Supreme Court Rules Against Eldred

January 15, 2003 8:05 AM

The Supreme Court has ruled, seven to two, that the Sonny Bono Copyright Term Extension Act of 1998 is not unconstitutional. The act automatically extended copyright by an additional 20 years, delaying by those two decades the entry of works into the public domain. Lawrence Lessig and others have argued that the Act places unreasonable and unnecessary bounds on the potential of the Internet, as well as effectively rendering unobtainable many works from the early decades of the twentieth century.
posted by Songdog (126 comments total)

Brilliant. The cold, dead hand of Walt Disney strikes again.
posted by maudlin at 8:08 AM on January 15, 2003

This is unfortunate but not unexpected. I thought that Lessig's constitutional argument was rather weak.
posted by KirkJobSluder at 8:10 AM on January 15, 2003

Yes, it's a major news story that we'll all see, and I know it's been discussed here before, but this law affects us all profoundly, and the ruling merits our attention.
posted by Songdog at 8:11 AM on January 15, 2003

Well, that's depressing. Predictable, but depressing.
posted by languagehat at 8:11 AM on January 15, 2003

Yes, because we all know how opposed Disney is to anything being in the public domain. Yes?
posted by benjh at 8:11 AM on January 15, 2003

I'm seeing a lot of wailing and moaning about this elsewhere, and I feel distinctly strange because it's one of those issues I feel I should be wracked with despair about, but somehow I'm not. Could someone please explain to me why this is (as one blogger put it) equivalent to burning the Library of Alexandria? And spare me your apocalyptic rants about "eternal copyright" and "libraries will become illegal too".
My gut feeling is that this won't really change anything. People who're determined to break copyrights are going to do it anyway, and if the Feds start to really go after individual people for single copyright violations, they'd have to basically throw the entire college population of the US in prison.
posted by wanderingmind at 8:14 AM on January 15, 2003

January 15 2023: The Supreme Court has ruled, seven to two, that the Arnold Schwarzenegger Copyright Extension Act is not unconstitutional.

January 15 2043: The Supreme Court has ruled, seven to two, that the Prince Michael Jackson Jr. Copyright Extension Act is not unconstitutional.

Janufax XV 3003: The Supreme LifeLiteral has ruled, $#110$ to $#10$, that the Great EyePyramid Infinite Absolute Truth Ownership Act is not unconstitutional.
posted by Pretty_Generic at 8:17 AM on January 15, 2003

Heh.
posted by gottabefunky at 8:19 AM on January 15, 2003

wanderingmind, works from the early part of the twentieth century are under this extended copyright. Publishers don't stand to make a lot of money from these works anyway in many cases, and the added cost of tracking down copyright holders to arrange publication is a further disincentive. Most of these works will not be legally published until their copyrights finally expire. This includes manuscripts and films that are moldering away for want of proper conservation. It is impossible to estimate how great the cultural loss will be as these works slowly disappear.
posted by Songdog at 8:22 AM on January 15, 2003

Does this mean we can't write hot Mickey Mouse slash fiction?
posted by brownpau at 8:23 AM on January 15, 2003

Nice work P_G.
posted by anathema at 8:25 AM on January 15, 2003

newsfilter
posted by andrew cooke at 8:26 AM on January 15, 2003

Money talks.
posted by LowDog at 8:30 AM on January 15, 2003

languagehat:
Yes, because we all know how opposed Disney is to anything being in the public domain. Yes?

I don't see that the court is protecting Disney so much as admitting that they can't find a constitutional reason to overrule Congress on this one. Basically, the court gave exactly the same decision the last time this issue came up: The constitution gives the authority to define copyright to congress, absent a constitutional amendment they can define it as they see fit.

wanderingmind:
I'm seeing a lot of wailing and moaning about this elsewhere, and I feel distinctly strange because it's one of those issues I feel I should be wracked with despair about, but somehow I'm not. Could someone please explain to me why this is (as one blogger put it) equivalent to burning the Library of Alexandria? And spare me your apocalyptic rants about "eternal copyright" and "libraries will become illegal too".

I don't see it as equivalent to burning the Library of Alexandira. I see it as more of a slow creep towards an impovrished public domain.
posted by KirkJobSluder at 8:32 AM on January 15, 2003

Misleading double negatives are not unavoidable.
posted by jjg at 8:35 AM on January 15, 2003

Boingboing is black.
posted by IshmaelGraves at 8:37 AM on January 15, 2003

*grin* Funny, P_G.

And just because it's posted at Slashdot and I know it'll piss Cooke off, here's the links to The Majority Opinion, Stevens' Dissent, and Breyer's Dissent. [Note: Adobe Acrobat Format]
posted by SpecialK at 8:37 AM on January 15, 2003

From the AP article: A contrary ruling would have cost entertainment giants like The Walt Disney Co. and AOL Time Warner Inc. hundreds of millions of dollars. AOL Time Warner had said that would threaten copyrights for such movies as "Casablanca," "The Wizard of Oz" and "Gone With the Wind."

What? It wouldn't cost them a cent. I think those movies recouped their costs decades ago. What they'd do is lose the opportunity to milk their property for another 20 years. Lost profits is one thing, but lost potential profits is a bit shaky.
posted by zsazsa at 8:38 AM on January 15, 2003

KirkJobSluder, I agree that the law may be constitutionally sound. If I had the Supremes' knowledge of constitutional law I might very well agree with them. That doesn't mean that it's a good law.
posted by Songdog at 8:38 AM on January 15, 2003

This is very bad.

Extending the copyright this long only benefits corporation, not artists. Copyright was suppose to be about encouraging individuals to share their creative works with the public. Now it's about protecting corporations. Great.

I am quickly losing faith that the supreme court is acting in the best interests of the common man.
posted by y6y6y6 at 8:39 AM on January 15, 2003

I am quickly losing faith that the supreme court is acting in the best interests of the common man.
ROFL y6y6y6!
posted by quonsar at 8:42 AM on January 15, 2003

Oh who cares, we have Joe Millionaire and the Bachelorette to entertain us now.
posted by eas98 at 8:43 AM on January 15, 2003

It seems to me that the very fact that they decided to try the case would imply that they (the Supremes) feel it's an issue worth discussing. Perhaps when someone presents a better argument the "public domain wackos" will win. I for one look forward to that day. Power to the People indeed.
posted by blue_beetle at 8:46 AM on January 15, 2003

y6...

I don't like the law, but the Supreme Court isn't *supposed* to act in the best interests of the common man. Their judges. Their job is to interpret law. The law was fairly clear in this case - that is, it's Congress' responsibility. Congress was the problem in this case, not the judges.
posted by Kevs at 8:48 AM on January 15, 2003

Well, at least we can vote these idiots out next time around.

Oh, wait.
posted by rushmc at 8:49 AM on January 15, 2003

I suppose its gonna be weird when the copyright runs out in the rest of the world, and we can do what we like with any character that we like (as long as they're old enough) and people in the States will be prohibited from seeing them...

hmm...
posted by couch at 8:50 AM on January 15, 2003

wanderingmind:
People who're determined to break copyrights are going to do it anyway

Well that's obvious, with or without extension.

Could someone please explain to me why this is (as one blogger put it) equivalent to burning the Library of Alexandria?

It's not like burning it, but the negative impact of an extension of copyright is that , quoting from the article

Congress has repeatedly lengthened the terms of copyrights over the years. Copyrights lasted only 14 years in 1790. With the challenged 1998 extension, the period is now 70 years after the death of the creator. Works owned by corporations are now protected for 95 years

95 years ! That means you can sit on the discovery (probably) made by one man and watch cash coming into your coffers without doing anything but producing again and again the same obsolete product. That kills any innovation incentive INDIRECTLY.

You probably know that some innovations requires investments (money) to back some innovative idea: one rarely can jump straight from an idea to a product, it often requires investments : for example, nuclear energy exploitation probably started with Enrico Fermi implementation of a nuclear battery ..a rather primitive one, just a proof-of-concept. Then somebody realized it was worth trillions of and invested massively, now we enjoy the relatively unexpensive energy produced by contained nuclear reactions.

Of course you can't copyright the reaction itself (it occurs naturally) but you can copyright the method used to make it safer or to make it useful. When somebody wants to build a reactor, he probably must pay hefty royalties if he wants to use some technology. That's ok, that promotes investments into SOME GOOD technology (not into innovation).

But at the same time, if you give the copyright owners (often corporations, rarely individuals) an opportunity to sit their fat asses on an a gold mine and do NOTHING but employ again and again the same old technology, because they'd rather not risk money on something they don't have a clue about (some innovative tech) they'd rather sit here and wait.

Sooner or later some competition MAY come in, but when it happens, the company will just shut down and if they made enogh profit, they can just quit working altogheter.

100 years of copyright is an incentive for little companies (usually the innovative ones) ? No, because when some big money comes in and asks to buy the copyright, they will not care if the copyright is 30 or 50 or 100 years long, because they now that in 100 year some other innovation will probably kill the demand for their copyright, so they'll not pay a premium price for long term protection.

So, imho, the extension of copyright to 100 years is just used to protect some particular investments that don't need any innovation (like Mickey Mouse) and shouldn't be extended to technology that screams for innovation. Who needs Mickey Mouse btw ?
posted by elpapacito at 8:55 AM on January 15, 2003

"the Supreme Court isn't *supposed* to act in the best interests of the common man"

I know. Just being very sad and sarcastic. I guess I'm wondering what we need for someone in government to actually, in practice, look out for the best interests of the common man. We seem to be moving closer and closer to a true Syndicracy.
posted by y6y6y6 at 9:01 AM on January 15, 2003

It sounds like you're comparing apples to oranges, Papacito. I understand how copyrighting technology can stifle innovation, but copyright doesn't just apply to technology. If I copyright (for example) a character I draw, I don't expect it to be obsoleted by someone else's "new" version of the character! I should be free, of course, to redesign and tweak the character as I see fit (just like Disney's done countless times with the Mouse), but it'll still be mine. I'm not stifling innovation by asking that nobody use the character I invented. Someone else can come up with an original character of their own, and copyright it too. All I'd be stifling are people who're trying to pass off rip-offs of something I came up with myself. Inventing a piece of technology and inventing a fictional character (or, for that matter, creating any sort of artistic work) are inherently vastly different.

Related question: when does a Creative Commons license expire?
posted by wanderingmind at 9:03 AM on January 15, 2003

(BTW, I'm in no way saying that this isn't a bad thing. I just don't think it's the End of Civilization As We Know It.)
posted by wanderingmind at 9:10 AM on January 15, 2003

And spare me your apocalyptic rants about "eternal copyright"

What evidence is there that Congress will not keep extending it forever saying "we'll stop extending it at some point, but not now"?
posted by McBain at 9:14 AM on January 15, 2003

Can someone explain to me why any copyright should last one minute past the death of the creator?
posted by rushmc at 9:15 AM on January 15, 2003

"My gut feeling is that this won't really change anything."

The problem is the path we are going down with this.

Inherent in the idea of copyright is that having a robust public domain is a good thing. That's why copyright was limited to 14 years. The intent is that the artist will profit from the work and then it will pass into mix and anyone can extend the artist's original work.

The intent of extending copyright every time it is about to expire is to prevent profitable work from ever entering the public domain.

Sounds reasonable you say?

The movies "Cinderella", Snow white and the Seven Dwarves", "Beauty and the Beast", etc were all possible because the works they were based on had entered the public domain. Hmmmm......

Copyright is an agreement between artists and the public - We'll protect you from copy-cats, but only for 14 years. Then you pay us back by adding your work to the public domain. It's win-win. Extending copyright forever is a win for corporations and a lose for the public.

Just my opinion, but I think the public domain is more important than Corporate profi
posted by y6y6y6 at 9:22 AM on January 15, 2003

here's the SC opinion, PDF format
posted by elpapacito at 9:24 AM on January 15, 2003

wanderingmind - a Creative Commons license "lasts for the duration of the work's copyright." It's an open license for copyrighted works, not an alternative to copyright.

rushmc - because, for instance, the author's spouse and children may have made great sacrifices to help the author complete the work. If the author dies soon after completion, the family still deserves the benefits of copyright. I'm just not sure they should receive those benefits for seventy years.
posted by Songdog at 9:26 AM on January 15, 2003

rushmc: this is why
posted by Pretty_Generic at 9:27 AM on January 15, 2003

elpapacito: but you can copyright the method used to make it safer or to make it useful.

This is entirely false. That is the realm of patents. Different story altogether. You cannot copyright the functional aspects of a work.
posted by anathema at 9:28 AM on January 15, 2003

elpapacito: You're talking about patents, not copyrights. Whole different ballgame, I'm afraid. Your explanation can be extended by torturous analogy to cover actual copyright issues, but the way is long and the path rocky. It would be better to start over with an understanding of what a copyright is and come up with a better analogy.
posted by rusty at 9:28 AM on January 15, 2003

What I find interesting is how something like this made it's way to the top of the court's priority list. Was this really the most important thing they could think of to discuss?
posted by LowDog at 9:29 AM on January 15, 2003

the Supreme Court isn't *supposed* to act in the best interests of the common man"

of course not, the common man is probably a liberal/peacenik/communist/terrorist

but maybe, just maybe, the guy who has the power to appoint the Justices should somehow be held accountable
posted by matteo at 9:30 AM on January 15, 2003

Oooooooppps my bad ! English not being my motherlanguage, I understood copyright covered technology. My fault, I was really talking about patents.
Shame on me.
posted by elpapacito at 9:38 AM on January 15, 2003

Can someone explain to me why any copyright should last one minute past the death of the creator?

To benefit the family of the creator. 95 years is ridiculous, but I think copyright owners should be able to provide for their dependents in this manner for at least a few years.
posted by whatnot at 9:41 AM on January 15, 2003

Inherent in the idea of copyright is that having a robust public domain is a good thing.

I've never really understood the value and rational of this 'public domain' thing. What is the public value of having a non-copyrighted Mickey Mouse? You'd get a lot of cheap Mickey T-shirts and Mickey bed sheets and Mickey Toilet Plungers, but that's a corporate value. What good does it do society to have Mickey out there and available? Wouldn't it be better to have creative people out there thinking up creative things that don't have to do with Mickey Mouse, instead of extending the concept of Mickey Mouse?

I realize that this is a rather basic question that is revealing my ignorence of the subject, so perhaps someone can provide or point me to a basic primer on the inherent goodness of the public domain.
posted by jacquilynne at 9:42 AM on January 15, 2003

KirkJobSluder, I agree that the law may be constitutionally sound. If I had the Supremes' knowledge of constitutional law I might very well agree with them. That doesn't mean that it's a good law.

I agree that it is a very bad law. However I'm skeptical that the courts in this case have the authority to call the law unconstitutional.

What I feel needs to happen is for fair use and public domain to become election issues along the same lines as consumer safety and quality of the environment.

Meanwhile, I think there are some baby-steps that are fairly easy to put into place. One of those baby steps would be to close a gap in existing copyright law by providing a clear legal procedure for entering works into the public domain along the lines as that advocated by creative commons. Another option would be to create an incentive system for placing works in the public domain.

Another step is to not only work on congress, but also to work on consumers and content producers. For many people out there "all rights reserved" copyright is neither in their financial or intellectual best interest.

Wanderingmind:
All I'd be stifling are people who're trying to pass off rip-offs of something I came up with myself. Inventing a piece of technology and inventing a fictional character (or, for that matter, creating any sort of artistic work) are inherently vastly different.

Is it a rip-off or homage?

For example, Shakespeare never wrote an original plot. All of his plays were adapted from other sources especially Itallian and French dramas and earlier English historical poems. In return, Shakespeare has been the source for a large number of adaptations over the years into opera, ballet, stage, novelizations and film. Kurasawa can cast Toshiro Mifune as a Samurai MacBeth, and Strange Brew did Hamlet as a Canadian comedy.

The basic fact of the matter is that quite a few of our great works are adaptations. This certainly is true in Opera in which every generation has its own Orpheus (Offenbach's version includes the "Can Can" which was a staple of Buggs Bunny and prominently featured in Moulan Rouge. The freedom to adapt permitted Sondheim to use a Seurat painting as the basis for a musical. Jaz, Rock and Hip-Hop have a long tradition of recontextualizing musical motifs of other artists. The Oddesy and Iliad were not composed by Homer, but compiled from several previous sources into one coherent poem. The current interpretation of copyright makes grand folklore compilations such as Grim's Fairy tales (much less derivative works such as Disney movies, the great Children's opera Hansel and Gretel, and one of Tchaicovski's best overtures).

And lets not forget simple performance. While you can perform Jingle Bells in pubilc you can't perform Jingle Bell Rock in public without permission. If the ownership of the song (or play) falls into question no one can perform it.

I don't know of anyone who is arguing that this is the death of civilization as we know it. Civilzation after all survived the plagues, a mini ice-age, and totalitarianism. However, it does make our culture less worth living in.
posted by KirkJobSluder at 9:45 AM on January 15, 2003

I agree with KirkDogSluder: "I don't see that the court is protecting Disney so much as admitting that they can't find a constitutional reason to overrule Congress on this one."

The problem originates with the U.S. Congress.

We can affect this situation, if at all, by electing senators and representatives who say they won't cave to the major corporations throwing dollars at them, who won't support further copyright extensions that stifle creativity and innovation.
posted by maud at 9:48 AM on January 15, 2003

The more comments I read about this (here and elsewhere), the more it seems like people are confused about "derivative work". Let's take Lilo & Stitch as an example. Clearly, if I attempted to publish a story about a vicious weird alien who crash-lands on Hawaii and befriends a girl there and so on, only changing a few of the details, that would be infringement. But what if I, after seeing Lilo & Stitch, write a fantasy story about a vicious monster who winds up in a village and befriends a girl there (while getting chased by other minions of the Dark Lord and whatnot)? Would that be infringement? Probably not.
People make the case that all art is derivative work, because artists can't help but be inspired by all the cultural products around them. Fine. The thing is, that's using a different definition of "derivative work". Being inspired by something is not the same as ripping it off outright.
If you want an extreme example of this difference, look at the - I think they're called "Good Times" animated movies? I remember, when The Lion King had been out for a short period of time, seeing ads on TV for a video of something called "The Jungle King". Later on, I saw in a video store what looked to be versions of other stories Disney had made movies out of - Aladdin, for example - done by the same people and more than likely timed to coincide with the releases of the Disney versions. Now, if you asked me about it, I'd say this was copyright infringement - but somehow Disney's lawyers think it isn't.
Like I said, this is an extreme example, but it bears thinking about. What exactly does someone mean when they say "derivative work"?
posted by wanderingmind at 9:52 AM on January 15, 2003

I'm for perpetual copyright. If the copyright holder wants to put a work into the public domain, so be it, but otherwise, forcibly taking it away from them or their heirs is theft. Anybody who whines about copyrights lasting a long time is just a parasite.
posted by BGM at 10:00 AM on January 15, 2003

BGM, so you'd be against any work of fiction that included significant elements of the Bible?
posted by Pretty_Generic at 10:03 AM on January 15, 2003

KirkJobSluder: You talkin' to me?

Otherwise, I agree with the points you've been making.
posted by languagehat at 10:04 AM on January 15, 2003

There is lots case law (some conflicting) regarding what a derivative is. More importantly there is a statutory basis right in the Copyright Act. I don't have time to track a link down right now. Check out the LoC Copyright Circulars.
posted by anathema at 10:07 AM on January 15, 2003

y6y6y6:
The movies "Cinderella", Snow white and the Seven Dwarves", "Beauty and the Beast", etc were all possible because the works they were based on had entered the public domain. Hmmmm......

It gets even better than that. Cinderella and Snow White were compiled as a sideline to the Brothers Grim's academic study of Indo-European language and published as an anthropological anthology. So in some respects they were never in the private domain.

jacqueline:
I've never really understood the value and rational of this 'public domain' thing. What is the public value of having a non-copyrighted Mickey Mouse? You'd get a lot of cheap Mickey T-shirts and Mickey bed sheets and Mickey Toilet Plungers, but that's a corporate value. What good does it do society to have Mickey out there and available? Wouldn't it be better to have creative people out there thinking up creative things that don't have to do with Mickey Mouse, instead of extending the concept of Mickey Mouse?

The value of the public domain is that it provides a set of iconic works that anyone can use or interpret. Many of those images are widely recognized symbols. For example, Uncle Sam has become an iconic stand-in for the United States in editorial cartoons, both as a patriotic figure and as a sarcastic object of protest.

I also think that much of the press is in error in claiming that Mickey Mouse falls into the public domain because the Mouse is a trademark. On the other hand, some early Mouse works such as Steamboat Willie could become the basis for other works as long as the trademarked mouse does not make an appearance (Steamboat Willie, the musical.)
posted by KirkJobSluder at 10:09 AM on January 15, 2003

wanderingmind - those things aren't infringement because The Lion King, Aladdin, The Little Mermaid, etc, were not completely original works from Disney. They could presumably sue if someone used their precise drawings, music, or original characters, but they can't sue just because someone else is capitalizing on their promotion with the timing of their own version of a public domain story.

BGM - then Disney is the biggest parasite around. Why aren't Hans Christian Anderson's heirs getting rich off of The Little Mermaid?

jacquilynne - I think people have covered why the public domain is good, but I will add that I think Mickey Mouse as a character is a poor example of the sort of thing that should be in the public domain. Unfortunately, it's a very commonly given example.
posted by Songdog at 10:11 AM on January 15, 2003

rushmc - because, for instance, the author's spouse and children may have made great sacrifices to help the author complete the work. If the author dies soon after completion, the family still deserves the benefits of copyright.

I don't see much sense in that. Putting aside the fact that immediate family members are not likely to survive the creator by 70-95 years, I don't think that they are entitled to much, if any, special protection. We are all subject to the vicissitudes of life. The creator, who was responsible for the copyrighted work, doesn't get to see any remuneration for the work after his death--he's dead. I don't see why any peripherally-involved individuals, whether family members or corporate board members, should continue to benefit. The only real danger I see is possible assassination of copyright holders by those in a position to benefit.
posted by rushmc at 10:19 AM on January 15, 2003

I've never really understood the value and rational of this 'public domain' thing.


Shakespeare. Beethoven. Da Vinci. If the equivalent of these giants were alive and producing in America today, they'd probably a) sell their works under contract to Sony, Viacom, News Corp, Disney, etc. in order to get them into distribution channels where anyone would be able to see or hear or read them, and then b) after these corporations milk them for all their worth, toss them into a vault where they would exist for a hundred years. And be forgotten.


But maybe they'd release under the Creative Commons...and if you're an artist, give it a thought...
posted by dragstroke at 10:21 AM on January 15, 2003

wanderingmind - those things aren't infringement because The Lion King, Aladdin, The Little Mermaid, etc, were not completely original works from Disney. They could presumably sue if someone used their precise drawings, music, or original characters, but they can't sue just because someone else is capitalizing on their promotion with the timing of their own version of a public domain story.

Yes, that was more or less my point. Intuitively they seem like they ought to be infringement, but they're not.

(On preview: Dragstroke, I'm an artist myself, and I fully plan on sticking a Creative Commons license on my work. It's a great idea.)
posted by wanderingmind at 10:22 AM on January 15, 2003

If the copyright holder wants to put a work into the public domain, so be it, but otherwise, forcibly taking it away from them or their heirs is theft.

The flaw in that reasoning, of course, being that copyright is a protection granted by the government, not something inherent in the work itself.
posted by rushmc at 10:22 AM on January 15, 2003

"When machines and computers, profit and property rights are considered more important than people, the giant triplets of racism, materialism and militarism are incapable of being conquered." - Martin Luther King, Jr.
posted by gramcracker at 10:25 AM on January 15, 2003

Does this mean I still can't watch "Citizen Kane" for free?

And the authors of the simpsons wanted me to watch it so badly...
posted by shepd at 10:26 AM on January 15, 2003

jacquilynne said: What is the public value of having a non-copyrighted Mickey Mouse? You'd get a lot of cheap Mickey T-shirts and Mickey bed sheets and Mickey Toilet Plungers, but that's a corporate value.

Mickey Mouse, the character, wouldn't become public domain, because the Mickey Mouse character and likeness is protected as a trademark, not under copyright (I think, someone correct me if not). An expired copyright would mean that early Disney cartoons that had Mickey Mouse in them would be in the public domain, so you could (for example) freely trade or even sell tapes of Steamboat Willie - but only the program itself. Merchandise bearing the image or likeness of trademarked characters would still be illegal.

So basically what is being protected here is not the right of an artist not to be screwed out of his rightful property, but the right of corporations to continue to make a profit.
posted by RylandDotNet at 10:26 AM on January 15, 2003

This decision simply states that copyright extension laws are not unconstitutional. It does not state that they are good or bad, just that they are constitutional.

I would assume this also means that new laws limiting copyright terms are also not unconstitutional. Assuming this, the proper way to fight copyright extension is through legislation. Of course, some may view this an up-hill battle.
posted by jsonic at 10:29 AM on January 15, 2003

People make the case that all art is derivative work, because artists can't help but be inspired by all the cultural products around them. Fine. The thing is, that's using a different definition of "derivative work". Being inspired by something is not the same as ripping it off outright.

The problem here is with your claim that "derivative work" is "ripping it off outright." For example, if I stage a performance of Othello that is a derivative work. If I make a translation into Klingon, that is a derivative work. If I include a copy of the text in an anthology, that is a derivative work. And yet I doubt that any of these things are "ripping it off outright."

Later on, I saw in a video store what looked to be versions of other stories Disney had made movies out of - Aladdin, for example - done by the same people and more than likely timed to coincide with the releases of the Disney versions. Now, if you asked me about it, I'd say this was copyright infringement - but somehow Disney's lawyers think it isn't.

Perhaps because with a handful of exceptions, Disney films are themselves derivative of public domain works. Aladin first appears in The Book of a Thousand and One Nights in Arabic 1000 year ago and translated into French 300 years ago. Cinderella, Snow White and Sleeping Beauty were collected from public domain folktales by the Brothers Grim over 150 years ago. Lilo and Stitch is contemporary, but the Lion King is loosely cribbed from Hamlet.

Yes, that was more or less my point. Intuitively they seem like they ought to be infringement, but they're not.

Why is that intuitive? IMNSO the idea that someone can sue someone else for using a story that everybody knows seems counter-intutive.
posted by KirkJobSluder at 10:29 AM on January 15, 2003

"BGM, so you'd be against any work of fiction that included significant elements of the Bible?"
Not as long as they got permission and paid royalties.

"BGM - then Disney is the biggest parasite around. Why aren't Hans Christian Anderson's heirs getting rich off of The Little Mermaid?"
Because all the parasites have prevented a law from being passed making it so. Imagine if the perpetual copyright law was in effect. Disney would be paying out truckloads of money to rights holders. Passing a perpetual copyright law would mean that Disney would never be able to freely milk the labors of creators again, and also keep the world safe by making sure that the novel I'm working on, Bill and Ted and Jay and Silent Bob and Frodo and Sam Vs. The Godfather, never sees the light of day. See, the law would cut both way
posted by BGM at 10:37 AM on January 15, 2003

bgm, i agree completely with your proposal for enduring copyrights and efforts to treat it exactly like real property. as so, i have a modest proposal.

intellectual property tax.

11 percent per year based on appraised value (combined last 5 years of sales, or average yearly lifetime sales, whichever is greater) for each and every piece of intellectual property you own.

with rights come responsibities.
posted by lescour at 10:51 AM on January 15, 2003

(in regards to the bible) Not as long as they got permission and paid royalties.

To whom exactly?

Because all the parasites have prevented a law from being passed making it so. Imagine if the perpetual copyright law was in effect. Disney would be paying out truckloads of money to rights holders. Passing a perpetual copyright law would mean that Disney would never be able to freely milk the labors of creators again, and also keep the world safe by making sure that the novel I'm working on, Bill and Ted and Jay and Silent Bob and Frodo and Sam Vs. The Godfather, never sees the light of day. See, the law would cut both way

Again, pay out truckloads of money to whom exactly? Most Disney films are ultimately based on folktales. Sending out royalty checks of less than 1c to every Arabic-speaking person in the world for the right to use Aladin would be quite unfeasable. Likewise, I don't see a problem with satire as you describe.

The fact that Disney uses public-domain works is not a problem. After all, the point of a commons is that everyone benefits.
posted by KirkJobSluder at 10:56 AM on January 15, 2003

"I've never really understood the value and rational of this 'public domain' thing."

When art is in the public domain you (or anyone else) can do whatever you want with it. This is the value. Yes, this will mean the person who created the art won't make any money on your use. Here's how I see it:

Copyright means: Art = money.
Public Domain means: Art = culture.

I like the balance that was originally established by copyright law. 14 years. We want to encourage artists to add to our culture, so we protect their ability to make a profit. But it's the culture that's the point, not the profit. So eventually the profit protection ends and the cultural benefit takes over.
posted by y6y6y6 at 11:04 AM on January 15, 2003

BGM, you need to look at this and rethink your position. Copyright is an "unnatural" right--enforcement requires a governmental restriction of liberties (the freedom of speech of potential "infringers") in order to encourage creative production. In the words of the Constitution: "The Congress shall have the power. . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. . . ." Note well that this means that your "perpetual copyright" would require a constitutional amendment.

The concept of ideas being owned by an individual or corporation runs counter to the natural state of things--information wants to be free: ideas are propagated and reproduced at virtually no cost--and it takes a great deal of governmental machinery to prevent the free dissemination of ideas and creative works. Also, keep in mind that copyright does not imply that authors and publishers could use any copyrighted material in exchange for payment of a royalty: copyright owners can prevent absolutely any use, reproduction, or distribution of copyrighted material, making such material forever unavailable (see Song of the South). In addition, what's the point of requiring royalty payments to people generations away from the creation of the original work? Hans Christian Anderson's great great grandchildren had about as much to do with the creation of the original Little Mermaid as Michael Eisner did--I don't understand why he should pay them for the right to retell the story.
posted by mr_roboto at 11:07 AM on January 15, 2003

Disney's derivative work.
posted by jbelshaw at 11:11 AM on January 15, 2003

In the sense that the Constitution provides protection for copyrights, we do have a "right" to it, but it is at the discretion of congress. Intellectual property is just a fiction for which we provide legal protection so we can create a public incentive. Without it, the only way to prevent someone from "ripping off my work" is to not tell anyone about it.

In any case, for those who need a quick summary of the opinions, here it is: Ginsberg, writing for the majority, claims that (a) previous (unchallenged) congressional precedent allowed for retroactive extensions, (b) since the primary purpose of the Bono act is to line up with EU law, it's not inherently an attempt to infinitely extend copright, (c) patent case law and copyright case law are inherently different, and (d) it's not the job of the courts to interfere with congressional decisions about what "limited" means.

Stevens' dissent primarily rests upon claiming that patents and copyrights _are_ similar and that their case law should be treated identically with respect to their incentivizing purpose (and also points out that the "incentive to rehabilitate earlier works is crap). He also argues that SCOTUS's job is to _specifically_ make sure that congress's use of copyright law is appropriate, even if congress had free reign for 200 years to make wrong decisions.

Ginsburg's opinion is very compelling, but it is a little more limited than it seems because it hinges on the fact that the copyright extension was made to conform to an international treaty, and I really see the Ginsburg's argument in (c) somewhat less-than-firm. Both these things could be used to challenge a future non-treaty-related copyright extension.
posted by deanc at 11:12 AM on January 15, 2003

And one more problem with perpetual copyright: How do we decide who owns the copyright? If I want to publish a new translation of the Old Testament, do I have to poll every possible descendant of the ancient Hebrews for permission? Do I need an absolute majority, or is a quorum of respondents good enough? Or does it have to be unanimous, with each individual given an absolute power of veto? Completely unworkable.
posted by mr_roboto at 11:14 AM on January 15, 2003

BGM - Perpetual copyright, eh? Look at the bottom of this page: "All posts are © their original authors."

I am hereby claiming copyright on all my posts on Metafilter, and am now demanding royalties on the unauthorized duplicates which are downloading to your browsers. $10 per download. Paypal is okay. ;)
posted by brownpau at 11:23 AM on January 15, 2003

Here's why I think there should be no copyright monopoly at all; that is, a redefinition of the Copyright Clause's "exclusive right" to mean "exclusive right to sell" - any work could be distributed for free, if desired, but the copyright holder would be the only one who could sell it.

There are IP companies making millions by selling stuff already in the Public Domain. You can download Shakespeare for free, but people still buy it. You can read every AP story for free, but people still buy the paper. Disney would not go out of business if there were no copyright. Even if only a little, any distribution of information other than by word of mouth costs money - no one would be willing to let you download a million Backstreet Boys singles off their server unless you paid them.

As for encouraging works, most great works of art and literature require no profit incentive. I'm as capitalist as they come - studying Management at the moment - but the music I like would still be produced (making money of tours and by selling CDs to those who would rather have that than a download), the books I want would still be written (the Great American Novel, I fear, will not be written by someone looking for a quick buck, though we might have less dieting scams).

I believe Lessig demostrated by percentile the amount the odds of *any* money being made by specific Work X after Y amount of years. Suffice to say, after a very short period, most works are forgotten. Many are gone forever.

Less copyright is a free-market solution, not a leftist one. The very concept of copyright is one that invokes using the Government to let copyright holders hold an "exclusive monopoly", in legal terminology, for their works.

(As an aside, it seems there's confusion about what copyright means. *Everything* you write, paint, film, record, etc., is automatically in your copyright the instant it is made. This is the law as of 76 revision. There is no way to remove this copyright - however, you can, as the Creative Commons wishes, set an "automatic" license that lets your work function in essentially the same way as a work in the public domain).
posted by Kevs at 11:32 AM on January 15, 2003

Kevs: if Napster/Kazaa was entirely legal for all uses, and could be advertised as such, then in five years time when printing out exact replicas of books, music packaging etc. will be easy, no-one would buy any media at all. Guaranteed.

No-one would be able to create computer-copyable art for a living. If you can work out a system where that would lead to lots of good media getting created, I'd be interested to hear it.
posted by Pretty_Generic at 12:04 PM on January 15, 2003

This discussion brings to mind a short story by Spider Robinson that I read a number of years ago; the title is "Melancholy Elephants."

I had written out a summary of the plot, but then hit up google, and, lo and behold, the story is available online.
posted by doorsnake at 12:14 PM on January 15, 2003

BGM: God announced today that I, ?!, will manage the copyright to The Bible. I have made a deal with the Devil -- I need the lawyers -- and henceforth all stories that include storylines from The Bible must be approved by me, ?!.

You can contact my representation firm for pricing and approval timelines.

As a side note: God will announce tomorrow that all work was created by humans while in his employ. Therefore, all copyrights, patents, and trademarks have been improperly assigned.

God will mention that those works created while in Satan's employ have been released into the Public Domain.
posted by ?! at 12:36 PM on January 15, 2003

"If you can work out a system where that would lead to lots of good media getting created, I'd be interested to hear it."

Setting aside computer-copyable art for a moment, I would argue that much of the world's great art was created before copyright. I myself create good media (judging by the number of people who use it) and immediately put it in the public domain. I reject totally the idea that artists will only create content if we pay them money to do so. Many bands are happy to put free MP3 downloads on their homepages. Blogs and Metafilter are, to a certain extent, free creative content.

Good enough?

Now, as to computer-centric media - Linux, Opera, Eudora, Ximian, Perl, etc are all free. Do these not exist? Do people not use them? Have you seen any cool independent Quicktime or mpeg movies on the web that you weren't charged for?

Do you think these content creators would have taken a pass if they thought their copyright would expire in 14 years?
posted by y6y6y6 at 12:38 PM on January 15, 2003

Here we go again. Money = Free Speech and lots of corporate money = corporate whores in Congress just like Sonny Bono.

Corporations are not persons and should not be treated as such under law.
Extreme concentrations of wealth severly skew the democratic process. See Sonny Bono statement.
posted by nofundy at 12:50 PM on January 15, 2003

Thanks for the story, doorsnake.
posted by languagehat at 12:57 PM on January 15, 2003

Can someone explain to me why any copyright should last one minute past the death of the creator?

yes, so that people don't kill the creator and take their copyrights. Sort of a "cooling off" period if you will.
posted by jessamyn at 12:57 PM on January 15, 2003

Ahh, the twittering of pea-brains is strong today.... Where to begin?
OK, first, no one could copyright anything like the bible without proving ownership(at great expense, in jurisdictions around the world). Any perpetual copyright would obviously only apply to works that had their ownership established. If we ever get to the point where the government thinks that they can change laws and then prosecute people for breaking those laws before the act that law forbids was illegal, that's when the government will be brought down.

"Information wants to be free" Is a lame, "big lie" sort of justification almost to the level of reprehensibility of "I was only following orders" or " her lips said no, but her eyes said yes". mr_roboto, if you ever created anything that people were willing to pay to see, you would change positions pretty quickly. And why shouldn't you be able to pass on the rights to your creations (that is, money) to whoever you choose, family, friends, or organization? By your logic, when we die, all our worldly goods would be handed out to the general population. Perhaps in the workers paradise you fantasize about while you add to your mp3 collection and dread the thought of someday having to secure gainful employment, this would be a good thing. But I bet the vast majority of people in this world who have 2 pennies to rub together would not welcome this proposal. I happily commend you to the lifetime of dissatisfaction, confusion, and general misery that your set of values will bring you. Farewell, comrade!

brownpau and ?! -
If you can't add something to the discussion, and can't even be funny, just STFU, ok? Seriously. Your mom may laugh approvingly at your antics, the rest of us are just embarrased.

KirkJobSluder-
See the above message to mr_roboto regarding the copyright status of works like the bible. And then try to think before you post. Unless you like looking like a ninny. And finally, the stated "point of a commons is that everyone benefits", but the result of a commons is that the slackers and dishonest leech off the productive. Or haven't you been paying attention?

rushmc-
BGM said: "If the copyright holder wants to put a work into the public domain, so be it, but otherwise, forcibly taking it away from them or their heirs is theft."

rushmc responded: The flaw in that reasoning, of course, being that copyright is a protection granted by the government, not something inherent in the work itself."

How is that a flaw? Because you want free stuff? Life, liberty, and the pursuit of happiness is not inherent in many countries, would you like to be

y6y6y6 -
Why not give creators a choice? If they want to put their works in the public domain (by whatever legal means or definition), let them, but also let creators who want to control the distribution and use of their works do so, and let the market decide
posted by BGM at 1:04 PM on January 15, 2003

Our Peter Pan friend is definitely in trouble.
posted by archimago at 1:15 PM on January 15, 2003

y6y6y6 - The bands you speak of still have an income from their recordings, even if they give some away. Under your plan, they wouldn't, and they would spend much, much less time making music.

Take book-writing for example. It's not just that the author won't be able to make money from the books, it's that often he'll be prevented from writing the book even charitably, because he won't be able to focus on writing it. He'll have to be out making money cleaning toilets or something. He's got to eat, after all. The vast majority of art is made for partially financial interest, and much of it would disappear.

It's a non-workable situation. Get rid of copyright and you're destroying most artistic professions. Now, 95-year copyright, that's something else...
posted by Pretty_Generic at 1:30 PM on January 15, 2003

y6y6y6, also when I said "computer-copyable art", I meant music, books, pictures etc., not just software. You understand right?
posted by Pretty_Generic at 1:33 PM on January 15, 2003

Big words, BGM, calling people pea brains when you cannot articulate why copyright law exists in the first place. Engage brain before opening mouth.

Life, liberty, and the pursuit of happiness is not inherent in many countries

Yes, but it was the very argument of the Founders in the Dec. of Independence that these were inalienable and existed regardless of the government's "grant." By contrast, the Constitution specifically says that Copyright and Patent is only something that exists at the whim of Congress.

Copyright and intellectual property can also be seen simply as a bounty that the government gives to creators, in much the same way that the government of England approved multi-million-pound bounties for inventions the government considered crucial. In this case, the government simply grants individuals the right to collect the bounties from individuals willing to pay for them. This bounty-collecting right is itself a bounty that has a limited lifespan (and thus, finite value).

There is not, an never has been, an inalienable right to stop people from copying your ideas in perpetuity. It is not the role of the government to settle arguments over intangible property claims to the end of eternity, that's why it's temporary. It is a reality that information, by its very nature, is in the public domain. Intellectual property is not physical property. You cannot "chase people off your intellectual property." You cannot build a wall aorund your intellectual property to prevent tresspassing. The Founders new this, which is why they specifically marked copyright and patents as things that only exist as temporary legal grants.
posted by deanc at 1:37 PM on January 15, 2003 [1 favorite]

How is that a flaw? Because you want free stuff?

Yes, it's because we want free stuff. Just as the person who complains when his wallet is stolen from him is just a whiner who wants free stuff.

BGM - you seem to have a fundamental misunderstanding of ownership of intellectual output. The creator does not own the work they create. Never has (at least in the US). We all own that in the form of the public domain. We grant a limit monopoly to create artificial scarcity so that the creator can attempt to establish a market as incentive to share their creation with society. But, it is not permanent, and payback is not guaranteed. For some reason you and others in our society have incorrectly come to see that limited grant as an inherent right, and those who wish to assert their true rights of ownership (we all as society) as the trespassers.

So, it's not up to us to justify seeking to have what is ours. It's up to you who would change it to justify stealing what is ours.

It appears that you are thinking of it in the same was as physical popery. Ownership laws with physical property make sense because we need to manage scarce resources. Scarcity is not a factor when it comes to distributing ideas (scarcity of time perhaps for both the conveyer and receiver of information, but not in the way you think of it in terms of ownership). When an idea spreads it costs the creator nothing, and it benefits society greatly. So why should that be governed exactly?
posted by willnot at 1:40 PM on January 15, 2003

archimago - You do not seem to see value in free content and a robust public domain which is regularly fed by expired copyrights. I do see value there. We aren't going to agree. We seem to live in a different world.

"the result of a commons is that the slackers and dishonest leech off the productive"

Sometimes it is, and sometimes it isn't. You seem to live in a very greedy, distrustful and pessimistic world. Have you ever seen "A Christmas Carol"? Do you identify with any of the main characters there? And do you think the world would be better off if this movie was removed from the public domain? When you watch the movie do you curse the slackers for leeching off the estate of Charles Dickens?
posted by y6y6y6 at 1:51 PM on January 15, 2003

"STFU," BMG? YHBT. YHL. HAND.

But back to the matter at hand. Regarding bible copyrights, there are already copyrights on modern bibles such as the NIV or the NKJV. Pick up any of those at your local bookstore, and you'll find that Zondervan or Crossway or dozens of other bible publishers do indeed claim copyright on their respective translations of the scripture. Derivative works directly based on these specific translations do indeed need permission from the respective publisher.

There is, however, the ever-popular 1611 King James Bible, which has been public domain since the 18th Century, I think. Now, what if we no longer had fair use or public domain -- a far-off scenario which stands at the end of this slippery slope -- would we be able to make movies like, oh, say, Dogma or Stigmata, without having to pay massive sums of money to ... whom?
posted by brownpau at 1:51 PM on January 15, 2003

And what about all those poststructural Barthes-ian Dadaists who don't believe that there is such a thing as an author and who see writing and art as nothing more than the ongoing rearrangement of a pre-existent cultural tissue? (e.g. Warhol's Campbell soup cans)
posted by brownpau at 2:00 PM on January 15, 2003

"Under your plan, they wouldn't"

How do you get that? My plan is a 14 year copyright. Of course they'd make money. Most bands that make money are gone, and their music is discontinued long before 14 years. Having copyright extend to 100 years enriches the very very few at the expense of the many.

"I meant music, books, pictures etc., not just software. You understand right?"

Yep. People do make movies, write books, and perform music without any real expectation that they will make a living at it. It happens.
posted by y6y6y6 at 2:07 PM on January 15, 2003

BGM, why the change of heart? As an aside, I find if I'm telling 3 or more individuals that they're assholes at one time, I might not be making my case clearly.
posted by yerfatma at 2:16 PM on January 15, 2003

Ach, very sorry y6y6y6, I got you confused with kevs who wanted copyright to only prevent other people selling works. I'm having an odd day like that.
posted by Pretty_Generic at 2:18 PM on January 15, 2003

Take book-writing for example. It's not just that the author won't be able to make money from the books, it's that often he'll be prevented from writing the book even charitably, because he won't be able to focus on writing it. He'll have to be out making money cleaning toilets or something.

I call humbug on that. The vast majority of people who write a book a) can't find a market for it and b) write it while working another job to produce an income. The number of authors who earn their living writing books is very small.
posted by rushmc at 2:46 PM on January 15, 2003

This was the right decision. As smart as Lessig is, and as reasonable his arguments as to the policy virtues of allowing works to vest in the public domain, it could not be more clear that the relevant Constitutional provision granted complete discretion to Congress to determine the duration of copyrights and patents.

All Congress needs to extend patents is a rational basis for doing so -- and avoiding the sudden destruction of billions of dollars of wealth of American companies by (principally) foreign copying houses is reasonable enough for me.
posted by MattD at 2:49 PM on January 15, 2003

Ah, "STFU." Who doesn't enjoy such a well-reasoned response? A link for BGM and a question: If you are such a defender of copyright do you reimburse the artists for the artwork you have copied?

From your post one could get the idea that you rip CDs and then rip off the artists who created the CD artwork.

A point you might have missed: this is "fair use:" You once posted: "If we never spent another tax dollar on art, thereby tossing the ball to special interest groups and businesses, (who provide most of this type of funding anyway) the vast majority of us would be totally unaffected, and those who were would only have to shift their efforts from wheedling cash out of publicly employed bureaucrats to wheedling cash out of privately employed bureaucrats."

Though you retain the copyright on your post, I can quote from it to highlight your opinions as background information for this discussion.

However, I can not publish the full text of all your posts as "The Wit and Wisdom of Bill G. Merik." That would break your copyright. Maybe you'll sell your works to a corporation. Maybe, after you die, they will continue to release your words. Maybe. If they can make a profit.

Yet, in a generation or two, when classrooms are clamoring for the best of the 21st century, shouldn't they have easily accessible and inexpensive reprints of the works of BGM? Works that might be far too expensive to produce given the cost return.

How could the masses study what they can not afford to view? How could future political science doctoral candidates build upon "Anyway, stop welfare and you have Argentina. Stop arts funding and you have a few more black-clad whiners cluttering up Starbucks...." if the works of BGM are tied up in a small corporation that doesn't want to republish your work, but doesn't want to lease the material to any other publisher. After all, selling it cheap would set a precedent.

I ask you, how will the world remember such great writing as "Kinda like how you made a fool of yourself by reflexively posting a snotty dismissal of this discussion without bothering to understand what it was supposed to be about." if corporations are allowed to halt their publication long after we've lost the writer?

I, for one, hope society moves closer to y6y6y6's ideal.
posted by ?! at 3:06 PM on January 15, 2003

MattD: How does the Supreme Court's decision affect publishing houses from countries that haven't signed treaties agreeing to follow our copyright laws?

According to WIPO there are currently 179 member nations and 23 treaties that deal with copyright issues.

Do any of these treaties mention following US laws?
posted by ?! at 3:12 PM on January 15, 2003

:( *sigh*
posted by rudyfink at 3:15 PM on January 15, 2003

BGM: OK, first, no one could copyright anything like the bible without proving ownership(at great expense, in jurisdictions around the world). Any perpetual copyright would obviously only apply to works that had their ownership established.

Ahh, this would go back to the pre-1970s copyright in which one had to label works with a short legal statement stating authorship and "all rights reserved." However, under the current copyright ownership of all rights is reserved by default. I actually think that going to a situation where the burden of proof of owneship was placed on the authors would solve many of the problems we currently face.

And finally, the stated "point of a commons is that everyone benefits", but the result of a commons is that the slackers and dishonest leech off the productive. Or haven't you been paying attention?

Certainly, with any commons there are "freeloaders". After all, the Interstate highway system is open not only to UPS, FedEx and a dozen different trucking services, but also by Joe Private Citizen for family vacations. However, intellectual property is a non-rivalous resource. No matter how many copies you make of Hamlet, there are potentially an infinite number of additional copies that can be produced. As a result, intellectual property commons is one that can not be depleted by freeloading (and in many ways can actually benefit by freeloading.) In addition, the benefits that "the productive" gain through a commons is immense. An example of an IP commons is the internet. Because the internet was based a set of public domain protocols, a huge number of entrepreneurs were able to produce services for the internet, with adoption facilitated by the large number of freeloading users.

Pretty Generic: y6y6y6 - The bands you speak of still have an income from their recordings, even if they give some away. Under your plan, they wouldn't, and they would spend much, much less time making music.

Take book-writing for example. It's not just that the author won't be able to make money from the books, it's that often he'll be prevented from writing the book even charitably, because he won't be able to focus on writing it. He'll have to be out making money cleaning toilets or something. He's got to eat, after all. The vast majority of art is made for partially financial interest, and much of it would disappear.

I think that you need to take a serious look at how the publishing industry really operates. Fewer than %5 of authors make a living off of royalties. Just about every article I've read directed to wannabe professional authors says the same three things, don't quit your day job, only go into writing as a career if you are a compulsive writer, don't expect to make a living. All of them say that if your primary motive is financial interest, choose any other career than writing.

Given this, most of the artists and writers I know (most of whom are published) do not create for financial interest. They create because it is a compulsion, because they have something to say of interest to a niche market, because they have already have money in the pocket doing the work and want to talk about it. In university settings you write for reputation, for job security, for tenure. The sobering fact at the local music school is that only 1/20 graduates become full time professional recording artists. And this is one of the top music schools in the country.

But there are other economic models beyond traditional publication and royalties. One of the big factors in both publishing and music is "exposure". The ironic fact is that the more people who get a chance to see/hear your work, the more money you make. To me, it seems odd how much the entertainment industry yells about piracy, given how much money they spend shipping free copies and giving free screenings. Free copies available on the internet are not necessarily competitive with commercial copies.

In academic and technical publishing many people are already in a position to publish work that they have already been paid for as part of a 9-5 job. Micropayments is another possibility.
posted by KirkJobSluder at 3:24 PM on January 15, 2003

There is always the example of Tim Berners-Lee vs. University of Minnesota. For those with internet memories back that far, University of Minnesota had a very nifty heirachal document retrival system called "Gopher". Tim Berners-Lee came late on the scene with html/http. Berners-Lee convinced CERN to release html/http into the public domain. UofM announced that at some point in the future, they might, possibly use their IP rights and collect royalties on Gopher.

Which product became the standard, and which inventor became a household name among geeks?

For that matter, whatever happened to Digital's VAX notes in the face of usenet?
posted by KirkJobSluder at 3:30 PM on January 15, 2003

"To me, it seems odd how much the entertainment industry yells about piracy, given how much money they spend shipping free copies and giving free screenings."

I hadn't even thought of that. You sir are my hero. I love you.
posted by y6y6y6 at 3:41 PM on January 15, 2003

Pity poor brownpau, grimly clinging to a specious argument and asking questions that have already been answered, perhaps reality is too much to bear? One more time: If some person or entity can prove in court that they have a legitimate claim to the Bible, then they can collect royalties. Why is this so hard for you to grasp?

yerfatma- My position has never changed, I have been concerned about the erosion of intellectual property rights ever since I understood them. Hence, the aforementioned post. And as an aside, your lack of self esteem is none of my concern. And I said peabrains. All these twerps have a ways to go to make my list of assholes. You? (cause I know you're wondering!) Weenie.

y6y6y6-
Grow up. "Yep. People do make movies, write books, and perform music without any real expectation that they will make a living at it. It happens." So that means than no one has a right to make a living at it? Spoken like a true blogger. If nobody made any money at any creative enterprise it would ease the pain of knowing that your blog could vanish tomorrow and no one would shed the slightest tear except your ISP. PS : Opera 6 has been out for a while now, and public beta 2 for Opera 7 ia avalable as well. Please update your website accordingly.

willnot, deanc -

If the means to profit from creative work is eroded, less creative work will be brought forth. Less creative work = less excellent creative work, which causes a decline in the quality of culture. Whatever the framers intended, that is the reality. Therefore, perpetual copyrights with an opt-out mechanism seem fair to me. But you both are bloggers, so like y6y6y6, you have a rather incomplete understanding of reality. 14 year copyright - feh. I just bought that new Elvis cd for a friend's Christmas Present. Who should get the money from that? If the copyright had lapsed, only the dreaded corporations who put out the CDs would make money, not the family of the artist. After all your responses, I remain more firmly convinced that you are all greedy, silly, parasites who can't see farther than your noses, and who can formulate thoughts no more complex than "Me Want! WAAAAH!
Hillary Rosen and Jack Valenti will win out in the end, and you know what? It won't be so bad. You can just go and read each others blogs for entertainmen
posted by BGM at 4:06 PM on January 15, 2003

I just bought that new Elvis cd for a friend's Christmas Present. Who should get the money from that? If the copyright had lapsed, only the dreaded corporations who put out the CDs would make money, not the family of the artist.

BGM, you are completely ignoring the point. Why should anybody have profitted from the sale of that CD? Did Lisa have any thing to do with producing that fine musical treat for your friend? So you just paid bucks to enrich a fine parasite who makes money on ... nothing of hers. Congratulations, toady. They've got you sold on thier addictive crack product. Why don't you actually argue your "ownership/support" case rather than support the "greedy, silly, parasites" who charge you money for things they had no hand in making? (And you pay ...willingly ... and wear that as a badge of honor ... ) NO I'm not laughing with you.
posted by Wulfgar! at 4:24 PM on January 15, 2003

"Information wants to be free" Is a lame, "big lie" sort of justification almost to the level of reprehensibility of "I was only following orders" or " her lips said no, but her eyes said yes". mr_roboto, if you ever created anything that people were willing to pay to see, you would change positions pretty quickly. And why shouldn't you be able to pass on the rights to your creations (that is, money) to whoever you choose, family, friends, or organization? By your logic, when we die, all our worldly goods would be handed out to the general population. Perhaps in the workers paradise you fantasize about while you add to your mp3 collection and dread the thought of someday having to secure gainful employment, this would be a good thing. But I bet the vast majority of people in this world who have 2 pennies to rub together would not welcome this proposal. I happily commend you to the lifetime of dissatisfaction, confusion, and general misery that your set of values will bring you. Farewell, comrade!

Calm down, man. What I wrote was: "information wants to be free: ideas are propagated and reproduced at virtually no cost". This is a simple fact. Modern technology makes the reproduction of creative works cheap (often vanishingly cheap, as in the case of music distributed on peer-to-peer networks) and easy. To the extent that people desire these cheap reproductions, copyright is fighting an uphill battle. I guess I shouldn't have uttered your trigger phrase.

I could have included the other half of Stewart Brand's famous epigram: "information also wants to be expensive". Creative works are valuable both in an abstract cultural sense and to the extent that they can be used to furnish their owners with profits. This tension between "free" and "expensive" is at the core of the current debate over the nature of intellectual property.

Can I offer some advice, BGM? Tone down the buzz-word-laden rhetoric ("parasites", "workers' paradise", "comrade", etc.): in the long paragraph I quote above you not only fail to grasp my original point, you fail to make any coherent point of your own. Calmer writing will make for clearer discussion, I think.

Finally, I ask again: why should the great great grandchildren of Hans Christian Anderson deserve the rights to The Little Mermaid any more than the Disney Corporation does? Both entities had the same amount of responsibility in bringing forth the original work: none. Disney is no more a "parasite" than the author's descendants.
posted by mr_roboto at 4:26 PM on January 15, 2003

Disney is no more a "parasite" than the author's descendants.

Yes, they are. Disney seeks to copyright that which can't be copywritten. If I make an animated film of "The Hunchback of Notre Dame", don't you think that Disney lawyers will be all over my ass? Yes, I have a good defense in public domain, but if I use anything that resembles the Disney flick, I'm screwed, (unless I can claim satire). Disney is evil.
posted by Wulfgar! at 4:40 PM on January 15, 2003

"Calm down, man."

People, don't feed the trolls.
posted by y6y6y6 at 4:42 PM on January 15, 2003

All of them say that if your primary motive is financial interest, choose any other career than writing.

Well, sure, I should hope that anyone past the age of 20 gets disabused of that notion, but the goal of making a living at what you love - even if that living isn't prosperous - is another matter; do you think that doesn't play a part in the motivations of adult artists? 5% is very bad odds (and somewhat unjust but that's another argument) but not inconceivable. Chop it down to zero and you will see a reduction in artists' ranks, no matter how much they may claim money has nothing to do with their motivations. Perhaps not instantly but it will definitely reduce the number of people willing to enter the field. And no, I don't think it'll just get rid of the bad artists.

You're jumping all over "primary financial interest," when what was said was "partial financial interest."

That being said I don't see what's unreasonable about a 14-30(tops) year copyright term. The artist can have some remuneration for their work and take care of their family with that. No need to set up eternal intellectual fiefdoms.
posted by furiousthought at 4:47 PM on January 15, 2003

So that means than no one has a right to make a living at it?

Straw man, no one has claimed that no one has a right to make a living while creating. But lets be honest here, the profitability of most works decrease dramatically after 14 years. Most loose monitary value after two years.

So actually, I don't mind the idea of perpetual copyright if we went back to the old system which placed the burden of renewing copyright on the owner. There is a precident for this with physical property where failure to maintain responsibilities of owning the properity results in the property being auctioned.

If the means to profit from creative work is eroded, less creative work will be brought forth. Less creative work = less excellent creative work, which causes a decline in the quality of culture. Whatever the framers intended, that is the reality.

Most of this is dependent on the assumption that the only way to "profit" from a work is copyright and royalties. In fact, there seems to be no shortage of creative works that came into existence before copyright was created in the late 17th century. Most people who create today do not make money from copyright and royalties. Most of those who make a living from writing or music do so through work for hire. My published work was funded through patronage (NSF-funded reseach grant.)

But lets be honest here. For every Elvis song there are perhaps 500 reseach articles that are molding away out of print. There are thousands of hours of silent film footage rotting away because non-profits can't obtain a clear title for restoration. The automatic perpetual copyright you desire becomes a nightmare for conservationists. You can microfilm monastic letters from the 12th century, but not out-of-print periodicals from the 20th century.

In addition, are you aware that most Elvis songs are heavily derived from African American gospel tradition of free music? In fact, most of the great works that you claim should be placed under perpetual copyright are, in fact, parasites and freeloaders off of IP commons. Without that IP commons we would not have Shakespeare, Verdi, Offenbach, Gershwin, or Tolkien. An absense of compensation for creative works does stifle innovation, but a system in which the use and flow of information is rigidly controlled by the legal system also stifles creative works.
posted by KirkJobSluder at 4:48 PM on January 15, 2003 [1 favorite]

I would be very surprised to learn that any of Elvis Presley's descendents owned the copyrights on any of his works. RCA almost certainly owns that, and even the publishing rights (assuming Elvis was able to get them at the time) probably don't belong to any of the familly anymore.

Does anybody know where you can look that up to be sure? More importantly, and more germane to this discussion, does anybody know where we could find the 99% of creators whose works are no longer commercially viable so that we can see about requesting their permission to make their works available? Since distribution of their work is now held hostage to Elvis's copyrights, perhaps we should require that Elvis's copyright holders undertake the cost of that search. That seems fair and balanced.

If the means to profit from creative work is eroded, less creative work will be brought forth.

A little less perhaps, but not enough to impact the collective output of the culture. In fact you could more rightly argue that if there was less impediment to derivative works, then more not less work would be created.

As a species we are at our core creative. There is plenty of creativity going on, and the vast majority of it is not done for commercial purposes.

In fact the need to maximize earnings leads editors to skew towards mass rather than niche forms of appeal, which means we get a little that is palatable for a lot rather than a lot that is exquisite for a few. Which culture is better?
posted by willnot at 4:58 PM on January 15, 2003

Well, sure, I should hope that anyone past the age of 20 gets disabused of that notion, but the goal of making a living at what you love - even if that living isn't prosperous - is another matter; do you think that doesn't play a part in the motivations of adult artists? is very bad odds (and somewhat unjust but that's another argument) but not inconceivable. Chop it down to zero and you will see a reduction in artists' ranks, no matter how much they may claim money has nothing to do with their motivations. Perhaps not instantly but it will definitely reduce the number of people willing to enter the field. And no, I don't think it'll just get rid of the bad artists.

The 5% figure diserves explanation. That is, fewer that 5% make a living off of royalties. There are certainly other ways to get paid such as patronage, and work for hire. But I'm not saying that we should get rid of royalties alltogether. What I am saying is that unless you are J. K. Rolling or Stephen King who is able to draw around-the-block lines at opening with an immediate movie contract you might make more royalties taking a relaxed view of intellectual property.

For example, by treating fan art and fiction as free advertising and the development of a loyal customer base rather that competition, one can build an instant fanatical market for ones works. Allowing people to preview copies of your book online for free will hook those interested. The problem with publishing is that no one will buy your work they don't know it exists. Likewise, few people get four-figure advances without a reputation.

Publishers and studios spend millions of dollars creating "exposure". They typically ship %10 of the first press run to reviewers. They offer heavily discounted books to clubs hoping to build word of mouth. I have a book chapter in press and I fully intend to distribute copies of the the article as widely as possible. Why? My best chance of selling copies of the book is by having colleagues say "I read a great study by Kirk Job-Sluder fom this book about reseaching online communities."

So I would argue that for Kirk Job-Sluders with a resume of 2 published works in a niche market "all rights reserved" is probably not the best way to make money writing. In addition in the process of getting published the author frequently does not end up with the copyright.

That being said I don't see what's unreasonable about a 14-30(tops) year copyright term. The artist can have some remuneration for their work and take care of their family with that. No need to set up eternal intellectual fiefdoms.

I fully agree. I'm not opposed to copyright. I just think that copyright as it is currently used is not in the best interest of many writers and artists. Last year I signed away my rights to two years of work to a Journal. In my lifetime I will only have limited permission to include the work in my own athologies and print the work for any future students. It's a reseach article about the internet for pete's sake. In 14 years it will be out of print and of historical interest.
posted by KirkJobSluder at 5:21 PM on January 15, 2003

Oh and by the way, not having the right to enforce a monopoly on distribution is not the same as not having a right to profit off of work you created. It's a mistake to assume that copyright is required in order to make a living. It isn't. In fact for most people, copyright is completely immaterial to whatever earnings they manage to eke out from their creative output.
posted by willnot at 5:21 PM on January 15, 2003

The "monopoly privileges" that the Copyright Clause confers "are neither unlimited nor primarily designed to provide a special prvate benefit." (Sony Corp of America v Universal City Studios -1984). It is clear that the Copyright Clause was never intended to be a means of supporting a creator's descendents financially as some here and arguing before the court claim (under the incentive banner). It is unambigiously spelled out in the Consitution that a limited right to the *authors* is secured as a *means* to promote the progress of science and the arts. Read any Jefferson or Madison document on monopolies and you'll see that these two founding fathers clearly believed that a public domain was necessary to improve the public's knowledge - a beneficial result of limited monopolies.

This belief that copyright was to benefit the public and not "primarily" to benefit the author or any particular class of citizens continued to the 60th Congress in 1909. Heck, that Congress even said that Congress itself couldn't enact a statute that didn't meet the basic Constitutional objective of advancing learning. In 1988 the House of Representatives stated: "Under the U. S. Constitution, the primary objective
of copyright law is not to reward the author, but
rather to secure for the public the benefits derived
from the authors' labors. By giving authors an incen-
tive to create, the public benefits in two ways: when
the original expression is created and . . . when the
limited term . . . expires and the creation is added to
the public domain."

I think it is pretty clear that the legal framework and not the corporate spin favors the idea of the public's benefit to that of financial gain by a copyright holder. Personally, I don't see why people are entitled to money for work they didn't do. (Any hypocrisy here between those who want to avoid the "Death Tax"?)

But what of that economic incentive? Does adding 20 years create more incentive for more works to be created?

Well, certainly not in the case of dead creators. They've already created everything they will. Yet the Bono act replied retroactively, not to new material.

Check out the Congressional Research Service report for Congress, Copyright Term Extension: Estimating the Economic Values. This report indicates that only 2% of copyrights between 55 and 75 years old retain commercial value (generate royalties). But material from that era still earn about $400 million per year in royalties. Thats money that customers will be paying - for the 2% of material that will even be available.

What's interesting and directly contradicts MPAA gadfly Jack Valenti's statements the value of works diminish over time. Since this post is too long I'll skip the details but this is clear in the CRS report.

By releasing work into the public domain the amount of works available will increase. Many scholars, hobbyists and enthusiasts would ensure material is available by restoration. There is no financial incentive for MGM to make available very single piece of film they've created. Yet, by releasing unprofitable material to the public domain use costs are dimished, knowledge expanded and historical research availble.

While Mickey Mouse won't go into public domain soon (trademark, not copyright) why not put more into public domain? Sure there will be a lot of cheap clones and crap knock-offs, but such is available even under copyright. Why not allow the best works to benefit financially? Why should Disney not have to compete against Joe Sixpack after 14 years (and a one time extension) for the same basic story? Disney already has the advanatge of distribution and brand recognition.

Also note that killing a copyright owner wouldn't transfer rights to her killer - they would go into the public domain. Besides murder is a capital offense in many states.
posted by infowar at 5:40 PM on January 15, 2003

Intellectual property rights have not been eroding, they have been erroneously conflated in people's minds with actual property rights, from which vantage they seem inadequate, and they have been being regularly strengthened in a misguided attempt to compensate. Furthermore, the claim that only people who have published commercially valuable works could possibly understand why copyright needs to be longer is not only silly, but it relies, as an argument, on the (most likely false) assumption that no one you disagree with has ever produced a commercially valuable work. Unfortunately this thread got a little bogged down in the "deserves to be compensated" issue, leading some to claim, correctly but irrelevantly, that financial gain is not the foremost incentive for creators. This issue has no place in the argument as far as I can see, because, as has already been pointed out, the profitable lifetimes of most works are much shorter than even the original 14 year term, let alone lifetime plus 70, or, as you suggest, indefinite. I would be pleased to see more artists able to live off their work, but copyright obviously does not accomplish this.

As much as it is nice to think of humans as individually creative all the time, the simple, observable truth is that, intellectually, most of our growth has been accumulative in nature. New ideas are born to solve problems left unaddressed in earlier ideas, new art is made in response to old art. Most of this derivative, inspirational effect is not covered by intellectual property rights, because it is widely understood that to place unnecessary roadblocks in this process is to severely limit the potential of future generations. Copyright and patent law started off as a rather well balanced response to the need to give increased incentive to creators in this environment, but they have expanded dramatically over the years, copyright more so than patent. Let me use patent based intellectual property as an example, because though the current laws differ greatly the underlying principles are identical: Imagine that car companies had to pay royalties for the wheel, for the use of plastic, for the concept of a moving vehicle? With immense recordkeeping and financial services requirements, it could work, but what would be the benefit to society? Nearly everyone would be receiving residual income from something, and all that income would be used, and more to pay the middlemen, for paying others' royalties. It is far easier, and overall better for everyone, including inventors, just to say that everyone can use if after a certain time.

In the end, there is only one argument that matters: Property rights are a response to scarcity. In a world with infinite water, water would cost nothing. Intellectual resources are inherently not limited.
posted by Nothing at 5:47 PM on January 15, 2003

So I would argue that for Kirk Job-Sluders with a resume of 2 published works in a niche market "all rights reserved" is probably not the best way to make money writing. In addition in the process of getting published the author frequently does not end up with the copyright.

That's true though unpleasant. And I am (now that I think about it) entirely aware of how miserable the returns are from books sold through mass-market retail. But then there's the angle that copyright also protects the work from being tampered with during its term: if you are getting income from peripheral effects of having published the work then it's to your advantage that the work remain as undiluted as possible during the term of copyright. Obviously copyright is no absolute safeguard of this but suppose ten years from publication your work gets incorporated into a commercial. Creative control is often very important to artists who otherwise eschew the material end of things. (I know, I know, KirkJobSluder, we agree on limited copyright terms - and apparently just about everything else - I just wanted to throw this out there as an additional facet to those who may favor getting rid of copyright altogether.)
posted by furiousthought at 6:11 PM on January 15, 2003

Ooh. Especially for indie rockers: compelling if superficial argument for copyrights that last a little longer than 14 years:

Pixies songs.

In one out of every three commercials on the air.

And half of those commercials would be set to "Gigantic."

You know it would happen.

*turns sickly green*
posted by furiousthought at 6:18 PM on January 15, 2003

But then there's the angle that copyright also protects the work from being tampered with during its term: if you are getting income from peripheral effects of having published the work then it's to your advantage that the work remain as undiluted as possible during the term of copyright. Obviously copyright is no absolute safeguard of this but suppose ten years from publication your work gets incorporated into a commercial.

True, on the other hand, look at what has happened to much of the Beatles early output. One of the first things that Paul McCartney did in founding his music school in Liverpool was to put an entertainment law class on the curriculum.
posted by KirkJobSluder at 6:30 PM on January 15, 2003

mr_roboto -
Why should the descendants of a creator profit from work that they had no part in creating? Because the creator wants them to. And I am not calling Disney or family members of creators parasites, I'm calling people who want to enjoy the fruits of other's labors at no cost to themselves are parasites. I see no difference between intellectual and physical property, in as much as they can both be exchanged for money, and therefor each other. I view any argument to the contrary to be the weak attempt at self absolution by those with guilty consciences and those who, aware of their lesser talents, are jealous. And nothing is free, you pay for everything eventually.

y6y6y6 -
I accept your surrender.

KirkJobSluder -
I think that anybody who owns a copyright should be able to keep owning it for as long as they or their successors desire. I would be open to an academic exemption of some sort, perhaps administered by a network of interested academic organizations. But the fundamental position I take is the creator should be able to control the use of and receive the profits from their work for as long as they want. Do I think Lucas should be able to make his own version of LOTR using characters, plotline, dialog, and the title without permission from Tolkien's estate? No. Should Lucas, however, be sued and lose for making Willow? No as well. (Just sneered at!)As for the pre-copyright creative output of civilization, slavery is pretty cost effective, and if women and people who didn't own property couldn't vote, elections would be much mess expensive! Ah, the good old days.

willnot-
Perhaps Elvis Presley's family was a bad example, how 'bout this: the writers of the songs on that CD- many of them are still alive. Shouldn't they get royalties? 14 years is just a blink of an eye. And for those of you who would respond: "Oh, but most of those song copyrights are owned by publishing companies." I say, so that means the songwriters who did manage to hang on to their rights should be screwed out of money they could probably really use in their old age because a bunch of lefty arts students are having trouble finding the books they need for classes? You babies!
...Why did you sign away your work?

!?-
"From your post one could get the idea that you rip CDs and then rip off the artists who created the CD artwork."
That would be the very "fair use" that you yammer on about in the remainder of your post, hoping, no doubt, to deflect attention from the fact that you seem to have nothing to add to the discussion at hand. Now more than ever, STFU. Unless, of course, you'd care to weigh in with something germane
posted by BGM at 6:34 PM on January 15, 2003

Perhaps furiousthought, but in a more perfect world all commercials would be set to "Debaser."
posted by yerfatma at 6:46 PM on January 15, 2003

*upgrades to minty green*

Even Mountain Dew commercials with snowboards? I won't stand for it. They can have the Cocteau Twins.
posted by furiousthought at 7:02 PM on January 15, 2003

Why should the descendants of a creator profit from work that they had no part in creating? Because the creator wants them to.

The creator, being dead, has neither want, nor desire, nor urge. The US legal system recognizes precious few rights for dead people.

And I am not calling Disney or family members of creators parasites, I'm calling people who want to enjoy the fruits of other's labors at no cost to themselves are parasites.

Contrary to what you seem to believe, the descendant of the creator of a work is not the same person as the creator of a work. The descendants are "others" who did not contribute to the creation of their ancestor's work. Under your scheme of perpetual copyright, however, they would enjoy the fruits of this work at no cost to themselves. Which you claim is contrary to the goal of your scheme. You seem a bit confused, my friend. The only way to accomplish your goal is to destroy all creative work upon the death of the creator.
posted by mr_roboto at 7:04 PM on January 15, 2003

But the fundamental position I take is the creator should be able to control the use of and receive the profits from their work for as long as they want.

I don't see a problem with this as long as it is not automatic. In other words, I think we should go back to a system in which rights must be explicitly reserved and re-registered every 20 years in order to pursue copyright claims. Third, copyright protection expires 14 years after the work goes out of print.
posted by KirkJobSluder at 7:41 PM on January 15, 2003

Will someone please alert me when KirkJobSluder runs for public office? We simply must have more people like this in public office. Sir, I wish to bear your clone.

In other words: What KirkJobSluder said.
posted by y6y6y6 at 8:31 PM on January 15, 2003

Third, copyright protection expires 14 years after the work goes out of print.

Of course in the world of online databases and small-job printers, "out of print" is another term that could stand to be addressed. I have a book contract where rights revert to me after the book has been out of print for some certain amount of time. However, the publisher only prints 1,000 books at a time, so the definition of "out of print" is nebulous at best. I don't care, as a writer, if the book is out of copyright in 14 years, for what it's worth. If I haven't done anything else in 14 years from now, I deserve to be broke.
posted by jessamyn at 9:04 PM on January 15, 2003

And in totally unrelated news, on January 9th Clarence Thomas was offered a book publishing deal worth $1 million from HarperCollins, a division of Rupert Murdoch's News Corporation.
posted by tpoh.org at 10:20 PM on January 15, 2003

BGM: At least spew my name correctly. It's ?!, not !?. And ripping an entire cd...then reprinting the packaging is not "fair use". At least understand the terms you bandy about. For your benefit I'll quote from Title 17 of the US Code, which, by the way, is in the Public Domain

Sec. 107. - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1)

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2)

the nature of the copyrighted work;

(3)

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4)

the effect of the use upon the potential market for or value of the copyrighted work.


The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

BGM: You can't honestly argue for copyright and argue you don't have to follow the rules.
posted by ?! at 5:27 AM on January 16, 2003

KirkJobSluder: "Third, copyright protection expires 14 years after the work goes out of print."

A lot of well-thought out ideas. Thank you. However, I wonder if it wouldn't be better if the copyright expired after a certain number of years after first publication.

I wrote a series of columns for a now publication owned by Sony. Everything was collected on a website that Sony stopped updating last year. Sony contends the columns are "still in print" as long as the server can make the columns available. Even if Sony no longer lets anyone know the URL.

With the ease of keeping items "in print" I believe the copyright should remain with the author 30 years after creation date. With renewal at the 15 year point.
posted by ?! at 5:35 AM on January 16, 2003

BGM:I see no difference between intellectual and physical property, in as much as they can both be exchanged for money, and therefor each other.

I'll give it a crack, although many others have so far tried to engage you.

See, the difference is that if I exclusively possess and keep something that is physical in nature, then others cannot own or appreciate it. It is singular in nature unless a copy is made. Of course, in most cases, a copy of a thing is not the same as the original thing, and is therefore different. (Copyrightable works do not have this property. A copy of a book has the same content as the original book.)

Ideas and "intellectual property" are different. If I have an idea (whether it be original or someone else's), then that doesn't prevent another person from having that same idea. To encourage original ideas the US offers patents to create a temporary monopoly. Those patents last a limited time and then lapse so that others can build off those ideas that were patented.

Works of art, music, literature and architecture (there are others as well) are similarly protected but by copyright (literally, the right to make copies) instead. This is also for a limited time, and for a similar reason. So that people may build on the ideas of others in the creation of new works.

Also, there is not a natural right to copyright. Only such rights as Congress (or whatever your flavor of government is) provides.

Also, yerfermata was right: if you're having to shout people down or mock them to make your point, then you should really try and make your point in another way. inflammatory speech rarely convinces anyone, and will usually just cause them to shut you out.
posted by bshort at 8:34 AM on January 16, 2003

Well done, bshort.
posted by rushmc at 9:21 AM on January 16, 2003

Well, it looks like the troll found some other bridge to lurk under...
posted by bshort at 2:28 PM on January 16, 2003