August 17, 2002
Against the New Enclosure Movement

Larry Lessig calls for resistance to the "new enclosure movement." How long and under what terms intellectual property protection should be provided is a very hard question. But it seems clear to me at least that our current trajectory grossly underestimates the benefits of free distribution. Copyright should not be forever. (Indeed, it's hard to think of a reason why it should be more than fourteen years.)

Larry Lessig: ...even at the birth of the 20th century. Here's my favorite example, here: 1928, my hero, Walt Disney, created this extraordinary work, the birth of Mickey Mouse in the form of Steamboat Willie. But what you probably don't recognize about Steamboat Willie and his emergence into Mickey Mouse is that in 1928, Walt Disney, to use the language of the Disney Corporation today, "stole" Willie from Buster Keaton's "Steamboat Bill."

It was a parody, a take-off; it was built upon Steamboat Bill. Steamboat Bill was produced in 1928, no [waiting] 14 years--just take it, rip, mix, and burn, as he did [laughter] to produce the Disney empire. This was his character. Walt always parroted feature-length mainstream films to produce the Disney empire, and we see the product of this. This is the Disney Corporation: taking works in the public domain, and not even in the public domain, and turning them into vastly greater, new creativity. They took the works of this guy, these guys, the Brothers Grimm, who you think are probably great authors on their own. They produce these horrible stories, these fairy tales, which anybody should keep their children far from because they're utterly bloody and moralistic stories, and are not the sort of thing that children should see, but they were retold for us by the Disney Corporation. Now the Disney Corporation could do this because that culture lived in a commons, an intellectual commons, a cultural commons, where people could freely take and build. It was a lawyer-free zone.

It was culture, which you didn't need the permission of someone else to take and build upon. That was the character of creativity at the birth of the last century. It was built upon a constitutional requirement that protection be for limited times, and it was originally limited. Fourteen years, if the author lived, then 28, then in 1831 it went to 42, then in 1909 it went to 56, and then magically, starting in 1962, look--no hands, the term expands. Eleven times in the last 40 years it has been extended for existing works--not just for new works that are going to be created, but existing works. The most recent is the Sonny Bono copyright term extension act. Those of us who love it know it as the Mickey Mouse protection act, which of course [means] every time Mickey is about to pass through the public domain, copyright terms are extended. The meaning of this pattern is absolutely clear to those who pay to produce it. The meaning is: No one can do to the Disney Corporation what Walt Disney did to the Brothers Grimm. That though we had a culture where people could take and build upon what went before, that's over. There is no such thing as the public domain in the minds of those who have produced these 11 extensions these last 40 years because now culture is owned...

This is an immensely powerful lawyer argument: that a Disney that has its origin in "rip, mix, and burn" should not now be able to turn around and successfully lobby to prohibit the kind of behavior that gave it birth. It's not an economic argument, however. But Lessig has powerful economic arguments in his talk as well...


O'Reilly Network: Free Culture: Lawrence Lessig Keynote from OSCON 2002

A flash version of Lessig's presentation, including audio and other source files.

Editor's Note: In his address before a packed house at the Open Source Convention, Lawrence Lessig challenges the open source audience to get more involved in the political process. Lawrence, a tireless advocate for open source, is a professor of law at Stanford Law School and the founder of the school's Center for Internet and Society. He is also the author of the best-selling book Code, and Other Laws of Cyberspace. Here is the complete transcript of Lawrence's keynote presentation made on July 24, 2002.

(You can also download an MP3 version of this presentation (20.2MB).)

Lawrence Lessig: I have been doing this for about two years--more than 100 of these gigs. This is about the last one. One more and it's over for me. So I figured I wanted to write a song to end it. But then I realized I don't sing and I can't write music. But I came up with the refrain, at least, right? This captures the point. If you understand this refrain, you're gonna' understand everything I want to say to you today. It has four parts:

  • Creativity and innovation always builds on the past.

  • The past always tries to control the creativity that builds upon it.

  • Free societies enable the future by limiting this power of the past.

  • Ours is less and less a free society.

In 1774, free culture was born. In a case called Donaldson v. Beckett in the House of Lords in England, free culture was made because copyright was stopped. In 1710, the statute had said that copyright should be for a limited term of just 14 years. But in the 1740s, when Scottish publishers started reprinting classics (you gotta' love the Scots), the London publishers said "Stop!" They said, "Copyright is forever!" Sonny Bono said "Copyright should be forever minus a day," but the London publishers said "Copyright is forever."

These publishers, people whom Milton referred to as old patentees and monopolizers in the trade of book selling, men who do not labor in an honest profession (except Tim here), to [them] learning is indebted. These publishers demanded a common-law copyright that would be forever. In 1769, in a case called Miller v. Taylor, they won their claim, but just five years later, in Donaldson, Miller was reversed, and for the first time in history, the works of Shakespeare were freed, freed from the control of a monopoly of publishers. Freed culture was the result of that case.

Remember the refrain. I would sing it, but you wouldn't want me to. OK. Well, by the end we'll see.

That free culture was carried to America; that was our birth--1790. We established a regime that left creativity unregulated. Now it was unregulated because copyright law only covered "printing." Copyright law did not control derivative work. And copyright law granted this protection for the limited time of 14 years.

That was our birth, and more fundamentally, in 1790, because of the technology of the time, all things protected were free code. You could take the works of Shakespeare and read the source--the source was the book. You could take the work of any creativity protected by the law and understand what made it tick [by] studying it. This was the design and the regime, and even in the context of patents, there were transparent technologies. You didn't take, you didn't need to take the cotton gin [for example] and read the patent to understand how it worked, right? You could just take it apart.

These were legal protections in a context where understanding and learning were still free. Control in this culture was tiny. That was cute, right? Control, tiny . . . OK. And not just then, right? Forget the 18th century, the 19th century, even at the birth of the 20th century. Here's my favorite example, here: 1928, my hero, Walt Disney, created this extraordinary work, the birth of Mickey Mouse in the form of Steamboat Willie. But what you probably don't recognize about Steamboat Willie and his emergence into Mickey Mouse is that in 1928, Walt Disney, to use the language of the Disney Corporation today, "stole" Willie from Buster Keaton's "Steamboat Bill."

It was a parody, a take-off; it was built upon Steamboat Bill. Steamboat Bill was produced in 1928, no [waiting] 14 years--just take it, rip, mix, and burn, as he did [laughter] to produce the Disney empire. This was his character. Walt always parroted feature-length mainstream films to produce the Disney empire, and we see the product of this. This is the Disney Corporation: taking works in the public domain, and not even in the public domain, and turning them into vastly greater, new creativity. They took the works of this guy, these guys, the Brothers Grimm, who you think are probably great authors on their own. They produce these horrible stories, these fairy tales, which anybody should keep their children far from because they're utterly bloody and moralistic stories, and are not the sort of thing that children should see, but they were retold for us by the Disney Corporation. Now the Disney Corporation could do this because that culture lived in a commons, an intellectual commons, a cultural commons, where people could freely take and build. It was a lawyer-free zone.

(Audience Applauds.)

It was culture, which you didn't need the permission of someone else to take and build upon. That was the character of creativity at the birth of the last century. It was built upon a constitutional requirement that protection be for limited times, and it was originally limited. Fourteen years, if the author lived, then 28, then in 1831 it went to 42, then in 1909 it went to 56, and then magically, starting in 1962, look--no hands, the term expands.

Eleven times in the last 40 years it has been extended for existing works--not just for new works that are going to be created, but existing works. The most recent is the Sonny Bono copyright term extension act. Those of us who love it know it as the Mickey Mouse protection act, which of course [means] every time Mickey is about to pass through the public domain, copyright terms are extended. The meaning of this pattern is absolutely clear to those who pay to produce it. The meaning is: No one can do to the Disney Corporation what Walt Disney did to the Brothers Grimm. That though we had a culture where people could take and build upon what went before, that's over. There is no such thing as the public domain in the minds of those who have produced these 11 extensions these last 40 years because now culture is owned.

Remember the refrain: We always build on the past; the past always tries to stop us. Freedom is about stopping the past, but we have lost that ideal.

Things are different now, [different] from even when Walt produced the Walt Disney Corporation. In this year now, we have a massive system to regulate creativity. A massive system of lawyers regulating creativity as copyright law has expanded in unrecognizable forms, going from a regulation of publishing to a regulation of copying. You know the things that computers do when you boot them up? Going from copies to, not just copies of the original work, but even derivative works on top of it. Going from 14 years for new works produced by a real author--there are fewer and fewer of those people out there--to life plus 70 years. That's the expansion of law, but also there's been an expansion of control through technology.

OK, so first of all, this reality of opaque creativity, you know that as proprietary code. Creativity where you don't get to see how the thing works, and the law protects the thing you can't see. It's not Shakespeare that you can study and understand because the code is, by nature, open. Nature has been reformed in our modern, technological era, so nature can be hidden and the law still protects it--and not just through the protection, but through increasing control of uses of creative work.

Here's my Adobe eBook Reader, right. Some of you have seen this before, I'm sure. Here's Middle March; this is a work in the public domain. Here are the "permissions" (a lawyer had something to do with this) that you can do with this work in the public domain: You are allowed to copy ten selections into the clipboard every ten days--like, who got these numbers, I don't know--but you can print ten pages of this 4 million page book every ten days, and you are allowed to feel free to use the read-aloud button to listen to this book, right?

Now, Aristotle's Politics, another book in the public domain [that was] never really protected by copyright, but with this book, you can't copy any text into the selection, you can't print any pages, but feel free to listen to this book aloud. And to my great embarrassment, here's my latest book, right? No copying, no printing, and don't you dare use the technology to read my book aloud. [Laughter] I'll have a sing button in the next version of Adobe. Read a book; read a book.

The point is that control is built into the technology. Book sellers in 1760 had no conception of the power that you coders would give them some day in the future, and that control adds to this expansion of law. Law and technology produce, together, a kind of regulation of creativity we've not seen before. Right? Because here, here's a simple copyright lesson: Law regulates copies. What's that mean? Well, before the Internet, think of this as a world of all possible uses of a copyrighted work. Most of them are unregulated. Talking about fair use, this is not fair use; this is unregulated use. To read is not a fair use; it's an unregulated use. To give it to someone is not a fair use; it's unregulated. To sell it, to sleep on top of it, to do any of these things with this text is unregulated. Now, in the center of this unregulated use, there is a small bit of stuff regulated by the copyright law; for example, publishing the book--that's regulated. And then within this small range of things regulated by copyright law, there's this tiny band before the Internet of stuff we call fair use: Uses that otherwise would be regulated but that the law says you can engage in without the permission of anybody else. For example, quoting a text in another text--that's a copy, but it's a still fair use. That means the world was divided into three camps, not two: Unregulated uses, regulated uses that were fair use, and the quintessential copyright world. Three categories.

Enter the Internet. Every act is a copy, which means all of these unregulated uses disappear. Presumptively, everything you do on your machine on the network is a regulated use. And now it forces us into this tiny little category of arguing about, "What about the fair uses? What about the fair uses?" I will say the word: To hell with the fair uses. What about the unregulated uses we had of culture before this massive expansion of control? Now, unregulated uses disappear, we argue about fair use, and they find a way to remove fair use, right? Here's a familiar creature to many of you, right? The wonderful Sony Aibo Pet, which you can teach to do all sorts of things. Somebody set up a wonderful aibopet.com site to teach people how to hack their dogs. Now remember, their dogs, right? And this site actually wanted to help you hack your dog to teach your dog to dance jazz. Remember (Europeans are sometimes confused about this), it's not a crime to dance jazz in the United States.

This is a completely permissible activity--even for a dog to dance jazz. In Georgia, there are a couple jurisdictions I'm not sure about [laughter], but mainly, dancing jazz is an OK activity. So Aibopet.com said, "Here, here's how to hack your dog to make it dance jazz." If anything, it would be a fair use of this piece of plastic that costs over $1,500. You would think, "This is a fair use," right?

Letter to the site: Your site contains information providing the means to circumvent Aibo, where copy protection protocol constitutes a violation of the anticircumvention provisions of the DMCA. Even though the use is fair use, the use is not permitted under the law. Fair use, erased by this combination of technological control and laws that say "don't touch it," leaving one thing left in this field that had three, controls copyright, [thereby] controlling creativity.

Now, here's the thing you've got to remember. You've got to see this. This is the point. (And Jack Valente misses this.) Here's the point: Never has it been more controlled ever. Take the addition, the changes, the copyrights turn, take the changes to copyrights scope, put it against the background of an extraordinarily concentrated structure of media, and you produce the fact that never in our history have fewer people controlled more of the evolution of our culture. Never.

Not even before the birth of free culture, not in 1773 when copyrights were perpetual, because again, they only controlled printing. How many people had printers? You could do what you wanted with these works. Ordinary uses were completely unregulated. But today, your life is perpetually regulated in the world that you live in. It is controlled by the law. Here is the refrain: Creativity depends on stopping that control. They will always try to impose it; we are free to the extent that we resist it, but we are increasingly not free.

You or the GNU, you can pick, build a world of transparent creativity--that's your job, this weird exception in the 21st century of an industry devoted to transparent creativity, the free sharing of knowledge. It was not a choice in 1790; it was nature in 1790. You are rebuilding nature. This is what you do. You build a common base that other people can build upon. You make money, not, well, not enough, but some of you make money off of this. This is your enterprise. Create like it's 1790. That's your way of being. And you remind the rest of the world of what it was like when creativity and innovation were a process where people added to common knowledge. In this battle between a proprietary structure and a free structure, you show the value of the free, and as announcements such as the RealNetworks announcement demonstrate, the free still captures the imagination of the most creative in this industry. But just for now. Just for now. Just for now, because free code threatens and the threats turn against free code.

Let's talk about software patents. There's a guy, Mr. Gates, who's brilliant, right? He's brilliant. A brilliant business man; he has some insights, he is even a brilliant policy maker. Here's what he wrote about software patents: "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today." Here's the first thing I'm sure you've read of Bill Gates that you all 100 percent agree with. Gates is right. He is absolutely right. Then we shift into the genius business man: "The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors." Excluding future competitors.

Now, it's been four years since this battle came onto your radar screens in a way that people were upset about. Four years. And there have been tiny changes in the space. There have been a bunch of "Tim" changes, right? Tim went out there and he set up something to attack bad patents. That was fine. There were a bunch of Q. Todd Dickinson changes. He was a former head of the patent commission--never saw a patent he didn't like. But he made some minor changes in how this process should work. But the field has been dominated by apologists for the status quo. Apologists who say, We've always patented everything, therefore we should continue to patent this. People like Greg Aharonian, who goes around and says every single patent out there is idiotic. But it turns out that the patent system's wonderful and we should never reform it at all. Right?

This is the world we live in now, which produces this continued growth of software patents. And here's the question: What have we done about it? What have you done about it? Excluding future competitors--that's the slogan, right? And that company that gave birth to the slogan that I just cited has only ever used patents in a defensive way. But as Dan Gillmor has quoted, "They've also said, look, the Open Source Movement out there has got to realize that there are a lot of patents at stake, and don't imagine we won't use them when we must."

Now, the thing about patents is, they're not nuclear weapons. It's not physics that makes them powerful, it's lawyers and lawmakers and Congress. And the thing is, you can fight all you want against the physics that make a nuclear weapon destroy all of mankind, but you can not succeed at all. Yet you could do something about this. You could fuel a revolution that fights these legal threats to you. But what have you done about it? What have you done about it?

(Audience Applauds.)

Second, the copyright wars: In a certain sense, these are the Homeric tragedies. I mean this in a very modern sense. Here's a story: There was a documentary filmmaker who was making a documentary film about education in America. And he's shooting across this classroom with lots of people, kids, who are completely distracted at the television in the back of the classroom. When they get back to the editing room, they realize that on the television, you can barely make out the show for two seconds; it's "The Simpsons," Homer Simpson on the screen. So they call up Matt Groenig, who was a friend of the documentary filmmaker, and say, you know, Is this going to be a problem? It's only a couple seconds. Matt says, No, no, no, it's not going to be a problem, call so and so. So they called so and so, and so and so said call so and so.

Eventually, the so and so turns out to be the lawyers, so when they got to the lawyers, they said, Is this going to be a problem? It's a documentary film. It's about education. It's a couple seconds. The so and so said 25,000 bucks. 25,000 bucks?! It's a couple seconds! What do you mean 25,000 bucks? The so and so said, I don't give a goddamn what it is for. $25,000 bucks or change your movie. Now you look at this and you say this is insane. It's insane. And if it is only Hollywood that has to deal with this, OK, that's fine. Let them be insane. The problem is their insane rules are now being applied to the whole world. This insanity of control is expanding as everything you do touches copyrights.

So, the broadcast flag, which says, "Before a technology is allowed to touch DTV, it must be architected to control DTV through watching for the broadcast flag." Rebuild the network to make sure this bit of content is perfectly protected, or amend it for . . . chips that will be imposed on machines through the law, which Intel referred to as the police state in every computer, quite accurately. And they would build these computers, but are opposed to this police state system.

And then, most recently, this outrageous proposal that Congress ratify the rights of the copyright owners to launch a tax on P2P machines--malicious code that goes out there and tries to bring down P2P machines. Digital vigilantism. And not only are you allowed to sue if they do it and they shouldn't have done it, but you have to go to the attorney general and get permission from the attorney general before you are allowed to sue about code that goes out there and destroys your machine . . . when it shouldn't be allowed to destroy your machine. This is what they talk about in Washington. This is what they are doing. This is, as Jack Valente says, a terrorist war they are fighting against you and your children, the terrorists. Now you step back and you say, For what? Why? What's the problem? And they say, It's to stop the harm which you are doing.

So, what is that harm? What is the harm that is being done by these terrible P2P networks out there? Take their own numbers. They said last year [that] five times the number of CDs sold were traded on the Net for free. Five times. Then take their numbers about the harm caused by five times the number sold being traded for free: A drop in sales of five percent. Five percent. Now, there was a recession last year, and they raised their prices and they changed the way they counted. All of those might actually account for the five percent, but even if they didn't, the total harm caused by five times being traded for free was five percent. Now, I'm all for war in the right context, but is this the ground one stands on to call for a "terrorist war" against technology? This harm? Even if five percent gives them the right to destroy this industry, I mean, does anybody think about the decline in this industry, which is many times as large as theirs, caused by this terrorist war being launched against anybody who touches new content? Ask a venture capitalist how much money he is willing to invest in new technology that would touch content in a way that Hilary Rosen or Jack Valente don't sign off on. The answer is a simple one: Zero. Zero.

They've shut down an industry and innovation in the name of this terrorist war, and this is the cause. This is the harm. Five percent.

And what have you done about it? It's insane. It's extreme. It's controlled by political interests. It has no justification in the traditional values that justify legal regulation. And we've done nothing about it. We're bigger than they are. We've got rights on our side. And we've done nothing about it. We let them control this debate. Here's the refrain that leads to this: They win because we've done nothing to stop it.

There's a congressmen: J.C. Watts. J.C. Watts is the only black member of the Republican Party in leadership. He's going to resign from Congress. He's been there seven and a half years. He's had enough. Nobody can believe it. Nobody in Washington can believe it. Boy, not spend 700 years in Washington? He says, you know, I like you guys, but seven years is enough, eight years is too much. I'm out of here. Just about the time J.C. Watts came to Washington, this war on free code and free culture began. Just about that time.

In an interview two days ago, Watts said, Here's the problem with Washington: "If you are explaining, you are losing." If you are explaining, you're losing. It's a bumper sticker culture. People have to get it like that, and if they don't, if it takes three seconds to make them understand, you're off their radar screen. Three seconds to understand, or you lose. This is our problem. Six years after this battle began, we're still explaining. We're still explaining and we are losing. They frame this as a massive battle to stop theft, to protect property. They don't get why rearchitecting the network destroys innovation and creativity. They extend copyrights perpetually. They don't get how that in itself is a form of theft. A theft of our common culture. We have failed in getting them to see what the issues here are and that's why we live in this place where a tradition speaks of freedom and their controls take it away.

Now, I've spent two years talking to you. To us. About this. And we've not done anything yet. A lot of energy building sites and blogs and Slashdot stories. [But] nothing yet to change that vision in Washington. Because we hate Washington, right? Who would waste his time in Washington?

But if you don't do something now, this freedom that you built, that you spend your life coding, this freedom will be taken away. Either by those who see you as a threat, who then invoke the system of law we call patents, or by those who take advantage of the extraordinary expansion of control that the law of copyright now gives them over innovation. Either of these two changes through law will produce a world where your freedom has been taken away. And, If You Can't Fight For Your Freedom . . . You Don't Deserve It.

But you've done nothing.

(Audience Applauds.)

There's a handful, we can name them, of people you could be supporting, you could be taking. Let's put this in perspective: How many people have given to EFF? OK. How many people have given to EFF more money than they have given to their local telecom to give them shitty DSL service? See? Four. How many people have given more money to EFF than they give each year to support the monopoly--to support the other side? How many people have given anything to these people, Boucher, Canon. . . . This is not a left and right issue. This is the important thing to recognize: This is not about conservatives versus liberals.

In our case, in Eldred [Eldred v. Ashcroft], we have this brief filed by 17 economists, including Milton Freedman, James Buchanan, Ronald Kost, Ken Arrow, you know, lunatics, right? Left-wing liberals, right? Freedman said he'd only join if the word "no-brainer" existed in the brief somewhere, like this was a complete no-brainer for him. This is not about left and right. This is about right and wrong. That's what this battle is. These people are from the left and right. Hank Parrot, I think the grandfather of cyberspace--the law of cyberspace running in Illinois--is struggling to get support, to take this message to Washington. These are the sources, the places to go.

Then there is this organization. Now some of you say, I'm on the board of this organization. I fight many battles on that board. Some of you say we are too extreme; you say that in the wrong way, right? You send emails that say, "You are too extreme. You ought to be more mainstream." You know and I am with you. I think EFF is great. It's been the symbol. It's fought the battles. But you know, it's fought the battles in ways that sometimes need to be reformed. Help us. Don't help us by whining. Help us by writing on the check you send in, "Please be more mainstream." The check, right? This is the mentality you need to begin to adopt to change this battle. Because if you don't do something now, then in another two years, somebody else will say, OK, two years is enough; I got to go back to my life. They'll say again to you, Nothing's changed. Except, your freedom, which has increasingly been taken away by those who recognize that the future is against them and they have the power in D.C. to protect themselves against that future. Free society be damned.

Thank you very much.

Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the school's Center for Internet and Society. Prior to joining the Stanford faculty, he was the Berkman Professor of Law at Harvard Law School. His book, Code, and Other Laws of Cyberspace, is published by Basic Books.


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Comments

David Bowie believes the "enclosure" movement will fail in the arts with a continued spread of technology.

I worry about the "enclosure" of drugs in an Africa of 28 million who are HIV/AIDS positive. Though Brazil has fought for the right to break patents for life-saving purposes when drugs would be simply too expensive, still Brazil has been fought.

Should Africa be importing generic drugs from Brazil and India? Should Africa be manufacturing generic drugs as do Brazil and India? Though the prices for patented drugs in Africa may be reduced dramatically, the drugs can still be an economic bruden. We wish vibrant drug research by private merchants, we wish to treat as many of Africa's dearly poor sufferers as possible.

Lawrence Kohlberg would often ask us about whether we would "steal" a drug we could not afford to save another life. Africans are not singly able to "steal" drugs. Should Nigeria or Malawi or Togo "steal" drugs for the poorest?

Africa is in the midsts of the most dire health crisis, calling to account what human rights in a global age really amount to.

Posted by: on August 17, 2002 10:42 AM

Lessig's brief reference to the 'freed culture' that arose from the defeat of perpetual copyright deserves a little more elaboration: the most prominent booksellers (i.e. publishers) of the day were freed to produce popular editions of older authors, rather like the Penguin and Oxford Classics of the modern era. And like those modern paperbacks, they recruited literary worthies of the day to write prefaces that distinguished their editions from those of their competitors: it's for this reason that Samuel Johnson came out of near-retirement to write his Lives of the Poets, which prefaced volumes of those writers' collected works, newly released into the public domain.

It's not an understatement to say that the copyright decisions made at the end of the eighteenth century helped create the notion of 'English literature' as an object of study: those popular collections formed the basis of the first canon, available for anyone wishing to read the best work of past ages.

(The irony being that the enclosure of land took place at the same time the creative commons was liberated.)

The original fourteen-year limit, I believe, was based upon the legal definition of childhood at the time: that a published work could be used to support a child from birth to adulthood. That it's now death-plus-an-entire-lifespan perpetuates a depressing hoard of intellectual wealth.

Posted by: nick sweeney on August 17, 2002 10:50 AM

>>>This is an immensely powerful lawyer argument: that a Disney that has its origin in "rip, mix, and burn" should not now be able to turn around and successfully lobby to prohibit the kind of behavior that gave it birth<<<

As a lawyer I can say this is a rather confused and befuddled argument. No, a simpler description: Just plain wrong.

Disney doesn't use copyright law to prevent the kind of behavior ascribed to its own birth here. Steamboat Willie wasn't Steamboat Bill. "It was a parody, a take-off", yes -- and copyright doesn't prevent parodies and take offs, very obviously. Or where would Saturday Night Live be?

As cartoon expert witness Bart Simpson testified on this very point at the cartoon copyright trial over "Steamboat Itchy", the same basic comic motifs goes back through cartoon land from Homer through the Flintstones, and in film TV through any number of shows back to Archie Bunker and before, at least to Jackie Gleason's Honeymooners. [And before that....] All "rip mix and burn" all the way. Who ever was stopped by copyright?

The Flintstones was an overt, conscious imitation of the Honeymooners. (Mel Blanc even got in a fight with the studio because he didn't want to "do Art Carney" as closely as they wanted him to). Did Gleason sue? "Itchy & Scratchy" is a parody of Tom & Jerry. Did MGM sue? Did Disney sue Fox over "Steamboat Itchy" and the other output of Roger Meyers Studios -- including the notable Fantasia takeoff?

No, and you can "rip, mix and burn" any original parody takeoff of any Disney work you'd like -- "Robby Rat" or whatever -- and add it right here to your web site as a continuing feature, right now, no legal problem.

Now, if you put a cartoon mouse named "Mickey Mouse" on your web site you might have a problem. Like if Fox had produced a cartoon using the Disney character "Steamboat Willie", or if Disney in 1928 had produced a cartoon using the character "Steamboat Bill" developed by Keaton, then there might have been a problem. But I don't think one has to be a lawyer to see the difference in that.

Copyright prevents *copying*! Saying copyright prevents creating through "rip, mix and burn" is ridiculous. That is no legal argument at all.

(I mean, geeze, haven't you ever noticed how many awful, cheap, close imitations every half-way original hit TV show or movie spawns? Maybe it would be a good thing if copyright did kill them at birth.)

BTW, do you really think that if a studio invests $100 million plus in creating a movie there's no good reason why it should hold the copyright for more than 14 years?

By the same reasoning, would you say the formula for Coca Cola should have passed into the public domain after 14 years, so more people could enjoy it at lower cost too? After all, it's just another piece of intellectual property -- and nobody spent anything like $100 million creating it.

Posted by: Jim Glass on August 17, 2002 11:06 AM

Re: "it's hard to think of a reason why [the term of copyright] should be more than 14 years." I've got one such reason, at least: it would make me very very sad (as a proud though disenfranchised resident of DC) to turn on the TV one day and find Fugazi's oldest songs being coopted by corporate America as the background to commercials. It's bad enough when Iggy Pop (I assume it was he, wasn't it?) willingly licenses "Lust for Life" to a cruise line -- but that would be a step way too far.

To be somewhat less glib, I think that there is a substantial argument for a period of copyright longer than 14 years, if you think of the creators other than Disney -- the real creative humans who earn a living independently at art, and deserve (a) to have some say over what's done with their work during their lives at least; and (b) to earn a living from their back catalogue. But I agree that the present creeping-towards-forever copyright trend is bad policy and probably unconstitutional (though the Supreme Court will say otherwise, I wager).

Posted by: Sam Heldman on August 17, 2002 12:38 PM

BTW, do you really think that if a studio invests $100 million plus in creating a movie there's no good reason why it should hold the copyright for more than 14 years?

Since when does the 'value' of the work equate to the amount invested in it? It's a misleading non sequitur, and far less 'lawyerly' an argument than those you attempt to debunk. The basic premise of copyright is that works are valuable enough to be protected per se, regardless of the cost of production, or who produces it: one of the more execrable aspects of US copyright law is that it ascribes greater privileges to corporations than individuals.

I actually prefer Lessig's wider argument about Disney's growth, which has nothing to do with steamboats, but much more to do with its appropriation of public domain stories to establish its dominance, but its attempt to deny others the same right to create derivative works.

(And I also believe that Disney's real fear isn't loss of 'Mickey Mouse', but rather the bruising its image would take if the early black-and-white cartoons, with their contemporary take on race relations, were available in the public domain. After all, you don't see Song of the South on DVD, do you? And black-and-white Mickey never makes it to the Disney Channel, and some of his early appearances with black characters were a lot worse.)

Posted by: nick sweeney on August 17, 2002 12:42 PM

>>>BTW, do you really think that if a studio invests $100 million plus in creating a movie there's no good reason why it should hold the copyright for more than 14 years?<<<

>>Since when does the 'value' of the work equate to the amount invested in it? It's a misleading non sequitur, and far less 'lawyerly' an argument than those you attempt to debunk. The basic premise of copyright is that works are valuable enough to be protected per se, regardless of the cost of production,...<<

Nonsense. The premise of intellectual property laws such as copyright, patent, trade secret, etc., is that the creators of the intellectual work will possess such rights as to enable them to recover an economic return on them -- else they will produce fewer or none of them.

Now, one can argue whether pushing copyright protection to 500 or 1,000 years rationally serves this premise, while the owners of copyrights self-interstedly lobby for as much protection as they can get. But the rationale behind copyright and patents is stated clearly back to the creation of the US Constitution and before.

BTW, how the heck does one judge "the value of work 'per se'"?

>> one of the more execrable aspects of US copyright law is that it ascribes greater privileges to corporations than individuals.<<

So, you think that individuals who own copyrights are ascribed fewer privileges under the law than corporations that do?

Posted by: Jim Glass on August 17, 2002 01:31 PM

Perhaps some thought can be given to the problem of intellectual property rights from the perspective of those who live in the poorest countries. The difference betwwen ownership of intellectual property in rich and poor countries is immense. Intellectual property is not merely a pleasing cartoon or song, but in the case of drugs control of such property may be control of the right to live. What I am finding in Africa is just how difficult it can be for millions of people to gain access to life saving drugs. Should African nations be readily able to break patents for drugs? Even when such a proviso is included in international trade agreements, acting on the proviso has been exceedingly difficult.

These are just thoughts. If intellectual property rights even for cartoons and songs extend for generations, are we not assuring that a people who have acquired limited rights in the past are indeed too long limited? If not cartoons, what of developmental technologies, what of drugs? How much drug research can be afforded in Africa, as opposed to Europe or America? How does Africa thrive?

Posted by: on August 17, 2002 01:46 PM

December 2001 -

663,815,000 total population of sub-Saharan
Africa
291,310,000 population of adults 15 to 49

28,500,000 sub-Saharan Africans HIV/AIDS
positive
26,000,000 adults 15 to 49. 9.0% adult rate.
15,000,000 women 15 to 49. 57.7% of infected.
2,600,000 children 0 to 14.

22,000,000 - 35,000,000 range of sub-Saharan
Africans HIV/AIDS positive.

6.41 - 11.39% range of women 15 to 24
infected.
3.13 - 5.56% range of men 15 to 24 infected.

19,400,000 deaths estimated for sub-Saharan
Africa's adults and children of diseases
caused by AIDS from beginning of epidemic to
end 2001.

2,200,000 deaths of Africans from diseases
caused by AIDS in 2001.
500,000 deaths of children.

1,300,000 - 2,300,000 range of deaths for
adults.
380,000 - 650,000 range of deaths for
children.

3,400,000 Africans newly infected in 2001.
700,000 children newly infected.

11,000,000 orphans cumulatively at end 2001.
An orphan is described as a child who by 15
has had a mother or both parents die of
diseases caused by AIDS. Mothers
generally are the leading care takers of
Africa's children.

44 countries in sub-Saharan Africa.
37 countries studied.

20% or more adults infected in 7 African
countries.
11% or more infected in 12 countries.
8% or more infected in 15 countries.
5% or more infected in 24 countries.

Anne

Posted by: Anne on August 17, 2002 01:55 PM

I discuss the latest article on copyright by Landes and Posner here: http://stuartbuck.blogspot.com/2002_08_01_stuartbuck_archive.html#80369279

Posted by: Stuart Buck on August 17, 2002 03:01 PM

There's also the fact that fiction writers tend to burn out after a while. If you shorten the copyright term, you threaten their ability to survive in old age, thus making the arts even less financially tenable. It would be nice to say that they should take and invest the earnigns they get from copyrighted materials in an annuity or some such, but we're talking about possibly the least financially savvy profession outside of WTO Protester.

And on an aesthetic level, live authors shouldn't have to witness what gets done to their work by unauthorized screen adapters.

On the other hand, I really don't see why a copyright should exceed the author's lifespan unless it's written soon before he dies.

Posted by: Jane Galt on August 17, 2002 03:01 PM

The premise of intellectual property laws such as copyright, patent, trade secret, etc., is that the creators of the intellectual work will possess such rights as to enable them to recover an economic return on them -- else they will produce fewer or none of them.

Nonsense. That IP laws allow creators to be exclusively compensated for their creations for limited times has no reflection on what they cost to produce or the amount they recoup. Copyright allows you the sole right, for a finite time, to recoup $1m from your $100m turkey, should that be the saleable value of the work as judged by the market. Or vice versa. Neither the investment nor the return matter in terms of law, and to suggest that they do is at best a diversion; you appear to be arguing that copyright should be extended in order to compensate film studios for their profligacy. Certainly, the implication in your talk of studio budgets is that by 'return' you mean 'break even', which is irrelevant. (And even if it were relevant to the issue of copyright, it'd be beside the point, because it takes far, far less than fourteen years for all but the biggest Hollywood turkeys to break even. Thank 'foreign rentals'.)

One is not ascribed copyright based upon the amount of effort, or the amount of money, that goes into the creation of a work. Copyright is not graduated on a sliding scale per-page. Infinite Jest has no greater protection than The Catcher In The Rye. The US Constitution seems to word it pretty well - '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;' - and I see an emphasis on the exclusivity of the right, rather than the return derived therefrom.

BTW, how the heck does one judge "the value of work 'per se'"?

One doesn't judge it, and that's the point, as you might have gathered by my use of the term 'per se': that is, 'in itself'. The primary value of the work is that it exists. Its value is 'essential', to use the term in its philosophical sense. The cost of bringing into being and the amount it recoups are secondary.

To make it as simple as possible: your original comment and my reply are judged as equals as far as copyright is concerned. And the value of copyright is in its egalitarian basis, designed in the 1700s precisely to protect vulnerable authors from being pressurised into selling their rights in perpetuo to booksellers. Copyright is inherent.

So, you think that individuals who own copyrights are ascribed fewer privileges under the law than corporations that do?

It's plainly the case right now in US law, in the aftermath of the Sonny Bono Copyright Extension Act. Though that has little to do with the original premise of copyright, and one would hope that the Supreme Court agrees.

Moving to Jane Galt:

And on an aesthetic level, live authors shouldn't have to witness what gets done to their work by unauthorized screen adapters.

Well, they currently have to witness what gets done by authorised adapters, and most authors talk in fairly graphic terms about the demolition of their works by the Hollywood machine. Such sensitivity strikes me as rather precious, though: Dr Johnson survived in a world of limited copyright terms, and Charles Dickens coped with the wholesale piracy of his novels in the USA (foreign copyrights being fair game for US publishers) by sailing across the Atlantic to give readings.

Posted by: nick sweeney on August 17, 2002 03:38 PM

>>>The difference betwwen ownership of intellectual property in rich and poor countries is immense. Intellectual property is not merely a pleasing cartoon or song, but in the case of drugs control of such property may be control of the right to live.<<<

The IP related to drugs is patented, and patents are very different from copyrights that relate to cartoons and such.

First, patents have a limited life, typically 20 years but often less in practice because development time may have to be subtracted before an item is marketed. (Often very much so with drugs).

Second, everything that goes into the patent must be publicly disclosed -- so others can use all the innovations involved (as long as they don't violate the patent itself) even to get around the patent. This serves the public purpose of reducing the amount of trade secrets out there and disseminating new knowledge.

Drugs are a special economic case. Drugs have very high development cost but very low marginal cost of production. Things normally sell on a free market at marginal cost, so if all drugs were priced that way few would ever get developed because their cost couldn't be covered. Patents jack up the cost during the patent period to provide a return to the maker.

The thing is, there's no simple magic formula for balancing the competing interests to reach the social optimum. If patent rules jack up the price too high, somebody's going make money while others are denied the drugs they need to live because they can't afford the price. But if they don't jack up the price enough, many people are going to be denied the drugs they need to live because they won't exist. That's not better.

There's no simplistic pricing solution, anyone who claims to have one is being simplistic. The best pricing mechanisms just have to be worked out in practice. They quite arguably should be different for first-world and third-world countries even for the same drugs. New international institutions need to be developed to cover that. People like Jeffrey Sachs are working on it. It's a pragmatic issue, not an ideological one.

It's also important to remember the degree to which the deficencies of third-world medical care result from lack of basic infrastructure, distribution and organization, lest one get a false hope that just changing first-world laws would have great third-world benefits (or simplisticly think that first-world greed is the cause of all third world suffering).

I mentioned earlier how the second leading cause of death in the entire world, last time I checked, was childhood diarrhea from bad drinking water. Cases of that are cured by a package of salts costing a few cents, and prevented by fixing up the water supply. The cost is slight and there are no intellectual property rights preventing it from happening. But still the children are dying.

Posted by: Jim Glass on August 17, 2002 03:45 PM

>>>The premise of intellectual property laws such as copyright, patent, trade secret, etc., is that the creators of the intellectual work will possess such rights as to enable them to recover an economic return on them -- else they will produce fewer or none of them.<<<

>> Nonsense. That IP laws allow creators to be exclusively compensated for their creations for limited times has no reflection on what they cost to produce or the amount they recoup... <<

Of course not. Why should it?? Are property rights in real estate or anything else limited by the cost of acquisition of the property?? So that if you make a real smart purchase of real estate at a great bargain, your time-honored rights of property ownership let you get back, say, your cost plus 6%? ;-)

But the clear rationale of IP laws, stated by the legislators who have enacted them for as long as they have, has been to give the creator of an IP the right to profit from it vis a vis others. You may think it's a bad idea, but if you think that's not their stated rationale your argument is with the delegates who attended the Constitutional Convention, not me.

And is it such a bad idea that really helps the big guys so much versus the little people?

Say that without copyright you came up with a great, clever cartoon and put it on your web site. What would prevent the scouts from Disney or Fox from just taking it as their own, putting $1 million behind it, making $100 million, and saying screw you. Would you go on to make another cartoon then? Maybe you'd write a novel instead and show it to an agent or publisher who says, great I'm going to print it for millions and sell it to the movies for millions more, screw you, you can publish it on your web site if you want. Would you write another novel? Maybe you'd say to hell with this, you're going to be a software writer instead. So you write a great piece of code, then the scouts from Microsoft get their hands on a copy and say screw you.... Who's going to help you, little person that you are?

Maybe then you'll go be a farmer ?

Posted by: Jim Glass on August 17, 2002 04:23 PM

>>>And the value of copyright is in its egalitarian basis, designed in the 1700s precisely to protect vulnerable authors from being pressurised into selling their rights in perpetuo to booksellers<<<

That would be to protect the ability of the vulnerable authors to earn an economic return on their creations, which would otherwise be transfered to those nasty parasitical booksellers. Yes indeed.

An on an economics web site, we might consider the possibility that increasing the return to authors from writing books might result in them writing a greater number of them. ;-)


Posted by: Jim Glass on August 17, 2002 04:32 PM

They recopied his novels, which is certainly bad enough. But he didn't have to suffer through "David Copperfield: The Musical!" or Little Nell branded coffins.

The difference between the authorized and unauthorized screen versions is that in teh first case the author gets paid for their suffering; in the second, any idiot with a camera gets to do whatever the hell he wants, possibly destroying what the writer hoped was their legacy and reputation. This could not only inflict psychic harm on the author, but financial harm. Let's say the author is writing a series, like say the Nero Wolfe series by Rex Stout. Now let's say the copyright on his first novel expires. Suddenly, any idiot can put out a Nero Wolfe novel, and given my experience in publishing, I think it's safe to say tat any idiot will. Now the premium available to the original author declines. Now let's say someone decides to make a Nero Wolfe porn film. People are disgusted. Every time they open a new Nero Wolfe novel, they see the porn clips running in their head. Now no one will buy the novels at all.

In fact, it doesn't have to be that extreme; it could simply be people ruining the continuity of the series, or a lessor author confusing readers who don't know who the original author is, decide that the series is "slipping", and stop buying any Nero Wolfe books. A crappy movie version of an older novel could have the effect of turning off potential readers of a newer one. Etc.

I worked, briefly, on the licensed Star Wars series, from which I learned that many readers will indeed pick up a series based on a character or a "world" without paying attention to who the author is, and that a bad author on a series can pollute the water for everyone else, substantially decreasing the value of the franchise; when the series went into development, George Lucas tried to limit the damage that had been done by previous novels by declaring them "unauthorized" and starting fresh, but his previously indiscriminate practices, which had been categorized by uneven writing and nonexistant continuity, required several successful novels to overcome. And even now, you can bet that there are people who would read the novels, but don't because they read an earlier "unauthorized" work and it sucked.

Posted by: Jane Galt on August 17, 2002 06:45 PM

You may think it's a bad idea, but if you think that's not their stated rationale your argument is with the delegates who attended the Constitutional Convention, not me.

Their stated rationale, for the benefit of legal argument, is in the Constitution: the word 'profit' doesn't appear in its reference to copyright. Unless you have a special version that's different from all the others? (And I also take my opinion from everything going back to the Statute of Anne, having spent a fair amount of time researching eighteenth-century book deals.)

Say that without copyright you came up with a great, clever cartoon and put it on your web site.

Did I say anything about 'without copyright'? That's your own invention, and talking about it at such length with that whole 'screw you' sequence suggests that you can't respond to my arguments. (The 'taking as their own' stuff is entirely pointless: copyright is inherent.) In fact, I specifically emphasised that copyright, from the Statute of Anne through the US Constitution, has been designed to last for limited times, and that between the eighteenth and twentieth centuries, particularly in the era of Dickens, George Eliot, and Mark Twain, authors more than subsisted in a climate where copyright expired within their lifetimes. And if anything, the prospect of losing a steady stream of income from early successes spurred them into writing more, and refusing to rest on their laurels.

That would be to protect the ability of the vulnerable authors to earn an economic return on their creations, which would otherwise be transfered to those nasty parasitical booksellers. Yes indeed.

No, indeed not. Again, you miss the point: the return, should it occur, is only a secondary consequence of publishing; copyright simply guarantees exclusivity for limited times.

An on an economics web site, we might consider the possibility that increasing the return to authors from writing books might result in them writing a greater number of them. ;-)

Well, you might, but history suggests otherwise. At least in terms of books that survive the test of history. Not that I subscribe to the notion of the poor writer in his or her garret, but literary history shows that the guarantee of wealth has little connection with production.

Jane Galt: again, I think the fear of 'unauthorised' works polluting the brand is rather precious. Henry Fielding started his writing career with two bawdy travesties of Richardson's Pamela, the first of which appeared anonymously. And yes, I can't help returning to Pamela with Shamela in mind, but both are standard reading. In fact, modern literature is rife with such things. The problem you're discussing isn't with copyright, but on the way that serialisation in certain genres has replaced the 'author's-name' as a mark of authority or authenticity.

Posted by: nick sweeney on August 18, 2002 05:29 AM

There are many interesting comments and arguments here, but I think there needs to be more thought about the entire issue of intellectual property and development needs in poorer countries with little store of intellectual property. We are not wholly considering the needs of Brazilians to gain access even to artistic property let alone property most immediately essential for technological advance.

Tina Rosenberg has a brilliant article in NYTimes on Globalization that relates to this discussion.

Please. Please. As for infra-structure and medical treatment, Brazil has an HIV/AIDS treatment program that is excellent and could well be imitated by Nigeria or Malawi or Kenya. The point is to urge such imitation, though there may be resistance. At least to urge.

Posted by: on August 18, 2002 09:39 AM

There is a sad tendency to blame a people who are having difficulties for the difficulties, rather than assisting. An absurd excuse for failing to better assist southern Africans in the HIV/AIDS epidemic refers to lack of health care infra-structure. "AIDS therapy must be delivered on time, Africans may not have watches." Good grief. Nonsense. The question is whether we care about others.

Anne

Posted by: Anne on August 18, 2002 10:25 AM

Intellectual property rights is an issue that I really find fascinating. There have been a series of moral/legal arguments, but I find the whole argument that just because you create something, you have a right to its production forever after dubious. On a strictly libertarian (I'm not one, but many of the types who are radically moralistic in their defense of IP seem to be, though perhaps I'm remembering arguments on this from other blogs: don't see too much principled libertarianism on this blog...) basis, there's no reason for it in the classical sense of people simply keeping their endowments and trading freely among themselves. After all, if you copy this comment and sell it to a publisher (the publisher is presumably insane), you haven't "stolen" from me, actually reducing my wealth, except in the indirect effect of increasing supply, reducing the equilibrium price of my comments, and in that sense, it's only stealing as much as any new producer who enters a market "steals" from other producers by putting downward pressure on prices. Still, wealth is created by me that doesn't benefit me, so IP is kinda an externality problem... The way I see it, there are three basic solutions:

1) Give a limited monopoly to the creator of the intellectual property (current system, mostly).

Problem: Creates a monopoly, sometimes for a long time, that reduces output and social welfare by giving on producer exclusive pricing power. (also, congresspeople extend certain patents held by firms they like (campaign contributers?), but that's a problem with our political system, not an inherent problem with the patent/copyright approach.)

2) Government subsidies to research, development, broadcast media, and the arts (after all, isn't a good that's nonrival and nonexcludable virtually the textbook definition of public good?)

Problem: This would encourage intellectual property development generally, but would not necessarily funnel resources into the most useful projects. Once again, there's the issue of government honesty, and of the capability of the government to know enough to compensate IP creation at the level that reflects the "fair value" of the creation.

3) Let people copy whatever they want. Abolish IP, basically.

Problem: There's almost no incentive for development and the arts. Technological progress might slow down to levels seen the the renaissance or medieval times.

Past economic "golden ages" usually meant that productivity might double over several centuries, rather than every few decades. There's a table-top strategy game, Warhammer 40K, which is set in a sci-fi universe 40,000 years in the future. Anyway, I find the storyline very interesting, because it is basically the most pessimistic portrayal of humanity that still has H. Sapiens in existence. Technological progress basically stopped 10,000 years before, mysticism and superstition have replaced enlightenment attitudes, and government kills anyone who doesn't worship the immortal God-emperor, as well as virtually any aliens it meets, even if they're peaceful ('course, this being a nightmare future, very few of the aliens are nice guys either, and the ones that are end up being dismembered by the humans or the bad aliens...).

Maybe it's just my pessimism in light of the grimness of the beginning of the 3rd mellenium in comparison with comparative niceness of the end of the 2nd (terrorism, corruption, Ashcroft, etc, etc), but I used to wonder what the best course of action would be to guide ourselves toward the Start Trek future. Now I think about how we could avoid the WarHammer 40,000 future. I mean, we already have a widespread movement to give religious myths equal status in school with widely supported scientific theories (the unholy, unconscious alliance between leftist, Foucauldian anti-objectivism and rightist religious fundamentalism is most easily manifest in things like current administration's apparent denial of human influence on global warming, but isn't it just part of a trend toward ever less respect for rationality and objectivity since the 1950s?). Our president seems to be trying to create an image of infallibility. Buuuuuuuut... of course these are larger societal trends. On the issue of intellectual property, I can't say which is more likely to destroy progress: excessive regard for IP rights, or inadequate protection for it. It's a moot point, though, since currently, we're heading toward more and more religious regard for intellectual property rights.

Anyway, is there a fourth solution to the IP problem that I don't see, with no free rider or monopoly problems at all?

Julian Elson

Posted by: Julian Elson on August 18, 2002 12:17 PM

This is a commonsense argument outside law and economics, but it's relevant because strong advocates of strong intellectual-property laws often play both the fairness card and the motivation card ("why would anyone produce such-and-such if they weren't going to get rewarded for it?")

Any music-lover knows dozens or hundreds of cases when the creator of a work of art sold off his rights for a pittance, and intellectual property thereafter protected only the contract-holder. The musical group Jefferson Airplane was essentially destroyed by a bad contract; John Fogerty was not able to perform his own songs in public for years; various blues musicians died poor while the contract-holders got rich; and so on.

For a more developed argument along these lines, go to vanitysite.net/theoryofart.htm .

Posted by: zizka on August 18, 2002 03:41 PM

>>>And the value of copyright is in its egalitarian basis, designed in the 1700s precisely to protect vulnerable authors from being pressurised into selling their rights in perpetuo to booksellers<<<

Then it is not working anymore. In the music industry in particular. Especially since the "midnight amendment" redefined song writers as doing "works for hire" and re-assigned any copyrights they had managed to hang onto over to the distributors...

Posted by: John Anderson on August 19, 2002 12:16 AM

Jim: one point

>>By the same reasoning, would you say the formula for Coca Cola should have passed into the public domain after 14 years, so more people could enjoy it at lower cost too? After all, it's just another piece of intellectual property -- and nobody spent anything like $100 million creating it.<<

The formula for Coca-Cola is not, and has never been, protected by intellectual property law; it's a trade secret. If you can find out the formula, you can make as much of it as you like, and sell it for profit.

Of course, you wouldn't be able to use the trademark "Coca-Cola", but on the other hand, a great deal more than $100m have been spent on *that*.

Posted by: Daniel Davies on August 19, 2002 08:34 AM

Jane Galt writes of Dickens: "But he didn't have to suffer through 'David Copperfield: The Musical!' or Little Nell branded coffins."

Actually, it was very close to being exactly like that. Peter Ackroyd notes of Dickens' first great success, The Pickwick Papers:

"... so great was the craze for these monthly narratives that there emerged for sale the Pickwick cigar, the Pickwick hat (with narrow brims curved up at the side, like that of Mr. Pickwick himself), and the Pickwick coat (with brass or horn buttons and cloth of dark green or dark plum)." [Dickens 197]

Also according to Ackroyd, Dickens decided to do his own dramatization of Oliver Twist because he felt humiliated by all the rotten (and unauthorized) stage adaptations of Pickwick.

Posted by: Jeffrey Kramer on August 21, 2002 12:23 AM

I just posted some comments on this discussion on my blog, but I guess I'll post some of the same comments here (not sure what the etiquette is).

Anyhow, I'm a cartoonist, so this comment from Jim Glass caught my eye:

<<>>

(By the way, the answer is "yes.")

Jim's comment is a red herring, since Lessig doesn't propose eliminating copyright altogether. But it does illustrate an common misconception: that the value of an piece of art is the idea, rather than the artist's development of the idea. (When I ran a site for aspiring cartoonists like myself, I'd get emails from comic strip creators who were scared to submit their idea to cartoon syndicates, "because what if they steal it?" Those cartoonists had the same misconception.)

Consider Calvin and Hobbes - certainly one of the most valuable cartoons of the last twenty years (how many millions of dollars did Bill Watterson walk away from by refusing to license merchandise?). Is the value of Calvin in the idea? No, because frankly, the idea - "a boy and his imaginary pal" - is banal. Variants on that idea have been done dozens of times, sometimes well, sometimes not.

The value of the work is that Bill Watterson is a fucking cartoon genius. It's what Watterson did with the idea that has value - which is why the syndicate, which was drooling over the idea of Calvin and Hobbes merchandise, did not fire Watterson and hire a more cooperative cartoonist. In the end they gave Calvin and Hobbes, which was their legal property, to Watterson, rather than lose Watterson's services on the strip.

Why on earth would any business give away something so valuable?

Because they knew - and it's unusual for a corporation to be this perceptive, frankly - that the idea for Calvin and Hobbes wasn't as valuable as it seemed. The real value of Calvin was Bill Watterson's talent. If they had let Watterson go, they could have found a hack to keep the strip going - but it would quickly have become just another comic strip, a waste of space indistinguishable from Dennis the Menace or Marmaduke.

Of course, there are exceptions - sometimes it really is the idea that's valuable. Superman is the classic example - an billion-dollar idea from cartoonists who did not have world-shaking talent, but who had the right talent for the right idea at the right time.

But Superman brings up another important point (one Zitka already made). Copyright laws do not protect creators of million-dollar ideas. They protect copyright owners.

Jerry Siegel and Joe Shuster might have been better off had Superman never been copyrighted - at least they would have had the right to continue making Superman comics and selling Superman drawings into old age. (As it is, they ended up penniless, until bad publicity convinced Superman's owner to give them pensions). The in-practice effect of copyright - and of the overwhelming imbalance of power between a young creator and a huge publisher - is protection of the publisher's interests, not the creator's.

Posted by: Ampersand on August 21, 2002 10:26 PM
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