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We Were Smarter About Copyright Law 100 Years Ago

kdawson posted more than 4 years ago | from the intelligent-debate dept.

Government 152

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

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152 comments

They don't even go back far enough. (5, Insightful)

symbolset (646467) | more than 4 years ago | (#28742491)

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 Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers.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

- Thomas McCauley on copyright, 1841 [baens-universe.com] .

Re:They don't even go back far enough. (2, Insightful)

eldavojohn (898314) | more than 4 years ago | (#28742571)

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

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

Re:They don't even go back far enough. (5, Insightful)

cpt kangarooski (3773) | more than 4 years ago | (#28742665)

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

Re:They don't even go back far enough. (4, Interesting)

vidarlo (134906) | more than 4 years ago | (#28742735)

You violating copyright shouldn't be the end of your financial life or freedom. A fine, certainly but the magnitudes that have always been in place are ridiculous.

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

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

Re:They don't even go back far enough. (1, Interesting)

clarkkent09 (1104833) | more than 4 years ago | (#28742823)

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

Your presumption of harm (2, Interesting)

symbolset (646467) | more than 4 years ago | (#28742953)

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

Re:They don't even go back far enough. (4, Insightful)

hedwards (940851) | more than 4 years ago | (#28743199)

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

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

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

Re:They don't even go back far enough. (3, Insightful)

MinutiaeMan (681498) | more than 4 years ago | (#28744983)

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

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

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

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

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

Re:They don't even go back far enough. (1)

HardFocus (87842) | more than 4 years ago | (#28746127)

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

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

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

(Why else would we have spam?)

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

Re:They don't even go back far enough. (0)

Anonymous Coward | more than 4 years ago | (#28745395)

The price for any good or service in a competitive market should always approach the marginal cost of production.

Here are the problems with that statement, as I see them:

How does one place a cost of production on an artistic work? A book, for example, is more than paper and ink - its content is what has true value (ignoring, of course, special editions, etc.). Some writers write quickly, and produce many works. Others may only produce one or two works in a lifetime - should we count time spent as part of the cost of production as well? And if so, who sets the rate?

In addition, each creation is unique - there can be competition for like: There are many science fiction authors, for instance. However, barring plagiarism, their works are unique to them, and that, too, is part of their value. While there can be competition for science fiction book purchases in general, how does one create a competitive market in that same way for "books written by Isaac Asimov", when there is only one Isaac Asimov?

You're attempting to treat such creations as though they are "goods and services", in the way that apples are a good, and repairing plumbing is a service when, although they have the qualites of both, are in fact neither. And that, of course (and at the risk of being accused of circular reasoning), is the whole reason they are treated differently under the law in the first place.

Re:They don't even go back far enough. (1)

grcumb (781340) | more than 4 years ago | (#28744663)

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

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

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

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

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

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

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

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

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

In short, societies don't recognise author's rights. They reward the ones they like, and they often punish the ones they don't. (And because they are not monolithic, they sometimes do both at once. The list of authors who have perforce lived with this phenomenon could fill volumes, but J.D. Salinger, Arthur Miller and Jack Kerouac are notable American examples)

As a writer, photographer and generally creative person, I would like nothing better than an enforceable, predictable social contract that codifies the relationship between creator and society at large. But the fact of the matter is that it's just not reasonable to expect anything other than a rather ephemeral set of notions that rely on nothing more than the goodwill of the majority of the audience.

In short,. I don't think we really have any choice but to do what minstrels, painters, actors and countless other artists have done since time immemorial: Throw ourselves at the mercy of society and rely on the kindness of strangers to make a living out of a lifestyle. It's often unjust and occasionally cruel, but I just don't see a workable alternative.

In practical terms, this means that creators should look more closely at contract law and other means of asserting clear terms and conditions on the use of their creations on a case by case basis. This creates a bit of a wild west atmosphere; in fact it militates against the average creator's sense of justice ("I deserve to be paid for my hard work, not for some arbitrary valuation of my product."). But the issue is not so much about justice as it is about practical means of getting paid. By relying on contract law, we can create a more adaptable, more organic regime that rewards innovative approaches without encumbering society with legal precedents whose logical conclusion is the preservation of Mickey Mouse at all costs.

Re:They don't even go back far enough. (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#28742809)

It just speaks to me that with little if any methods for enforcing it, the US DoJ has settled for a penalty so harsh you are scared into observing the law.

Well the same can be said about shoplifting ("don't call it stealing") in the clothing boutique. For every one who is caught, several probably get away clean, so merchants needs to make examples out of the former to deter even more instances of it. And the state and town pass and enforce laws to protect their merchants.

  Let's face, the people holding the copyrights are the people with the money

It is now easier and ever for an author to self-publish an original creative work (text, audio, video), either as a download or as shippable product. There is also no shortage of publishers and distribution channels. If authors are cutting bad deals with publishers these days, who is to blame? Waaaaaaaa, such-and-such band cut a deal when their members were 18 that assigned all rights of their future output to Sony Columbia. Well, DON'T SIGN THAT KIND OF DEAL! Get some advice before you sign. We now have these things called "search engines" that make it easy to do topical research.

  That's reality because it's largely out of the public's mind what benefit public domain affords them and even artists who make derivative works or embellishments on existing works.

Don't authors have enough imagination to create a fantasy world that doesn't use Tolkien's characters and place names? That doesn't seem to be asking much. If they can't even do that, chances are they didn't have much to offer anyway, other than personal ambition.

Re:They don't even go back far enough. (5, Insightful)

Anonymous Coward | more than 4 years ago | (#28742601)

(+6, Thread over)

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

Re:They don't even go back far enough. (-1, Troll)

Anonymous Coward | more than 4 years ago | (#28742667)

Because clearly, the position of the US over the last 160 years in development of research, technology and mass-media products that all are protected by copyright and patents have been lagging every other country in the world with more developed communal patent systems. Or not.

Not a troll. (-1, Troll)

Anonymous Coward | more than 4 years ago | (#28743939)

The prediction was made that copyright would stifle innovation and damage the country.

To point out in an ironic way that the US has still done better than most other countries while having these laws in place, is not a troll. Marking it a troll is idiotic.

One more nail in the coffin of the idiocy and retardedness of Slashdot (this may be called a 'flamebait', but is honestly meant).

Re:Not a troll. (5, Informative)

symbolset (646467) | more than 4 years ago | (#28745403)

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

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

Re:They don't even go back far enough. (1)

clarkkent09 (1104833) | more than 4 years ago | (#28742939)

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

Re:They don't even go back far enough. (3, Insightful)

collinstocks (1295204) | more than 4 years ago | (#28743995)

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

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

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

Re:They don't even go back far enough. (1)

clarkkent09 (1104833) | more than 4 years ago | (#28744763)

No, by the fact that there is a rising Pirate Party in a few countries. I don't dispute that it is currently very disorganized and ill-defined, but it exists.

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

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

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

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

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

The main point the GP was trying to make is that he predicted that in the future it would become extremely easy to copy something; so easy, in fact, that anybody could do it.


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

Re:They don't even go back far enough. (1)

symbolset (646467) | more than 4 years ago | (#28745457)

and he was 100% wrong in his predictions.

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

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

- Eric Flint [baens-universe.com]

Shame, shame.

Re:They don't even go back far enough. (1)

brit74 (831798) | more than 4 years ago | (#28744911)

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

Re:They don't even go back far enough. (1)

collinstocks (1295204) | more than 4 years ago | (#28745175)

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

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

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

Re:They don't even go back far enough. (1)

BZ (40346) | more than 4 years ago | (#28745295)

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

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

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

Re:They don't even go back far enough. (4, Insightful)

girlintraining (1395911) | more than 4 years ago | (#28742761)

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

Re:They don't even go back far enough. (1, Interesting)

Anonymous Coward | more than 4 years ago | (#28742807)

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

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

Re:They don't even go back far enough. (1)

Tenebrousedge (1226584) | more than 4 years ago | (#28744195)

Victor Hugo was also instrumental in getting the Berne Convention [wikipedia.org] enacted.

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

Idiocracy (0)

Anonymous Coward | more than 4 years ago | (#28742815)

Idiocracy. Scariest movie I've ever seen.

Re:They don't even go back far enough. (0)

Anonymous Coward | more than 4 years ago | (#28743477)

- Thomas McCauley on copyright, 1841 [baens-universe.com] .

Wow. Maybe the harm now is insignificant compared to the harm then, since the slop which the pigs are fighting over in our day is worth practically nothing compared to the writings of men like McCauley?

After reading only part of the above, I wonder if a law restricting access to the flood of pap drowning our contemporary "culture" will greatly benefit those few remaining who have some small hope of become a little wiser.

Re:They don't even go back far enough. (1)

brit74 (831798) | more than 4 years ago | (#28744877)

Let's not forget other things he wrote:

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

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

Re:They don't even go back far enough. (1)

noidentity (188756) | more than 4 years ago | (#28745491)

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

Re:They don't even go back far enough. (2, Interesting)

symbolset (646467) | more than 4 years ago | (#28745751)

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

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

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

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

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

Was Copyright or Technology Better Understood? (2, Interesting)

eldavojohn (898314) | more than 4 years ago | (#28742509)

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

Another explanation might be the failure of practicing fully communal societies like the U.S.S.R. Back then it could have been construed as possible for art to flourish with everything in the public domain. After watching the few movies that came out of communist countries, I think it definitely inhibits the production of quality art. Don't get me wrong, I'm not arguing for either extreme. I'm just saying that there's a happy medium and we're gravitating away from that.

Someone will comment on this, might as well be me (2, Insightful)

Anonymous Coward | more than 4 years ago | (#28742651)

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

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

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

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

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

Re:Was Copyright or Technology Better Understood? (5, Insightful)

nbauman (624611) | more than 4 years ago | (#28743083)

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

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

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

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

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

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

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

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

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

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

Re:Was Copyright or Technology Better Understood? (4, Insightful)

meringuoid (568297) | more than 4 years ago | (#28744183)

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

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

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

Re:Was Copyright or Technology Better Understood? (0)

Anonymous Coward | more than 4 years ago | (#28744945)

it's the nature of communism to allow dictators like stalin.

Re:Was Copyright or Technology Better Understood? (1)

Patch86 (1465427) | more than 4 years ago | (#28743969)

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

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

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

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

100 years ago... (5, Insightful)

Techmeology (1426095) | more than 4 years ago | (#28742539)

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

Re:100 years ago... (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#28742703)

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

Re:100 years ago... (1)

Compholio (770966) | more than 4 years ago | (#28742849)

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

malfonian?

Newsworthiness of this? (-1, Troll)

Anonymous Coward | more than 4 years ago | (#28742581)

Anti-copyright pundit writes a rhetorically extremely laden post denunciating modern copyright. Demands that human rights be recognised and property rights be limited. Further news at 5.

What say we fucking do WHATEVER we fucking want!! (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#28742619)

That way, everybody's happy !! Smiling, Extenz happy !! Fuck the World !!

On the other hand... (-1, Troll)

istartedi (132515) | more than 4 years ago | (#28742655)

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

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

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

Ideology is irrelevant. Resistance is futile. (2, Insightful)

girlintraining (1395911) | more than 4 years ago | (#28742711)

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

Slashdot's double-standard on copyright law (1)

bonch (38532) | more than 4 years ago | (#28743171)

You guys are all about bashing copyright law... ...except in a GPL article. The FSF website specifically states that the GPL "assures the copyright of the software" and protects the rights of the author. Without copyright, the GPL has no power, and people can do whatever they want with your open source code, including sell it as a closed source product.

No, the reality about Slashdot's position about copyright law is that it's derived from the desire for piracy. People have adopted an anti-copyright position to make themselves feel better about using PirateBay. For crying out loud, Slashdot posted a hypothetical argument a while back claiming piracy was good and that content creators would make up the difference through "concerts and speaking tours." To expect someone like John Carmack to tour the country in a speaking tour rather than develop software--which is what he wants to do for a living--is proof that Slashdot's positions on copyright are completely self-serving.

You're against copyright when it serves you (piracy). You're for it when it serves you (the GPL).

Re:Slashdot's double-standard on copyright law (1)

Tubal-Cain (1289912) | more than 4 years ago | (#28743575)

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

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

Re:Slashdot's double-standard on copyright law (1)

orasio (188021) | more than 4 years ago | (#28743843)

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

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

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

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

Re:Slashdot's double-standard on copyright law (1)

mpe (36238) | more than 4 years ago | (#28743965)

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

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

Re:Slashdot's double-standard on copyright law (0)

Anonymous Coward | more than 4 years ago | (#28745283)

Go away, you idiot.

Re:Ideology is irrelevant. Resistance is futile. (1)

russotto (537200) | more than 4 years ago | (#28744041)

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

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

Umm no. (2)

nurb432 (527695) | more than 4 years ago | (#28742745)

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

I don't call that smarter.

Good for a chuckle: Galambosianism! (5, Funny)

bonze (1578437) | more than 4 years ago | (#28742779)

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

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

Re:Good for a chuckle: Galambosianism! (0)

Anonymous Coward | more than 4 years ago | (#28745975)

I wonder if someone at RIAA or the US Government actually did pay for the use of Galambos' ideas...

No Way Out? (1)

mindbrane (1548037) | more than 4 years ago | (#28742813)

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

Actually it's very simple. (1)

symbolset (646467) | more than 4 years ago | (#28743057)

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

Re:Actually it's very simple. (0)

Anonymous Coward | more than 4 years ago | (#28743215)

Somebody needs to read the Constitution before talking about "compelling" anything.

Congress must declare war if the government declares war, otherwise the government hasn't declared war. They have the option not to in any given circumstance, but it's a moot point after that option is exercised, as it has been for 240 years for copyrights and patents.

More importantly, removing the clause from Congress' exclusive powers doesn't make copyrights and patents go away. It just rolls back to the general and plenary powers of Congress. You could expressly deny Congress the power to do it. Even then, it would just roll back to the states.

It would take an Act of Congress to outlaw IP or a Constitutional Convention. There's an effectively zero percent chance of that happening.

Re:Actually it's very simple. (1)

Garrett Fox (970174) | more than 4 years ago | (#28743613)

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

Re:No Way Out? (1)

Halo1 (136547) | more than 4 years ago | (#28743221)

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

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

Moral Theory of "Intellectual Property" (0)

Garrett Fox (970174) | more than 4 years ago | (#28742877)

I've studied patent and copyright law professionally, and still haven't seen a clear and compelling argument for how it ought to work. As the articles note, one of the main questions is, "Do/should we recognize a creator as having a property right to his creations because there's a moral right to control them, or only because we think it's convenient for society? Ie., is this a 'fundamental right' or a government-granted privilege?" We've largely abandoned the notion of fundamental rights in the US, to our great peril. Because of that abandonment it's harder to think clearly about the question.

The Constitution's wording is ambiguous on this point, but seems to treat "intellectual property" as a privilege rather than a fundamental right. The theory echoes Jefferson's argument that ideas are like a candle-flame, such that "he that lights his taper from mine" doesn't diminish my supply of light. That's roughly what one of the articles was saying about the new tech of player pianos doing no harm to the existing rights of composers to sell sheet music. We've lately been treating IP as more like a right, one of many government-granted 'rights' to forcibly control people.

There was a comic called "Licenseable Bear (tm)", that brought up real arguments amid some silliness. What do you think of its argument that a physical object is ultimately made from resources acquired by right of conquest, while a song or story is created from a person's mind and so is at least as legitimately the creator's own property?

Re:Moral Theory of "Intellectual Property" (3, Insightful)

kanweg (771128) | more than 4 years ago | (#28742967)

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

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

Bert

Re:Moral Theory of "Intellectual Property" (1)

Garrett Fox (970174) | more than 4 years ago | (#28743645)

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

Re:Moral Theory of "Intellectual Property" (0)

Anonymous Coward | more than 4 years ago | (#28744751)

(A cure for cancer would be protected for a lot less than life + 70 years, despite being infinitely more useful than this comment!)

1. Copyrighted works are not based on utility.

2. The utility of patented inventions is specifically why they have SHORTER protection than copyright. That's exactly the point.

3. You can relinquish your copyright at any time you wish. If you don't want your comment to be under copyright until 2079+, it doesn't have to be. There's no chance of your comment being valuable past July 2009. That doesn't mean one month is sufficiently long copyright protection.

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

5. We don't appraise works for their artistic or economic value from a statutory position. The crappiest, most worthless work, like Slashdot comments, are entitled to the same protection as an iconic, $200 million film if the author wishes it. Authors as creators and as property owners have the inherent right to determine whether to go for the maximum or to do something else, just as it should be.

Re:Moral Theory of "Intellectual Property" (1)

Wildclaw (15718) | more than 4 years ago | (#28743707)

- You must have noticed that with patents, once an item covered by the patent is sold, it is out of control of the patent proprietor.

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

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

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

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

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

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

Re:Moral Theory of "Intellectual Property" (1)

kanweg (771128) | more than 4 years ago | (#28745733)

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

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

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

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

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

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

Bert

Re:Moral Theory of "Intellectual Property" (1)

value_added (719364) | more than 4 years ago | (#28743247)

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

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

Dear Mr. President:

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

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

Sincerely,

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

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

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

Economic Theory of "Intellectual Property" (1)

symbolset (646467) | more than 4 years ago | (#28743287)

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

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

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

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

Re:Economic Theory of "Intellectual Property" (1)

Garrett Fox (970174) | more than 4 years ago | (#28743671)

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

Re:Economic Theory of "Intellectual Property" (1)

mpe (36238) | more than 4 years ago | (#28744029)

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

In some cases considerably less than that.

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

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

Re:Economic Theory of "Intellectual Property" (1)

gnupun (752725) | more than 4 years ago | (#28744501)

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

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

Why bother protecting them for 60+ years beyond that?

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

Re:Economic Theory of "Intellectual Property" (3, Insightful)

mpe (36238) | more than 4 years ago | (#28743933)

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

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

Re:Moral Theory of "Intellectual Property" (0)

Anonymous Coward | more than 4 years ago | (#28743321)

Ie., is this a 'fundamental right' or a government-granted privilege?

Your post proceeds from a faulty premise.

Not all rights are fundamental rights. A non-fundamental right is not a privilege.

You've clearly not studied law professionally, because this is a basic distinction. You have the right to enter into contracts as a presumably competent adult. It's not a privilege; it's a right. It's not a fundamental right, though.

You have the privilege to drive on the public motorways of your state, not a right. You have a right to own a vehicle.

Because of that abandonment it's harder to think clearly about the question.

Not really. Fundamental rights are human rights. What has been abandoned is an expansive reading of ancillary functions into the category of "fundamental" rights.

Ownership of property is a fundamental right. The definition of what constitutes property, though, is not. It's a social construct. Once a society exists with a common definition of property, however, and in every post-industrial society on earth, that includes industrial and intellectual property, the right to control that property becomes fundamental.

You could equally rally against land being considered property, and disagree philosophically with its existence, but it too is a settled matter.

The Constitution's wording is ambiguous on this point, but seems to treat "intellectual property" as a privilege rather than a fundamental right.

Let's look: "...by securing for limited times the exclusive RIGHT..."

It's hardly ambiguous.

We've lately been treating IP as more like a right

We've always treated it as one, from the first day of ratification of the Constitution. If that's "lately", then sure.

The theory echoes Jefferson's argument that ideas are like a candle-flame, such that "he that lights his taper from mine" doesn't diminish my supply of light.

And ideas aren't property. Again, if you had truly studied this "professionally" (a dubious claim if ever I heard one), this is right around day two of copyright education.

Almost no ideas have a single encapsulable form. The reward is in the expression.

Re:Moral Theory of "Intellectual Property" (1)

Garrett Fox (970174) | more than 4 years ago | (#28743701)

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

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

Re:Moral Theory of "Intellectual Property" (0)

Anonymous Coward | more than 4 years ago | (#28744331)

other than to note that the state bar association would disagree with them.

Unlikely, since copyright isn't covered on the Bar exam, and your "professional" study appears to have consisted solely of an introductory survey course in the subject.

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

Again, a faulty premise.

A fundamental right is a basic human right. Very few legal rights fall into this category.

Other legal rights are guaranteed entitlements under the law--they're not discretionary and they're not fundamental. Most rights fall into this category, from the right to hold title in real estate, to copyright, to the right to travel freely among the states, to the right to complete disclosure of the finances of companies in which you invest.

Getting financial data is a RIGHT. It's not a fundamental right, and it's not a privilege. Rights are powers that can only be taken away by society as a whole. Privileges can be revoked by whomever possesses the exclusive right to grant the privilege in the first place.

A privilege is not a legal right, but a discretionary and qualified grant, whether the power granting the privilege is a government or a private party.

Your false dichotomy isn't working.

Re:Moral Theory of "Intellectual Property" (1)

v(*_*)vvvv (233078) | more than 4 years ago | (#28743431)

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

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

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

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

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

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

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

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

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

Re:Moral Theory of "Intellectual Property" (1)

mpe (36238) | more than 4 years ago | (#28743909)

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

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

Re:Moral Theory of "Intellectual Property" (1)

gnupun (752725) | more than 4 years ago | (#28744627)

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

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

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

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

Re:Moral Theory of "Intellectual Property" (1)

cpt kangarooski (3773) | more than 4 years ago | (#28744639)

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

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

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

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

just pay for your music! (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#28742909)

or get ass fucked in jail by bubba. fucking faggot bitches.

getoffmylawn, inthegoodolddays (2, Funny)

tylersoze (789256) | more than 4 years ago | (#28743029)

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

Copyright is holding us down (2, Insightful)

ammorais (1585589) | more than 4 years ago | (#28743037)

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

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

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

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

Different, not "smarter"... (1)

mi (197448) | more than 4 years ago | (#28743069)

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

A different time, a different place. (1, Informative)

westlake (615356) | more than 4 years ago | (#28743313)

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

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

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

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

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

Bitter protest against copyrights (0)

Anonymous Coward | more than 4 years ago | (#28743513)

If I said I didn't have an incentive to grow oranges unless I could plant a tree in your yard,
or if I said I didn't have an incentive to grow cotton unless I could own slaves on the
plantation, most people would see this is these as the worthless shallow arguments that they are.
But if I said I didn't have an incentive to to make beneficial or creative works without a
copyright monopoly, then all of a sudden people just take it on faith, they don't even question
it, they just assume that society would fall apart without them. In my humble opinion, this is
intellectually dishonest, especially considering that the entire Renaissance happened without
copyrights.

The simple fact is, there is no equivalence relationship between copyrights and property rights -
incentive does not a right make. The moral and historical foundation of property derives from the
fact that property has physical limits, while the foundation of copyrights derives from kings
who granted publishers monopolies in return for not publishing bad things about the monarchy. The
history of copyrights is not one of rights, but control of sharing and restricting the open use
of knowledge.

That is why people who copy are not criminals, thieves, or akin to pirates who board ships and
murder people. No, in fact they are really victims of a cruel deception. A deception that
copyrights somehow financially benefit artists and creators. The simple fact is, that for every
artist that makes it "big" there are literally thousands who copyrights haven't helped a bit,
even hindered, or destroyed.

However, this is not the only failure of copyrights - it is just one in many issues related to
copyrights that are just blown off ignored, or glossed over. Like the failures of Hollywood
culture, the failures of big media to provide quality material, the failures to provide
reasonably priced books to college students while tabloids are dirt cheap, and massive anti-trust
behavior in the software industry to name a few.

While the problems associated with copyrights might have been bearable 20 years ago when the
biggest issue was Xerox machines, today we are entering into the information age where
information is so easy to copy and manipulate that there can be no middle ground. Our society
will either have to control all of it or none of it. Our communications will either have to be
monitored or free, our privacy to be either continuously probed or protected.

In that sense, copyrights are like a vine that will never stop growing to choke off our freedoms
until we cut it off at the root. The DMCA, infinite extensions, billion dollar lawsuits, are all
just symptoms of a poor belief system - not the cause. So the efforts to find a "middle ground"
on copyrights are a failure because they do not address the core issue. That contrary to
copyrights, the right to copy and distribute creative works and knowledge is a right!

Like freedom of religion, and freedom of the press, the right to copy things is a right that
exists above government. It is a moral right, it is an inherent right, it defines the very nature
of the human condition. It is beyond politics and the petition of leaders.

In fact, the entire foundation of politics rests on the notion that it's better to fight wars
with words than wars with bloodshed. But to copy things does not require coercion or violence at
all, the rules are not the same. We will not change the copyright situation by petitioning our
leaders, or voting to change the system. No it can only be changed by defiance.

Defiance by holding the belief that people have rights, even if those rights appear contrary to
the popular mob or to the system. Defiance, by shedding off the guilt and shame that those who
try to impose copyrights impose on us and understanding that they are the ones who should be
guilty and shameful. Defiance by copying and sharing creative works whenever we have access to
them. Defiance by using technologies that make it harder and harder for copyrights to be imposed
upon us. And defiance by rejecting the little lies like .... copyrights "benefit" artists, people
who copy are "pirates", copyrights are intellectual "property" and so on.

Re:Bitter protest against copyrights (1)

mpe (36238) | more than 4 years ago | (#28744095)

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

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

Get rid of copyright... (2, Interesting)

syousef (465911) | more than 4 years ago | (#28743555)

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

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

Re:Get rid of copyright... (1)

Aladrin (926209) | more than 4 years ago | (#28743941)

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

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

Ideas are not copyrighted (1, Insightful)

brit74 (831798) | more than 4 years ago | (#28743717)

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

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

Re:Ideas are not copyrighted (1)

northstarlarry (587987) | more than 4 years ago | (#28743985)

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

Re:Ideas are not copyrighted (1)

cpt kangarooski (3773) | more than 4 years ago | (#28744539)

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

Re:Ideas are not copyrighted (1)

russotto (537200) | more than 4 years ago | (#28744101)

Ideas are NOT copyrighted and have never been.

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

Re:Ideas are not copyrighted (1)

rawler (1005089) | more than 4 years ago | (#28744173)

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

Ideas are indeed copyrighted (1)

Geof (153857) | more than 4 years ago | (#28744207)

Ideas are NOT copyrighted and have never been

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

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

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

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

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

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

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

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

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

Subject (2, Interesting)

Legion303 (97901) | more than 4 years ago | (#28743813)

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

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

Re:Subject (1)

Sir_Lewk (967686) | more than 4 years ago | (#28744023)

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

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

Re:Subject (2, Insightful)

meringuoid (568297) | more than 4 years ago | (#28744251)

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

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

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

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