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June 10, 2009

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Dot-communists are so cute, especially when they come with jaunty eye-patches.

It is so comforting to know that if there are two members of the BNP in the European Parliament *hack* *spit* there are also two Pirates.


Elemenope - I think you'll find lots of "anti-IP" types are hard-eyed (or dollar-signed-eyed) capitalistic creators of IP. Check out the excellent rant from http://baen.com/library/ - or most anything from Cory Doctorow. They favour letting people copy because it lets them sell more books.

They also got 3.4% in one district of Berlin.

I have always supported IP rights because they fit under the basic premise that if I come up with an idea, invention etc having done the intellectual legwork, or labwork (as fits the situation) I should get the credit, the royalties etc.

Pretty much the same way that stuff I make is mine to be sold to anyone I want (and not simply taken away from me) for agreed upon prices.*

i.e. I subscribe to the quaint notion of property rights. Of course, we dont have to accept lockean original acquisition, and I further acknowledge that property does not have to be private.

However, conventions have created a situation where people create information in the expectation that only paying customers have access.** Therefore, when I download freely what the content's author intended to be sold, I use the content's originator as a means only without taking him into account as an end in himself.

Striking down patent and copyright laws basically forces information producers into a particular system of property rights that they have not agreed to.***

*This is not an anti tax tirade. For the record, I acknowledge that I have a moral duty to pay my taxes.
**Of course there is also open source etc but that does not detract from the point that a lot of people still make stuff like movies and songs under a framework that they actually own such content. The current system does not prevent people who wish to freely release their content from doing so.

***In true Nozickean fashion, the current system as it is allows for competing IP right systems to compete and flourish simultaneously. At least in the virtual world, we are able to obtain zero entry/exit barriers and therefore are able to obtain a framework for utopia as outlined by Nozick in ASU.

There is a danger that I may have misinterpretd what the current laws say and what IP reform is supposed to aim at.

Striking down patent and copyright laws basically forces information producers into a particular system of property rights that they have not agreed to.

My heart bleeds (in Technicolor) for Disney.

My heart bleeds (in Technicolor) for Disney.

There will always be copyright disputes (with or without associated sob stories), the problem with the hard core piracy culture is that these kiddies want to turn IP law on its head and claim some sort of birthright to enjoy all the products created by content producers for free.

I think the Pirate Party's first plank (oh, you have to love that) was to officially rename it the European Parrrrrliament.

Funny, in the Constitution, it talks about copyright and patent NOT as property rights, but "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

The two key parts are "promote the progress of Science and Useful arts" and "for limited Times". Our current IP law does neither of these terribly well. And the Pirate Party's platform seems to fit that too.

Though they're European, so what the US constitution says is kinda irrelevant to them. But the point is, IP isn't the same as "property rights" for actual physical things. Not just because the Constitution says so (though that's important for US law) but because IP is all about knowledge, and knowledge is nonexclusive and nonrivalrous (More than one person can use it at once, and somebody else using it doesn't prevent you from using it. More on that here)

On a more serious front, the Guantanamo Uighurs are going to Palau.

There will always be copyright disputes (with or without associated sob stories), the problem with the hard core piracy culture is that these kiddies want to turn IP law on its head and claim some sort of birthright to enjoy all the products created by content producers for free.

I'm not sure why that is a problem per se. It is quite common for interest groups to ramp up their rhetorical claims in order to move the overton window. Many groups maximalize their claims even if they have no expectation (or desire) for realizing the maximum version of their claims.

Many people believe that intellectual property regulations have become heavily tilted to favor large corporate interests above the public interest. These people support most of the policy aims of the pirate party and they are not "kiddies". IP law is already an intellectual joke; "turning it on its head" could not change that.

Novakant, I wouldn't describe Disney as run by "kiddies", but Peter Pan just happens to be an example where they were cheating a children's hospital (and the irony is, Peter Pan wasn't out of copyright in the US thanks to Disney's actions).

Copyright can belong to an individual creator, or to a company. If copyright belongs to an individual creator, it used to expire 50 years from the end of the calendar year in which the last remaining author of the work dies - which Disney and other corporations extended to 70 in the UK, and have successfully extended still longer in the US. Given that a corporation can be immortal, if a corporation is deemed to be the author of a work, for how long shall the copyright endure?

Where individual creators of music want their works to be available for free on the Internet because the more people who hear them, the more successful they become (and the more people likely to buy CDs) but the corporations who own the copyright can ban the free sharing of music because they think, in their shortsighted way, that this will cut into their profits, who wins? And who ought to win - the original creators, or the corporations?

Did you know that the music industry once claimed that the ready availability of blank audio tapes and cheap sound-recording devices would destroy their industry, because who would buy music if they could share tapes / record from the radio for free?

(Did you know that when Monty Python released all their old works for free on YouTube, their sales rocketed?)

Did you know my main motivation for not buying commercial DVDs is that if I get pirate copies of movies or TV series, I get to skip the awful anti-piracy ads at beginning or end? In general I prefer to buy commercial DVDs of series I follow or movies I like, but I hate those anti-piracy ads so much it's a serious motivator to buy pirated copies to avoid the ads...

"They maintain that all non-commercial copying should be legal, and that copyrights should last for five years, that there should be no patents, and an end to excessive government surveillance."

OT, I agree with a modified form of the first, which is that all copying for strictly personal use should be legal, I agree with the last (who is for "excessive" government surveillance, anyway?), but since we're clearing the decks on personal use copying (that's pirate language, arr!), I'd go back to copyright being life of the author, or eighteen years (or so), whichever is longer. (The latter so the family of the deceased has something to live on if the author dies abruptly.)

I don't feel expert enough in patent law to stake out a position on it.

Copyright should not be a tool infinitely extended for the benefit of corporations, allowing the indefinite suppression of use of what may become popular mythology, and neither should it disappear, crippling the ability of authors and creators to benefit from their creations. IMO.

"OT" meaning "on topic." Sorry, I'm rather lightheaded with lack of sleep; we had a power outage last night, and I didn't get much rest.

"Where individual creators of music want their works to be available for free on the Internet because the more people who hear them, the more successful they become (and the more people likely to buy CDs) but the corporations who own the copyright can ban the free sharing of music because they think, in their shortsighted way, that this will cut into their profits, who wins?"

I don't know much about the music publishing business (I do know a fair amount about the text publishing business), but I'm unclear whether you are talking about: a) written music; b) audio performances; or c) not copyright, but music publishing or performing licensing rights by contract. These are all different things. Possibly you might clarify which you are referring to?

I'd go back to copyright being life of the author, or eighteen years (or so), whichever is longer. (The latter so the family of the deceased has something to live on if the author dies abruptly.)

Do you have any sense for how many families seriously depend on the royalties of a dead relative?

For myself, I don't think it makes sense to have copyright tied to an author's lifespan UNLESS we make real changes to address the orphan works problem. One improvement would be to require mandatory registration and renewal every 5 years so that if the copyright office doesn't get your renewal form, you lose copyright. If they do get your form, then prospective licensors have some way of contacting you. This way, we avoid the current trap where the vast majority of old works have been abandoned but publishers have no way of tracking down copyright holders so there is no way to secure rights.

"Striking down patent and copyright laws basically forces information producers into a particular system of property rights that they have not agreed to."

Retroactive extension of copyright terms also forces (past) content creators into a particular system of property rights that they did not agree to.

For instance, the animators and artists who worked on early Disney movies did so under the expectation that their work would become public domain in a much shorter period than is now going to be the case. Their assignment of copyright to their employer at the time was based on that agreement. I do not think it is at all unlikely that many of them would be upset to find out that instead of their work joining that vast amount of public domain material bequeathed to the next generation for whatever creative purposes they wish, the Disney corporation is still making money off of it and filing lawsuits against people who reproduce or adapt it for their own creative purposes.

Disney's own material is based in that enormous amount of public domain literature. Unfortunately, the next two or three generations are denied the opportunity that the early filmmakers took for granted: to take the material that was familiar to them and transform and adapt it. Instead, we have copyright terms for movies that mean that people who saw them at first release will likely never see them in the public domain.

For the record, I'm a programmer and therefore make my living by creating "IP" - I would much rather say "creative works", since while I do think there should be some property-like rights attached to creative works, I think they should be sharply time-limited and subject to many exclusions. I respect other people's creative works very much, and I don't begrudge anyone the ability to make money off of them - just only for a limited period of time. I would favour a 20 year copyright term and much looser (and more explicit) exemptions for fair use.

Not that it's going to matter much, because technology - in particular Bittorrent, which is a genius idea by the way - has already outstripped the ability of anyone to control the distribution and duplication of digital media. All that's going to be left to get people to buy creative works are social norms, product quality, and convenience. In their quest to preserve the ability to make money off of movies and music made 50 years ago - to the point of suing grandmothers for their grandchildren downloading a few songs - the studios have, I think, done their own part to erode the mutual respect that was required for voluntary compliance with copyright laws.

And the widespread use of filesharing and the indifference to the idea of "Intellectual Property" is a sign, if you ask me, that the democratic will of the people is that they see more social benefit from the free availability of recorded material than they do from the present copyright regime. The studios might do well to compromise now on a shorter term that might preserve their ability to make money off of new releases and a limited part of their back catalog, rather than 5 or 10 years from now having the de facto acceptance of mass piracy become a de jure acceptance of it - something that I think is a real possibility. Banning things that nearly everyone does has never worked very well.

I should think that if one is going to admire Sweden it might be on better grounds than that it gives a voice in the European Parliament to the consummately crackpot.

Yeah, by all means give up all patents so that monolithic companies can steal any idea they want from anybody at anytime.

Can't have too many monolithic companies!

And innovation by independent inventors? I'm sure that doesn't happen -- and if it does, who cares what comes of the ideas or the inventors?

OT

17 Uighurs x $12,000,000 = $204,000,000 / approx 20,000 palauan citizens = $10,200 per palauan citizen.

My niece and her husband teach school in Palau. Perhaps I'll get some feedback on what Palauans think of this.

"Do you have any sense for how many families seriously depend on the royalties of a dead relative?"

In the genres of popular fiction, plenty. Off-hand, I can think of at least a couple of hundred I've known of personally. Heck, I'd say I've met at least somewhere over a hundred such people personally. So, off-hand, I'd say at least thousands of such people.

Of course, the situation has grown far worse since the decline of backlists, but that's hardly an argument for making their situations even worse.

Yeah, by all means give up all patents so that monolithic companies can steal any idea they want from anybody at anytime.

Um, under the current patent system, large corporations steal ideas all the time. Here's how it works: I'm a small company and I invent a brilliant computing idea. I rush to patent it and start selling software that makes use of it. IBM likes the idea and starts using it. I complain to them and demand they pay patent royalties. IBM, with a vast army of lawyers, responds by reminding me that they own patents on displaying text on a bitmap display. Since almost every computer program in the world, including mine, does that, I am now using IBM's patented technology without a license. The nice lawyers then ask if I'd like to settle for a cross licensing agreement whereby IBM pays me a fraction of what my idea is worth in exchange for allowing me to sell software.

And innovation by independent inventors? I'm sure that doesn't happen -- and if it does, who cares what comes of the ideas or the inventors?

In many industries, this model of invention doesn't really apply. Most ideas are invented by multiple people and the best ideas are rarely patented. I've read a number of patents in my field and I've never encountered one that I didn't think was a joke.

In the genres of popular fiction, plenty. Off-hand, I can think of at least a couple of hundred I've known of personally. Heck, I'd say I've met at least somewhere over a hundred such people personally. So, off-hand, I'd say at least thousands of such people.

Sorry I think I was unclear. I was referring to families that rely on a relative's royalties to survive. As in, the royalties are what keeps them above the poverty line. I'm sure there are many many families that derive some income from a relative's royalties, but I'm really unclear about how much money we're talking about here.

"One improvement would be to require mandatory registration and renewal every 5 years so that if the copyright office doesn't get your renewal form, you lose copyright."

Given how awful the overwhelming majority of writers are with paperwork, that's practically the same as eliminating copyright. Also, for crissakes, some people write, or have written, a couple of hundred short stories per year; they'd have no time to do anything beyond filing paperwork.

Basically, this idea is insane. You obviously don't know any, or at least many, professional fiction writers.

"This way, we avoid the current trap where the vast majority of old works have been abandoned but publishers have no way of tracking down copyright holders so there is no way to secure rights."

The overwhelming majority of such cases are cases where the creator is dead.

"I would favour a 20 year copyright term"

This sounds like a long time, but if you've worked in publishing, and found yourself dealing with countless writers living in poverty or near poverty, to whom income from work written thirty or forty or fifty or sixty years ago is a huge deal, it's a period of time that can seem to go by in very short order indeed.

Maybe you would have wanted to tell Jack Williamson that he should have just sucked eggs because he died two and a half years ago, having been born in 1908, and written some of his most reprinted work in the 1920s, but I can imagine few things more cruel than kicking grand old masters in their senior years.

Would you volunteer to tell Fred Pohl that he doesn't deserve any more income from the majority of his life's work? Ask him what he thinks of the idea on his blog while you can, I suggest.

Turbulence, what your scenario with IBM fails to take into account is that the individual or small company must, of necessity, get a piece of the action if they have a patent on a new idea.

IBM may or may not be able to try to enforce some of its patents against the small company, but even if it can, it can't copy the idea with legal impunity, as you seem to be suggesting. They can be sued for lost royalties and damages, including triple damages if they knowingly violated the patent. Those monies can be very significant, particularly to a small entity, if the idea itself is large in market and scope.

And what would happen if, as you suggest, no patents were in force? IBM would simply steal the idea, and the small entity would receive NOTHING. How is that better? How does that encourage inventors and their investors to develop an idea?

And you assert that in some industries such models of invention don't apply. I'd argue that general point another time, but the idiot "Pirate Party" is apparently asking for something far more general: that patents be dispensed with entirely, no matter the industry.

If people claim the patent system needs reform, I won't disagree. But eliminating them entirely is a ticket to greatly reduced innovation.

Jesurgislac

"Where individual creators of music want their works to be available for free on the Internet because the more people who hear them, the more successful they become (and the more people likely to buy CDs) but the corporations who own the copyright can ban the free sharing of music because they think, in their shortsighted way, that this will cut into their profits, who wins? And who ought to win - the original creators, or the corporations?"

How did the corporation acquire the copyright from the artist? The artist gave up the marketing rights to the music in exchange for money. How can the artist now give away something he does not own?

Artists are free to not sell their copyrights. But they often do sell them. If you remove the value of the copyright to the 'corporation', namely the right of the corporation to control how the music is distributed, then the corporation will not pay much for the copyrights in future. Then artists who want to sell them will not get much.

It seems better for the artist to keep the system the way it is. Copyrights can either be sold for good value, or the artist can keep it and do what he wants with it.

d'd'd'dave, if you think most musicians get "good value" for the contracts the music industry uses, you're wrong. Many bands make their money from the merchandise they sell when touring. They make pennies for every CD that sells, and the music company takes fees for marketing and studios and advances and anything else they can come up with out of that first.

The ONLY reason the music companies have the power and money they do is because they've been able to turn their position as middlemen to extort money from the artists and customers. And make people re-buy the same albums over and over with records, then tapes, then CDs, and now mp3s. It's the rebuying of music that's been their main cash cow.

Nate

It is not for you and I to decide what amount of money is good. It is the artist who decides whether the amount of money offered is good. The fact that an artist accepted the money in exchange for the copyright is a strong indicator that the artist thought the money offered was good enough.

The fact that an artist makes more from concerts is not relevant to whether the price of the copyright is good. It's like saying that Michael Jordan's Bulls salary wasn't good because he made more from selling shoes. Also the fact that a music company finds ways to repackage and resell the work is not relevant.

The extension of copyright to 70 years or whatever isn't very relevant to the pirate community, since the focus of illegal downloaders is overwhelmingly on brand-new or newish (say up to five years old) albums and films (some get leaked even before they have been finished, cf. Half-Life 2 or more recently Wolverine).

And if you want to distribute your music for free on the internet, that's quite simple: just put it on youtube or somesuch and don't sign that contract with the evil music industry.

Turbulence: One improvement would be to require mandatory registration and renewal every 5 years so that if the copyright office doesn't get your renewal form, you lose copyright.

What, more bureaucracy? No, I'm not in favor of any changes to copyright law that tend to advantage corporations over freelancers.

As in, the royalties are what keeps them above the poverty line. I'm sure there are many many families that derive some income from a relative's royalties, but I'm really unclear about how much money we're talking about here.

Nor am I, but I don't see that makes much difference. "Lifetime of author plus 50" allowed the author and the author's direct descendants to continue to profit from creative works: "Lifetime of author plus 18" would seem to be a reasonable basic minimum, at least: an author ought to have reasonable certainty their family will be provided for.

"but I can imagine few things more cruel than kicking grand old masters in their senior years."

Nobody is guaranteed income for life without working, saving, or relying on social insurance. I respect Jack Williamson and Fred Pohl, but respecting someone and thinking that they should be entitled to a legally-enforced revenue stream at the expense of the common good are two quite different things. As for telling Fred Pohl so on his blog, no thank you; I already know his opinion, he is entitled to it, I respect it, and I don't think changing his mind is very important.

As for families making a living off of royalties from dead relatives, no problem - within the copyright term. I have a pretty big problem with that being an indefinitely-prolonged situation, as again, I am not a particular fan of systems that guarantee income streams for people who are not working at the expense of the common good.

We would all like to have money fall from the sky forever to reward us for our present work, of course. That is a natural, understandable, and sympathetic desire. That does not mean we are entitled to have the government enforce a system of laws to make that possible by reducing the access to information and the creative rights of everyone else. Most people do not expect anything more than short-term renumeration from their work. (And certainly science-fiction writers are not doing it because they dream of 80 years of income, at least, not the ones I know; they'd be writing even if it paid nothing and they had to work in a coal mine all day to make ends meet.)

Again, since I write software for a living, this is not an academic concern. Because the current copyright regime so severely restricts our ability to build on previous work, the software community has had to come up with an alternative, free regime, which has coincidentally thoroughly disproved the idea that novel creative works would not be created without the guaranteed income streams from copyright.

Mind you, since my 20 years is a pretty "extreme" view it would be silly to make it the focus of argument. Anything shorter than the current system would be an improvement. (However, extreme though 20 years would be compared to the current law, the respect that the 35-and-under generation have for copyright law is demonstrably very small. 20 years might start looking like a pretty good compromise position.)

It is not for you and I to decide what amount of money is good. It is the artist who decides whether the amount of money offered is good. The fact that an artist accepted the money in exchange for the copyright is a strong indicator that the artist thought the money offered was good enough.

This is true in a free market.

The current market for recorded music is not free and is highly constrained with respect to distribution.

I think some sort of acknowledgment in copyright law (in terms, in particular) of different kinds of copyright violation would be useful. Right now we seem to have two tiers: things that fall under fair use are legal at any time, and things that don't aren't until copyright runs out. But there's a significant difference between using material for noncommercial use and for commercial, for using literal sections of the original (text in written works, clips of footage in video, &c.) to make something versus using characters and settings and such to make something (whatever happened to "ideas can't be copyrighted"? "Derivative works" apparently), and then there's varying types of use (the satire versus parody distinction is absurd), levels of publication (surely painting characters on your wall is different from putting them on your website?), and amounts the copyright-violating works rely on the copyrighted material.

Obviously not all of these can be reasonably taken into consideration, if you want copyright law to be useful for the layperson, but different terms for non-commercial republication, commercial republication, non-commercial use of sections of original, commercial use of sections of original, non-commercial use of ideas (characters, settings, &c.) found in the original, and commercial use of ideas found in the original (maybe have another level of distinction for the latter two: in the same medium, in a different medium--i.e., Potter Puppet Pals and Buffy fanfic would be treated differently than HP fanfiction and Buffy fanvids) would, I think, be useful, and help get rid of a lot of the resentment that Steamboat Willie is still not in the public domain.

gwangung

"The current market for recorded music is not free and is highly constrained with respect to distribution."

How does that change things? The artist is still free to distribute in any way he is able.

In re: the part of the discussion on musicians, can we please all make sure to distinguish between music recording and music publishing; and between copyright in the songs themselves and copyright in the actualy recordings? People are conflating a lot of different things here.

"It is the artist who decides whether the amount of money offered is good."

For "good" read "the best deal the artist is likely to get". Which often doesn't equate to any reasonable meaning of "good".

For quite a long time, although less so nowadays, record companies basically had a lock on distribution channels, which gave them an overwhelming advantage in negotiations with artists. Lots of musicians have seen nothing at all from even quite popular recordings.

So, strictly speaking, yes, it's the artists' decision to take the money or not. But artists have historically quite commonly been screwed, and royally so.

"And if you want to distribute your music for free on the internet, that's quite simple: just put it on youtube or somesuch and don't sign that contract with the evil music industry."

That's an increasingly popular business model.

My favorite story along these lines was when John Fogerty's record company sued him for plagiarizing himself when he wrote a song that was similar to a song they held the publishing rights to.

That takes a special kind of chutzpah, the possession of which is an almost sure guarantee of a brilliant career in the recording industry.

Lots of musicians have seen nothing at all from even quite popular recordings.

Indeed, it's worth remembering that the Beatles didn't really get rich off of their royalty checks from Parlophone (although those weren't insignificant). They got rich from their shares in Northern Songs Ltd., their publishing company; and via their fees from performing rights organizations for radio airplay, both of which dwarfed their Parlophone royalties.

Do you have any sense for how many families seriously depend on the royalties of a dead relative?

It's one thing to say that IP rights should persist for a family for a certain X number of years after their death. I'm fond of 18 years myself; it ensures that any dependents of the deceased creator are provided for until they are of age themselves. I would even favor a contingency that reduced that duration if there were no dependent children in the equation, but for the sake of simplicity I'll accept 18.

It's true that I don't really have a sense for how many families depend on a dead relative's royalties, but that also isn't a demographic that really moves me to sympathy. It's one thing to have your family's breadwinner suddenly die, and not have to worry about their income immediately going away. But 18 years is more than enough time for anyone able-bodied to manage to do the same themselves if they're bothering to try.

"Speaking of SCOTUS: I think it's obvious from looking at her face that Sotomayor is a long-term, heavy drinker."

Dude, you could have brilliant career in the recording industry.

Given how awful the overwhelming majority of writers are with paperwork, that's practically the same as eliminating copyright. Also, for crissakes, some people write, or have written, a couple of hundred short stories per year; they'd have no time to do anything beyond filing paperwork.

I don't think this regime would be so onerous. In the worst case, you could always outsource the submission an attorney or third party. They send you a bill every year and ask you to update your contact information. As long as you keep paying, they file the paperwork for you. All you have to do is remember to pay the bills and remember to notify them when you produce a new work. Note also that copyright office could make these transactions entirely paperless; there's no reason to require paper submissions, especially for renewals. And the government would probably much prefer that they were paperless; such transactions are far cheaper.

Moreover, the whole point is that the vast majority of copyrighted works have no commercial value. It does not make sense for those works to be inaccessible to marginal publishers. If your copyrighted work is so commercially insignificant that it is not worth a few dollars from you every year to pay a service to renew it with the copyright office, then I'm not sure why it should be copyrighted.

Basically, this idea is insane. You obviously don't know any, or at least many, professional fiction writers.

Um Gary? You don't know a damn thing about who I know. There is no need to demonstrate your ignorance in this way. Please stay focused on the issues at hand.

You are correct though that I'm more concerned about the impact on society as a whole than on the narrow benefit to a small group of professional writers.

The overwhelming majority of such cases are cases where the creator is dead.

I don't understand why this changes anything. If the author is dead, then you have to track down their estate which is often extremely difficult. There are many estates that have no interest in dealing with their dead relatives' copyright but there's no way for them to register that intention and they may not even know that they've inherited rights. My proposal would eliminate this uncertainty: if you care about inherited copyrights, you have to file the renewal. If you want to publish a piece and the copyright office doesn't have a listing on file for the last five years, you can do so without worrying about infringement.

This sounds like a long time, but if you've worked in publishing, and found yourself dealing with countless writers living in poverty or near poverty, to whom income from work written thirty or forty or fifty or sixty years ago is a huge deal, it's a period of time that can seem to go by in very short order indeed.

The number of such writers today matters a great deal less than the number of such writers in the future. The amount of information available to people is expanding greatly which means that a smaller and smaller number of writers will ever be able to derive significant long term royalty income from their writings. Do you really believe that the number of writers with royalties over, say $20,000 per year is going to increase in a world where information only becomes more available?

Maybe you would have wanted to tell Jack Williamson that he should have just sucked eggs because he died two and a half years ago, having been born in 1908, and written some of his most reprinted work in the 1920s, but I can imagine few things more cruel than kicking grand old masters in their senior years.

Copyright is not a natural right; it is an agreement that society makes because it benefits society. I've got no problem telling Jack or anyone else that the system they've benefited from has been unfairly tilted to their advantage and that in order to rectify that, they're going to lose some future income. Just like I got no problem telling rich folks that they're taxes need to go up and just like I've got no problem telling union workers with great insurance that we're going to need to tax their benefits.

Really now, are you seriously defending the principal that once people gain income from some social arrangement, that arrangement can never be changed because it would deprive some old people of some income?

Would you volunteer to tell Fred Pohl that he doesn't deserve any more income from the majority of his life's work? Ask him what he thinks of the idea on his blog while you can, I suggest.

Sure I would volunteer. I don't feel like going to his blog because I have a job, and a life, and I don't really care what he thinks, but if you care to send him to my house I'll be happy to explain myself.


What, more bureaucracy? No, I'm not in favor of any changes to copyright law that tend to advantage corporations over freelancers.

Why do you think this would favor corporations over freelancers? Freelancers manage to pay their taxes every year, visit the dentist, do regular maintenance on their cars, and property taxes. If a freelancer can manage any of those things, I think they can deal with paying a service a few bucks a year to file the renewal paperwork for them.

Look, every time an orphaned work remains inaccessible, society suffers. Abandoned works are our shared heritage. The current system minimizes bureaucracy at the cost of making most orphaned works legally unavailable. This is a bad tradeoff for society. Professional writers can deal with the cost of spending a few dollars a year if it means society as a whole gets the legal right to access a large chunk of our shared heritage.

My nephew's band

Please send him a nickel if you are in favor of artists without recording contracts making a living.


"can we please all make sure to distinguish between music recording and music publishing; and between copyright in the songs themselves and copyright in the actualy recordings? "

People who write and perform original songs for a living can make money from those songs in a few different ways. The main ways are publishing, performance rights, and mechanicals.

Mechanical royalties are paid to the artist when a physical copy of a recorded performance is either created or sold, depending on the deal. So, if you own the mechanical rights to a recorded performance and somebody sells a copy of that recorded performance, you get a piece.

Performance royalties are paid whenever anyone (including the artist) performs the song, or any recorded performance of the song is played on the radio or other broadcast medium. Venues that play recorded music -- bars, radio stations, TV, restaurants, elevators -- keep track in more or less reliable ways of what they've played, and pay fees to one of three royalty distribution agencies -- BMI, ASCAP, or CESAC -- who then figure out how much of that money should go to whom, and cut the checks.

Publishing is kind of a catch-all and refers to basically any use of the song, including the performance but also including sheet music, re-use as an advertising jingle, use of some recognizable part of the song ("Hey Mr. Tambourine Man!"), etc etc etc.

Artists regularly get screwed on all of these fronts.

Unless you have a desire to be a Great Big Rock Star, most artists find it just as lucrative and far less depressing to publish and distribute their own stuff. With the advent of the Internet and advances in technology, you can do pretty well that way, although it takes a lot of work and skill above and beyond just writing and playing music.

"Most girls in the recording industry are trashy coke whores. Some argue they deserve to get raped."

Woodwork squeaks and out come the freaks.

Turbulence, what your scenario with IBM fails to take into account is that the individual or small company must, of necessity, get a piece of the action if they have a patent on a new idea.

The current system does not enforce this rule right now.

IBM may or may not be able to try to enforce some of its patents against the small company, but even if it can, it can't copy the idea with legal impunity, as you seem to be suggesting.

Sure it can. IBM has a large set of extremely sharp legal minds. IBM has cash in the bank like you wouldn't believe. IBM has lots of product lines bringing in revenue every day. A small company with an awesome idea has none of those things. It needs to hire an attorney that is extremely skilled in a rather narrow legal specialty to go up against IBM's dream team. It doesn't have cash in the bank because it is small and it doesn't have other product lines to keep it afloat during litigation. That litigation could easily take years as IBM appeals it. How can any small company afford to keep the lights on?

They can be sued for lost royalties and damages, including triple damages if they knowingly violated the patent. Those monies can be very significant, particularly to a small entity, if the idea itself is large in market and scope.

And IBM can sue them for infringing a hundred different patents. It doesn't matter what their product is, IBM almost certainly has a hundred different patents which it infringes. Even if the small company wins, IBM will still likely win their countersuit. Winning one infringement suit while losing 100 does not strike me as a good financial position to be in. It sounds like corporate suicide.

And what would happen if, as you suggest, no patents were in force? IBM would simply steal the idea, and the small entity would receive NOTHING. How is that better? How does that encourage inventors and their investors to develop an idea?

I'd suggest growing up and learning how invention actually works in different industries. In my field, patents are a shell game companies use to intimidate each other. They've got absolutely nothing to do innovation because the vast majority of patents are complete garbage and the best ideas don't get patented. In my field, people have little interest in monetizing a single idea through patents because a single idea is very very far from a product that brings in revenue. When brilliant people have brilliant ideas, it often makes sense to hire them because one brilliant idea isn't usually worth very much, but the guy who came up with might be able to make it practical by working on it for a few years.

And you assert that in some industries such models of invention don't apply. I'd argue that general point another time, but the idiot "Pirate Party" is apparently asking for something far more general: that patents be dispensed with entirely, no matter the industry.

Given the absurdly high number of ridiculous patents, it seems clear that in some industries, the patent system has failed its goals. I'm not sure why we should keep a system that consistently fails. I mean, if the US military consistently bombed American cities by accident, I'd advocate disbanding them too.

If people claim the patent system needs reform, I won't disagree. But eliminating them entirely is a ticket to greatly reduced innovation.

Perhaps in some fields. The role patents play seems to vary significantly by field. Given the power of incumbants, I don't think eliminating the patent system is even remotely feasible so I'm not sure why you're talking about that. What might be feasible though is serious reform like the removal of the patent system from some fields.

"Artists regularly get screwed on all of these fronts."

A. I made a song I thought was great. No one else liked it.

B. I made a song I thought was crap. Everyone liked it.

C. I made a song I thought was crap. No one liked it.

D. I made a song I thought was great. Everyone liked it.

Artist self publishes* songs A and D. Artists sells songs B and C to record company.

Artist is happy with his keep/sell choice on C and D. Artist feels unappreciated on A and ripped off by the record company on B.

*or whatever I should call it (with a nod to russell.

I'm trying to work out in my mind Turbulence's argument that society somehow suffers a great harm by not being able to access works whose value, according to him, is so marginal that they barely deserve to be copyrighted at all. Can someone help me out?

Elemenope - I think you'll find lots of "anti-IP" types are hard-eyed (or dollar-signed-eyed) capitalistic creators of IP.

Yes, I know. It's a tongue-in-cheek term.

I think the ideal system would involve escalating copyright fees to the government at some point after the death of the artist. Say 20 years after the death of the artist, $10,000 per year. 30 years after, $100,000 per year. 40 years after, $1,000,000 per year. 50+ years after $5,000,000 per year or 10% of the revenue generated whichever is MORE.

This would provide a strong incentive to let things go to the public market 20 years after the death of the artist, but would allow people to pay for the right to hang on to it all if it was massively profitable (think Disney).

The problem with the Disney rule wasn't so much that it let Disney keep THEIR stuff. It was that it ended up orphaning lots of everyone else's stuff without putting it in to the public domain.

Dave, what is your level of familiarity with the music recording industry?

It is, notoriously, a sleazy, exploitative business. I'm really not breaking any news here.

Until fairly recently, a small number of companies had enormous control over access to the distribution channels for recorded music. They exploited that position to make deals with artists that were tremendously disadvantageous to the artist.

It's a high risk business. Recording companies probably lose money on 90 - 95% of everything they create. So, I feel their pain, sort of.

But the folks who actually write songs and play music regularly got really, really screwed.

Really, I'm not making it up. And it's not a matter of "they didn't like my song and I thought it was good".

There are lots of recordings that made money that returned little if anything to the artist, because of how their deal was structured. And the reason their deal was structured that way was because it was extraordinarily difficult for artists to gain access to distribution channels other than through recording companies.

That's less so now, and that's a good thing. But the situation is still that something like 85% of all recorded content in the US market is generated by four companies.

But it's a big enough pie that if you're not greedy, don't really care if you're famous, and just want to get your music out there, you can get by or even do kinda well by playing in the other 15% or so.

If you want to be really rich and famous, you're gonna have to learn to swim with the sharks.

Of course, now that I think about it, I'm also trying to imagine the enormous chutzpah it would take to structure a regime such that a still-living writer -- for example, Frederick Pohl, since Gary brough him up -- could be told, "I am going to take this work of yours that you wrote 25 years ago, and that you hold copyright on, put it in an anthology, and sell it, and not give you a penny."

Anyway. I wonder if d'd'd'dave is familiar with Badfinger. They're one of THE cautionary tales in the music business; to wit, robbed absolutely blind by their label and their management, to the point that two of their members committed suicide and died nigh-penniless. And yet you can hear their songs nearly every day on the radio.

I'm trying to work out in my mind Turbulence's argument that society somehow suffers a great harm by not being able to access works whose value, according to him, is so marginal that they barely deserve to be copyrighted at all. Can someone help me out?

I can. The confusion comes from our use of the word "valuable". I wrote about works that were commercially insignificant. Such works can be very valuable, but that is not the same as being able to produce revenue. For example, if my grandmother wrote extensively about her favorite novel, a book long since out of print and generating zero dollars in revenue, I might like to digitize a copy of that novel when I digitize her writings. My usage has zero commercial value: no one will ever pay money for this. But it has tremendous emotional value to my family members. Right now, I couldn't legally do this because there is no way to track down who the novel's author's heirs are. Even though copying this old document hurts no one but greatly increases the (noncommercial) value of my project, I can't do it under the current regime.

To put another way: copyright only helps secure monetary value. When it comes to information though, there are many other value metrics, especially for old information.

Also, orphan works are a problem for people trying to monetize old copyrights too. If I'm building an anthology and I'd like to cut a licensing deal with an author's heirs, I can't do that if I can't find them. There are anthology projects that will never get off the ground because the process of finding rightsholders is far more costly than the projected revenues. Surely we can all agree that this aspect of the system is absurd: we have cases where rightsholders would want to sell a license, and publishers want to purchase a license but they can't find each other because the system is completely opaque. In this case, everyone is worse off.

Of course, now that I think about it, I'm also trying to imagine the enormous chutzpah it would take to structure a regime such that a still-living writer -- for example, Frederick Pohl, since Gary brough him up -- could be told, "I am going to take this work of yours that you wrote 25 years ago, and that you hold copyright on, put it in an anthology, and sell it, and not give you a penny."

Of course, I have no less chutzpah than the founders. The copyright act they passed limited copyright to only 7 years. I don't really mind being in the same boat as Washington and Jefferson and Adams.

It takes real chutzpah to assert that professional writers are somehow too stupid to be able to handle a registration and renewal requirement. No one would ever say such an insulting thing, but sometimes people assert that registration/renewal requirements are functionally equivalent to ending copyright.

Phil and Russell

Yes, there are bad actors in every line of work on the planet. In my view that is a reason to strengthen contract law, not a reason to weaken it.

I've never seen or heard the Stones live. I've only seen them on TV or in print or heard them on the radio, a cd, tape or record. In my view, this tells me that the part of the media industry that contrived to bring the Stones to me in those ways is worth something.

What is it worth? It's worth different things to different people, I guess. But if Mick Jagger had spent his time contriving to bring it to me in those venues instead of making music, I think he would have less money and few of us would have heard of the Stones.

As for badfinger, i'll check them out.

"I have a pretty big problem with that being an indefinitely-prolonged situation"

Who here is defending that?

"That does not mean we are entitled to have the government enforce a system of laws to make that possible by reducing the access to information"

Who is arguing for an "entitlement"? I'm asserting what I believe is a good policy, which also doesn't happen to be current policy.

Fiction consists of unique creation; no one is "entitled" to benefit from someone else's unique creative contributions, I might say, if I were to bandy about the concept of "entitlement."

"Most people do not expect anything more than short-term renumeration from their work."

Most people don't engage in uniquely creative work which can't be duplicated by a single other person.

This is why creative works are copyright, and reproductions are not.

"(And certainly science-fiction writers are not doing it because they dream of 80 years of income, at least, not the ones I know; they'd be writing even if it paid nothing and they had to work in a coal mine all day to make ends meet."

And yet it's rather rare for professional writers to ask for monetary renumeration to be struck out of their contracts. Regardless, it should be their choice to make, rather than yours.

"Because the current copyright regime so severely restricts our ability to build on previous work, the software community has had to come up with an alternative, free regime, which has coincidentally thoroughly disproved the idea that novel creative works would not be created without the guaranteed income streams from copyright."

Have you considered the notion that there might be substantive differences between software, and fiction, in what's necessary to "to build on previous work"?

Somehow fiction has managed to struggle along the last couple of hundred years under the restrictions of copyright without being strangled by it. How copyright affects software isn't something I know much at all about, and thus I'll offer no opinion on that.

Turbulence: "Um Gary? You don't know a damn thing about who I know."

My remark was unnecessary; I apologize.

Backtracking a bit here --

Given that we now have to deal with actual pirates, shouldn't we come up with some new term?

Or go back to an old one?

Funny you should bring up the Stones, since they also got rooked by unscrupulous management, in this case Allen Klein. As their business manager, he originally secured a deal with their label to get them control of their own master recodings. When the band found they really weren't getting what they wanted from Klein's management, they terminated his deal, and sued him for $30 million in back payments. He dragged them into a yearlong litigation in which, just to make him go away, they ended up signing the rights away to all their material up through the Let It Bleed album. (i.e., all their most successful and heavily-played works)

Why do you think they tour so much now?

Thanks for clearing that up, Turbulence. Nonetheless, I still prefer a system that at least allows creators to be compensated for their creative works throughout their lifetime, even if it means your family doesn't get to read grandma's favorite novel.

Even though copying this old document hurts no one but greatly increases the (noncommercial) value of my project, I can't do it under the current regime.

Lots of people don't get to do lots of things they would like to do and which hurt no one. Sometimes you get the bear, and sometimes the bear gets you.

"Yes, there are bad actors in every line of work on the planet. In my view that is a reason to strengthen contract law, not a reason to weaken it."

No doubt. I have no problem with strong contract law, and actually don't have much of an opinion on the copyright vs no copyright issue.

I was just responding to this:

"It is not for you and I to decide what amount of money is good. It is the artist who decides whether the amount of money offered is good."

The deal that many musicians and songwriters were able to make for the rights to their work was historically quite often crappy, and that was due to the ability of the recording industry to limit access to distribution.

It wasn't a symmetric relationship.

Thanks for clearing that up, Turbulence. Nonetheless, I still prefer a system that at least allows creators to be compensated for their creative works throughout their lifetime, even if it means your family doesn't get to read grandma's favorite novel.

I don't see how requiring registration and renewal would prevent writers from getting compensated during their lifetimes. My policy preference would be to have registration/renewal no matter what, but I think it is most valuable when copyright can be inherited.

Hey, if you don't find my hypothetical persuasive, just ask yourself what you expect a local historian to do with locally produced literature and letters. They can't even scan such things to store them in a database without securing the rights. Our history is slowly rotting away because we've erected a bizarre legal edifice that makes preserving it impossible.

Lots of people don't get to do lots of things they would like to do and which hurt no one. Sometimes you get the bear, and sometimes the bear gets you.

I don't think this is, by itself, a useful counterargument since it applies to all problems. Were you railroaded by a vicious DA and executed for a crime you didn't commit? Well, lots of people want to go on breathing, so too bad! Are you suffering in agony because you can't afford health care that every other western country provides its citizens with? Lots of people want health care, so too bad!

Copyright exists because it benefits society by fostering creation, not because writers deserve legal monopolies on publication because of their creativity. Requiring registration and renewal does not significantly deter the creation of new works, but it does greatly expand the pool of old works that society can legally access and preserve.

"I've got no problem telling Jack or anyone else that the system they've benefited from has been unfairly tilted to their advantage and that in order to rectify that, they're going to lose some future income. Just like I got no problem telling rich folks that they're taxes need to go up and just like I've got no problem telling union workers with great insurance that we're going to need to tax their benefits."

I'm back to saying that comparing the situations of 98% of fiction writers to that of "rich folks" and "union workers with great insurance" is insane. The overwhelming number of professional fiction writers who try to live largely or entirely on their writing live in great poverty. And certainly can't afford to keep attorneys on retainer year after year, etc. Your proposals seem to me to bear no connection whatever with the reality of actual writers' lives.

"The amount of information available to people is expanding greatly which means that a smaller and smaller number of writers will ever be able to derive significant long term royalty income from their writings."

What, you're saying that as people have access to more and more fiction, dreadful or otherwise, interest in great old fiction will inevitably decline? Perhaps, but I'd hardly take that as a significant given. It's very much unclear to me that, with all due respect to fanfiction -- and I do respect it, and its writers [cue Henry Jenkins, etc.] -- the existence of online fanfiction archives is leading to a decline in the reading of, say, Shakespeare, or Jane Austen, or Raymond Chandler, or Robert Heinlein.

"Freelancers manage to pay their taxes every year, visit the dentist, do regular maintenance on their cars, and property taxes."

Again, this doesn't bear the greatest connection to, say, most members of SFWA or RWA or MWA. (Nor do most mainstream published writers live off, let alone live well off, their fiction.)

Off-hand stat:

[...] The results of a survey that the League of Utah Writers conducted in 2004 with 234 writers re-confirm the plight of non-technical writers.

The survey found that the average income received from writing over 12 months for all writer members was a pitiful $2,705.

The writers who participated in the survey wrote in the following genres: Magazine and newspaper articles (33%), Editing and consulting (11%), Novels and books (32%), Short stories (6%), and Other (18%).

"The average income from writing received over the past 12 months for all writer members who actually reported any writing-related income [is] $5,213.28 ," LUW reported.

But, sure, they can pay for lawyers, dentists, car maintenance, and property taxes off that. I mean, wtf?

Financial matters haven't changed all that greatly for most genre writers since the days Barry Malzberg writes of here. For that matter, Barry Malzberg's level of lifetime poverty is far more the average than that of the rare novelists you read of who get $50,000+ advances.

"He dragged them into a yearlong litigation in which, just to make him go away, they ended up signing the rights away to all their material up through the Let It Bleed album."

Apparently he had enough legal grounds of action to wield such leverage. You speak as if you doubt Mr. Klein had any rights.

Of course, I have no less chutzpah than the founders. The copyright act they passed limited copyright to only 7 years. I don't really mind being in the same boat as Washington and Jefferson and Adams.

Oh, heavens, are we suddenly going to engage in Founder-worship? I doubt you would find "That's what John Adams and Thomas Jefferson wanted!" particularly persuasive in other contexts, and I don't find it to be so here. I'm talking about the society we live in today, and the facts on the ground.

Hey, if you don't find my hypothetical persuasive, just ask yourself what you expect a local historian to do with locally produced literature and letters. They can't even scan such things to store them in a database without securing the rights. Our history is slowly rotting away because we've erected a bizarre legal edifice that makes preserving it impossible.

If we're talking about orphaned works whose rightsholders and heirs cannot be located, I feel confident in thinking that these works could probably be digitally preserved with near impunity. To preclude the obvious, no, I don't want to make lawbreakers of our archivists and librarians; but as a practical matter, I'm guessing the danger of prosecution is nearly nonexistent.

I don't think this is, by itself, a useful counterargument since it applies to all problems.

It's at least as useful as "I'd suggest growing up and learning how invention actually works in different industries."

Considering that the Stones' recording career began in 1963 and Klein didn't become their business manager in 1965, yes, I'm skeptical that Klein should have rights to recordings made before he ever met the band.

You speak as if you doubt Mr. Klein had any rights.

You speak as if litigants who were in the moral and legal right but unequipped to fight deep-pockets opponents have never given up something valuable just to make the matter go away.

"It wasn't a symmetric relationship."

First, there are almost no symmetric relationships on the planet. Second, I imagine there is a reason the artist contracts with the huge music company that has significant influence over the distribution system as opposed to signing with any guy with an office and a phone. He expects that the wide distribution the big outfit offers will be worth something intangible to him.

I mean, it's not as if the history of record companies and artist management stealing from artists who were hardly in a position to fight them is some new thing we're springing on you here. Or the history of record contracts being tilted with a 10-ton weight on the side of the record companies. This is all well-known stuff.

"He expects that the wide distribution the big outfit offers will be worth something intangible to him."

Nothing intangible about it. The artist is hoping his work will get distributed and he or she (the artist, that is) will get paid.

The point you're trying to make here is a reasonable one but the music recording industry is not really a good place to find examples that will be particularly supportive of your argument.

On the contrary.

So maybe we should just leave it there.

"Have you considered the notion that there might be substantive differences between software, and fiction, in what's necessary to "to build on previous work"?"

Have I considered the notion? What's with the tone there? Yes, of course I have considered the notion that they're different, not being a complete idiot (E&OE). I have friends who are writers and at least some understanding of fiction publishing (and the meagre returns from it). And they are different endeavours, of course. For one thing, in software the (credited) inclusion of massive amounts of prior code is encouraged and desirable, rather than being considered unoriginal plagiarism. But they do share a basic similarity in that the goal is for creative work to be produced and shared, which requires incentives, and the software industry has demonstrated some other ways to provide incentives than through copyright control that maybe other creative industries could adopt in the face of technological change that threatens their current business model. One of those is a model where voluntary payments are made to the original creator, either directly or through the intermediary of a publisher who promises to pay the author, or by the original author contributing new copyrighted work to an existing work to make it more appealing.

"Somehow fiction has managed to struggle along the last couple of hundred years under the restrictions of copyright without being strangled by it."

And for most of those last couple of hundred years the term of copyright was much, much shorter than it is today:

http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act

28 year terms until 1831 when it went to 42 years, 55 years from 1909 to 1962ish, 75 years from 1976 to 1998, and 95 years since 1998.

"And yet it's rather rare for professional writers to ask for monetary renumeration to be struck out of their contracts. Regardless, it should be their choice to make, rather than yours."

Well, I disagree. Copyright is not an full ownership right; if it was, it would be perpetual. We don't take away the family farm after 100 years, but we do take away copyright. So when there is a large social cost to a measure that protects a small and incidental income stream - incidental in the sense that it is unlikely that revenue 50+ years out materially affects the decision of someone to produce creative works, rather than the revenue available in the first 5 years - I disagree with the idea that it should be solely or even largely up to the recipients of that income to decide whether or not they want the rest of society to incur that social cost.

If there was a law granting me $10,000 a year in recognition of my supposed contributions to society (I'll get back to you on that), I certainly wouldn't want to get rid of it, but so what? Society is bigger than one person.

And the social cost is not really about their books in particular: the cost is mostly from the collateral damage that long copyright terms do to derivative creative works and to the availability of orphaned works or important books whose copyright owner declines to publish them because of insufficient demand.

Creative work is different to other work because the incentives to produce creative products are different than for wage labour, which is why copyright and patents make sense in many cases. But that difference need not extend to lifelong control over one's work product; the goal of copyright law is not to enforce creative control by the author, but to motivate the creation of novel works. As long as the incentive to create new works exists at an adequate level, the government should prefer shorter terms because of the social good that comes from works being in the public domain, rather than supplying legal enforcement of lifelong income from particular kinds of work.

Most people who work for a living have no control whatsoever over what happens to the product of their work, and receive no royalties at all beyond their daily wage. I don't understand why I'm supposed to sympathize more with a creative worker than a manual worker about their ability to receive income from today's work 50 years from now, rather than in the near future.

Further, as pointed out in regards to the music industry - but this really applies to most industries - the people receiving those private incomes at the expense of social good are mostly not sympathetic individuals with sole authorship of their work, but rather faceless corporations that have lobbied hard for the recent copyright-term extensions. The original creators may have little or no stake in their work, and they are usually unconsulted (or too dead to express an opinion) about their desire to see their work exploited and controlled by a private corporation for an extra 50 years. Perhaps the animators for Snow White dreamt of people all over the world in the early 21st century getting to own that movie and make derivative works based on it, the same way they had access to Grimm's Fairy Tales. Assuming that their desires are adequately represented by the Disney corporation doesn't seem fair either.

I'm back to saying that comparing the situations of 98% of fiction writers to that of "rich folks" and "union workers with great insurance" is insane.

I agree with you that the vast majority of fiction writers make practically nothing on copyright royalties. Which is why limiting copyright to 20 or 30 years would have no tangible effect on the vast majority of fiction writers.

The overwhelming number of professional fiction writers who try to live largely or entirely on their writing live in great poverty.

I know. This means that the overwhelming number of professional fiction writers who try live largely or entirely on their writing are not doing so: they're living on a second job or their spouse' salary or Social Security, but they're royalties are not keeping them afloat. Which means that changes to copyright law are not going to significantly impact their quality of life.

And certainly can't afford to keep attorneys on retainer year after year, etc. Your proposals seem to me to bear no connection whatever with the reality of actual writers' lives.

Can they afford to pay $10 per year? That's about what it costs to buy a domain and the service we're talking about is similar: you collect some information from customers and issue some electronic transactions on their behalf every year. If your royalties income can't buy you a cup of coffee once a year, then I really don't think depriving you of it will dramatically reduce your quality of life.

"The amount of information available to people is expanding greatly which means that a smaller and smaller number of writers will ever be able to derive significant long term royalty income from their writings."

What, you're saying that as people have access to more and more fiction, dreadful or otherwise, interest in great old fiction will inevitably decline?

Great old fiction constitutes a statistically insignificant fraction of old fiction. Sturgeon's law and all ;-)

What I'm saying is that every year, there are more potential entertainments competing for my attention. There's a whole rash of new video games, movies, television series, blogs, non-fiction books, and monographs to read. I have, at this moment, half a dozen unread 10-40 page whitepapers sitting on my Kindle. In addition to that, every year, there's another 10,000 fiction books published by the major publishers. The amount of time I have for reading fiction is shrinking, not growing. The amount of fiction I have available to read is growing. New fiction is being introduced faster than old fiction is becoming unavailable.

Perhaps, but I'd hardly take that as a significant given. It's very much unclear to me that, with all due respect to fanfiction -- and I do respect it, and its writers [cue Henry Jenkins, etc.] -- the existence of online fanfiction archives is leading to a decline in the reading of, say, Shakespeare, or Jane Austen, or Raymond Chandler, or Robert Heinlein.

A tiny tiny fraction of copyrighted works will be able to generate non-trivial sales for decades. Capping copyright at 20 or 30 years would hurt writers of such works (or their estates) by reducing lifetime earnings somewhat. I don't think a cost-benefit analysis would indicate that doing so would deter said authors from writing however. Indeed, the median useful sales lifetime for a work of fiction is far less than 30 years, so a rational writer should not be deterred, and said deterrence is the only bit that I think is relevant under the Constitution.

Again, this doesn't bear the greatest connection to, say, most members of SFWA or RWA or MWA. (Nor do most mainstream published writers live off, let alone live well off, their fiction.)

I'm confused about your point here. Are you saying that most members of the SFWA are incapable of paying their taxes every year visiting the dentist regularly? If you're trying to convince me that the average fiction writer makes very little money from their writings, well, I already know that.

"I feel confident in thinking that these works could probably be digitally preserved with near impunity. To preclude the obvious, no, I don't want to make lawbreakers of our archivists and librarians; but as a practical matter, I'm guessing the danger of prosecution is nearly nonexistent."

This is not my understanding at all. Look at the difficulty that Google has had with book scanning. Scanning is extremely expensive and has been very unpopular with publishers. You don't embark on it with a "well, they probably won't sue us" attitude.

And to be honest the publishers have reason to be nervous, in an age where you could fit 10% of the books from the Library of Congress on a single hard disk, which means that in a couple of years you'll be able to fit all of it on one disk. The incentive to pirate every book ever written would be extremely strong, and it'd only take one copy of it escaping for it to live forever on filesharing networks.

Not being able to walk around with half of the Library of Congress on your iPod is the social cost we are paying for copyright term extension, and more generally for the influence that publishers have had in affecting copyright law.

And yet it's rather rare for professional writers to ask for monetary renumeration to be struck out of their contracts. Regardless, it should be their choice to make, rather than yours.

Yes and no. It is rare for pro writers to ask this when writing contracts, but many many professional writers don't enter into contracts with publishers in the first place. This was written by professional writers and yet they're not seeking royalties on it at all. In fact, everyone can download it and read it for free. So was this. There's a tremendous amount of writing that is produced with no expectation of revenue generation through sales.

With respect, the structure of copyright law is not a matter to be decided only by writers. The rest of us should have a voice too. I know this idea might be shocking and novel, but there it is.


Oh, heavens, are we suddenly going to engage in Founder-worship? I doubt you would find "That's what John Adams and Thomas Jefferson wanted!" particularly persuasive in other contexts, and I don't find it to be so here. I'm talking about the society we live in today, and the facts on the ground.

I don't see what specifically has changed that necessitates increasing the copyright term by a factor of 20. Perhaps you can explain it to me? Now, if you suggested that it should increase by a factor of 2 or 3 to account for changes in life expectancy, that I could agree with, but 20 is rather ridiculous, no?

You're right of course that I don't find founder worship to be persuasive, but I don't need to persuade me: I already believe me. Many other people do find appeals to the founders to be quite persuasive, and, in any event, few people know that copyright was so short when the nation was founded.

If we're talking about orphaned works whose rightsholders and heirs cannot be located, I feel confident in thinking that these works could probably be digitally preserved with near impunity. To preclude the obvious, no, I don't want to make lawbreakers of our archivists and librarians; but as a practical matter, I'm guessing the danger of prosecution is nearly nonexistent.

I'm glad you think there is no legal danger. Are you willing to indemnify everyone who would undertake this risk? Or would putting your money where your mouth is be a bridge too far?

In the real world, most organizations are extremely conservative about copyright law. They are unwilling to knowingly violate copyright law just because some random guy on the internet assures them that their legal risk is low. Also, the danger of prosecution is non-existent, but the danger of civil suits is not.

"People who download movies for free have to go back to their old title -- thieves."

"Of course, now that I think about it, I'm also trying to imagine the enormous chutzpah it would take to structure a regime such that a still-living writer -- for example, Frederick Pohl, since Gary brough him up -- could be told, 'I am going to take this work of yours that you wrote 25 years ago, and that you hold copyright on, put it in an anthology, and sell it, and not give you a penny.'"

It's one of those tricky names; I've gotten it wrong myself at times; "Frederik" Pohl, actually.

Some books that came out more than 20 years ago, and so the writer or heirs would no longer deserve any income from their work, according to that schema:

The Name of the Rose by Umberto Eco (1983)
The Bonfire of the Vanities by Tom Wolfe (1988)
The Satanic Verses by Salman Rushdie (March, 1989)
Neuromancer by Bill Gibson (1984)
The Urth of the New Sun by Gene Wolfe (1988)
The Transmigration of Timothy Archer by Philip K. Dick (1982)

Can someone explain to me what sort of derivative works the world is being deprived of because the author or heirs are able to derive some income from these works?

(This without going into the categories of novellas, short stories, or novelettes, and without, of course, going into all the endless wonderful works that aren't well-known, which would be pointless for me to cite as examples, but which make up the majority of relevant work.)

"It takes real chutzpah to assert that professional writers are somehow too stupid to be able to handle a registration and renewal requirement."

Nothing to do with stupidity. But, respectfully, I've dealt with countless writers and their actual abilities to keep track of their licensing terms, or reversion terms, and you haven't, and the fact is that without agents, many of them would have screwed themselves. The fact is that with agents, some have screwed themselves via not keeping track.

Really, when you've sold 700 stories over several decades, this is hardly hard to do.

"To put another way: copyright only helps secure monetary value."

Nonsense; it's hardly unheard of for a creator to refuse to allow the return of a work to the commercial market for any number of non-monetary reasons, such as they came to think it's a piece of crap they don't want people to associate their name with, they decided it was offensive to someone or something, they prefer a later work to supersede it, and so on. This statement is simply factually wrong.

Y'know, I'm perfectly prepared to believe that you know tons about software, but your opinions about fiction seem to be from Mars, and you seriously don't seem to have a clue as to what you're talking about.

"Capping copyright at 20 or 30 years would hurt writers of such works (or their estates) by reducing lifetime earnings somewhat. I don't think a cost-benefit analysis would indicate that doing so would deter said authors from writing however."

Here's my suggestion: take a survey of members of the RWA, MWA, and SFWA, and see if they agree with such a change to copyright law.

If people want to make their work available as open source, they're free to do so. Why should you get to decide for them?

If you want to reprint your grandmother's favorite childhood novel, well, the author is quite apt to be dead, and entirely apt to have been dead for more than 18 years, in which case what's your problem with said limitation?

"There are anthology projects that will never get off the ground because the process of finding rightsholders is far more costly than the projected revenues."

Name three.

Incidentally, you're missing out by not reading Fred Pohl's blog. (Which isn't so much a blog as a set of reminiscences.)

"To preclude the obvious, no, I don't want to make lawbreakers of our archivists and librarians; but as a practical matter, I'm guessing the danger of prosecution is nearly nonexistent."

If someone can cite me a single case of someone, anyone, in the U.S., being prosecuted for a criminal violation of law for reprinting some "locally produced literature and letters," I'd find that very educational. I'm willing to believe that such rampant prosecutions are having a chilling effect on historians, but I'd like a few examples.

"Given the absurdly high number of ridiculous patents, it seems clear that in some industries, the patent system has failed its goals."

Just wanted to second Turb's point here, at least as regards the software industry.

In SW, it's become common to take out patents on anything and everything you can think of, even ridiculous things. The point is less to insure your exclusive right to some intellectual property, but more to scare competitors away with the threat of lawsuit.

"First, there are almost no symmetric relationships on the planet. Second, I imagine there is a reason...."

Shorter d'd'd'dave: the right to screw people is the right to be free.

"One of those is a model where voluntary payments are made to the original creator, either directly or through the intermediary of a publisher who promises to pay the author, or by the original author contributing new copyrighted work to an existing work to make it more appealing."

What today stops any writer who wants to do this from doing this?

One more point, and I apologize for the serial commenting, but there was one more thing I wanted to respond to:

"no one is "entitled" to benefit from someone else's unique creative contributions, I might say"

We all benefit from the unique creative contributions of our antecedents in absolutely every single thing we do or say, from the invention of tools, to language, to mathematics, philosophy, physics, chemistry, biology, grammar, every other conceivable area of study, to religion, the enormous amounts of public domain literature that exist, popular culture and non-commercial culture, gossip, news, in general, the free exchange of information and ideas. Benefiting from the unique creative contributions of others is the most basic human behaviour, from the first proto-chimpanzee who copied someone else who'd figured out how to extract ants from a log with a twig on up. The process of education by which a newborn child becomes a thoughtful human being is entirely one of benefiting from the unique creative contributions of others.

If it's not an entitlement to behave in the way that humans have evolved to behave over millions of years, to behave in the way that is responsible for virtually every part of the accomplishments of our society, to benefit from the creative contributions of others without compensating them, I don't know what could possibly be an entitlement.

But anyway.

"What today stops any writer who wants to do this from doing this?"

Nothing but the fact that the existing copyright system currently produces better returns. It may not continue to do so even if the law remained the same, as the music business has found out, because the technology will overtake the physical and legal ability for copyright holders to retain control of distribution of their work, and because support for lengthy copyright terms and heavy-handed & intrusive prevention mechanisms is probably pretty weak outside of creative workers themselves. Start throwing people in jail or imposing large fines for it and you are likely to erode what support there might be. See also: music industry lawsuits against filesharers, lack of success of.

So it's unlikely that creative workers can rely on the copyright model for much longer. It would be a good idea to look for other ways to make money. That's really my point here. We can have this academic conversation about the rights and wrongs of copyright, but in the real world the existing copyright regime is dying, regardless of the law, and the measures that the major copyright owners have taken to fight piracy have made them seem like grasping, evil assholes who would sue your grandmother if they thought it would act as a deterrent. Which they do. And they did. They're not doing themselves any favours, and perhaps their success in the era of writing their own copyright laws has blinded them to the possibility that in a democratic society, acting like a dick may mean that your gravy train gets taken away.

"Can they afford to pay $10 per year?"

For hundreds of short stories each? Are you kidding?

I mentioned Fred Pohl as an example: here is an extremely incomplete listing of many of his works. Do the math on what $10 apiece for his work would be, and get back to us, please.

Then imagine Isaac Asimov had to do this in his lifetime for 1600 essays, 515 books, and god knows how many short stories.

Or let's try someone less prolific: how much would it cost Harlan Ellison?

"It is rare for pro writers to ask this when writing contracts, but many many professional writers don't enter into contracts with publishers in the first place."

1) I think we may be dealing with somewhat tautological definitions of "professional writer" on both our parts here.

2) I wrote: "I'd go back to copyright being life of the author, or eighteen years (or so), whichever is longer," and "[c]opyright should not be a tool infinitely extended for the benefit of corporations, allowing the indefinite suppression of use of what may become popular mythology, and neither should it disappear, crippling the ability of authors and creators to benefit from their creations": I don't understand why both Jacob Davies and Turbulence keep arguing with me as if I'd said I favor recent copyright extensions.

"Capping copyright at 20 or 30 years would hurt writers of such works (or their estates) by reducing lifetime earnings somewhat."

It would cut the majority of income from the lives of hundreds of writers I can immediately think of, let alone the countless ones I can't, or don't know of. Regrettably, most writers don't stay on top of their game, or at the least, at their most commercially successful, indefinitely. That's not even counting the injury to spouses and children of the deceased if they get nothing. Writers don't leave pensions for their writing; they leave royalties.

And, for better or worse, lots of writers have written a lot of work specifically to try to make sure their surviving heirs were left a significant income. Jacob Davies writes of "rather faceless corporations," but I think of, to use a specific example of someone I specifically, personally, knew did this, Roger Zelazny's kids.

I'd like to mention some still living writers of whom I know this is and has been a great concern, but that would be wrong. I damn well could name some, otherwise, though.

Eighteen years after death isn't "infinite."

I don't see what specifically has changed that necessitates increasing the copyright term by a factor of 20. Perhaps you can explain it to me? Now, if you suggested that it should increase by a factor of 2 or 3 to account for changes in life expectancy, that I could agree with, but 20 is rather ridiculous, no?

Given that I've already stated that I think copyright should last for the creator's lifetime, you either need to find someone dumb enough to believe that humans live to be 140 years old to argue this point with, or someone who has defended extending copyright far beyond creators' lifetimes. I am neither of those people.

I'm glad you think there is no legal danger. Are you willing to indemnify everyone who would undertake this risk? Or would putting your money where your mouth is be a bridge too far?

Do you find this to be a persuasive argument? Do you really expect me to say, "Yes, I will personally indemnify every library, historical archive and genealogist in the United States?" Do you really think the value of the argument lies in whether I, and I alone, am willing to undertake said indemnification?

I echo Gary's statement: If someone can cite me a single case of someone, anyone, in the U.S., being prosecuted for a criminal violation of law for reprinting some "locally produced literature and letters," I'd find that very educational.

In the real world, most organizations are extremely conservative about copyright law. They are unwilling to knowingly violate copyright law just because some random guy on the internet assures them that their legal risk is low.

And I'm sure none of them have attorneys, and are all furiously scouring the Internet to discover what I might think about this. Are your arguments usually this dumb, or am I just now noticing?

Also, the danger of prosecution is non-existent, but the danger of civil suits is not.

Civil suits from those impossible-to-find rightsholders and heirs, right?

"as if I'd said I favor recent copyright extensions"

Sorry. That was the impression I got from what you were saying, though. For instance, you were approvingly discussing the Jack Williamson and Fred Pohl examples, both of whose early work would already be in the public domain were it not for the 1998 term extension.

What term would you consider fair? And what criteria do you use to come up with that figure? Sincere questions.

I'll grant you the Zelazny example. That sounds like a genuine example of someone working for the "out" years. I'll grant there is some welfare loss there and some genuine loss of incentive to produce new creative work.

But when I talk about faceless corporations, it's because they hold the majority of older copyrights, not individual creators. So when looking at the consequences of current law, we have to take a cold look at who benefits from it, and it's not all grand old SF writers and their worthy minor children. Mostly it's a bunch of giant corporations who've warped the law to support their own indefinite exploitation of copyright, with no concern for the social welfare loss.

Given that the function of copyright law is to cause new works to be produced, the loss of income from older work might cause more new work to be produced, not less, as people in the situation you describe find that they have to create new works to replace the lost income.

It's not very sympathetic or nice, but copyright law is not a pension fund or an orphan fund or a niceness fund, it's a mechanism for causing more creative work to be produced, period. Unless writers are uniquely sensitive to late-life loss of income (which happens to virtually everyone else as they become unable to work), or their orphaned children are uniquely at risk from poverty (try telling that to every other child whose breadwinning parent died or abandoned them), I'm not sold that they need special treatment.

"Civil suits from those impossible-to-find rightsholders and heirs, right?"

What method do you recommend that librarians and archivists use to determine whether a given book is an orphaned work nobody will care about being scanned, or one where the rightsholder may be dormant and later pop up and sue the crap out of them?

"What term would you consider fair?"

Which part of "I'd go back to copyright being life of the author, or eighteen years (or so), whichever is longer" is unclear?

This was my very first comment on this topic in this thread.

Mind, I certainly think there's no magically single fair answer; people can reasonably disagree, and I'm not fixated on One Correct Answer. I'd go for lifetime plus eighteen, but if someone says it should be only forty years, or fifty years, I'd think that not insanely unreasonable.

People may, of course, think a far shorter term is better, but my own perspective, at the age of fifty, having first worked in publishing at the age of fifteen, is that fifty years just really isn't that long. I'm highly subjectively attached to the idea that if someone wrote something when I was functioning as an adult, they should still be able to benefit from reselling or retaining the rights to that work. At a minimum.

I'm perfectly willing to surrender this view if someone extends my lifetime to one hundred and thirty years or longer.

:-)

"But when I talk about faceless corporations, it's because they hold the majority of older copyrights, not individual creators."

And I disagreed with the Sonny Bono Copyright Term Extension Act of 1998 in the strongest possible terms. (I forgive you for not reading the numerous posts on this topic I made on Usenet at the time.) Neither did I agree with the 1976 Act's extension of term to 50 years after the author's death.

"What method do you recommend that librarians and archivists use to determine whether a given book is an orphaned work nobody will care about being scanned, or one where the rightsholder may be dormant and later pop up and sue the crap out of them?"

I'm fine with something along the lines of granting a good faith defense to anyone who reprints anything over fifty years old who can demonstrate they've made good faith efforts to find a copyright owner and failed.

In practice, this just really isn't a najor problem. If you or anyone can demonstrate otherwise by citing some examples of such suits, be my guest.

"This was my very first comment on this topic in this thread."

Er, right. I knew that. Just testing you. That's it. Testing.

I think MIN(life + 20, 50) years would be a great improvement over the status quo, obviously. I could be persuaded that literature deserved longer terms than music and movies, since there is much less (although not zero) remake/remix potential for books. Movies and music lend themselves to re-cutting, re-imagining, and incorporation in derivative works.

I would definitely like the term for software copyright and patents to be dropped considerably more than that, though. Software is a creative work but it's also a lot like a mechanical invention in that commonly-used techniques and parts are copied and improved-upon. And the copyright protections of older code are rarely of any use at all - the potential for sale has usually long-since expired, or if it hasn't, there is new and freshly-copyrighted adaptive code needed to run it on modern machines that preserves the profit potential. The price of the super-long terms of copyright is that most old code is dead or lost instead of being archived and available for study, re-use, inspiration, and so on.

Phil - you've never encountered the orphan works problem, then? I'd hazard there are books which you remember fondly from your childhood, which you'd love to buy and share with your friends or children but can't cos they're long out of print. Among them are works which some bookseller also remembers, and would like to buy up and republish with an eye to selling a couple dozen copies a year, but they can't, cos no one can find the rights holder.

There are also cases where people *can* find the rights holder, who won't agree to a modest republishing cos they're waiting for a huge payday when nana's works get famous again. Tragic, but that's their choice. Those are a different thing.

For hundreds of short stories each? Are you kidding?

No, ten dollars a year for all their works put together. Look, I'm asking you to try and think rationally for a moment: what is the cost to an intermediary of sending, say, 700 emails every five years? How much do you think it would cost a service to do that? I'll tell you: basically zero dollars. That's the scale of what we're talking about. No writer will produce more than, say, 100,000 copyrighted works. And the cost of processing a few thousand transactions every few years is essentially zero.

Please, try and think for a moment: how much money do you think web mail providers like GMail make off of advertising for each email account they provide? Very very little. And yet it is cost effective for them to execute thousands of transactions on behalf of their users for free.

For all your vaunted experience with writers, you seems shockingly incompetent when it comes to imagining how even a very slightly different regulatory system might function.

I really think that different copyright terms for different copyright rights would be useful. Right now, the copyright debate always seems to end up at "you're advocating people be able to republish commercially Frederik Pohl's work with impunity!" versus "you're starving current creators of their and their audience's cultural background!" There's a huge difference between even a "derivative" work and a simple republication.

The DMCA didn't help matters any; before, people were giving in or refusing to give in to C&D (cease and desist) letters addressed to them, or at worst their webhost or ISP, while now they don't even find out about the problem until YouTube sends them a takedown notice. That's one whole creative work that can no longer be streamed on the Internet (since Imeem and Vimeo react similarly) and one-third of an account deletion, and both responses are required by law to a simple allegation of copyright infringement, never mind if it's a transformative use of the footage or song.

It really does amount to robbing modern-day people of their cultural heritage, treating creations of today as if they are sacred artifacts which sprung like Athena full-formed from their creator's head, but orphaned like Aphrodite from any kind of relatives among their public-domain cousins. I can't make fanvids for Disney's Sword in the Stone, or fanfiction for T.H. White's (or for that matter a fanvid for White's and fanfic for Disney's), without worrying about copyright, but somehow their works were soooo original despite drawing on centuries of Arthurian legend?

Or take the copyright disputes over Peter Pan--Disney's actions in trying to preserve copyright for Steamboat Willie (which won't enter the public domain, and is therefore unviddable without possible DMCA action, until 2023, 95 years after its publication) has resulted in a claim by Peter and Wendy's previous copyright holders that it too is copyrighted to them until 2023, while Disney claims the right ran out according to the Copyright Act of 1909, which allowed for two 28-year terms (making it public domain in 1967). Either way, I can write Tinker Bell and Wendy bodyswap fic with impunity, so long as it's not the Disney version (or the play version, if I'm in the U.K.). Which was published half a decade before my grandparents got married--and I'm an adult.

A story has a cultural impact soon after publication. I understand slowing down and controlling that impact with law, for the sake of the creators, but even a term of 20 years is ridiculous for non-commercial use of characters and (short, reordered, heavily edited) clips of footage in a fanmade project commenting on our shared culture. Hell, seven years is ridiculous in that context.

I'd propose something along the line of 'expiration of rights if unused for...'.
Iirc there is (or was) already something like that in patent law in order to limit mere 'blocking patents'.
That could be useful for e.g. books that have been out of print for a significant time. That could be a stepped process:
1. after period A it is allowed to make non-commercial copies
2. after period B>A commercial use is allowed with a (limited) option for the copyright holder to object (and rights to be compensated).
3. after period C>B commercial use can't be blocked but reasonable compensation (if asked for) is due
4. after period D>C complete public domain

This would not preclude rights of holders etc. to block (re)publication for other cogent reasons (e.g. if there is a reasonable risk of harm to them or others).
---
I am a bit of a hypocrite as far as regards copyrights. For example I usually try to acquire a book legally but will make a copy, if I can't do so. E.g. I copied a few out of print books for my mother when it was impossible to buy a second-hand copy and the publishing company informed us that a new edition was not planned and unlikely. As a student I also made textbook copies when the book in question was either out of print or completely beyond my means.

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