Is copyright killing culture?

January 18, 2005 5:23 AM

Is copyright killing culture? Some documentary filmmakers certainly think so.
posted by shawnj (142 comments total)

I take it all these independent, professional documentary filmmakers will be signing 'waivers' to the effect that clearance will not be required should anyone wish to integrate, borrow or just plain pilfer clips of their films.

Maybe they leave their doors and windows open at night in order not to deny burglars the creative right to steal their furniture.
posted by Chunky at 5:48 AM on January 18, 2005

you won't kill culture. you can change the monetary value of stuff, and you might kill a culture, but culture itself will exist while humans continue to communicate.
posted by andrew cooke at 5:58 AM on January 18, 2005

The problem is asymetry in resource availability. Fair use isn't clearly defined, so companies can effectively block it with legal teams even when they shouldn't be able to.

And that's a terrible analogy, Chunky. (Though, to be fair, the FPP wasn't that well-worded.)

Pretend you're filming a documentary that contains a kid's birthday party -- wait, you can't. Because that clip of kids singing "Happy Birthday" will cost you 10 thousand dollars to include. It shouldn't, ethically or legally, but it will.
posted by Tlogmer at 6:01 AM on January 18, 2005

Chunky: I take it all these independent, professional documentary filmmakers will be signing 'waivers' to the effect that clearance will not be required should anyone wish to integrate, borrow or just plain pilfer clips of their films.

Likely not. For the same reason that philosphy of Free Software has to implemented via a General Public License et al. In the current structure, copyright is the default state. All new intellectual commodities are embedded in it. So, if I release something in the public domain (i.e. without some legally enforceable license), derivatives may be copyrighted by default, and sold for profit. There's an asymmetry there, because I won't get free access to the works of the derivative authors. So, I need a legal contract to force the 'open philosophy' onto people. Should the handling of IP at large change towards an open access friendly philosophy, then I think society will be easily able to work with that. But as long as there's an enforced inherent assymetry, asking few people to be an example, won't demonstrate anything conclusive.
posted by Gyan at 6:27 AM on January 18, 2005

It's quite outrageous how far copyright's reach has been extended. "Happy Birthday" is a classic example (although I understand that it recently passed out of protection and is thus free to the public). Copyright protects an expression of an idea, so it surely is not copyright infringement to copy the idea but express it in a different way. By singing "Happy Birthday" you're not copying any original recording, nor are you copying a page of musical notation. You are creating a unique performance using your own voice, your own tonal interpretations/mangling, and variations on the words.

If you sing along to the radio, are you "copying" the song? No, that's stupid.

Copyright when strictly interpreted may be worth having, but the corrupted meaning of the word "copy" has polluted the idea waters big time.
posted by breath at 6:32 AM on January 18, 2005

According to Snopes, thanks to the Copyright Term Extension Act of 1998 "Happy Birthday" will not pass into the public domain until at least 2030.
posted by Tenuki at 6:42 AM on January 18, 2005

Some other things that shouldn't be considered copies:

• Photographs of paintings


• Photographs of photographs


• Cover songs


• Movies based on books


• Books based on movies


• Sampling


• Drawings of drawings (including cartoon characters)

On preview: guess I was wrong about Happy Birthday. Time to hide the evidence! :-)
posted by breath at 6:44 AM on January 18, 2005

My post last week on the guy who wrote about the terrible experience it is to go to the mainstream cinema got me an email from the author. He politely pointed out to me that I was in fact violating the copyright for the article because I copied and pasted the article in the thread. Also, because the Globe and Mail site is now "subscription only," I am breaking copyright by even linking to his article

I was dumbfounded. I replied to him that a) I obviously found it for free the first time, otherwise I couldn't have copied the text and b) print newspapers fundamentally misunderstand the internet.

An article as good as this one generates a lot of discussion and brings a lot of people to the GAM website Tucking the article away means that a few subscribers can
read it - but that's it. I mean, the Globe and Mail isn't alone on this - but its frustrating to see the way that a majority of traditional print has mismanaged their websites.
posted by Quartermass at 6:45 AM on January 18, 2005

Damn Quartermass thats just absurd.
posted by 31d1 at 6:54 AM on January 18, 2005

Hold on Tlog., you're imposing your definition of fair use on someone else's right to protect their product.

My point is no-one is ever going to hold the product in the same light as the creator. Just because its a little rich for your pocket doesn't then mean you can invoke some 'fair use' principle to steal it. It's the market that dictates, if there were a dozen alternatives to "Happy Birthday" you can bet you would be able to use it for a good deal less. Fortunately for the writers and publishers there isn't so lump it or go and create something just as effective (or better still pay someone to create something as effective).

The main crux I can see is that the moaners are claiming it nullifies their creativity where as I see it as a method to get out of being creative. Its lazy. In a utopia it would be different but the reality is, for any one person using Happy Birthday as a supplement to a film there will be 100 others printing up CD's and selling them on ebay or wherever.

An as regards 'Ethically and Legally' - you're wrong. Using 'Happy Birthday' without the owners permission is just simple stealing. I think your culture has been ripping and burning for way too long. Pay the dues. That would be FAIR.

Breath - by singing Happy Birthday we do not infringe the recording right sure enough, but we would be infringing the performing right (unless of course we had permission from the owners), regardless of what atonal expression you or I would care to adopt.
posted by Chunky at 6:54 AM on January 18, 2005

the upshot of this is ... we will only discuss what we can afford to discuss

a perfect system for a plutocracy to adapt, isn't it?
posted by pyramid termite at 7:00 AM on January 18, 2005

adopt ... damn, i need to go to bed
posted by pyramid termite at 7:01 AM on January 18, 2005

So long as America's leading industries are all engaged in the production of intellectual property, there will never be a right to steal it. What's most annoying about the right to steal argument is that delegitimizes the more reasonable arguments, raised by Lessig et al, as to the proper scope and duration of intellectual property.
posted by MattD at 7:05 AM on January 18, 2005

MattD what you find most annoying is the perfect excuse to exentd the scope and duration of intellectual property until the end of space and time. Isn't that a funny coincidence?
posted by WolfDaddy at 7:09 AM on January 18, 2005

Imagine a world where we had magic replication machines. If you wanted a chair, you could just duplicate your neighbor's chair, and you would both have chairs, for free.

Would anyone accept 100+ year restrictions on chair-copying? If so, might I submit that you can't see the forest for the trees?
posted by sonofsamiam at 7:15 AM on January 18, 2005

Oh noes! The hundreds of people printing up CD's of "Happy Birthday" and selling them on Ebay must be stopped now, before it gets out of hand!

As for me, I am hopeful for a day when all possible short melodies are copyrighted and then we will have to be creative and make microtones mainstream or figure out some sort of a diagonal scheme for melodic creation. That would be great for society. Seems pop music is about run through its permutations. Time to bring 12 tone matrices into the teeniebopper lifestyle.

I can also see how society could benefit from creative reinterpretation of historical events. Being able to see it like it was encourages us to stay in our tired ruts of learning from history and we would perhaps be unwilling to take the great risks that makes us so great. And keeping historical footage in the hands of the wealthy may help keep society more orderly and stable. No need for the working masses to be made uncomfortable and forced to think when their benevolent betters can do it for them.
posted by 31d1 at 7:22 AM on January 18, 2005

A problem I have with copyright apologists like Chunky here is that they start from the assumption that when you create something it's like you generated something out of nothing, a pure act of will like the creation of Arda from the thought of Illuvatar.

Every intellectual creation is based on, builds off of, uses directly, and copies from innumerable previous works.

Want to write a science fiction story? Well, people just a few hundred years ago didn't know about the existence of motherfuckin' space! Someone had to tell you about space so that you could write about it. That idea, and every other, is totally copied fomr something else.

It doesn't make sense to create an idea without a firm grounding in the other ideas in your culture at the time. The very idea of copyright is that ideas are only generated from other ideas, and thus there should be a small incentive to share your ideas with the world, so that other people can be inspired by them and thus create more.

By saying that you have the right to control your idea like it was a piece of property, you are claiming the right to prevent others from being inspired by your idea. That's not a fundamental human right, it's tyranny.

Without a copyright law, you the idea maker had two options:

1. Express your idea to the public and let those who cared to copy it do so.


2. Keep your idea hidden in a locked box in your attic, pass it down to your children, and kill anyone who finds it out. I believe Coca-Cola does this with their uncopyrightable recipe.
   

Copyright was developed as a compromise between these two extremes, that there would be some protection for your idea as you tried to make money off of it. It would foster the entreprenurial spirit, as you hastened to take advantage of your ideas while they were protected, and created new ideas as the old ones fell out of copyright. The founding fathers wanted an open society, where no one kept their ideas secret. Only in such a society where ideas were rapidly contributed to the commons could more ideas flourish.

Copyright only makes sense in the context of contributing ideas to the public pool. No one was supposed to be keeping their secrets hidden a la option "2", everything was supposed to take the form of option "1" eventually.

With copyright, the question isn't "do artists have the right to control their idea?" The answer to that question is "no fucking way!" The question is: "does copyright provide enough incentive that people are willing to share the things that they have created with the public, and to invest time and energy in creating more?"

On preview: performance rights are bullshit. Every live performance adds something new to every bit of the performance.
posted by breath at 7:30 AM on January 18, 2005

For the record, Cunky, I buy my music. And I'm right about fair use: it's right there in the law that these uses are legal. But because the law is open to interpretation, those uses are effectively impossible.

And your definition of "stealing" is a little strange. If I break into the neighbor's house and take his stereo, it's stealing -- even if the government collapses and no police exists to enforce the law, it's stealing.

If I release a film containing a birthday scene (or -- let's make this legally airtight -- a film critiquing music) on december 31st, 2029, it's stealing? And releasing the same film the next morning -- that's not stealing anymore?

Frankly, I don't give a shit whether my distant descendents want to charge people to read/listen to my stuff (unlikely in any case, but humor me). They shouldn't be able to do that. It's wrong. Once I get old enough to worry about such things, I'll put a "everything-goes-in-public-domain" clause in my will; but if my computer electrocutes me the instant I push post -- well, I guess the law makes no compensation for bad estate planning.

The world encountered exactly this situation before -- good literature, like first-edition comic books today, was expensive. Dickens was out of reach of the masses because copyright was perpetual, and the owner charged what he could get away with.

Then the crown repealed perpetual copyright and there were celebrations in the streets.

Happy Birthday is a part of our culture. It's sung every year at every kid's birthday. It's wrong to prevent anyone from seeing films that have this in it. It's impoverishing.
posted by Tlogmer at 7:30 AM on January 18, 2005

If you sing along to the radio, are you "copying" the song? No, that's stupid.

If you sing along to the radio, you are not, most likely, charging money for other people to listen to you do it. As soon as you start charging, you are making money off of someone else's work, and you owe royalties.

There are no spies infiltrating birthday parties looking for unauthorized performances of 'happy birthday.' But if you use it in a movie, TV show, or commercial, you pay, just like you do if you use any other song not in the public domain.
posted by bingo at 7:33 AM on January 18, 2005

quartermass: Also, because the Globe and Mail site is now "subscription only," I am breaking copyright by even linking to his article

Like it or not, he's right about the copy-and-paste thing being a violation of copyright.

However, he's wrong about there being a law against linking to stuff. You can link to whatever you want to. In fact, links are the very essence of the www. If you don't want people to view information accessible by a hyperlink, then a) either don't put it there in the first place or b) hide it behind some registration mechanism that makes it impossible to view the info without a proper password etc.

Basically, a link is the equivalent of saying "this book stands in row X, shelf number Y, Z books from the left." Copying and pasting the *content* of the link OTOH is like copying the book and distributing it to all your friends and anyone who asks.
posted by sour cream at 7:34 AM on January 18, 2005

Chunky have you paid the rights holders of the candybar whose registered trademark you seem to have casually appropriated? In addition, the addition of the dimunitive -y would probably not exempt you from claims of infringing upon the rights of the famous film "The G00nies" (o's replaced with 0's to avoid legal problems), which features a character of that same name.

Just curious.

On preview: breath nails it with aplomb.
posted by 31d1 at 7:34 AM on January 18, 2005

I realize that my definition of 'ideas' is pretty vague in my comment here. But basically I am saying that there is no fundamental human right that says that someone else cannot copy verbatim what you have created. Such a right violates that other person's fundamental rights to liberty and the pursuit of happiness.

Copyright exists on the premise that it's OK to violate that other person's rights for just a little while, in a very limited way (e.g. preventing them from performing the one action of copying your work), because that little violation of that person's rights has a much greater social good.

That greater social good is that those pencil-necked content creators will continue to create works without fear of their lunch money being stolen by the copiers, and will very soon contribute their works to the public.

Thanks 31d1
posted by breath at 7:37 AM on January 18, 2005

The whole 'Happy Birthday' nonsense reminds me of a short story (via BoingBoing) on the privatization of Christmas, where one must buy licenses from YuleCo to celebrate Christmas™, and so forth. Which I suppose was the point..
posted by sysinfo at 7:51 AM on January 18, 2005

Lessig gave a talk in July 2002, discussing copyright and issues surrounding it. -Here- you will find various versions of the talk (text, audio and flash.) Although large and long, I recommend the Flash version because it's presentation is quite effective; but I digress. I link this presentation because I find it gives a complete foundation for understanding the topic of copyright.

Other items to explore include CC and some other information at copyright.com

Read all of the above? Good, you find me in favor of copyright and the Creative Commons path but ready to burn Mickey in effigy.
posted by fluffycreature at 7:56 AM on January 18, 2005

I agree with those who think that copyright has been pushed too far by the big media companies. But, it's hard for me to get worked up about it.

If I might compare modern media culture to feces, it would make it easy for me to make my point. I agree that people should be allowed to do whatever they want with feces that they purchase, but I'm not going to enthusiastically lobby for that right.

If you don't think that the vast wasteland of popular culture is worth making copies of then the issue is less urgent then it originally appears. I certainly think that it's not, but I'm sure there are a good number of people who would tend to disagree.
posted by jefeweiss at 7:57 AM on January 18, 2005

Nevermind, Chunky, that the purpose of copyright (in the U.S., anyway) has never been to allow creators to control their ideas, or to extend their 'ownership' of them into perpetuity. To wit, Congress has 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.
posted by Yelling At Nothing at 8:05 AM on January 18, 2005

Breath and others -

Speaking as a "pencil-necked content creator". . .

Wanting to be actually paid for my work is violating someone else's fundamental rights to liberty and the pursuit of happiness? Bullshit. Utter bullshit. Their copying what I've made makes me unhappy just as much as my saying they have to pay me to do it makes them unhappy. That entire argument is ludicrous.

Look, if I make something, I have a right to charge money for it. The entire "copyright is bad" argument really solely rests on the notion that "intellectual" creations are easier to steal. Oddly, I don't find that a compelling argument.

I have no objection to discussions of length of copyright time, fair use, appropriation for collage-style works, etc. But as long as I need to get paid to survive, I'm not going to be too fond of arguments that I should work for nothing.

(Incidentally, 31d1, Chunky doesn't have to pay to appropriate a trademarked name as long as Chunky isn't using it to compete with the candy-bar maker in the same market. That's why you can have both Apple Music and Apple Computers. Trademark is not the same as copyright.)
posted by kyrademon at 8:07 AM on January 18, 2005

Correct me if I'm wrong, but I believe your argument is logically begging the question. Boiled down, it reduces to: "Assuming you have the right to prevent others from copying your song, when they copy it, they're stealing."

I think it's funny that Chunky mentioned the market. Copyright is inherently anti-market in that it grants a full-blown monopoly to the creator. Not a Microsoft-style 85% market-share monopoly, a 100% anticompetitive government-backed monopoly, suitable for indoor and outdoor use. If there was a market in "Happy Birthday", it would be a market for providing the best variation on the notes, the easiest to learn, the most appealing combination of instruments in playing it, the highest-fidelity recording, etc. There would be a bloom. Right now the "market" is some Monty Burns-esque figure looking down over America and sending a goon to every kid's party and restaurant to extract a payment in lollipops.

On preview: jefeweiss, I think this debate extends much farther than "should you be allowed to copy music over eDonkey". It's about how you want your society to work. Do you want to have to police your own creative work to make sure that it doesn't violate some copyright? You might think that should be easy now, but how about in a few hundred years and a few dozen Bono extensions? How about the trend to broaden copyright protection so far that guards at the museum think that copyright protects a painting from being sketched?
posted by breath at 8:12 AM on January 18, 2005

If candy-bars start getting too expensive - I'm there. Liberating the masses from the chains of their oppression.
posted by Chunky at 8:14 AM on January 18, 2005

Copyright arguments are this year's Evolution debates.
posted by Captaintripps at 8:19 AM on January 18, 2005

Wanting to be actually paid for my work is violating someone else's fundamental rights to liberty and the pursuit of happiness? Bullshit. Utter bullshit. Their copying what I've made makes me unhappy just as much as my saying they have to pay me to do it makes them unhappy. That entire argument is ludicrous.

There is a difference between being paid for a certain amount of work and using the government to enforce restrictions on other people's uses of the product produced by that work.
Speaking as a "pencil-necked content creator" in multiple domains.
posted by sonofsamiam at 8:19 AM on January 18, 2005

Look kyra, I like you a lot, but I disagree entirely with the idea that you have the right to charge money for something that you create. That is a whale of a right.

You have the right to endeavour to make money off of the things that you create, insofar as that's a part of your individual liberties to do as you damn well please, but you do not have the right to force people to give you money because of something that they did as part of their own personal liberties. (on preview, sonofsamiam said it more clearly I think)

Your point that intellectual property is just "easier to steal" is also begging the question. Yeah, intellectual property is easier to copy because it's fundamentally different from physical property. Not even the same thing. The name is confusing, deliberately so. But an idea is not a thing.
posted by breath at 8:22 AM on January 18, 2005

That greater social good is that those pencil-necked content creators will continue to create works without fear of their lunch money being stolen by the copiers, and will very soon contribute their works to the public.

Those pencil-necked content creators are responsible for the content coming into being in this world. Without them, it wouldn't exist at all. It's theirs. They have the right to only show it once, to refuse to sell it for under a million dollars, or to spend years creating it and then burn it.

But basically I am saying that there is no fundamental human right that says that someone else cannot copy verbatim what you have created. Such a right violates that other person's fundamental rights to liberty and the pursuit of happiness.

This is so ridiculous that it's a bit stunning. Why is it a denial of someone else's 'pursuit of happiness' to prevent them from stealing your stereo, but it's a denial of your pursuit of happiness to keep you from making money from their art?

On preview:I disagree entirely with the idea that you have the right to charge money for something that you create. That is a whale of a right.


Yes, it certainly is. Quite a whale of a very important right. It would be a little bit more frustrating to read your comments if the law wasn't against you, but there is some comfort in the fact that it is. Otherwise, a lot of artists, already in most cases unable to pay their bills from their work, would be even less motivated to keep creating than they already are.
posted by bingo at 8:26 AM on January 18, 2005

That's why you can have both Apple Music and Apple Computers.

Good example: Apple Music has repeatedly sued Apple Computer over this very issue. If Apple Computer were a small company, not a huge one, it could not afford to defend itself, and there would, in fact, be only Apple Music.
posted by Tlogmer at 8:27 AM on January 18, 2005

Do you ever wonder why when someone has a birthday at a chain restaurant, say for instance TGIF, when the waiters come out singing they are not singing "Happy Birthday"? They do not want to pay a royalty.
posted by caddis at 8:31 AM on January 18, 2005

Look kyra, I like you a lot, but I disagree entirely with the idea that you have the right to charge money for something that you create. That is a whale of a right.

Too bad for you. You had better start working on a constitutional amendment as this right is a constitutional one.
posted by caddis at 8:34 AM on January 18, 2005

Breath - "Copyright is inherently anti-market in that it grants a full-blown monopoly to the creator."

Breath - "Copyright exists on the premise that it's OK to violate that other person's rights for just a little while, in a very limited way (e.g. preventing them from performing the one action of copying your work), because that little violation of that person's rights has a much greater social good."...and ostensively allows someone to make a living.

which is it?
posted by j.p. Hung at 8:35 AM on January 18, 2005

Breath -

Many - even most - things that people do for money are not tangible "things". Data entry is not a "thing". Accounting is not a "thing". But most people would agree that if you do that work for, say, a company, and they do not pay you for it, they're ripping you off. They are using your work, and not giving you any money for it. Just as much as if you made a chair and someone stole it. The work that's put in - an intangible thing - is what's really being ripped off in both cases, rather than the tangible object.

However, most people do not have much use for someone's data entry work, or accounting work. Those are site-specific items unlikely to be stolen by anyone other than the company they're done for. Other kinds of work, however, people have uses for.

When you say "you do not have the right to force people to give you money because of something that they did as part of their own personal liberties" . . . well, I'm not exactly sure why appropriating something someone else worked on, that they did not, is a personal liberty. I don't see why that should be true of taking the work someone put into a chair, and I don't see why that should be true of taking the work someone put into a book.

(On another note, your argument that copyright constitutes a monopoly is as strange as your "pursuit of happiness" one. You have every right to create and promote your own song - just not "Happy Birthday". Sure, someone has a monopoly on "Happy Birthday", but that's kind of like saying Tide Detergent has a monopoly on . . . Tide Detergent. Technically true, but logically meaningless. Anyone who wants can make another kind of detergent.)

Glad to hear you like me, though. What a nice thing to say. :)

On preview - Tlogmer, both trademark law and copyright law are, in my opinion, both frequently abused by large corporations. This doesn't mean either of them are bad ideas. I'd be happy to see means introduced from keeping these laws from being abused.
posted by kyrademon at 8:38 AM on January 18, 2005

*for* keeping these laws from being abused. Feh.
posted by kyrademon at 8:40 AM on January 18, 2005

Hmmm.. I wonder if anyone will open a small art cinema and show only these documentary film makers works without paying a dime in licensing fees. Would be interesting to see their reaction.
posted by dabitch at 8:50 AM on January 18, 2005

I wonder how much in royalties the estate is charging for use of "Happy Birthday"? It must be a lot. It would make more sense if they charged a nominal fee, say a one time charge of $100 for use in a movie. Then it would be used a lot more. By greatly restricting its use, the copyright holders are only encouraging the use of alternatives. Someday "Happy Birthday" may be supplanted by another, catchier tune.

And the extended copyright (which I believe was passed in order to preserve the copyright on Mickey Mouse) is a big mistake. It should be like pharmaceuticals-- 20 or 25 years is more than enough time for the creator to reap the benefits.
posted by Secret Life of Gravy at 8:55 AM on January 18, 2005

Look kyra, I like you a lot, but I disagree entirely with the idea that you have the right to charge money for something that you create. That is a whale of a right.

Sure, because it would be great for our culture if all the writers, artists, playwrights, etc, buggered off to become accountants because they couldn't afford to eat.
posted by biffa at 9:01 AM on January 18, 2005

Let's be clear on this: if I copy something of yours, this is an action that I do on my own, under the protection of my personal liberties. If I see a 2-by-4 of yours and I make an exact replica of that 2-by-4 on my own time and with my own materials and without removing any material from yours, you would not be able to say that I stole that 2-by-4 from you. It's ridiculous on its face.

So by writing down your words, copying your bits, recording your song, etc., I am not stealing from you. I am copying, and in a world absent of copyright we would all be free to do this sort of thing at will.

Now, if you had some value that you derived from the particular 2-by-4 that I copied, I could start to get some value too by copying your 2-by-4 (you know, say there was a Virgin Mary on your lumber and you set up a tourist attraction). That's not stealing, either, it's a market force. If there is some value in providing the service of allowing someone to look at a Virgin Mary in a 2-by-4, then it makes sense to assume that there will be competition for providing the service of showing off 2-by-4s with this sort of pattern. Let he who has the best lighting, shortest lines, and lowest cover charge win.

Now your argument, kyra, rests on the idea that somehow you've guaranteed yourself to be the only source of your particular good the world over, and that the only value of your good is that uniqueness. You have a monopoly on that good.

The intellectual property argument goes something like this: because the copyright holder has a monopoly on their creation, and they're selling copies of it at $X dollars a pop, each time you copy, you're depriving the copyright holder of $X dollars because they're the only source of that creation. That's where they get stealing from.

But this predication on expected earnings, not actual money, and that is where the argument fails. Think about it in terms of physical goods. If I tell you that I'm going to look at the lumber and find a 2-by-4 with a Virgin Mary in it, and then fail to find one, do you claim that I stole a Virgin Mary 2-by-4 from you? Because you had an expectation that I would find one? Get real!

On preview: whew, lots of replies! And just as I'm running out of steam, too.

j.p. hung, are you trying to say that my two statements are in conflict with each other? I don't see that. Please explain.

I don't think the idea of copyright was to enable people to make a living off of their ideas. It's a nice side effect, and I don't want to eliminate this aspect of copyright. I'm sorry if it seems that way, but I'm arguing from first principles here, and from a strict point of view, people don't need to give you money to enable you to live, be free, and happy.

And kyra, the very definition of copyright is that it is a "limited monopoly". I think we are on the same side here, that copyright is a good idea in principle but that it is being abused in today's society.

The whole debate has been skewed such that people talk about the "artist's right to make money" and "stealing someone's property", instead of talking about the public good anymore. The public good has suffered greatly as a result.
posted by breath at 9:03 AM on January 18, 2005

Chunky: An as regards 'Ethically and Legally' - you're wrong. Using 'Happy Birthday' without the owners permission is just simple stealing.

Your login name is too similar to mine and you are free riding on the goodwill I have generated. Please cease and desist this violation of my intellectual property rights.
posted by Chuckles at 9:04 AM on January 18, 2005

I agree, kyrademon. I wasn't trying to argue that copyrights should be abolished altogether (it's an interesting idea, and I'm not sure it would have the effects people say it would, but I wasn't arguing it), just that current copyright law is insane.

Biffa: plenty of accountants are artists after hours. Money has never been the point of art. (Not that getting paid for your work is bad; just that the end of financial incentive to art would hardly be the end of art.)
posted by Tlogmer at 9:06 AM on January 18, 2005

The original term in the US was 14 years plus another 14 year renewal. This document has an interesting history.
posted by caddis at 9:07 AM on January 18, 2005

Just to be super-clear: I don't think it's wrong to be able to make money off of copyrighted things. You're right that if there was no copyright protection that there would be a lot fewer professional content producers. But I don't think that they would disappear entirely, and I don't think that people would stop producing content. It would be an impoverished situation to be sure. But equally impoverished is the situation where every piece of content that is created is controlled forever by the content creator.

There must be a balance, the government has to find the right balance, and I think it's becoming clear that we are tilted towards the impoverished-by-super-control situation.

(right on tlogmer)
posted by breath at 9:10 AM on January 18, 2005

A more sane copyright life and a better defined fair use doctrine would really help.
posted by caddis at 9:15 AM on January 18, 2005

Secret Life of Gravy - as i remember (it was discussed in the documentary The Corporation) the fee is approximately 10,000 dollars.

Can someone explain to me why the human cost of corporate consolidation, layoffs, and outsourcing can be accepted as free market style adjustments, while what seems to be a legitimate "market correction" in intellectual property value due to new infrastructures and technologies for distribution and copying is somehow a reason to legislate the hell out of everything.

On preview: the end of financial incentive to art would hardly be the end of art.

Hear hear! However, it would possible be the end of corporate controlled pop culture. Which would be awful, right?
posted by 31d1 at 9:18 AM on January 18, 2005

To address Kyra's Tide Detergent point: actually, that's very interesting because it's entirely possible that when you go to the store and by "Stop and Shop Detergent" that you are buying exactly the same thing as "Tide Detergent". It's one of the appeals of store brands.

The monopoly copyright grants you is not meaningless. I don't think we'd be having this debate if it was meaningless. It allows you to prevent someone else from doing a few of a set of actions.

For the rest of your comment:
Services are performed under an agreement, which is why you're able to get paid for them. Two people can make an agreement to do anything, and the Government will help to enforce that agreement. Even if it's an agreement to pay someone money for producing something intangible. I don't think that I was ever implying that "intangible -> you shouldn't get any money for it".

I am making the claim that "intangible -> you do not hold property rights over it".
posted by breath at 9:21 AM on January 18, 2005

breath: whew, lots of replies! And just as I'm running out of steam, too.
Shouldn't that be "running out of breath" ?

Here is Lessig's article on how he lost the Supreme Court decision that upheld the copyright term extension which keeps Happy Birthday protected. It gives some real insight into the legal system, as well as copyright law... I probably first found it via this thread.
posted by Chuckles at 9:28 AM on January 18, 2005

Breath -

In spite of your insistence that artistic creations are not objects, you are the one who is arguing precisely as if they are - as if the only thing that has value is the physical, material chunk of words. By that logic, copying would not be stealing, because I would still have my original chunk of words. You would just have another chunk of words just like it - exactly as if it were a two by four.

But the thing is, that isn't what's valuable about the writing at all. Writing takes a certain amount of work to produce. If you cut and paste it, you are reaping the benefits of my labor without having to do any of that work yourself. Therefore, you are stealing my work.

Your analogy about expected earnings therefore falls short. Plenty of theft is of expected earnings - so what? If I dig a ditch for Conglomco, and they don't pay me, all they've robbed me of is expected earnings - they hadn't paid me yet, after all. If I sell inflatable tchochkes, and someone steals one, all they've robbed of is expected earnings - I hadn't sold it yet, after all. Have they not ripped me off?

On preview: We do seem to be, actually, on the same side. However, I find your arguments dangerous. There are no inherent "rights" here on either side - neither to control work forever nor to appropriate it. Talking of the "right" of people to pursue happiness by appropriating work is quite a stretch. If I have a right to be compensated for my labor (itself a point debated by some in the last minimum wage thread), it doesn't necessarily specify exactly how. The real question is, what is fair and just, and therefore what should the law be?

On double preview: No, Tlogmer, I don't make art for the money. The money isn't good enough for that. But that I can do it and not simply starve to death is, shall we say, helpful.
posted by kyrademon at 9:29 AM on January 18, 2005

breath, it is a little difficult to understand your position. On the one hand you say no property rights in intangible creations yet you also say copyright is a good idea in principle. Just where would you draw the line with respect to films, books and music? What should get a copyright, how long should it last and how would you define fair use?
posted by caddis at 9:33 AM on January 18, 2005

breath: Now, if you had some value that you derived from the particular 2-by-4 that I copied, I could start to get some value too by copying your 2-by-4 (you know, say there was a Virgin Mary on your lumber and you set up a tourist attraction). That's not stealing, either, it's a market force.

Your example conveniently sidesteps the involvement of creativity and value created by the original owner. You're also talking about something physical, the copying of which is going to be imperfect, and will involve your own labor. Indeed, if I carve an image into my block of wood and charge people to see it, and you carve a similar image into your block of wood, you too can charge people to see it (as long as you don't tell the audience that they're actually looking at my block of wood).

However, I can't help wondering if your example of the virgin mary is and indication that you don't really think there is any credit to be given to an artist in the first place. Art is not handed down to the artist because the artist is lucky. The artist creates it, and in most cases, if the art is any good, that is a hard thing to do.

I don't think the idea of copyright was to enable people to make a living off of their ideas.

Okay...you're wrong.

I'm sorry if it seems that way, but I'm arguing from first principles here, and from a strict point of view, people don't need to give you money to enable you to live, be free, and happy.

Actually, in a capitalist society, they do. Another way to put it is that you have the right to get paid for your work. That's how people stay alive; they get paid.

The whole debate has been skewed such that people talk about the "artist's right to make money" and "stealing someone's property", instead of talking about the public good anymore. The public good has suffered greatly as a result.

The artist is a member of the public; he/she has rights too. If I create something that would not have existed without my talent and labor, and then I don't release it to the public to do with what they will, then the public is not 'suffering.'

On preview: The monopoly copyright grants you is not meaningless. I don't think we'd be having this debate if it was meaningless. It allows you to prevent someone else from doing a few of a set of actions.

The 'monopoly' that copyright grants you prevents someone else from making money through the use of something that would not have existed if it weren't for your labor.
posted by bingo at 9:34 AM on January 18, 2005

Breath, the more you write, the more you conflict yourself. In your attempts to be super clear, you've only mired yourself in your own argument. Using your framework, one would have to go out and secure a data entry job in order to subsidize their true passion (insert passion here) - something for which they should be able to make a living doing.

"people don't need to give you money to enable you to live, be free, and happy"...how Zen of you. It's a nice thought but it suggests money is not inexorably tied to "living". It is. We can argue all day long about the "value" of money and it's place in our life but to remove it from the equation altogether doesn't work.

Additionally, you're argument also has one other significant flaw; you create the specter that the work of the 'creative producer' is somehow different from mr. data entry guy. They both work to produce a good, service or yes, "idea" that people want and/or need. That has value. To suggest that the creative guy stop whining and let people use his creativity for their own monetary gain is absurd.

Free market? Great...all for it. Anyone can make 2x4's but a Trex 2x4 is rightly protected - at least for a period of time. The technology that created the Trex 2x4 has a value, the product does too, why should Trex not be allowed to mine that resource for a reasonable period of time?

And you don't seriously believe the inception of copyright protection had absolutely nothing to do with money do you?

...I'm starting to think you might be a D.J.
posted by j.p. Hung at 9:37 AM on January 18, 2005

kyrademon: Your analogy about expected earnings therefore falls short. Plenty of theft is of expected earnings - so what? If I dig a ditch for Conglomco, and they don't pay me, all they've robbed me of is expected earnings - they hadn't paid me yet, after all.

You are describing a breach of contract, not theft.
posted by Chuckles at 9:37 AM on January 18, 2005

Biffa: plenty of accountants are artists after hours. Money has never been the point of art. (Not that getting paid for your work is bad; just that the end of financial incentive to art would hardly be the end of art.)

Are we just talking about art? Plenty of people write to make a living, they do well at it and present thoughtful ideas that enrich those who encounter it (or maybe they just produce some throwaway popmusic - copyright covers a lot of stuff), but these people wouldn't do it if they couldn't make some money off it, they'd do something else instead. Even the ones who are in it primarily for the art will have more artistic freedom, greater access to materials and more time if they can make a living rather than having to use resources on something else to subsidise themselves.
posted by biffa at 9:38 AM on January 18, 2005

W.R.T. the argument that you should get paid for your work:

I agree that morally you should get paid for your work. Let's look at copying abstractly, however. If you write a song (e.g. Happy Birthday) and start selling it, and then I copy it, I haven't taken away the money that you made from selling it. I haven't taken away the money that your employer paid you to write Happy Birthday.

The worst case for you is that because I copied Happy Birthday, you cease to make any more money off of it. But that's sort of the extreme. You're probably going to continue making money off of Happy Birthday whether I copy it or not. The real thorny issue is in the amount of money you expected to make.

This is why yhou can't treat "intellectual property" the same way you treat regular property. Regular property has an inherent value. Ideas only have potential value. If you start treating ideas as property you have to contort your thinking all sorts of ways to get that potential value to look like inherent value.

And actually physical property's inherent value isn't real stable either. You buy a house, it has a value of $100,000. Someone builds a car park on the adjacent lot, and the value of your house plummets to $50,000. Did the car park "steal" your $50,000? That's a hard one to argue, as you weren't in possession of that money in the first place, you just had a sort of offhanded belief that if you sold your house, someone might pay you $100,000.

Kyra, your arguments about being paid for digging a ditch, etc., are governed by contracts and agreements. You don't start digging a ditch until Conglomco signs an agreement that they'll pay you such-and-such for your work. The government exists in part to enforce such agreements. When you create content, no one signs such an agreement (in the abstract case).

Caddis: in spite of the name, copyright is not a capital-R Right, is is legislation designed to benefit the public good. All this talk of rights skews the debate. Nobody has any goddamn right to anything! :-)

Maybe you guys mean "moral right" or "ethical right" when you say "right", but when I say "right" I mean "inalienable, God-given, human Right".

I agree that there is the moral right to make money off of your work. That's pretty different from an inalienable right.
posted by breath at 9:39 AM on January 18, 2005

The 'monopoly' that copyright grants you prevents someone else from making money through the use of something that would not have existed if it weren't for your labor.

Does a construction worker or architect get to decide how the building will be used?
posted by sonofsamiam at 10:17 AM on January 18, 2005

However, I can't help wondering if your example of the virgin mary is and indication that you don't really think there is any credit to be given to an artist in the first place. Art is not handed down to the artist because the artist is lucky. The artist creates it, and in most cases, if the art is any good, that is a hard thing to do.

No no, not at all. I just chose that because it was funny. And also I was leaving out how it got to be there in the first place, since all that mattered for the sake of the argument was that it have value somehow.

You're also talking about something physical, the copying of which is going to be imperfect, and will involve your own labor. Indeed, if I carve an image into my block of wood and charge people to see it, and you carve a similar image into your block of wood, you too can charge people to see it (as long as you don't tell the audience that they're actually looking at my block of wood).

Yes, exactly. Copying of any kind involves some labor. Sometimes it's really low, sometimes it's really high.

Okay...you're wrong.

No, you're wrong! :-)

Actually, in a capitalist society, they do. Another way to put it is that you have the right to get paid for your work. That's how people stay alive; they get paid.

It's not an inalienable human right (now that I see that nomenclature is getting all messed up I'll be more explicit). And I don't agree with you that you need to get paid to live. I mean, your standard of living sucks if you're not getting paid, but you don't die. I'm all in favor of the minimum wage and people getting paid for stuff that they do. Morally, the state should help you out. But it's not a right, it's help.

The artist is a member of the public; he/she has rights too. If I create something that would not have existed without my talent and labor, and then I don't release it to the public to do with what they will, then the public is not 'suffering.'

Well, the public does suffer on the whole if everyone does this. It's one dystopian scenario.

The 'monopoly' that copyright grants you prevents someone else from making money through the use of something that would not have existed if it weren't for your labor.

That's a great point, because nowadays I see copyright law used against those who wouldn't use it to make money. I think it sucks big time if you create something and someone else uses it to make money and you don't, but the premise of copyright protection is that this is not a zero-sum game. It's entirely possible that even though they copy you verbatim, and make whackloads of cash off your labor, that even then you'll end up making more money off your labor than you would have if that person had not copied you. That's it in a nutshell, really.

--------

Additionally, you're argument also has one other significant flaw; you create the specter that the work of the 'creative producer' is somehow different from mr. data entry guy. They both work to produce a good, service or yes, "idea" that people want and/or need. That has value. To suggest that the creative guy stop whining and let people use his creativity for their own monetary gain is absurd.

Well, they are quite different in at least one respect. Mr. Data Entry presumably is paid contractually to do his thing. For the sake of the argument, let's say that the artist is not paid contractually. That's pretty different right there.

I don't think that the creative guy needs to "stop whining", I just want people to see that it benefits everyone if creators are incented to create work with money, but that this incentive is not an inalienable human right, nor is the work thus generated physical property. The debate is about the incentive, not about rights, not about stealing. Incentive to create.

Did we break Metafilter?
posted by breath at 10:20 AM on January 18, 2005

breath: I want to thank you for articulating my views nicely. The idea that copyright infringement == theft is, in descending order: wrong, ignorant of the principles the laws' orginators, and evil in the way it seeks to appeal to inapropriate morals.

As others have described, it is important to consider the principles under which Copyright was formed before making moral judgements about peoples' behaviour. Namely:

1) The ultimate goal is the creation of ideas for society's benefit
2) Society some cedes rights to creators to the extent that they have the means to continue creating
3) In return, society expects "fair use", and eventual "public" use of the work.

Keeping these principles foremost, it's difficult to muster the kind of moral outrage bingo wants to instill, when we've already:

- given creators more control over use of their work than ever, with legally shrinking fair-use definitions
- given creators longer terms of exclusivity than ever by an order of magnitude!
- gotten back no concessions, despite the cost of producing an idea being MUCH cheaper than ever before.

Caddis: Yes, I think it is time we work on a constitutional amendment to better shift the balance. (ignore, for the moment I'm Canadian, and would prefer to see this discussed on an international level). There are plenty of motivated people working to that end. I remain pessimistic, however, as monopolies are frequently too rich and powerful to overthrow.
posted by Popular Ethics at 10:25 AM on January 18, 2005

breath: And actually physical property's inherent value isn't real stable either. ... you just had a sort of offhanded belief that if you sold your house, someone might pay you $100,000.

Not to derail too far, but this is happening right now in Ontario because of the greenbelt plan (just a google link). A lot of farmers thought they would be able to retire on the money they thought developers would give them.

sonofsamiam: Does a construction worker or architect get to decide how the building will be used?

The simple answer is the obvious one, of course, which is no. But are we talking about an ideal world? What do you mean by "get to decide"? How does this relate to the conversation?

I would say that in a properly functioning community they would have some reasonable degree of influence. An attempt to code that influence as a right, in law, would be futile, of course.
posted by Chuckles at 10:27 AM on January 18, 2005

Shakespeare didn't write more than two original stories. I'm not saying he couldn't have, just that he didn't. Eliminating "The Tempest" and (if I recall correctly) parts of "Midsummer Night's Dream," everything else was based on an existing story - some were even based on plays that were still being produced.

Got to wonder what the history of English literature would be like if he'd had to deal with copyright laws.
posted by Joey Michaels at 10:32 AM on January 18, 2005

Chucky: My point is no-one is ever going to hold the product in the same light as the creator. Just because its a little rich for your pocket doesn't then mean you can invoke some 'fair use' principle to steal it.

Actually, in some cases you can. "Fair use" is one of the exceptions to copyright protection written into law. As an example, I'm using the fair use rights provided by law to quote your text, in order to provide critical context for my response.

kyrademon: Look, if I make something, I have a right to charge money for it. The entire "copyright is bad" argument really solely rests on the notion that "intellectual" creations are easier to steal. Oddly, I don't find that a compelling argument.

What is being argued is that current interpretations of copyright law and recent revisions to copyright law have shifted the intended balance away from promoting useful arts and innovation, towards something that in the long run might harm our culture as more and more works of historical interest become locked up. Which is the point of the linked article. The way copyright is defined currently is great if your form of innovation involves purchasing the rights to a 70s cartoon and making it into a live-action movie. It is less great if you are a historian who wants to tell the story of the civil rights movement using archived news footage and readings from newspaper articles.

caddis: Too bad for you. You had better start working on a constitutional amendment as this right is a constitutional one.

No, actually what the constitution says is that congress has the right to set up copyright and patent legislation.

bingo: No, the original idea of copyright was most certainly NOT to enable people to make a living off of their ideas. Read the U.S. Constitution, Section I, Article 8, Clause 8. The purpose of copyright is "To promote the Progress of Science and useful Arts". Copright is the means, but only for a limited time.

To this end, copyright laws recognize a number of exceptions to copyright: libraries can loan copies of your work, exerpts can be quoted for criticism, portions of the work can be copied for educational use, the entire work can be copied for archival and personal use.

There is no reason why, to combat the increasing expansion of copyright that we can't as a culture decide to set different limits on copyright, or create different incentives. We could decide that documentary footage of events that take place in public settings should be held to a different standard than footage from feature films. We could go back to a registration-renewal system that would provide an incentive for letting materials that are not profitable lapse into public domain. We could exercise something akin to imminent domain and decide that just as we have National Parks and National Forests, that we should have National Artworks in the public domain.

And then there is the other side of copyright law as it currently exists. Copyright law is currently a game of legal chicken with the use of cease and desist orders making the exercise of legal fair use impractical. Schools don't have the resources to defend their fair use rights against predatory publishers and something needs to be done legally to protect fair use.
posted by KirkJobSluder at 10:33 AM on January 18, 2005

Nobody has any goddamn right to anything!

You will get a right to a fair trial when you get caught violating the criminal portions of the copyright statute.
posted by caddis at 10:36 AM on January 18, 2005

Joey Michaels: Shakespeare didn't write more than two original stories. I'm not saying he couldn't have, just that he didn't. Eliminating "The Tempest" and (if I recall correctly) parts of "Midsummer Night's Dream," everything else was based on an existing story - some were even based on plays that were still being produced.

It's not just that. Quite a bit of the music from the golden age of Hollywood, including musical works that were at the corner stone of early Disney successes, are derivatives that couldn't be done using current copyright law.
posted by KirkJobSluder at 10:37 AM on January 18, 2005

Free market? Great...all for it. Anyone can make 2x4's but a Trex 2x4 is rightly protected - at least for a period of time. The technology that created the Trex 2x4 has a value, the product does too, why should Trex not be allowed to mine that resource for a reasonable period of time?

I think the key phrases here are "allowed" and "reasonable period of time". Absolutely. This is what copyright is for. It's to everyone's benefit if Trex is allowed to exploit their technology for some time.

Where we are going in terms of copyright is a place where Trex controls their 2-by-4 technology forever, allowing them not only to make money off of it, but also to prevent people from learning from it, or even using the 2-by-4s in ways that Trex doesn't like.

All of that power will be handed to Trex on the platter of talk about rights. It will be their right to make money off of each trivial derivative of their original technology. It will be their right to limit the way people can use their 2-by-4s because if someone's house fell down, then Trex might lose some sales, and we all know that it's their right to make money off their work....

I know I'm being pretty hysterical on the slippery slope argument here. But all the nomenclature surrounding copyright is totally incrorrect at this point (note that this is Lessig's point as well).

It is well and good that creators get paid for their work, but it is not an inalienable human right. Creative work is not a zero-sum game, thus it cannot be treated with the same rules that govern physical property, which is a zero-sum system.

Nice comments KJS, PE. Very precisely articulated.
posted by breath at 10:40 AM on January 18, 2005

"It's entirely possible that even though they copy you verbatim, and make whackloads of cash off your labor, that even then you'll end up making more money off your labor than you would have if that person had not copied you. That's it in a nutshell, really."

Wow..the trickle down intellectual rights non-protection theory. I'm astounded you think this is reasonable.

You are a DJ aren't you?
posted by j.p. Hung at 10:40 AM on January 18, 2005

For the record Breath, I'm not in favor of perpetual copyrights either.
posted by j.p. Hung at 10:41 AM on January 18, 2005

You will get a right to a fair trial when you get caught violating the criminal portions of the copyright statute.

Man, you didn't even quote my smiley face! Don't make me C&D your ass for copying the fruits of my labor for the purpose of making a point that would have been impossible without my hard work! :-)

Not that this is over yet, but I've had a great time so far in this discussion. You all are very intelligent and eloquent.

j.p. Hung, you're not really making an argument, you're just sort of farting at me. Make the case that ideas don't enrich and inspire other ideas.

I'm not a DJ, I'm an aspiring game programmer, i.e., content producer.
posted by breath at 10:47 AM on January 18, 2005

OK, I guess I mean "everyone except j.p. Hung is very intelligent and eloquent".
posted by breath at 10:48 AM on January 18, 2005

j.p. Hung is intelligent, though not eloquent. I suppose I am too. It is so hard to say what you mean!
posted by breath at 10:51 AM on January 18, 2005

Does a construction worker or architect get to decide how the building will be used?

They do if they own it. Otherwise, the person who owns the building gets to decide, and the architect and the construction worker get paid a specific sum of money up front. Sometimes art is created like that too, i.e. a patron commissions a painter to create a work of art, it's paid for in advance, and that's the end of it. Similarly, if a screenwriter writes a script and sells it to Paramount, then they get a certain amount of money for it, and (most of the time) that's that. In all cases, the building, the painting, and the script, the buyer has purchased not just the piece of art itself but the right to use it to make money.

Now, what if the architect labors alone in his basement, with no employer and no promise of money? All he can produce is his blueprints, and he owns those. He gets to decide how they can be used. One choice he has in that regard is the choice to sell the use of those blueprints to the highest bidder, and after that (unless conditions are included in the sale), he doesn't own them anymore.

And also I was leaving out how it got to be there in the first place, since all that mattered for the sake of the argument was that it have value somehow.

But, in fact, that's not all that matters. The value didn't just get there 'somehow,' it got there because someone put it there. That person did not have to create the value.

And I don't agree with you that you need to get paid to live. I mean, your standard of living sucks if you're not getting paid, but you don't die.

Actually, you will. That's what happens when you don't have money to pay for food, clothing, and shelter. You die.

I'm all in favor of the minimum wage and people getting paid for stuff that they do. Morally, the state should help you out. But it's not a right, it's help.


Minimum wage?! Help from the state?! What do either of those things have to do with this argument? Artists don't get mimimum wage. They work in the hope that their stuff will sell. Minimum wages for artists are nothing. And, unless you get a grant (read: you have already proved your worth somehow, probably at your own expense), you are not getting aid from the state, at least not in the U.S.

Well, the public does suffer on the whole if everyone does this. It's one dystopian scenario.


You have your own special definition of 'dystopian,' then. I don't even know what you might be talking about.

It's entirely possible that even though they copy you verbatim, and make whackloads of cash off your labor, that even then you'll end up making more money off your labor than you would have if that person had not copied you. That's it in a nutshell, really.

Not even close. The copier does not have the freedom to make the artist take that risk.

Popular Ethics: Keeping these principles foremost, it's difficult to muster the kind of moral outrage bingo wants to instill, when we've already:...


Indeed, my 'moral outrage' is at the idea of changing things. The way things are now is pretty good (in the U.S.). Although, this:

- gotten back no concessions, despite the cost of producing an idea being MUCH cheaper than ever before.


...is ridiculous. The concept or 'producing an idea' is so vague that it's hard to know what you're even talking about, but I think you mean 'taking an idea from its conception to a marketable product,' in which case, you're talking about something impossible to quantify. It also depends on the medium and the artistic process.

Kirkjobsluder: bingo: No, the original idea of copyright was most certainly NOT to enable people to make a living off of their ideas. Read the U.S. Constitution, Section I, Article 8, Clause 8. The purpose of copyright is "To promote the Progress of Science and useful Arts". Copright is the means, but only for a limited time.

To me, it's implicit that said clause also means "...by allowing the artists and scientists to be motivated to go about their artistic and scientific pursuits to begin with."

For the record, I'm not in favor of perpetual copyright. The lifetime of the artist is fine. We make decisions about the fruits of our own labor, but when we're gone, ceding the rights to our heirs, who did not create them, is not necessary. But then, the same argument could be applied to other kinds of property.
posted by bingo at 10:56 AM on January 18, 2005

I basically agree with Lessig's argument that, while attribution may be something like a fundamental right, copyright is not. And it has gone too far to one extreme.

Obviously we want to have copyrights and patents, so that creators can make money. However, creation does not exist in a vacuum, and therefore too much copyright restricts creation. What we have now is a system that allows content creator's great-grandchildren to profit at the expense of people who want to comment on or incorporate something part of the culture of the past century.
posted by dagnyscott at 11:00 AM on January 18, 2005

Sure, because it would be great for our culture if all the writers, artists, playwrights, etc, buggered off to become accountants because they couldn't afford to eat.
posted by biffa at 11:01 AM CST on January 18

I hear this a lot, and I would like someone to explain to me how copyright guarantees artists a right to eat. Great artists in both the past and present frequently barely get by, but they continue to produce because it's what they need to do. Can you tell me a system in which people who don't really make music as much as they allow themselves to be engineered into a "great act" make millions while genuine, creative, original artists continue to starve is really working? I'm not saying that they're aren't exceptions in both directions, I'm just saying copyright does not dolve this problem.

Accounting is not a "thing". But most people would agree that if you do that work for, say, a company, and they do not pay you for it, they're ripping you off. They are using your work, and not giving you any money for it.
posted by kyrademon at 10:38 AM CST on January 18

Accountants don't have a "right" to be paid for doing accounting work, that's why they have contractual agreements with the company to get paid, which should also work for artists, no? Furthermore, copyright is like saying that any time your accounting data is used in the future, you are also paid. Say you're filling out a tax form and copying over the data that the accountant gathered. Wait, did I just say copy? Copy the accountant's work? That's another $1,000. I mean, you worked hard on that data, why should a company be able to steal the benefits of that work from you? BTW, does anyone happen to know why this isn't the case? Things are copyrighted by default these days, so is there a clause in my employment agreement or something? Or can I take someone to court for forwarding that memo I sent out earlier?

Why shouldn't recipes be copyrighted, someone worked hard on those, too?

I don't think there's going to be an easy solution to this, but I think just allowing people to copyright works would make sense. For instance, you could copyright an album, but not the content used to create it. People couldn't copy your album, but they could re-use work from it in another form, so long as it was easily distinguishable from the original work. I think fans would almost always get the legitimate, supports-the-artists, real release. You could even do limited releases and also stimulate a market for trading/collecting various versions and releases.

Somewhat OT, here's some amusing examples of creativity getting past copyright, in the Upright Citizens Brigade, notice in the episode where the big red cat sings the mini-movies, he has a weird version of "Happy Birthday"? Couldn't get the rights. And in the coffeehouse scene, when Colby keeps putting people on her gay list, Antoine is wearing a grey shirt with a drawing of the chicago bulls logo on it because they couldn't use the real thing.
posted by nTeleKy at 11:02 AM on January 18, 2005

In regards to the 2x4 example, there is a good reason why patent law exists for a limited time. If sitting on the rights to an innovation in perpetuity is necessary for you to make a living, then perhaps you should not be in that business.

In addition, I think copyright is also out of control with the definition of "derivative works." A 9-note musical phrase from one pop song and echoed in a different pop song should not be a "derivative work."

j. p. Hung: Wow..the trickle down intellectual rights non-protection theory. I'm astounded you think this is reasonable.

Well, that particular scenario is perhaps not reasonable. But on the other hand, there are industries where early experimenters in releasing works under very liberal licenses have fared quite well. Some publishers have found that people will still buy dead-tree copies even when electronic copies are available. Likewise, it does not seem that recording-friendly musical artists are hurting that much from legal file trading of their concerts.

And then, there are economies that are not dependent on royalties. For example, in academia there is very little advantage to copyright protection of research reports, because in a patronage economy reputation is more valuable than getting three cents every time your work is read.

Another issue surrounds "derivative works." I would suggest that there are quite a few examples out there of companies that have done quite well an building a sub-culture by turning a blind eye to most derivative works by fans.
posted by KirkJobSluder at 11:05 AM on January 18, 2005

For reference, here's a nice, concise history of US copyright law.
posted by goatdog at 11:10 AM on January 18, 2005

bingo : Otherwise, a lot of artists, already in most cases unable to pay their bills from their work, would be even less motivated to keep creating than they already are.

as someone who has made a choice , living in a society that is structured around the values around which our society is structured, to direct my labor towards activities which implicitly privilege different values (i.e. i also do creative work), this seemingly ubiquitous argument is a source of immense frustration to me.

yes. our lives would be bland and meaningless if it weren't for the labor of those who create art and literature and scholarship. that does not, however, mean that our lives would be bland and meaningless if YOU didn't create art and ltierature or scholarship.

what is tragic about this whole argument is that it presupposes that artifacts of culture are (and should be) commodities. 'artist' becomes a professional monicker. in the same way that we identify ourselves by the activity which earns us a living, one can be an 'artist' like one can be a 'doctor' or a 'cobbler' or an 'editor'. but if it's about producing commodities, you are really an 'artisan' and the value of your products will be determined by the market -- and, insofar as it is the funciton of government, partially, to see that the market operates according to certain principles, your right to the proceeds from your work should be protected.

but if you're going to have the pretense and luxury to call what you do 'art' -- and maintain, throughout your obscurity, the unrealized value of your product in spite of the market's refusal to validate your cliam -- then the value of the product is necessarily determined according to something nonmaterial.

which, i might add, is fantastic. it's the only hope for our humanity in a cold hard violent unjust world.

but that hope is shackled by the indulgent claims of artists who exclaim the difficulty of their 'professional' lives and expect sympathy from those who are creating stuff that sells.
posted by milkman at 11:11 AM on January 18, 2005

Say you're filling out a tax form and copying over the data that the accountant gathered. Wait, did I just say copy? Copy the accountant's work? That's another $1,000. I mean, you worked hard on that data, why should a company be able to steal the benefits of that work from you? BTW, does anyone happen to know why this isn't the case?

Sure. It's because the accountant's work was just for you, and you're copying it for personal use, in exactly the same context that it was meant to be used, and other people are not benefitting from it, just you, and you're the one who paid the accountant.

Why shouldn't recipes be copyrighted, someone worked hard on those, too?

They certainly can be, and they very often are.

I would suggest that there are quite a few examples out there of companies that have done quite well an building a sub-culture by turning a blind eye to most derivative works by fans.

In most cases, those fans aren't trying to make money from the derivative works, so there really isn't an issue. As soon as the fans start asking for money they tend to either get shut down or co-opted by the organization whose rights they might otherwise be infringing upon, e.g. the kid who runs 'Star Wars Insider' magazine used to be a fan violating copyright, and instead of getting sued, he got hired. But he was lucky.
posted by bingo at 11:12 AM on January 18, 2005

I agree that morally you should get paid for your work. Let's look at copying abstractly, however. If you write a song (e.g. Happy Birthday) and start selling it, and then I copy it, I haven't taken away the money that you made from selling it. I haven't taken away the money that your employer paid you to write Happy Birthday.

Well, if my employer is a publishing company and they pay me for my work with the idea of selling it on at a profit - taking on board the risk that it won't make a return - then once its in the public domain it starts getting handed around for free, pretty soon the publishing companies won't be in business. Pretty soon they won't be publishing my books (or anybody else's) and I won't be able to sell my next product. Pretty soon being a writer doesn't pay the bills and I have to turn to accountancy or shit shovelling or whatever.

As bingo is inferring (I would suggest), the issue isn't whether you have copyright protection or not, it is so obviously apparent that the economic incentives of some copyright protection are essential to the continued production of new intellectual artifacts that any argument against them is ludicrous. The issue here is the extent of that copyright protection. How far should it extend to offer both incentive to the creator whilst also minimising the interference of new intellectual production? Essentially it is a question of regulation.

nTeleKy: Well if you quote my whole statement you will note that I specifically generalise away from the area of great art, since most of what is created isn't great art, but by the by, how exactly do you know what could have been great but which never happened because the artist couldnt't afford to go into artistic creation? Having said that I was quite sepcifically refering to the fact that the vast majority of intellectual creation isn't great art, and why not? Because that's not what people want; they want trashy (and not so trashy) novels, Paul W.S. Anderson films and Jack Vettriano prints and everything else between them and great art. The people who provide them need some protection too.
posted by biffa at 11:12 AM on January 18, 2005

it is also worth pointing out that the 'property' which is being restricted in the example on the FPP could hardly be considered 'art'. it's footage of social and political events which were created, i presume, with intentions far different from generating profit from future use..
posted by milkman at 11:13 AM on January 18, 2005

Bingo, you first said this:

The way things are now is pretty good (in the U.S.).

and then said this:

For the record, I'm not in favor of perpetual copyright. The lifetime of the artist is fine.

Perhaps you are uninformed about the way things are? Although I think the lifetime of the creator is a little restrictive, and a little too simple, that kind of relaxation of copyright would make me very happy indeed.

(Note: Too simple because if we accept the economic reward arguments we have to consider that a dead creator might have legal dependants that need at least some transitional support too. Too restrictive because I think that the 14 + 14 concept of those old yanks is really much more sensible.)
posted by Chuckles at 11:14 AM on January 18, 2005

Actually, you will. That's what happens when you don't have money to pay for food, clothing, and shelter. You die.

Not to keep wrangling over such a pointless point, but no, really, you don't die. Not that I have any experience either wa so I'm talking out my ass basically here. You can get shelter, food, and clothing by means other than by money. Assuming you aren't working for any of them you can rely on charity, subsistence farming/living off the land, or trash.

You're pretty focused on money. You even admit that the system works pretty well for you. But it has definitely changed drastically in the last 20 years. Maybe you haven't felt the effects of those changes yet, maybe you never will. But I believe that those changes are basically paving the way for the USA as it is now to be obliterated in the next 100 years.

To me, it's implicit that said clause also means "...by allowing the artists and scientists to be motivated to go about their artistic and scientific pursuits to begin with."

It's not explicit though, and I think the founders were pretty conscientious about explicitly saying things they believed in. Not that I disagree with you that it's implied. But because it's impied and not explicit we can have this debate about what exactly is implied there. You and others seem to think that it implies that "if you create something, you should get paid for it", whereas I think that it implies merely "if you create something, you are allowed to make money off of it".

I'm pretty sure the law makes an explicit statement that recipes can't be copied, though.
posted by breath at 11:17 AM on January 18, 2005

um...milkman...this is another one of those cases where my only indication that we're in disagreement is that you say we are.

yes. our lives would be bland and meaningless if it weren't for the labor of those who create art and literature and scholarship. that does not, however, mean that our lives would be bland and meaningless if YOU didn't create art and ltierature or scholarship.

This is true, of course. But I don't think I was saying anything to the contrary. And I'm certainly not suggesting that artists be subsidized just for being artists, regardless of the quality of, or demand for, their work.

Chuckles: Well, that's what I meant by 'pretty good.' :)
posted by bingo at 11:18 AM on January 18, 2005

Well, if my employer is a publishing company and they pay me for my work with the idea of selling it on at a profit - taking on board the risk that it won't make a return - then once its in the public domain it starts getting handed around for free, pretty soon the publishing companies won't be in business. Pretty soon they won't be publishing my books (or anybody else's) and I won't be able to sell my next product. Pretty soon being a writer doesn't pay the bills and I have to turn to accountancy or shit shovelling or whatever.

You're taking a specific, contrived, case and generalizing from it. Yeah, if your business model is based around holding a limited monopoly on something and you're put in a situation where you don't have that sort of monopoly any more, you do get fucked.

Look at the behavior of software companies and other content producers in asia, where copying is totally widespread and quasi-legit. They're still making some money. Not festering shitloads of cash like they do in the US, but enough. If your business model takes the copying into account, you can do OK.
posted by breath at 11:23 AM on January 18, 2005

You can copyright the recipe itself so that someone else cannot publish that same recipe, but that does not prevent someone from following the recipe, even if that someone is a restaurant.
posted by caddis at 11:31 AM on January 18, 2005

breath: Look at the behavior of software companies and other content producers in asia, where copying is totally widespread and quasi-legit. They're still making some money. Not festering shitloads of cash like they do in the US, but enough. If your business model takes the copying into account, you can do OK.

I think this is well put, but it is actually much worse. The software companies, for example, have variably tolerated copying, or attacked it, depending on their position in the marketplace. They know that if they need to grab market share allowing copying is a good way to encourage use.

Basically, the rights holding corporations have always been disingenuous about their interest in intellectual property protections.
posted by Chuckles at 11:33 AM on January 18, 2005

You can copyright the recipe itself so that someone else cannot publish that same recipe, but that does not prevent someone from following the recipe, even if that someone is a restaurant.

From here:

Recipe copyright is a tricky definition. You cannot copyright a list of ingredients - this is considered a scientific formula. You can copyright the prose that accompanies a recipe as long as it is not considered "typical" in describing the procedures required to complete the recipe.

So yeah, insofar as your mixing instructions are a short story you can copyright that part. But in the sense we're talking about, no copyright on recipes.
posted by breath at 11:36 AM on January 18, 2005

Wow. This is possibly one of the most passionate arguments I've ever seen in which practically everyone on both sides was arguing in favor of the exact same thing.

Honestly, it's beginning to degrade into nitpicking, and arguing against things no one ever said. Yes, there's a difference between retaining ownership of rights and performing a work-for-hire (and yes, nTeleKy, most companies as a matter of course have in their contracts that any work you do for them is by definition a work for hire.) They're two different ways of compensating someone for labor - there are others, too - and no one ever said they were they same, and no one thinks they are the same, and no one is arguing that each may be appropriate in different situations. They were being used to make a completely different point.

The difference between theft and breach of contract is also an argument against things no one ever said, and not a particularly important point. Yes, they're somewhat different concepts; no, they're not really all that different in many ways. There are contracts specific to certain situations, and general legal and social contracts which automatically apply. So?

Everyone is arguing that copyright, like patents, should exist, but only for a limited time. The first period so the creator can make some money (whether that's the purpose of the original law or simply the best way to do it), the second so that it can be used without restriction to benefit society as a whole. NO ONE is arguing that copyright is a perpetual, inalienable human right.

The only reason I'm arguing at all is that some of the points made by the other side, if taken to their logical conclusion, would result in the elimination of copyright as a concept entirely. I think that's a bad thing, and I think their arguments are flawed, so I'm arguing against them. But they don't even want to eliminate copyright - I just think they're making bad arguments for their case, which is preventing the misuse of copyright, something I'm all for.

It's interesting, by the way, that Shakespeare was brought up. Yes, he appropriated a lot of his ideas. He also lived in constant fear that his work would be stolen without his consent (as it sometimes was, a frequent practice in pre-copyright days), so his work was never published while he was alive. The result is that pretty much everything we have of his is corrupted in some way or another, and no one is completely sure exactly what he intended in many cases, a source of constant frustration to directors and historians. Of course, his works wouldn't have existed at all had he not been able to adapt from other sources. An argument for extant but limited copyright protection if ever I heard one.
posted by kyrademon at 11:36 AM on January 18, 2005

Actually, I'm arguing against the nomenclature used to describe copyright protections as a "right" to "property". The correct way to say it is that the government "grants" you a "limited monopoly".
posted by breath at 11:42 AM on January 18, 2005

The Wooster Group's Route 1 & 9 caused a big copyright battle with Arthur Miller about their use of The Crucible. It's a really good story of how copyright restrictions ultimately drove a derivative work to become something far better -- without losing its relationship to the original. Here's an abstract of a good article about it . if anyone can find a link to the actual article, great.
posted by milkman at 11:42 AM on January 18, 2005

"Make the case that ideas don't enrich and inspire other ideas"

Breath, forgive my lack of eloquence. I'll take the point deduction for that. I don't think anything I've said indicates my position is that ideas don't enrich and inspire. Of course they do. My point is you should be reasonably protected for those ideas. I'm not really sure where you stand on this as you've supported intellectual "rights" while suggesting people should be allowed to use the content of others for whatever gain they see fit. I'm just not 100% on your position. As a game producer, I would think this would be an important issue for you. You may make a great game but someone may market it a hell of a lot better than you. They have an area of expertise...marketing, you have an area of expertise...producing games. Does it strike you as fair that they should take your game you spent months working on, market it successfully, make millions while you are unable to get your version (which would be the same) out on the streets? You make the supposition that their great marketing might eventually reap you some reward but no one can count on that. I can't believe you would be ok with that.

Q: "Can you tell me a system in which people who don't really make music as much as they allow themselves to be engineered into a "great act" make millions while genuine, creative, original artists continue to starve is really working?"

A: The American Democracy

Look, I hate Ashlee Simpson as much as the next person and yeah, it kills me that the musicians making 'real' music are typically not making much of anything. Copyrights can't protect you from the bad taste many Americans seem to have. And yeah, your right, no easy solution. But in the end, people are making money and the industry is doing fine, despite the shit music being put out on the airwaves.
posted by j.p. Hung at 11:42 AM on January 18, 2005

And, in a despirate attempt to talk about the linked article. Isn't there something odd going on when an acclaimed documentary about the Civil Rights protests goes out of print, not due to lack of interest, but because the rights to the original footage are too expensive to renew? Is it really a good thing that a film that was legal to publish 10 years ago, is now illegal to publish?

biffa: Well, if my employer is a publishing company and they pay me for my work with the idea of selling it on at a profit - taking on board the risk that it won't make a return - then once its in the public domain it starts getting handed around for free, pretty soon the publishing companies won't be in business.

Publishing companies seem to do a fair amount of trade in public domain works. After all, Twain, Shakespeare, and Shelly are still in print.

milkman: it is also worth pointing out that the 'property' which is being restricted in the example on the FPP could hardly be considered 'art'. it's footage of social and political events which were created, i presume, with intentions far different from generating profit from future use..

In fact, the Supreme Court agreed with the argument that the vast majority of works covered by the copyright extension are not commercially viable. What we have is a century of history that is threatened. There are reels and reels of footage vanishing due to legal limbo regarding ownership. There are tons of periodical works falling apart because in our legal environment, copying to microfilm or pdf is risky.

Another point. Why is it that I can quote paragraphs from a written work, but I can't sample 30 seconds from an audio work, or show 30 seconds from a visual work. There is a point here where copyright is on the virge of stomping over freedom of political speech. And that really really bothers me.
posted by KirkJobSluder at 11:43 AM on January 18, 2005

Breath - The correct way to say it is that the government "grants" you a "limited monopoly"

and so long as there are protections afforded and a means of retribution as a result of the government doing such, I couldn't agree with you more.
posted by j.p. Hung at 11:45 AM on January 18, 2005

bingo: "In all cases, the building, the painting, and the script, the buyer has purchased not just the piece of art itself but the right to use it to make money."

Yes, that's all very true. Where you and I seem to disagree is not how copyright law works now, but how it should work, based on its founding ideals

I think you mean 'taking an idea from its conception to a marketable product,' in which case, you're talking about something impossible to quantify. It also depends on the medium and the artistic process.

Granted I'm talking in vague terms, but so are culture, rights and morality. (I can't be more specific since you haven't volunteered your media of choice). It costs less today to produce and distribute a building/painting/script than it did a hundred years ago, and therefore one requires less incentive to do so. Despite this, society has given more of its rights to artists than ever. (This is an argument about rights, not one about property).

The linked article makes a good case that the legal status quo is now acting as a bigger barrier to content creation than the bariers it was meant to overcome. I have read articles that say the same laws are now preventing scientific work from being reviewed. There is indeed a pressing need for change.
posted by Popular Ethics at 11:45 AM on January 18, 2005

What exactly is wrong with copyright lasting for a max of 17 years?
posted by 31d1 at 11:55 AM on January 18, 2005