Why should someone get to profit from something they did fifty years ago
February 3, 2014 11:50 AM Subscribe

"So why should a singer get to profit from a recording of his doing some work thirty-five years ago? The answer “because it’s his song” just isn’t good enough. It was PC Ironburns’ arrest. “But creating that song may have taken years!” PC Ironburns spent years investigating the crimes before he caught that pesky crim! The electrician had to study for years to become proficient enough to rig up lighting. The doctor spent seven years in medical school! Imagine if this system we wholly accept from creative industries were accepted elsewhere – the ensuing chaos would be extraordianry. Take Broussard’s claim above, that “Creatives have a right to be paid indefinitely on their work”, and switch out “Creatives” for any other job. “Dentists”, “teachers”, “librarians”, “palaeontologists”… It starts to appear a little ludicrous." -- Rock Paper Shotgun's John Walker on copyright and the need for videogames to enter the public domain.
posted by MartinWisse (235 comments total) 39 users marked this as a favorite

I think the best approach here is to address the most frequent questions directly:

People need a financial incentive to create. If you take that away, it will harm creativity.

I think this argument is so astronomically false that my hat flies clean off my head when I read it. It’s so ghastly, so gruesomely inaccurate, such a wretched perspective of humans – these wonderful creatures so extraordinarily bursting with creative potential – and it makes me want to weep.

John is a smart and lovely guy, but If I wanted to hear another "creative people don't need to get paid" argument I'd listen to pirates wanking on about how awesome pirates are.

Likely to be a popular article here though.
posted by Artw at 12:03 PM on February 3, 2014 [46 favorites]

I think this argument is so astronomically false that my hat flies clean off my head when I read it.

"Oh, and the air conditioner will be fixed this afternoon."
posted by EmGeeJay at 12:05 PM on February 3, 2014 [8 favorites]

He's just talking about shortening the copyright period. Though as someone says in the comments about the quote from the Duke Nukem Forever guy:

Would be a bit of a weird situation for Broussard, seeing his game ideas entering the public domain before the actual game’s released.
posted by Sebmojo at 12:07 PM on February 3, 2014 [11 favorites]

Copyright is an extremely blunt instrument wielded to enforce the rent seeking that would be theoretically necessary for those who are experts in artistic creation to retain their field and not enter something more profitable. Where the marginal cost to duplicate is fixed or even zero where is the incentive to create if society does not give something back to the creator?

The problem is with video games their impact on our shared cultured heritage is somewhat more esoteric. Games, as much as retro video game fans will tell you otherwise, can become obsolete. Nobody really would pay even 99c for Teddy Boy or Fantasy Zone even if they remembered what the hell those games actually are.

This is further complicated by the fact that timeless classics built on nostalgia are still monetizeable. How many platforms has Zelda 64 been ported to and it still sells? Hell, how many platforms has Sonic the Hedgehog or Super Mario Bros been ported to and it sells again, again and again. These experiences barely even get polished up before being unleashed on the world. But they're 20+ years old and still able to be monetized so why should we prohibit those who created from benefiting?

What's a possible solution? Going back to registration and maintenance of copyright would be a start. There's no reason for every single fucking thing in this world to have IP rights attached to it. However, claiming those IP rights and paying society for the upkeep would be a perfectly workable solution. Maybe an escalating fee every year to ensure even valuable properties eventually make it back into the public domain so that others can take those properties and make their generations mark with it.

One thing is for sure though. The current situation is completely untenable and is only being propped up by the rentiers who would rather see vast swathes of human achievement vanish than see a single person get a copy of their works that they didn't pay for. How to implement a solution in this political climate is another beast entirely and one I don't have suggestion for.
posted by Talez at 12:08 PM on February 3, 2014 [13 favorites]

Likely to be a popular article here though.

I don't know about that; I think people on Metafilter often realize that taking away creative remuneration means that only people with spare time and/or lots of money get to create things, which is super problematic. It's not that people need a financial incentive to create things (and I think in fact for many of us if we had unlimited time and money creating things is a huge chunk of what we would do), it's that any act of creation does take time and money and thus if you limit creating to those with resources then you severely limit the production of culture and it ends up reflecting a very narrow band of people.

If people were reimbursed for what they create only in terms of the time and money it took to make it, people would still create a ton of neat things, but that isn't how life works.
posted by Mrs. Pterodactyl at 12:10 PM on February 3, 2014 [18 favorites]

love how the non-creatives are so anxious to tell creative people they are just supposed to suck it up and hand over the music or films they like and eat the costs.

If its not such a big deal, make your own music, motherfucker. Then you won't have to steal someone else's.
posted by Ironmouth at 12:10 PM on February 3, 2014 [38 favorites]

Yeah, twenty (five?) years of copyright with optional extension up to the current level, for a small fee, would remedy a lot of the ills and cause basically zero damage to content creators interests.

It will be super interesting to see what happens when Mickey comes up for renewal in a couple of years.
posted by Sebmojo at 12:11 PM on February 3, 2014 [7 favorites]

Nobody really would pay even 99c for Teddy Boy or Fantasy Zone even if they remembered what the hell those games actually are.

I'm pretty sure I paid five bucks for Fantasy Zone at the Wii Shop a couple years ago. It was just as good as I remembered it and I felt I got my money's worth.
posted by prize bull octorok at 12:11 PM on February 3, 2014 [1 favorite]

love how the non-creatives are so anxious to tell creative people they are just supposed to suck it up and hand over the music or films they like and eat the costs.

1. that's not what he said
2. he is a creative
posted by Sebmojo at 12:12 PM on February 3, 2014 [73 favorites]

"any other job" get paid no matter what if they are employed. When you start advocating for a base minimum wage for the amount of time most artist put into their work, schlepping it about doing their own marketing, and in the the case of independent artists having to pay for obligatory food and booze just so people will show up and say.. "Well I don't know, does it go with my couch?" then I'll look more favorably on claims that creative content should be public upon release, or anytime prior to the death of the creator.

IRT basic copyright.. that's not too hard is it? Upon death of the creator the copyright expires.
posted by edgeways at 12:13 PM on February 3, 2014 [1 favorite]

How many of creatives involved in making a video receive ANY money from it's sales after 20 years? Even when a game is made by a smaller publisher where the head designers and developers have a stake in the company, are the junior artists or sound designers or level editors getting any profit sharing at all? What about after they leave the company?

In most cases, video games are much closer to the film industry than book or music, and the people who are going to make anything from a game's future potential income are executives at a parent corporation, not "creatives."
posted by thecjm at 12:14 PM on February 3, 2014 [12 favorites]

This isn't creatives vs. non-creatives as far as I can tell. How many people who made 20 year-old games are actually making any money from the sales?

Oh, looks like he addresses that:
But games, unlike some other creative pursuits, are often made by huge teams of people. While there may be a project lead, this isn’t like a book’s author. This is a company. People getting paid to do their job, to make a game. The rights to the game, the ownership, lies with the publisher that funds it, not the creatives who create it. When a 20, 30 year old game is still being charged for, not a single person who was involved in its creation is getting a dime.

I'm not sure if that's completely accurate, but I'd bet that it's mostly true. If we're all about paying people for their creative work as long as the video game is selling, then you probably don't want to be buying old games from whoever happens to hold the copyright.
posted by ODiV at 12:16 PM on February 3, 2014 [4 favorites]

In most cases, video games are much closer to the film industry than book or music, and the people who are going to make anything from a game's future potential income are executives at a parent corporation, not "creatives."

Most non-fiction publishing works this way as well, as far as i know, with the writers paid a negotiated sum and not receiving royalties.
posted by dng at 12:19 PM on February 3, 2014 [3 favorites]

Upon death of the creator the copyright expires.

That would be not-terribly-unreasonable.

Even "life of the creator plus 18 years", i.e. long enough for the creator plus the longest time that it could take for the creator's children to reach majority, would be more acceptable than the current system, and would satisfy the whinging arguments that we're depriving Sonny Bono's kids of their inheritance or something.
posted by Kadin2048 at 12:20 PM on February 3, 2014 [9 favorites]

i would love to discuss this, but it's all been said before, and i'm going to be busy putting together an album for rpm 14 that, by the way, i'm not getting paid for
posted by pyramid termite at 12:20 PM on February 3, 2014 [3 favorites]

Why should other people get to profit from something someone did 50 years ago? As long as a thing is generating money I think it's fair that the creator or whoever they designate as heirs get that money.

It's not like the Trump plaza moved into public ownership after x years.
posted by fshgrl at 12:23 PM on February 3, 2014 [3 favorites]

I don't think copyright protects, or is designed to protect, the creatives. It's to protect the businesses that arose around them. Most of the money from recordings, for instance, doesn't go to the artist; it goes to the record company (which puts in a lot of work) and the "publisher", whose primary activity is opening envelopes with checks in them.

I was just reading about The Beatles's first real record contract: a penny a record, half that for overseas sales. Pretty much standard for everyone then. Sell a million records, get a check for £4,167. Epstein gets his cut off the top, then divide by four. Making a ton on concerts, of course, but still.
posted by Fnarf at 12:23 PM on February 3, 2014 [10 favorites]

Most non-fiction publishing works this way as well, as far as i know, with the writers paid a negotiated sum and not receiving royalties.

Or, in the case of academic publishing, no money whatsoever. When you buy a $100 edited academic book, or purchase a $35 academic article, the creator(s) often receives no money whatsoever.
posted by jb at 12:26 PM on February 3, 2014 [4 favorites]

I would love Metafilter so much more if everyone was mandated to read the article before they commented on it, instead of making assumptions and jumping in with their opinion on what they think the article's covering.
posted by flatluigi at 12:26 PM on February 3, 2014 [31 favorites]

Artw: John is a smart and lovely guy, but If I wanted to hear another "creative people don't need to get paid" argument I'd listen to pirates wanking on about how awesome pirates are.

aaaarrrrrrrrrRRRRRRRGH!!!

HE DOES NOT SAY THAT, IN FACT HE SPECIFICALLY SAYS RIGHT AFTER THE POINT YOU QUOTED THAT THE DOESN'T SAY IT, BUT THERE IS AN EFFORT TO CONFLATE HIS POINT WITH THAT:

The idea that creativity is only feasible if there’s a financial reward is abundantly demonstrably false. For someone to make their living from creative pursuits relies on some sort of financial return, yes. Creativity is not dependent on its being one’s living. That’s enormously crucial to remember. But even when talking about those seeking to make their living, the notion that a finite stretch of time in which exclusive profits can be made doesn’t prevent anyone from becoming a multi-millionaire from their work. An eventual transition to the public domain would in no sense take away the financial incentive to create.

And not only does an argument for a more imminent end to copyright periods than the current monstrosities like “life plus 70 years” not inhibit someone from making a living from their creative works, but it also doesn’t even mean they couldn’t continue making a living from the creative works they produced after the copyrights have expired – that’s the magic of Public Domain! They just then share the ability to profit from those works with others. I’m going to get into this far more deeply below.

He does; it's a long article. I've not read all of it myself yet, but I'd read enough to know he's making a far more nuanced point than DUR CREATIVZ SHUD B POR.
posted by JHarris at 12:26 PM on February 3, 2014 [43 favorites]

If its not such a big deal, make your own music, motherfucker. Then you won't have to steal someone else's.

I do. Then I put it around the place under a Creative Commons Licence for free on the off-chance someone else likes it too. But thanks for asking!
posted by Jimbob at 12:27 PM on February 3, 2014 [25 favorites]

Yup. As expected, a careful argument against government-enforced monopolies is strawman'd as "Creatives don't need to get paid" in the first two comments.

I'll try my own: Creatives need to work to be paid, same as the rest of us. This is such an obvious point to 99.99% of the arts community who make their living through performances and such, that it almost isn't worth repeating.
posted by Popular Ethics at 12:27 PM on February 3, 2014 [9 favorites]

love how the non-creatives are so anxious to tell creative people they are just supposed to suck it up and hand over the music or films they like and eat the costs.

1. that's not what he said
2. he is a creative

people who write opinions on other people's creative work are not creatives. They're critics.

You seem to have conveniently ignored point 1 in your rebuttal. Nobody here is saying that creatives (whatever that does/does not include) don't deserve remuneration for their work. You've got hold of a strawman, there.
posted by axiom at 12:28 PM on February 3, 2014 [5 favorites]

Most non-fiction publishing works this way as well, as far as i know, with the writers paid a negotiated sum and not receiving royalties.

Don't think so. Usually there's an advance, and the author receives that amount of money, or the amount due them from royalties, whichever is more.

I mean, in practice, yes, most authors get just the advance and don't see a penny of royalties. But that's because most books don't sell very many copies; a few big hits subsidize the rest. And the publishers can't be sure which ones will be the hits.
posted by escabeche at 12:29 PM on February 3, 2014 [2 favorites]

I feel like these conversations often miss the forest through the trees about who controls copyrights. It's typically not the "creatives."

The creatives at work in video games are salaried, and paid for the time they spend being creative. The concept artist who designed Kenway's robes in Assassin's Creed 4 gets paid salary. The programmers and animators who brought Arkham Asylum's awesome combat engine to life get paid salary. The story board designers for Knights of the Old Republic were paid salary. This is reflected in other media, too; virtually any band signed to a major label gives up the rights to their music, often finding themselves in serious debt due to the label's shady accounting practices. The lighting, sound, and CGI guys at movies are paid for their time; they don't control the copyright.

Instead most of the hallmarks of modern culture are held by corporations, who often see the subject matter they control not as a work of art to be treasured and protected, but as a simple means to generate profit. With the economic and consumer cultures we have in the US, at least, that leaves copyrights that last 95-120 years, where most media only has a marketable shelf life of a few years, with every new change in technology, format and marketing serving as a new opportunity to sell fundamentally the same art for full price again.

It's just rent-seeking, and not much different from actual, physical real estate. People with a critical mass of money use our absurdly over-long copyright systems to collect money for, well, not doing much of anything of value.
posted by Vox Nihili at 12:29 PM on February 3, 2014 [54 favorites]

If its not such a big deal, make your own music, motherfucker.

No one makes his own music. Everyone makes derivative works. All creative work is built off of what one has seen before. Everything is like this; no exceptions. The only reason that everyone who creates isn't intrinsically vulnerable to widespread and perpetual litigation is the limited means of courts to untwist and follow those tangled casual chains, so they throw up their hands and say "must be original." But there is no reason to think that limited perspective will forever be so limited.
posted by JHarris at 12:30 PM on February 3, 2014 [21 favorites]

Ironmouth: people who write opinions on other people's creative work are not creatives. They're critics.

People who want tight copyright laws aren't creatives; they're lawyers.
posted by Sys Rq at 12:35 PM on February 3, 2014 [36 favorites]

You seem to have conveniently ignored point 1 in your rebuttal. Nobody here is saying that creatives (whatever that does/does not include) don't deserve remuneration for their work. You've got hold of a strawman, there.

Read the article. He says just that and then pretends to walk away from it.
posted by Ironmouth at 12:35 PM on February 3, 2014 [1 favorite]

As JHarris says, everything is derivative. But art is especially derivative now.

We live in an era of remix culture, mash-ups, conceptual poetry, uncreative writing, data art, bots, and a hundred other artistic tendencies starting with postmodernism (or dada, really) that resist the romantic myth that art is the product of a lone, tortured, creative genius.

If your "Make your own music, motherfucker" philosophy was enforced, it would destroy a large percentage of my favourite music, poetry and artworks.
posted by dontjumplarry at 12:37 PM on February 3, 2014 [5 favorites]

So the people who actually take the risk of financing a game and paying the creative team don't deserve to get returns?
posted by 256 at 12:39 PM on February 3, 2014 [2 favorites]

Read the article. He says just that and then pretends to walk away from it.

No, what he says is "Creativity isn't (generally) dependent on money, and even if when it is, finite copyright doesn't interfere with that."

You'd think a lawyer would be able to appreciate an argument along the lines of "My client wasn't there, and even if he was he didn't do it."
posted by ROU_Xenophobe at 12:40 PM on February 3, 2014 [11 favorites]

people who write opinions on other people's creative work are not creatives. They're critics.

First of all, positing some kind of a fixed boundary between criticism and creation is a strange way to relate to art. Most creatives engage critically with other art as part of their creative process, and many critics are artists themselves. Second, this piece is an editorial, not a game review.

Read the article. He says just that and then pretends to walk away from it.

What he actually says is "My point was, and is, that I have a desire for artistic creations to more quickly (indeed, at all) be released into the public domain, after a significant period of time during which the creator can profit." I fail to see how this is equivalent to what you said. Can you point to some specific quotations to support your reading of this article?
posted by en forme de poire at 12:40 PM on February 3, 2014 [4 favorites]

So the people who actually take the risk of financing a game

Aah yes, financial risk takers, our society's greatest heroes, deserving of unending royalties...
posted by Jimbob at 12:41 PM on February 3, 2014 [16 favorites]

I'd be fine with indefinite copyright IF the holder had to extend it on a year by year basis for $1, one year at a time. Miss a year and it's public domain.
posted by blue_beetle at 12:41 PM on February 3, 2014 [3 favorites]

a few big hits subsidize the rest. And the publishers can't be sure which ones will be the hits.

And this is the crux of the issue. When you are creative you create lots of things, 99% of which make you not a dime. The few successful things you create often fund an entire career, or company supporting many careers for many decades So yeah, creatives and the businesses that bring media to the public do still rely on that income for a long time. Which allows them to create more things and hire young people. I write and publish a lot and I'm happy to do it for a moderate amount of money, which I need to eat and pay my mortgage. Would I quit entirely if I stopped getting paid? I'd certainly cut back a lot since I'd need to find another way to eat.

Comparing that financial model to a doctor or electrician who works for an hourly or monthly wage is wilfully ignorant and immediately put the article into trolling territory for me, and probably a lot of other people
posted by fshgrl at 12:41 PM on February 3, 2014 [2 favorites]

The REAL question for me is always "does the work in question promote the progress of Science and the Useful Arts?" If not, then the entire discussion of copyright is moot.
posted by mikelieman at 12:42 PM on February 3, 2014 [3 favorites]

So the people who actually take the risk of financing a game and paying the creative team don't deserve to get returns?

They do, over a reasonable time frame. I mean, pharmaceutical drugs go generic after a mere 20 years.
posted by en forme de poire at 12:43 PM on February 3, 2014 [13 favorites]

love how the non-creatives are so anxious to tell creative people they are just supposed to suck it up and hand over the music or films they like and eat the costs.

I'm a songwriter and a playwright and argue for a greatly reduced copyright period.

Also, by the way, I'm a critic. My writing is also protected by copyright, and that too would fall into the public domain.
posted by Bunny Ultramod at 12:43 PM on February 3, 2014 [11 favorites]

creatives and the businesses that bring media to the public do still rely on that income for a long time

A long time like, say, 20 or 30 years?
posted by Steely-eyed Missile Man at 12:44 PM on February 3, 2014 [1 favorite]

The myriad objections being raised to claims or proposals not made by the article are just asinine. Nowhere does the article assert that people shouldn't get paid. Nowhere does the article assert that copyright should be abolished.

What the article says:

Video games should be copyrightable for a fixed period not exceeding 20 years.

That's it. Criticisms of other proposals about copyright might be better left unsaid until an FPP about those proposals is made. Criticisms of proposals made nowhere in the original text and that had not even been made in this thread are simply bad-faith well-poisoning.
posted by ROU_Xenophobe at 12:44 PM on February 3, 2014 [26 favorites]

People do need financial incentives to create because they need to have food and housing and stuff, but I think he means "need" in a different way than I mean "need" when I say that. He means it like: We don't have to create this infinite revenue stream for anybody to ever compose a song or create a new video game. It doesn't have to go forever.

At which point there's just a lot of very interesting arguments to make about longer versus shorter, about whether you could give video games a shorter lifespan than novels, whatever. But if you get hung up on that first part, you don't get to that discussion.

What we're being given by our lawmakers is basically "forever", and we do need to start asking some very strongly worded questions about why that is, because the number of works still generating revenue after X years gets progressively smaller than the number of works that could be created if that work was in the public domain. And yet our current system seems based not on that cost/benefit analysis, but based on the benefit to a very small number of creators who operate in an entirely different environment than everybody else.
posted by Sequence at 12:45 PM on February 3, 2014 [5 favorites]

It's a known fact that hardly anybody created anything until the Sonny Bono Act was passed. That's why music and movies have improved so much since 1998.
posted by entropicamericana at 12:46 PM on February 3, 2014 [29 favorites]

Apparently Metafilter has some of the strongest proponents of current IP law this side of Disney.
posted by Carillon at 12:48 PM on February 3, 2014 [17 favorites]

Aah yes, financial risk takers, our society's greatest heroes, deserving of unending royalties…

If they deserve to get zilch in return for underwriting the failures, they deserve to make a profit for underwriting the successes.
posted by Longtime Listener at 12:49 PM on February 3, 2014 [4 favorites]

Steve Gaynor, of The Fulbright Company, wrote an interesting response here .
posted by kavasa at 12:50 PM on February 3, 2014 [1 favorite]

As pointed out in the article it's rarely even the same company that paid the creatives who owns the IP on 20 year old games, but is usually the company that bought the company that merged with the company that had the IP rights.
posted by ODiV at 12:50 PM on February 3, 2014 [5 favorites]

Technology creatives, called inventors, take huge risks and commit substantial resources to their pursuits. As an incentive, we offer them 20 or so years of exclusive rights to their work.
posted by Bovine Love at 12:52 PM on February 3, 2014 [6 favorites]

There's a lot of ground between "creatives won't work if they aren't paid" and "art must be freeee!"

The issue is how long should artists be paid for their work until it is free for modification and ab/reuse? The US started off so well -- 14 years with the option for a single 14-year renewal, then it was increased to 28 years with 14-year renewal, up to 28 years with 28-year renewal, and up again to either 75 years or life of author plus 50 years, and then the Mickey Mouse Protection Act extended terms to 95/120 years or life plus 70 years.

That is fucking preposterous. Seventy years after you are dead, your children (or other benefactors) can get some cut of something, while everyone else cannot touch it.
posted by filthy light thief at 12:53 PM on February 3, 2014 [29 favorites]

A long time like, say, 20 or 30 years?

It's probably possible to actually study the issue and see at what point making games public domain would impact the industry, particularly small companies. But instead let's just pick an arbitrary number and argue to death over it.

Besides which I think the main problem I and others have with the article isn't the idea of IP law changing, it's the eye-rollingly bad way the author frames his arguement.
posted by fshgrl at 12:53 PM on February 3, 2014

On the subject of this: it's pretty tragic that the fantastic No One Lives Forever will most likely never be sold anywhere again because the rights to it were shuffled around so much nobody's actually sure who owns the rights anymore.
posted by flatluigi at 12:53 PM on February 3, 2014 [19 favorites]

Why are so many folks reading this article and then responding as if he's arguing that creative people shouldn't get paid?

He's really clear about his position: Artists should profit from their work for two or three decades, and then the work should return to the public domain.

I'm not saying I do or don't agree with him, but it seems like half the people in this thread are responding to an argument he didn't even make.
posted by my favorite orange at 12:55 PM on February 3, 2014 [8 favorites]

"just isn't good enough" is a terrible argument. Suppose I say, is too. Then what?
posted by thelonius at 12:56 PM on February 3, 2014 [1 favorite]

orange: As I said upthread, people aren't actually reading the article - they're just jumping in with whatever they think the argument is. It's been an issue on this site for years.
posted by flatluigi at 12:57 PM on February 3, 2014 [8 favorites]

Okay, so I suppose he muddies the water a little bit by introducing the analogy to professions like medicine, where practitioners charge a one-time fee. Maybe it's not the greatest rhetorical strategy here.

But he's still explicit about what his position actually is.
posted by my favorite orange at 12:57 PM on February 3, 2014 [1 favorite]

As pointed out in the article it's rarely even the same company that paid the creatives who owns the IP on 20 year old games, but is usually the company that bought the company that merged with the company that had the IP rights.

And the ability to sell off properties after development is complete is certainly part of the financial business plan that gets the games underwritten in the first place, not to mention enabling the cash flow that lets a studio move on to making a second game once the first is out the door.
posted by 256 at 12:58 PM on February 3, 2014 [2 favorites]

But why shouldn’t someone be allowed to continue profiting from their idea for as long as they’re alive?

Putting aside that an embracing of the public domain does not prevent someone from profiting from their idea, my response to this question is: why should they?

What I’ve found interesting about asking this question of people is that I’ve yet to receive an answer. I’m either told it’s on me to explain why they shouldn’t, as if I hadn’t just spent thousands of words doing that, or I’m told that they just should. I’ve noticed a complete unwillingness for people to stop and engage with the question. Why should someone get to profit from something they did fifty years ago? In what other walk of life would we willingly accept this as just a given? If a policeman demanded that he continue to be paid for having arrested a particular criminal thirty-five years ago, he’d be told to leave the room and stop being so silly. “But the prisoner is still in prison!” he’d cry, as he left the police station, his pockets out-turned, not having done any other work in the thirty-five years since and bemused as to why he wasn’t living in a castle.

What about the electrician who fitted the lighting in your house. He requires a fee every time you switch the lights on. It’s just the way things are. You have to pay it, because it’s always been that way, since you can remember. How can he be expected to live off just fitting new lights to other houses? And the surgeon’s royalties on that heart operation he did – that’s the system. Why shouldn’t he get paid every time you use it?

he sure does say creatives shouldn't get paid. I do think electricians should get paid too. But the reason that you copyright things is that you want to incentivize both the creation of works and as wide a dissemination as possible. Not needed for an electrician.

Also, nothing weaker than putting out a position and then immediately trying to require others to disprove it rather than prove it. Its not logic.
posted by Ironmouth at 12:58 PM on February 3, 2014 [1 favorite]

But why shouldn’t someone be allowed to continue profiting from their idea for as long as they’re alive?

There, I even bolded it for you.
posted by Holy Zarquon's Singing Fish at 1:00 PM on February 3, 2014 [4 favorites]

he sure does say creatives shouldn't get paid.

When he writes "why should they?", I take it (because of the context) to mean "why should they [be allowed to continue profiting from their idea for as long as they're alive?]"

I do agree with you that he doesn't make any strong logical arguments here. The piece is pretty much based on handwaving and his own intuition.
posted by my favorite orange at 1:01 PM on February 3, 2014 [1 favorite]

The answer is another question: If someone is making money from a song, why shouldn't the person who created the song get a cut?

So...if I built you a guitar I should get a cut from every gig you play?
posted by howfar at 1:02 PM on February 3, 2014 [9 favorites]

my favorite orange: , so I suppose he muddies the water a little bit by introducing the analogy to professions like medicine, where practitioners charge a one-time fee.

I agree. Different fields charge different amounts (and in different ways) for their goods and services, based on a variety of factors.

Entertainment products are "consumed," like food, so the price per item is generally pretty low. Medicine and medical care, on the other hand, are often critical to life and happiness, and there aren't competing options as there is for food and entertainment.
posted by filthy light thief at 1:02 PM on February 3, 2014

But why shouldn’t someone be allowed to continue profiting from their idea for as long as they’re alive?

There are two things at work here. 1, gaining profit from your work, and 2, allowing others to modify or re-package your work for their own enjoyment or financial gain. If you can separate the two, then we can have an interesting discussion, but if they are bound, then you have the issue of someone creating a work when they're in their early 20s, potentially continuing to make money from it, while no one else can touch it without paying a fee for 50-70 years. Or maybe you're a 80-something (or 20-something) who creates a great work, but dies in two years, so your heirs are left with little benefit from that work.

The problem with every work instantly entering the public domain is that crafty people and companies who do nothing more than repackage and market everyone's favorite thing can make a killing, while the maker of said thing gets nothing. Because of this unbalance of power in the marketplace, I fully support copyright for a limited period.
posted by filthy light thief at 1:09 PM on February 3, 2014 [4 favorites]

he sure does say creatives shouldn't get paid.

If that's the quote you were referring to, then I think you're seriously misreading him. Any ambiguity in the question of whether he is arguing that creatives shouldn't get paid at all vs. that they shouldn't get paid indefinitely can be very easily resolved by looking at what he says in the rest of the article. It is in fact a distinction he makes repeatedly.
posted by en forme de poire at 1:11 PM on February 3, 2014 [4 favorites]

If its not such a big deal, make your own music, motherfucker. Then you won't have to steal someone else's.

That's the way to woo your fans!
posted by aught at 1:11 PM on February 3, 2014

howfar: The answer is another question: If someone is making money from a song, why shouldn't the person who created the song get a cut?

So...if I built you a guitar I should get a cut from every gig you play?

That analogy doesn't hold. People are paying to hear music at my gig, not to observe your craftsmanship. Record executives are only providing a delivery mechanism, not the product itself.

It just really doesn't work to compare content and durable goods in this way.
posted by spaltavian at 1:11 PM on February 3, 2014 [1 favorite]

John is a smart and lovely guy, but If I wanted to hear another "creative people don't need to get paid" argument I'd listen to pirates wanking on about how awesome pirates are.

There is a wide gulf between "creative people don't need to get paid" and "creative people are primarily motivated to create by money".

There is also a wide gulf between "creative people don't need to get paid" and "creative people don't need to get paid forever".
posted by mstokes650 at 1:13 PM on February 3, 2014 [8 favorites]

Imagine how rich Francis Scott Key would be if only there were sane copyright laws in the 19th century!
posted by entropicamericana at 1:14 PM on February 3, 2014

People are paying to hear music at my gig, not to observe your craftsmanship.

Except that a lot of the problem with copyright is not that you can't redistribute the identical work, it's that you can't even create things based on that work. Part of what people are certainly listening to with a good guitar IS the craftsmanship, but you're right that it's not the whole thing. It's also not the whole thing people are appreciating with a GOG release, because GOG has put a bunch of their own effort into making that game run on hardware it was not intended to run on. Sherlock the TV series is based on the Sherlock Holmes stories but it's not just a bunch of video of the text of the stories flowing across your screen. Other people have put a lot of work into transforming that initial content into totally new, distinct, wonderful content.

And if stuff stays in copyright forever then the rights holder might allow that--or they might not. It might become very hard to even find the rights holder. They might charge so much for the right to use the work that you can't afford to make the new work. They might refuse to let anybody else do anything with it at all. There are points in the process where most people are fine with that level of control, but there are points much later on that we start to think that the value of the new work really is worth letting new creators unleash their transformative power on the original.
posted by Sequence at 1:18 PM on February 3, 2014 [3 favorites]

Intellectual property laws exist to provide extra protection for "science and the useful arts". It's not the natural state that intellectual works are protected - it's a state-provided benefit. It's completely reasonable for the state to determine at what balancing point that that protection hurts, rather than helps the public. The arguments for indefinite copyright, or realistically, life of the author plus 70 years (indefinite for all practice purposes), ignore this balancing. The author's right is balanced against the public benefit.

There is - at least in US legal tradition - no moral right to wring all of the commercial value from your intellectual work. There are certainly differences in the system, but currently patent terms are 20 years from date of filing, and no real argument that this cripples inventiveness.

(It's actually a slightly different argument in civil law jurisdictions like Europe, where there is more of a moral rights/authors' rights perspective).
posted by mercredi at 1:18 PM on February 3, 2014 [10 favorites]

It's just rent-seeking, and not much different from actual, physical real estate.

Well, given that we've established that charging rent is evil, why shouldn't this work in reverse? Why should someone retain possession of property just because they paid money for it? We should obviously institute a short-term copyright system for property as well as for intellectual property; once you bought your house or car or computer, you get possession of it for seven years, and then anyone who wants to use it can, in any way they want. Seems fair, right?
posted by happyroach at 1:20 PM on February 3, 2014 [4 favorites]

Well, given that we've established that charging rent is evil, why shouldn't this work in reverse?

That's not what "rent" means in this context.
posted by howfar at 1:25 PM on February 3, 2014 [5 favorites]

Ironmouth: “he sure does say creatives shouldn't get paid.”

Did you actually read the passage you quoted? He absolutely does not say that. He says that creatives shouldn't get paid for something they did fifty years ago. That's not only a significant qualifier; it is the entirety of his argument, and you're leaving it out.

This is like hearing someone say "you shouldn't create art that is antisemitic," and saying "oho! Why are you against creating art? You just said that you shouldn't create art!"
posted by koeselitz at 1:27 PM on February 3, 2014 [14 favorites]

We should obviously institute a short-term copyright system for property as well as for intellectual property; once you bought your house or car or computer, you get possession of it for seven years, and then anyone who wants to use it can, in any way they want. Seems fair, right?

This analogy makes so little sense I am having a hard time expressing how little sense it makes.
posted by Steely-eyed Missile Man at 1:27 PM on February 3, 2014 [8 favorites]

I brought up NOLF's situation earlier, but someone brought up another good example to me: Disney's never going to touch Grim Fandango. They have no interest in rereleasing it or working on sequels to it. What's the loss if Tim Schafer could make a new game based off of it?
posted by flatluigi at 1:29 PM on February 3, 2014 [4 favorites]

Why should someone get to profit from something they did fifty years ago

Why should someone get to own a piece of land and/or house for fifty years?

Why should someone be able to keep money in the bank and gain interest on it when they earned it fifty years ago?
posted by jason's_planet at 1:29 PM on February 3, 2014 [4 favorites]

This analogy makes so little sense I am having a hard time expressing how little sense it makes.

Given how little sense this situation as a whole makes, it should fit right in.
posted by happyroach at 1:30 PM on February 3, 2014

Why should someone get to own a piece of land and/or house for fifty years?

Why should someone be able to keep money in the bank and gain interest on it when they earned it fifty years ago?

These are both important questions. Do you have answers?
posted by howfar at 1:31 PM on February 3, 2014 [4 favorites]

Life of the artist always seemed creepy to me. Are publishing houses looking askance at sickly writers because the long tail won't be long enough? It seems arbitrary that the people with the most life experience will have the least value assigned to their work.
posted by BrotherCaine at 1:32 PM on February 3, 2014 [3 favorites]

happyroach: “We should obviously institute a short-term copyright system for property as well as for intellectual property; once you bought your house or car or computer, you get possession of it for seven years, and then anyone who wants to use it can, in any way they want. Seems fair, right?”

We already have this. It is called "renting a house."
posted by koeselitz at 1:32 PM on February 3, 2014 [2 favorites]

Ironmouth: “he sure does say creatives shouldn't get paid.”

Because obviously electricians don't get paid.

You aren't dumb enough to find the distinction between wanting artists not paid at all and wanting a shorter copyright term confusing. You can disagree with the shorter copyright term idea, but when you are clearly pretending not to understand what the conversation is about you are just shitting up the thread.
posted by Drinky Die at 1:32 PM on February 3, 2014 [13 favorites]

“he sure does say creatives shouldn't get paid.”

Did you miss the ENTIRE PARAGRAPH where he refutes that?

"So before we move on to the nuances of the argument, let’s get one thing out of the way: Expressing a desire for a game to enter the public domain, let’s say twenty years after publication, does not in any sense whatsoever suggest a desire for developers to not get paid. I resent having to type this. It’s a bit like finding yourself having to say that you’re not in favour of gruesomely starving children to death because you expressed a thought that they probably shouldn’t get to exclusively eat at McDonald’s. What I am in fact saying is: “developers should get paid for the work they do, and then keep getting paid for the same bit of work, over and over and over for the next twenty years, even though they stopped doing any work related to it many years ago.” It’s not entirely apparent how the two sentiments are being confused."
posted by Foosnark at 1:33 PM on February 3, 2014 [3 favorites]

he sure does say creatives shouldn't get paid.

I wish you'd stop lying.
posted by Pope Guilty at 1:34 PM on February 3, 2014 [24 favorites]

I'm entirely in favor of significantly shortening the copyright period. What irritates me is the way people will say "the copyright period is way too long, it should only be 25-30 years from the date of creation" (say) and then somehow see that as a justification for torrenting music, films and books that were created within the last year.
posted by yoink at 1:38 PM on February 3, 2014 [4 favorites]

This guy's argument would be more impressive if he had any skin in the game. But he's not Lennon-McCartney, exactly, is he? He wants games to enter the public domain because he wants to fiddle around with them. If these were his creative works, he might feel differently. Not every composer, writer, performer actually want their efforts tossed into the big chopper for others to mash-up, re-cut, re-write, etc.. Are these peoples' wishes to be ignored because feelz?
posted by Ideefixe at 1:38 PM on February 3, 2014 [2 favorites]

And the ability to sell off properties after development is complete is certainly part of the financial business plan that gets the games underwritten in the first place, not to mention enabling the cash flow that lets a studio move on to making a second game once the first is out the door.

This is a good point! It's probably just my limited view of things, but it really felt like no one gave a shit about old games IP for the longest time. My impression was that GOG almost had to go out and start twisting people's arms in order to get them to start selling their old games again.
posted by ODiV at 1:39 PM on February 3, 2014 [1 favorite]

One idea I'm wondering if anybody has considered. Assuming we keep perpetual copyright, how about applying a small new tax to profits earned via creative works protected by copyright, with the collected money targeted at promoting the arts? Maybe even toss in some sort of tax refund if you allow a work to enter the public domain early. Could this help restore the idea of copyright as a public benefit and encourage works to enter the public domain when they are no longer profitable?
posted by Drinky Die at 1:39 PM on February 3, 2014 [2 favorites]

yoink: good thing that's not what anyone in this thread or the original argument is talking about, then!
posted by flatluigi at 1:39 PM on February 3, 2014 [1 favorite]

I'd prefer we dispense with the analogies to other field of work. This sort of "person in job X doesn't get this, so why should person in Job Y get it" argument is part of how a certain portion of the U.S. has argued against public sector employees (for example) getting decent pay and benefits.

To whit, a painting of a light bulb isn't the same thing as a light bulb. A painter of a picture isn't the same as a painter of a house. Different jobs, different ways of paying for the job.

Furthermore, we get bogged down in arguing about which analogies fit, which don't fit, and which are just plain nonsensical. Its a rhetorical moebius strip - or perhaps a rhetoical uruboros.

The discussions about the relative value of short vs long term copyright, on the other hand, are worth having. Certain elements of copyright law go a long way to protecting artists from hucksters and corporations profiting off their work. Other elements ensure that the work dies or isn't seen or heard nearly often enough (perhaps because the hucksters and corporations the artist got into bed with - or something that artist *cough Prince cough* him or herself - doesn't really understand how new media works).

In regards to video games, I as in good faith, if an artist created a video game for a corporation as work-for-hire, do they have any expectation of ownership (and future profits) from the game?
posted by Joey Michaels at 1:41 PM on February 3, 2014 [1 favorite]

Caveat - I don't really understand how new media works either, but I'm struggling with it every day and someday I'll figure it out. Likely just in time for it to change again.
posted by Joey Michaels at 1:41 PM on February 3, 2014

jason's_planet, WRT to houses and tangible property vs. creative works, there's a difference between rivalrous and non-rivalrous goods.

There are lots of good reasons why we have different property rules for goods where one person's use precludes another than we do for non-tangible goods. This is not new ground. It's becoming more important as more of the value in society in in non-rivalrous goods.

Houses and photographs are more different than alike - just because two things have value, doesn't mean that they are, or should be, protected by identical property rights.
posted by mercredi at 1:44 PM on February 3, 2014 [2 favorites]

At what point does copyright extension stop helping and start hurting artists? It seems like there's a finite amount of discretionary income people are willing to pay for art. If there's a really long tail on copyright, does a higher proportion start going to Disney & Valve and a much smaller proportion to artists & heirs?
posted by BrotherCaine at 1:46 PM on February 3, 2014

What about the electrician who fitted the lighting in your house. He requires a fee every time you switch the lights on. It’s just the way things are. You have to pay it, because it’s always been that way, since you can remember. How can he be expected to live off just fitting new lights to other houses? And the surgeon’s royalties on that heart operation he did – that’s the system. Why shouldn’t he get paid every time you use it?

Oh, look, another copyright "reform" piece where the author is apparently unable to recognize the difference between the process of invention/creation and production/craft.

I think copyright reform is important, but I'd rather idiots like this who bring a net subtraction of insight to the discussion shut the hell up forever than joined the ranks of the cause, because this kind of sloppy thinking is exactly how very bad policy gets made.
posted by weston at 1:48 PM on February 3, 2014 [4 favorites]

In regards to video games, I as in good faith, if an artist created a video game for a corporation as work-for-hire, do they have any expectation of ownership (and future profits) from the game?

No.

I worked in the game industry from 1996 to 2013.

For a period of about three months, I was a contractor rather than an employee. I earned a share of a percent of a percent of my product's net earnings. McDonald's pays better.

After that, it was salary. No profit sharing, no royalties, no bonuses, nothing at all that was tied to copies sold, active subscriptions, revenue or any other measure of success.

The exception to this, of course, is indie devs. And taking the most successful indie game so far, Minecraft -- do you think sales of new Minecraft licenses are still going to be Mojang's major source of revenue more than 20 years from now?

You keep earning money because you keep making new stuff.
posted by Foosnark at 1:48 PM on February 3, 2014 [12 favorites]

Are these peoples' wishes to be ignored because feelz?

What are their wishes besides "feelz"?
posted by Steely-eyed Missile Man at 1:48 PM on February 3, 2014 [2 favorites]

he sure does say creatives shouldn't get paid.

I wish you'd stop lying.

Technically what he does is spend an entire paragraph belittling the idea that creatives need to get paid. I don't know if he goes further than that later on as I gave the browser window the finger and closed the fucker at that point.

Note that he does this outside of any kind of time limit argument, and if your argument is "people would make stuff anyway" why would it have to? 20 years ago is the same as last week or right now in that case.
posted by Artw at 1:48 PM on February 3, 2014

This is a good point! It's probably just my limited view of things, but it really felt like no one gave a shit about old games IP for the longest time. My impression was that GOG almost had to go out and start twisting people's arms in order to get them to start selling their old games again.

AFAICT they don't release sales figures, but I would bet that the amount of games they sell that are beyond the window the author thought of -- so 1993 at the latest -- is minimal. I'd look for how many games they even have that date from 1993 or before, but they don't support searching by original publication date.
posted by ROU_Xenophobe at 1:50 PM on February 3, 2014

Technically what he does is spend an entire paragraph belittling the idea that creatives need to get paid. I don't know if he goes further than that later on as I gave the browser window the finger and closed the fucker at that point.

If you're unwilling to read his argument then I'm curious as to where you get off having an opinion of his argument.
posted by Pope Guilty at 1:51 PM on February 3, 2014 [23 favorites]

Well, Artw, I think we can safely say your initial thread prediction is entirely false.

And he does not "spend an entire paragraph belittling the idea that creatives need to get paid". This is the same kind of willful blindness Ironmouth is displaying. You possibly have too much skin in the game. It's a silly paragraph because it distracts from the main argument, but all he is doing is answering what he says is a frequent objection to copyrigth reform, "People need a financial incentive to create." (emphasis mine)

He simply draws a distinction between creating point blank and creating to make a living, then moves on.
posted by Steely-eyed Missile Man at 1:53 PM on February 3, 2014 [4 favorites]

"if an artist created a video game for a corporation as work-for-hire" - lets not forget that there's a team of coders - lets call them creative programmers - who are hired on teams that make video games. They may come up with something brilliantly useful, like a 3D rendering engine, that makes their game even better than other similar games. And the company that employs them has some sort of contract with them regarding the code (which is also copyrightable) they write while employed. The company may have great success with the game based on that 3D rendering code, and then releases more based on the same 3D rendering. It employs more people, creating more games, and say 10 years down the line when it sells some old games from 1995 at a discounted nostalgia price, someone writes an article arguing for a shorter copyright time. And then Metafilter starts talking about renting guitars.

I probably need more coffee if I am to follow this thread.
posted by dabitch at 1:53 PM on February 3, 2014

the amount of games they sell that are beyond the window the author thought of -- so 1993 at the latest -- is minimal

Yes, exactly! So it took an external force to get everyone to realize there was still some money to be made on games that aren't even 20 years old. It just seems like no one really cared except in terms of franchises and sequel potential.
posted by ODiV at 1:54 PM on February 3, 2014 [2 favorites]

He does a kind of awkward transition from "creation wouldn't stop entirely if there were no profit involved" to "even if you assume it would stop without profit, shorter copyright terms don't kill the profit motive anyway" in the space of a couple sentences. But I don't see him ever arguing that killing copyright entirely wouldn't hurt anybody's desire to create.
posted by Holy Zarquon's Singing Fish at 1:54 PM on February 3, 2014

Not every composer, writer, performer actually want their efforts tossed into the big chopper for others to mash-up, re-cut, re-write, etc.. Are these peoples' wishes to be ignored because feelz?

Given that the whole point of granting temporary copyright at all is to allow works to enter the public domain at some point in the future, yes, those peoples' wishes are to be ignored. The state provides a temporary monopoly in exchange for this.
posted by me & my monkey at 1:55 PM on February 3, 2014 [15 favorites]

"Why should someone be able to keep money in the bank and gain interest on it when they earned it fifty years ago?"

Look at the impetus behind each action. One (i.e. making money) is taking an extant public resource and making it private. Society tolerates this (within limits) for a whole host of reasons.

The other (i.e. making art) is creating a private resource where there was none, and then giving it value by sharing it with the public. Copyright functions as "thank you" for people who, essentially, generate culture.

It's like Foosnark mentions right above: copyright is the quid pro quo for people to keep making new stuff that contributes to our culture. Over-long copyright terms - like we have now - actually serve to reduce the rate at which these new cultural things are created, as well as concentrating financial power over our culture in the hands of a relatively small portion of individuals who are not actually even human beings or the people who created that culture in the first place.
posted by Vox Nihili at 1:55 PM on February 3, 2014 [2 favorites]

It's only recently that the copyright terms have been prolonged, is there any research that shows this has significantly reduced the rates of new work being created?
posted by dabitch at 1:57 PM on February 3, 2014 [1 favorite]

I do think "ports" etc add a bit of a wrinkle to this. Instinctively it feels to me like the company that made "Awesome Game X" when I was a kid should be allowed to take a crack at making "Awesome Game X 2014 X-Box 3 edition" before some random public domain release-date-checker puts it on a cheaply assembled compilation. But I don't have much going for this argument beside "feelz" as someone said upthread

And to the argument above, I do think that the necessary financial incentive to create is greater for some endeavors than others. Because of the resources required to put a good, working video game out to market, I think video games (and things like film and TV) would probably need more of an incentive than things like electronic music or painting, which in theory one can do at home with little or no help and a relatively small investment of resources.
posted by Hoopo at 1:58 PM on February 3, 2014 [1 favorite]

From the wikipedia article you cite:

Put differently, a good is considered non-rival (non-subtractable) if, for any level of production, the cost of providing it to a marginal (additional) individual is zero . . . More generally, most intellectual property is non-rival. In fact, certain types of intellectual property become more valuable as more people consume them (anti-rival).

That's a good point. In this day and age, digitization allows you to circulate additional works of art for pretty much nothing. But I'm not seeing much of an argument there for weakening or dispensing with copyright law. Yes, you can circulate that work for next to nothing, a potentially infinite number of people could enjoy the work simultaneously. But this perspective ignores the huge amount of time and intellectual and emotional energy that creators invest in their work. The intellectual property might increase in value but the creator, without whom that intellectual property would not exist, still needs a way to translate that theoretical value into cold, hard cash.
posted by jason's_planet at 1:59 PM on February 3, 2014

dabitch: “It's only recently that the copyright terms have been prolonged, is there any research that shows this has significantly reduced the rates of new work being created?”

It doesn't have much to do with prolongation of copyright terms, but one might note that copyright conflicts utterly annihilated several vibrant and thriving musical scenes in the 1990s. This is the problem with copyright: there are many times when it's actually counter to creativity.
posted by koeselitz at 1:59 PM on February 3, 2014 [6 favorites]

Why should someone get to profit from something they did fifty years ago

jason's_planet: Why should someone get to own a piece of land and/or house for fifty years?

Why should someone be able to keep money in the bank and gain interest on it when they earned it fifty years ago?

You're confusing physical with non-physical (I'm sure there are better terms for this differentiation). An invention, a work of fiction, a song, or a game are, by and large, ideas. You thought of something, and that is what you are selling. You can improve, alter, copy, modify, and re-package an idea while leaving the original intact.

Land is a physical item, defined as three dimensional space. You can purchase land, and it is yours, assuming your jurisdiction recognizes land ownership and you went about things by the books. You can make money off of your land in various ways - by growing crops on your land and selling those crops, by leasing it to someone else for a use, such as a wind turbine or a cellular communications tower.

And your money is pretty much a physical thing, even if there aren't physical bills residing in a vault at your bank. The bank actually wants you to keep your money there, because they can then lend your money and make money off of your money. They give you an incentive to keep your money with them by paying you interest.

I've heard similar cases made supporting extended copyrights by equating writing a song to being a farmer who is able to pass on the family farm to the next generation. This, and the above associations to land and money in a bank completely miss the point that farmers don't make money by watching their land sit idle, but by working the land. You can make money by leasing the land to someone who will work it for you, but someone is still doing work to make the money to pay you for the lease. And you don't earn interest if you keep your money under your mattress.
posted by filthy light thief at 2:00 PM on February 3, 2014 [2 favorites]

To me, the point of copyright (and patent) protection is to encourage people to contribute to our arts and sciences. Even if creators get zero financial benefit, they will still create, but many people either won't be able to or have sufficient incentives to do so.

The question is how can you maximize the incentive for creation and also the beneficial uses of the public domain?

Until 1909, copyright in the U.S. lasted up to 42 years. Then it was extended to 56 years. Does anyone really think that this extra time provided an incentive for an artist or author to do something they wouldn't have anyway? Does anyone really think some author would say, it's just not worth it to me to write this great novel because I can only exploit it for 42 years instead of 56? Or that some publisher would contract for the book if they had exclusive rights for 56 years instead of 42? I find that far-fetched.
posted by grouse at 2:00 PM on February 3, 2014 [6 favorites]

42 years seems like a damned good amount of time for copyright to extend to: enough time to last into the creator's retirement, but not so long that the public is denied the chance to make these works a piece of common culture.
posted by koeselitz at 2:02 PM on February 3, 2014 [2 favorites]

dabitch: "It's only recently that the copyright terms have been prolonged, is there any research that shows this has significantly reduced the rates of new work being created?"

I don't know about 'created,' but 'available to the public'--yes, copyright protection makes things less likely to be available for sale.
posted by mullingitover at 2:02 PM on February 3, 2014 [4 favorites]

Odd that the author titles the piece, "Why Games Should Enter The Public Domain," yet nowhere does he set forth why games should enter the public domain. Rather, he treats that as a given, and argues why games should not enjoy lengthy copyright protection. Which is a different argument. If you want me to go to a particular restaurant with you tonight, present arguments in favor of eating at that particular restaurant. Don't just argue, "Reasons you should leave your house tonight." I'm still waiting to hear what the great benefit would be to society as a whole, or to any specific subset of individuals, for that matter, if game copyright terms were shortened.

As it stands, copyrights expire. They do. Current copyright (generally speaking) lasts long enough to benefit the creator and one generation of offspring. Whenever the copyright for X expires, there will be a robust crop of creatives ready to make use of X in the public domain. Why is this not enough? The arguments of those who clamor for shorter copyright terms always strike my ear as: "Yeah, it'll expire, but it won't expire in time for me, personally! Me, Me, MEEEEEEEE!!!"

There's already a virtually infinite amount of material in the public domain. How is that not enough? You've just GOT to have the most recent sliver of material as well? You can't leave that most recent sliver of material for future generations of creatives? Why the heck not? Let the artist profit, and let him provide for his kids, and after that it will belong to other creatives for--guess what--ETERNITY! Is eternity such an unfair trade?
posted by azaner at 2:02 PM on February 3, 2014

If its not such a big deal, make your own music, motherfucker.

Gladly, motherfucker.
posted by Ice Cream Socialist at 2:02 PM on February 3, 2014 [5 favorites]

Not every composer, writer, performer actually want their efforts tossed into the big chopper for others to mash-up, re-cut, re-write, etc.

No matter how original the artist is, they are standing on the shoulders of the giants that have created the pre-existing culture that has made their own creative work possible. The bargain copyright makes, when it works right, is that they can both profit for their own originality and eventually give back to the greater culture what it is owed for the contribution it made.
posted by Drinky Die at 2:03 PM on February 3, 2014 [7 favorites]

Food dishes and clothing designs can't be copyrighted. Yet restaurants and fashion design houses exist. Some of them do very well.
posted by Triplanetary at 2:04 PM on February 3, 2014 [6 favorites]

As it stands, copyrights expire. They do.

Not for my entire life, they haven't. And I would wager that they will continue not expiring in the future.
posted by Holy Zarquon's Singing Fish at 2:06 PM on February 3, 2014 [15 favorites]

Not for my entire life, they haven't.

Er, what? Things are entering the public domain and coming out of copyright every day. Unless you're the world's fastest-learning mayfly, what you say cannot possibly be true.
posted by yoink at 2:08 PM on February 3, 2014 [1 favorite]

dabitch: It's only recently that the copyright terms have been prolonged, is there any research that shows this has significantly reduced the rates of new work being created?

Copyright was only recently extended an additional 20 years. Before that it was already up to 75 years or life of author plus 50 years. That +50 sounds nice, but if you think about someone in their 30s writing a song (or making making a game and retaining the rights, not being paid for their hourly work), they could potentially have a young child, and earn money on their work from their 30s for 50 years, then die at age 80. Their child is already in their 30s, and can keep on earning money from their parent's work for another 50 years, until they are 80, with children and grandchildren of their own.

Anyway, there is "reducing new work," and there is "stifling creative re-use," pushing generations of works by artists who utilized samplers from the late 1970s on into dark and dusty corners, available in strictly limited quantities. Were it not for file-sharing, a lot of those new works would be true rarities. As it is, only the physical versions are hard to find, and once someone copies a single one, it is "available" to the world. Of course, the sampling artist doesn't make a dime.

For an anecdotal example, The Verve were certainly stifled by their use of a sample, effectively putting an end to the band.
posted by filthy light thief at 2:09 PM on February 3, 2014 [5 favorites]

Hell, I just realized that the reason this article can be titled "Why Games Should Enter the Public Domain" is that the artform has never not been covered by the modern perpetual-copyright regime -- absent a radical change to the law, no video game will ever pass into the public domain unless it was released for completely free use in the first place.
posted by Holy Zarquon's Singing Fish at 2:10 PM on February 3, 2014 [4 favorites]

There's already a virtually infinite amount of material in the public domain already. This is a sorta crazy idea that implies that creative works are interchangeable - that Shakespeare and Solzhenitsyn and David Foster Wallace provide the same cultural good.

It also ignores that that very public domain was created by reasonable copyright law - not today's near-indefinite term. Works created by a 30-year old today, be they books, songs, or blog posts, will not enter the public domain until sometime around 2120.

The public domain has been so valuable because it contained works that were still culturally relevant. Life+70year copyright cuts that off. We are starving the public domain for future generations.
posted by mercredi at 2:10 PM on February 3, 2014 [19 favorites]

Let the artist profit, and let him provide for his kids, and after that it belongs to other creatives for--guess what--ETERNITY!

This social contract has been broken since publishers' lobbies keep convincing Congress to extend the copyright of works that were created as far back as 1923. Back then, it was 56 years, but it's since been extended to 75, and now 95 years (or longer depending on how long a natural creator lives). I'd be really surprised if before this didn't happen again before these works from 1923 entered the public domain.

For works created in most of the last century, all signs point to ETERNITY being the period of copyright, not public domain.
posted by grouse at 2:12 PM on February 3, 2014 [7 favorites]

Things are entering the public domain every day. This is sadly only sort of true. Given the congressional penchant for copyright term extension, the entrance of materials into the public domain has been slowed, and sometimes even reversed.
posted by mercredi at 2:13 PM on February 3, 2014 [4 favorites]

Triplanetary: Food dishes and clothing designs can't be copyrighted. Yet restaurants and fashion design houses exist. Some of them do very well.

Food and clothing are priced differently than music and games, and both venues can introduce a significant mark-up if their product is highly sought-after. Compare it to music, where this is generally not the case, except for well-known bands who produce limited editions.

Then again, some food and clothing companies are just scraping by, living on margins, just like musicians and indie game companies.

Oh, and there are actually protections to fashion design, FYI. And food is different, in that it is generally an in-demand, regional and time-sensitive good. You might know of a cheap taco place 100 miles away, but if you're stuck with no way to get there, you'll eat at the taco stand in front of you, even if their food is mostly the same thing. Now if you had 20 taco stands around you, then you have choices.
posted by filthy light thief at 2:14 PM on February 3, 2014 [1 favorite]

Or, in the case of academic publishing, no money whatsoever. When you buy a $100 edited academic book, or purchase a $35 academic article, the creator(s) often receives no money whatsoever.

Not only that, you have to get permission to quote/reuse your own work. Which can take months or even years and once in a while a publisher will try to charge you for.

On the plus side, perpetual copyright was once a thing that existed for publishers. And got broken, so I have hopes that we can reverse the creep towards almost never-ending copyright periods.
posted by lesbiassparrow at 2:15 PM on February 3, 2014 [1 favorite]

I asked this question because the argument made above it is: Over-long copyright terms - like we have now - actually serve to reduce the rate at which these new cultural things are created. If this is true, I would love to see the research on that/proof this is the case.
posted by dabitch at 2:15 PM on February 3, 2014

I don't know. On the one hand, he does insist that he isn't saying they shouldn't get paid. On the other hand, he not only says that creativity not being adequate to make a living wouldn't end creativity; he says it wouldn't harm creativity, that we'd lose nothing. To my reading, he posits that it's utterly unnecessary that people be able to make a living from their creative work, so while it's fine with him for people to earn a living from their work, there's no creative need to preserve their ability to do so, which is in fact a little more than "copyright should only last for a limited time."

Given how explosive this issue is every single time it arises, it's kind of rhetorically a shame that if his real argument is primarily about shortening the length of copyright (a not-all-that-radical proposition, to say the least), he put his stake in the ground at "being able to earn a living is perfectly okay but absolutely unnecessary to creativity thriving." Because I understand some people believe that, but there's much more resistance to that idea than there is to the idea of shortening copyright, is my guess, meaning he might have made a cleaner argument if he'd stuck to the parts more likely to appeal to more people and get closer to a consensus.

In other words: Why put the thing in there that a lot of creative people take (rightly or wrongly) as a slap in the face if it's not critical to your argument? It sort of invites exactly the derail that he's wound up with here.
posted by Linda_Holmes at 2:17 PM on February 3, 2014 [7 favorites]

"It's only recently that the copyright terms have been prolonged, is there any research that shows this has significantly reduced the rates of new work being created?"

Actually the volume of copyright work has increased dramatically, but that's almost entirely due to changes in what is copyrightable, how the protection is applied, and the proliferation of computers.

Copyright terms have been steadily ramped-up since 1831, when Congress started adding new subject matter and extending the terms. In brief:

1831: First amendment to the 1790 Copyright Act. It (1) added music to maps, charts, and books as copyrightable subject matter and (2) extended the initial copyright period to 28 years, while leaving the renewal period at 14 years.
1909: (1) The renewal period was doubled to 28 years, bringing the total potential copyright term to 56 years. (2) Unpublished works designed for exhibition, performance, or oral delivery were brought into the fold of copyrightable material. Because the 1909 law was still in effect until 1978, with a total of 56 years of copyright protection, the 1909 law will apply to some copyrighted works until 2033.
1976: This is when the law truly lost the plot. It did three things: (1) It created Title 17 of the US Code, preempting all other state and federal laws dealing with copyright. (2) It codified the fair use defense, but because it's an affirmative defense and notoriously fickle, it's not really much of a defense. (3) It extended terms dramatically. You can see the current terms here.

For comparison's sake, in 1790, in order to gain copyright protection, you needed to 1) deposit a printed copy at the local United States district court, 2) deposit a printed copy with the Secretary of State within six months of publication, and 3) give notice of the copyright by four weekly advertisements in a newspaper. When the US joined the Berne Convention in 1989, copyright is automatically extended to any work made that is copyrightable subject matter upon creation, published, registered, or not. Although you do still need to register your copyright before suing for infringment.

Now we've got the US Supreme Court holding that copyright durations can be extended indefinitely, even retroactively. Functionally, copyright does not end anymore.

Where this really hurts us is derivative works. Remixes, Let's Play videos, parodies, etc. Since those can be effectively shut down at the drop of a hat, there are people alive today whos kids will die before the parents' favorite videogame from childhood passes into public domain.
posted by Vox Nihili at 2:19 PM on February 3, 2014 [3 favorites]

Actually they've increased dramatically - oh good, now you get why I asked.
posted by dabitch at 2:20 PM on February 3, 2014

Things are entering the public domain and coming out of copyright every day.

You're going to have to explain that one to me, at least if you're talking about U.S. law. Remember, life of the author plus 70 years applies to works created after 1978. Anything before that that's in the public domain passed out of copyright long ago, because it was made before 1923 or its copyright wasn't renewed after the initial 28-year term, back when renewals and 28-year terms were still a thing. If it was renewed, then it had the term extended to 95 years minimum. And the oldest such works, the ones that will pass into the public domain first, don't come due until 2018. At which point we will get another 20-year extension.
posted by Holy Zarquon's Singing Fish at 2:21 PM on February 3, 2014 [6 favorites]

I think that the fact that there are more copyrighted works has more do do with the nature of digital creation, like smartphone cameras and garageband than the nature of copyright.

WRT music creation: Peter DiCola, a law professor who studies music, creative incentives, and copyright found "Composers and musicians in the top income brackets depend heavily on revenue that is directly related to copyright protection. But the vast majority of other musicians do not."
posted by mercredi at 2:23 PM on February 3, 2014 [4 favorites]

The "life of creator" is problematic for many reasons as already mentioned upthread.
posted by dabitch at 2:23 PM on February 3, 2014

"Actually they've increased dramatically - oh good, now you get why I asked."

Yes, that's because now, this forum post is copyrighted. The scribbled nonsense I just jotted down on a piece of scrap paper is copyrighted. All those photos taken by people on Instagram? Copyrighted. Anything that is copyrightable now, is, automatically.

As for the volume of culturally significant works being changed, to the best of my knowledge, there has been no study done.
posted by Vox Nihili at 2:25 PM on February 3, 2014 [4 favorites]

I was thinking there could be another type of solution as well that adds a transitional stage where strict copyright expires and is followed by a phase when the copyrighted work can be used freely by anyone but a cut of all profits (if any are made) still goes to the copyright holder. That cut could even be dynamic and decrease over time. Sort of a gradual easing of creative works into public domain that honors the creators of works while simultaneously benefiting culture as a greater good.
posted by Hairy Lobster at 2:27 PM on February 3, 2014 [3 favorites]

I would settle for a compromise where companies keep their current copyright extensions as they are, as long as they continue to keep the games/music/movies available for sale.

It's absurd that when someone is willing to pay for a product (Like the previously mentioned No One Lives Forever game), they are unable to do so because while no one knows exactly who owns the copyright, it's certain that someone does, and that means you can't just hit up piratebay without breaking the law.
posted by ymgve at 2:29 PM on February 3, 2014 [1 favorite]

Copyright doesn't need to extend any further than the life of the creator. If you created something of value that continues to generate income and you want your kids provided for then do what everyone else does...buy life insurance to protect that earning potential.

Let's say i write a song for my son, about the loss of his mother, and I make it clear during my lifetime that I don't ever want that song selling energy drinks or tennis shoes. why shouldn't my heir have that kind of control over my creation if he wants it. sometimes copyright is not solely about monetization of the art, it's about the spirit of the art, or the legacy of the artist.
forgive me if i don't have a nuanced understanding of copyright law.
posted by OHenryPacey at 2:31 PM on February 3, 2014 [2 favorites]

There are whole classes of works that are more difficult to create because of today's effective perpetual copyright. This is discussed in several of the Eldred v. Ashcroft amicus briefs.

As far as I can tell, retroactive copyright extension has not been a boon to any useful class of works. Retroactive copyright extension provides no benefit to the public, only to rentiers.
posted by grouse at 2:33 PM on February 3, 2014 [6 favorites]

OHenryPacey, it's because the idea is that art and culture more generally belong to all of us, that society as a whole has a vested interest in your creation.
posted by Carillon at 2:33 PM on February 3, 2014 [4 favorites]

I'm just fascinated by the apparent belief that the creators of Gone Home, or for that matter, Call of Duty: Ghosts, were motivated at all by the profits they would make selling their games on incredibly defunct systems during the 2043-2133 timeframe, because that is what the article is talking about here.
posted by Homeboy Trouble at 2:33 PM on February 3, 2014 [8 favorites]

I would settle for a compromise where companies keep their current copyright extensions as they are, as long as they continue to keep the games/music/movies available for sale.

So Disney would have to make the controversial Song of the South film available for sale or lose the copyright. Okay... "Buy Song of the South on DVD & Blu-Ray now for $10 million dollars!" (THIS IS HOW IP LAWYERS ACTUALLY THINK)
posted by entropicamericana at 2:33 PM on February 3, 2014 [3 favorites]

The current copyright term benefits only immortal corporations and their winged IP lawyer minions.

Patents work just fine with existing terms.
posted by benzenedream at 2:34 PM on February 3, 2014 [2 favorites]

Or they could sell it for five seconds out of every year.
posted by Holy Zarquon's Singing Fish at 2:35 PM on February 3, 2014 [3 favorites]

OHenryPacey, it's because the idea is that art and culture more generally belong to all of us, that society as a whole has a vested interest in your creation.
posted by Carillon

how does this apply to private collectors who hold great works of art in collections that are not open to the public. or is this somehow dispensed since copies/prints of those pieces can be bought and sold?

I guess what i'm asking is are there any paintings, for instance, that have not been seen, but have passed into PD even though they are privately held, and should they then be brought forth because of this?
posted by OHenryPacey at 2:40 PM on February 3, 2014

how does this apply to private collectors who hold great works of art in collections that are not open to the public.

I think effectively we just all shoot them the stinkeye and try to guilt them into letting us see it.
posted by Hoopo at 2:45 PM on February 3, 2014 [1 favorite]

spaltavian: "howfar: It just really doesn't work to compare content and durable goods in this way."

and yet when I look at ebooks, the prices are still high compared to the physical product. funny that.
posted by symbioid at 2:48 PM on February 3, 2014

To me, the thing about intellectual "property" is that it's not actually property at all. It is a restriction on your personal property and personal expression. I can't sing "Happy Birthday To You," a song created somewhere between 102 and 121 years ago, in public without fear of being sued. If I record it using a video camera that I own and upload it to a web site I own, someone who claims to have a copyright monopoly on the song can legally have my web site removed.

The two authors have been dead for 68 and 98 years and had no children. But from the grave they prevent me from exercising the most basic rights over my person and property.

I'm fine with temporary restrictions that actually work towards the goal of promoting "the Progress of Science and useful Arts." But when these restrictions do no such thing, I object.
posted by grouse at 2:52 PM on February 3, 2014 [11 favorites]

Not every composer, writer, performer actually want their efforts tossed into the big chopper for others to mash-up, re-cut, re-write, etc.

Don't release it then.
posted by fullerine at 2:53 PM on February 3, 2014 [9 favorites]

If someone can point out the ambiguity in " think this argument is so astronomically false [People need a financial incentive to create. If you take that away, it will harm creativity.] that my hat flies clean off my head when I read it." then do so. Unless it's that he left room for "people to still be doing the Tumblrs" or some variant, in which case feel free to march directly into the sea.
posted by Artw at 2:56 PM on February 3, 2014

I actually had to go back and read the article again to make sure I hadn't misunderstood it. No, I hadn't: He isn't saying creative people shouldn't be paid. Anywhere. Not unless you do some really, heh, creative editing about which sentences that may have implied phrases / objects you choose to read by themselves.

But anyway, there's another point there that I think would make for a potentially interesting discussion. I want to use Sequence's, flatluigi's and Ideefixe's comments as jumping boards....

Sequence: Except that a lot of the problem with copyright is not that you can't redistribute the identical work, it's that you can't even create things based on that work. [...] Sherlock the TV series is based on the Sherlock Holmes stories but it's not just a bunch of video of the text of the stories flowing across your screen. Other people have put a lot of work into transforming that initial content into totally new, distinct, wonderful content.

In the linked article, Walker brings up the point several times that any person who creates cultural artifacts is able to do so because they have been building upon what the culture they have been steeped in has been accumulating, developing, weaving, unraveling and reweaving for a long, long time. And therefore, one of his points is that shouldn't people who created a piece of creative work and have profited rightfully from it not return it to the culture from which it sprang, ultimately? Shouldn't the leaves of the tree become mulch again?

It's important, I think, to open up what he means by "returning the creations to the culture". Quotes from the article:

The [gaming] industry was born into a world where creators already assumed a life-long possession of their particular manipulation of the culture they’d received from others.[...] . But then we return to the my larger, more significant argument: that after those decades of getting paid for it, it’s time to return it to culture.

THAT DOES NOT MEAN CREATORS SHOULD IMMEDIATELY MAKE THEIR CREATIONS FREE FOR EVERYONE FOR ALL TIME. (Sorry for the all-caps, but given the argument above in this thread...) It does mean that it would be nice if, after a certain black-out time (20 or 30 years), new creations, new reworkings, what Sequence was describing in their comment, were, you know, possible instead of only grounds for instant lawsuit with the sole intent of protecting someone's potential revenue stream.

The words "someone's" and "potential" were very intentional in that last sentence, by the way. I didn't say "the creator's" or omit the word "potential," because as many people have pointed out, in the gaming industry it's not the creator that is profiting, and how many copies would a bad remake of The Lost Vikings sell today?

And besides, the reworker may in many cases be the creator itself:

flatluigi: I brought up NOLF's situation earlier, but someone brought up another good example to me: Disney's never going to touch Grim Fandango. They have no interest in rereleasing it or working on sequels to it. What's the loss if Tim Schafer could make a new game based off of it?

I would love that to happen. I would love to give Schafer all of the monies for that if he should feel so moved to play in that universe again. Failing that, I would be happy if I knew Schafer would still be paid if Grim Fandango would, be some miracle, escape from the clutches of the many-legged-mouse-monster into the GoG catalog. (I would likely break a computer mouse in my rush to buy it.) And yet.

There is one ticklish bit:

Ideefixe: This guy's argument would be more impressive if he had any skin in the game. But he's not Lennon-McCartney, exactly, is he? He wants games to enter the public domain because he wants to fiddle around with them. If these were his creative works, he might feel differently. Not every composer, writer, performer actually want their efforts tossed into the big chopper for others to mash-up, re-cut, re-write, etc.. Are these peoples' wishes to be ignored because feelz?

...and I completely understand that. (Heavens, the first time I heard a Beatles song in a car advertisement, I swore at Michael Jackson (who owned the rights to the repertoire at that time) for ten minutes straight.) This is a point that does give me pause.

But I pause and think, and say: Yes. Sorry. If works were put in public domain after 30 years, and with the creators profiting from it for 30 years, I am fine ignoring the creators wishes after that because feelz. And I say this even after having thought about it and deciding that I would feel that way about my songs were I a composer or stories were I a writer---I wouldn't want them meddled with, I would feel it was wrong for them to be meddled with, and I would defend anyone's right to meddle with them the moment such meddling became legal.

Because I feel that links to the age-old question of "does an author have complete control over how their work is interpreted?" That way lies the madness of "you're interrogating the text from the wrong perspective" and writers answering their bad Amazon reviews with PR nightmares. And it ties back to the original point I quoted in the article: From the culture you were born, to the culture you will return. The reworkings and innovation and new sparks will boost more reworking and innovation and new sparks down the way. If 90% of those reworkings will be wastes of electrons, well, I refer you to Sturgeon's Law...
posted by seyirci at 2:56 PM on February 3, 2014 [8 favorites]

There's this old book of fairy tales written by a bunch of guys over two thousand years ago, it's been making about a million dollars a minute for a whole bunch of people all around the world ever since. Hundreds of thousands of institutions employing millions of people have been built on the back of it. It has spawned a trillion works of art. Entire economies, entire national systems of law depend on it, entire philosophies have been designed around it. GUY CAN'T GET A COUPLE OF BUCKS FOR HIS LOUSY FUCKIN PLUMBER PLATFORMER?
posted by turbid dahlia at 2:56 PM on February 3, 2014 [2 favorites]

All the parasites like lawyers, promoters, etc. keep the creatives paid poorly by monopolizing the distribution and promotion channels, ultimately focusing attention and availability onto a smaller numbers of more tightly controlled artists. Artistic genres that escape the parasites move towards artist controlled distribution mechanism : fan pay up front via crowd funding, work are initially only available live at performances, etc.

As for copyright terms, I believe in Thomas Jefferson's principle that "the earth belongs .. to the living". Jefferson concluded that "19 years is the term beyond which neither the representatives of a nation, nor even the whole nation itself assembled, can validly extend a debt", declaring 19 years a hard upper limit on copyrights, patents, etc. Jefferson's argument used actuarial tables, which obviously change with technology, but..

Jefferson's principle similarly tells us that children should reach adulthood without significant debts predating their existence, which sets 18 years as the hard upper limit, possibly less. I'd favor requiring that legal entities respect copyright for 14 years, maybe longer if the copyright holder specifically notifies the organization that they may not infringe. Individuals otoh should only need to respect copyright for at most 7 years, if at all. And individuals should not be prosecuted criminally, only civilly.
posted by jeffburdges at 2:59 PM on February 3, 2014 [2 favorites]

I can't sing "Happy Birthday To You," a song created somewhere between 102 and 121 years ago, in public without fear of being sued.

Er...yes you can. You can sing any song at all in public without fear of being sued. Unless you're in some way seeking money from the performance.
posted by yoink at 3:00 PM on February 3, 2014

I can't sing the BJ McFunnigans hand-clappy birthday ditty in public without getting punched..but I think that's another issue altogether.
posted by OHenryPacey at 3:03 PM on February 3, 2014 [2 favorites]

You can sing any song at all in public without fear of being sued.

Including the one about the hedgehog? /nannyogg
posted by howfar at 3:04 PM on February 3, 2014 [4 favorites]

In this Article, we use statistical analysis to examine whether changes in copyright law influence the number of new works created. Relying upon U.S. copyright registrations from 1870 through 2006 as a proxy for the number of works created, we consider how four variables—population, the economy, changes in the law (both legislative and judicial), and technology—influenced new copyright registrations.

...

Despite the logic of the theory that increasing copyright protection will increase the number of copyrighted works, the data do not support it. Instead, our findings demonstrate that the historic long-run growth in new copyrighted works is largely a function of population. Sharp changes are mostly due to procedural shifts in copyright registration, such as those created by the Berne Convention Implementation Act of 1988.

Does Copyright Law Promote Creativity? An Empirical Analysis of Copyright’s Bounty [PDF]

Lots of other good stuff in that article; worth the time of everyone actually interested in the meat of this issue.
posted by monju_bosatsu at 3:05 PM on February 3, 2014 [17 favorites]

Not every composer, writer, performer actually want their efforts tossed into the big chopper for others to mash-up, re-cut, re-write, etc.. Are these peoples' wishes to be ignored because feelz?

There is a really important point here. Literally every composer's, writer's, and performer's efforts are a result of the 'big chopper'. No-one creates in a vacuum. Everyone stands on the shoulders of giants.
posted by Sebmojo at 3:09 PM on February 3, 2014 [7 favorites]

You can sing any song at all in public without fear of being sued. Unless you're in some way seeking money from the performance.

This is one of those "no copyright intended" misunderstandings of copyright law. From 17 USC § 106:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:…

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

Doesn't say anything about "in some way seeking money." There is no protection from a copyright infringement lawsuit merely because someone is not attaining immediate monetary advantage.
posted by grouse at 3:10 PM on February 3, 2014 [5 favorites]

You are standing on the shoulders of a giant. Press X to stab the giant in the neck.
posted by prize bull octorok at 3:11 PM on February 3, 2014 [12 favorites]

I'd love to re-frame this conversation but realize at this point it's pretty useless.

1) As has been mentioned before, due to Disney, et al. the odds are any videogame ever published will never fall into public domain unless specifically licensed to be there by the creator (quite often creator in the corporate sense, having nothing to do with the person/hundreds of persons who actually CREATED the game).

2) If a publisher decides to stop printing a book, you have a good chance of finding it in the library or a used bookseller. The same with recorded music. If a game publisher decides to never re-release a game, especially now in the era of digital downloads and DMCA making it illegal to mod the game to run on modern hardware and software without permission, you'll never get to play that game.

So what? It's the copyright holder's prerogative to publish or not. Sure. But what if they're out of business. What if no one even knows who, if anyone, owns the rights anymore? Then is something like No One Lives Forever lost to the ages, not because it's lost art like a missing Shakespeare folio, but because it's illegal to distribute the ones and zeroes that make up that game for the next 100 years?

This argument is a huge back and forth about long-term remuneration of creatives/artists. But in the case of video games almost all of the creatives are actually performing work-for-hire. This should be an argument about how extended copyright mixed with digital distribution affects consumers' long-term access to goods in the 21st century.
posted by thecjm at 3:12 PM on February 3, 2014 [4 favorites]

Er...yes you can. You can sing any song at all in public without fear of being sued. Unless you're in some way seeking money from the performance.

O RLY?
posted by entropicamericana at 3:14 PM on February 3, 2014

As other other forms of copyrighted works increasingly become distributed through digital channels, the issues thecjm raises will soon apply beyond video games.
posted by grouse at 3:17 PM on February 3, 2014

This argument is a huge back and forth about long-term remuneration of creatives/artists. But in the case of video games almost all of the creatives are actually performing work-for-hire. This should be an argument about how extended copyright mixed with digital distribution affects consumers' long-term access to goods in the 21st century.

Work for Hire effectively means you're being paid up front for your contributions rather than earning from them over time - copyright is still a component in why you get paid. Now, there's all kinds of unfair arrangements possible there and some deep past injustices that need combating, but it doesn't negate the need for copyright or artists getting paid.
posted by Artw at 3:18 PM on February 3, 2014

O RLY?

Um, yes? It says right in that article you linked:

Use it for any commercial purpose, and you are supposed to pay up, says George Washington University School of Law professor Robert Brauneis
posted by Hoopo at 3:19 PM on February 3, 2014

How can anyone defend retroactive copyright extensions? That’s clearly defaulting on the terms of the agreement (regarding the duration of the monopoly) that we made with the publisher at the date of publication. It’s proof that the people who enacted those laws are corrupt.
posted by Human Flesh at 3:21 PM on February 3, 2014 [4 favorites]

There is no protection from a copyright infringement lawsuit merely because someone is not attaining immediate monetary advantage.

Apart form it being very difficult to demonstrate any damages
posted by Hoopo at 3:21 PM on February 3, 2014

You can sing any song at all in public without fear of being sued. Unless you're in some way seeking money from the performance.

"If you want to sing it at your home at a birthday party you don't have to pay anything, because that is a private performance"
posted by entropicamericana at 3:22 PM on February 3, 2014

At this point I'm just about done with RPS. If it wasn't for Cara Ellison I wouldn't bother at all.
posted by Hogshead at 3:24 PM on February 3, 2014

"Um, yes? It says right in that article you linked:

Use it for any commercial purpose, and you are supposed to pay up, says George Washington University School of Law professor Robert Brauneis"

This is likely because of the way Warner licenses the song, not directly due to copyright law. Beyond fair use defense (and a few other edge cases that come up during a trial), copyright law does not make a distinction between commercial and non-commercial use. And we have no compulsory licensing in the US.
posted by Vox Nihili at 3:26 PM on February 3, 2014

At this point I'm just about done with RPS. If it wasn't for Cara Ellison I wouldn't bother at all.

It certainly feels like an unexpected slap in the face from a source I usually think better of.
posted by Artw at 3:26 PM on February 3, 2014

Apart form it being very difficult to demonstrate any damages

Thanks to statutory damages for copyright infringement, you don't have to demonstrate any damages at all. A court could award damages for that one song anywhere between $750 and $150,000. No actual damages or commercial advantage necessary.
posted by grouse at 3:28 PM on February 3, 2014 [2 favorites]

dabitch: "Actually they've increased dramatically - oh good, now you get why I asked."

But this means nothing. There are more people in the world, too. Neither of these is necessarily the reason there is more artistic activity - we don't know. But a good argument can be made for copyright stifling artistic activity.

As a jazz musician, it's sure as hell stifled my artistic activity, let me tell you. There's a very limited amount of music you're technically legally able to play professionally, even live. And the amount of sheet music available makes things difficult sometimes. The Gershwin family, for example, has quashed most publications of the famous brothers' music, which means that jazz musicians who play from fake books almost never play Gershwin tunes now. That is a significant cultural loss.

Unlimited copyright (or virtually unlimited copyright, as we have now) hurts future artists and hinders future creative activity.
posted by koeselitz at 3:28 PM on February 3, 2014 [15 favorites]

Let's say i write a song for my son, about the loss of his mother, and I make it clear during my lifetime that I don't ever want that song selling energy drinks or tennis shoes. why shouldn't my heir have that kind of control over my creation if he wants it.

Do you believe that someone who is the heir of the heir of the heir... of the heir of Shakespeare should be allowed to say which companies can put on performances of Shakespeare's plays, or that this person should be allowed to sue to prevent people from using passages like "all the world's a stage" or "If you prick us do we not bleed?" and so on?

Do you believe that the heir of the heir of the heir... of Beethoven should be able to determine which composers are allowed to reference the beginning the 5th and who are not, and license who is allowed to perform it and who is not?

Of course not. Nobody does. The very idea is ridiculous. But this applies to the song you wrote for your kid, too.
posted by ROU_Xenophobe at 3:32 PM on February 3, 2014 [11 favorites]

Neither of these is necessarily the reason there is more artistic activity - we don't know.

But the article monju_bosatsu's links provides an interesting and detailed analysis of the subject.
posted by grouse at 3:33 PM on February 3, 2014 [1 favorite]

entropicamericana: (THIS IS HOW IP LAWYERS ACTUALLY THINK)

I'm not sure there is any scientific evidence to prove that IP lawyers actually think, as opposed to just some demonic hive-mind that materializes words on their slimy tongues.
posted by xqwzts at 3:38 PM on February 3, 2014 [6 favorites]

Artw: "It certainly feels like an unexpected slap in the face from a source I usually think better of."

How on earth can you defend perpetual and eternal copyright?

If you aren't defending perpetual and eternal copyright, why on earth are you still criticizing this article?

OHenryPacey: "Let's say i write a song for my son, about the loss of his mother, and I make it clear during my lifetime that I don't ever want that song selling energy drinks or tennis shoes. why shouldn't my heir have that kind of control over my creation if he wants it. sometimes copyright is not solely about monetization of the art, it's about the spirit of the art, or the legacy of the artist."

Because no one should have that kind of power over the freedom of speech of other human beings. What if that song becomes a beloved anthem that a whole society adores? You're suggesting that school children should not be allowed to sing it if they wish, that high school bands should not be allowed to perform it, that street musicians should not be allowed to play it, unless they pay the son and heir.

Understand that copyright is a significant restriction of the freedom of speech. It's worth it when we can be sure that such a restriction has a direct and beneficent effect on the artist or creator of the work, because then we know it is encouraging the production of such work. When there's even the slightest hint of a possibility that the artist themselves is not getting rewarded for their work, we need to stop copyrighting and start giving people their freedom of speech back.

Personally, I think a corollary of this is the notion that copyright must be non-transferable. If a team of people make a video game, it ought to be their game, not EA's or whatever. If they choose to quite EA and go work for somebody else, they should be allowed to take their game with them. I appreciate that this is not how copyright works today, but I have no idea how anyone can entertain the pleasant fiction that copyright is about benefitting creators as long as copyrights are transferable.
posted by koeselitz at 3:41 PM on February 3, 2014 [4 favorites]

Artw: "It certainly feels like an unexpected slap in the face from a source I usually think better of."

How on earth can you defend perpetual and eternal copyright?

To clarify the slap in the face is John Walker jumping on the "artists don't really need to get paid" bandwagon, which is different from the argument about copyright lengths.

FWIW I am not in favour of perpetual and eternal copyright. 20 years on the other hand seems absurdly short.
posted by Artw at 3:49 PM on February 3, 2014

And to further clarify:

If you aren't defending perpetual and eternal copyright, why on earth are you still criticizing this article?

Because John Walker put a big stinky turd in the punchbowl, and whilst you may choose to ignore it or paddle around it, it is still there.
posted by Artw at 3:51 PM on February 3, 2014 [1 favorite]

He says: My point was, and is, that I have a desire for artistic creations to more quickly (indeed, at all) be released into the public domain, after a significant period of time during which the creator can profit.

So it seems he's not in favor of the thing you are also not in favor of.
posted by rtha at 3:52 PM on February 3, 2014 [1 favorite]

Artw: "To clarify the slap in the face is..."

Yeah, you clarified that early. It's a very minor point in the essay, but you'll note that every single person here seems to agree wholly with you. Nobody here is claiming that artists should never be paid. So what exactly is your point here?
posted by koeselitz at 3:53 PM on February 3, 2014 [2 favorites]

FWIW I made a meta about the trend on the site to threadshit on a post without reading the article that specifically mentioned this thread + I forgot the proper thing to do when you do that is to mention it in the relevant thread, so there it is.
posted by flatluigi at 3:56 PM on February 3, 2014

Because "Hey, we agree that artists should be paid, but we don't like how they're getting paid now, and we don't have any ideas on alternative models that deal with the issues that the model we don't like deals with" isn't much of a difference.
posted by NoxAeternum at 3:59 PM on February 3, 2014 [1 favorite]

Because "Hey, we agree that artists should be paid, but we don't like how they're getting paid now, and we don't have any ideas on alternative models that deal with the issues that the model we don't like deals with" isn't much of a difference.

That, and "artists don't really need to be paid, someone would do it anyway" is a side argument for the same.
posted by Artw at 4:00 PM on February 3, 2014

Incidentally, Artw, I am mostly puzzled because I think we pretty much agree. As I said above, I really like the pre-1909 model of copyright terms lasting 42 years. That feels exactly right for me because it's long enough to last into an artist's retirement, but not long enough to prevent works from being cultural artifacts that a society can use and learn from. I tend to agree that twenty years is a bit short; twenty years is not a very long time, and an artist who had a very productive youth but (say) has an illness later in life is screwed that way. I'd probably add the caveat that copyright terms should end when an artist dies.
posted by koeselitz at 4:01 PM on February 3, 2014

20 years on the other hand seems absurdly short.

On what grounds?

Assuming you retire at 65, plus 20 years brings you up to 85, which is hanging around average life expectancy. On what grounds should your (now very much adult) children continue to benefit? They can't stand on their own two feet?
posted by Jimbob at 4:02 PM on February 3, 2014

That, and "artists don't really need to be paid, someone would do it anyway" is a side argument for the same.

Are you claiming that "someone would do it anyway" is a false statement? Or just an uncomfortable one to hear?
posted by Jimbob at 4:03 PM on February 3, 2014

Jimbob: "Assuming you retire at 65, plus 20 years brings you up to 85, which is hanging around average life expectancy."

So, uh, you're positing a situation where an artist creates their most popular and lucrative works at the moment when they retire. Which I guess is possible, but... is it really likely?

There are Pavement records that came out more than twenty years ago. Are you saying Malkmus and co should never see a dime again for that work? Keep in mind that they're not really that old and not likely to retire for a while now.

42 years feels like a much more reasonable term.
posted by koeselitz at 4:05 PM on February 3, 2014 [4 favorites]

I think 20 years makes sense for a medium where obsolescence is a thing, like video games, or for kinds of music where sampling and remixing become the foundation of significant new works. But it would be a fool's errand to try and carve out a statutory exemption for those cases.
posted by Holy Zarquon's Singing Fish at 4:06 PM on February 3, 2014

Are you claiming that "someone would do it anyway" is a false statement?

Yes. It's the "but Tumblr exists, we don't need paid artists" argument all dressed up. It's an argument many on MeFi are fond of, but I believe it to be false. There's some argument back on forth on this here, FWIW.
posted by Artw at 4:06 PM on February 3, 2014 [1 favorite]

There's a lot of room between "some people would still make things" and "the arts would be at or close to the level they are now." I don't think it's reasonable to read Walker's entire piece and think he supports the second.
posted by Holy Zarquon's Singing Fish at 4:09 PM on February 3, 2014 [1 favorite]

From this point forward, if you need to get into meta-"MeFi is like this"-commentary there is a MetaTalk thread already open for this thread and please go there.
posted by jessamyn (staff) at 4:09 PM on February 3, 2014 [2 favorites]

"They could sell T-Shirts!", "Kickstarter is a thing", etc... etc...

Yes, I am aware of that.
posted by Artw at 4:10 PM on February 3, 2014 [1 favorite]

I really like the pre-1909 model of copyright terms lasting 42 years.

Average lifespan in 1909 was about 50 years, or even less. Today, considerably longer.
posted by IndigoJones at 4:11 PM on February 3, 2014 [2 favorites]

There are Pavement records that came out more than twenty years ago. Are you saying Malkmus and co should never see a dime again for that work?

Fair point, but extending it so royalties are delivered to the creators' children when they are themselves old is a bit much.

It;s an argument many on MeFi are fond of, but I believe it to be false

At what point in human history did you think this suddenly happens, then? How long after he completed the Sistine Chapel was Michaelangelo getting royalty cheques from the Pope? Did no humans ever in the past gather around and play some drums and flutes?

Mick Jagger made an interesting point a while back, which I'll link if I can find it - the point that he basically got extremely lucky in being active in the music industry during the only period of about 30 years in history when people got paid. Before that, record companies got paid but artists really didn't. Before even that, music was not a reproducible commodity and you got paid for performance of it - actual real time work. After that period, it has become so easily reproducible that it has become valueless, and actual real-time work earning a living playing it is the only way to make money again.
posted by Jimbob at 4:12 PM on February 3, 2014

More like 62 once you're old enough to walk and talk. Infant mortality did a number on actuarial tables until the mid-20th century.
posted by Holy Zarquon's Singing Fish at 4:13 PM on February 3, 2014 [4 favorites]

"They could sell T-Shirts!", "Kickstarter is a thing", etc... etc...

So in the tens of thousands of years of human history before either T-shirts or Kickstarter, when humans were cheerfully making art as a fundamental cultural practice, what was driving them then?
posted by Jimbob at 4:14 PM on February 3, 2014 [1 favorite]

: "Average lifespan in 1909 was about 50 years, or even less. Today, considerably longer."

Lifespans haven't changed that much when you rule out infant mortality.

But the inclusion of infant mortality rates in calculating life expectancy creates the mistaken impression that earlier generations died at a young age; Americans were not dying en masse at the age of 46 in 1907. The fact is that the maximum human lifespan — a concept often confused with "life expectancy" — has remained more or less the same for thousands of years. The idea that our ancestors routinely died young (say, at age 40) has no basis in scientific fact.

posted by mullingitover at 4:16 PM on February 3, 2014 [9 favorites]

Holy Zarquon's Singing Fish: "I think 20 years makes sense for a medium where obsolescence is a thing, like video games, or for kinds of music where sampling and remixing become the foundation of significant new works. But it would be a fool's errand to try and carve out a statutory exemption for those cases."

Honestly at this point I feel like talking about copyright terms with video games makes no sense. "Obsolescence" is not a rational parameter for copyright, because obsolescence doesn't make much sense in terms of art. If you don't believe me, come to my house; I will play the shit out of some games from more than two decades ago, and you can watch. Besides, it'd be impossible to map that out with any degree of specificity to games. There are games from twenty years ago that are more playable on modern hardware than games from five years ago, just because of the vicissitudes of hardware and compatibility.

The issue with copyrights and games isn't the copyright term. It's who holds the copyright. Because copyrights are transferable, the authors of games are not the arbiters of when and how they get published; massive corporate entities are, and they tend not to give a crap. But if Joe Programmer who retired from game design ten years ago holds the rights on some game she made back then that was popular, and two dozen people email her begging her to release it online for a few bucks, she probably will, because it's the kind of income stream that's worth it to her. Sure, there will be holdouts, but it will make a lot more sense as far as convincing people to rerelease old games.

There are some difficulties with that scheme, though. Most of all the fact that large teams make games nowadays.
posted by koeselitz at 4:17 PM on February 3, 2014

I'm trying to analyze the notion of copyrights in a way that distinguishes between, say, an author's book, and a pill that cures cancer.

Would that be simply the realm of an individual vs a corporation? It's the corporate copyright that gives me trouble here.

I don't know that the creators' sweat ought to be the decider. I like the idea of a songwriter or book author having a check come in the mail. Or even an actor. I get all warm and fuzzy when I think about how Shatner gets paid a few cents every time I watch TOST. But I can't defend that on any given logical ground. But I'm gonna sing what I sing if I can figure out the chords and get it in my range. I'm safe, because I don't do it for money, and they won't come after me for performing down at the Senior Center. You can see that, given the room to move, I don't try to put a fine point of every goddam thing that comes up.

Video games present an interesting mix of individual serendipity, and corporate effort. Good luck with that.

Go Zelda.
posted by mule98J at 4:20 PM on February 3, 2014

How on earth can you defend perpetual and eternal copyright?

This comment might actually highlight exactly how messed up the discourse on this topic is, and why people are upset at Walker for taking a dump on it right in the middle of a somewhat legitimate point.

Lots of these people believe perpetual copyright is a bad idea and we should have shorter terms and other changes, myself included.

The problem here is that Walker's whole "artists don't need royalties any more than tradesmen / laborers / salarymen do" schtick boils down to saying perpetual copyright is a bad idea because copyright generally is a bad idea (if making art really is like any other form of wage labor, then copyright may well not have much effect).

The fact that he indicates elsewhere that he's really getting at shorter terms doesn't change the fact that the argument he made undermines any term of copyright (or that his argument doesn't stand up to scrutiny -- situations where the cost of producing the first copy of something is very high while reproduction is cheap/free are different from situations where marginal costs of production are constant or fall slowly with scale).
posted by weston at 4:28 PM on February 3, 2014 [5 favorites]

A "pill that cures cancer" would be protected by a patent, not copyright. Utility patents operate for 20 years and it doesn't stop people from developing new drugs.
posted by grouse at 4:31 PM on February 3, 2014 [5 favorites]

A bit apropos, but: Just because you own the copyright to a 30 year old game, it doesn't mean you will get your contractually agreed cut of modern day sales.
posted by ymgve at 4:44 PM on February 3, 2014 [1 favorite]

So, like, if this guy got his wish, how would this work for video games exactly? Clock hits twenty years, Grim Fandango is now a public domain game, then what? We can all copy and share the existing executables without fear of prosecution? Disney is compelled to release the source code under a creative commons license? Do the Grim Fandango characters enter the public domain as well, or just the game itself? What about games that got an updated version made for modern consoles within their twenty-year period, do they get an extension, or does that just apply to the remake, or what?

These don't seem to be all that difficult to solve; they already have been in other fields.

We can all copy and share the existing executables without fear of prosecution?
Can we all copy and share the existing text of Hamlet without fear of prosecution?

Disney is compelled to release the source code under a creative commons license?
Is a musician compelled to release the sheet music, the individual tracks, or a detailed description of the recording process under a creative commons license? (As a side note, this is sort of hypothetical, since copyright law is so preposterous that there isn't any music after the era of sheet music that is publicly available, nor will there be until 2067 or later, and that's assuming there's no extensions which is unlikely given the current state of affairs, and even then, it's the music of people like Al Jolson and Paul Whiteman that is coming available.)

Do the Grim Fandango characters enter the public domain as well, or just the game itself?
Have the Sherlock Holmes characters entered the public domain as well?

What about games that got an updated version made for modern consoles within their twenty-year period, do they get an extension, or does that just apply to the remake, or what?
What about movie remakes of old movies, does the original get an extension, or does that just apply to the remake, or what? The original 1967 Romero Night of The Living Dead is (unintentionally) public domain; the 2006 3D film of the same name is protected under its' own copyright, and did not magically put the original back into protected status.

I'll note that the Street Fighter 2 Oral History a few posts below on the front page mentions the Capcom - Data East lawsuit in chapter 4, where Capcom were claiming copyright on elements like one joystick and six buttons, and having two fighters in a ring. They lost, but one bad decision in a case like that could literally grant a company the exclusive rights to a genre of game literally halfway into the next century if not forever, and it's not like software patent law is 100% foolproof.
posted by Homeboy Trouble at 4:51 PM on February 3, 2014 [8 favorites]

It's kind of troubling that Grim Fandango is only available used and unless something changes there will soon be essentially no used video games after a certain point.
posted by ODiV at 4:57 PM on February 3, 2014 [9 favorites]

Do you believe that someone who is the heir of the heir of the heir... of the heir of Shakespeare should be allowed to say which companies can put on performances of Shakespeare's plays, or that this person should be allowed to sue to prevent people from using passages like "all the world's a stage" or "If you prick us do we not bleed?" and so on?

I think there's a fair enough amount of room between a person who is alive when the song is written (my son), and whom the song is about, and the scion of a 500 yr dead playwrite who never expressly made his wishes known.
But it was a hypothetical anyway, and i get that there is a lot of debate on what society feels it is owed by an artist and what an artist feels he or she is owed in terms of IP rights.
posted by OHenryPacey at 5:04 PM on February 3, 2014

The only definitive thing that I've gathered from this thread is that I really want to reinstall No One Lives Forever.
posted by Mr. Bad Example at 5:17 PM on February 3, 2014 [5 favorites]

Speaking of heirs, if I buy a video game, should I not be able to pass it on to my daughter? Because increasingly, this isn't the case.
posted by ODiV at 5:23 PM on February 3, 2014 [2 favorites]

The author seems very unpleasant sort of fellow. (“the tumescent Phil Collins”, “dribble-chinned” – seriously?) He also doesn’t seem to know his apples from his oranges. Anyway, a few reactions:

Take Broussard’s claim above, that “Creatives have a right to be paid indefinitely on their work”, and switch out “Creatives” for any other job. “Dentists”, “teachers”, “librarians”, “palaeontologists”… It starts to appear a little ludicrous.

Because it is ludicrous. The analogy, I mean. The author’s conflating The Work (drilling teeth, domesticating the youth, stamping books, digging up bones) with the sale(s) of the work. As mentioned above, labor is rewarded in many ways - salesmen get commissions, executives get salaries, lawyers get hourlies, waiters get tips, garment workers get paid by the piece, plumbers by the job – what they share in common is that they do get paid more or less predictably, more or less quickly, which is a big plus.

Creatives - not so much. Unlike the dentists, the teacher, the librarian, the palaeontologist, they, the song writers, authors, craft a product that few people need and fewer want, for which they may get a small advance (or very rarely a large advance) - but they will have to wait to get the real money. Wait and hope that sooner or later their work catches on, that sales will grow over time, that the next one will be as good or better than the last one, that they are not wasting their lives in pursuit of a chimera. Depend on it, if a creative could arrange to see the future and get paid up front in full for all his sales for the life of his copyright, he'd would go for it in a heart beat. (Or throw in the towel before it's too late.) Time is a question mark for creatives in a way it is not dentists, teachers, librarians, or paleontologists.

(Oh, and that dentist, teacher, librarian and paleontologist is not competing in a market flooded with also-rans and wannabes who are giving the work out for free. Nor does the DTLorP have to worry about running out of ideas, or being a one hit wonder.)

Why should someone get to profit from something they did fifty years ago? In what other walk of life would we willingly accept this as just a given?

Because each sale, each transaction, is discrete. What has age to do with it? If a carpenter makes a bunch of chairs that sit on the shelf for fifty years, he is perfectly entitled to profit from their sale today. They do not necessarily lose value just because it is old.

If a policeman demanded that he continue to be paid for having arrested a particular criminal thirty-five years ago, he’d be told to leave the room and stop being so silly.

Now who’s being silly? Apples to oranges. The cop’s big arrest is more like a concert than the sale of a CD. Officer Krupke was paid for a single transaction by all taxpaying citizens. Show’s over.* Similarly, the singer does not get paid in perpetuity for a one-off concert, he gets paid for the sale of each ticket. Absent Woodstock, there aren’t too many commercial concert venues where a tenth of the audience pays to get in and the rest get to gate crash. In effect, CDs, books, movies in portable form are convenient personalized repeatable Creative Experiences – this is what you’re paying for.

Unless he can come up with a way for creatives to get a fair payback for the work (which, absent revenue projectors that can see decades into the future, would seem impossible), he might leave the subject alone.

*(Mind you, if he could get people to buy him drinks for fifty years on the basis of his regaling the punters with his act of derring do, who’d complain? Or better yet, write a book.)
posted by IndigoJones at 5:25 PM on February 3, 2014 [5 favorites]

Unless he can come up with a way for creatives to get a fair payback for the work (which, absent revenue projectors that can see decades into the future, would seem impossible), he might leave the subject alone.

I'm still really hesitant about tying fair payback for creative work to the proposal of cutting copyright periods. It's not like it's been a hallmark of the games industry under the current system, right?

Based on the treatment of these IPs thus far, future revenue potential has been almost entirely ignored to my untrained eyes. There are publicly traded video games companies with open financials now, so while it has been my suspicion that sales of 20 year old video games haven't figured in to their planning (or even anything over two years, frankly), someone should be able to come along and tell us for sure, right?
posted by ODiV at 5:42 PM on February 3, 2014

Because each sale, each transaction, is discrete. What has age to do with it? If a carpenter makes a bunch of chairs that sit on the shelf for fifty years, he is perfectly entitled to profit from their sale today.

Sure. But once the copyright for the design of the chair runs out, anyone can make an exact copy of the chair and sell it too.
posted by Bunny Ultramod at 5:52 PM on February 3, 2014

Depend on it, if a creative could arrange to see the future and get paid up front in full for all his sales for the life of his copyright, he'd would go for it in a heart beat. [...]
Unless he can come up with a way for creatives to get a fair payback for the work (which, absent revenue projectors that can see decades into the future, would seem impossible), he might leave the subject alone.

Yeah, except we're talking -- or at least the linked article is talking; we here are sort of talking about a lot of things randomly -- about video games. Video games are, in the main, made by teams of salaried workers, who receive no more revenue for the game than a salary, perhaps a bonus if the game does well out of the box. There exist a few exceptions of lone auteurs -- but they're rarer than you think; Markus "Notch" Persson famously wrote the alpha version of Minecraft on his own, but now that it's a commercial product, he has 37 employees. I'd guess at least 99% of the creatives who make video games full time do so on salary, which is (presumably) the fair payback for their work.

So congratulations! Your nirvana has already been reached on this topic, where the creatives are being paid up front for the work they do. We're now talking about whether it benefits society for the corporation that bought the corporation that merged with the company that payed them originally to prevent any creative reuse until the middle of the 22nd century.
posted by Homeboy Trouble at 6:13 PM on February 3, 2014 [9 favorites]

They lost, but one bad decision in a case like that could literally grant a company the exclusive rights to a genre of game literally halfway into the next century if not forever,

With the possible exception of Def Jam Fight For NY and maybe the first 2 Mortal Kombats, I'd actually be OK with Street Fighter 2 being the one legally allowed fighting game
posted by Hoopo at 6:30 PM on February 3, 2014

Of course George Broussard doesn't want game copyrights to expire after 20 years. After all, 20 years is uncomfortably close to the last time he had a job.
posted by Pope Guilty at 6:48 PM on February 3, 2014 [2 favorites]

Please keep in mind that the argument is not that artists should not be paid for their work: it is that remix art and derivative work based on work made since Mickey Mouse does not deserve compensation and that artist working with anything after Disney was founded must do it for the love of it, because asking for extended copyright fundamentally denies many kinds of artists to be able to sell their work.
posted by NoraReed at 7:40 PM on February 3, 2014 [3 favorites]

...the romantic myth that art is the product of a lone, tortured, creative genius.

And his sidekick, Tonto.

My newest band, though, as it happens, is called The Lone, Tortured, Creative Geniuses. Come hear us next Tuesday night!
posted by flapjax at midnite at 7:44 PM on February 3, 2014

The thing with copyright is that is lasts a very long time even if the original author doesn't care about the work anymore. It's far too difficult to abandon even your own copyright.

This is relevant to preservation efforts. Consider old arcade games. The bulk of their preservation work was done essentially by pirates operating in a grey area of copyright law, ripping ROMs and writing emulators. In some cases, the companies who own the copyrights long ago tossed the design documents and sometimes even lack records of who designed the game (Data East is one such example).

No one makes CRTs anymore, and finding a working vector display is like striking gold. The guys who developed the original hardware and software are getting old. Better hope in 30 years we've got decent iOS emulation, because all of those batteries are non-replaceable.

In other words, if I don't take care of my property, a squatter will come along eventually and claim it. There should be a similar system for copyright. Because unlike land, this stuff can vanish for good.
posted by RobotVoodooPower at 7:49 PM on February 3, 2014 [11 favorites]

But by making copyright (in general) something that has to be actively defended (like trademarks), I think you're putting an onerous burden on those who create as individuals or small groups, like authors and songwriters. Then not only do they have to create, they also have to spend valuable time (and money) tracking down & shutting down copyright violations.

And the danger there is that corporations would have the resources to do that, while individuals wouldn't, so you wind up with a situation where Disney keeps their copyrights forever, because they can afford to defend them, while virtually every author besides Stephen King and John Grisham winds up with their stuff in the public domain while they're still alive. Or they are effectively forced to turn over a share of their copyright to a publisher so the publisher (who has resources) now has incentive to defend the copyright.

So my opinion is that scenario kind of violates the spirit of copyright.

Better, I think, to address the issue via reducing the length of copyright terms. And as far as I can tell, with games a large part of the problem is that right now (in the U.S.) their copyright has been sort of finagled into the existing statues covering literary works and audiovisual works, rather than games being addressed as their own entity.

I think a strong case could be made that games need to be considered as a separate section of copyright law, and further that because games are inherently technology-dependent in ways that books or songs aren't, a much shorter period of copyright protection would preserve the rights of the copyright holder to benefit in a realistic time frame.
posted by soundguy99 at 9:19 PM on February 3, 2014 [1 favorite]

Because each sale, each transaction, is discrete.

"...ephemeral, ubiquitous, insubstantial, available, valueless, free."
posted by Sys Rq at 9:37 PM on February 3, 2014

I think 90% of the benefit of copyright reform would come from eliminating orphaned works by requiring regular re-registering of title. Yes, you'd still have people like "that shitbird grandson of James Joyce" acting as gatekeepers, but there'd be massively more stuff in the public domain - and, which is more, known to be in the public domain. The uncertainty that exists right now is what kills a lot of re-publishing attempts.
posted by Joe in Australia at 11:38 PM on February 3, 2014 [1 favorite]

Here's a politically and technically unworkable (but personally satisfying) solution to the copyright problem in general:
1). Copyright is for a moderate term, say 50 years; this could/should be shorter for interactive media, which inherently has a very rapid technological obsolescence.
2). Extensions are available for 25 years apiece, indefinitely.
3). Only 10 extensions are granted every year, on a sealed-bid auction basis. No work under copyright can have more than one extension granted at a time (i.e. you have the 25 years of your first extension to secure your second extension; no stockpiling).
4). The auction results are used to fund the creative arts; this could be perhaps 10 times the annual budget of the National Endowment for the Arts.

Existing copyright law is so incredibly skewed because there is a small list of incredibly valuable copyrights, like Mickey Mouse, that corporations are primarily trying to control; this solution not only permits them to be indefinitely retained if so desired, but gets a benefit for the rest of society for these limitations on our common cultural heritage. The rules are simple to apply; there is a list of registered extended copyrights (which would quickly become famous in its' own right) to refer to as exceptions. The one technical trick is figuring out what an item is for the purposes of this; it's probably not "Billie Jean", but rather "Thriller", or maybe the entire Michael Jackson catalogue. There would only ever be 250 of these things so protected at any one time, and obviously future creations would eventually push older ones off the list - maybe in 2047 the Knowles-Carter catalogue owners outbid the Michael Jackson owners or whatever.

Sure, it's an exception for the incredibly wealthy, but the current option is that everything happens under their terms.
posted by Homeboy Trouble at 1:02 AM on February 4, 2014 [2 favorites]

For those who might still be wondering if copyright really stifles creativity, here is a good article on that I came across today: "Are Art Professionals Afraid Of Fair Use?" It is concerning a new report on Fair Use prepared for the College Art Association, which found generally that (I am quoting from the report now):

• Members of the visual arts communities typically overestimate the risk of employing fair use, which leads them to avoid it, even in circumstances where the law permits and so doing would not harm personal relationships necessary for their work.

• They pay a high price for copyright confusion and misunderstanding. Their work is constrained and censored, most powerfully by themselves, because of that confusion and the resulting fear and anxiety.

• The highest cost is scholarship left undone, knowledge not preserved for the next generation, creative use of digital opportunities truncated—the “missing future.”

This is a serious problem, I think. The thing about important works of art of the past is that we need to be able to talk about them. As it stands now, people are afraid even to present them for discussion.
posted by koeselitz at 6:24 AM on February 4, 2014 [8 favorites]

Joe in Australia: “I think 90% of the benefit of copyright reform would come from eliminating orphaned works by requiring regular re-registering of title. Yes, you'd still have people like "that shitbird grandson of James Joyce" acting as gatekeepers, but there'd be massively more stuff in the public domain - and, which is more, known to be in the public domain. The uncertainty that exists right now is what kills a lot of re-publishing attempts.”

We had that for a very long in the United States, and I don't think it helps much. The vast majority of work produced in that era was re-registered. Re-registering title, often for someone else for a cut, basically became a cottage industry. That's problematic in whole new ways.
posted by koeselitz at 6:26 AM on February 4, 2014

I'm not as anti-copyright as I used to be. I definitely think a well-defined copyright duration is useful and necessary. I think some works have shorter useful lives and should enter the public domain sooner, but it's very hard to define a good mechanism of distinction.

Lacking that, I think a model with a base period plus a couple of optional, no cost extensions would be a decent idea. Also, life of creator seems largely irrelevant. If you asked me, I'd probably go with 25 years from first publication base plus, say, two optional 20-year extensions. That'll make it possible to extend the copyright period to the length of basically any creator's life time, but works that have little or no commercial value, or no interest from the creator, would pass into the public domain earlier.

Also, the extensions would require registration of the current rights holder, with contact information, etc., which would simplify things for potential licensees.

This still doesn't solve the problem of corporate-owned copyrights being extended for as long as possible as a matter of routine, since IP lawyers are just like that, but at least it'll help.

Finally, make every work subject to the copyright laws in effect at the time of creation. This'll lose us some of the newer stuff, but it should really be non-controversial. If copyright is meant to encourage creation, there's no need to extend the copyright of works that are already created.
posted by Joakim Ziegler at 6:53 AM on February 4, 2014

Also, some sort of requirement to keep a work available for purchase/licensing to the general public to be able to get the extension might be a good idea, but harder to do.
posted by Joakim Ziegler at 6:55 AM on February 4, 2014

I wonder how the old "you can see t-shirts" argument is doing now in the days of Tee-Fury.
posted by Artw at 8:01 AM on February 4, 2014

Invisible tshirts have devastated the industry, if you can't see it...how can you tell if it is infringing on your IP?
posted by Drinky Die at 8:40 AM on February 4, 2014 [4 favorites]

In defense of John Walker’s copyright article
posted by Artw at 11:48 AM on February 4, 2014 [2 favorites]

Is this nouning of adjectives ("creatives") a new thing? It seems distinct from similar uses of, e.g., the word "radical" because it isn't short for anything: there's no "creative party" to which people might belong, the way there once was a "radical party".
posted by Joe in Australia at 3:29 PM on February 4, 2014

Merriam-Webster says "creative" as a noun dates to 1962.
posted by grouse at 3:32 PM on February 4, 2014

Huh. So does the OED (and its citation is from 1938!) Well, I suppose I'm a dull, or at least a careless.
posted by Joe in Australia at 3:45 PM on February 4, 2014 [1 favorite]

I've never read Sacred Economics by Charles Eisenstein, but holly shit :
This Guy Stopped Charging Clients And He Has Zero Regrets
posted by jeffburdges at 5:29 PM on February 4, 2014 [2 favorites]

There's nothing new about the phenomenon of adjectives, particularly adjectives describing groups of people, turning into nouns. You probably wouldn't bat an eye if someone talked about "males" and "females". Or "criminals" and "subversives". Or "blacks", or "asians" -- "orientals" has pretty much fallen out of use by now, but I'm old enough to remember when it was common enough to be another good example.

The only thing that makes "creatives" any different is that it isn't as ingrained. I suspect that this is because it hasn't been a hot political subject for as long. I mean, look at what the immigration debate has been doing to the word "illegal".
posted by baf at 8:10 AM on February 5, 2014

Interesting Cracked article on being in the music business.
posted by Sebmojo at 12:51 PM on February 6, 2014 [1 favorite]

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