but "We should go back to paying authors the same amount Twain was paid."

Yes, but there is a difference between setting terms to a duration based on what they have been for two hundred years and "they should go back to the wages of 100 or 150 years ago".

THe difference is that "wages of 100 or 150 years ago" means literally something in the neighborhood of pennies a day, but paying an author in the form of a 40-year copyright term automatically adjusts for inflation.

Mark Twain had 28+14 years exclusive rights to his work. the publishers published his books and sold them at whatever price books went for in ~1900. That translated into some income for Mark Twain based on 1900 economy. that allowed him a certain standard of living.

I believe if you took an author in 2006 who is comparable to Mark Twain in talent, gave him a 28+14 year copyright term, his publishers would sell books at whatever rate books go for in 2006, the royalties would translate into an income for that person, and if you compare that person's standard of living with Twain's standard of living, you'd probably see they were comparable.

I have no reason to believe that economics have changed so dramatically that they would not scale and compensate for inflation.

at which point, you said:

visibly different economic system. (Publishing, marketing and design, age of clientele, number of books available, variety of genres developed, communications, market formats, speed of transport of physical objects, credit and debit payments, experiments with printing houses, blogging and other online formats

I don't see any of this as a problem, just a change in the way the medium works. Now, if we were talking about the standard of living for monk/scribes who made their living copying books by hand, and in the interleaving time, some lunkhead went and invented the printing press, I'd say, yeah, that career is pretty much dead. But none of the things you mention actually wipe out writer's. This isn't like american factory workers in teh 70's or american technology workers in the 2000's getting undercut by foreign competition and losing jobs overseas.

Nothing in teh economics has changed to the point that the writer is no longer needed. If anything, most of the changes have allowed more channels, more mediums, to support more writers.


I'm willing to concede that you don't actually think that everyone who disagrees that 40 years flat is appropriate does in fact want things to stay as they are, rather than that they have different answers to a problem all (Or possibly most) agree is a problem. If you make some kind of a response that finally indicates you've absobed this rather critical piece of information.

Uhm, OK: I don't think everyone I disagree with wants things to stay the way they are. (I think I parsed that paragraph correctly)

your questions answered next:

#195 ::: Seth Breidbart ::: (view all by) ::: February 28, 2006, 01:04 AM:

i.e. Disney can't lowball their bid and say "we'll write Mickey Mouse for a 10 year term", and then turn around and say they need 100 years to break even.

It seems that's pretty much what they did do (except they didn't lie about "need to break even" they just bought some congresscritters to extend their copyright).

#196 ::: Kevin Marks ::: (view all by) ::: February 28, 2006, 01:12 AM:

80% of writers make less than (arbitrary figure) is not helpful. I have 28 million bloggers in my index, and their revenue is power law distributed too.

It depends where you set the cut-off point for what constitutes a writer.

#197 ::: Greg London ::: (view all by) ::: February 28, 2006, 01:17 AM:

First, why 40 years. Do you ahve actual proof this is the reasonable break even point? How do you say 40 and not 36 or 48? If you're going to dictate the terms by which soemone else makes a living, surely you've actually made some study that proves that even novels that do survive in print that long have paid out all their significant revenue by then.

I am operating on the assumption that inflation is essentially irrelevant when talking about copyright terms listed in a fixed number of years. i.e. given the following terms:

from 1790-1830, 14+14
from 1831-1908, 28+14
from 1909-1975, 28+28
from 1976-1997, Life Plus Fifty years.
from 1998-present, Life-plus-seventy years.

given that, I believe an author would make the same money on a book (adjusted for inflation) whether he wrote that book in 1831 or 1908 because either way, he had 28+14 years of income.

by extension, this also means that as terms go up, authors are capable of making more money if their works are of good enough quality or of good enough advertising/marketing to sell through the end of the term. (i.e. a one-time wonder doesn't care if they have 10 years or 100 year terms because they'll only make money the first few years). This would seem to be supported by the fact that Disney makes about twenty-billion dollars a year in revenue, and that there is nothing comparable to this sort of ungodly amount of money when terms were shorter. even after throwing in a factor to attempt to compensate for the fact that disney had movies and video tapes and DVD's and all the rest of the technology that didn't exist prior to say, 1908, there is nothing in the past with shorter terms that comes close to making the sort of money that Disney makes.

So, I have some assumptions and some anecdotal evidence, and a personal preference to believe that supply and demand will sort itself out.

does that prove I'm right? no. But neither have you convinced me that my logic is altogether out to lunch.

And from a predictive point of view, my model says that disney revenues will plummet when terms are shortened, becaues they're milking cash cows that were created up to 80 years ago, and setting terms to 40 years will cut their cash-cow-revenue in half. THey'll still make money on new work, but they wont be able to sit on their ass and collect checks for something their great-grandfather did.

And the other question that is never answered:

If a book should, by some dumb luck, survive past 40 years, and in the 41st year of its miraculous in-print survival, *someone* is still making revenue off it, can you explain to me why that someone should be a publisher or a company alone, and not both publisher and original author, as it had been a single year before?

Ah, now that is the classic argument for infinite copyright. proponents never call it that, of course, but it is the basic "+1" argument, that when logically taken to its conclusion basically says, "well, Paramount just made a load of money off of a new version of Hamlet, why can paramount make money off that, and not give any of that money to shakespear's heirs?"

If you can explain to me how your "+1" argument remains logically sound and yet is NOT infinitely recursive, I'll change my tune. Until then, as far as I'm concerned, you're using an argument that can apply for any value of N and will logically conclude that N+1 is legitimate, and when applied over time, you get the current copyright state in the US. we started at 14 years, and now we're at around 150 years.


As to Lowest Bidder: my brother has remarked before that the only viable way of doing that is not to accept the lowest actual bid. It's to accept the lowest bid that will actually get the job done right.

Yes, I know. But, again, I refer to history and say that Twain et al got the job done right for only 28+14 years of copyright. And I still have nothing to show why the economics are so fundamentally different to explain why that term no longer pays enough today.

In summary:

If copyright paid authors a fixed number of pennies per word, then that would (1) not scale with inflation and (2) not reward good writing versus bad writing.

but by giving authors exclusive rights for N years, then (1) the money the author makes adjusts for inflation (but may be affected by as yet unmentioned economic factors) and (2) good writing is rewarded by what the public is willing to purchase on the stands.

And while having the public consumer decide what is "good writing" isn't neccesarily the ideal solution, the only alternative is a government bureacracy that decides what is good and how much to pay for it, adn I for one would rather keep congress out of the business of price-setting and quality-judgements.

#198 ::: Greg London ::: (view all by) ::: February 28, 2006, 01:34 AM:

Seth, yes, and it isn't the same as lowballing where a bunch fo people bid and one of them wins. copyright is basically an open contract that anyone can accept and get the term promised them. Lowballing and then jacking the price generally works because its exclusive. The lowballer will bid ten million bucks to do the job, and then when its near completion say he needs another 5 million to finish is. The government then shops around and all the other bidders say they'd have to get at least 10 million to finish it, because they'd have startup and overhead costs, planning and whatever else, that they'd need to do on top of the last 5 million piece. so the government pays the lowballer. and so on and so on.

Disney didn't get an exclusive contract, and other bidders have worked simultaneously in competition with Disney.

The british goverenment offered a 10 million dollar BOUNTY to whoever solved the longitude problem first.

This means that multiple people will work simultaneously on th eproblem, and in competition with each other. Lowballing is impossible. If one guy said "We're almost there, but we won't finish the project unless you raise the bounty another 10,000 pounds", the government could tell them to go screw, because the government hasn't paid them any money, and they don't lose anything if the guy doesn't finish.

This situation would have been fundamentally different if the British had taken BIDS and awarded an EXCLUSIVE CONTRACT to the lowest bidder. then you can have lowballing occur because you only have one person working on the problem.

Bounties are far much better. First one who succeeds gets the money. until then no one gets paid anything.

Disney is a bounty hunter, it is working on creating works while others are simultaneously working on creating works as well. Disney cannot lowball because the government didn't give them an exclusive contract to do a job.

Rather Disney really did nothing but two things: (1) Lobby the shit out of a bunch of politicians and pay them buckets of money and (2) get the likes of Bruce Lehman to play Wormtongue to the government's ear, i.e. get sleepers into the governmetn bureaucracy to do their bidding directly, without lobbying money.

so, yeah, what disney is doing is basically purchasing the legislation that it wants.

But it isn't really lowballing.

#199 ::: Greg London ::: (view all by) ::: February 28, 2006, 01:40 AM:

I just wrote:

The british goverenment offered a 10 million dollar BOUNTY to whoever solved the longitude problem first. This means that multiple people will work simultaneously on th eproblem, and in competition with each other. Lowballing is impossible. If one guy said "We're almost there, but we won't finish the project unless you raise the bounty another 10,000 pounds", the government could tell them to go screw, because the government hasn't paid them any money, and they don't lose anything if the guy doesn't finish.

This situation would have been fundamentally different if the British had taken BIDS and awarded an EXCLUSIVE CONTRACT to the lowest bidder. then you can have lowballing occur because you only have one person working on the problem.

Aw, crap, well, "low bidder" is not the same as "offering a bounty", in some fundamental game-theory ways. I'll have to stick to "a bounty as low as possible, but just high enough that someone collects"

#200 ::: Bryan ::: (view all by) ::: February 28, 2006, 02:50 AM:

"It depends where you set the cut-off point for what constitutes a writer."

I think the implicit cut off point for Charlie was having writer as the primary employment, and any side employments derived from that.

#201 ::: candle ::: (view all by) ::: February 28, 2006, 02:53 AM:

I'm kind of reluctant to weigh into another long-running argument, and I have no expertise (and no firm opinions) on copyright law, but I might as well say what I'm seeing on this thread so far. As far as I can tell, Greg London is annoying people with his Mark Twain comparison, not because anyone disputes that Mark Twain did good work for a relatively low copyright "reward", but because Mark Twain notoriously had a pretty unpleasant life and died in poverty (while, as Jim pointed out, arguing that perpetual copyright would have allowed him to live better).

Nineteenth-century copyright laws brought us Huckleberry Finn, and they made Mark Twain's life unpleasant. Judged solely by the quality of the literary product, as Greg seems to be doing, this is an ideal result. Judged by any standard of humanity, it seems less so. I suppose Mr Clemens might have got himself a different job; and I suppose strict economic theory would say that he can't have suffered *all that much* if he was willing to stick at writing. Perhaps that true. But that doesn't make it fair, and to those of us who care about fairness it certainly suggests that Greg London's system is less than ideal.

Perhaps Mark Twain's life wasn't affected by his copyright situation, in which case his example is irrelevant anyway. Perhaps authors are not rational actors, as Alexx (and Cory Doctorow) suggest, in which case economic theory (which assumes that they are) is going to be of little help. Perhaps copyright law is always going to help some authors and hinder others, in which case the whole search for an ideal solution is pretty much flawed.

40 years seems like a fair suggestion, but there are good arguments for making it slightly lower, and slightly higher, or for linking it to the time of death - and these arguments were all being made here at one point. I for one would like to read more about those options. So for me, Greg London has adequately proved that very long periods of copyright would not guarantee better writing. Dog knows I can go and read his book if I'm not convinced. Now can we go back to deciding whether 40 or 35 or 28+14 or renewable-every-14 is the most sensible solution?

Thanks.


#202 ::: candle ::: (view all by) ::: February 28, 2006, 02:56 AM:

Damn: I meant "perhaps that *is* true". Must remember to read through again before posting.

#203 ::: Dave Luckett ::: (view all by) ::: February 28, 2006, 03:16 AM:

I agree with candle that authors are not rational actors, even the humblest of us. I'd be down in the market place telling stories with a begging bowl, if that was how narrative was sold where I lived.

Come to think of it, that might not be such a bad idea.

#204 ::: Craig McDonough ::: (view all by) ::: February 28, 2006, 03:44 AM:

Clew --

Back to history: the horror of losing movie rights has historical precedent: in the 19th c., successful authors were plagued by scurrilous, sloppy, revenue-not-sharing, sometimes madly profitable touring stage play versions.
G & S did at least one U.S. tour foe the express purpose of recapture of the redvenue stream lost to inferior and unauthorized imitations.

And I sincerely doubt that "Hail, Hail the Gang's all here" ever contribuited to the revenues, even though the tune itself one from one of their works.

#205 ::: Dave Luckett ::: (view all by) ::: February 28, 2006, 04:40 AM:

That would be "Come, friends who plough the sea" from "Pirates of Penzance", but it's only the four lines of the chorus.

#206 ::: OG ::: (view all by) ::: February 28, 2006, 07:14 AM:

Greg: I think you're looking for something more like the Brooks Act than a low bid scheme.

It exists to promote progress in the useful sciences.

I think it's an example of just how little we value writing as a society that my first reaction to that statement was "then why does it apply to writing at all?"

Candle:

Nineteenth-century copyright laws brought us Huckleberry Finn, and they made Mark Twain's life unpleasant. Judged solely by the quality of the literary product, as Greg seems to be doing, this is an ideal result. Judged by any standard of humanity, it seems less so.

Yes, that has a lot to do with my sense that his proposal devalues writing and, especially, writers. It brings up spectres of people as cogs in a machine. When one decides the reward is no longer worth the effort, there's always a replacement, and they're pretty much interchangable.

I don't think writers are interchangable.

I know writers in the trying-to-find-a-publisher stage who would be appalled at the possibility that Hollywood would have access to their work, that something like the planned changes to Pooh could be done to their characters during their lifetimes. Lifelong copyright then becomes a means of keeping the Hollywood butchers away from their darlings.

Here's a question. What prevents an unethical writer or publisher from picking up an obscure public domain text and publishing it as someone else's work after sufficient editing to file off the obvious anachronisms?

#207 ::: abi ::: (view all by) ::: February 28, 2006, 07:26 AM:

candle (inter alia)

Mark Twain notoriously had a pretty unpleasant life and died in poverty

You can't blame all that on lack of income. There was a lot of excessive outgo as well, particulartly on the Paige compositor. (It was a faster, but less reliable, competitor to the Linotype machine).

As the page I linked to explains, Twain estimated that he sank $150,000 in the project, but others think it was closer to twice that. He may have died in poverty, but he clearly had a fair income to be able to afford that sort of investment (in late 1800's dollars at that).

Further information on the Paige compositor is here, for the curious. It appears to have re-used type, unlike the hot metal Linotype and Monotype machines that eventually mechanised type composition.

#208 ::: Graydon ::: (view all by) ::: February 28, 2006, 07:56 AM:

OG -

If you really want that, you make it so copyright resides solely in natural persons, cannot be surrendered, and all contracts have by statute an enforceable moral right of the creator to scotch derivative works for entirely arbitrary reasons at their sole discretion.

And in five years, Disney will have bought enough legislation to own that right to every property it has or will acquire in perpetuity, which is not a net win.

Writing pays terribly. It always will, because it's at the plankton level of the food chain, and there's minimal opportunity for concentration. You can't fix this through copyright tweaking. (Distribution, now; there's some hope there.)

Much better to abolish the entire system in favour of something that recognizes that copying is essentially trivial and controls the rights to make changes to creative work.

#209 ::: Charlie Stross ::: (view all by) ::: February 28, 2006, 08:02 AM:

Alexx: Practically everyone I know *except* writers has to make (or fail to make) their own plans for how to survive in their old age. We put money aside in the bank or investments (possibly with some match from our employers, but far more often not), and we find a way to squeeze that money-for-the-future out of our day-to-day income stream.

Very true. However, you might want to bear in mind that my writing is a large part of my old-age investment planning. The cash flow is poor, but the duration of cash flow is long. Reducing the copyright duration to less-than-life at this point in time is going to screw over a lot of writers' retirement plans. Moreover, it's going to do so when the folks in question are already in the age range 40-80, a bit past the age where it's practical to start up supplementary saving schemes -- compound interest is a bitch.

I've got an alternative proposal, mind you. One that should free up a lot of material for the public domain without kicking anyone in the nuts.

Bluntly: 95% of books go out of print for good within a couple of years of their authors deaths. This leads directly to the orphan works problem, and the wreckage and wasteland that 70 year post-mortem copyrights make out of our cultural heritage.

The purpose of permitting post-mortem rights to exist -- from the point of view of the public good -- is to keep the work available to the public, by giving someone an incentive to keep it in print. If it ain't in print or available for print, then the copyright serves no useful purpose and should lapse.

I propose that copyright should be for life of the creator plus ten years, plus an indeterminate number of ten-year renewals, applied for consecutively. (For corporate copyrights, set the creator's life to an initial "ten years from first publication", but permit renewals.) To get the renewal, the heirs or right holders must file a declaration that they're interested in maintaining the author's body of work with the copyright office, or some appropriate library of record. This declaration covers all the estate's works, and includes contact details for anyone interested in purchasing the rights for publication. If the estate forgets to file within the ten year period, the author's works all lapse into the public domain when the period is up. As a secondary condition, if none of the works are in print at all, and an interested party approaches the estate and can't contact them or obtain reasonable permission for a reprint ("that short story will cost you ONE MEELION DOLLARS!" is not reasonable: the rest is up to the courts), then they should be able to petition to have the copyright struck down.

I suspect that, under this system, the majority of works would re-enter the public domain between ten and thirty years after the author's death. Either estates will be maintained and remain available to the public, or they'll go out of print, be forgotten, and the copyright will rapidly lapse. It side-steps the issue of particularly popular commercial works because the legal departments of the big combines who own those items are going to be very careful not to miss their filing dates. And it means those authors who currently angst over any attempt to cut "life plus seventy" back because they're worried about their grandchildren can sleep easy.

#210 ::: Charlie Stross ::: (view all by) ::: February 28, 2006, 08:08 AM:

PS:

I should like to note that, as writing tends to be something we take up in adulthood, the average age of writers is somewhere over 40 ... and if we approximate life expectancy to 80, then "life plus ten, plus renewals" averages out as roughly equivalent to 50 years plus renewals (with the caveat that it doesn't arbitrarily put the squeeze on any writer unlucky enough to live into their 90s).

It's a bit different in the world of music, but hey, that's show biz. (And if history shows us anything, it's that most music is even more disposable than most literature.)

#211 ::: rhandir ::: (view all by) ::: February 28, 2006, 08:10 AM:

We seem to keep missing this question: under the different systems,

How long before I can write derivative works?
Some scenarios.

Givens:
Barbara Hambly's Bride of the Rat God, 1994
Gene Roddenberry 1921-1991 (Trek, in fixed form 1966)
Hypothetical Author's b.1985-d. 2065 First Novel, 2005.

Copyright Regimes:
from 1909-1975, 28+28 = 56
from 1976-1997, Life Plus Fifty years.
from 1998-present, Life-plus-seventy years.

A: Derivative work based on Trek, the Old Series:
28 year renewable: 2022 (in 16 years)
Life+50 : 2041 (35 years)
Life+70: 2061 (55 years)

A: Sequel to Bride of the Rat God
28 year renewable: 2050 (44 years)

A: Movie Adaptation of Hypothetical's First Novel
28 year renewable: 2061 (55 years)
Life+50 : 2115 (109 years)
Life+70: 2135 (129 years)

-r.

#212 ::: OG ::: (view all by) ::: February 28, 2006, 08:11 AM:

Much better to abolish the entire system in favour of something that recognizes that copying is essentially trivial and controls the rights to make changes to creative work.

That's what I'm asking. That's what copyright really represents to a lot of hopeful writers I know: a recourse in case of plagiarism. I think that's one of the factors Greg's purely economic analysis is missing.

I'm not sure that copying is essentially trivial, though. To me, it looks like copyright is a means of establishing who has the ultimate control over distribution. Without that, what does the writer actually have, legally, to sell?

#213 ::: Charlie Stross ::: (view all by) ::: February 28, 2006, 08:52 AM:

OG: you need to read up on Moral Rights.

#214 ::: rhandir ::: (view all by) ::: February 28, 2006, 08:54 AM:

Charlie Stross,
Whoa, that's a good post. You, ah, kinda beat me to everything I was going to say. I don't think its too late to bring up the proposed Eric Eldred Act. Sample bit of text:
Fifty years after a copyrighted work was published, a copyright owner would have to pay a tiny tax. That tax could be as low as $1. If the copyright owner does not pay that tax for three years in a row, then the copyright would be forfeited to the public domain.

Under the scenarios I outlined above, assuming no renewals, that means Trek could be accessible in 13 years, Bride could be up as soon as 2047 (41 years), and my children could do something useful with a book published this year. (2059, or 53 years)

Anyway, I like your solution too*, and I'll note that your estimate of 50 years plus renewals is approximately equal to an Eldred plus renewals. It is a very tidy way of shoving stuff into the public domain!

Further thought: It seems to me that "my children could do something useful with a book published this year" might be a good rule of thumb for Orphan Works.

The alternative under our current system is 129ish years for something published today, which puts it into a frame where my great-grand kids will be in their 70's before they can do something useful with it.

-r.


*Of course I like my idea of Royalties Escrow too, but it has intractable difficulties associated with valuing works.

#215 ::: OG ::: (view all by) ::: February 28, 2006, 10:07 AM:

Charlie Stross:

Moral rights expire in the US with the expiration of copyright. They're too tightly integrated to really consider separate issues. Any proposal to change one must consider its impact on the other.

#216 ::: Charlie Stross ::: (view all by) ::: February 28, 2006, 10:16 AM:

Eldred's proposal fails to recognize that authors may have a very large number of copyrighted works -- and indeed, the number of works they have may be inversely proportional to their value. Pixar have a dozen movies and ten times that number of shorts, while Howard Waldrop has a metric shitload of short stories, for example: why should a short story writer pay several times as much tax as the movie studio or a best-selling novelist who writes nothing but novels?

That's why I'd favour a system where the copyright holder pays once, for everything in their name.

#217 ::: Teresa Nielsen Hayden ::: (view all by) ::: February 28, 2006, 11:24 AM:

Tim Walters, on compulsory licensing models:

"...there are some who object to the government setting their salary, especially considering that it doesn't track inflation..."
Income from licensing doesn't amount to the government setting salaries. Barring the kind of distortions you mention, the creator's income is determined by the popularity of the work.

OG on compulsory licensing, and authors' proprietary feelings towards their work:

"I've seen a variant of that involving the 'dilution of trademark' argument. I believe the thinking goes 'If the central character is what defines the series, and other people write stories about that character, even though they are not marketed commercially they are still in competition with me using my creation.' Ignoring them isn't then an option."
Very little fiction is defined by the central character, and authors may count themselves lucky if they manage to create one. Such characters (Dracula, Sherlock Holmes, Wolverine) tend to be durably interesting and profitable.

They're also more escape-prone than hamsters. A well known and instantly recognizable character doesn't need to be given his proper name and background exposition. He can wander out of your work and into other stories without duplicating a bit of your original telling, which is all that traditional copyright covers. And since such characters tend to take up residence in readers' heads, you're pretty much guaranteed that they will invent new stories about them.

Candle:

"As far as I can tell, Greg London is annoying people with his Mark Twain comparison, not because anyone disputes that Mark Twain did good work for a relatively low copyright "reward", but because Mark Twain notoriously had a pretty unpleasant life and died in poverty (while, as Jim pointed out, arguing that perpetual copyright would have allowed him to live better)."
Say what? Mark Twain was one of the best-compensated authors of his century, and for much of his life lived quite well. His sorrows -- his wife and three out of four of his children predeceased him -- had nothing to do with copyrights or money. It's true that he got himself into serious financial trouble, but he did it by (1.) investing in a variety of mechanical inventions that took a lot of R&D money but didn't pay off; and (2.) deciding to set up his own publishing company to self-publish his works. In spite of the enduring popularity of his own writing, and his company's publication of Ulysses S. Grant's memoirs (one of the first great American bestsellers), his firm managed to go bankrupt anyway. Longer terms of copyright wouldn't have saved him from any of that.
"...[T]hose of us who care about fairness..."
...should also care about checking the facts.

OG again:

"Yes, that has a lot to do with my sense that his proposal devalues writing and, especially, writers. It brings up spectres of people as cogs in a machine. When one decides the reward is no longer worth the effort, there's always a replacement, and they're pretty much interchangable."

I don't think writers are interchangable."

Neither do I, at least if you're talking about fiction writers, which is why I think the cogs-in-a-machine scenario is meaningless self-inflicted angst. If they aren't interchangeable, treating them as cogs in a machine simply won't work, so it's hardly going to become the standard model.
"I know writers in the trying-to-find-a-publisher stage who would be appalled at the possibility that Hollywood would have access to their work, that something like the planned changes to Pooh could be done to their characters during their lifetimes. Lifelong copyright then becomes a means of keeping the Hollywood butchers away from their darlings."
Oooh, eek, spare us from Hollywood and its terrifyingly huge pots of money. That's a level of problem not-yet-published authors can only wish they had. Movies come and go, and are largely forgotten; but enough money to pay off the mortgage on a house? That'll stay with you.

Tell the little darlings not to worry. The extent to which Hollywood can pick and choose its projects is hard to even begin to describe. If they're unwilling, there are tens of thousands of authors who aren't.

"Here's a question. What prevents an unethical writer or publisher from picking up an obscure public domain text and publishing it as someone else's work after sufficient editing to file off the obvious anachronisms?"
Nothing. Now you tell me how and why that's unethical. Are you condemning everyone who does a modern retelling of Robin Hood, or Arthurian tales? And if you are, will you also condemn the previous ten or twenty iterations of those same tales? Those tellers were borrowing from earlier sources.

Or let's say you mean taking some distinctive work that's fallen into obscurity (say, "His Deceased Wife's Sister"), stripping off its particular circumstances, substituting others, modernizing the language, and presenting it as your own. If you can make that work, clever little resurrectionist that you are, you're in the clear. Copyright law covers a specific telling, a specific configuration of words. It doesn't cover underlying structure.

("And thank heaven for that," say we all, considering how much structural repetition there is in commercial fiction.)

I keep going back to Greg London's quotation of Bruce Lehman's remark about metering each use of a copyrighted work, and the (happily anticipated, by Lehman's paymasters) end of the concept of fair use. Surely that would be a writer's heaven? Guaranteed recompense for every use of every bit of their gloriously unique work?

Except it'd be nothing of the sort. Enforce it sternly enough, and writers would just get more assiduous and ingenious about filing the serial numbers off plundered material.

Would there be any use at to such laws? There certainly would. Big entertainment companies, with their big legal departments, could use those laws to kill off legitimate near-relatives of properties they owned.

Consider the original Star Trek, a.k.a. "Wagon Train to the stars." Imagine a little guy owned it, and was trying to collect after some studio has borrowed so much of its core material that it killed another development project that was actually paying the author for use of his work. The studio's lawyers can argue that it's just our old friend the picaresque novel, translated into skiffy terms. That's legit. Nobody owns the picaresque novel. They could also point out other, similar works in the field, from The Rolling Stones to the Sector General series, and challenge the plaintiff to prove that it was his work they'd borrowed from. Unless the borrowings had been blatant, systematic, and picked up a lot of specific details from the original work, the plaintiff would have a hard time winning his case. And even if it had been that blatant, he'd have a hard time pursuing his case. Big civil cases are grueling and go on for years.

Now flip it around and imagine that Star Trek belongs to an aggressively litigious corporation that's determined to collect on every instance of use of material that can be said to resemble one or another episode of the show. Could the little guy defend himself? Sure he could -- if he were willing to go tens of thousands of dollars in the hole on legal costs, and give over several years of his life to the defense.

In that situation, the biggest bully wins. And the biggest bully is almost never going to be the writer.

#218 ::: James D. Macdonald ::: (view all by) ::: February 28, 2006, 12:13 PM:

Mark Twain notoriously had a pretty unpleasant life and died in poverty

I think you're thinking of Edgar A. Poe. Better copyright protections may well have helped him.

#219 ::: Christopher Davis ::: (view all by) ::: February 28, 2006, 12:14 PM:

Charlie's critique of the Eldred proposal is the first I've seen that shows a real issue with it; even if you posit, as Eldred does, that a system is developed to make the renewals cheap and easy, even a marginal cost does eventually add up. I like his proposed version, which does fix that problem.

I do still feel there should be some eventual cap on duration, even with renewals; this is not just because of the (US) constitutional "for limited times" clause, but also for some of the same reasons which led to the legal "rule against perpetuities", but without all the freakin' complications that involves. The traditional "99 year" limit on certain legal agreements might work; I'm hardly dogmatic about any particular value.

(A strict mapping of the rule against perpetuities would set the limit at "21 years after the death of the last heir living at time of publication" or some such silliness, which would certainly encourage authors to have kids....)

#220 ::: James D. Macdonald ::: (view all by) ::: February 28, 2006, 12:19 PM:

Or let's say you mean taking some distinctive work that's fallen into obscurity (say, "His Deceased Wife's Sister"), stripping off its particular circumstances, substituting others, modernizing the language, and presenting it as your own.

Or even one that hasn't fallen into obscurity, say Captains Courageous by Rudyard Kipling, republished as The Billion Dollar Boy with Charles Sheffield's name on the cover.

#221 ::: Rich McAllister ::: (view all by) ::: February 28, 2006, 01:18 PM:

I noticed today that the Holy Blood, Holy Grail vs. Da Vinci Code case has gone to trial. Was interested in the quote in the newspaper story (might require registration):

Jonathan Rayner James, a lawyer for authors Michael Baigent and Richard Leigh, said Brown did not copy words from his clients' book but had taken ``the idea you are left with when you've read the book.''

Is UK copyright law that vastly different from US, or is James an idiot?

#222 ::: OG ::: (view all by) ::: February 28, 2006, 01:23 PM:

Very little fiction is defined by the central character, and authors may count themselves lucky if they manage to create one.

Just saying that I've seen the argument from people opposed to the "just ignore it" school of dealing with fanfic. I happen to agree that no one can stop a sufficiently interesting character and/or world from escaping into readers' heads and generating new stories. Some people are determined to try.

Neither do I, at least if you're talking about fiction writers, which is why I think the cogs-in-a-machine scenario is meaningless self-inflicted angst.

It was a reaction to Greg's approach, which reminds me too much of past arguments over the Brooks Act. No angst, but an observation on how he's coming across. Just like your reaction illuminates how I'm coming across.

Now you tell me how and why that's unethical. Are you condemning everyone who does a modern retelling of Robin Hood, or Arthurian tales? And if you are, will you also condemn the previous ten or twenty iterations of those same tales? Those tellers were borrowing from earlier sources.

Retelling from the original source material is not lifting entire paragraphs, or entire chapters, and doing a search/replace on the names.

Most aspiring writers I know have been involved in the fic world at some point, even if only as a beta for another writer. They know it happens there. They're not going to believe that it's unique to that subculture.

Oooh, eek, spare us from Hollywood and its terrifyingly huge pots of money. That's a level of problem not-yet-published authors can only wish they had.

Yeah, well, to people trying to decide if the headaches of getting published are worth the reward, those sorts of things can loom large. I used Hollywood and Pooh because it's spawned a lot of comments like: "If I were lucky enough to be that popular, I'd hate to live to see that happen to my world. I'm so glad copyright doesn't expire while I'm alive."

The story of the writer who sends off his manuscript/screenplay and then sees it published under a different name is well entrenched. I've known people who refuse to join workshops because they fear their work will be stolen. I can't exactly use "Oooh, eek" as an argument against hiding in a hole.

All these things come together to create support for long copyright extensions that an economic argument will erode only with difficulty. I think anyone arguing for drastically shorter copyright duration needs to address them, the facts and the myths alike, or they'll never get past the emotional response.

#223 ::: Tim Walters ::: (view all by) ::: February 28, 2006, 01:39 PM:

Income from licensing doesn't amount to the government setting salaries. Barring the kind of distortions you mention, the creator's income is determined by the popularity of the work.

You're right that I shouldn't have said "salary." Nevertheless, if Celine Dion wants to record one of my songs, I can't negotiate my fee--the government has set the maximum royalty I can receive. This doesn't bother me, but if I were Diane Warren (and I think we're all glad that I'm not) I might feel differently.

And there's another distortion that I didn't mention. Imagine that Celine Dion records my song on an album that stiffs. I get no money, and no one else is going to want to record a song associated with (a) failure and (b) Celine Dion. (Of course, it might be my fault that the album stiffed, but then again it might not.)

And of course there's the artistic objection, e.g. Gustav Holst's daughter suing to block Tomita's version of The Planets as a desecration of her father's work. I don't put a lot of credence in this--one person's desecration is another's bold reimagining--but a lot of people here have expressed a desire to retain control of their stories, so I would guess that a lot of musicians feel the same way.

Writers, how would you feel if anyone were allowed to make a film of your book for a statutorily determined percentage of the box office receipts, with no input from you?

#224 ::: Tim Walters ::: (view all by) ::: February 28, 2006, 01:54 PM:

Writers, how would you feel if anyone were allowed to make a film of your book for a statutorily determined percentage of the box office receipts, with no input from you?

And, as I forgot to mention to complete the analogy, your publisher takes 50%.

#225 ::: OG ::: (view all by) ::: February 28, 2006, 01:56 PM:

Mark Twain notoriously had a pretty unpleasant life and died in poverty

I think you're thinking of Edgar A. Poe. Better copyright protections may well have helped him.

I remember the same from my high school AmLit teacher, who credited it to both mismanagement on Twain's part and contract issues with his publisher. Better copyright protections would have continued his income from his already published books while his current writings languished unpublished or were stolen outright. Or so her version went. You'd think I'd know by now to google everything before saying anything publicly.

#226 ::: Renee ::: (view all by) ::: February 28, 2006, 01:57 PM:

Tim Walters said:

Writers, how would you feel if anyone were allowed to make a film of your book for a statutorily determined percentage of the box office receipts, with no input from you?

I reply: If I'm intending to write in that world again, I'd worry about the dilution of mark effect, because the Hollywood version is likely to be the version that more people are going to end up being familiar with. If it sucks... so much for my series, except to die-hard fans and literary pundits.

YMMV.

#227 ::: Scott Lynch ::: (view all by) ::: February 28, 2006, 02:07 PM:

Yeah, well, to people trying to decide if the headaches of getting published are worth the reward, those sorts of things can loom large.

That's a bit of an ass-backwards worry, and I say that with nothing but helpful intentions. "Getting published" isn't a sellers' market. The biggest problem facing someone looking to get published isn't the contemplation of what a headache it might be once it's accomplished; it's shaking enough crap and bad habits out of their own work to make it palatable to someone whose job is to buy.

I can also tell you this-- compared to the headache of actually writing the damn books, the headache of 'getting published' ain't nothin'. Unless the thought of letting other people take over the vast majority of the remaining work causes migraines.

The story of the writer who sends off his manuscript/screenplay and then sees it published under a different name is well entrenched. I've known people who refuse to join workshops because they fear their work will be stolen. I can't exactly use "Oooh, eek" as an argument against hiding in a hole.

All these things come together to create support for long copyright extensions

By what magic algebra does the "mean people will steal my ideas if I workshop/submit" paranoia (which Teresa could beat like a rented gong for countless reasons with every lobe of her brain tied behind her back) become an argument for long copyright extensions? If mean people prowl workshops and slushpiles looking for ideas to steal, how exactly would copyright extensions, of all things, turn them away, shrieking like movie vampires before a crucifix? (This, to stave off silliness, is by no means an argument against copyright extensions; merely a note that the one thing has nothing to do with the other).

#228 ::: Lenora Rose ::: (view all by) ::: February 28, 2006, 02:08 PM:

Tim Walters: If I were lucky enough to get a novel published, and subsequently have Hollywood wanting to make a movie out of that novel for a percentage of the Box office receipts -- in the current system, where it's my choice, I admit it: I'd close my eyes and go for the money. The reason being, even when an author agrees to a project these days because they have every reason to believe it will be treated with respect -- you still get things like the desecration of Earthsea. Or the movie version of Dune.

Not being able to make the choice myself (As per your scenario) doesn't really seem like a guarantee of *lack* of quality any more than being able to choose is a guarantee of respectful treatment of the work.

I can understand entirely why an author would prefer to have the *option* of signing the contract or not, based on how much they'd get or how much input they'd have (although this is almost always little to none) or how much they trust that producer and director. But I feel the difference in risk-of-desecration between then and now isn't really as strong as it seems. And most books are tough independant little critters. They can survive the smear to their good name. So my mantra remains "So long as I get a cut."


Dave Luckett: On your two responses to my last post: The first one is excellent, but seems to overlook that i understood what you meant, i was merely pointing out that what you *said* did not match, and you should be more careful and pay more heed to your language. Which you did in your expansions on the point, there and elsewhere. Thank you for that.

As for the second: Wow. You just managed to write a significant amount of verbiage that was clear, cogent, reasonable, well argued, and still failed entirely to answer the actual questions.

The first question was "Why 40 years?" It's not "why some shorter span than current?", which is what you answered. The difference is not subtle. For istance, you've answered the second question about 20 times, sometimes in ways that were disputable, but always with a sincerity and a visible effort to communicate. You've answered the first one Zero times.

Why 40 years?

"Because writers wrote for 28 + 14 years" does not answer this, as 28 + 14 is 42. How is 40, your preferred number, inherently superior to 42?

"BEcause writers wrote for 28 + 28 years" is likewise not an answer, as that is 56. How is 40 inherently superior to 56? How is 56 -- a span that worked well for almost as long as 28 + 14 and was altered only by the forces of Disney --"Too much" while 40 is adequate? Since you argue for 40, it's clear you think 56 was also too long, but not why. How does a 56 year term harm the system?

"Because writers wrote for less than Life + 70" is not an answer, as we've established that long since. We AGREE that life + 70 is too long, that authors can, and even should, write for less.

I'm not asking why you make your general argument for a fixed term. I've got that, thanks. I'm asking where this number -- ****40**** -- comes from.

The second question you answered only by saying "This is a slippery slope argument." Which isn't an answer, especially as the question, as stated, does not necessarily extend to anything past Life. It's not an argument for Life + N. The question was why should the original creator, while alive, not receieve further payment for their creative work, even though someone else is getting paid for their book? This argument, taken as I wrote it, not expanded to "The poor little children" or "the heirs" or anything else I DID NOT ADD BUT YOU READ ME AS ADDING, only carries through until the original creator is *dead*. And that question, without the additions you mentally put into it, remains a viable question. Why should a living author (Not their heirs, not their children, just the LIVING author) not recieve further recompense for a still-successful work? Not to denigrate the work of the publisher. They deserve their cut absolutely. But if they deserve their cut, why does the author (Again, not the heirs or estate or any other illusory body NOT the author him/herself) not deserve the same?

And yes, I do argue elsewhere for Life plus N, (where N is *not* more than 20 years and concievably as few as 5-10). But I do not do so based on *this* argument. This argument, as far as I'm concerned, only goes as far as the Life of the author. Other, different, arguments kick in to suggest the addition of a *Small* number of years past flat Life (Again, significantly fewer than they currently get).


"This also means that as terms go up, authors are capable of making more money if their works are of good enough quality or of good enough advertising/marketing to sell through the end of the term."

If we're talking within the lifetime of the original creator (Again, NOT their heirs, estates, poor little kiddies, etc, JUST THE CREATOR), and if we're talking about a person (Terry Pratchett or Joan Wanna-Bee) and not about any corporation, especially not the dreaded Disney Corporation, can you explain precisely how this is an argument against a Life copyright?

Personally, I think the biggest mistake of all is having identical terms for corporations as for living breathing human beings. Because it gets the rights of individual persons tied into the fate of behemoths, and invariably, this ends up with terms that are unfair for individual creators (For being too long, in this case), because they don't have the clout to change the situation unless they can gather in large numbers, while the behemoth doesn't have to gather anyone else to its side to have influence.

#229 ::: candle ::: (view all by) ::: February 28, 2006, 02:15 PM:

Jim:
I think you're thinking of Edgar A. Poe.

Well, in part I was. The idea was that the point could apply to both of Greg's examples. But I *did* mean to talk about Mark Twain, so I'm afraid I'll have to reject the gallant suggestion here. Thanks anyway.

His sorrows -- his wife and three out of four of his children predeceased him -- had nothing to do with copyrights or money. It's true that he got himself into serious financial trouble...

First of all, I'm sorry if I've offended you, Teresa, or anyone else here. Offending my host is the last thing I set out to do. But in my defence: it is clearly true that he got himself into serious financial trouble and had a pretty unpleasant life (at least in the final phase of it - which I ought to have made clear). As this review in the Guardian (where I was getting my information) says:

Twain's final years ... are as grim as any in American literature.

"Dying in poverty" was a little melodramatic, I admit. My only defence there is that I was half-remembering the famous telegram beginning "If Mark Twain dying in poverty in London..."

On the other hand, I was aware that this wasn't necessarily the result of copyright laws. Twain clearly *believed* perpetual copyright would have helped him, which is what I said, but I didn't mean to claim that they necessarily *would* have done. And I specifically allowed later in the post that his wealth or poverty might well have had nothing to do with copyright.

All I was trying to point out was that people seemed to me to be reacting badly to Greg London's Mark Twain example out of a sense - right or wrong - that Mark Twain was not perhaps the ideal model of a happy and well-remunerated writer. Greg's point seemed to be that nineteenth-century copyright brought us Mark Twain and Edgar Allan Poe; personally I can't imagine many writers thinking that those two are models of what a writer's life ought to be.

Those of us who care about fairness should also have cared about clarity, I admit. What I wrote was misleading, but I can only promise that I didn't mean that Mark Twain's troubles were all the result of copyright. But it still seems to me that the aim of the discussion is to get a good and sensible deal which allows authors to live well (without sacrificing access to their work for the rest of us), and not to produce the greatest literature most cheaply. I suppose that's the economic argument for copyright; but I think that is a limiting approach.

So again, sorry for any offence. I'll withdraw from the thread now unless anyone specifically asks me anything.

#230 ::: Lenora Rose ::: (view all by) ::: February 28, 2006, 02:26 PM:

Oh, my god. I can't believe I just did that. Greg. Greg. GREG. Not Dave. Sorry, both of you. Obviously, I have no brain.

Renee: Actually, if I understand correctly, even bad films of books tend to *boost* the sales of the original book, not kill them. All those who liked your book before will still like it and spread the word, even if they have to add, "It's not like the movie, honest!" And the additional sales of the book will probably make yet more fans of the book version. (They may have a hard time not picturing the actor when the character's name comes up, but that's a relatively small problem, since what the reader envisions is rarely what the author described). How does this make it harder to keep writing the same milieu?

#231 ::: OG ::: (view all by) ::: February 28, 2006, 02:46 PM:

The biggest problem facing someone looking to get published isn't the contemplation of what a headache it might be once it's accomplished; it's shaking enough crap and bad habits out of their own work to make it palatable to someone whose job is to buy.

That's the headache I was talking about, actually. The years invested in the whole workshop/rewrite/query/contract routine, start to finish. The question at hand would be "is the benefit that I expect from publication that important to me, or am I content with the admiration of my family and friends, which I (usually) already have?" Some decide yes, some no, but it comes up whenever post-publication hassles like the Pooh business hit the news.

By what magic algebra does the "mean people will steal my ideas if I workshop/submit" paranoia (which Teresa could beat like a rented gong for countless reasons with every lobe of her brain tied behind her back) become an argument for long copyright extensions?

By the magic of copyright being their defense against plagiarism. It's the thought of giving up that legal defense should the unthinkable happen.

#232 ::: rhandir ::: (view all by) ::: February 28, 2006, 03:12 PM:

Lenora,
I'm not Greg, but way upthread I used an example of a fixed 40* year term to illustrate a point. I don't know if Greg's use of 40 years derives from that, or was an independent invention.

-r.
*In my case, I pulled the number out of...the air. I did a back of the envelope calculation for how short a copyright could practically be without sharing my math. Assuming that without simultaneous submission, you could shop a MSS around for 10 years without getting a nibble, you would then have 10 more to wrestle with re-edits, get it advertised, book toured and sold. I then applied the Fred Gallagher Algorithm:

"There are two stages to any project. The first is getting thru all of the things you knew you had to do. Then there is the stage where you have to do all the things you never realized you'd have to do."
I figured that multiplying my initial estimate by two was probably right. (I'm no miracle worker.)

#233 ::: Renee ::: (view all by) ::: February 28, 2006, 04:19 PM:

Lenora Rose: Re: bad movies making the book icky:

I don't read most books-made-into-movies and vice versa; I read (or watch) one or the other, on the general experience that where one is good, the other is crap.

This is, obviously, completely illogical. I've read books where I've liked the movie too (LotR) and seen movies where I've liked the book (Bladerunner/"Do Androids Dream of Electric Sheep?") But I can't help letting the one bleed into the other and I find the one colors the other--often to disappointing effect. I found the Star Trek books I've read (Blish, mostly) disappointing as a result, and the less said about most comic book movies pre-X-Men, the better.

Result: if there's a novelization of a movie, or a movie of a novel, I'm LESS likely to read/see either. I doubt I'm the only one (though I'm willing to admit I may be in a teeny-tiny minority.)

Or maybe I'm just weird. *shrug*

#234 ::: Stephen Frug ::: (view all by) ::: February 28, 2006, 05:17 PM:

Everyone seems to be debating this as if the choice were either a life (or life +N) term or a fixed term. But I don't see why we have to choose. Here's my seat-of-the-pants utopian proposal:

- copyright held by human beings will be for either life + 20 years, or 40 years, whichever is longer;
- corporate-held copyright will be for 40 years.

The point of this would be to get the best of both systems: old, Ulysses-Grant-style authors would still have a copyright-backed incentive to write; writers whose major work was when they were young would be supported into old age. Seems like a good compromise among the various options.

The second part, obviously, is needed to deal with the would-be-ridiculous-were-it-not-so-dire fact that corporations are, legally, immortal persons. I'm pretty sure this division already exists. But I'd actually push it a bit further (I don't know if this is now true or not, with a different value for "40"): I think that any transfer (by sale or other) of copyright from its human holder to its corporate holder would automatically reduce the copyright to 40 years. So if a young, brilliant writer (songwriter, etc) writes something brilliant, and sells it to a corporation -- so that it isn't supporting them in old age -- then it's out of copyright after 40 years whether they are still alive or not.

#235 ::: Stephen Frug ::: (view all by) ::: February 28, 2006, 05:24 PM:

One follow-up thought. Does anyone have any suggestions for political activism on this issue? The one thing that is slightly bizarre about this conversation is that (as several people have pointed out) everyone agrees that copyright is too long, and we're arguing about where it to be shortened to. But given the current power of corporations in the U.S., there doesn't seem to be any realistic hope for shortening this to any of the various proposals people have made. If anything, it'll just get worse within two decades, when Mickey threatens to slip out of copyright again. And it sounds like the situation is just as bad elsewhere as it is here. (In fact, isn't the WTO & like organizations doing their darndest to ensure that it is?)

So: any hope on this issue? Any place where even marginal gains might be possible, so as to provide a rallying base for future action?

#236 ::: P J Evans ::: (view all by) ::: February 28, 2006, 05:39 PM:

I found the Star Trek books I've read (Blish, mostly) disappointing

I was disappointed by Blish's versions also, but recommend Diane Duane's as having a close resemblance to the original in spirit. (I'm waiting to see how she handles the Federation-Romulan situation she left us with in the last one! The Big E was last seen heading across the Neutral Zone with Starfleet Command very unhappy with her Captain.)

#237 ::: Greg London ::: (view all by) ::: February 28, 2006, 07:05 PM:

Writing pays terribly. It always will, because it's at the plankton level of the food chain, and there's minimal opportunity for concentration. You can't fix this through copyright tweaking.

Graydon, that may very well be the most accurate and to-the-point assessment of the problem I've ever heard.

If authors are poor with Life-Plus-70-Freaking-Year terms, it's not like making terms longer will make them richer. I mean, cripes almighty, they're already dead at that point.

And OG appears stuck on the idea that I'm "devaluing" writers, relating to them as if they're "cogs in a machine", and well, I've lost track of all the other similarly weighted phrases, but the economic condition of writing is that it really is at the plankton level. and OG keeps making what seem to be emotionally loaded phrases to either deny that fact or attempt to cover it up.

It isn't "devaluing" writers to call it like it is. 80% of writers in the UK make less than $35,000 a year. That's plankton. and most of those writers would probably be easily interchangable with each other.

like fixing the dust bowl of the 1930 by artifically inflating the price farmers get for their corn. It's expensive, a waste of money, and it don't fix the problem.

#238 ::: Greg London ::: (view all by) ::: February 28, 2006, 07:09 PM:

From abi's link, Twain estimated that his entire investment was around $150,000; his biographer A.B. Paine set the figure closer to $190,000, and William Dean Howells estimated $300,000

Holy crap, what is a quarter million dollars in 1900 translate into 2006 dollars when adjusted for inflation and all that? Is it safe to say that Twain had some cha-ching? And still all that on 28+14 copyright terms?

#239 ::: Greg London ::: (view all by) ::: February 28, 2006, 07:42 PM:

my writing is a large part of my old-age investment planning.

Charlie, no offence, but I don't think copyright has any business operating as a retirement plan for anyone. I think someone who writes a story or records a song or makes a movie when they are 20 years old will have far more than recouped their time and investment after 40 years, or if they haven't, then their work probably wasn't worth it in the first place.

Yes, there are probably a slew of authors who are planning on using copyright as their retirement plan, and they may need to be dealt with if terms were ever shortened.

But it keeps coming back to the idea of competition. If another writer will write for a 40 year term and figures out a way to put money into a 401k, why pay a life-plus-N term?

And I don't think your copyright-renewal idea is really addressing "the orphan works problem, and the wreckage and wasteland that 70 year post-mortem copyrights make out of our cultural heritage". If a work is not worth renewing on, then letting it go public domain does not fix the "wasteland" problem. The "wasteland" problem is specifically due to works such as Mickey-friggen-Mouse that is worth BILLIONS, and Disney refuses to let it go public domain because they don't want to give up the money. On a smaller scale if you have a story that is still worth something in 150 years, you would renew the copyright and no one can use it. If it isn't worth anything, and so the author doesn't renew the copyright, then how exactly is that giving anything of any real value to the public domain?

What you are proposing, essentially, is to shorten copyright terms for works that no one will pay for and for authors too stupid or forgetful to renew their rights. And it looks like its still a wasteland to me, a large, featureless desert, but now you dropped in a few old, non-working appliances into the sand.

In short, you're saying that yes, there is a wasteland problem because copyrights are too long, and you seem to be attempting to fix it by changing copyright so that someone else will end up giving up their copyrights, but not you.

"those authors who currently angst over any attempt to cut "life plus seventy" back because they're worried about their grandchildren can sleep easy."

How many jobs exist on planet earth where if a person performs a service, they will get paid an annual sum of money, which will then pass to their children, their grand children, and their great grandchildren? Copyright is the only one I know of. And the fact that NO OTHER job pays that sort of wage is just sending up this massive red flag for me that something is off kilter.

In my opinion, this goes back to writers being paid poorly, and attempting to compensate for it by at least making sure they get paid poorly for 150 years.

#240 ::: Lisa Spangenberg ::: (view all by) ::: February 28, 2006, 07:54 PM:

I feel quite strongly that individual copyright should be lifetime plus at least 25 years, so that writers who die before they should and who have dependents can leave something to their heirs.

Writers are grossly underpaid, with the exception of maybe a very very small percent of Stephen King type folk, and I'm not saying their overpaid, just that most don't get paid enough.

And most fiction writers, writing full time, have no retirement benefits or health insurance.

Keep in mind that an advance for a book that takes a year might be somewhere between 2K (really) to say 10 K for a number of writers, and that an awful lot of books don't earn out. That advance could be for a year or more of work.

#241 ::: Greg London ::: (view all by) ::: February 28, 2006, 08:06 PM:

Teresa wrote Mark Twain was one of the best-compensated authors of his century

Ah, good, so the $150,000 in 1900 money really was a bucket of money.

spare us from Hollywood and its terrifyingly huge pots of money. That's a level of problem not-yet-published authors can only wish they had.

heh heh.

writers would just get more assiduous and ingenious about filing the serial numbers off plundered material.

(chuckle)

The DMCA anti-circumvention clause killed off all fair use copying. Hollywood has wanted this since the VCR. Some quotes from Jack Valenti while he was president of the MPAA.

1982, "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

2003 "If you buy a DVD you have a copy. If you want a backup copy you buy another one."

Oh, and I forgot to mention this little gold nugget:

“Lehman was the Committee's principal legal adviser in the drafting of the 1976 Copyright Act,”

This was from Lehman's own words on his new company's website here: http://www.iipi.org/about/board.htm#Lehman
I just discovered that for some reason, the link no longer works. Anyone backup the internet?

But the short of it is that Lehman was basically Wormtongue in Congress's ear back in 1976, advising them to change copyright terms from fixed 28+28 terms to Life-Plus-50 terms. He's been Disney's little sleeper cell from the beginning.

#242 ::: Greg London ::: (view all by) ::: February 28, 2006, 08:19 PM:

"If I were lucky enough to be that popular, I'd hate to live to see that happen to my world. I'm so glad copyright doesn't expire while I'm alive."

so, we're designing copyright law, which is intend to "promote the progress of sciences and useful arts", by reacting to the angst of a population of unpublished (or small published) writers? Does this angst occur in all writers? All unpublished writers?

Is there a sufficient number of angst-free writers that would be willing to Promote the Progress for a 40 year term, even if it meant they might still be alive when their work enters the Public Domain?

The story of the writer who sends off his manuscript/screenplay and then sees it published under a different name is well entrenched. I've known people who refuse to join workshops because they fear their work will be stolen. I can't exactly use "Oooh, eek" as an argument against hiding in a hole.

The completely neurotic should probably avoid writing as a career. There's a good bit of advice I use when I'm buying or selling stocks: if it will keep you up at night, dump that puppy. If you're trying to calm the fears of totally neurotic people through copyright law, then, well, actually, that would fit with the current Life-Plus-70 terms, the total iron-fisted monopoly that the DMCA grants copyright holders, and the like.

It still sucks, and it totally fails to Promote Progress of the Useful Arts by feeding good works into the Public Domain, but hey, all the neurotic writers can worry about something other than seeing someone put a loin cloth on their Wookie.

That will give them more time to collect and categorize their urine, for example.

#243 ::: Greg London ::: (view all by) ::: February 28, 2006, 08:23 PM:

Writers, how would you feel if anyone were allowed to make a film of your book for a statutorily determined percentage of the box office receipts, with no input from you?

Tim, you're proposing only half the situation. The other half would be that you, the writer, could then take the film that Hollywood created, and use the same COMPULSORARY LICENSE to create a derived version and fix all the stuff you dont like and release it on your own DVD as the "author's blessed version". And you only have to pay the original movie maker 5 cents per DVD sold, and they can't stop you.

Yeah, sure, it sucks when you only present the first half. But compulsorary licenses work in every direction, not just against you.

I haven't decided if the government could set up the percentages for every derivative of every type of medium converted to every other type of medium, but it might be possible....

#244 ::: Greg London ::: (view all by) ::: February 28, 2006, 08:26 PM:

which Teresa could beat like a rented gong for countless reasons with every lobe of her brain tied behind her back

(cough) (laugh) (snort) (CHOKE) (laugh) (gag) (laugh) (COUGH)

Oh my dog, man, you're killing me. I'm still hacking from that one...

#245 ::: Greg London ::: (view all by) ::: February 28, 2006, 08:29 PM:

To all the folks who are presenting the scenario where you slave over a book and are then tempted by the lure of Hollywood and must make the decision between selling out and or maintaining artistic integrity:

Give me a break. If you're so damn good at writing, and you know how your book should look on the big screen, WRITE YOUR OWN DAMN SCREENPLAY. And here's the bonus: It too is protected by copyright. So there isn't anything preventing you from taking that pullitzer winning novel and turning it into the perfect, academy award winning movie.

Except you.

#246 ::: Marilee ::: (view all by) ::: February 28, 2006, 09:17 PM:

The best Star Trek book is How Much for Just the Planet. I finally found enough of them for us to read in the SF book group.

#247 ::: Tim Walters ::: (view all by) ::: February 28, 2006, 09:27 PM:

The other half would be that you, the writer, could then take the film that Hollywood created, and use the same COMPULSORARY LICENSE to create a derived version and fix all the stuff you dont like and release it on your own DVD as the "author's blessed version". And you only have to pay the original movie maker 5 cents per DVD sold, and they can't stop you.

No, you couldn't. A compulsory license doesn't cover sampling, only the underlying composition. So I could make a version of a hit movie using the same script, but I would have to create all the footage. Guess which is going to be more popular--the version with a full budget and professional acting and directing, or my home movie?

The same applies to songwriting. It's much easier for Celine Dion to make money from my song than it is for me to make money from hers.

Compulsory licenses for sampling have been proposed--and I think they're a good idea--but they couldn't work the way you describe. If they did, I could just copy a hit movie's DVD, add a special Tim Walters And His Handpuppet commentary that you could find with a special remote control button combination, and sell it right next to the original, paying only five cents a DVD. That's nothing but legalized piracy.

Yeah, sure, it sucks when you only present the first half.

As I said upthread, I'm not against compulsory licensing, I'm for it. But not because it benefits creators--a price cap is good for the buyer, not the seller. (Note that the government isn't setting the price, they're setting a cap. Nothing stops Celine Dion from offering me one cent per copy instead of nine cents* per copy. But even if I have a surefire hit, I can't charge her more than nine cents a copy.)

Compulsory licensing is beneficial to the public, not to artists. I don't see any point in sugarcoating that. That said, as long as the compulsory license fee is higher than the typical value of the license (which, judging by how often it gets negotiated down, is probably true most of the time) only the most successful artists get penalized.

*Actual amount probably not nine cents, but it's something like that.

#248 ::: Greg London ::: (view all by) ::: February 28, 2006, 09:28 PM:

Lenora:

(1)
Why 40 years?

why 14+14? Why 28+14? why 28+28? why Life-Plus-50? why Life-Plus-70?

None of them have any hard and fast explanation to them. You can't say "28+14 is OK, but 28+15 is straight out crazy". And I find your fascination with this question just a little obsessive, as if you are looking for some trapdoor, but that's just me. Anyway, here goes:

Over here in Bounty Hunters, I have a section where I propose setting the terms to 40 years and give a general approach to why I picked 40.

There are a couple of different reasons.

First, 40 years is long enough that "waiting it out" isn't an option. i.e. a publisher who is in the business of publishing new material can't wait 40 years for the work to pass into the public domain and then publish without paying the author. That just isn't a workable business plan. If you're in the business of publishing public domain works, that's something else. But for publishers looking for new works, 40 years means they have to pay the author if they want to be the first to publish it. waiting it out isn't an option.

In addition to the "wait it out" concept, it is also long enough time to let the original author "translate to all mediums". 40 years should be long enough for the original author to convert his work into every possible medium he wants. novels, movies, TV shows, merchandising, radio, book on tape, DVD sales/rentals, you name it. 40 years should be far long enough that the great majority of authors who are capable of creating a work that could translate into all these mediums, would have enough time to do it.

Hitchhiker's guide was one of the slowest that I know of, the radio show started in 1978, and the movie didn't come up until 2005, which is a full 27 years. But I believe there were attempts much earlier to convert it into a movie, but they got hung up for logistical reasons. It wasn't that they didn't want to make a movie, things just happened to go against it.

I'm sure there may be some oddball case of a book that was written by someone and was turned into a movie 50 or 100 or whatever years later. But copyright isn't intended to cover every possible worst case scenario. It is intended to cover the majority of the bell curve.

most importantly, I think that 40 years more than satisfies the "compensation for services rendered". Whatever amount of time and energy a writer put into their book, if they can't get fair compensation after 40 years, they shouldn't be writers.

In other words, I think that 40 years is far more than enough for an author to get paid for his time and energy (no it won't let his great=grandchildren buy a porsche, but screw them), and it is far more than enough for an author to translate his work into the various mediums, and is far more than enough to prevent others from simply waiting for the work to pass into public domain.

Does that answer your question?

No, I don't have a specific, algebraic formula that spat out the number 40. But I think 40 years is actually longer than whatever the algebraic, minimum break-even point would be. i.e. I think people could actually successfully write if terms were shorter than 40 years, but I believe that 40 years adds sufficient buffer that it covers 90% or more of the bell curve.

But it is based heavily on historical trends. Mark Twain apparently did pretty damn good as an author on 28+14 year terms. And I've yet to hear any compelling evidence that the economic space-time continuum has shifted so much that what worked then can't possibly work now.

So, in a way, it was an answer, you just didn't hear it that way. Why 40 years? because history shows that it should be more than enough. Because it worked well for Mark Twain and it should work equally well now.

If the only "answer" you'll accept involves calculus, I'm afraid you're out of luck.

(2)
The question was why should the original creator, while alive, not receieve further payment for their creative work, even though someone else is getting paid for their book?

Good grief. If you don't see the logical conclusion to the argument behind that question, I don't know what to tell you. If you need me to answer it, then you don't see the ramifications of what you're asking. But you keep coming back, asking the same question until you get the response you deem to be something you can label as a proper "answer".

You beg the question from a logical point of view, and will not accept my respons that points out that your question is loaded or the flaws in the question. No. I must directly answer the question, no matter how many logical flaws it introduces into the discussion.

OK. here goes. my direct answer. Since this is getting confusing, I'm going to rephrase your question and give names to the various players so I don't have to use "he" for everyone.

Alice writes a book. Copyright terms are set to 40 years. Bob comes along at 41 years and publishes her book, making himself a chunk of money. Because the work is public domain, Bob does not have to pay Alice any royalties.

Question: Why should Alice not recieve further payment for her book when Bob is making money off of it?

Answer: Because Alice already got paid more than enough for her book already. She had 40 years to sell it and make whatever money she could make on it. Alice has been paid in full.

The levels of misdirection in this question are so many that it boggles the mind.

The government created copyright to create an incentive for writers to write so that the end result would promote the progress of the useful arts. This means that whatever time and energy and so on that Alice put into creating her book, she got paid for that by getting a 40 year monopoly on her work and being able to sell it for whatever price she wants, assuming she can find a buyer willing to pay for it. (like art selling for thousands of dollars for a single painting.) After 40 years, Alice has been paid for her time and energy (or she should change careers), and the work enters the PUBLIC DOMAIN.

This is the thing that people seem to miss. PROGRESS IN THE USEFUL ARTS actually occurs when the work ENTERS THE PUBLIC DOMAIN. Until that point, it isn't scientific or artistic Progress, it is Commerce.

With Alice paid in full, and with the work now in the public domain, and progress promoted, Bob comes along and uses that work and makes some money off of it.

That is the whole reason the government created copyright in the first place. so people could benefit and even profit from from public domain works. And the system works by giving authors a chunk of time to make back the time and effort they put into creating the work in the first place.

And yes, your question is a slippery slope, because it works for any and all values of N. You used 40 and 41, but could just as easily be any other value.

Q: Bob makes money after 41 years, why not Alice?
A: well, ok, that's not fair for alice, so lets exxtend copyright to 41 years.
Q: Bob makes money after 42 years, but not alice. Why not?
A: Well, OK, you're right, Alice should make money if Bob is making money, we should change it to 42 years.

While(1) {n=n+1;}


#249 ::: j h woodyatt ::: (view all by) ::: February 28, 2006, 09:36 PM:

Greg London writes: "...WRITE YOUR OWN DAMN SCREENPLAY."

And stop writing books, fergawdzakes. Please.

You know what? Just stop writing. Put down the keyboard and back away from the screen. Now. Not tomorrow or next week. Right this second.

In fact— don't stop there.

Why not kill yourself? Jump off a skyscraper; shoot yourself in the brain stem; drink a glass of hemlock— I don't care. Just pick an effective method. Slit the neck, you idiot, the neck. While you're at it, make sure to leave your corpse someplace easy to clean up.

If you keep helping those Damned People with their evil project to build the dystopia of Richard Stallman's Right To Read, I'm going to be irresistably tempted to teach my grandchildren to build a time machine and use it to go back and murder you in your beds to prevent it all from happening.

Right To Read was supposed to be just a bad sci-fi story. But you couldn't leave well-enough alone. Not you, no. Never a precious, unique and beautiful snowflake like you.

(Pardon my bitterness, please. I should have just quoted Teresa, who wrote, "Oooh, eek, spare us from Hollywood and its terrifyingly huge [laugh! -jhw] pots of money," and went: yeah, what she said. Unpublished writers. Why must they make me look like even more of an idiot, by association with them, than I already am?)

#250 ::: Greg London ::: (view all by) ::: February 28, 2006, 09:36 PM:

Since this is a sci-fi friendly crowd, I'll pose this scenario/question:

In 2007, scientist have a breakthrough with telomorase therapy, DNA mixing, and a bunch of what is essentially voodoo to the layman. The result is that people no longer grow old. They can get sick and die or get run over by a bus and die, but if they can stay healthy and don't play in the freeway, they can live forever. They can be immortal.

Now, given that scenario, what is a fair duration for copyright terms?

I'm taking on Lenora's approach of refusing to accept any answer other than a direct answer. You cannot argue against the scenario. If you have qualms about it, if you believe it is a rigged sitation, an unfair situation, do not complain to me. Just answer the question.

Current legislation is set to "70 years after the author's death". If authors never die, works never go into the Public Domain. And by the constitution's demand, copyright can only exist to Promote Progress in teh Useful Arts.

So, given immortality, how long do we set copyright terms to?

keep it the current 70 years after death, and hope authors get hit by a convoy of trucks?

Set it to some fixed duration of N years? If so for what value of N?

something else?

Have at it.


#251 ::: Greg London ::: (view all by) ::: February 28, 2006, 09:53 PM:

No, you couldn't. A compulsory license doesn't cover sampling, only the underlying composition.

Tim, we're talking about hypothetical compulsorary licenses which don't even exist. On what basis did you get to limit it to "underlying composition"?

I was assuming a hypothetical scenario that I think Patrick mentioned where there are compulsorary licenses for literally everythign you could possibly imagine. Perhaps that's not what Patrick was describing, but it's what I was thinking of.

If you can get paradigm shift in the US population that is so friggen big that you can actually force compulsory licenses into law that allow "underlying compositions" from any medium to any other medium, even at the protests of every major Copyright-based corporation, then by god man, if you had that sort of firepower behind you, fire for effect.

If you want to limit your hypothetical, to "underlying composition" only, then I would say to you that I would probably oppose such a change, because, as you point out, it only works one way.

#252 ::: Greg London ::: (view all by) ::: February 28, 2006, 10:02 PM:

I just wrote:

This was from Lehman's own words on his new company's website here:

http://www.iipi.org/about/board.htm#Lehman

I just discovered that for some reason, the link no longer works. Anyone backup the internet?

No, seriously. is there a way to get a cached version of this or something? I actually need it to support some quotes in Bounty Hunters.

#253 ::: j h woodyatt ::: (view all by) ::: February 28, 2006, 10:11 PM:

The Google Cache is your friend. I've got a web archive of the cache in case it expires. Tell me where to send it.

#254 ::: P J Evans ::: (view all by) ::: February 28, 2006, 10:25 PM:

j h woodyatt

ROFL! (Yeah, I can see them trying it, but it's still a marvellously funny post.)

#255 ::: Tim Walters ::: (view all by) ::: February 28, 2006, 10:29 PM:

Tim, we're talking about hypothetical compulsorary licenses which don't even exist.

Speak for yourself! In the comment to which you responded, all I was trying to do was gently hint that, since writers aren't lining up to demand an equivalent to music's compulsory licensing scheme, maybe that scheme isn't such a great deal for writers.

If you want to limit your hypothetical, to "underlying composition" only, then I would say to you that I would probably oppose such a change, because, as you point out, it only works one way.

It only works one way anyway. Without the ability to create new footage of equivalent quality, your options for making the "writer's approved" version are very limited.

#256 ::: Christopher Davis ::: (view all by) ::: February 28, 2006, 10:55 PM:

Greg: orphan works are, in fact, a real problem. An Eldred or Stross style registration requirement, which guarantees that any given work will be either (a) clearly in the public domain or (b) clearly under copyright with a defined contact point is still an improvement over what we have now, in which there are gazillions of things in category (c) owned by some great-grandniece who will cost more to find than any imaginable license fee would cost.

It may not be your Perfect World, but it's still an improvement over the current situation.

#257 ::: Bruce Baugh ::: (view all by) ::: February 28, 2006, 11:04 PM:

Tim, I think that there are two things in the way of more writers saying "yeah, an ASCAP-style mandatory licensing would work okay for me". Well, three.

#1. Not having the thought yet. It's not intuitively obvious to everyone that the ASCAP deal might be a good idea for prose and poetry, or even that the ASCAP thing exists at all. None of us can know everything and draw every interesting inference from it, after all.

#2. Wondering, "What's in it for me?" Does anyone have a schedule of rates for the song licensing, and know how much of that ends up in artists' hands?

#3. Wondering, "But how would the details of my medium be handled?", and wanting to see some signs that it wouldn't turn into a nasty loophole trap.

Among those who've had or heard of the idea, I suspect, the most common reaction is probably just, "Might be a good idea, but I need to know more."

And Christopher Davis is dead on right about the problem of orphan works. It is huge, affects many fields, and will only get worse for the foreseeable future.

#258 ::: Lenora Rose ::: (view all by) ::: March 01, 2006, 12:04 AM:

Greg, I wasn't looking for a perfect algebraic formula. I was looking for something with more substance than "It's a number I thought of, and I'm sticking with it against everything." Which, sorry, was exactly what you seemed to be saying.

I'm still not sure why 40 and not 56, since 56 worked for 66 years before Disney et al came in and changed it (has anyone here done the research on how the change between 28+14 and 28+28 came to be, by hwat reasoning and in whose interest? If not, I can do it tomorrow, but it's getting late for tonight), but I accept that you did put thought into it, thought that was not, perhaps, as apparant as you seemed to feel it was.

I was not in fact harping on the number thing because it's of deep importance in itself, but because your apparant inability to answer seemed to point to a major flaw in your thinking. If the number was chosen entirely arbitrarily, pulled out of a hat, then why should we trust that the rest of what you were saying was actually reasoned out and not equally arbitrary? The refusal to answer a basic question is frequently used by politicians and lobbyists and public speakers of all stripes to conceal a point that either the audience they're tryign to convert won't like or that they themselves don't know and hope nobody else will realise it.

And yes, your question is a slippery slope, because it works for any and all values of N. You used 40 and 41, but could just as easily be any other value.

Except that I emphasized *to the creator's death*. In fact, I couldn't have emphasized it more except by insulting your intelligence, which I'd rather not do. The question of whether the original creator should be compensated for their work is a different one from the question of whether their heirs should. You can't say the argument works out for "+N" regardless of value when a clear cap was placed on it. As I said, that argument only stands when dealing with the original creator; which, until your SF scenario, means a distinctly finite span.

The "Insurance" argument that deals with heirs and/or publishing companies, and suggests an extension slightly past life, is a *different* argument.

As for your SF Scenario: If we do receive immortality, I think the Public Domain will not be the first of our worries. I think ALL our laws would end up having to be rewritten, not just that one. All our culture and ways of life currently are so predicated on the fact that we have a finite span that the problems have not yet begun to be imagined. We'd have to change our minds on everything, not just on how long to keep works copyrighted.

Still, yes, to answer the question directly, my natural inclination is to go for a length of time roughly equivalent to that of a working author right before the advent of immortality: since writers tend to start getting seriously published in their 30s, and the current presumed lifespan is somewhere between 80-100, I'd be saying roughly 70 years (+- at least 10 years either way), with a caveat that if the author should die, the copyright should expire at the end of the initial 70 year span, or at 20 years past death, whichever is SHORTER. (So, should they die 10 years after writing a book, yes, the total copyright would end up only 30 years long.) Why the second condition? For the same reason I currentl feel life +N should be in the vicinity of 15 -20 years. Because the "insurance for dependants / Publisher's exclusivity" argument kicks in, and after 20 years, the dependants should be old enough to let go, and the publisher should have recouped.

(And why is the publisher different from the author in deserving only a limited duration to recoup? Well, because the publisher is not the creator. They are different animals in fundamental ways.)

But then, I've said all along that while I have a generally favoured time frame, I'd be willing to flex if something came along to demand it. Immortality is a pretty huge "something".

Re: The infinitely renewable copyright:
"What you are proposing, essentially, is to shorten copyright terms for works that no one will pay for and for authors too stupid or forgetful to renew their rights. And it looks like its still a wasteland to me, a large, featureless desert, but now you dropped in a few old, non-working appliances into the sand."

This is a pretty good analogy for why, after initially thinking the "Infinitely renewable, but you have to care enough to do the renewal" idea sounded fabulous, I changed my mind and went back to thinking Life Plus N (Where N is a number between 5 and 20, with 15 loosely but arbitrarily favoured -- but definitely not 50, or 70, or, ugh, more than *that*).

Someone (Sorry, I missed who) asked why we're debating these theoretical numbers so much when it looks like copyright is only going to get longer unless we do concentrated lobbying as one.

Well, because we can't do concentrated lobbying as one if we all want different results. or maybe we can, but we can then be easily turned against one another either on the way or after victory. At which point, the group we oppose can say, "See, they don't have an answer. They're saying it's broken but not how to fix it."

Or maybe we should all come in demanding the decrease, and set up a forum for deciding how long after the fact. Maybe we should be charging in right here, right now, crying "Give me 56 or give me Death!"

#259 ::: Tim Walters ::: (view all by) ::: March 01, 2006, 02:37 AM:

Bruce: Fair enough. I hadn't thought of it before this discussion myself.

It's hard to say exactly what an ASCAP-style licensing scheme for literature would look like, because the concept of "performance" is so different. A song like "Yesterday" has been recorded literally thousands of times, but even the most popular books don't usually get made into films more than a few times (at least until they become a classic on the level of Le Morte d'Arthur). Maybe the compulsory license could cover sequels, comic books, action figures?

I have thought of one benefit of the compulsory license system for songwriters since my last post: it reduces the overhead of small transactions. If you want to cover a song on your indie release, you don't need to track down the author, get permission, and negotiate a deal. You just contact the Harry Fox Agency (speaking of monopoly rackets), pay the compulsory license, and it goes to the author minus HFA's cut and the author's publisher's cut. This is also a public benefit, since it leads to more cover versions being available (assuming that's a good thing). From the songwriter's point of view, is this benefit worth having the royalty cap? Beats me.

Here are the rates. I was pretty close: 9.1 cents for songs under five minutes.

And Christopher Davis is dead on right about the problem of orphan works.

I agree completely. I'm still thinking through exactly how I would fix copyright, but my first impulse is to separate the issues of copying the original and making derivative works. I would probably be willing to let authors hold on to the former right indefinitely, as long as they maintained their copyright and kept the work available at a reasonable (possibly statutorily determined) price. Unlike Greg, I consider this progress in the useful arts. I would make authors give up the right to prevent derivative works much earlier than that (no numbers, please!).

#260 ::: OG ::: (view all by) ::: March 01, 2006, 08:44 AM:

No, Greg, it's once again that "low bidder" bringing in associations you apparently don't intend, in this case that the qualifications to compete in a bid are very, very low. You say your background is in aerospace; the entry requirements are quite high there. For me, it's the equivalent of saying everyone with a word processor is equally qualified to fill the shelves and past performance cannot be considered in establishing qualification.

IOW, that I think you're using phrases that carry an emotional weight you don't intend, and that I think you're ignoring the emotional response your proposal will trigger across a more general population. If it reached the point of trying to gather grassroots support, I think your proposal would be in trouble largely because of those inexpert emotional responses. I never intended to get any deeper than to suggest that you reconsider how you're making your argument and to mention why I think your argument wouldn't be effective to the people I've spoken with, what issues they care deeply about that I think you're not addressing.

As I've said before, I do undertand the economics of writing, and that was the factor that led me to decide not to pursue it professionally. (I believe it was Misty Lackey who said there was little difference in her income between writing and working the Avis counter.) The economics matter little to most people I've spoken with; for the most part, they're already successful professionals who want to pursue publication because that's how original fiction is distributed. They have other reasons for wanting a lifetime copyright, some of which are, yes, pure paranoia.

I now seem to be in the position of having their issues and opinions attributed to me because I've tried to pass them on. I'm an observer who sometimes attempts to bust myths when I come across them. If I ask something silly or mention a a (to the experts) nonsensical assertion I've picked up from a conversation somewhere, it's usually to gather new arguments against it.

#261 ::: OG ::: (view all by) ::: March 01, 2006, 08:55 AM:

Oh, and:

The completely neurotic should probably avoid writing as a career.

Probably so. I mostly just try to keep them from infecting others with their neurosis.

#262 ::: Vicki ::: (view all by) ::: March 01, 2006, 09:47 AM:

For someone to tell Charlie Stross that he should be using a different model for planning for his retirement is about as fair and reasonable as telling someone who has been buying into an annuity that they should be making retirement planning on the assumption that their annuity will be nationalized, or telling a former Enron employee that it's unreasonable for them to have made retirement plans based on their pension scheme.

All three of those people have made/been making reasonable economic plans based on the situation at the time. Why is the one whose work may still be producing pleasure fifty years from now the one whose plans are unreasonable?

#263 ::: shane ::: (view all by) ::: March 01, 2006, 09:55 AM:

Much is written upthread about 'starving authors' being being strung along for absolute minimum remuneration by an uncaring public because 'hey, there'll always be some other poor fool willing to write for us'. This seems to have been prompted by Greg's use of the loaded phrase "lowest bidder".

But look at it the other way. People like stories. We like good, new stories; Always have and always will. Ergo we always have and we always will find ways to encourage good writers to write, and to reward them for doing so, whether by copyright, lump sums, tenure, wealthy patronage or some other system I haven't thought of yet.

Likewise, we need help *finding* the good stuff. Publishers and reviewers are in no more danger of going extinct than are creators.

These ideas originally (!!) from Eric Flint at Baen's Free Library, which I expect you're all familiar with. If not, have a quick read. Note particularly the bit where Eric shows how much extra money he made by giving books away.

#264 ::: Jo Walton ::: (view all by) ::: March 01, 2006, 10:24 AM:

Tim: Authors need the right to say no to a movie.

Teresa: Money, even enough money to pay off the mortgage, isn't everything. As long as I can eat, not having a travesty of something I care about means a lot more.

And let me repeat -- I'm in favour of copyright ending at death, to the point where I've tried to have that put in my will.

#265 ::: Lis Riba ::: (view all by) ::: March 01, 2006, 11:30 AM:

AJ Hall once made a marvelous distinction between copyright and what she calls droit d'auteur:

Copyright, in Western common law thinking, is essentially an economic right, in which the courts have sensibly avoided any questions of aesthetics in deciding whether a work does or does not qualify for protection. [...] Accordingly, copyright can be acquired and disposed of as a chose in action, and there is no necessary connection between the original author and the person able to control derivative uses of the work or to obtain economic benefit.

Droit d'auteur, while it is frequently translated as "copyright" when EU Directives are being discussed and implemented, is a much more complicated beast, with a lot of implications about the author's personal intellectual and emotional investment in the work. That's why the "moral rights" (right to be named as the author, right not to have the works of others falsely attributed to one, right not to have one's work subjected to derogatory treatment) may be waived, but cannot be alienated; they must be exercised personally by the author or his or her heirs.

Now, this was initially raised in a discussion about authors who oppose fanfiction for emotional reasons, but try to frame their objections in economic terms. But that can also apply to other derivative works, such as movies based on books.

Not every creator has that kind of emotional attachment to their work, but many do have visceral reactions against other people 'misusing' their work during their lifetime.
I think that is a hurdle that any potentially-feasible system will need to address in order to gain the support of creators.

#266 ::: Greg London ::: (view all by) ::: March 01, 2006, 11:30 AM:

Regarding: compulsorary licenses, copyright renewal schemes, etc.

These are nothing more than smoke and mirrors.

The problem is that the Public Domain has become a wasteland becase copyright terms for a 20 year old essentially last 150 years. And because works are now locked up for a century and a half, people are noticing just how difficult it is to Promote Progress and move forward with new ideas, new riffs, when one generation has essentially established a permanent monopoly on everything they've written or created.

So, people suggest Copyright Renewal Schemes, where works that no one is willing to pay for have their copyrights expire and enter the Public Domain. Wow. I'm impressed. That so takes care of the Public Domain wasteland problem. Or people suggest the idea of widening the idea of compulsorary licenses. Then, we can move forward with a metered, pay for every step, sort of progress. Yeah, that's great. But everyone keeps talking around the problem.

The problem is the Public Domain has become a wasteland because writers/creators/authors/artists and the corporations whom they work operate as a cartel when it comes to fixing the price of ever lengthening copyright terms.

While Mark Twain wrote knowing he'd have 28+14 years to collect on his writing, authors now get a 150 year monopoly. And people are surprised that the Public Domain is a wasteland? Public Domain is a great, wide highway that goes all the way back to the myths of ancient Greece and ends around 1930. Around 1930, the road runs off a cliff.

Now, writers are suggesting, hey, why don't we have compulsorary licenses so people can PAY to keep going forward. Yeah. sure. that's exactly what Public Domain is all about. Turn everything into a toll road. And other writers are suggesting, hey, lets take anything that isn't worth paying for and let that go into the Public Domain.

The problem is a barren Public Domain.

The cause of that problem is 150 years of copyright protection fixed by the cartel.

Suggestions to fix the problem without addressing the actual cause are playing games with smoke and mirrors. "Yes the Public Domain has become a barren wasteland. But don't ask me to let my work go Public Domain while I'm still alive. I couldn't bear so see my book go hollywood while I'm alive. Let's put Alice's work in the Public Domain instead. She's not using it."

cartel: a group of legally independent producers whose goal it is to fix prices, to limit supply and to limit competition.

Mark Twain wrote for a price of 28+14 years. A cartel of writers pushed the price of copyright to Life-Plus-70 years.

History shows it is possible for people to make a good living writing for much lower prices. And yet the cartel says it cannot be done. Disney is making 20 BILLION dollars a year in revenue, and they must keep raising prices to keep their precious Mouse as their own. And the smaller operators, the independent writers not working for Disney, go along with it, advocate for it, defend it, because well, it certainly doesn't hurt them to have the possibility of more money, does it?

The problem is a barren Public Domain.

The cause of that problem is 150 years of copyright protection fixed by the cartel.

Any proposal to fix the problem without actually addressing the cause, the ungodly long copyright terms, are simply framing the argument for the cartel.

If you're not willing to give anything of real substance up in terms of how long you hold copyright to your writings, then you are actually part of the cause of the problem.

#267 ::: Greg London ::: (view all by) ::: March 01, 2006, 11:59 AM:

Except that I emphasized *to the creator's death*.

Lenora, I had to look and I see that you did, in fact, emphasize that quite a bit in your very first post on this thread. Unfortunately, it was directed at Bryan.

In your second post on this thread, you addressed your post directly to me, but you don't actually mention anything at all about the "After 41 years, Bob can make money on Alice's work, but Alice doesn't". Well, maybe you did, but it got lost on me when you seemed focused on my demands that everyone worship me and my ideas.

In your third post on this thread, you ask me directly:

"If a book should, by some dumb luck, survive past 40 years, and in the 41st year of its miraculous in-print survival, *someone* is still making revenue off it, can you explain to me why that someone should be a publisher or a company alone, and not both publisher and original author, as it had been a single year before?"

So, while you stated "I emphasized *to the creator's death*. In fact, I couldn't have emphasized it more except by insulting your intelligence, which I'd rather not do.

You actually didn't mention that in your first question to me, you said it earlier in a post to bryan. And as for insulting my intelligence, well, I'll just say that, no, I do not demand anyone worship me.

As for your SF Scenario:......... I'd be saying roughly 70 years

and why 70 versus Mark Twains rather successful dealings with 28+14 years?

#268 ::: Greg London ::: (view all by) ::: March 01, 2006, 12:03 PM:

For someone to tell Charlie Stross that he should be using a different model for planning for his retirement...

Vicki, if you read my post, you'll see it starts out saying:

"I don't think copyright has any business operating as a retirement plan for anyone."

fundamentally, this is about figuring out how much the Public should pay writers. And I don't think the Public needs to build a retirement plan into Copyright. It's too high a price. Writers have been willing to write for much less.

#269 ::: Christopher Davis ::: (view all by) ::: March 01, 2006, 12:18 PM:

Greg: "The perfect is the enemy of the good." I think it's unequivocally clear that, under the current set of copyright terms, that clearing up the orphan works problem would increase both the set of public domain works and the set of works which one can attempt to license, by decreasing the set of works which are impossible to license because the rightsholders are unknown or unreachable.

Does it solve the Disney "use all those out of copyright stories to make movies, while making sure we never go out of copyright" problem? No. Does it solve the "who owns the rights to Walter Moudy's 'The Survivor' so it can be reprinted in an anthology?" problem? Yes. Is that, at least, a worthy step? I think so. Does that help give evidence of the lack of value of longer terms overall? I think so.

#270 ::: Christopher Davis ::: (view all by) ::: March 01, 2006, 12:21 PM:

Oh, and this?

A cartel of writers pushed the price of copyright to Life-Plus-70 years.

Damn, but that's a powerful cartel. I wonder why they haven't been able to do a better job at stopping big companies from making bad movies? Oh, right, the writers aren't the ones making up the cartel; the big companies are.

#271 ::: Clifton Royston ::: (view all by) ::: March 01, 2006, 12:39 PM:

Wow, Greg, cool down a little. Maybe you could take a look back up the thread and notice what proportion of the posts are coming from you. While I agree with some of your points (not necessarily the 40 year term which you insist on) your metaphorical voice volume has gotten stuck on "shout". At least that's the way it's coming across.

I don't know why this particular topic seems to do this to people. (You shoulda seen that other thread I was in...) At least nobody here is calling the reduce-copyrights side "wannabe thieves" or the equivalent. Maybe this is what the literate argue about now instead of abortion rights?

Personally, I think there are some excellent features of the current copyright law, and some bad ones. I think the "born copyrighted" principle is a good thing. I think the current terms are far too long, especially for corporations, and so do nearly everyone you are arguing with.

#272 ::: Avram ::: (view all by) ::: March 01, 2006, 01:48 PM:

Greg, about your post with the toll road metaphor, and how public domain is a highway -- those metaphors are like a thousand times better than the bounty hunter thing.

The toll road has lots of potential: Copyright past the creator's death is like a state building a new highway with toll booths to pay for it, and then continuing to charge tolls after the road's been paid for.

#273 ::: Avram ::: (view all by) ::: March 01, 2006, 02:02 PM:

Jo, I disagree with you about the desirability of authors having veto rights over adaptations and other derivative works. Strongly. Consider the table to have been banged in emphasis. (Cutlery-rattling level of banging, not pitcher-toppling.)

In exchange for giving up the right to veto possible movies of your works, you'd get the right to write stories derived from the works of others, without them having veto power over you. Lord of the Rings would be out there as mythology for people to play with.

#274 ::: Lenora Rose ::: (view all by) ::: March 01, 2006, 02:06 PM:

Greg: I've written six posts before this, all of which you've answered and thus appeared to be aware of. ("View All By" is a handy tool if you want to prove I did or didn't say something...)

My exact words in post four were:

It's not an argument for Life + N. The question was why should the original creator, while alive, not receieve further payment for their creative work, even though someone else is getting paid for their book? This argument, taken as I wrote it, not expanded to "The poor little children" or "the heirs" or anything else I DID NOT ADD BUT YOU READ ME AS ADDING, only carries through until the original creator is *dead*. And that question, without the additions you mentally put into it, remains a viable question. Why should a living author (Not their heirs, not their children, just the LIVING author) not recieve further recompense for a still-successful work? Not to denigrate the work of the publisher. They deserve their cut absolutely. But if they deserve their cut, why does the author (Again, not the heirs or estate or any other illusory body NOT the author him/herself) not deserve the same?

This being the post you answered with: And yes, your question is a slippery slope, because it works for any and all values of N. You used 40 and 41, but could just as easily be any other value.

which, in post six, I pointed out it could not be, since i'd said life.

Which you replied to by saying I'd never said within the lifetime of the author in anything said directly to you.

If you are going to go through the whole debate to this point to prove i did or didn't say anything, please go through the *whole* debate.


Why 70 years rather than Twain's time? I say immediately afterwards why: It's roughly equivalent to what the *working* lifetime of an author could be expected to be now, pre immortality. Since I believe that a copyright should last until the death of the author, and the number is directly extrapolated from the current anticipated expected lifetime of my own generation, it seems reasonable. If you're asking why i'm extrapolating for that piece of information and not from what Mark Twain did, I really do feel that the conditions of the early 21st century are the ones relevant to the early 21st century.

If you're asking why I argue for "Life" in the first place, well... you evidently did just try to read back through the posts.

As for this:"And as for insulting my intelligence, well, I'll just say that, no, I do not demand anyone worship me."

Perhaps in your hasty reading you missed one part of my response, so I'll repeat it, because I sincerely meant it: "Greg, I concede I lost my temper and wrote some inflammatory things. The first of the two things you excerpted was indeed unpardonably rude, and for that I apologize unreservedly. The second half of that paragraph, the bit you quoted, should have been cut, or never typed."

A cartel of writers pushed the price of copyright to Life-Plus-70 years.

We did? Then why is it that a cartel of writers can't draw it back to where they want it?

Greg, why do you keep insisting that it's all the authors' fault when all the authors here have conceded that current terms are too long and benefit only corporations?

It really is looking like you feel that anyone arguing for Life, or Life + 10, or Life + Extensible-as-long-as-it's-paid-for, or anything at all, is seen by you as arguing only for the current system to stay as it is. You no sooner concede that it's otherwise than you go back to lumping us in with Disney as part of a cartel and a plot.


So does anyone yet know why copyright extended from 28+14 to 28+28? Lunch is coming up, I'll see if I can see what prompted it.

#275 ::: Tim Walters ::: (view all by) ::: March 01, 2006, 02:19 PM:

The problem is a barren Public Domain.

If a work were guaranteed to be available at a reasonable price, and the public were guaranteed the ability to make derivative works from it after a short period of time and a generous interpretation of fair use starting from day one, what would be gained by placing it in the public domain?

That's not a rhetorical question; I'm really asking. Because a concrete answer to it is the only thing that could justify your all-or-nothing stance.

I have no problem with a 40-year fixed term. For that matter, I have no problem with a 28-year fixed term. But neither of those things is going to happen, whereas a compromise that guaranteed the public interest without depriving authors of their revenue stream might be an easier sell. It might even be objectively better; the current system is borked, but that doesn't imply that the old way was optimal.

#276 ::: Alexx Kay ::: (view all by) ::: March 01, 2006, 02:48 PM:

OG wrote: Retelling from the original source material is not lifting entire paragraphs, or entire chapters, and doing a search/replace on the names.

What's your opinion on Andre Norton's _Huon of the Horn_? It's essentially a search/replace on grammar for a centuries-old legend. That's acknowledged in small print on the inside of the book. But on the front cover, it says "Andre Norton" in big letters, and she got the royalty checks.

#277 ::: Lenora Rose ::: (view all by) ::: March 01, 2006, 03:01 PM:

Okay, so far it seems the 1909 act was prompted by the ability to record music in a fixed form, and it seems to be consideration of the viable length of a musician's career that prompted the change to 28+28.

This article has the longest relevant quote re: the above.

This one has some further details, and Idiot that I am, i managed not to get the URL for the other two articles that seemed to ahve anything on *why* the revision was made at that time. Since all these were within the first two pages of Google on "Copyright Revision 1909", I'm sure they can still be tracked down.

None of them really address the 28+28 term in any depth, alas, they're too busy noticing the advent of recorded music and film, or commenting on the things that *failed* to be covered (Unpublished works seemed to be in a rather unclear state, assumed to be the author's work indefinitely -- ie even past death regardless -- and the fact that it didn't work with the Berne Convention was considered a major issue -- though that would have required them to go with Life + 50 SOONER)


And an interesting observation from a footnote of one of the other articles (Yes, one of the ones whose URL I missed, dagnabbit):

A 1961 Copyright Office study found that fewer than 15% of all registered copyrights were renewed. For books, the figure was even lower: 7%. See Barbara Ringer, "Study No. 31: Renewal of Copyright" (1960), reprinted in Library of Congress Copyright Office. Copyright law revision: Studies prepared for the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, United States Senate, Eighty-sixth Congress, first [-second] session. (Washington: U. S. Govt. Print. Off, 1961), p. 220.

The above suggests that actually, Charlie Stross's infinitely renewable copyright *would* free a great many works into the public domain. And I suspect that the low size of that number implies a great many of those hypothetical and nieces and nephews who sit on works forever in hopes of big bucks wouldn't do so if it meant *effort*.

#278 ::: Scott Lynch ::: (view all by) ::: March 01, 2006, 03:22 PM:

Avram, of what possible value would that trade be to Jo; a legal right she cares very deeply about, traded away for an opportunity that she has expressed no interest in?

#279 ::: Lis Riba ::: (view all by) ::: March 01, 2006, 03:23 PM:

Avram, regarding your table banged in emphasis, see my 11:30 comment above.

Copyright is a legal and economic tool, but there is also an emotional component to the creative process.

Back to fanfic (which I'm familiar with), certain authors tolerate or even encourage it in their universes.
Other authors ask their fans not to play in their sandbox with varying levels of emphasis.

Right now, copyright is used to enforce this, but since different creators draw the line in different places, it's really the wrong tool for the job.

This isn't a matter of concern over economic competition, it's an argument based on the author's emotional attachment to hir creation and the fans respect for the (living) creators' wishes.

And if copyright is about encouraging creativity, then we have to acknowledge that factor and take it into account somehow. Otherwise, you're not likely to win over those creators to your side of the debate.

#280 ::: Avram ::: (view all by) ::: March 01, 2006, 04:55 PM:

Scott, where are you getting that ("an opportunity that she has expressed no interest in") from? I even linked to an old Usenet article in which Jo complains about LotR not being available for people to play with.

Lis, I recognize that many authors may want to rule their creations hands-off for fanfic, I just don't think it's a right they ought to have. But how about this: If an author wants a no-fanfic rule for their book, fine, but they've got to have a big stamp on the front cover of the book saying so, so that people who have a strong fic-writing impulse will know better than to pick it up.

#281 ::: Marilee ::: (view all by) ::: March 01, 2006, 04:56 PM:

Greg London wrote: Since this is a sci-fi friendly crowd

but I think we're probably more of a science fiction friendly crowd, or an SF friendly crowd.

#282 ::: j h woodyatt ::: (view all by) ::: March 01, 2006, 05:58 PM:

I can't help my amusement at how this discussion has progressed.

I'm primarily familiar with the nature of the perennial copyrights rumble from my skirmishes in the Open Source Software™ theater of operations. There, the focus is typically less on the length of the term and the life of the author, but on the precise definition of fairness in "fair use" and what counts as copying and what counts as derivation. With software, we tend to get really mired in minutiae concerning the distinction between deriving and linking, since the two processes are not as easily distinguishable at some levels as copyright lawyers like to think. I could bore you all to tears with the weirdness that is embedded Linux, but I don't think it would help.

On the one hand, it's really weird hearing arguments from individual authors that one normally associates with the interests of powerful software companies with a network effect in place that basically allows them to use copyright to charge you rent on the space in your own brain. On the other hand, it's really amusing seeing an argument over term limits on copyrights. From the perspective of a computer software developer, copyrights are already basically infinite duration. Right now, nobody can imagine planning for the eventual passage of a useful piece of source code into the public domain when its copyright expires. Terms would have to be like twenty years or less before we would even notice them. I can't think of a useful piece of copyrighted original source code from twenty-plus years ago that I would want the freedom to copy, save maybe— those old Infocom Zork games. I want access to what was written and uploaded to the repository this afternoon, dammit!

For the record, I'm with Charlie Stross on this issue. It's probably that shared background in code mongering.

#283 ::: P J Evans ::: (view all by) ::: March 01, 2006, 06:06 PM:

j h woodyatt: I can't think of a useful piece of copyrighted original source code from twenty-plus years ago that I would want the freedom to copy

I'd have trouble even understanding the stuff I wrote twenty years ago - and I do have copies of a lot of it, since it was mostly for school. Biggest not-school piece: the 1984 Hugo ballot-counting program. In Pascal.

Zork, on the other hand ...

#284 ::: Greg London ::: (view all by) ::: March 01, 2006, 08:23 PM:

It really is looking like you feel that anyone arguing for Life, or Life + 10, or Life + Extensible-as-long-as-it's-paid-for, or anything at all, is seen by you as arguing only for the current system to stay as it is.

Yes, that's exactly how I feel. Because any Life-Plus-N will invariably have to choose some comfortably large value of N.

If a small value of N is chosen, it raises a number of concerns with authors, some of which have already been raised on this thread:

(1) An old, old author may have difficulty getting a publisher to pick up their book. "You're 80 years old? If you keel over tomorrow, we only get 5 years of copyright to publish your book ad then its public domain. No thanks."

(2) it provides monetary incentive to whack off an author. (not that this is my personal real concern, but it was raised by someone on this thread.)

(3) An older, more experienced writer actually can expect to see less compensation for his later books.

Some may argue that 3 doesn't matter, because the author is dead, but it depends on how you look at rewarding an author. I look at the term as a period to reward the author for their time and energy they put into creating their work. And that term should be long enough to compensate them. If the author dies, they should get the same amount of compensation and be able to will it to their heirs. Copyright should compensate as a bounty paid over time, and it doesn't matter if the person dies or not, the bounty should be paid. Life-Plus-N for small values of N means that the most experienced authors can't count on much of any compensation for their last, possibly best, works.

(4) for any value of N, large or small, a young teeny-bopper, with no experience, automatically gets much more compensation (a longer copyright term) than an older, more experienced writer. That's a major flaw for Life-Plus-N in general.

But given 1,2, and 3, and arguments based along similar themes, Life-Plus-N for small values of N, is problematic and the knee-jerk response to fix those problems will be to increase the value of N, rather than to change it to a fixed term not based on the author's death.

Which means that to argue for Life-Plus-N for small values of N is problematic from a compensation poitn of view and likely to revert to Life-Plus-N for large values of N.

Which means arguing for Life-Plus-N for small values of N isn't gonna happen.

The only reason Life-Plus-N has so much power has nothing to do with compensating authors for the value of their labor and everything to do with authors who simply can't bear even the thought of seeing someone other than them touch their work, use their characters, make their movie.

And that is nothing more than authors setting the price they want for their work, and since copyright only allows for one price, one term, it is effectively a cartel.

What is missing is competition. What is missing is any sense of what authors would write for, versus what they want to write for. I say enough authors would write for a 40 year term that Progress would be sufficiently Promoted. Sure, they may want more than that, but there is absolutely no mention in anyone's Life-Plus-N arguments of anything even remotely talking about a competitive rate.

And it's fine that authors want more, but that doesn't mean the the Public as a whole has to pay them that.

I'm sure bounty hunters would love getting $50,000 for a $10,000 job, but that doesn't mean we have to pay that much. If writers will write for $10,000 why are we paying $50,000?



#285 ::: Greg London ::: (view all by) ::: March 01, 2006, 08:36 PM:

j h woodyatt,

I've contributed to some open source projects, including a bunch of perl related stuff. I've also used the Creative-Commons-Attribution license for my Bounty Hunters paper. I am on the Creative Commons list and try to answer questions for people who want to use the licenses. And I'm blogging on www.somerightsreserved.com.

I'm familiar and have experience in open source and I get that terms are so long that for software they are effectively infinite. The copyright issues in software are more centered around the anti-circumvention clause of the DMCA, which prevents reverse engineering, and which prevents duplicating the functionality of someone else's software, among other things.

I also get from the Creative Commons channel that the length of copyright terms are as big a problem to artistic works as the DMCA is to software.

And when you look at copyright as compensation for an author's time and energy into creating a work, the idea of Life-Plus-70 becomes abundantly absurd.

But looking at copyright from the poitn of view of compensation also explains the problem with the DMCA, becuase the DMCA overcompensates authors the same way exceedingly long terms overcompensates authors.

And the only way to figure out what the fair price that would actually compensate authors would be to let competition set the price. Not let the biggest corporations say how much they WANT, but let everyone bid on how much they are WILLING to accept. Then set the price at or just above the WILLING price, and let free market competition settle things out.


#286 ::: Greg London ::: (view all by) ::: March 01, 2006, 08:46 PM:

if copyright is about encouraging creativity, then we have to acknowledge that factor and take it into account somehow. Otherwise, you're not likely to win over those creators to your side of the debate.

This is only a problem if no one will write unless their emotional baggage is written into copyright.

If authors exist who can make good copy, who don't need a therapist, and who have the stomach to see someone derive their work 40 years after they wrote it, then no, we don't need to take it into account.

if there is no competitition in the design of the process, then it becomes a sellers market simply because sellers set the price and buyers have to deal with it. Drop fair use because it allows parodies, and god forbid someone make fun of an author's work. Set terms to 200 years to make sure I'm good and dead before anyone can make a derivative.

And what happens to Progress in a seller's market? Bruce Lehman had the perfect quote: "it may now be technically feasible to "meter" each use of a copyrighted work, and to charge a user a fee for the use, the concept of fair use has no place" (in today's world).

Why were terms extended in 1998? because it was a sellers market and Disney set the price they wanted and bought the congressmen they needed to get it.

There is no competition in a sellers market, and the obscene level of rights and powers and terms granted authors is a direct outcome of that lack of competition.

#287 ::: Lis Riba ::: (view all by) ::: March 01, 2006, 08:56 PM:

Because any Life-Plus-N will invariably have to choose some comfortably large value of N.

Something I started thinking (and I'll confess I haven't read all the minutia in this thread):

What about Life OR N years, whichever lasts longer.

Most of a creator's early works will expire with the author, but anything published within N years of the author's death lasts for the full N years.

That provides incentives for publishers to buy material from older creator, because even if the creator expires 1 day after publication, they still get N years income from it.

#288 ::: rhandir ::: (view all by) ::: March 01, 2006, 09:04 PM:

Three cheers for Lis Riba,
who wrote:
What about Life OR N years, whichever lasts longer.
hip hip hoooray!

Depending on the magnitude of N this could be a really promising solution! Yay!

-r.

#289 ::: Lis Riba ::: (view all by) ::: March 01, 2006, 09:14 PM:

Poysonally, I was thinking something like 25. Enough to be worth it for those late-in-life or posthumous finds, while not so outrageous it would spawn orphans.

Also, the lifetime aspect might satisfy Jo, because if somebody did have a burning desire to make a movie/rpg/whatever out of her work, she wouldn't have to see it.

Of course, that still leaves open the question of corporated-owned group works, but that might be the flat rate.

[And my silly side is now wondering how the singularity would handle anything with a lifetime duration...]

#290 ::: Greg London ::: (view all by) ::: March 01, 2006, 11:06 PM:

What about Life OR N years, whichever lasts longer.

That would solve (1) and (3), but would not solve (2) or (4).

(2) killing an author still has its advantages, in your proposal. Say the author writes some really good stuff when he's 25. One of his best works. Once the author turns 50, he will be in a very weird limbo such that as long as he's alive, his works are protected by copyright, but if he died today, that great novel he wrote when he was 25 will become Public Domain by morning. That's a little creepy, even for me.

(4) Works written by a teeny bopper get a term equal to life-expectancy minus teen = 64 years. Works written by an experienced master will get only 25 years protection.

#291 ::: Greg London ::: (view all by) ::: March 01, 2006, 11:07 PM:

Hm, in case that isn't obvious, the above is assuming a value of 25 for N. doh.

#292 ::: Greg London ::: (view all by) ::: March 01, 2006, 11:09 PM:

that other bit should have said:

(4) Works written by a teeny bopper get a term equal to life-expectancy minus teen = 64 years. Works written by an experienced but 70-some year old master will get only 25 years protection.

Oh, man, my head....

#293 ::: Keir ::: (view all by) ::: March 02, 2006, 01:51 AM:

There are almost no Modern visual art works (where, by Modern visual art, I refer to Braque, van Doesburg, Kadinsky et al) in the public domain. Yet, despite that, there are no shortage of new, and innovative, ideas.

For instance, Piet Mondrian's works are still copyright, in the main. However, I can remember an art work in the Porirua art gallery that, while not a mere copy, was clearly quoting Mondrian's works.

There do not seem to be all that many copyright issues in the visual arts. I know that they do exist; a New Zealand artist sued a tee-shirt manufacturer over photos of their work. However, there do not appear to be nearly as many problems.

Am I correct that copyright issues turn up rarely in the visual high arts? What differs between the visual and literary arts? Is it possible to draw comparisons, or are the fields too different?

#294 ::: Clifton Royston ::: (view all by) ::: March 02, 2006, 02:20 AM:

The orphaned work problem is really bad for software too, because a vast preponderance of software is works-for-hire, copyright owned by some corporation. Corporations arise and die with breathtaking speed, often with no successors in interest. That means that their software is under copyright to nobody, and nobody can authorize its use.

Personal anecdote: The software company I worked for for several years through last fall is dissolving soon. I had to spend several months intermittently hectoring and pestering to make sure that at least its copyrights were formally transferred to the parent corporation, while there was still a legal authority to do so. I tried to put the whole thing out as open-source, but there's a customer who bought some limited rights to the software and is effectively vetoing the open source option for confused reasons. At least by passing title to another company, there is a possibility this can be revisited later. Otherwise... several years of work down the drain. It's not a master work of genius, but it would be nice to see it go to good use.

#295 ::: Tim Walters ::: (view all by) ::: March 02, 2006, 02:56 AM:

Am I correct that copyright issues turn up rarely in the visual high arts? What differs between the visual and literary arts?

I've always assumed that this is because the main reason for this is that the prestige arts of painting and sculpture (1) aren't susceptible to mass reproduction and (2) aren't controlled by large conglomerates. But I'm just guessing.

#296 ::: Jules ::: (view all by) ::: March 02, 2006, 03:23 AM:

A few comments and replies (I tried to post this last night, but the site wasn't working, so apologies if the discussion has moved on a little):

Greg: I just discovered that for some reason, the link no longer works. Anyone backup the internet?

Yep, these people did. That's a very useful site.

I have to say, I'm with Greg here. His analogies might not work very well, but the idea's sound: fixed terms are just more sensible. They're easier to plan for, they're the only practical way of avoiding the present situation where it is frequently unclear whether or not a work is public domain because it is difficult or impossible to find out the date of the author's death, and they're simply fairer (the present system is unfair to corporations, for whom the time starts immediately; the only practical way to remove this unfairness is to treat individual authors equally).

40 years works for me, too, although I'd use date of first publication rather than the date of content creation that some people have been assuming -- this again leaves less ambiguity for later users to have trouble with figuring whether a work is public domain or not.

Charlie suggests the 40 year limit is a problem for writers who wish to use their works to support them in retirement, but I'd say that any writer who has books that are still marketable 40 years after first publication has almost certainly had more than enough revenue during those 40 years to invest in a pension plan of some kind. It also seems to me the same is probably true of other kinds of work; music that is still popular after 40 years has generally sold very well in the intervening period, etc.

J H Woodyatt: I can't think of a useful piece of copyrighted original source code from twenty-plus years ago that I would want the freedom to copy, save maybe— those old Infocom Zork games.

In roughly a year, that'll include the earliest versions of Windows. There might be stuff in there that would be a boost for people like the WINE team.
And here's something somewhat different that you might find interesting. I'm surprised I haven't heard about it more than I have, as it is a rather ridiculous idea: Artist's Resale Right, a law that gives visual artists a right to a royalty from any resale of work that they originally created, as long as it is a limited edition of sufficient value.

#297 ::: Keir ::: (view all by) ::: March 02, 2006, 03:37 AM:

To Tim Walters: Yes. That, and the fact that there is a high value placed on the having the original, explain, for the most part the lack of direct infringements.

However, I am more interested in works that share very similar themes and concerns, like Colin McCahon and Ralph Hotere's works, for instance. Both work(ed) in very similar styles, and with many common themes.

I don't see that the immediate problem is that of not being able to download, say, Steamboat Willy. The issue is of being able to create works that use the ideas of Steamboat Willy.

Also, to someone talking about their copyright being looked at as a retirement plan. The obvious solution would be to leave the term for all already published works the same, and then decrease the term by a year from then on, until you hit the agreed final rate. It would take time, but it would be fair.

#298 ::: Bryan ::: (view all by) ::: March 02, 2006, 08:40 AM:

"I also get from the Creative Commons channel that the length of copyright terms are as big a problem to artistic works as the DMCA is to software."

and do you think that if copyright terms (and abolition of fair use rights currently) were not such a big problem that CC would have as big a success as it has.

#299 ::: rhandir ::: (view all by) ::: March 02, 2006, 08:58 AM:

Avram,
Jo Walton posted a response to this thread over in Open Thread 60. Link here

#300 ::: Greg London ::: (view all by) ::: March 02, 2006, 10:25 AM:

>if copyright terms (and abolition of fair use rights currently) were not such a big problem that CC would have as big a success as it has.

probably not.

I've been a supporter of the idea of Gift Economies for intellectual works for almost 20 years. It started out with Free Software and now includes Open Source Software and the Creative Commons spectrum. If you look at the history of how these ideas were sparked, it was because someone got really pissed off at how horrible the current copyright problem was around their pet project. Trying to actually fix the problem by fixing copyright law always turned out to be too difficult a task. The solution was to create Gift Economy licenses that did an end-run around the copyright problems. Licenses such as BSD and GNU-GPL instantly fix the problem with copyright terms for software are essentially infinite by allowing people to modify and use the works immediately. Creative Commons licenses also wanted to fix copyright term problems as well as the whole sampling/mixing/fair use problems that show up around copyrighted works by offering licenses that immeditately allowed people to sample/mix/use works.

I don't think copyright would ever be rewritten to completely satisfy Richard Stallman. Terms that would work for literary works will always be too long to make a difference for software.

But if copyright wasn't so bad right now, then the various gift economies that attempted to fix those problems may not have found the same number of followers and contributers.

#301 ::: Sandy B. ::: (view all by) ::: March 02, 2006, 11:53 AM:

Otherwise... several years of work down the drain. It's not a master work of genius, but it would be nice to see it go to good use.

I'm sorry to hear that. . . I worked on something for nine years, and it went into a metal shredder.

It was better than the competition- that's the thing that hurts.

#302 ::: Hamadryad ::: (view all by) ::: March 02, 2006, 01:02 PM:

delurking

Well, I'm not even going to try and get involved in the discussion about the ideal length of copyright. Given the amount of repetition I've seen already, there don't appear to be many new arguments to offer to the debate.

Instead I'll just muse about the original topic, which was perpetual copyright and why I think it would be a Very Terrible Thing if we had it.

It seems to me that at least some of the arguments in favour of perpetual copyright presuppose that creative works are created in a vacuum, and that just isn’t the case. We’re all influenced by the things we see and experience. We can’t avoid it, no matter how much we’d like to do so sometimes. If artists (of all types, and yes, I consider writers to be artists as much as any painter, singer or actor) didn’t build on earlier works, I venture to guess that most of the artwork we have today would not exist.

Sometimes the influence of prior works is subtle, and sometimes it’s quite blatant. Many of the Great Masters from the Renaissance and Baroque periods were directly influenced by earlier artists. The only visual record we have of Da Vinci’s ‘Battle of Anghiari’ is from copies made by other artists. One of the most famous is by Rubens, a respected artist in his own right. Even a cursory study of art history will make it clear that creating works derived from folklore, mythology, Biblical sources, even other works in the same medium, has always been a very common practice. I don’t believe the case is any different in other media.

I don’t think current copyright terms (as unreasonably long as they are) have turned the public domain into a wasteland. I do believe that perpetual copyrights would do so, and I’m profoundly grateful that such a concept did not exist hundreds of years ago.

/delurking

#303 ::: Lenora Rose ::: (view all by) ::: March 02, 2006, 02:49 PM:

Keir, I think the kinds of visual borrowings I've seen in paintings tend to mostly be ones I'd characterize as fair use. Sometimes they'd also qualify as Satire, which is a protected use, though usually the satire pieces i've seen are taking works already in the public domain anyhow,a s people might actually know them.

My definition of fair use is pretty generous, though -- considerably more so than some of the challenges to fair use put forward against writng and music lately, mainly but not exclusively to corporations.

(As Jo Walton noted in her post that got mis-placed to the Open Thread, if you get to talk one on one with a creator and not a business, most creators are more open about that can and can't be done with their work than A) businesses like ASCAP that control the interests of hundreds or thousands of artists and may not even know the song quoted, or B) heirs whose emotional attachment to the work is different from that of the creators, more inclined to "Grab the money! This is a cash cow!" than to "Well, that's a respectful treatment. Sure, you can quote that." (or even "He quoted a passage I particularly liked and said it was the worst thing in the book! At least he put my words in so people can see he's the idiot...") )

#304 ::: Greg London ::: (view all by) ::: March 02, 2006, 05:42 PM:

to j h woodyatt and Jules for the backup/cache links to Bruce Lehman's no-longer-existing page:

Thanks. Duly bookmarked. And I've saved a version locally on my harddrive. I just need to update Bounty Hunters to include URL's to tdhe cache versions.

Thanks.

Greg

#305 ::: Stephen Frug ::: (view all by) ::: March 02, 2006, 06:09 PM:

Regarding the Jo Walton/Avram debate: I don't see why a creator's feelings should be protected by law here. After all, a parallel situation has already been held up as a model: it doesn't matter how much a songwriter thinks another singer is butchering their work; the singer has a right to sing any song he/she wishes, so long as they pay a fee. I agree that the mandatory license system is a good one: it lets creators profit from their works, without giving them control over other people's uses of their works. It makes sense for having people sing other's songs; I think it would equally make sense for having people writer other's worlds.

(This isn't to say that moral persuasion shouldn't be used: please don't read/listen to X, it makes a travesty of my work is probably something that would move many fans (whether of writers or songwriters.) But I don't think it should have legal force.)

#306 ::: Vicki ::: (view all by) ::: March 02, 2006, 07:50 PM:

Greg London--Yes, you already said that. When I posted about retirement plans, I was in fact answering you, and repeating your statement without adding to it doesn't make it more convincing. (We aren't living in The Hunting of the Snark.)

Writers do, in fact, make financial plans based in part on the expectation of future royalties, just as homeowners make financial plans on the expectation that they will either continue to own their homes, or be compensated for the loss thereof, and people with pension funds make plans on that basis.

#307 ::: Graydon ::: (view all by) ::: March 02, 2006, 09:08 PM:

Steven Fung --

Of course it should. Pretty much all the value associated with a creative career rests on an intangible reputation. A well-funded travesty constitutes an uncompensated taking of that reputation; since a well-funded re-imagining does the same thing, it's not unreasonable to give the original creator the opportunity to avoid that.

#308 ::: Clifton Royston ::: (view all by) ::: March 02, 2006, 11:44 PM:

Graydon:
So you think Devo 2.0 should be legally banned, as opposed to bitterly criticized and/or mocked?

#309 ::: Stephen Frug ::: (view all by) ::: March 03, 2006, 12:42 AM:

For that matter, Graydon, do you think that songwriters should be able to control who sings their songs -- a more restrictive copyright law then exists now?

(It's also notable that once the law starts protecting reputation, even if that reputation has value, all sorts of censorous !@#$% comes down the pike -- that's how you get ludicrous results like McDonalds suing to stop activists from talking about what's in their food or whad conditions the animals live in. Since, let's face it, all the value of McD's is in reputation -- it sure ain't the food! As far as reputation goes, there are unfunded "takings" all the time; to stop them would pretty much grind free speech to a halt.)

#310 ::: Teresa Nielsen Hayden ::: (view all by) ::: March 03, 2006, 01:30 AM:

This is a good vigorous argument we're having. Let's not waste it in mere incivility. (I include myself in that admonition.)

#311 ::: Charlie Stross ::: (view all by) ::: March 03, 2006, 07:06 AM:

Greg: you asked about immortality and life copyright terms.

Immortality -- or rather, immorbidity: IIRC, life expectancy in the absence of disease or senescence is still only about 600-900 years, due to accidents/violence/suicide -- changes everything, and copyright terms are the least of our worries. (Over here in .uk, about 70% of the shares on the stock market are owned by ... pension funds. What happens to the pension system if we get immortality? What happens to the entire ownership structure of capitalist society? "What happens to ..." can be applied to everything, and copyright ain't the right item to start with.

Mind you, mind uploading would change everything, too. (Which copy of me owns my copyrights? Do I own copyright on the state vector of my own mind? And so on ...)

I don't know what the answers to these questions are -- you're right that life plus X copyrights are clearly not the answer in such circumstances, but I'm not sure it's relevant right now.

Trying to fix intellectual property law for all time in a manner compatible with gross changes in the human condition seems like a non-starter to me. And it'll certainly be a non-starter if you start writing long letters about it to your representative ...

#312 ::: Avram ::: (view all by) ::: March 03, 2006, 01:14 PM:

Stephen, actually the value of McDonald's is mostly in the real estate.

#313 ::: Avram ::: (view all by) ::: March 03, 2006, 01:32 PM:

Greg: If authors exist who can make good copy, who don't need a therapist, and who have the stomach to see someone derive their work 40 years after they wrote it

Jeez, Greg! Way to be thoughtlessly insulting!

Look, I don't think it's the job of copyright law (or any law) to keep people's feelings from being hurt, but that also doesn't mean that I think people with Jo's concerns "need a therapist".

#314 ::: Greg London ::: (view all by) ::: March 03, 2006, 04:26 PM:

you're right that life plus X copyrights are clearly not the answer in such circumstances, but I'm not sure it's relevant right now.

It is relevant in that it (hopefully) forces the questionee to consider where their argument breaks. Life-Plus-N breaks with immortality. It's a totally crazy hypothetical, but that's what science fiction does, ask "what if?" And usually, science fiction asks "what if?" because it shows a flaw in the current assumptions of the way life is now. Right now, we can talk about human rights and people pretty much "get it" and it works. But what if we discover life on another planet and it may be conscious and intelligent but not in a recognizable way? What if a robot wanted freedom? Then the problems with the assumptions and logic behind the term "human rights" becomes clear.

I'm not asking "what if we became immortal" because it's a realistic concern, anymore than I don't write about robots because I think I'll see robots fight for their indepenence while I"m alive.

So, if humans were immortal, then what should copyright terms be set to?

What it generally forces people to come to grips with is that copyright is compensation for the author's labor versus a natural right. For people walking around thinking of copyright as a natural right, then Life-Plus-N makes perfect sense, and at least back in 1976, most people just went along with it. But the logic of natural right is flawed, because as soon as you bring in immortality, it becomes abundantly clear that when the graph Life-Plus-N approachs the line equal to Infinite-Terms, Progress of the Useful Arts is no longer Promoted.

So, given immortality, I believe it becomes clear that copyright must be treated as a form of compensation, a reward or bounty offered to folks to give them incentive to write, create, sing, record, and even make those Hollywood movies, rather than some natural right that author's get to control their works as long as they're alive.

#315 ::: Greg London ::: (view all by) ::: March 03, 2006, 04:40 PM:

Avram, I wasn't intending to be insulting. I was responding to Lis Riba's post here, where she starts out saying:

Copyright is a legal and economic tool, but there is also an emotional component to the creative process.

And I don't think copyright needs to be designed for an "emotional component". If it wasn't clear, that's what my "therapist" statement was directed at. It isn't that I think people with these concerns need a therapist, its that I think tehre are plenty of writers who would be willing to write without copyright protecting their emotions.

If there are writers who can write well, and who don't need Life-Plus-70 year terms to protect their emotions, who are perfectly willing to write for a 40 year term and may very well still be alive when that term runs out, and they still write, knowing that in 4 decades they may see someone derive their work... if there are enough writers willing to do all that, then why set terms higher?

If there are authors who will write for a 40 year term, and if a 40 year term will Promote Progress of the Useful Arts at a much faster rate than Life-Plus-70, then why set terms at anything more than 40 years?

#316 ::: Clark E Myers ::: (view all by) ::: March 03, 2006, 05:43 PM:

Speaking of Mark Twain's (Sam Clemens) willingness to do creative work under a relatively short copyright - what about Twain's well funded commentary on James Fenimore Cooper? No doubt Twain's review copy should have included a shrinkwrap license permitting only favorable comment to preserve the author's feelings and the publisher's profits? At least for some limited period?

I'd say exploiting the original work in the original form - or translations in the original medium (natural language foreign rights but see below) - or substantial similar form (Classics Illustrated) should be reserved to the author, heirs or assigns for a limited period. I'd be inclined to say 20+20 renewable but I'm not fussy.

I'd allow Solar Pons and Shamrock Bones as equally permitted and no infringement merely by existing even during the period of copyright. Lifting portions of text from another's works still under copyright should be penalized. I don't know enough to comment on music sampling or other incorporation of minimal portions in one's own work. De minimus non curat lex?

As for use in a significantly different medium I am reminded of the made for TV biography which led to the question (paraphrasing freely) does the heroine have to die? and the response Not if we don't call her Jessica Savich!.

I'd be inclined to allow almost anything even actually inspired by original work in another form as fair use while I'd regulate rights to publicity using or referencing the original work.

FREX if somebody wanted to do a bildingsroman with Richie Rich joins the MI and succeeds as a cap trooper I'd suggest royalties to Harvey Comics and ignore any claim by the Heinlein estate. By the same token I'd ignore cross claims for Armor (Steakley).

If the producer in a substantially altered form wants the publicity tie-in it should be paid for under some right of publicity rather than a copyright that carries through translation into another medium (save where the words of the original are used rather than paraphrased).

I've known people who copied programming look and feel while feeling no guilt because they started from scratch using a different programming language than the original source code - hence all new, hence no copyright. I'm not entirely happy about it but I'd say this is a fine place to draw a bright line - translation into another medium is not a copyright violation.

Mostly I'd protect the expression and not the ideas.

#317 ::: Lenora Rose ::: (view all by) ::: March 03, 2006, 06:25 PM:

Greg, "Yes, that's exactly how I feel. Because any Life-Plus-N will invariably have to choose some comfortably large value of N."

Seems to me that this comment misses the fact that, your logical arguments aside, there seem to be a multitude of authors (Actual published authors, not just hardly-counts me), who agree with you that the current set-up is too long, yet also argue for Life-Plus-N, where N ranges from 0 to 25, and rarely gets near 70.

I think this is part of what people are trying to point out when they say that you (Or others) are ignoring an emotional component of copyright.

Yes, some of the examples supplied of the emotional reactions are things that copyright should not have to carry (The "Authors' hurt feeligns" bit), but there seem to be other emotional reactions in play that are less "Hysterical / in need of therapy", but mean that, in spite of what logic alone says they should want, most authors arguing for life plus N are not arguing for N as "comfortably large", or 70 years, or infinite. IE, the emotional component says they're asking for LESS than logic says they should want, regardless of the fact that they want more than you do.

I guess this is a concession that my desire for Life Plus 15 (+/- 5) is not entirely logical, though there are different logical components to both the Life aspect and the Plus 15 aspect. At the same time, it's also a point that we're humans, not robots, and these things that affect us will be influenced by things other than logic, and failing to account for that strikes me as a failure.

There is also something to consider in the suggestion someone made above that changing the terms too drastically, all in one, would be disastrous, for people who have been depending on the terms they're currently getting. It may be easy to say that they were foolish to be counting on the terms of copyright for their income, but the fact is, the system is in place. If the system is in place, people will use it to their benefit, even when they disagree with it to some degree. To take it away too abruptly might lead to an inability to rearrange finances or adapt to such a drastically different system.

Do you have any thoughts how to change from Life Plus 70 to 40 years flat without causing chaos? How long would the phase-out take? What would the steps be?
___________________________________

I'm still curious if *anyone* can find out more than I did about the reasoning behind the jump from 28+14 to 28+28 (Or, for that matter, between 14+14 and 28+14) besides a vague reference to the "working life of a musician". I really do think it might reveal something of which of our suppositions, logical and emotinal arguments were considered valid or invalid when changing copyright terms, in the days *before* corporations got into the mix.

So far, IIRC, 28+14 and 28+28 are in first and second place respectively for how long they lasted. But 28+14 seems to have been replaced by 28+28 by some idea that it was a better balance between encouraging artists and public interest, (one of the articles I linked explicitly says that it was so, but not *why* or *how*), where 28+28 was derailed by a combination of pressure to comply with the Berne Convention and Disney stepping in to "save" the Mouse.

#318 ::: Matt Austern ::: (view all by) ::: March 03, 2006, 07:01 PM:

One reason I don't think life+N necessarily leads to a slippery slope where N->infinity is that most people are imagining that the actual terms would be something like max(M, life+N). There are various reasonable choices for M and N. (I'd suggest something like M=40, N=10.)

But then, it's a bit of an academic question. We can speculate about what copyright law would look like in an ideal world, but it's not really worth getting worked up about---we're not going to live in my ideal world or in the ideal world of anyone else on this thread. All of us are much, much closer to each other's positions than to current law or to the positions of the interest groups who shaped current law.

#319 ::: Charlie Stross ::: (view all by) ::: March 03, 2006, 07:30 PM:

Greg, I have a solution to the copyright duration problem. It's my preferred solution, but you probably won't like it:

1. Abolish copyright completely. Let anyone publish whatever they damn well please.

2. Allow authors to register works they have created via some central library of record, before they release said works.

3. Said library will have a duty to track the consumption of registered works, via paper publishers, peer to peer networks, smoke signals, whatever.

4. Creators will then be paid from central funds an amount proportional to the number of person-hours members of the public spend enjoying the use of their works. If necessary, taxes will be raised on books, magazines, television receivers, or internet connections to pay these fees. (Nobody reads your books? Boo hoo. Millions of people read your books? You're rich.)

5. Yes, this is a socialist solution. That it works is self-evident to anyone who's ever visited the UK and experienced the wonder that is the BBC.

NB: you may want to bear in mind that I am no more committed to copyright than I am to capitalism. As long as we maintain the tottering heap of inconsistencies flying in loose formation that was bequeathed to us by Adam Smith's heirs, I'm going to find it very difficult to throw away the particular chunk of the junkpile from which I derive my income. But once we allow ourselves to question the flat-earth ideology underlying it, everything melts into air and becomes perfectly transparent.

#320 ::: Clark E Myers ::: (view all by) ::: March 03, 2006, 08:26 PM:

5. Yes, this is a socialist solution. That it works is self-evident to anyone who's ever visited the UK and experienced the wonder that is the BBC.

Somebody will have to explain to me how this BBC example compensates creators as opposed to entertainment intermediaries. I wonder how the BEEB would do paying its creative people without sales to the United States?

Further as I understand it the BBC is losing funding as vans cruising the neighborhood don't intimidate people into paying for their streaming video.

Personally I was inclined to listen to Radio Luxemburg and this posits enforcement over a global or at least the entire meaningful region. We already see price arbitration between Amazon US, UK and DE - what an incentive the proposal becomes to further tax evasion.

#321 ::: Keir ::: (view all by) ::: March 04, 2006, 02:21 AM:

Here is a question to Greg London: What difference does it make what the intent of the US Constitution to do with copyright was?

It is the Berne Convention (to which the US is a signatory*) which defines copright for most of the world, not the US Constitution.

Therefore, it doesn't matter what the US Constitution says, it is the Berne Convention's language that is important. And the Berne Convention does speak in terms of rights.

``The countries to which this Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works. ''**

I can't actually find a mention of promoting progress in the useful arts. It is all about protecting author's rights.

History shows two centuries of great writers willing to write for a lot less than you demand. I see no compelling reason to pay so high a price. Better to give the work to the lowest bidders, I say, and let competition and survival of the fittest cull the herd.

But how many great writers did we miss? Just because some people were willing to work for less doesn't mean that all were, or even that most were. It just means that some were economic fools.

I do like Charlie Stross's idea, aside from the fact that the practicalities would rule it out. And Matt's right, this is a bit angels on a pin head.

Finally, I don't think any analogies really help here. Copyright is too unique for there to be any really useful analogs.

*List of Signatories to Berne Convention [pdf].
**Berne Convention [pdf]

#322 ::: bryan ::: (view all by) ::: March 04, 2006, 04:17 AM:

"It is the Berne Convention (to which the US is a signatory*) which defines copright for most of the world, not the US Constitution."

that's a leg sweep maneuver right there.

"But how many great writers did we miss?"

http://dannyreviews.com/h/Islandia.html

#323 ::: Charlie Stross ::: (view all by) ::: March 04, 2006, 07:07 AM:

Now that we've brought up the Berne convention, let me point to the turd in the punchbowl: namely, copyright is governed by international treaty law. Yes, the US Congress can in principle decide to remove itself from that treaty. Cancelling treaties unilaterally happens from time to time; the current administration did so with the ABM Treaty back in, IIRC, 2000, Hitler unilaterally abrogated the Ribbentrop-Molotov Pact with extreme prejudice in 1941, and so on. But cancelling a treaty seldom takes place without serious repercussions.

There are generally two side-effects of cancelling an existing treaty. First, an international agreement on how to handle some contentious issue breaks down (and the other parties to the agreement may retalliate). Secondly, it undermines the administration's ability to negotiate future treaties with anyone, because if you sign a piece of paper with a treaty-breaker, you've got to ask yourself how much weight they attach to pieces of paper, really. So most governments have more sense than to do it, except in extremis.

It's the Berne Convention that established the terms of engagement for current copyright law and the "life plus X" term, for X=70. Try reducing that term unilaterally and you will piss off all the countries that trade with the USA and have longer terms, because one implication is that you intend to engage in large scale piracy of older works copyrighted in those countries. (Hint: $1Tn trade deficit.) The consequences at this point would be highly unpredictable but almost certainly extremely messy, and might well result in a trade war that the US would be on the smaller side of.

(Despite Hollywood's visibility, I suspect the net flow of intellectual property in the global economy is such that the USA is a net importer -- think of faceless back-office software written in India, Airbus flight control systems, writers like myself, scientific papers, and so on.)

#324 ::: Clifton Royston ::: (view all by) ::: March 04, 2006, 02:40 PM:

International law (mostly rambling at Charlie):
You clearly don't have to cancel the treaty to change its terms or duration in one country. The latest US "harmonization" was specifically with the durations prevailing in Europe. The US has changed its copyright law 3 times since it joined the Berne Convention, and various countries belonging to the treaty have slightly different durations. If it's conceivable to adjust the Berne Convention treaty to add new restrictions on what's allowed, as they are currently trying to do, how is it philosophically or legally inconceivable to change the copyright durations? The inconceivable part lies in the question of who is adjusting the rules - as Cory has noted, this "harmonization" process always works in one direction - owners' rights (especially corporations) get ratcheted up, buyers' rights and allowed uses get ratcheted down.

Now, you are probably right as to how it would be interpreted. The claim that term adjustments imply an intent to piracy is parallel to the claim you often see raised in discussions of copyright, namely that any attempt to discuss what rights users should have means that you're a "thief" trying to justify your illegal downloading of music. (Not seen in this discussion, thankfully.)

The constitution remains somewhat relevant in the US, to the extent that the courts are willing to consider constitutional issues, because the highest court considers it a limiting factor on what changes treaties can make in Americans' rights, and because it says Congress casn provide for copyright and patent terms for limited periods. That means Congress has to authorize the terms. However, in the recent Eldred case the Supreme Court ruled that "limited period" means something on the order of "finite bounded interval" (not in their words) and that therefore Congress can approve any finite term. One billion years is an allowable copyright term under this interpretation. So, as the poker dealer says, "No help showing."

On your last point I suspect you are right as to total volume of information imported (we are a small part of the world still yet) but not as to purchase value and trade balance. We outsource development to India because we can get it done cheap. Then we turn around and sell it to the rest of the world in shiny packaging.

That is changing, and at some point the balance point on the value of information trade will be passed, and then everything will change very fast for the US. And things will be a little uglier still for everyone here.

...

This is an interesting time - surely the residents of a collapsing empire have never had such a breadth of information available to them on the process. We'll be able to watch the dollar collapse against the world's other currencies minute-by-minute, should we so choose. For Roman citizens, it must have been more like "Did you hear Brindisi got sacked a couple years ago?" "No, hadn't heard about that. Price of bread's gone up though. And I hear the barbarians are all over Germania now."

(Sorry if this is a little incoherent, I am still absorbing my first cup of coffee.)

#325 ::: Keir ::: (view all by) ::: March 04, 2006, 06:08 PM:

Berne provides that members shall protect works for life and fifty, or, for cinematographic and anonymous works, fifty from date of showing.

Above and beyond that, it is all up to the member states.

So, life plus seventy could be reduced by twenty years by the US Congress without stepping on anyone's toes.

Beyond that, and you would have to re-negotiate Berne.

I'm not sure what would happen, were the US to withdraw from Berne. I'd imagine that all sorts of FTAs would be violated, and doubtless the WTO would get very pissed off.

WTO sanctions wouldn't have to stick to IP; they could go for anything, including oil. Most oil producing states are either members, or in accesion talks.

I found this, looking at the WTO website. It is a colloquium on IP issues in the developing world.

Have a look around, it is quite interesting.

#326 ::: Greg London ::: (view all by) ::: March 04, 2006, 07:22 PM:

I've known people who copied programming look and feel while feeling no guilt because they started from scratch using a different programming language than the original source code

Clark, copyright protects expression, not function. This is the difference between an expression such as "2001: Space Odessy" and the functionality of a sci-fi genre.

If the functionality is sufficiently unique it may be covered by patent law, but that's a whole other can of worms: in short 200 years of the courts and patent office saying you can't patent mathematics, logic, formulas, and software. Then Bruce Lehman gets appointed patent commissioner of the whole US and blammo, he puts out memo saying software can be patented.

But copyright doesn't cover the functionality of a thing, which is good because that means that Linux can then load Microsoft Word documents because it can copy the same functionality, but it can't copy/paste Microsoft's code to do it.

#327 ::: Greg London ::: (view all by) ::: March 04, 2006, 07:34 PM:

Charlie, that idea is very close to what I envision would be required to implement my version of "total compulsorary licenses", or the idea that anyone can derive anyone else's work, but they always have to give a cut of any profit from that work or any grandparent derivatives (you write the first Star Wars novel, Lucas turns it into a film and pays you, Mattel makes toys and pays Lucas and you.)

I haven't pushed for it not because it's socialist, but because it would require a behemoth bureaucracy, and I don't know if congress could keep up. Maybe, but I'm not sure.

I've had the idea in the back of my head that music could be licensed this way. And anyone could sell/distribute the songs and send a cut back to the original artist. One of hte annoying things about Rhapsody is that while you pay $9 a month to listen to as much music as you want, they don't ahve all the music. Led Zeppelin denied them permission to offer their songs, so I can't listen to Led Zeppelin while I'm listening to Rhapsody.

But, as I said, it would be massively complex, even just to track all the songs being played. The solution to this complexity, of course, is giving authors exclusive rights for a limited time, and letting them work out individual contracts. which is what we have, but with too long of terms. and so it goes.

Also, you never mentioned expiration, so I don't know if this is a fixed term, a Life-Plus-N term, or an infinite-royalties idea. Shakespeare's heirs would have loved this idea if it doesn't have an expiration date.

#328 ::: Greg London ::: (view all by) ::: March 04, 2006, 07:48 PM:

thoughts how to change from Life Plus 70 to 40 years flat without causing chaos?

Not exactly sure. I was thinking that any work that is currently protected would be converted to it's current term, with a maximum of 40 years. This would mean that if an author is depending on their work for retirement, then their Life-Plus-70 converts to 40 years, and if they are older, then 40 year expiration won't be a problem because they'll probably be long dead, and if they end up living more than 40 years, then that means they've got 40 years to readjust their retirement plan.

I'll assume that they can continue writing and continue producing an income that way.

As for the reasons given for changing copyright terms in the past, I've already accumulated some of the reasonings in a section of my Bounty Hunters paper here. Some excerpts:

In 1831, Congress extends the term of Copyright to 28 years plus an additional 14 year extension, claiming it matches the protections provided to Authors in Europe

(I don't know European copyright history. I do know that the Statute of Anne was passed in England in 1710 and gave a 21-year term. The Berne convention did not exist until 1880, so that wasn't a factor yet.)

In 1905, the Berlin Act modifies the Berne Convention to extend the Term of Copyright to the life of the Author plus 50 years.

In 1909, Congress passed the Revision of U.S. Copyright Act, and the term of Copyright is changed to be 28 years plus an additional 28 year extension.

(I assume the 1909 extension was a reaction to the 1905 extension to the Berne convention.)

1976, the US joins the Berne Convention and terms change from 28 + 28 to "life plus 50", preventing Steamboat Willy from going Public Domain. (Did I mention that Bruce Lehman bragged that he was Congress's principle legal adviser in drafting the 1976 copyright act? As if he had done a good thing there...)

So, basically, it appears our extensions to copyright terms were at least somewhat influenced by copyright terms in Europe, until 1976, and then they become directly influenced by fear of a cash cow drying up...

#329 ::: Greg London ::: (view all by) ::: March 04, 2006, 07:54 PM:

What difference does it make what the intent of the US Constitution to do with copyright was?

The US cannot enter a copyright treaty if that treaty is unconstitutional, without first modifying the constitution. You could not enter a treaty that allowed the US government to suppress, say, Free Speech, on the grounds that, well, the only way China will do trade with us is if we stop all those annoying people from harping about China's human rights violations, so we'll just have to suspend free speech, and the treaty allows us to do that....

Uh, no.

Treaties don't define the constitution, the constitution defines what treaties may be entered into. And if a treaty is unconstitutional, sorry, but it's gotta go. We might end up having foreigner's managing our ports, but we still don't have foreigners managing our government and laws. (well, conspiracy theories aside)

#330 ::: Greg London ::: (view all by) ::: March 04, 2006, 08:07 PM:

As for whether or not the US can withdraw from Berne, that's a bit of a red herring or argument ad populum. "Sure, terms are whacked, but everyone else is doing it. ANd if we change, everyone will be pissed, so we can't change."

I don't think we need to withdraw from Berne. Rather I think Berne as a whole could be readjusted to something like a 40 year term. If enough people want it, and assuming they're in some sort of democratic country, then their government should go along with it.

Of course, once you start talking about government "doing the right thing", you also have to contend with one other reality that is even bigger than Berne: copyright generates money for the governments, public domain does not. Disney and the likes will continue to donate millions and millions of dollars to politicians every year. If copyright went down to 40 years, Disney would probably stop donating, and on some level, you're asking politicians to cut their own salaries, which is difficult to say the least.

What's needed is a big enough paradigm shift in the public that this could be demanded by the people of its government. Is that possible? I think so, but before it does happen, people need to get re-framed to where they can see just how out of whack copyright has gotten and see how it hurts them.

I think there is a chance/probability that I might see it happen in my lifetime, but I'm not placing bets on it happening. Doesn't mean I can't fight for it, though.

#331 ::: Keir ::: (view all by) ::: March 05, 2006, 01:07 AM:

Treaties don't define the constitution, the constitution defines what treaties may be entered into. And if a treaty is unconstitutional, sorry, but it's gotta go. We might end up having foreigner's managing our ports, but we still don't have foreigners managing our government and laws. (well, conspiracy theories aside)

In the United States of America, yes. Everywhere else, the US Constitution deserves, and gets, no input into the law making process.

Copyright is international in scope. It has to be, especially with the advent of the internet. The US Constitution is not, should not, and will not be international in scope.

I agree that the current copyright system is pretty iffy. However, the way to approach it is not through appeals to the US Constitution. It will be by working in an international manner. There are some 150 state actors interested in a fair, working copyright system that balances the rights of artists and the needs of society. Only one of those cares about the US Constitution. There are thousands of non-state actors interested in the same, and none of them care about the US Constitution.

(By the way, don't be so sure about them ``foreigner's'' and your governance. See this article, on Venezualan imports. America has already given up a lot of independence.)

#332 ::: Clark E Myers ::: (view all by) ::: March 05, 2006, 02:03 AM:

But copyright doesn't cover the functionality of a thing, which is good because that means that Linux can then load Microsoft Word documents because it can copy the same functionality, but it can't copy/paste Microsoft's code to do it. Greg London

That begs the question (traditional meaning) raised by the question (Aren’t you glad that, three hundred years later, we’re not paying royalties to the inheritors of the Cawdrey estate every time we use alphatical order as an organizing principle?) that started this this thread.

The issue is nicely discussed but not resolved all over the web. See e.g. http://lpf.ai.mit.edu whack Copyright/lotus-v-borland.html and and whack look-and-feel.events (League for Programming Freedom is Richard Stallman - done this way to avoid too many links in a post, spam issues). In other fora the discussion can become quite heated - I'll never willingly discuss copyright with Steve Stirling again in this life but if forced I'll be wearing a cup and a Colt.

From Wikipedia Look and Feel:
The new version of Microsoft Windows, namely Windows Vista, uses transparency in ways similar to Apple's Mac OS X GUI, and contains features with almost identical icons, such as Spotlight and the magnifying glass icon. This has led to speculation that Apple may once again take Microsoft to court.

This likely goes beyond fair use from an old Forbes article but I'm too lazy to paraphrase and spell check, watch closely for the Congress decided:Society is not harmed if Margaret Mitchell and her heirs own an exclusive on Gone with the Wind for 50 or 100 years. If it's overpriced or badly edited, you can always buy some other novel of love in a time of civil war, if that's what you need. It's a good thing, though, that the fellow who came up with the idea of putting a gasoline-powered engine on wheels couldn't stop Henry Ford. George Selden, the self-proclaimed "inventor" of th automobile, did get a very broad patent, but Ford defeated it in a long court battle. After that, an inventor such as Ford could still get a patent on a particular transmission, but couldn't prevent rivals from getting the same results with different arrangements of gears. Congress decided in 1980 that computer software was more like a novel than a transmission, even though it has elements of both. That's when the problems began. "What you have is copyright giving effective, long-term monopolies to functional subject matter that would not [today perhaps should not cem] have qualified for patent protection," argues Stanford law professor Paul Goldstein, a leading expert on intellectual property.Can Las Vegas sue Atlantic City? By Kathleen K. Wiegner and John Heins

The issue from the LOTUS DEV. CORP. v. BORLAND INTL., INC. Stahl for the Court at the appellate level:
"The district court found, and Borland does not now contest, that Borland included in its Quattro and Quattro Pro version 1.0 programs "a virtually identical copy of the entire 1-2-3 menu tree." Borland III, 831 F. Supp. at 212
[*6] In so doing, Borland did not copy any of Lotus's underlying computer code; it copied only the words and structure of Lotus's menu command hierarchy."

This opinon reversed a series of district court decisions that had found Borland liable for copyright infringement.

"The court acknowledged that its holding is in direct conflict with the Tenth Circuit's holding in Autoskill, Inc. v. National Educ. Support Sys., Inc., 994 F.2d 1476 (10th Cir.), cert. denied, 114 S. Ct. 307 (1993), creating an explicit split in the circuits -- and a possible opening for Supreme Court review. Id. at 29-30."

"SUPREME COURT OF THE UNITED STATES
--------
No. 94-2003
--------
LOTUS DEVELOPMENT CORPORATION, PETI-
TIONER v. BORLAND INTERNATIONAL, INC.
on writ of certiorari to the united states court
of appeals for the first circuit
[January 16, 1996]

Per Curiam.
The judgment of the United States Court of Appeals
for the First Circuit is affirmed by an equally divided
Court.

Justice Stevens took no part in the consideration or
decision of this case."

For my money the issue is unresolved today. See my comments supra for my best case suggestion.

#333 ::: bryan ::: (view all by) ::: March 05, 2006, 02:16 AM:

"The US cannot enter a copyright treaty if that treaty is unconstitutional, without first modifying the constitution. "

So Berne makes statements of law that would be unconstitutional? If not, then it would seem that Berne is the current law. If yes, isn't that what you should be arguing?

#334 ::: Greg London ::: (view all by) ::: March 05, 2006, 10:44 AM:

Clark, as for functional versus copyright, I don't have issue with most of the current approaches. I don't think software of any kind should be patentable, unless it ties to a physical process of some kind.

look-and-feel is nothing on an intellectual level. Well, it's something, but not anything worth giving a monopoly to. Patent was intended to protect ideas on a scale of those solving the longitude problem, not surface appearances. If look and feel could be copyrighted or patented, you'd have insane stuff going on like lawsuits between cab companies because one company had yellow cabs first and another company "stole" their look and feel.

No thanks.

It may not be resolved, in terms of yes, there will always be people trying to use copyright and patent law to gaina monopoly they do not deserve, but in my mind, its settled.

Now, if we can just dump Lehman's software patents, that would be one more step in teh right direction.

#335 ::: Greg London ::: (view all by) ::: March 05, 2006, 10:51 AM:

Berne makes statements of law that would be unconstitutional? If not, then it would seem that Berne is the current law. If yes, isn't that what you should be arguing?

You are putting the cart before the horse. Laws get passed first and then later someone gets the courts to rule that the law was unconstitutional. And if the courts grok that terms lasting a century and a half actually impede progress, then they could very well strike down the various US copyright laws that have set terms to that length.

Yes, I believe Berne's minimum terms of Life-Plus-50 conflicts with the US constitution's requirement for copyright.

#336 ::: Dave Bell ::: (view all by) ::: March 05, 2006, 06:01 PM:

Berne is a two-way process. It means that US copyright protection applies in other countries, so that US authors don't get ripped off.

You have to consider the whole package.

#337 ::: Greg London ::: (view all by) ::: March 05, 2006, 08:46 PM:

Dave, Berne can be rewritten with reasonable terms so that the public doesn't get ripped off.

You know, the people who are forced by law to overcompensate for stuff protected by copyright? Yeah, the public is getting ripped off for every work that should have entered the Public Domain but didn't because the likes of Disney buy the law.

And if the public ever figures it out, all this talk of Berne as if it were an insurmountable hurdle that will forever lock in ever increasing copyright terms will evaporate and Berne terms will finally come tumbing down. I only hope I can live long enough to see that happen.

That and I hope I can make it to see the planet run out of oil. 2050 is what I keep hearing. Maybe we can fix Berne by that point too.

And then we can have a smokin' party. Woo hoo! I'll bring the beer. Who's got chips?


#338 ::: Keir ::: (view all by) ::: March 05, 2006, 10:53 PM:

I'm not saying Berne is insurmontable. I'm saying that it isn't surmontable by the US Congress.

If you want to change anything, look at the UN. For one thing, I'm sure that you will find a lot of developing countries that would be quite keen to cut Berne terms.

I do think that copyright should be reformed. However, I don't think that the vagaries of the US Constitution are where to start.

What I'm saying can be summed up: multilateralism, not unilateralism.

I'm not sure how long terms should be. But, Greg, the way to approach this has to be from the point of view that current terms don't help artist's rights.

Not from the point of view that they impede progress, because the rest of the world doesn't use copyright for that reason, primarily.

#339 ::: Marna ::: (view all by) ::: March 06, 2006, 05:40 AM:

Apropos of not much, I'm not finding the suggested mechanical rights model very good:

Mechanicals give you the right to record and distribute a cover version within a pretty narrow definition of cover version -- I speak under correction, but as I recall if you change One Single Word you are outside your rights, and there are some pretty tight limits on what you can and cannot do to the tune.

This is why, for example, you can't pay mechanical rates to avoid being nailed to the wall for using a melody line or an extended quote.

You record that song, as is, or you record something else, no in-between.

So it's -- I'm trying to make this fit books, to figure out what gets sold here.

It's a bit more than rebinding rights and rather less than the right to go ahead and create a true independent derivative work.

What you can get mechanicals on is a performable thing. You have to add a performance before you have anything saleable, and it's easy to distinguish the two things for sale purposes.

By the time a piece of fiction is offered for sale, it IS a performance, and the performance is not repeatable -- you can't pull a book apart like you can a song.

Or maybe you could, actually -- mechanical character licencing?

Mechanical world licencing?

But as I think TNH pointed out, all you have to do is change the names and you can have that for free anyway.

Not that there aren't times when it'd be worth cash money not to have to come up with new names mutter grumble.

*ponders starting a Character Names By Mail Order business. Reasonable rates, satisfaction guaranteed, only people who deserve it to be named Eustace*

#340 ::: Greg London ::: (view all by) ::: March 06, 2006, 10:39 AM:

Keir, I'm not relying on the constitution alone to argue for copyright change. It is a multi-front war:

There is the US constitution's wording: "to promote progress in science and the useful arts". This is no small matter: Supreme Court cases have been decided on this very wording. Justices have stated that this wording must be honored and that, for example, it is not sufficient justification to extend cpyright or patent law just because "someone will make money".

But the wording isn't strictly unilateral or national: it is also to remind people "why is copyright?" which is universal. Copyright exists only as an incentive to encourage people to take a chance at creating something new, to break the "hostage scenario" that exists were everything to immediately enter the Public Domain and no copyright law existed at all.

Copyright is also a reward or bounty to promote progress. and from that piont of view, the reward should be set competively: as low as possible, but high enough that someone will successfully complete the job. Disney has been setting their own price for the last 80 years, which is akin to a defense contractor being awarded a contract, and then they get to decide what price to charge.

But I am not advocatign setting terms so low that people can't make a living as writers, artists, etc. And I've based my idea of a 40 year term off of historical evidence that shows Mark Twain and a number of authors making a good living off of a 42 year term. perhaps, that's one thing I need to change: 42 instead of 40. If it was good enough for Mark Twain, it should be good enough for us.

There is also the notion of holding "promoting progress" as another way of saying "allowing artists to derive from the public domain", or "artists rights" if you want to call it that. intellectual development from the point of view of a highway shows a great freeway from ancient mythology all the way up to around 1930's, at which point the entire stretch of road turns into a multi-threaded toll road. There is no way to move forward without paying a fee.

Opening up the Public Domain, lifting the tolls on works that have far more than paid for themselves would allow artists and writers to create new derivatives.

So, I'm not invoking the constitution as the single, unilateral basis for why I think copyright should have a fixed, 40 or 42 year term. There are actually quite a few different reasons behind my argument.

#341 ::: Keir ::: (view all by) ::: March 06, 2006, 11:14 PM:

Greg, I agree with most of what you say; I'm not sure if fixed terms are the best. I could see life and ten, or life and twenty being fine.

However, I don't like talk of `reframing' and so-on. It always seems slightly creepy. I'm sure it isn't, and I wouldn't want to suggest that you are trying to brain-wash us all, but I've never really understood the point.

One thing that I would be interested in is the views of indigenous peoples on Public Domain, especially `their' Public Domain.

I know that in NZ there have been cases where Maori words and imagery have been used by large(ish) multinationals, and there have been talk of lawsuits.

What do people think of the use of other culture's ideas, especially where there is little recognition?

Is there a case for some sort of cultural copyright?

#342 ::: Jonathan Shaw ::: (view all by) ::: March 07, 2006, 01:02 AM:

The protection of the work of Indigenous Australians has been a major issue too. I'm sorry, I don't know any of the details, but there have been a number of cases where traditional images have been used on tea towels etc without regard to their signifance or function in Indigenous communities, and the courts have found for the Indigenous litigants. The images in question dated back many lifetimes, yet clearly there is some important sense in which they are "owned" by a group of people and that ownership needs to be protected.

#343 ::: Epacris ::: (view all by) ::: March 07, 2006, 03:13 AM:

There have been quite a few cases of various souvenir producers being prosecuted for nicking the customary designs, or sometimes images of particular Australian Aboriginal artists. It seems particularly galling when vendors copy — sometimes merging & mutilating offensively — important dreaming images, print up their t-shirts, tea-towels, etc. cheaply overseas, import them and sell them as uniquely Australian items.
The ones I can find in a very quick & dirty search are Bulun Bulun v R & T Textiles (1998) 86 FCR 244, 157 ALR 193, 41 IPR 513, [1998] AIPC 91-447 and Milpurrurru v Indofurn P/L (1994) 54 FCR 240, 130 ALR 659, 30 IPR 209, [1995] AIPC 91-116. If you're interested in comparing our problems and laws regarding the use of tribal designs, there's discussion in Stopping the Rip-offs, an Issues Paper from 1994 on intellectual property protection for Aboriginal and Torres Strait Islander peoples.

The Reserve Bank of Australia released the first banknote in the world to be printed on a non-fibrous polymer substrate, a Commemorative $10 currency note, on Australia Day 1988 as their contribution to the celebration of Australia's Bicentenary. One side depicts an Aboriginal youth, a Morning Star Pole and other designs from Aboriginal artworks.
There was a case about this (Yumbulul v Reserve Bank of Australia (1991) 21 IPR 481), which wasn't quite like those usual versions.

There's also a whole bunch of stuff to do with "misleading or deceptive conduct" or "false or misleading representations" where one company objects to things like labels that look too much like theirs, or similar names — even things like using the "Cliquot" shade of orange on wine labels or certain striking styles of typography.
One that sticks in my mind is Hogan and Pacific Dunlop Ltd (1988) 12 IPR 225, [1988] ATPR 40-914, [1988] AIPC 90-530 appealed at (1989) 23 FCR 553, 14 IPR 398, [1989] ATPR 40-948, [1989] AIPC 90-578. Paul Hogan, who played the character "Crocodile Dundee" in three films, and used him in other ways, such as Australian tourism ads shown in the USA, wanted to 'restrain' a shoe manufacturer from using someone dressed and behaving like the character in their ads, and stop a TV spot which parodied the famous "knife scene" from the first film "You call those leather shoes? Now these are leather shoes", because they hadn't any licensing agreement or such.

Re the issue of musicians or composers not having control over the use of their songs: I suppose it depends if they've assigned their rights to someone else, but I remember certain musicians objecting to their music being used in advertisements by groups they didn't want to be associated with, and forcing a change. I thought it was in a recent US election?

I definitely remember one of quite a few objections to our Free Trade Agreement with the USA being the forced extension of our copyright from 50? 30? years after the death of the originator to the US 70 years to "harmonize" them, so I'm a bit puzzled by the idea that the Berne Convention enforced life + 70 years internationally.

#344 ::: Keir ::: (view all by) ::: March 07, 2006, 04:17 AM:

I definitely remember one of quite a few objections to our Free Trade Agreement with the USA being the forced extension of our copyright from 50? 30? years after the death of the originator to the US 70 years to "harmonize" them, so I'm a bit puzzled by the idea that the Berne Convention enforced life + 70 years internationally.

Berne is life and fifty for most works. However, if a country wishes to go beyond that, Berne doesn't care.

Maybe that is a bug in Berne; maybe it is a feature. One thing that a revised Berne could do is set a range of terms, as opposed to the current method of setting minimums, where countries end up `leapfrogging' each other, with longer and longer terms.

#345 ::: Jonathan Shaw ::: (view all by) ::: March 07, 2006, 05:03 AM:

Epacris: You're right. Australia was required by the FTA to conform to the US copyright rules, and we moved from life + 50 to life + 70. As a result, for instance, "Rikki-Tikki-Tavi", in the public domain one week, was suddenly back in copyright the next, and my office had to go searching all over again for the copyright owner. Teresa posted a Particle linking to the University of Newcastle (NSW, not -on-Tyne) warning of this change, but within a week that link had gone dead for some reason.

#346 ::: Greg London ::: (view all by) ::: March 07, 2006, 09:31 AM:

The images in question dated back many lifetimes, yet clearly there is some important sense in which they are "owned" by a group of people and that ownership needs to be protected.

I can only imagine the horror that would occur if England decided that Shakespeare were part of its culture that it owned for all eternity and somehow managed to enforce that view on Berne.

I wonder if the Indigenous Australians now have eternal copyright on these images...

#347 ::: Susan ::: (view all by) ::: April 28, 2007, 11:01 AM:

I have a vintage family poster which shows my Grandfather (name & picture) among other listings of singers who sang Irish songs, with the songs they sang listed on the poster under their names. The poster was made for a Centennial Celebration and produced by Columbia Phonogragh Company. At the top of the poster it says Columbia Records, but as far as I can see there is no copyright on the poster. Could this poster be copied and sold without consequence and since the song my Grandfather sang was recorded in 1898 (and no other recording or transcript since then; I looked it up) would all of this entered public domain years ago?

Thanks.

#348 ::: James D. Macdonald ::: (view all by) ::: April 28, 2007, 12:05 PM:

Made prior to 1924, and no copyright notice?

I'm not a lawyer, don't play one on TV, and didn't stay at Holiday Inn last night, but that sure sounds public domain to me.

If you're very concerned, please consult with a real lawyer.

#349 ::: A. J. Luxton snags a spammer by the tail ::: (view all by) ::: August 19, 2011, 05:54 AM:

O hai thar, comment-link-bot.

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