How I Lost the Big One

March 3, 2004 12:53 AM

How I Lost the Big OneLawrence Lessig on losing Eldred v. Ashcroft: "We had in our Constitution a commitment to free culture. In the case that I fathered, the Supreme Court effectively renounced that commitment. A better lawyer would have made them see differently."
posted by ericost (40 comments total)

Great article. And not only on their trial but on copyright issues in general. Thanks.
posted by hoskala at 3:38 AM on March 3, 2004

Wow, he was way too hard on himeself, he finishes with this line:

"But I can rarely make light of it. We had in our Constitution a commitment to free culture. In the case that I fathered, the Supreme Court effectively renounced that commitment. A better lawyer would have made them see differently."

Jeepers. It's still a great read though, very interesting to see the personalities at play. I'm not sure I agree with him, I don't know that it was his fault.
posted by Blake at 4:17 AM on March 3, 2004

He said it himself, it was a case no one could win - especially in todays society I might add.

Mr. Lessig, if you happen to be checking on this - while you may not have been able to open the eyes of the courts, you opened the eyes of thousands of others.
posted by KnitWit at 4:38 AM on March 3, 2004

He's a piece of work. He lost because he had no constitutional leg to stand on. All this breastbeating is self-indulgent, attention-hungry nonsense that demonstrates his continuing lack of comprehension that his utopian (and I mean that negatively), confiscatory view of the rights of original creators is disconnected from legal reality.
posted by twsf at 6:06 AM on March 3, 2004

KnitWit, he actually said the exact opposite:

"This case could have been won. It should have been won. And no matter how hard I try to retell this story to myself, I can't help believing that my own mistake lost it."

That quote comes from the second paragraph of the linked article. The rest of the essay details the author's idealistic and perhaps naive dedication to crafting and pursuing an argument based on logic and reason, instead of relying on the more passionate and pragmatic approach that many of his advisors tried to convince him to use.

From the last paragrpah: "We had in our Constitution a commitment to free culture. In the case that I fathered, the Supreme Court effectively renounced that commitment. A better lawyer would have made them see differently."

(thanks ericost - interesting read)
posted by syzygy at 6:38 AM on March 3, 2004

He lost because he had no constitutional leg to stand on.

Yeah, because that 'limited period of time' thing is completely supportive of Disney getting another 20 year extension for 'Steamboat Willie' every single time it looks like it might be heading into the public domain.

...his continuing lack of comprehension that his utopian (and I mean that negatively), confiscatory view of the rights of original creators is disconnected from legal reality.

Ooh, long words. Please don't sue me for quoting them. If you're so into protecting the rights of original creators, could you please get Disney to pay all the fairy-tale authors (or their heirs and successors) that it ripped off for its films? Come back when you're finished. Thank you.

Ad hoc extension of copyright is confiscating from the public domain. And for centuries, the right of public domain has been itself a legal reality, but is one increasingly under threat. Being concerned about the effects of quasi-perpetual copyright is 'negatively utopian'? Oh, fuck off, troll.
posted by riviera at 6:50 AM on March 3, 2004

Oh, and I now see that twsf is a literary agent, and it all makes perfect sense. Because as long as there's the possibility for the great-great grandchildren of authors to receive royalties, however unlikely, there's still the opportunity to take a 10% cut. Whoop-de-do. Cultural vampirism at its finest.
posted by riviera at 7:08 AM on March 3, 2004

twsf, I see you have lost touch with the fact that the US isn't the entire World.

As the US tightens its copyright grip, other countries loosen it. It won't be long before US authors have nothing in modern reality they can base their stories on and future authors begin to migrate from the US to other countries so that they may enjoy a reprieve from lifelong copyright.

This, unfortunately, will mean fewer books are published, and a shrinking amount of jobs in that field.

Which, as I see from your profile, will probably mean another 20 years you might want to consider another field. If the US continues with its current manner towards copyright, might I suggest looking for books titled "Home Invasion: How copyright holders can use new copyright laws to reclaim copyrighted material without a search warrant."
posted by shepd at 7:15 AM on March 3, 2004

I like Lessig a lot, but I have to agree with him. Having read the arguments, I have to say that his argument as stated, especially under the grilling of the SCOTUS, was pretty weak. Perhaps someone else could have done it better, perhaps not, but he was not entirely as compelling as he could have been.
posted by dogmatic at 7:32 AM on March 3, 2004

Ultimately as I read the decision, it came down to a separation of powers issue. As long as the constitution gives the power to define copyright to congress, there is no need for SCOTUS to move in without a clear First Amendment rationale. The argument that copyright terms per se. are a First Amendment issue is extremely weak.

There is a lot of things we can do about this on the congressional level. Creating a better mechanism to encourage voluntarily ceeding copyright would be helpful.
posted by KirkJobSluder at 7:54 AM on March 3, 2004

I think Lessig is being a bit hard on himself. But, that said, my guess would be that if, in 20 years, Congress extends copyright again, and it looks as though they did this specifically to keep some of Disney's IP from expiring, then the SCOTUS would look favorably on overturning another extension because it was defacto unlimited.

As it was, Congress could duck under the cover of "we're aligning our copyright laws with Europes, and extensions have always been retroactive, anyway!"
posted by deanc at 8:06 AM on March 3, 2004

This was a good read. I'm not sure the case could have been won by a better lawyer, as I'm not really a constitutional expert...but I sure wish the case had been decided the other way.
posted by dejah420 at 8:17 AM on March 3, 2004

I wonder what twsf thinks of second-hand book stores - do they also fit into that utopian (and I mean that in a negative way), confiscatory view of the rights of original creators ?

BTW, I am a published author and I would really appreciate it if *YOU* would quit defending my interests in the above (or any other) manner

Creating a better mechanism to encourage voluntarily ceeding copyright would be helpful.

That is HARDLY the point. The issue is that society, the government, the state, the people or whomever *grant* exclusive rights for a period of time based on the fact that it will eventually revert to public domain. The balance that needs to be addressed is how to reward the author while ensuring that the general society does not get screwed in the process. The first copyright laws were specifically written to keep the distributors out of it all. Which explains why those distributors (and their lackeys) are still "defending" the interests of "authors" ... while screwing both authors and society.
posted by magullo at 8:21 AM on March 3, 2004

I'll ignore the ad hominem attacks from riviera. Now, in response to the substantive comments:

1. my clients having ownership rights to their original creations isn't "confiscating from the public domain." Private property rights are a core principle of our society - deal with it.

2. "Cultural vampirism"? Oy. Literary agents represent authors' business interests and provide many services in exchange for their commission, which authors agree to pay (and it's 15%, not 10% - maybe you'd like to consider getting into the business...?)

3. I actually agree that the particular copyright term extension against which Lessig was arguing against is a bad thing - however there's no constitutionally, legally compelling argument for having the courts make a distinction between 20 years vs. 75 years vs. 90 years vs. whatever. That's up to _Congress_, the evil institution whose deliberations are, yes, subject to the worst politicking and manipulation. So get out there and fight for campaign finance reform and work to elect good folks to Congress.

4. Where I diverge from Lessig (and the other fervent "copyleft" advocates") is in the belief in the primacy of public domain over proprietary ownership rights. New art won't get made if artists can't appropriate earlier works? Please. We'll have fewer books? Please. This year over 140,000 books will be published in the U.S. alone, and that number keeps jumping every year.

Here's a little thought experiment: You've spent three years building a house with your own hands, which you now live in and use as a B&B to make a living. You will pass it down to your children when you're gone, for them to live in, operate as a B&B themselves, rent out to someone else to operate, or sell outright. Should the community have the right to confiscate that house after a certain period beyond your death, to allow anyone who walks by to stay there for free, or to allow others to pry up those amazing granite counters and tile floors for their own use?
posted by twsf at 8:25 AM on March 3, 2004

here's no constitutionally, legally compelling argument

The legally compelling argument is that if Congress can defact make Copyright unlimited by simply retroactively extending it before it expires, then copyright is no longer limited.

twsf, you obviously don't understand that since the time of the founding fathers, intellectual property was considered to be in a different category than physical property. Your attempt to create an analogy is just completely and utterly irrelevant to the Constitutional basis of copyright.
posted by deanc at 8:29 AM on March 3, 2004

twsf - So you oppose the term extension, but you equate copyright with physical property. Care to defend that a bit more? Painting a picture and owning it is the same thing as owning the right to keep others from reproducing that picture?

Why do you hate the public domain so much?
posted by y6y6y6 at 8:41 AM on March 3, 2004

Oy, I don't hate public domain. I believe that creators should have certain rights to the works they create. As the constitution states, these should be limited and time-bounded. Again, I believe the 'Disney Protection Act' was misguided, but too many people lump Disney and individual creators together. Despite magullo's plea ("I would really appreciate it if *YOU* would quit defending my interests"), nothing I advocate would limit his rights (or any other author's) to release his works into the public domain whenever he chooses. Creative Commons is GREAT. Lessig's idea for requiring affirmative renewal of copyright after a certain period of time for a nominal fee is GREAT. To return to the original point of this thread, though, he lost the Eldred argument because his views aren't supported by the constitution, not because he was too dispassionate an advocate.
posted by twsf at 8:54 AM on March 3, 2004

MetaFilter's ability to elicit comments from people with personal expertise is one of its strongest assets... even when the personal expertise is as nakedly joined to self-interest as twsf's comments.

Because, apparently, even Borders understands the difference between personal property and intellectual property better than twsf:

Of course, I probably violated several laws by photographing that ad, editing it, putting it up at MY site and hotlinking it here. I welcome the arrival of our copyright overlords (with high explosives).
posted by wendell at 9:18 AM on March 3, 2004

my clients having ownership rights to their original creations isn't "confiscating from the public domain."

Quite true, but that wasn't my point: when you can't even count the great-grandchild of an author as 'an original authorial creation' (that DNA is getting pretty diluted), why is it feasible to ascribe said great-grandchild copyright over a literary estate?

That's what I mean by 'cultural vampirism': I totally respect literary agents who represent authors, especially those who do their best to keep those authors' works available, whether it's in print or electronically. But when copyright now has the potential to extend to the third generation of descendents it leads, almost invariably, to one of two things: either works are abandoned or forgotten, and any attempts to publish them are stymied; or conversely, they're guarded by 'keepers of the flame' who generally compensate for their lack of creative talent by wielding copyright law like a cricket bat.

New art won't get made if artists can't appropriate earlier works? Please. We'll have fewer books? Please. This year over 140,000 books will be published in the U.S. alone, and that number keeps jumping every year.

That's a short-sighted reading of Lessig's argument. He's actually interested in a couple of things.

First, the undeniable role throughout history of a vibrant public domain in sustaining creativity. Forget Disney (the most egregious example, of course) -- Shakespeare would have been up in court for every one of his plays. This isn't about raw numbers of books published. It's about preventing the collective pool of creative output from stagnating.

Second, the technological capability to bring back 'from the dead' thousands of works that are long out of print, and thus have long since ceased to generate income.

That's why, if I read Lessig correctly, he's looking at a kind of 'scrip stamp' approach to licensing, by which works that are still considered of economic value ought actively to require copyright renewal, within the context of a reasonable term. Combine that with a system of low-cost digital distribution -- and a lack of knee-jerk auto-renewal from literary estates -- and it's hard to see who, exactly, loses out. (And, on preview, I'm overjoyed to see you agree with that.)

Nowadays, copyright is increasingly used to keep works out of print. Isn't that perverse? Especially within the US constitution's definition that copyright is predicated on 'promot[ing] the progress of science and useful arts'. When a 'keeper of the flame' such as Steven James Joyce -- who was nine years old when his grandfather died -- now takes it upon himself to demand that those wishing to do Bloomsday centenary readings from Ulysses (published 1922) seek written permission, you have to admit that something is seriously fucked up.

(I don't want to put words in his mouth, but I'd be interested to hear what Miguel thinks about the prospect of a Cardoso scion passing judgement over his literary remnants in the year 2100.)
posted by riviera at 9:21 AM on March 3, 2004

I'm delighted to see we're all agreed (cue "Kumbaya") - Lessig's idea to require affirmative re-registration of copyright for a nominal fee is a wonderful idea.
posted by twsf at 9:29 AM on March 3, 2004

completely supportive of Disney getting another 20 year extension for 'Steamboat Willie' every single time it looks like it might be heading into the public domain.

Yeah, all one of them. One of them times.
posted by kindall at 9:31 AM on March 3, 2004

twsf

I think that the power of deregulating copyrights is probably most obvious in the linux community. Shared knowledge has been essential for the development of culture since well before the Renaissance. Scientists of that era built upon each others works in constant effort to increase our knowledge of the world. With patent and copy right law you limit our abilities as humans to develop new technologies, ideas, and social concepts.

Utopian? not likely, most things copyrighted are hardly worth my time to steal. However, most people who produce copyrighted material, like this essay we have been reading, do it because they feel they need to. The fact that you can charge 15% for essentially reading a piece of working and adding your masturbation to it. Then sending it to an automated printing system is indicative of what a strong desire it is to share knowledge and your view of the world.

I'm not saying that the Daniel Steels and Stephen Kings of this world are not interested in the money, but i think you would find few people complaining about not being able to pilfer their thoughts and make them readily available.

Besides the reality of all of this is that the internet has constantly stayed ahead of copyright technologies. The technogeeks enjoy their free stuff. We like to read, we like our music, and many of us produce our own material with no intention of ever copyrighting it. I do not think it is possible to legislate this ideal out of existence. It is akin to shutting down the worlds largest library, and therefor horribly perverse. We are embarking on a new drug war, aimed at people who simply want to get their learn on, or jack out for a while to free entertainment. prohibition has never been profitable, and we see the first shots of this war being fired by the RIAA, and the government is clearly coming to the side of the industry.

I think perhaps the most upsetting thing about this entire article is that a majority of the justices did not even examine the case he presented. I think he made some mistakes in presentation, but i like him am an idealist about the constitution, were that i could practice jeffersonian democracy. Oh well though, after school I'm moving north or south depending on how the trade winds of NAFTA are blowing.


Umberto Eco - Has some fascinating ideas about what the future of digital production has for us. He describes much more elegantly the joy of free knowledge than i could ever hope to, and he does it without ever even assuming that one could feel differently.

Above link is a document, Google Cache Here
posted by sourbrew at 9:58 AM on March 3, 2004

After searching, I realize that the above article is a repost from a FPP in november, my apologies i did not find it here. Still if you haven't read it or for that matter anything by him go get a copy, you can troll me in later columns if you dislike it.
posted by sourbrew at 10:10 AM on March 3, 2004

"Private property ... is a Creature of Society, and is subject to the Calls of that Society, whenever its Necessities shall require it, even to its last Farthing, its contributors therefore to the public Exigencies are not to be considered a Benefit on the Public, entitling the Contributors to the Distinctions of Honor and Power, but as the Return of an Obligation previously received, or as payment for a just Debt." -- Benjamin Franklin

Courtesy of maxspeak. I stole it from him. So sue me.
posted by nofundy at 10:40 AM on March 3, 2004

The Tyranny of Copyright
posted by homunculus at 11:06 AM on March 3, 2004

Or the ever applicable Melancholy Elephants (kindly shared by Baen) by Spider Robinson. Good read in my book.
posted by Samizdata at 11:21 AM on March 3, 2004

4. Where I diverge from Lessig (and the other fervent "copyleft" advocates") is in the belief in the primacy of public domain over proprietary ownership rights.

I'm wondering if you've actually read anything that Lessig has written on this. Lessig gets flack from both sides. The radical Richard Stalman copyright abolishionists don't like Lessig because Lessig argues that copyright is useful for limited terms, as a way to encourage compensation for authors. Lessig is misunderstood by thick copyright advocates because he argues (quite effectively btw) that more liberal uses of copyright benefit both the creator and the consumer. For example, for many genres promoting fan-fiction and fan-art is one of the best ways to develop brand loyalty.

Here's a little thought experiment: You've spent three years building a house with your own hands, which you now live in and use as a B&B to make a living. You will pass it down to your children when you're gone, for them to live in, operate as a B&B themselves, rent out to someone else to operate, or sell outright. Should the community have the right to confiscate that house after a certain period beyond your death, to allow anyone who walks by to stay there for free, or to allow others to pry up those amazing granite counters and tile floors for their own use?

Well, analogies between ideas (which is basically what copyright is about) and tangible goods is misleading. In fact, this distinction is probably more that 1000 years old, (Averroes mentioned it for example) and as a result, the writers of the U.S. Constitution were probably well aware of the distinction when they created copyright for limited terms (and many of the defined those terms as 15 years.) It makes sense to assign perminant property rights to a house, which cannot be easily replicated. However, it makes less sense to apply the same concept to an idea, a motif, or an expression of an idea that has a considerably lower replication cost.

A more accurate example is does the fact that you built the house give you the rights to perpetual royalties if somone sketches the house, or references decorative motifs? I suspect that our founding fathers knew what they were doing when they granted copyright for a limited term, but took for granted tangible property rights as something that can only be suspended after due process.
posted by KirkJobSluder at 11:27 AM on March 3, 2004

Quite true, but that wasn't my point: when you can't even count the great-grandchild of an author as 'an original authorial creation' (that DNA is getting pretty diluted), why is it feasible to ascribe said great-grandchild copyright over a literary estate?

because an artist's works are part of his or her estate...? because the creator wanted it that way...? when my dad died last june he left me in charge of his work and his image. i have rights to all his recordings with charlie parker, and many other historical jazz figures the rights to 1000's of photos of my dad with famous jazz musicians, actors, etc. when i die i'll pass on those rights to my heirs. whatever they do with them is their business but since the family is comprised of musicians, actors, authors, etc i'm sure they'll hold on to those rights. many of those recordings are readily available if you're in the habit of illegally downloading mp3s, and as executrix of my father's estate i'm perfectly happy with that. some of his photos are on jazz sites run by fans and that's very cool too. what is not cool is if some record label decided to reissue one of these recordings, or some author used those photos without consulting and reimbursing me. there's a world of difference in these uses.

so is this discussion about the public's right to have a creator's works in their possession for their personal use, or does public domain in the usa mean any money seeking individual can take an established work of art and make money from it...? is there a difference made in your law, or is public domain just a free for all...?
posted by t r a c y at 11:31 AM on March 3, 2004

tracy: so is this discussion about the public's right to have a creator's works in their possession for their personal use, or does public domain in the usa mean any money seeking individual can take an established work of art and make money from it...? is there a difference made in your law, or is public domain just a free for all...?

Public domain means that there is no copyright protection for those works. So for example, anyone can perform, publish or adapt Handel's Messiah. One group might charge money, someone might perform it on the street, a record company might sell a million copies of it, Frances Ford Coppola might use it in a dramatic scene, and Danny DeVito might use it in a comic scene. Once copyright expires, anyone with an interest can use that work.
posted by KirkJobSluder at 11:43 AM on March 3, 2004

I think the crisis of combinatorics in Melancholy Elephants will not be reached before a more impreding one:
Think about genetics, quantum dots, robotics programming, and all their applications. Then think about copyright, and how computer programs can be copyrighted, and the trend towards stronger controls for the copyright holder.

Is that the future anyone wants to live in?
posted by sonofsamiam at 11:55 AM on March 3, 2004

OK, here's another thought experiment, drawn from reality. A client of mine edited an anthology. She spent months researching and selecting different pieces for the collection - articles as well as passages from longer works. Then she spent many more months licensing rights from the various administrators of these copyrighted works, which included individual authors, agents for authors, and executors of literary estates. Each of those copyright holders had the legal and moral option to 1) grant her the right to include their selection for free, 2) reach agreement with her on a licensing price, 3) set a price so high she chose not to include them in her anthology, 4) refuse outright to license the work for this use. None, however, could be legally compelled to allow use of their copyrighted material in her derivative work.

Can anyone seriously argue that her creativity was unjustly limited by the necessity to license each of the anthologized passages?
posted by twsf at 12:09 PM on March 3, 2004

twsf: Can anyone seriously argue that her creativity was unjustly limited by the necessity to license each of the anthologized passages?

Isn't this a straw man? Who in this dicussion does not argue that authors of recently-created works do not have the legal and moral options you listed above? (and I'm using the terms recently created in the most liberal sense of the word as created within the last century.) Of course, I do think that current copyright law does need an overhaul in terms of how fair use is defined. I don't think that copyright law was intended to protect something as minimal as a 6 note squence from a song, and the case regarding The Wind Done Gone should have never gotten as far as it did.

The question is whether those works should be protected perpetually long after they have been transformed into idioms, folklore, and historical interest. Isn't there an argument to be made that The Wizzard of Oz will at some point have the same status as The Marriage of Figaro or Cyrano de Bergerac? Does perpetual copyright prevent a work from becoming a "classic" in the sense that new generations of artists are free to adapt, parody, reference and reinvent? Is there any point in maintaining zealous control over a story idea when everyone knows it?
posted by KirkJobSluder at 12:34 PM on March 3, 2004

If Breyer is right that under current law 99.9997% of an average copyrighted work's value is realized by the end its copyright term, it's pretty obvious that the "limited time" clause in the Constitution has been effectively read out of the Constitution.

the only debate over the length of a copyright term should be between the benefits to the public of having unlimited access to a work through public domain and the necessity of providing a reasonable financial incentive to future authors to insure artistic, intellectual and scientific progress.

Thinking about artistic expression as "property" in the traditional sense just muddies the water. If an author wants to keep perpetual exclusive ownership of an artistic expression, then he can keep it to himself. If he or she puts it out to the public, it becomes a public matter, subject to legislative and constitutional controls. We're not talking about paintings or CDs here, we're talking about the underlying expressions fixed on the canvas or the CD.
posted by boltman at 12:38 PM on March 3, 2004

to finish that last thought: if I steal a painting, I've clearly increased my welfare at the expense of the previous owner. That's bad, of course. However, if I take a picture of a painting and post it to the internet, I've increased the welfare of millions of people, and I've done so without taking anything away from anybody. Why do we want authors to have the power to prevent me from doing this, even though it clearly results a net gain for society, at least vis-a-vis this particular painting? I can buy the answer "because we want talented painters to be able to make a living being painters so they can keep painting masterpieces." But I can't buy "because the power to control distribution of their public expressions is inherently theirs." It's a lot of power, really. Far more than the power to prevent others from stealing your tangible property. And it should be recognized as a privilege bestowed on authors by society, not an inherent right merely recognized by the government.
posted by boltman at 1:12 PM on March 3, 2004

Ah, there's the crux of the underlying disagreement: seeing intellectual property rights as "a privilege bestowed on authors by society" or as a confirmation of inherent rights of individuals. We obviously don't all agree on this core philosophical question.
posted by twsf at 1:45 PM on March 3, 2004

Hands Off! That Fact Is Mine
posted by homunculus at 2:02 PM on March 3, 2004

Yes, and the framers of the constitution were very explicit about which side they were on.

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.
- Thomas Jefferson
emphasis mine
posted by bashos_frog at 2:09 PM on March 3, 2004

twsf: I haven't seen anyone here arguing that copyright should be abolished. And that analogy to ownership of tangible property is spectacularly stupid - I'd recommend against using it again, if you want to be taken seriously. Mark Twain not withstanding.

Anyway, I think it's obvious that the copyright term duration was already way too long before this most recent extension. I mean, the usual argument for copyright is that encourages people to create stuff, so they can profit from it. What author is going to be factoring in profits from 50 years in the future when they decide to create something? "Hmm.. maybe I can't sell this now, but in just a few short decades, my children will have a tiny chance of being rich! I better get writing!" I really don't think it works like that.

Not even the big corporations are going to be investing in anything they don't expect to be profitable enough to be worthwhile within a few years. Say 30 years, to be really generous. So I can't see any justification for copyright terms longer than that.

The only theories I know of that would support an argument for such long duration are those that would argue for a perpetual copyright, which is generally agreed to be a bad idea.
posted by sfenders at 2:15 PM on March 3, 2004

"a privilege bestowed on authors by society" or as a confirmation of inherent rights of individuals.

All 'inherent rights' of individuals are socially constituted, by necessity. But we'll save that wider philosophical argument for later. In the meantime, I'm still chuckling over the idea of the Lascaux cave-painters sending out writs accusing some other cave-painter of ripping off his bull.

I'd still like you to clarify, though, whether you think it's reasonable for copyright to extend to the great-grandchildren of authors or even to a third-generation literary executor.

The confusion between tangible and intellectual property stems, I think, from the historical precedent of protecting the dissemination of works by controlling the means of production. The monastic scriptoria, combined with limited literacy, sustained church control over the Bible until Gutenberg came along, and we know what happened next.

To reply to t r a c y: I truly cannot fault your attitude. It's wonderful to hear. But public domain simply has to be a free for all, at some point, or you'd be left with some arsey fifth-generation Wagner in Bayreuth objecting to Apocalypse Now. It's understandably painful to think of your father's work being used disrespectfullly, or for profit by someone with no creative association to it. (And I do recognise the distinction between performance and publishing rights.) But I also hope that you have a life long and healthy enough not to be able to pass on your rights as an executrix. Some of the greatest jazz recordings, after all, weave memorable phrases and allusions and hat-tips to contemporaries into something rich and strange, and one wonders how the jazz greats of fifty years ago would have dealt with the kind of hostility shown today towards samplers.
posted by riviera at 1:14 AM on March 4, 2004

Ah, there's the crux of the underlying disagreement: seeing intellectual property rights as "a privilege bestowed on authors by society" or as a confirmation of inherent rights of individuals

The wording of the US Constitution seems to strongly imply the former position, since it gives, as justification for copyright, a benefit to society.
posted by namespan at 2:09 AM on March 4, 2004