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Copyright Jungle
September 27, 2006 12:46 PM   Subscribe

"We are losing much of the history of the twentieth century because the copyright industries are more litigious than ever." A cogent "primer for reporters [and others] who find themselves lost in the copyright jungle" in the age of Google and the DMCA.
posted by OmieWise (40 comments total) 3 users marked this as a favorite

 
I thought CJR was dead. Good to see they are still around...
posted by Blazecock Pileon at 1:14 PM on September 27, 2006


An interesting read. It doesn't really present any new or groundbreaking ideas, but it does a good job of summing up some of the multitude of concerns with the ever expanding scope of copyright law.

The cynic in my heart wants to blame the bulk of this mess on Disney. They have been the driving force behind expanding the term of copyrighted materials. But Disney is really just the point of the spear. There is an entire industry, hell multiple industries driving these decisions. At some point it would behoove us to step before Congress and demand that we, as a nation, want our culture back.
posted by quin at 1:22 PM on September 27, 2006


Don't forget Scientology, quin.
posted by verb at 1:26 PM on September 27, 2006


At some point it would behoove us to step before Congress and demand that we, as a nation, want our culture back.
posted by quin at 1:22 PM PST


Or vote with your dollars and stop handing over the dollars to the firms that buy the Congress-Kritters who craft the laws.
posted by rough ashlar at 1:27 PM on September 27, 2006


You just know that a new twenty-year extension on copyrights will be forced through in ten years. Luckily, I've got an idea of my own to head off the Sonny Bono-ites at the pass.

I propose a seventy year copyright term, free and clear. After the term is up, well, the owner retains the copyright. But they'd have to pay a property tax on it, plus a percentage tax on any earnings derived from it—fees that would represent a sort of lease on the public domain. Every additional year after the seventy year mark, both taxes would increase incrementally; by ninety or a hundred years, they'd be all but ruinous. But at any time after the taxes kicked in, the copyright holder could get out of paying them by declaring their intellectual property to be in the public domain. And if they declared for the public domain before the seventy years were up, they would get a nice tax break.

It's a compromise that would finally let the public domain grow again while allowing the Disney types to hold on to their precious I.P. for as long as they would like, or at least for as long as they could afford it. It's just a start, of course; ideally, copyright protection wouldn't last more than three times as long as patent protection in the first place. But, then, no one ever accused this world of being perfect.
posted by Iridic at 1:59 PM on September 27, 2006 [1 favorite]


most libraries that are allowing Google to scan books are, so far, providing only books published before 1923 and thus already in the public domain, essentially missing most of the relevant and important books that scholars and researchers — not to mention casual readers — might want

I can see where this is a true statement in the sciences, but to this historian, having every pre-1923 book at my fingertips is a magnificent boon.

copyrighted works will be presented in a useless format — “snippets” that allow readers only glimpses into how a term is used in the text

Far from useless, those snippets have already been extremely valuable to me. A big job for humanities scholars is finding out what other people have done with your topic. Being able to find which books mention your topic, get a quick idea of the approach, and to read their footnotes is an amazing breakthrough. Especially for someone without easy access to an academic library.

Those snippets are also handy for busting the more ambitious plagiarists who think they can get away with copying something out of a printed volume since the professor can't Google it. Oh yes I can, you little malefactor!

To be sure, copyright law is crippling the exchange of information. But the situation is better than the article lets on.
posted by LarryC at 2:02 PM on September 27, 2006


Ok, But did you donate to the Swedis Pirate Party?
posted by jeffburdges at 2:32 PM on September 27, 2006


OmieWise posted "'We are losing much of the history of the twentieth century because the copyright industries are more litigious than ever.' A cogent 'primer for reporters [and others] who find themselves lost in the copyright jungle' in the age of Google and the DMCA."

OmieWise, I don't think you wrote that yourself! Word pirate!
posted by orthogonality at 2:36 PM on September 27, 2006


LarryC wrote: "copyright law is crippling the exchange of information"

C'mon, let's at least have a thoughtful conversation here. An artist's OR record label's OR publisher's desire not to have their copyrighted materials available for unlimited distribution and use is a reasonable viewpoint and supported by the Constitution. I think Iridic's idea is great, as are similar proposals from Lessig and others. But all the shrieking that "creativity is being destroyed" because, 1) Disney muscled Congress to protect their rights to Mickey Mouse for another twenty years or 2) many musicians don't like the idea that their music can be widely pirated without permission and without their receiving a dime, is absurd.
posted by twsf at 4:00 PM on September 27, 2006


But all the shrieking that "creativity is being destroyed" because, 1) Disney muscled Congress to protect their rights to Mickey Mouse for another twenty years or 2) many musicians don't like the idea that their music can be widely pirated without permission and without their receiving a dime, is absurd.

Siva Vaidhyanathan isn't commonly perceived as a shrieking Chicken Little, but YMMV. Also, I seem to recall reading somewhere that Disney has averred that it will do anything and everything that it legally can to "protect their rights" to Mickey Mouse for perpetuity, not just "another twenty years." The AAP, RIAA, and MPAA aren't known for being soft and warmhearted in this regard either.
posted by blucevalo at 4:12 PM on September 27, 2006


If Robert Louis Stevenson and the Brothers Grimm had had copyright in perpetuity, Disney would scarcely exist.
posted by George_Spiggott at 4:14 PM on September 27, 2006


How is "creativity" being destroyed because you can't freely duplicate what someone else has already done? Seems to me, "creativity" is about doing new and original things that have never been done before, not rehashing someone else's work.
posted by Rubber Soul at 4:15 PM on September 27, 2006


Are you old codgers still pining about the so-called public domain? What's next a petition to bring back the old timey bicycles? By the time most things hit the PD they're horribly irrelevant but the copyleft crowd holds up the few gems (which have be reprinted more times than you can count) and worry that stricted copyright rules mean less output. Funny, the biggest single incentive in life is profit. If anything its a wash or even a benefit.

I'm sure I sound like a troll, but the "copyright sky is falling" crowd have been yelling this since the Bono act and since then we have more information at our fingertips than we can handle and the incentive to keep creative more.
posted by damn dirty ape at 4:22 PM on September 27, 2006


Great article.

I have been linking to Google Books occasionally in Wikipedia. It's very slick to be able to not only cite a source, but link to the actual scanned page with the relevant passage highlighted.

damn dirty ape, I don't know about you but I run into lack of information sources everyday because of copyright restrictions. I think it's a crime they extended the copyright. Your argument is pretty lame - the quantity of information has nothing to do with it - yeah we all have Simpson's on TV every night - who needs anything else, right?
posted by stbalbach at 4:33 PM on September 27, 2006


excellent article--If every download replaced a sale, there would be no commercial music industry left. The relationship between the free version and the legitimate version is rather complex, like the relationship between a public library and a book publisher. Sometimes free stuff sells stuff.

totally.
posted by amberglow at 4:39 PM on September 27, 2006


George_Spiggott, exactly.

The Copyright Act of 1790 allowed for 14 years, with the possibility of renewing for another 14 years. Then in 1834 they upped to to 28 years with a 14 year renewal. In 1909 they bumped it to 28 years with the possibility of renewing for an additional 28.

Under these earlier restrictions, think of the number of things that would have gone into the public domain already. I think it can be safely argued that works derived from public domain can be instrumental in establishing a business (I know Disney would think so.) How different things would be if we still operated under these conditions?

Or to put it another way, imagine if science worked like our current copyright laws. If you had to wait a certain number of years before you could build on the work of someone who came before you. We would still be marveling at the printing press and the telegraph as cutting edge technologies. And medical science? 40 would seem like a great average life span.

I realize I'm being a bit hyperbolic, but can anyone honestly say that copyright law in it's present form isn't a stifling agent? Really?
posted by quin at 4:43 PM on September 27, 2006


I just want them to let go of "Happy Birthday" so I won't have to hear any more of those clappy chanty things they make employees do in most restaurant chains.
posted by meinvt at 4:45 PM on September 27, 2006


since then we have more information at our fingertips than we can handle and the incentive to keep creative more.
posted by damn dirty ape at 4:22 PM PST


Yea, things like American Idol and the high quality keeps people coming back for more.
posted by rough ashlar at 4:49 PM on September 27, 2006


No I mean things on the web, like the thing youre doing right now.
posted by damn dirty ape at 4:55 PM on September 27, 2006


Well, Rubber Soul, Shakespeare cribbed half his plots from other plays. And the Beatles recapitulated Motown and folk rock on Rubber Soul, and the Rolling Stones recapitulated blues-rock. Lolita and most of Nabokov's other works would be lessened if he could not include literary references to everything from obscure early-19th-century French poets to 20th-century pop songs. There are entire traditions in painting of imitating and interpreting "prior art".

Basically, throughout human history, the creative impulse has built on what has come before. People told stories, wrote plays, made paintings, carved sculptures, produced music that interacted with the stories, plays, paintings, music, and sculpture that had gone before and with which audiences were familiar. There are countless famous cases of artistic "responses" to other works.

Under the modern copyright regime, however, a work and its derivatives are owned, proprietary, inaccessible. Sometimes literally inaccessible as they are not profitable enough to be produced and available to consumers, so they languish in archives. Bettye Lavette, for example, had an album that got shelved back in the 70s, and it took diligent work by a belated fan to bring that work to the public for the first time, giving her the first sustained success of her four-decade music career. Fiona Apple, Prince, John Fogerty, and many other musicians have tales of work they produced and delivered that was shoved in a file drawer, and they couldn't even go someplace else to release it because of contract restrictions. That's just the way these industries habitually operate -- content is a commodity, which belongs to them, not the artists, and not the people. So don't give me some crap that this is about the artists. Many times it's about the company that owns the bulk of the profits from the work. Other times, it's the artist's descendants, now legally even their grandchildren, who certainly never produced the work.

If you want an example of how IP restrictions hold back progress, look at James Watt's steam engine. He "invented" his engine by improving a Newcombe steam engine at Glasgow University that had broken down. The Newcombe engine retained steam inside the combustion chamber and this resulted in higher fuel consumption and other maladies. Watt solved that, but made sure to get a patent.

Even though they were prone to blowing up, people continued to use the Newcombe engine for years afterward, to avoid royalty payments.
posted by dhartung at 5:14 PM on September 27, 2006 [1 favorite]


Well, I think there's a difference between "building" on other people's work, and copying it outright. Please let's get away from scientific progress because that is an entirely different subject; I am speaking about Art here, not pure scientific knowledge.

You can easily still build on the works of previous artists. Every cartoon out there owes some credit to early Disney; and there are plenty of cartoon mice who are not Mickey. I can walk into a bookstore and see a wealth of new titles all about "Henry Bone at Wizard's School" and "Magic Academy" and others which are clearly derivative of Harry Potter, but Harry Potter himself isn't public domain and won't be so for many years. And how many elves, dwarves, swords and quests are there in fantasy literature which clearly have their roots in Tolkein, and how many sci-fi books use spaceship drives and other concepts that were done by previous authors?

You don't need Harry Potter to write a children's story about a boy wizard; you don't need Mickey to make a cartoon about a talking mouse. When you talk about wanting to use these characters, what you -really- want to use, admit it, is their following. The brand recognition, the fact that Mickey is loved and cherished by generations, the kind of fame that your brand-new, creative cartoon mouse, just won't have... unless you earn it yourself. And then, if you go through the hard work and effort to make your mouse as famous as Mickey, I think you'll feel a little differently when people come saying "Dhartung Mouse should be free for everyone to use!"
posted by Rubber Soul at 5:27 PM on September 27, 2006


The problem, as I see it, is one of the public not getting what it's owed. Copyright laws were written for one reason: "to promote science and the useful arts." Not to line some corporations pockets. In order to promote those useful arts, copyright holders are granted a limited control of their works. They get to say who can and can't copy it, they get to sell it, etc. That's their incentive to produce MORE work. But why should their incentive go in perpetuity? If they get to control and profit from a work forever, where' the incentive to produce more? And what does the public get out of the deal?
confidential to Rubber Soul: don't confuse copyrights with trademarks
posted by cosmicbandito at 5:52 PM on September 27, 2006


I don't believe Harry Potter is a trademark, cosmicbandito. If he is, please enlightmen me as to where this is stated.
posted by Rubber Soul at 5:59 PM on September 27, 2006


I'm fine with copyright being limited to the life of the artist, but the notion of making it any less is an unsound one. The argument that this will encourage artists to work harder is tenuous.

If an artist loses control of his creation after 14 years, he not only loses what may have been his main source of income, but he has to watch his artistic vision, his brainchild, being used to sell tampons and being turned into "Harry Potter On Brokeback Mountain". Where's his incentive to 'produce more', knowing the exact same thing will happen again? It's very hard work to come up with an artistic concept, and if the work is fleeting and futile, why do it?

It makes much more sense to be one of the teeming masses who are churning out Harry Potter knock-offs without any effort and with guaranteed return on time invested because of the following of the character. And that cannot be conducive to 'increasing the overall creativity of human culture' or whatever term you want to use.
posted by Rubber Soul at 6:11 PM on September 27, 2006


And what does the public get out of the deal? Well, the public gets Art, which it can pay for, or not pay for, depending on whether or not it likes it. Free market. The public doesn't support the artist so that the artist "owes" them something; the public buys what the artist produces, same as if the artist was making medicines, or cars, or wine. The public gets something it can enjoy that didn't exist before the artist created it; the artist gets paid for his hard work.
posted by Rubber Soul at 6:33 PM on September 27, 2006


orthogonality writes "OmieWise, I don't think you wrote that yourself! Word pirate!"

What are you talking about? That's a new work! I added "A cogent" and "[and others]". Don't try to bring me down.

Signed,
The Fair Use Fiend

(Pirate indeed!)
posted by OmieWise at 6:40 PM on September 27, 2006


Also, I seem to recall reading somewhere that Disney has averred that it will do anything and everything that it legally can to "protect their rights" to Mickey Mouse for perpetuity, not just "another twenty years."

This is wrong, why? Why is "protect their rights" in quotes? Why shouldn't they be entitled to control the use of and continue to profit from their own creation in perpituity?

If they get to control and profit from a work forever, where' the incentive to produce more?
Next time you see an artist, knock him down and take his wallet. Then kick him a few times. That'll get him good and motivated to make you more art!

Also, the shittiness of record contracts that lead to labels holding onto masters is a completely unrelated issue- it's a contract between the artist and the label, signed voluntarily by both.
posted by drjimmy11 at 8:56 PM on September 27, 2006


Why is "protect their rights" in quotes?

Because I was quoting RubberSoul.
posted by blucevalo at 8:59 PM on September 27, 2006


Or vote with your dollars and stop handing over the dollars to the firms that buy the Congress-Kritters who craft the laws.

And starve to death?
posted by delmoi at 9:35 PM on September 27, 2006


"They get to say who can and can't copy it, they get to sell it, etc. That's their incentive to produce MORE work. But why should their incentive go in perpetuity?"

Because if the copyright laws only protected works for fourteen years, no one would build a corporate empire with them designed to last centuries.

If you allow them to be protected four fourteen years with an option for seven more, you give the company behind the copyright the chance to get better lawyers that will figure out a way in those twenty-one years to maybe get a few more. Then after a few false starts you'll eventually work your way up to seventy-five with an option for Mickey Mouse to outlive Walt Disney's great grandchildren.

If tomorrow, Mickey Mouse and everything Disney's done more than 21 years ago could be used by anybody, millions of people wouldn't immediately be out of work. However, millions of people throughout Florida, California, and the world would be a little concerned that maybe they'd lose their job. A completely unknown number of them actually would within five or ten years. Those who didn't lose their jobs, would find their jobs remarkably changed in that five or ten year period.

The only constant in the universe is change. People don't generally like change. Individuals do, but large organized groups of people don't like change, excepting of course change they orchestrate themselves. Usually orchestrated, either formally or unofficially, by a lawyer or politician or otherwise fully licensed and educated smartass.

Control of change: this is called power.
posted by ZachsMind at 10:02 PM on September 27, 2006


Just to chime in here one more time; there seems to some effort being expended to defend Disney, which is of course fine. But for anyone who is unfamilar with why the fact that Disney's efforts to extend the copyright laws rankle some of us, allow me a moment to elaborate:

In 1928 Walt Disney released Steamboat Willie. A character he lifted from Buster Keaton's Steamboat Bill Jr. Subsiquesnt Disney successes included Snow White, Cinderella, Sleeping Beauty, The Little Mermaid, and probably a couple of others I'm forgetting, are all based on works that are in the public domain. If the Brothers Grimm and Hans Christian Anderson had the ability to protect and extend their copyrights, Disney wouldn't exist.

Lemme say that again for the cheap seats. All of Disney's best work, the movies that turned them into the phenomena that they are today, they got from using works that were available as public domain.

I'm not suggesting that Disney didn't do wonderful things with their works, in many ways, the Disney products are superior to the originals. But the fact remains that Disney is acting in an unbelievably hypocritical manner when it uses copyrights to suppress new content based on their work.

Imagine if Steamboat Willie became public domain for a moment. Sure there would be a lot of crap attached to it, but think of how great it would be to see the character used by some unknown rotoscope/ CGI genius to remake something like the Maltese Falcon or something. The point is, that because of these laws, which were put in place to encourage innovation, and are now repressing it, we will never see the weird and wonderful stuff that could exist.
posted by quin at 10:03 PM on September 27, 2006


Them musicians'll dance and sing for your pleasure anyway, they secrete music like the liver secretes bile.
posted by Wolof at 1:12 AM on September 28, 2006


I don't believe Harry Potter is a trademark, cosmicbandito. If he is, please enlightmen me as to where this is stated.

You're kidding, right? USPTO has sixty-eight trademarks registered for Harry Potter, most of them by Time-Warner to protect licensing arrangements.

contracts that lead to labels holding onto masters is a completely unrelated issue

Legally, yes, morally, no. ;-) You're right, though -- I meant to write about back catalogs and got sidetracked.

You don't need Harry Potter to write a children's story about a boy wizard; you don't need Mickey to make a cartoon about a talking mouse. When you talk about wanting to use these characters, what you -really- want to use, admit it, is their following.

I give up arguing with you; you're a thorough tool. Maybe I don't want to create my own new "beloved mouse" -- maybe I just want to fuck with the image Disney has created for theirs. This, of course, is what Disney fears more than somebody piggybacking on top of Steamboat Willie, one of multitudes of Disney products which they embargo periodically or forever. Plus, what quin said: Disney is the perfect example of somebody mining the public domain, then preventing anyone else from doing so.

These corps didn't get interested in this question when they had a monopoly on reproduction. To them, it was just a money machine: ink+film=profit. All they had to do for ideas was look around and take. Then what they made became something that they feared giving away, because suddenly the means of reproduction fell into the hands of the proletariat. They got scared. They should be scared -- the era of the technological monopoly is over. It just is. The law, however, is written as if technological monopolies always existed and always would -- and always should. Because the monopolies had it written that way.

Maybe there's another way. Maybe there's another responsibility the law has, too.
posted by dhartung at 1:32 AM on September 28, 2006


More bananas please.
posted by wobh at 5:07 AM on September 28, 2006


But all the shrieking that "creativity is being destroyed" because, 1) Disney muscled Congress to protect their rights to Mickey Mouse for another twenty years or 2) many musicians don't like the idea that their music can be widely pirated without permission and without their receiving a dime, is absurd.

That would indeed be absurd, so I am glad that I said nothing of the kind. I said current copyright law is "crippling the exchange of information" which is certainly true. I agree with the basic argument in the article, that too little or too much copyright are equally damaging.
posted by LarryC at 7:59 AM on September 28, 2006


Disney is absolutely dependent on new content becoming popular and profitable more than it is on old content--almost all entertainment giants are. It is always working toward the newest "Disney classic" and the majority of its income is not based on the old characters--i'm sure the Little Mermaid alone makes hundreds of millions more for them each year than Mickey nowadays. Radio Disney too generates millions and millions more than their old content. They didn't buy Pixar to protect or promote their old content.
posted by amberglow at 8:51 AM on September 28, 2006


"...but the "copyright sky is falling" crowd have been yelling..."

"...shrieking that "creativity is being destroyed".."

"Next time you see an artist, knock him down and take his wallet. Then kick him a few times."

Good to see that we've hit all the trolling points. Remember, it's all about the poor struggling artist, pay no attention to the giant corporation pulling the levers.

Disney hasn't just build an entire business out of public domain material, they've also been accused of "adapting" contemporary work - see this page about the incredible "coincidence" of Kimba and Simba. And then tell me that they care a rats ass about creators. It's all about the owners, not the creators.

Case in point - the "Grey Album" - a reworking of the Beatles "White Album" - really a montage of elements of an existing work which comprises in itself a new work, one which made more than a few "favorite albums of the year" lists. It's not diminishing in any way the integrity or commercial viability of the original. But because copyright law is in direct conflict with technical and artistic developments in the real world, this piece of art is actually illegal under any and all circumstances. It helps throw the whole thing into relief when you consider that the perpetrator of this "crime" has since produced two of the most artistically and commercially successful albums of the last year or so - Gorillaz "Demon Days" and Gnarls Barkley "St. Elsewhere".

The problem with copyright is not just the threat of infinite duration, but the spectre of infinite control. Thanks to the DMCA any work that is protected by technical controls - ie DRM - can only be used under the terms of the licence that goes with it - even if the terms themselves do not reflect any actual rights in the work (eg. it makes it possible to prohibit what would otherwise be fair use.) As long as general purpose computers exist, of course, it will be trivially easy to circumvent any form of software-only DRM, which is why someone like Danger Mouse was able to reach an audience with his "illegal art". But the holy grail of infinite control is in sight - combine the TCPA/Palladium (aka "trusted computing") initiative with the imminent demise of "net neutrality" and it's not all that hard to imagine a future in which powerful corporations will have the ability to police and suppress every "unauthorized" use of any copyrighted material.
posted by dinsdale at 11:32 AM on September 28, 2006 [2 favorites]


An excellent comment, dinsdale.
posted by OmieWise at 12:06 PM on September 28, 2006


Them musicians'll dance and sing for your pleasure anyway, they secrete music like the liver secretes bile.

For some of us, the music actually is the bile from our liver.
posted by sparkletone at 12:08 PM on September 28, 2006


Iridic, your proposal is similar to the Public Domain Enhancement Act, which was proposed in 2003.

Sadly, it seems to have gone no-where. Maybe we can get it re-introduced next Congress?
posted by fings at 6:56 AM on September 29, 2006


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