“You didn’t write that.” (The Copyright joins the Copyleft)


David Ryan

David Ryan is a boat builder and USCG licensed master captain. He is the owner of Sailing Montauk and skipper of Montauk''s charter sailing catamaran MON TIKI You can follow him on Twitter @CaptDavidRyan

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125 Responses

  1. Avatar Jaybird says:

    Now it’s not surprising that it’s easy to vilify content creators, especially content creators who work worth is with stealing years, even decades after it was first unleashed upon the the world.

    I’m pretty sure that Libertarians are cool with protection of copyright years, even decades, after the work is produced.

    It’s just that they also believe that there is a point at which this protection should end and the work should enter the public domain. There are books that are out of print that cannot be loaded into Google Books because, yep, copyright issues. There is a lot of information out there that is rotting.

    Ironically, the other part of the problem is that copyright in perpetuity minus one day is resulting in general cultural contempt for copyright. New copyright laws are seen as such things as “The Disney Protection Act” rather than the Tony Comstock Protection Act.

    The laws, as they exist now, are neither enforced nor respected.

    Maybe it’s time to try something other than doubling down on the status quo.Report

  2. Avatar Patrick Cahalan says:

    The fit’s not perfect, but it’s good enough to make the point. By the reckoning of some of the brightest and most listened to voices on both the left and the right, even as I sit here typing away, I am doing The State’s work. When I hit PUBLISH, my morning’s effort will come under the dominion of the state, who will then license it back to me for life, plus 70 years, or whatever it is now. In this case I don’t worry about it too much because by the time the sun’s set I don’t expect what I’ve typed will be of much interest to anyone ever again.

    I don’t think this is quite right. Well, it of course might be for some of those voices you reference. I think the fundamental bit isn’t the state, that’s just an expression of society, overall.

    The reality is that your physical creation of the Mon Tiki is a limited production of one. By creating it, you’ve created a unique thing. A physical object whose provenance is pretty clearly and easily shown. Well, aside from the wrinkle that you bought IP in terms of the design, but let’s stick with keeping this uncomplicated for now.

    You bought the supplies, you added the labor, the end object is yours. Not unquestionably, though -> if you had violated labor laws, for example, your workers could have sued you for more compensation, or partial ownership of the boat. If you’d exposed them to caustic chemicals, and one of them became harmed by that, you might not even own the boat right now, it might be theirs. Plus whatever else you can sign for.

    The movie, though, undoubtedly you’re correct in that you bought the supplies, you paid for the camera crew, etc., you added the labor. But some of that labor… that expertise… isn’t yours, it’s a product of your schooling and training and watching movies made by other people. Certainly not all of it, maybe in the case of several filmmakers maybe not even most of it. But even the Giants of any particular artistic field build off of the technical advantages of the engineering that has come before, from the printing press to the 48fps digital camera.

    I mean, if you used camera techniques that Orson Wells came up with when he made Citizen Kane, using your own definition of property and provenance you’ve “stolen” from him, right? You didn’t take what you learned from watching him to teach someone else, you’re using it to make a commercial product.

    Another case in point: who owns Calculus, in this viewpoint? Newton, Leibniz, or both? If I independently come up with something that’s exactly like what someone else is working on, why does it matter that they file a patent (or a trademark, or a copyright) first? Haven’t I the same ownership right? Hm, that might go down into the weeds, let’s stick to film.

    Somewhat like the physical property, the intellectual property isn’t unquestionably entirely yours. By making use of what others before you have done, you owe… something… to someone (them, society, whatever).

    Somewhat like making use of your employees to build the boat is entailed by labor laws and safety laws, making use of your learned techniques is entailed. By… something. By how much, and what obligations that puts on you (or ought to put on you), well, that’s a huge discussion in and of itself. What role, if any, the state should be playing in enforcing all of those obligations, that’s another discussion.

    I understand your objection to granting all this authority to the state, and carving out exceptions for the individual content creator. I think it’s a completely valid objection, and as it’s the main thrust of the post, I don’t want to come across as quibbling too much with that point. But your solution, as stated here, is to grant all that authority to the individual, and carve out exceptions. I think that approach is limited as well.

    I think you’re fighting a war of ideas with a zero-sum approach where the two competing views have essentially the same set of drawbacks and advantages, just mirrored. I don’t think what we call “intellectual property” is well served by the framework of property rights, at all.Report

    • Avatar Morat20 says:

      Among other reasons, physical property is basically only useable for a single thing at a time. (or very limited things).

      Intellectual property, especially out in the wild, not the case.

      A good example of patents and copyrights run amuck is the software industry. Amazon’s attempt to patent ‘one-click shopping’ (storing CC data on a cookie) as a case in point. Software struggles with the fact that patents can often approach appropriating entire approaches to a problem — not a ‘solution’ but the whole class of all solutions.

      It makes the patent attorney’s rich, and beggars the rest of us as billions of dollars are spent fighting over who owns “pinch to zoom”.Report

    • Avatar North says:

      Agreed. I mean he writes that “egregious copyright enforcement is a Trojan horse.”
      Clearly someone hasn’t read about patent trolling.Report

    • Avatar Jeff No-Last-Name says:

      I get what you’re saying but the analogy is flawed. When building Mon Tiki, David relied on the works of the past just as much as Tony did in making his movies.

      There are other ways in which products used by one person (or single groups) are different from those used by several at once — I just don’t think this captures it.Report

      • Avatar Pat Cahalan says:

        Granted, they’re not the same. But the point (muddled possibly) was that provenance for physical property still isn’t perfect, and it’s much better than provenance for intellectual property.

        The entire historical philosophical framework for property rights is an attempt to build a coherent philosophical structure for physical property… and that in and of itself is even a limited framework for discussing physical property (see: entailment). It just doesn’t analog well to IP.

        Which, guessing from your comment, you’re in agreement.Report

  3. Avatar Hari says:

    The currently fashionable view of copyright is that reproduction rights do not naturally fall to a work’s creator. The currently fashionable view is that reproduction rights naturally belong to anyone with the means of reproduction, and that Copyright is a monopoly on those rights, granted by the government to “to promote the Progress of Science and useful Arts.”
    I look at it from another angle. Once you’ve created a work of art, it’s easy for someone else to come along and copy it for next to nothing (this is not true for your boat!). To alleviate that fear, the Constitution says the government will help defend you from copycats for a limited time. Life + 75 years seems too long to obligate the rest of us to keep a work of art from being reproduced.Report

    • Avatar Jaybird says:

      It has always struck me that tying it to “life” creates one hell of a perverse incentive.Report

      • Avatar MikeSchilling says:

        At life + 75, only for the very patient.Report

      • Avatar Burt Likko says:

        Thank you. This has been my criticism for years — it pushes older and more accomplished artists away from the commercial art world. Granted, with the +75 it may not matter all that much but all the same if the law is going to forbid private employers from discriminating based on age, it ought not to simultaneously create an incentive for private employers to discriminate based on age.Report

        • Avatar M.A. says:

          If you make a physical object, you can sell it, then you’d better get to work creating another one.

          If you make an invention and patent it, you get at most 20 years. It’s an incentive not just to sell or use your patent, but for you (and others!) to keep working on new inventions to patent.

          If you make a copyrighted work, the incentive with Life + Years is… to sit on your lazy fishing ass and not keep writing, not keep filming, not keep going. The incentive to keep creating new isn’t there. Indeed, the perverse incentive unless you have studios and lawyer-armies behind you is to get the fish out lest the copyright-trolls destroy you by finding a copy of something “just similar enough” to one of your works in the vaults, claiming they still have copyright on it, and demanding you pay up.

          Most books only get one or two print runs. They don’t last more than 5 years on first-run bookstore shelves. Similar for movies. And even there the technology is messed up, many movies only available to the public are on VHS only and may not get a DVD run, meaning degrading availability and viewing quality. Try to find a copy of The Phantom Tollbooth as animated by Chuck Jones sometime.

          What’s fished up, really fished up beyond belief, is that greedy people like David want to base the entirety of the public domain, their thievery and refusal to participate in good faith, on the idea that they might, just might, hit the magic lotto of creating something like the Lord of the Rings – a major outlier, not the reality. And that they ought to somehow just be resting on their laurels after, rather than doing what they would in any other industry which is getting back to work on a new creative work or artistic endeavor to follow.Report

  4. Avatar Gabriel Rossman says:

    I think there’s a problem with your auto-correct or something, you kept misspelling “classical liberal” as “Marxist.”Report

    • Avatar Morat20 says:

      There’s a lot of phrases that scream “Don’t take me seriously” (at least on this subject) in life. “I didn’t get my child vaccinated because ….autism”. “The second law of thermodynamics means evolution is impossible”. “No, go ahead and and just make all the class data public, it can’t hurt”, etc.

      The misuse of the term ‘socialism’ and ‘Marxism’ is one of them.

      Especially towards something that boils down to “perhaps copyright shouldn’t keep getting extended in perpetuity, all to protect Mickey Mouse. I mean, sure, bare minimum while the person who created it is alive, yeah. Maybe tack on a bit. But aren’t we at like Death +75 years with another Mickey Mouse extension due? Isn’t that a little ridiculous?”

      That’s marxism? Puh-lease.Report

    • Avatar David Ryan says:

      First of all this is a very funny comment.

      Second, you look very different at this size than at twitter size.

      Third, one of the best classes I ever took was an intro to geography course. The course sylubus started us at the creek bottom, and as we walked our way up the hill, which took us from the earliers settlers of the valley to the modern day, the various assignements took us through different types of geographical interpretation. It was awesome. The teach was awesome. I remember the lessons vividly to this day. And it turns out he retired two years later, so I count myself lucky to have teh opportunity to take the class.

      It was in that class that I was first introduced that all property rights are a patent from the soveriegn, and (with regard to zone) the only (not really inviolate) property right was the right of exclusion. Heady stuff for a 19 year old.

      Before I wrote this post I did some woodshedding on Kelo v. City of New London. Didn’t seem to shed light on anything, except it sucks to lose.Report

      • Avatar Gabriel Rossman says:

        It’s debatable whether rights to tangible property are a boon from or pre-exist the sovereign, but even if we accept that IP has the special property of being non-rivalrous in a state of nature. In any case, I think it’s possible to recognize that IP is a social construction without therefore saying it should be eliminated. However acknowledging this does shift you into the realm of prudential judgment, even if you believe in natural rights to property of other kinds (and especially if you don’t).

        As on so many things, I have a “pox on both your houses” attitude towards the extremes in IP. This debate ends up being “protect my business model and by the way if possible extend the terms of copyright and finagle the case law so it covers software” vs “dude, information wants to be free.” Neither of these is good policy or good political philosophy. It’s not unlike my problems with the mass incarceration issue, which Mark Kleiman caricatures as an argument between Michele Foucault and the Marquis de Sade.

        My basic feeling is that we want an IP policy that maximizes total social welfare and does so by incentivizing production. This means that you protect (and enforce) IP for new works, but also that you don’t want to allow retroactive term extensions, terms that are so long that the marginal effect on the net present value of content creation is trivial, forms of IP where title search is effectively impossible (e.g., software patents and orphan works), etc.

        The thing is though, that the Pirate Party folks don’t really care about the stuff where they have a justifiable case so much as the stuff they just want. In much the same way that people use the perfidy of the FDA in not allowing clinical trials for marijuana as a treatment for the poor nauseous leukemia patient as a pretext for getting weed for their “headaches,” people often use long terms or remix culture as an excuse for why they should be allowed to BitTorrent “Dark Knight Rises” (or “Boi Meets Girl”). This is a non sequitur and the worst of both worlds in policy terms.

        In my opinion, there is no principled argument short of anarchism for eliminating copyright enforcement on new works, although it is possible to reluctantly make a prudential judgement to this effect along the lines of “the drug war has failed.” My dream world is a grand bargain in which we get rigorous enforcement for what’s covered in exchange for having less stuff be covered: roll back copyright terms to 50 years, get robust protection (including “loser pays”) for fair use, and require registration to solve the orphan works problem.

        Another way to put it is that in my utopia, your films don’t get pirated (at least not until you’re really old) but you also don’t have to hire a lawyer or cut a scene to deal with rights clearance for something that appears in the background to your movie. Of course that grand bargain is never gonna happen so good luck with the boat.Report

        • Avatar M.A. says:

          “dude, information wants to be free” is about the worst misrepresentation of all but the most left of the “free software” movement.

          The better description of it is that so many classes of information have become verboten that should not; so many approaches have died; and so many freedoms have been choked off.

          The freedom to tinker with what one has purchased is being destroyed. I can buy a physical object (like the Mon Tiki) and modify it to my heart’s content. I might, possibly, need to get an oceangoing vessel or automobile recertified for safety afterwards, but nothing in law prevents me from making the changes I want to make prior to that.

          On the other hand, if I buy an iPhone and I want to alter the built-in software, a host of “copyright protection” baloney laws and outright theft of my rights can stand in my way to prevent me from doing so. The difference, currently, under the “benevolent” DMCA exemption that allows me to legally jailbreak my phone and the lack of same that prevents my legally jailbreaking my iPad is a few inches of screen and lack of a built-in microphone.

          How utterly fished up is that? It’s completely the same operating system, just loaded onto a slightly different hardware platform.

          people often use long terms or remix culture as an excuse for why they should be allowed to BitTorrent “Dark Knight Rises” (or “Boi Meets Girl”)

          Better case: I have the right to parody. I have the right to criticize. If I want to make a video criticizing Star Wars: Episode 1 that necessarily involves showing some of the absolutely horrible scenes and describing why they are offensive to filmmaking in general, that’s a work of criticism and theoretically protected fair use… but first I have to get past the “copyright protection”, DVD-CSS, and under fished up copyright law that’s not even allowed.

          Yes, being able to break DVD-CSS also means that I could create pristine copies of the movie and put them online for download. So? Copyright was never meant to attack noncommercial use in general. You can prosecute those who make money off it – say, charging membership fees or soliciting donations to websites that help distribute. You can go after the people selling bootleg DVDs on the streets of New York. Moreover, being able to break DVD-CSS allows me to do otherwise legal things such as space-shifting the content to my iPad for mobile viewing since my iPad doesn’t have a DVD drive, or making a simple copy so that I can put the original disc safely away where my theoretical 4-year-old can’t break it.

          Every time copyright protections get stronger, the rights of consumers are stolen and the growth of culture is inhibited.Report

          • Avatar Gabriel Rossman says:

            If it would please the court, I’d like it noted for the record that the above comment is a perfect illustration of my argument that legitimate problems like the legal and technological contraction of fair use are used as an argument for the de facto elimination of the feasible enforcement of copyright, even for recently created works.Report

            • Avatar David Ryan says:

              So noted.Report

            • Avatar Kim says:

              bullshit. you have no idea what the copyright protections are on BlueRay discs.

              Let’s try this one: You can be outright banned from receiving any new media from the corporations, for being a “bad actor”. It’s right in the spec — look it up!Report

            • Avatar Maribou says:

              Actually I think fair use is expanding (as it should) in response to the perpetuity-minus-a-day copyright regime. More and more things that didn’t used to be fair use now *are*, because copyright itself is more restrictive. They’re ramping up in tandem. Problem is that because fair use only shows up in the courts with huge amounts of money behind both sides, it becomes a contest about who has deeper pockets, not who is right. The comment above about “doubling down” is apt.Report

            • Avatar M.A. says:

              Not noted because it is simply untrue.

              Feasible enforcement of copyright should go through the courts, and not impede the legitimate rights of consumers.

              “Feasible enforcement of copyright” does not, and never should, include broken-by-design garbage intended to punish consumers and restrict their ability to engage in legal space-shifting, time-shifting, format-shifting, and the creation of critical works.

              Your argument contra is 100% invalid and dishonest.Report

              • Avatar Dan Miller says:

                Given the ease and speed of copying files, I don’t know that I’d call court enforcement feasible. It certainly hasn’t stopped file sharing (of course, neither have technical measures, nor can they, without crippling costs to the general public and usability).Report

              • Avatar M.A. says:

                I don’t know that I’d call court enforcement feasible.

                Lawsuits and raids against repositories have proceeded apace. Napster was brought to its knees.

                We spend quite a bit of money on enforcement and detection of counterfeit merchandise in the shipping channels. DVD-detecting dogs that sniff for plastics instead of for drugs for instance. Police can be called on street vendors or storefronts who hawk bootleg wares in the USA.

                Just because it’s requiring the content cartels to affirmatively watch their own backs, rather than sticking a knife in the back of the consumer and carving away important rights, that doesn’t make it infeasible. As you mentioned, what’s infeasible is trying to saddle the consumer with broken-by-design garbage that barely slows down the pirates while making the paying customers ever angrier.

                Remember when DVDs came out? First thing I thought – GREAT, no more sitting through all the bullshit “coming soon 10 years ago” preview crap they’d record before my movie. Then the content cartels realized they could apply the FBI-warning-screen flag to make the stupid fishing previews unskippable.Report

              • Avatar Dan Miller says:

                “Lawsuits and raids against repositories have proceeded apace. Napster was brought to its knees.”

                Drug arrests have proceeded apace. [insert defunct cartel here] was brought to its knees.

                The genie is out of the bottle, and any attempts to stuff it back in will have way too much collateral damage to be worth doing. But you can’t say that straight-up piracy, of the sort that few in this thread will defend, isn’t widely available.Report

              • Avatar M.A. says:

                But you can’t say that straight-up piracy, of the sort that few in this thread will defend, isn’t widely available.

                And Yet…

                Hell, we can even ask Cato Institute about this and find a few writers sane enough to notice that the true costs are infinitesimal. Link within this larger article, I’d link direct but the two link limit for commenters that don’t have front-page access sucks.

                And what’s the difference? Commercial versus noncommercial infringement. Noncommercial infringement turns out to be a net neutral at most and possibly an advertising force. Bootleg DVDs sold by the chinese guy with a street corner stall – that’s commercial infringement, which is adequately addressed through the courts.

                I’ll quote Julian Sanchez, Cato Institute, at you:

                Does that mean online piracy is harmless? Of course not. But the harm is a dynamic loss in allocative efficiency, which is much harder to quantify. That is, in the cases where a consumer would have been willing to buy an illicitly downloaded movie, album, or software program, we want the market to be accurately signalling demand for the products people value, rather than whatever less-valued use that money gets spent on instead. This is, in fact, very important! It’s a good reason to look for appropriately tailored ways to reduce piracy, so that the market devotes resources to production of new creativity and innovation valued by consumers, rather than to other, less efficient purposes. Indeed, it’s a good reason to look for ways of doing this that, unlike SOPA, might actually work.

                It is not, however, a good reason to spend $47 million in taxpayer dollars—plus untold millions more in ISP compliance costs—turning the Justice Department into a pro bono litigation service for Hollywood in hopes of generating a jobs and a revenue bonanza for the U.S. economy. Any “research” suggesting we can expect that kind of result from Internet censorship is a fiction more fanciful than singing chipmunks.Report

              • Avatar Major Zed says:

                You can still fast forward. Wait – don’t let them know I said that.Report

            • Avatar Shannon's Mouse says:

              What the content lobby considers a “feasible enforcement of copyright”, I consider an authoritarian nightmare. Every time I play a DVD on my Linux system, I am committing a federal crime. I’m much too small a fish for the content lobby’s goons to come after. The guy who created the software that enables me to play a DVD on my Linux system… he wasn’t so lucky.Report

  5. Avatar clawback says:

    I spend 12 months and $100K making something, but because the end product of what I’ve spent that time and money making is a movie, it’s the government who “grants” me the right to reproduce my work.

    No, you can reproduce your work all you want without government-imposed limitation. The only limitation is on what demands you can make on the government to assist you in preventing others from doing so.Report

  6. Avatar Lyle says:

    The issue of the length of copyright starts with IMHO the fact that the current length is to long, perhaps go back to the old 56 years regime. If you want a longer term, then you need to pay the government for the privilege of using its courts to sue the person doing the copying (beyond the court costs etc). I would suggest starting at $10/year/work beyond 56 years rising to $1,000,000/year per work beyond 100 years. (This will tend to get orphaned works out in the public domain faster, and let those who think its worth it pay for the lengthened term, i.e Disney and Mickey Mouse (which is why the last extension was passed to protect Mickey). The fee is designed to ensure that there is a valid economic reason for the right to sue, making folks decide if it is worth it.
    Also change the rules that photos taken by professional photographers are works for hire and the person paying for them owns the rights not e.g. Olan Mills, which makes it a technical violation to copy one of their pictures today.Report

  7. Avatar M.A. says:


    The commons is not yours. Like it or not.

    When a work of artistic nature – music, literature, film, sculpture – it is inherently derivative of prior works. Nothing exists in a vacuum; Disney regularly pilfers the public domain, as do the creators of modern television shows, movies, and so on.

    As Newton put it, we stand on the shoulders of giants.

    Copyright is, if anything, FAR too long. The equivalent in the scientific field, patent, is much much shorter. Innovation in the patent field comes, as a result, much FASTER.

    As noted by Jaybird above, we are losing works at an astonishing rate. Films gone sitting in vaults until their canister bursts into flame or the celluloid degrades in silence to uselessness, all because some asshole sat on the copyright and refused to release it. Literary works, likewise vanishing from the public memory. In the electronic world, bitrot or simple obselescence that renders so many works unreadable, unplayable, unusable within a decade of production. Those who want to keep the works alive have to operate on the edges of legitimacy, praying not to be too well noticed lest they be visited by the amoral and illegitimate section of society – the lawyers charging hundreds of dollars an hour to send out cease-and-desist letters attacking noncommercial activity.

    Maybe that’s the worst part. Copyright infringement, originally, was left to commercial activity only.

    Now consider the public domain. Such a rich history. Brothers Grimm, Mary Shelley, Byron, Plato, Aristotle, everyone in between and before. Scheherezade’s Tales. All belonging to the collective memory of humanity, supposedly to be available to all.

    And yet there are no literary-analysis editions of The Hobbit like there are for Beowulf. There are no critiquing editions of Animal Farm like there are for the Dialogues. Why is that? Because of the bastard, overgrown construct of “Copyright” that the greedy and amoral have created.

    The public domain hasn’t grown since 1923, and currently looks to stay locked even longer. Much has been lost already in that intervening time, and much progress equally lost. Music, art, film, television, electronic games, electronic programs in general. Ideas enter the public consciousness but not the public domain; there are no writers adding new tales to the mythos of Middle Earth, and the mythos of H.P. Lovecraft is endlessly tied up in disputes, to name just two of the most fertile playgrounds.

    All joking aside, 50 Shades of Grey started out as “fan fiction” for the Twilight universe. How horrid a thing is it that fans of a universe cannot wait a reasonable time and then create their own derivative works, instead being forced to enter a legally dubious construct or else play around on the edge in other legal respects, creating “fan fiction with the serial numbers filed off”?

    Copyright is too long at present. That it is creates an endless array of problems and destruction of our collective history and collective consciousness and culture. It twists and tweaks in unpredicted ways; it is, dare I say, the driving force for the slew of “reality television” dreck that pervades the airwaves currently, because it’s one of the few ways that new show creators can get away with crafting a show without being accused of violating the “copyright” of some show decades old that barely anyone remembers any more except for the copyright trolls, those odious creatures that somehow get missed while everyone decries patent trolls.

    Patent manages to exist at a much more shortened timeframe. Copyright should be limited to the same timeframe, it’d serve the same function AND encourage a richer culture by doing so.Report

  8. Avatar Reformed Republican says:

    At some point in my life, I decided I would no longer get involved in copyright debates. I think my life is much better for it. Fortunately, I can still enjoy reading them.Report

  9. Avatar Dan Miller says:

    David, what, in your mind, would be a valid and legitimate copyright term? You seem to suggest “creator’s life plus X”, but I’d like to see your proposal spelled out. Wouldn’t the progress of science and the arts be forwarded more with a shorter term? It seems obvious to me that this would be the case–after all, under the current schema, almost everything that enters copyright won’t leave it until it has zero relevance or interest to anyone (for point of reference, this comment will leave copyright protection sometime around 2140, according to a rough guess of my lifespan).Report

    • Avatar M.A. says:

      Simpler way to put it: Patent manages to exist with a maximum term of 20 years, sometimes shorter but never longer.

      Why is it that patent works just fine that way, but you’d want copyright to last 8 times that long?Report

    • Avatar David Ryan says:

      I would leave the creator’s life span out of it. Some people die young, some people die old. What’s that got to do with it?

      What I find objectionable about the “heirs” accusation is that somehow my heirs are less deserving to benefit from my IP success than my stock or real estate success. It’s that class-warfare thing that GOP is always banging on about, only now their doing it to, at least where IP is concerned.

      What’s teh right term? I dunno. How many is too many bullets in a magazine? I say 11 is too many, some say 30 isn’t enough. But let’s not have an argument about whose gun it is.

      How about for now I say 100 years from the date of creation, no extension. If I make something really cool when I’m 90, maybe my great great great grandchildren can profit from it!Report

      • Avatar M.A. says:

        What I find objectionable about the “heirs” accusation is that somehow my heirs are less deserving to benefit from my IP success than my stock or real estate success.

        That’s ok. I think estate taxes ought to be damned high, too. Do you feel better now?

        If I make something really cool when I’m 90, maybe my great great great grandchildren can profit from it!

        If you patent something, you get at most 20 years.
        If you “copyright” something, right now you can get theoretically 8 times that much or more (assuming you live to a ripe 85 and then pass on).

        Why should a copyrighted idea be worth so much more, in terms of time, than a patented one? If you tried to extend patent, we know what would happen, progress would slow even further than it already has. At the same time we can see what’s happened to the public domain as copyright was extended. Hollywood cannibalizes itself and frivolous lawsuits are constantly filed over whether someone’s idea is “too close to” something sitting and getting moldy in the vaults. Items of popular culture are stolen from us, concepts of cultural significance snapped up and “copyrighted”, denuding current culture of value. Almost everything done by anyone independent enriches culture at the cost of trying to stay “under the radar”, lest the locusts of lawyerdom descend bearing cease-and-desist letters.

        “Happy Birthday” is copyrighted until 2030 under this insanely stupid law.

        I’m going to say this once and only once: someone who thinks they can raid the public domain, steal from it, refuse to participate honestly in it and return the derived works to the culture in a reasonable time? I will call them a thief, the same as someone who steals a book from the public library. If that means you, so be it.Report

      • Avatar Dan Miller says:

        That, frankly, is way too long. Creative works have a short half-life–most of the copyrighted works from 1912 have fallen into obscurity. Something decently shorter than a human lifespan–25 years? 40?–would be more beneficial to the public, while having little impact on the creation of new works.Report

        • Avatar M.A. says:


          If I write a novel, it gets my lifetime + 75 years.

          If I develop a method for making a sandwich and try to patent it, I am first limited to 20 years tops and am subject to reexamination if it’s too obvious and not truly an invention.

          Limit the novel to 20 years. If you want to keep making money, write more fishing novels. Maybe even write novels about fishing. After all, they obviously sell.Report

  10. Avatar DensityDuck says:

    David doesn’t “own” the Mon Tiki, either. A bigger dude (or a better-armed one) could take it away from him.

    “But that’s illegal!” Yeah, and? “The cops will go after him!” Oh, so agents of the state will protect David’s property, then? How do they know it’s his? “Because he has the title–” Oh wow, look at that, it’s a government-granted monopoly on the use of that boat.

    And that’s why the “government-granted monopoly” argument is stupid. It’s because all property is fictional. Even your own body can be used without your consent, by such villains as rapists or photographers.Report

    • Avatar Maribou says:

      A bigger dude could take it away from him *and then he wouldn’t have it anymore*. If you participated in the creation of the 1948 film Johnny Appleseed, and I have a copy of that film, and I make a bunch more copies of that film, all of the copies are of value. What is more, you still own the copies.

      If every copyright protected ONLY against commercial, non-derivative reproduction, perpetuity would be a fine term indeed. Before it was easy to profit from reproduction, copyright was unnecessary. As profiting from reproduction became easier and easier, and those reproductions still did have a non-trivial per-unit cost, terms got longer and longer. Now that the person who wants the reproduction can also MAKE the reproduction at a trivial cost to themselves…

      Copyright is an artifact of an era whose technologies no longer dominate. We can fight about it all we want now, but 100 years from now, we won’t even recognize the terms people are fighting under. (I do think the outcome of the fight will *affect* those terms, though.)Report

      • Avatar Maribou says:

        Argh. You still own *your* copies, I meant to say.Report

      • Avatar DensityDuck says:

        “A bigger dude could take it away from him *and then he wouldn’t have it anymore*. ”

        So what?

        No, really, so what? Why is that a crime? Why is that an interaction which the power of the government ought to be used to correct? Is it just a priori illegal, like the way that masses mutually attract each other?

        “Before it was easy to profit from reproduction, copyright was unnecessary.”

        Considering that copyright goes at least as far back as the United States Constitution, and really even further back than that, you’re digging pretty far to get to that “before”.

        “You still own *your* copies, I meant to say.”

        And if it were about the copies themselves, that would mean something.

        Let’s try this. Let’s say that you have a backyard. Someone wants to walk across that yard. What gives you the right to stop them? Assuming that they walk across in a way that doesn’t damage the property, and don’t interfere with your movement or impede your activity. Heck, let’s say that they want to cross it when you aren’t even there. Do you have the right to forbid them crossing your yard? They won’t hurt it. You aren’t using it. You might not even know they did it. Is it still supportable for you to put access controls on your yard?

        If so, then how is that different from forbidding others to copy of a work you’ve created?Report

        • Avatar Maribou says:

          So what?

          You had something – an actual THING, that would take a lot of work or work-substitute to recreate – and now you don’t. You have been lessened. If there is a justification for the state at all, “I had this option that didn’t hurt anybody or ask anything of anyone else, and that dude took it away from me by threat of harm,” is one of the best justifications there could be. (Violation of one’s body, similar conditions, being the very best, and yes, I’m kind of shaky that there is a justification for the state at all – socialism blends into libertarianism at the edges…) If I forced you to share the boat with me, you would have a better case for similarity – but the BOAT would wear out faster from shared use, whereas words and other creations of the imagination do not – or at least, any aspect of them that *does* wear will be as worn after 20 years as it is after 200.


          Copyright goes back almost to the adoption of printing in England – Gutenberg’s press was the big leap into “easy to profit from reproduction” (something I thought any serious copyright proponent OR opponent didn’t need pointed out, or I would’ve said it in the first place). American copyright comes in directly lineage from English Copyright, which went like:

          Step 1: The crown runs everything, controls everything, and your right to any kind of written communication is at the crown’s whim.
          Step 2: English Civil War. There was no effective state control (or, the state was kind of busy). In exchange for stomping the hell out of whomever said anything that Cromwell’s regime didn’t like, The Stationer’s Guild ran everything on licenses, censored the hell out of everything whenever they felt like it, and ONLY The Stationer’s Guild had the right to say who could print anything.
          Step 3: The Crown regained control and said, “look, we want to be the ones censoring things, thank you, and wtf, anyone should be able to print stuff – how are our scholars supposed to learn if there isn’t a free flow of new ideas in from Germany and France and like that?”
          Step 4: The Stationer’s Guild said, “But ALL THE MONEYS ARE ouuuuuuuuuurrrrrrrrrrrs.” And the crown said, “Efff youuuuuuuuu, you should’ve supported us instead of Cromwell,” and Parliament nodded sagely.
          Step 5: The Stationer’s Guild gulled authors into thinking that the Stationer’s Guild *cared deeply* about *the injustices perpetuated on them over the last fifty years* (uh, by the Stationer’s Guild, but they didn’t point that part out), garnered far more widespread support for licensing, and tried to force Parliament into reinstating something almost identical to the old system (lobbyists! they are old news!).
          Step 6: Parliament said, “Uh, whatever dudes, we have a whole new world we’re busy squabbling with the rest of Europe over, plus we’re busy with that whole Spain thing. Here’s a law that makes you happy, puts us back in charge of saying what people can’t say, and pays for itself through registry.And look, we’ll make it all pretty and noble and progressive-sounding so everyone thinks about how much better than Cromwell we are.”

          The idea that the language of the Statute of Anne could be taken at face value, and that STRICTLY LIMITED copyrights could really encourage people to devote their lives to creation – widening the pool of strong minds to those who could do it instead of just those who had independent means – was a huge leap of faith when Jefferson et al came up with it. Many people involved in the creation of the United States constitution (including Benjamin Franklin, who would put Lessig and Doctorow to shame with his fervor for knowledge-sharing) had grave concerns that it was tainted, and would inevitably slide toward how licensing worked in the 17th century, and that copyright would once again become a means of controlling and limiting innovation instead of supporting. They thought it was worth trying nonetheless – or at least that it was a decent compromise to make, albeit a dangerous one.


          “Someone wants to walk across that yard. What gives you the right to stop them?”

          Assuming they won’t damage the property or harm me, and especially if they don’t even interact with me? Absolutely nothing gives me the right to keep people out of my backyard.

          But then, I grew up in the country, in Eastern Canada, and some kind of a priori expectation of harm *was necessary* by strong custom to object to people being on your property in the first place. We thought people who posted no trespassing signs were kooks, unless they had some tangible reason for posting them (ie harms that were being done that they felt no trespassing signs were the best remedy for – like people ripping up their lands and streams with snowmobiles, or something). I would be *deeply ashamed* to have someone arrested for the crime of trespassing if there weren’t actual or threatened harms of some other kind involved. We crossed each other’s land freely and didn’t care about other people who did that, unless they fucked shit up.

          Furthermore, under the trespassing laws I grew up with, the relatively trivial nature of trespassing, by itself, as a crime, is demonstrated by the strict limits on how strongly someone can be punished for it (a maximum fine of $2000). And property ownership comes with as many requirements as it does rights, whereas copyrights are, in this country, established instantly upon fixation of potentially copyrightable materials – EVEN IF YOU DON’T WANT THEM.

          If copyright laws *really* worked like property laws, they would fall into the huge box of “stuff I think is stupid that doesn’t really bother me,” rather than the tiny box of “this sucks, we need to fix it”.Report

          • Avatar Patrick Cahalan says:

            I just wanted to say that this?

            Step 4: The Stationer’s Guild said, “But ALL THE MONEYS ARE ouuuuuuuuuurrrrrrrrrrrs.” And the crown said, “Efff youuuuuuuuu, you should’ve supported us instead of Cromwell,” and Parliament nodded sagely.

            That was killer. I’m crying, over here.Report

          • Avatar Maribou says:

            I really believe that if we went to Founder’s Copyright – or even 1970s copyright – for those that want it, and whatever free-information schemes appealed to the rest of everyone else, *people would be on the side of copyright enforcement, because it would seem like a reasonable bargain*. I think we’ve reached the point of collective apathy on many civil matters where people are content to break the law rather than to fight for laws to change, *because they don’t believe the laws can change if megacorps don’t expect the change to be profitable*.

            With copyright, eventually we’ll either go back to Stationer’s Guild style licensing (which large corporations have really wanted all along – look at the music industry in the 50s), we’ll get the kinks worked out of the hip new crowd-sourced forms of the oldest method of supporting creativity of all (patronage), or something altogether new that we can’t think of yet will grow out of the ashes.Report

            • Avatar Dan Miller says:

              “I think we’ve reached the point of collective apathy on many civil matters where people are content to break the law rather than to fight for laws to change, *because they don’t believe the laws can change if megacorps don’t expect the change to be profitable*.”

              Space awesome. Smart thought that applies to a lot more than copyright law.Report

          • Avatar DensityDuck says:

            I’m paring this down to the part that, I think, ends the thread.

            “Absolutely nothing gives me the right to keep people out of my backyard.”

            If you don’t believe that you have the right to keep people from walking on your lawn, then it’ll be hard to convince you that the act of copying could be a form of protectable property.Report

            • Avatar Maribou says:

              Leaving out this part: “Assuming they won’t damage the property or harm me, and especially if they don’t even interact with me?,” and the part where I talked about penalties being commensurate, makes my stance sound a lot more black and white than it is. I’m not Ben Franklin – I just want a bargain that’s worth assenting to. Current US copyright law, especially as para-governmentally asserted by the Stationer’s Guild – er, I mean, the various industry associations – is not that bargain. The proposal put forth (and then yanked) by the Republicans is a lot closer.Report

              • Avatar DensityDuck says:

                “Leaving out this part…”

                Except that part doesn’t matter. Property rights are about what happens when you aren’t right there watching. If your theory of property rights is limited to “physical objects that I am touching right this moment” then I’d say it’s so limited as to be almost useless.Report

          • Avatar M.A. says:

            Many people involved in the creation of the United States constitution (including Benjamin Franklin, who would put Lessig and Doctorow to shame with his fervor for knowledge-sharing) had grave concerns that it was tainted, and would inevitably slide toward how licensing worked in the 17th century, and that copyright would once again become a means of controlling and limiting innovation instead of supporting.

            And they were right, too!Report

  11. Avatar DensityDuck says:

    It occurs to me that most of the arguments over IP rights come not from the protection, but from the inability to secure usage rights beyond the standard package. Let’s say I want to watch some episodes of The Galaxy Rangers on my iPhone. I own the DVD, but I can’t find a digital copy(*) that the ‘phone can handle. Who do I, an end-user consumer, talk to about getting the rights to rip the DVD, convert the videos, and put them on the phone? Considering that, even if I did have to pay a fee, I wouldn’t be expecting more than a dollar an episode, which is the market rate for that sort of thing. It would cost the rightsholder more money to negotiate the deal–even just to call and say “sure”–than they could ever expect me to pay.

    The UK recently introduced a sort of Copyright Office, with the intent of handling tiny transactions like that in a way that doesn’t cause the rightsholders to lose money just dealing with it. This seems like an excellent example of the “government providing a useful service that the market fails to find economical” thing that people are always saying never happens. (Not to say that this justifies government intervention everywhere! This is an example of a service, not a control.

    (*) no, this is not a request to tell me where to find itReport

    • Avatar M.A. says:

      I own the DVD, but I can’t find a digital copy(*) that the ‘phone can handle. Who do I, an end-user consumer, talk to about getting the rights to rip the DVD, convert the videos, and put them on the phone?

      You shouldn’t have to talk to anyone. Format Shifting as a necessary component of Space Shifting is covered under Fair Use doctrine. You should be able to take the DVD, making a temporary storage copy appropriately formatted for transfer to the phone.

      In practice… DMCA. Because this is one space where I almost have sympathy for the Libertarian arguments concerning rent-seeking behavior and regulatory capture on the part of the Content Cartels.Report

  12. Avatar Patrick Cahalan says:

    I expect that ultimately what you’re going to be looking at is a shift from property rights as the primary focus of the law. The current state of intellectual property shows just what sort of arguments we’re going to start to have in 5 years as 3-d printers become more common, and micro-manufacturing becomes more enabled. Twenty years? Fifty? Maybe. Maybe longer, before it all plays out.

    When people don’t need to buy finished goods any more, just a few slabs of sheet metal and a few hundred board-feet of lumber and have it delivered to the neighborhood assembly shop, or better yet constructed in their own garage, you don’t pay for the value-add of assembly and distribution. You pay for the plans and you pay for the raw materials.

    The raw materials market, that’ll be around until you have Star-Trek replicators (signs point to: forever, although the market itself could possibly become a commons, if scarcity is no longer a problem).

    The plans. We pay people for the effort to make the plan, not for the plan. Eventually, I’d guess, anyway. If the rise of Linux has shown us nothing else, it’s shown us that even complicated, high-level intellectual constructions can be assembled without property rights entailing them.Report

  13. Avatar NewDealer says:

    The way I understand it is the issues with current copyright is that there are strange power dynamics at play.

    Most copyrights are not really worth the really long protection currently offered in the United States. However, there are some very lucrative copyrights that are worth perpetual or nearly perpetual copyright protection. The candidates for these are unsurprising: Mickey Mouse, Superman, Bugs Bunny, Spiderman, Darth Vader, Donald Trump, Mario, etc. Also unsurprisingly most of these copyrights are held by large entertainment conglomerates that did not exist when the Framers wrote the Patent and Copyright clause.

    Disney is not going to let their copyrights go silently into that good night. This is why we have super-long copyright protection.Report

    • Avatar Morat20 says:

      Perhaps the solution is to make them pay for it.

      Give you the first 20 or 40 years copyright for free (similar to patents — and by ‘free’ I mean ‘filing fee’). You want to keep your highly lucrative IP after that? Pay to register it, year after year, on an increasing scale.

      If Mickey’s worth protecting to Disney, they’ll pay for him. The stuff that’s not worth it to them — 80 year old films or stories? They’ll let it go.Report

      • Avatar DensityDuck says:

        “You want to keep your highly lucrative IP after that? Pay to register it, year after year, on an increasing scale.”

        Congratulations, you invented the US copyright system prior to signing the Berne convention.

        (Which, by the way: For all those people telling us how the rest of the world totally does things better and the US should follow their lead? Following the rest of the world is how the US ended up with automatic perpetual copyrights.)Report

        • Avatar Morat20 says:

          Excellent. Then we undoubtably know where the problem areas are.

          Of course, now that I know we used to use it, before supporting me own idea I’m gonna need to research why we switched.

          I’m sure there were good reasons as well as bad.Report

            • Avatar Morat20 says:

              Well, probably, but years in the software industry have made “If you don’t know why something was changed, don’t mess with it until you do” something of a mantra.

              I suspect it applies to government — a lot of the 90s financial deregulation was done by people who didn’t understand (or didn’t want to understand) why those regulations had been put in place in the 30s and 40s in the first place.

              Which meant, best case, they were throwing the baby out with the bathwater. And, quite honestly, mostly seemed to toss out the baby while acquiring more dirty bathwater which was bad for everyone but the wastewater salesmen. 🙂Report

              • Avatar Pat Cahalan says:

                The provenance of law is really interesting. I wish I had more time to follow it closely enough to have a real opinion about that aspect of some of the laws I like/dislike.

                I just don’t have the goddamn time. And unfortunately, unlike software or written works of art or just about anything else, there is a huge, ongoing attempt to hide most of the inputs into what comes out of the legal sausage factory.

                Something I find particularly deplorable about our system of government.Report

              • Avatar Kim says:

                dailykos does a decent job of laying out cards, and of watching what we’re legally allowed to watch.Report

          • Avatar DensityDuck says:

            “I’m gonna need to research why we switched. ”

            It had to do with international trade. Countries in the EU refused to deal with the US on many matters (including protection of IP) unless we signed on to the Berne convention.Report

      • Avatar Lyle says:

        I would agree and make the fee for over 100 years $1,000,00o per year for the right to sue (which is what a copyright really is). Disney will pay but much will leak outReport

      • Avatar NewDealer says:

        I would support this.Report

      • Avatar Mike Schilling says:

        For books, the old system was (IIRC) 28 years, and you can renew that once for another 28. Still a much better system than we have now, but not exactly what Morat was proposing.Report

        • Avatar Morat20 says:

          I don’t mind a company paying to protect valuable IP that they use. Set the scale to slide (or at least rise with inflation). it’s the stuff languishing in archives that’s the problem.

          Nobody’s using it, it’s like investing in land and then allowing it to crumble away because you don’t even want to pay for maintaince. Never to sell it, never to develop it, just holding it to deny to anyone else “just in case”.Report

  14. Avatar NewDealer says:

    When I was a theatre director, I could have filed for a copyright on all my stagings but it would be largely worthless to me because noone cared about me enough to copy/steal my stagings.

    There are a handful of theatre directors for whom this does matter than and one famous case involving a theatre in Florida copying the staging of the original NY production of Love, Valor, and Compassion without permission or payment. Our current IP laws seem designed to largely protect the 1 percent of the IP world.Report

  15. Avatar Michael Cain says:

    I’ve been thinking that with modern tech, there’s a business opportunity in here somewhere. Consider the situation of an author whose book was published 20 years ago, and has long since gone out-of-print. No publisher (nor the author) is going to bother with a press run unless they have reason to believe they can sell most of the run. Someone who wants to read a copy has two choices, for the most part — borrow a copy from the library or a private owner, or find a copy for sale at the used book store. Today, at least for books that fall into one of the proper genres, there’s a growing third option — find an illegally scanned and OCR’ed copy on the internet.

    We must be about to the point where it’s feasible to reach an agreement with such an author to have their old works scanned and OCR’ed, then made available for download for a (relatively) small amount. It seems like there would be a sweet spot for pricing that balances out ease of finding the book, better quality than the low end scan/OCR job one often finds, cheaper than the used book store, avoiding the delays of retrieval a distant library, and both the author and the service can make a buck.Report

    • Avatar David Ryan says:

      This is what Google did. But when all was said done the amount of money Google was offering was (IIRC) about $50

      We just had two movies go out of print. Still selling, but quite briskly enough to justify making and storing another run of DVDs, and the only financially attractive streaming/download option is iTunes, which isn’t an option because iTunes explicitly bans NC17 rates material, or material that “is likely to receive an NC17 rating”.

      If Google came to me and said, “We’ve already put digitized yoru films and put them on our server. Here’s $100 rights to stream in perpetuity,” I’d say “Go fuck yourselves.”Report

      • Avatar Michael Cain says:

        My understanding of Google’s model is that they’re more in the “information wants to be free” camp and are interested in providing material at no charge to the end customer, and making up that trivial licensing fee from other revenue streams associated with page views. I’m thinking more of a joint venture with the authors where we sell the e-book for a couple of bucks (hopefully the sweet spot for pricing would be around there), and the author and the service split the revenue. If a 20-year-old book sells 1,000 copies, the author gets $1,000 (as does the service).

        I don’t know what other people’s sweet spot on pricing is, but at least several times a year there comes a situation where I find myself saying, “Because of something that just happened, I’d like to read that particular out-of-print book.” I want it badly enough that I’ll check the local library and larger network where it can get inter-library loans to see if a copy’s available. Occasionally I want it badly enough that I’ll put it on my routine errand list and stop at the biggest of the local used-book stores (where it will likely cost me $3-5). In almost all such cases, I’d part with a couple of bucks to download a clean e-copy right now.

        Movies would be much harder. Storage costs more: a copy of even moderately acceptable quality is going to take up most of a gigabyte, where a book is going to fit easily in a megabyte, even with cover art. Bandwidth costs go up similarly.Report

      • Avatar Jeff No-Last-Name says:

        There are niche vendors for movies without a mass appeal, such as clips4sale. They protect you from credit card hassles, but they do take a portion of the sales. I’m not sure if you’ve investigated these, but if you put your films on such a site, I for one would at least consider a purchase.Report

    • Avatar MikeSchilling says:

      No publisher (nor the author) is going to bother with a press run unless they have reason to believe they can sell most of the run.

      No author [1] is going to agree to even a short run that has a good chance of selling out, because when he negotiates a contract for his next book, he’ll be told “You’re a 5000-copy-a-book author, so that’s what we’re basing your advance on.” And yes, the publishing industry is every bit that screwed up.

      1. OK, this wouldn’t happen to Steven King or JK Rowling.Report

      • Avatar Lyle says:

        Actually this is being fixed with custom publishing. Imagine that your local print store has a connection to a server with electronic book copies. You decide you would like a paper copy, and the printer prints and binds it for you. Typesetting which used to be a huge region why books go out of print is a non issue with something like PDF. The server has PDF copies of the works, and sells them to the printer to print the copies.
        The critical thing here is that the law has not caught up with the digital revolution re printing, where print runs no longer mean what they used to mean. The same could apply to DVD’s the print house buys a copy and loads it onto a writeable cd for you.Report

        • Avatar Mike Schilling says:

          A lot of current authors are also publishing their back catalogs as e-books, where again the concept of print run doesn’t apply.Report

  16. Avatar Burt Likko says:

    By the way, David, thank you for stepping exactly, and I mean word for word, on my planned intro quote for Opposite Day.

    …I guess there’s nothing wrong with the same intro quote twice in eight days.Report

  17. Avatar James Vonder Haar says:

    I suppose I break with my libertarian brethren in viewing all property, not merely intellectual property, as a creation of the state in order to promote the public good. From a purely utilitarian analysis, it’s obvious that the socially optimal level of piracy is not zero. If it were possible to duplicate mon tiki and other physical goods at near-zero cost, it would be foolish to forego the massive increase in human welfare that we could gain by it out of a puritanical desire to protect property rights. The gains from copying entertainment products are more frivolous and slighter, but nevertheless real (and, of course, some people really do use piracy to get office to attend school or seomthing similar) The status quo of a mild social stigma against piracy that ensures that the poor and the young get products for free that they weren’t going to pay for anyway, while those more happily situated pay the toll, is an upgrade on the status quo before piracy became widely possible.

    The ideal situation would be a system of price discrimination where we could divine exactly how much people are willing to pay and charge them that. In the absence of psychics, a non-zero level of piracy is closer to that ideal situation than ironclad copyright enforcement.Report

    • Avatar Lyle says:

      Let me take folks a 10-30 years into the future. Today 3 d printing is gaining in ability all the time. Imagine a day when Mon-Tiki could be made on a super version of a 3 d printer. (much larger than today’s printers, but not inconceivable) Then the valuable thing about Mon-Tiki is the certified design. Copyright may then be the only real protection, in fact this is becoming a concern since items made with a 3 d printer exist on the computer first.Report

    • Avatar Plinko says:

      I shudder to try and imagine a world where we’ve managed to eradicate consumer surplus, unless we’re also eradicating producer surplus. But then, we’d pretty much have a sort of bizarro communism, wouldn’t we?Report

  18. Avatar BlaiseP says:

    The copyright problem wasn’t so onerous until the rise of the Internet, where everything comes in my socket, copyrighted or not. Until it becomes as convenient to buy something as it is to steal it, there’s always going to be a problem.

    Elsewhere, the consequences of retail theft are passed along to the honest consumer anyway. If books and films and music are routinely pirated, there’s no good way to recoup those costs from the legit buying public. Such theft only depresses the market for films and books and music. Now musicians have to tour to make money.

    In our current world, where it takes gobs of money to make a film and bigtime artists get huge advances, there’s a huge barrier to entry for the little guy. Let’s put aside the problem of theft for a moment and imagine a bright shiny world where artists both great and small, new and established, put their wares online, not in iTunes, but following the model of Discipline Global Mobile or Umphrey’s McGee who allow taping but only if they’ll offer their tapes for exchange.

    Wouldn’t it make more sense to cut out the current middlemen (Ticketmaster being the most egregious) and go for a model which would let the small fry grow into big fish? The current model is deeply upfugged, we all agree. But with all such changes, opportunities arise.Report

  19. Avatar North says:

    Entirely understated or glossed over in this post (which is incidentally excellent) is any discussion of the costs of our current out of control copyright/patent regime.
    The massive negative side effects are most keenly felt in our newer industries of technology and software. The massive patent wars that are ongoing have been documented repeatedly in articles and commentary from experts. With patents being so easy to obtain, the patent and copyright services being so overwhelmed and every little item and detail potentially a subject for a patent this constitutes a terrible and growing barrier to entry for new developments.
    The idea of a printer? Patented. The idea of swiping your finger across a screen to use it? Patented? The idea of using a password? Patented. Name any feature of any electronic gadget, of any programming aspect and you can rest assured there’s a patent out there. The patent stockpiles of the major companies are so utterly ridiculous that in some cases companies literally can’t even afford the lawyer hours to read and define each one. In some cases two corporations legal teams just show up with the patents in hard copy and measure the thickness of the relative stacks. The thicker stack gets some money and promises not to sue to owner of the thinner stack… for now.

    This is without even talking about the horror of patent trolling. A company exists entirely to hold patents (or to merely make them up) and cheerfully trolls the legal system and corporate markets. Their favorite targets? Tender young new products and small entrepreneurial companies. “Nice product, nice business process, nice line of code you have there,” their legal formal letters read in paraphrased legalese, “pity is something lawyerly might happen to it.” The hapless start ups don’t have money for lawyers.. hell even established companies often opt to pay off the troll rather than fight it out. Lawyers and court battles cost a fortune, injunctions can kill a company and patent trolls happily exploit that difference sucking fortunes out of smothering life improving innovations in the crib often based on made up or specious patents.

    And of course all of this then leads to companies patenting and arming up themselves to protect their own interest which, in turn, leads to companies that find themselves at the uncomfortable end of a weak quarter or a high shareholder demand looking at their arsenal of patents and thinking “well if the trolls can do it…”

    Reform is desperately needed before the whole mess strangles entire industries to death.Report

    • Avatar Pat Cahalan says:

      I personally know more people that have opted out of the software business because of the onerousness of IP law than have opted out of the movie business because of the frivolity of IP law.

      Now, that doesn’t mean anything, really, in the greater sense and it certainly says nothing of value about David’s particular situation. Nor am I trying to come across as having anything of significance to say in regards to the underlying correct philosophy, with this point.

      However, if “IP laws exist to protect the creator” is the main justification, it’s clearly a mixed-bag of results, depending upon problem domain. Which is, at least, a reason to separate out copyright from patent from trademark when discussing these animals.Report

      • Avatar Mike Schilling says:

        The problem with software IP isn’t copyrights, it’s patents (as I explain here) And that’s not a complicated issue at all: patenting things that are trivial, obvious, or ill-defined is a clear abuse of a system intended for genuine inventions.Report

        • Avatar BlaiseP says:

          I’ve simply given up on the premise of selling software. I sell services. Inevitably, I end up contributing as much by using and modifying open source code as I would by selling it. The money I don’t have to charge my clients ends up in their pockets and the speciality work I end up subcontracting to the people who wrote the open source solution.

          Here’s an amazing chunk of software I uncovered in the process of doing a little side-job for a friend I made in a bar. It’s getting to the point where the un-patented stuff is even better than the rest.Report

          • Avatar zic says:


            My husband/son both write software; son contributes to Ubuntu Linux platform and spends a lot of time debugging stuff.

            Husband writes code for musical applications; including processing on ios.

            And both say the same thing: charge for the service, share the code.

            Interestingly, my husband’s taken the same approach to music: he gives away his recorded music, now. Down load it for free. And come pay to see him play live. Luckily, teaching and software development pay the bills.Report

            • Avatar BlaiseP says:

              I work to the Fedora Linux model, which is out in front of Red Hat Enterprise Linux. Red Hat makes corporate types happy, they can get support for it: their businesses are on the line. But Red Hat depends on people like me to pave the roads.

              Isn’t that odd, that some follow-on corporation has found a way to make good money? To an outsider, it would seem Red Hat is leeching from the Fedora developers but that’s just fine by us. Red Hat supports us. It certifies this stuff, allows me to recommend it to corporate types.

              There’s just too many problems out there to solve and too much good money to be made solving them. The very idea that I’d turn around, having learned so much from so many people, only to tell some third party “You can’t use this stuff unless you pay Wonderful Me a ton of money for a licence”, well it’s just ignorant. There’s no one size fits all solution to any business: it wouldn’t be successful if it tried to ape another business.Report

              • Avatar zic says:

                Yes. (full disclosure would be that I’ve got friends at Redhat, one’s job is encouraging just his — supporting and encouraging the open source developers; searching out those introverted code monkeys who suffer the bane of light and fear overdoses of much human contact.)

                Sometimes I wonder if this is all a world in change. In general, corporations wants to purchase stuff from other corporations, where there’s another incorporated entity to both warranty and to sue, the comfort of lawyers and legalese protecting their purchases.

                But corporations also want to cut staff, cut overhead, cut benefits move toward a world of freelancers and consultants and work-for-hire contracts.Report

            • Avatar DensityDuck says:

              “Luckily, teaching and software development pay the bills.”

              And that’s the new paradigm; if art’s your career then it’s through performance. (Being paid to write a regular feature is just another kind of performance. So is being paid to paint a portrait of a rich man’s wife, or make some piece of abstract art to decorate a corporate headquarters.)

              The idea of the independent artist who lives via creative effort has been killed. The world is better for that, right? I mean, that’s what we all wanted, right?Report

              • Avatar Reformed Republican says:

                I think historically, getting paid for performance was more common than getting paid for the final product. Before audio recording, musicians were paid for performing live. Painters were often funded by patrons or commissioned for a specific piece. An actor was payed from box office receipts from the play he was in. With the exceptions of books or sheet music, there were not many ways for an artist to sell a product.Report

              • Avatar Kim says:

                And after the first performance, there were numerous copies, some legal others illegal.Report

              • Avatar DensityDuck says:

                “I think historically, getting paid for performance was more common than getting paid for the final product.”

                Well…yeah, but is that how we want it to be? A world where every creative act is subject to “who pays the piper calls the tune”?Report

              • Avatar Reformed Republican says:

                I have no skin in the game either way, on how people are paid for their creative works. However, your description of the “new paradigm” sounds a lot like the traditional way art was funded. Making something once and selling it a multitude of times is a much more recent way of doing things.Report

              • Avatar Lyle says:

                Historically most music never made it to published sheet music as in the old days the cost of setting up a print run of music was even higher than a text book. Compare this list of JS Bachs works that were published during his lifetime: http://en.wikipedia.org/wiki/List_of_compositions_by_J.S._Bach_printed_during_his_lifetime
                with this list of all of his compositions:
                Note that the cataolog of Bach’s works runs to over 1128 in the BWV with an additional 163 in the appendix.
                Bach made his living by performance at St. Thomas Kirche in Liepzig in later years and composed Cantatas for the sunday services.
                Composition was just one of the job duties, as indeed it was for Hayden. Of course after then composers where more independent starting with Mozart and Beethoven.Report

              • Avatar zic says:

                I’m not really sure that independent artists ever really lived off their works, except for the very few both gifted and blessed. I know that there are whole schools of artists that populated the Maine coast, for instance. Painters now. Most were rich, summer people, who had the money to spend the time to gain mastery. Some, the Wyeth family is a good example, lived dirt poor in conditions we’d consider untenable today.Report

              • Avatar DensityDuck says:

                “I’m not really sure that independent artists ever really lived off their works…”

                Plenty of authors seem to manage OK. Musicians, too.Report

              • Avatar zic says:

                Not compared to the numbers that try. I know some truly great musicians, world-class, once upon a time, who hardly touch their instruments now, because they need to support families; but I mostly know jazz musicians. And you need to teach, do sessions, and tour Europe to make a living.

                The Fringe, for instance, a Boston-based avant-garde band that’s been playing for three+ decades plays to sold-out arenas in Europe. Here, they’re lucky to attract a dozen folk to one of their monthly gigs. And that’s in Boston, where there’s a highly-educated jazz audience, thanks to Berklee.

                And when it comes to musicians, I can honestly tell you that making a living or not making living frequently has nothing to do with skills and ability and everything to do with luck and marketing.Report

  20. Avatar Maribou says:

    ” after his (timely or untimely) death that his heirs profit from his efforts and from his success (as they would if he had bought stocks, or built a boat)”

    If he makes money from his efforts and from his success during his lifetime, they will profit whether they own posthumous copyrights or not. Heck, Tolstoy has literary descendents profiting from their use of his name. To say that the descendents of someone who builds a boat needs to profit from the boat, and from the ongoing income derived from a persistent copyright on the boat design, and from the ongoing dividends from the stocks he bought with the money from licensing the boat design during his lifetime, is a situation similar to taxing taxes – not evil, just weird. Punishing people for not enabling that kind of pyramid scheme can be evil, depending on the severity of the punishments involved – and the punishments currently involved are pretty crappy ones.

    Just about every modern creation is derived from the work of thousands who went before. Why should your heirs benefit from the design of the boat you made when the boat you made derives from the design of some other guy whose descendents are destitute? Why should your heirs profit, but not those of all the people whose work you “stole”?Report

    • Avatar DensityDuck says:

      “Tolstoy has literary descendents profiting from their use of his name. ”

      And the Rockefellers have descendants profiting from the use of their forefathers’ financial assets. It’s not as though media works are the only nontangible-yet-valuable property the world has ever known.

      “Why should your heirs profit, but not those of all the people whose work you “stole”?”

      Why should a farmer’s children get to automatically have his farm when he dies?Report

      • Avatar Fnord says:

        Rockefeller sold oil. Then he left he money he made selling oil to his descendants. If you make money selling licenses to your creative works during the limited term of copyright, you too will have money that you can leave to your descendants.Report

        • Avatar Maribou says:

          Yes, that’s a much more straightforward version of what I was trying to say.Report

          • Avatar DensityDuck says:

            Except that if the licenses to creative works expire on your death no matter who holds them, then why would anyone want to buy them?

            Unless you’re arguing that copyrights last forever so long as the current holder doesn’t die, which is an odd position.Report

            • Avatar Fnord says:

              Because people don’t want to wait decades for the works to enter the public domain before reading/watching them?

              I’m sympathetic to the argument that “life” or “life+” is a bad idea because it distorts the market for young versus old authors, not to mention unpredictability. And so in that sense the focus heirs is beside the point. Really, I’d prefer a fixed (and much shorter) term of years to a term of life. It’s just a way of driving home that copyright lasts A REALLY LONG TIME. Whether that REALLY LONG TIME is life+70 or 100.Report

  21. Avatar Shannon's Mouse says:

    “Over the past year, the readers of this blog have watched a boat come into creation. By the application of initiative, time, money, and risk-tolerance, a pile of plywood, a stack of lumber, two barrels of epoxy, several buckets of paint, and a weekly payroll obligation to our employees has been turned into a boat.

    “Now it could have been that instead of witnessing the slow-motion conception and birth of a boat, you could have witnessed the creation of one of my movies.”

    Let’s do a little thought experiment and re-conceive Mon Tiki not as the birth of a boat but as a unique idea around which a business is made. You’ve often noted how Mon Tiki will provide a unique experience: chartered excursions for hire out of Montauk on a USCG certified Wharram-designed catamaran built by the vessel’s owner/captain. Do you now have a property right to be the exclusive source of chartered excursions on USCG-certified, Wharram-designed, owner-built catamarans out of Montauk? Maybe the right extends to all USG-certified, Wharram-designed owner-built catamarans out of any port in the world? Maybe it doesn’t even need to be a Wharram design to be considered theft of your intellectual property?Report

    • Avatar DensityDuck says:

      “Do you now have a property right to be the exclusive source of chartered excursions on USCG-certified, Wharram-designed, owner-built catamarans out of Montauk?”

      If you can convince the US Patent Office that doing that is a unique non-obvious idea which hasn’t been done before? Sure!

      Now you need to show how that’s actually going to happen.

      “but Amazon! One-click!”

      Yes, and don’t we all agree that was a terrible decision that shouldn’t have happened?

      “But it happened once! It could happen again!”

      You’re right, we should ban private ownership of cars. After all, cars have been used to commit crime; it happened once, and it could surely happen again. What, you think that’s extreme? Hey, I’m only using your own reasoning. Why is it right for you but wrong for me?Report

  22. Avatar Sierra Nevada says:

    Late to this, owing to taking a nice long break from the intertoobs.

    I find this post Hilarious. While there is a conservative or liberal case to be made for an individual to want to have society use its police powers to invade the home of anybody, anywhere in the world, who copies and trades digital content, there simply isn’t a libertarian case.

    A liberal like me can socialize the cost of doing business for you, if you want, but will ask you to give up some autonomy to do so, and will appropriate a share of the swag. A conservative can get cops doing dirty work in the name stability and the status quo, but home-invading conservative cops tend to turn the rabble against elitist risk takers.

    Words mean things. Libertarianism cannot mean active global policing powers to protect abstractions, at little or no cost to the owner of the abstraction. If you want to be a “risk taker”, a libertarian can only tell you to sail your your nice little boat over to Amsterdam, or Hong Kong, and bust your own ass defending your property. Keep the cops out of it.Report

  23. Avatar site, my site, my blog, here, click here, social media, funny stuff, cool stuff, check it outr says:

    Lmfao, yes we law students can be a particular breed… well whatever.
    Nice article!