The Road to Copyright Reform

by publius

I'm almost finished with Remix -- and like all Lessig books, it's very good. One interesting part is that his rhetoric has subtly changed to attract more Republicans. That's not a bad idea, but I think it's ultimately a futile effort.

Lessig was apparently influenced by a reviewer of his earlier book Free Culture who claimed that Lessig was only talking to people who already agree with him rather than to conservatives. In this book then, he adopts a more deregulatory and anti-government narrative, presumably to help persuade Republicans.

Who knows -- it might prove to be an effective rhetorical strategy, but Lessig has more faith in modern Republicans than I do (particularly institutional Republicans such as legislators). Like many other liberals (particularly those who came of age in the late Clinton era), my view of the institutional GOP has darkened considerably over the years. I just don't see any potential universe in which the GOP abandons its slavish devotion to corporate interests and wealth concentration to support major copyright reform. It's just not going to happen. Maybe if the Ruffini Revolutionaries take control, but I'm not holding my breath.

Lessig also, I think, apparently believes that the institutional GOP actually believes in deregulation, and thus could be persuaded by this kind of rhetoric. Maybe things were different back in the golden era, but today's institutional Republicans put business first. If they can accomplish that goal thru deregulation, great. If not, they'll support regulation. There's really not much principle to it, it's whatever is good for corporate America (again, I'm talking about the institutional GOP).

Instead, Lessig should just keep talking to liberals. I think the only realistic way to enact copyright reform is to win the battle internally within the Democratic Party, which will then hopefully pass something one day while they're in power. That's not going to happen soon, because Democrats are still slavishly devoted to Hollywood on IP matters. But hopefully the Obama fundraising model could help break that stranglehold on the party as a whole.

Comments

[cleek]

yeah... i dunno. seems pretty clear to me that neither party has any claim on being better on IP reform.

the DMCA (unanimous) and the Sonny Bono Act (voice vote) both passed under Clinton, after all.

[Ugh]

The IP industry also has a leg up on other businesses because, as Mark Lemley put it in class one day, it's about the only thing the U.S. is a net exporter of (though maybe that's changed).

[ThatLeftTurnInABQ]

The IP industry also has a leg up on other businesses because, as Mark Lemley put it in class one day, it's about the only thing the U.S. is a net exporter of (though maybe that's changed).

This could be a big problem if trade wars heat up. IP is extremely vulnerable to confiscation - what happened to German (e.g. Bayer) patents during the First World War can happen again.

[togolosh]

Problem is that the DLC crowd are pretty much in the tank for corporate interests anyway. The only hope for reform is a coalition of libertarian leaning conservatives and liberals, combined with genuine leadership from someone in power (either the White House or senior Congressional leaders).

The people supporting the current deeply broken system have enormous power over politicians because they have control the channels by which the voters get information. You don't need to make political contributions if you can ensure that your enemies don't get airtime but their opponents do.

[cleek]

IP laws these days are an arcane, technical and convoluted mess - which is no problem for the IP industry, since the laws are written by the industry itself and rubber-stamped by a Congress which is too ignorant to understand the issues and too busy to bother learning.

to get better IP laws, we need better legislators.

[Gary Farber]

Is our teachers learning?

[d'd'd'dave]

Innocent / ignorant question: How is IP reform consistent with protecting the workers? To my naive mind, I think of intellectual property as a good thing for the worker/artist. The worker/artist can use his copyright to make a profit. Otherwise the one who profits would be the mass distributer of the work.

Let me ask it another way. If ideas should be free and in the public domain then how will the guy who spends his time coming up with new ideas receive an income?

[Gary Farber]

" To my naive mind, I think of intellectual property as a good thing for the worker/artist."

Sure, and seventy years after the artist/creator is dead, it's not going to encourage them to produce more work.

I speak as someone whose main line of past work has been as an editor in book publishing.

Hardly anyone in book publishing favors the recent extension of copyright, which are purely a product of Disney and a few other corporations lobbying. The recent changes in copyright extension have nothing whatever to do with artists' rights.

[Phil]

If ideas should be free and in the public domain then how will the guy who spends his time coming up with new ideas receive an income?

The same way they do now. Most major-label (and independent) musicians, you know, earn money through mechandising and radio play, not from their record companies.

[d'd'd'dave]

Gary
Thanks. That makes sense.

[cleek]

If ideas should be free and in the public domain then how will the guy who spends his time coming up with new ideas receive an income?

that's a pretty extreme vision of IP. that gets you into things like Creative Commons licensing (for art) or the GPL (for software). with those kinds of licenses you really do give your work to the world for free. so you have to find another way to make money off them: maybe by selling ad space on your web site when people come to get your free content, or by selling support for your free software.

but i'd say that most people think artists can still sell their works just as they do now. and musicians can still sell concert tickets. and fine artists will still only make limited editions. and all of them still need publishers to do publicity and distribution of physical objects (CDs, books, etc). what changes is the relationship between the IP creator and the customer.

one of my biggest issues with the current IP regime is that it allows content providers (record companies & Hollywood) to dictate the hardware you can use, and what you can do with that hardware. you're no longer buying an LP that you can play on any turntable (or even with a needle and a dixie cup); you're buying a license to play the encrypted songs on an industry-approved player, and the record company can turn off your access at any time. if Apple goes out of business tomorrow, i'll be stuck with many thousands of utterly useless M4P files. the presumption of the IP laws and all the technology is that you are a criminal and that the hardware you buy should do everything it can to keep you from using it in ways the industry doesn't want - like making a copy of a CD for your car, or DVR'ing a movie, or making a backup copy of a DVD for your kids to use, or connecting a non-approved device to your Blu-Ray player (so you can't copy the output), etc..

movie companies fought the VCR and the cassette tape, using the same argument you just made. but they lost. and they didn't go out of business, they just started selling cassettes and video tapes. they adapted to the new technology, and we were all better off. they need to adapt to this new technology, too.

[Marie Antoinette]

If ideas should be free and in the public domain then how will the guy who spends his time coming up with new ideas receive an income?

Why... let them sell T-shirts!

[Sapient]

I posted this article on the "norm" thread already, but it's really worth taking a look - this article about Lewis Hyde and the concept of "cultural commons". He's a colleague of Lessig, and I haven't read much of Lessig's work, but I really enjoyed the discussion of copyright issues, the "gift economy" and the Copy Left movement. I can't wait to read work by Lewis Hyde as soon as I have some time.

[Gary Farber]

For what it's worth, d'd'd'dave, just about every author and publisher I know who has experimented with making a novel or several novel of theirs available for free on the net, including their brand new novel, have found that sales of said novels in print has only improved. Lots of people who will read a book online that they enjoyed, let alone the larger numbers who will read just one, will decide they want to buy a copy to keep, or to read the rest of.

It works as advertising and word-of-mouth does, as well.

As it happens, it turns out that libraries have never put publishers out of business, either.

For more specific references, look into, for example, Cory Doctorow, Charlie Stross, John Scalzi, Baen Books, and Tor Books, among others.

This week Warner Music Group pulled their videos from YouTube because they couldn't reach an agreement to be paid. This is amazingly stupid, because as a rule, you pay media to run your advertising, not vice versa, and that's what music videos do.

Just saying incidentally.

On what I was talking about, the Sonny Bono Copyright Term Extension was dreadful.

The Copyright Term Extension Act (CTEA) of 1998 extended copyright terms in the United States by 20 years. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. The Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier.[1] Copyright protection for works published prior to January 1, 1978 was increased by 20 years to a total of 95 years from their publication date.

No actual artist was helped by this.

Cui bono?

[...]Prior to the 1976 copyright act, many copyrighted literary works, movies and fictional characters were soon to pass into the public domain due to their 56 year maximum copyright terms. Some of these copyrighted items remained quite profitable for their copyright owners, including several characters owned by the Walt Disney Company. With the passage of the 1976 copyright act, early animated short films featuring Mickey Mouse such as Steamboat Willie and Plane Crazy would not enter the public domain until 2000 at the earliest due to their new 75 year copyright terms. Mickey Mouse and other characters also have protection as trademarks. In several countries (e.g. in Russia, where the Berne convention was not applied retroactively[dated info]) Mickey Mouse and all other copyrighted works created before 1970 are now regarded as being in the public domain.

How ambititious are those who seek these extensions?

Mary Bono, speaking on the floor of the United States House of Representatives, said:

“Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. ... As you know, there is also [then-MPAA president] Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.[6]

And to summarize some of the downside of this sort of thinking, and why lots of artists oppose it:

[...] Thus they argue that a rich, continually replenished, public domain is necessary for continued artistic creation. For example, the works of English playwright and poet William Shakespeare and the Greek myths have been the basis for much of Neil Gaiman's writing, which might well not have been created if the original works were still under copyright. Recent works that have entered the popular culture, and for which copyright is arguably not appropriate, include the novels that created Frankenstein and Dracula, both originating in the 19th century. Most of the holy writings of major religions are also in the public domain, which allows them to be adapted, translated, paraphrased and otherwise made suitable to modern audiences. If the Roman Catholic Church had a perpetual copyright on the New Testament, it could have refused to license them for translation, or for use by other churches. Even Walt Disney and Disney pictures, have used works from the public domain notably the brothers Grimm stories of which they have made several notable films.

If all the stories of "Sleeping Beauty" had been locked up by copyright, and the owners didn't want to sell to Disney, we'd never have....

[Gary Farber]

"As it happens, it turns out that libraries have never put publishers out of business, either."

Nor used bookstores, which don't profit-share with authors, and neither do people who loan books to friends.

What they do is increase the number of fans of an author, and widen the pool who are interested in going out and buying copies of their own.

This is not, let me clear, to a defense of people who on their own decide to make free copies of a writer's book available by some means. The decision on how to distribute, outside a signed publishing contract, must always, in my view, be left to the creator or rights holder, as a moral issue. I thoroughly condemn people who decide "information wants to be free," and decide to post a story or novel to the internets, without permission, or make a thousand copies to pass out to their friends, or a few hundred to pass out to their class.

But when the creator, publisher with creator permission, decides to make for some free distribution for themselves, so far as I'm aware it's yet to have more downside than upside.

[Sapient]

Gary, yes, thanks. The article about Hyde in my previous comment nicely discusses the Constitutional provision for copyright and the thinking behind it, and how the exaggeration of copyright protection has thwarted the purpose of copyright law rather than furthered it. The discussion of Emily Dickinson's poetry is an extremely annoying example of how copyright excess doesn't serve the public or the artist.

[OCSteve]

Hit any of the online sample pages: “Copyrighted Material”. And of course the book itself is copyrighted. If he published it under the Creative Commons License I’d be more inclined to take this seriously.

And really, I’m glad you saw fit to squeeze in one sentence about Hollywood and Democrats, but only after bashing Republicans for 3 paragraphs or so.

If it’s really Republicans standing in the way of copyright reform, you’d stand a chance of convincing me if you actually made that case. What reform bills have Republicans blocked? Were Democrats actually better on those bills? Who votes more often is support of the RIAA?

Come on dude. Biden? Biden?

[Gary Farber]

"Hit any of the online sample pages: “Copyrighted Material”. And of course the book itself is copyrighted."

It's from Penguin; Penguin isn't going to publish a book that isn't copyright. And without a major publisher, your book isn't going to be reviewed in the normal major publishing channels, won't be distributed to all but a few bookstores, and won't be seen by remotely as many people.

That's still a fact of contemporary publishing.

"If he published it under the Creative Commons License I’d be more inclined to take this seriously."

Well, then.

Creative Commons Version

The book will be available under a Creative Commons license from Bloomsbury Academic. Stay tuned for launch.

[OCSteve]

Gary: Well, then.

Cool. I do now take him more seriously.

[efgoldman]

Even before the most recent Disney-imposed changes in the law of IP, I never understood why publishers and creators would act to restrict wide exposure of their works.

I worked for 20+ years in classical music radio {yes, young 'uns, there was such a thing!).

We had opera programs on Saturdays and Sundays. But we were restricted from airing anything written after about 1910 because of "Grand Rights" - exorbitant fees for "electronic broadcast or reproduction" not covered by the blanket fees we paid to ASCAP, BMI or the AF of M. Therefore worthwhile and interesting operas never got aired. (The Saturday national broadcasts were handled separately - the sponsor paid a blanket fee for the airing on all stations).

Similarly, I have been involved in several commissions for new concert music. Some pieces were published and widely played after the premieres. Others were held back as rentals (you rent the music for a fixed number of performances, then have to send it back). The rental prices are often multiples of the sale prices of the other subset of music. Guess which become widely known and bring the composers and publishers more notoriety and more business. Not the rentals, many of which stay obscure for decades.

All of this seems to me to be both counter-productive and counter-intuitive.

But then Disney never got over losing the Betamax lawsuit, and they've been leading the rearguard actions ever since.

[OCSteve]

Gary: General question, if you should happen to know. What happens when a work like this is released under Creative Commons after it has been released like this, standard publishing deal, copyrighted, etc.

That is, what prevents the copyright holder from coming after me when I’m claiming usage under the CC license?

[Gary Farber]

"That is, what prevents the copyright holder from coming after me when I’m claiming usage under the CC license?"

I know a lot more about copyright law and practice than I know about Creative Commons licencing, about which I know just a bit.

But the copyright holder is generally the author, and authors don't tend to sue themselves.

Ditto that whomever is going to allow the Creative Commons license is going to be the copyright holder, whether that's the literary heir, or a corporation, or any other entity.

What is apt to be more complicated is getting a publisher whom you sign certainly publishing licenses to, in your contract, to agree to a CC release, but that would be a matter of their willingness, which would hinge on their being able to see that it wouldn't harm their profits or ability to profit (assuming there are profits, which is always the hope, but not always the result).

What today's publishers make of CC as a rule, I couldn't really say, as I'm out of the loop on such recent developments. Offhand, it strikes me as still unusual, and apt to require an additional bump in negotiating, or a very understanding publisher.

But a CC license is still a license, and that's what a publisher essentially leases from an author, anyway; publishers don't buy permanent rights to a work, as a rule (they do if it's "work-for-hire," but I don't want to get deep in the weeds here); they buy a right to publish for a limited amount of time in a given market, and the rights revert to the author or copyright owner when certain conditions are met, such as the work has been left out of print by the publisher for seven years, or a certain number of years have passed, and so on.

It's just a matter of specific terms.

[Gary Farber]

These are the CC licenses, and they're just a specific form of publishing contract, in essence: one that allows for automatic authorization to publish under certain conditions. But they're not a release of copyright rights, really, so far as I can see. They're essentially just a way to authorize publication automatically within the bounds of current copyright law.

[publius]

Steve - on the republican issue, it's a fair question, though i suspect you'll be unsatisfied with my answer.

take net neutrality -- a few years, both parties were terrible. then a combination of grass roots groups and content companies convinced the dems to get on board. and now they're generally for it (and it's become polarized on party lines -- not completely, but that's how the votes go).

i sort of see copyright taking a similar path. right now, dems are awful too -- but lots of them aren't hearing from anyone in the coalition OTHER than colleagues with hollywood money. i think they're persuadeable if they start hearing from others.

in short, i think it's at least POSSIBLE to get Dems on board b/c there's an interest group (the netsrooty types) within the coalition capable of pushing it. there's no comparable coalition within the GOP.

i made it more of a morality play -- but you can also just see it as interest group politics. there are wide parts of the dem coalition who could conceivably push for this. i'm just not seeing that anywhere on the gop side

[OCSteve]

Thanks Gary.

[OCSteve]

…though i suspect you'll be unsatisfied with my answer.

Not unsatisfied. That’s a fair answer, although it seems like you’re throwing a few dissimilar things into the same basket.

I just objected to making the R’s out to be the center of the problem here without some kind of examples of how they are the ones blocking reform. I don’t recall many (any?) examples of that. That’s not to say you’re wrong, just looking for specifics.

I mean, if you asked me: “Quick – name the three worst politicians on copyright reform, and no googling.” I would respond Joe Biden, that one Senator from Delaware, and that older guy Obama picked for VP…

In terms of technology votes in general, this is a pretty good resource. Click around the states and pick your favorite pol to see how they voted on various tech issues. There is a spreadsheet too but it never seems to work for me (and beware macros).

[Gary Farber]

"I just objected to making the R’s out to be the center of the problem here without some kind of examples of how they are the ones blocking reform."

I think that's fair; the Democrats have sucked on copyright. I don't disagree with publius' hopes, but it remains the case for now that the Democrats have been worse than useless on copyright.

(Although Sonny and Mary Bono were Republicans. ;-))

[Mike Schilling]

It's not that different from software. I can release the identical program under different licenses, some of them free, some not, assigning different sorts of rights to each. For instance:

License 1: You have complete rights to the source code, including publishing it, modifying it, incorporating it with other code, etc. for all non-commercial use. This is a free license. It includes no support or warranty.

License 2: You have complete rights to use the compiled code in your commercial product. You have no right to modify the code. I charge you for this, and in return I support the code.

And the two licenses stay distinct; in a sense, there are two different products. You can't get support unless you've paid for license 2, and you can't get the source code under license 1, modify it, and claim the right to incorporate the result in your commercial product under license 2.

[R Mitgong]

"I speak as someone whose main line of past work has been as an editor in book publishing."

So slushpile reading at a sci-fi publisher fifteen years ago is editing? Way to parse, and a nice appeal to (notional) authority.

Your history is readily available through rec.arts.sf.* for anybody who cares to look.

[Ben Alpers]

The Democrats have been, if anything, even worse than the GOP on copyright, in part because the entertainment industry is closer to the Democrats. Jack Valenti and Dan Glickman are, of course, Democrats.

I seem to remember that one of the few hopeful things about Bush's appointing Ashcroft to be his first attorney general is that Ashcroft was good on IP (in part because Christianists want to be able to edit objectionable bits out of movies)...but I'm too lazy to look this up at the moment. And, of course, the Bush Administration did nothing positive on this front.

[Shane]

Publius,

I think you're wrong on your original post that Republicans can't be convinced. It may be that I don't know any institutional Republicans, but the young Republicans (who are admittedly not as robust a breed as young Democrats) I am friends with pretty much all agree that IP reform is necessary. We talk about CC licenses, DRM, derivative works, and open software licenses on a regular basis. It will take time, to be sure, to trickle upwards to the actual institutional Republicans, but I'd expect their coming years of being the opposition party will loosen the grip of monied interests in the party.

Anyway, institutional Democrats are hardly the model politicians on this issue anyway. It should be a grassroots issue that gets the attention of the politicians - with that dynamic we can and should try to sway ordinary Republican voters onto our side, just as we should with ordinary Democratic/Independent voters.

[Gary Farber]

"So slushpile reading at a sci-fi publisher fifteen years ago is editing?"

No.

"Your history is readily available through rec.arts.sf.* for anybody who cares to look."

I should think, a fair chunk, yes. You're obviously a little confused, though.

[Hartmut]

Some special perversions of IP/copyright come up when the topic is original Nazi "art". Some of the most notorious nazi songs are still protected, i.e. the copyright owner can cash in on their use, like in documentaries or feature films, or decide to keep stuff out of circulation despite a perceived "public need" (in effect leading to pirate copies from questionable (=nazi) sources.
E.g. there is a legal English edition of Mein Kampf because Hitler sold the rights for that but no German (because Bavaria as Hitler's heir does not allow even an academic/scientific edition). Some movies are also banned from circulation in Germany for being anti-British while being freely available in Britain etc.

[Hartmut]

Additionally quite recently there was an attempt to extend fees for any use of some popular children songs, including whistling them in private (!). Iirc the attempt was withdrawn before any court could step in because of public outrage.

[Andrew]

I wonder if anyone has tried product placement in songs or books, like they do in movies & TV.
Like writing a novel, and for fifty grand the main character often drinks Pepsi.

While the notion sorta rubs me the wrong way, it could be a viable revenue generating alternative to copyrights for some creative works.

[Phil]

Jack Valenti and Dan Glickman are, of course, Democrats.

Jack Valenti is dead.

[Hartmut]

Andrew, I can't name examples at the moment but that happens.

[Gary Farber]

"I wonder if anyone has tried product placement in songs or books, like they do in movies & TV."

Yes.

[David]

Cleek,

"if Apple goes out of business tomorrow, i'll be stuck with many thousands of utterly useless M4P files."

Your decision to invest "many thousands of" dollars is evidence that you aren't in any way concerned about this eventuality. Also, the quotation is an exaggeration if your CDR still works. However, with the advent of iTunes Plus, this argument holds no water, wrt to Apple itself. If Apple's renegotiated licensing from the labels permitted it, all previously downloads of DRMed music could be upgraded (re-downloaded) to DRM-free higher-quality files (and deals are still being struck to expand the catalogue without DRM). If you really have spent thousands downloading M4Ps, I'd think you'd definitely be interested and motivated to convert them to higher-quality, unprotected M4As. Given this, with only the tiniest bit of attention while shopping you can avoid DRM completely while using the iTunes music store. Vote with your dollars. Their software and player of course work entirely independently of DRM -- supporting most unencumbered audio file standards. There are many other distributers offering unencumbered music files as well, e.g., Amazon and Emusic (and CDs aren't rare yet, either).

That said, other tech companies are still in bed with DRM, notably Sony and its new era of Blu-ray monopolies and the entire Microsoft eco-system (from the xBox Live Store to Zune Marketplace). So a better example to scare people out of buying encrypted crap is, "if Microsoft goes out of business tomorrow, or simply changes its mind and axes the Zune, I'll be stuck with thousands of useless WMAs."

Jeez, it sounds like I'm at Slashdot or something.

I agree though, we do need better legislators. I'd hoped that Lessig would have gotten drafted into the incoming administration. That might have helped mitigate some of the damage that bad legislators do.

[Gary Farber]

I Just everyone would acatch up oln their Greg Egaan, thei vernor Venige, thei brcuce. tjeor bill,they;re bad sepllorws, their herb varleu. amd a; tje lookouts. they've moveing fast, adn the're always ahead.utnil and past te==-hue;re githing uou ind the ass

[Gary Farber]

Ah. Too much ambien, I see. :-(

[KCinDC]

I figured that was an impostor, or possibly some bizarre joke you were making, Gary. Hope you're feeling better.