Copyright Blackouts

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Will Truman

Will Truman is the Editor-in-Chief of Ordinary Times. He is also on Twitter.

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95 Responses

  1. Avatar Patrick says:

    Copyright is supposed to be an exclusive right to publish.

    If you’re not publishing the thing, I’m at a loss to know why you’re allowed to hold onto the copyright.Report

    • Avatar Patrick says:

      And yes, that applies to movies and music.Report

    • Avatar zic says:

      Actually, copyright is an exclusive right to distribute. Copyright, in the US, is automatic upon creation of any work that meets some very low bar of originality.Report

      • Avatar Jim Heffman says:

        It didn’t used to be; up until 1976, registration was required and terms were limited to something like fifteen years plus one fifteen-year extension (which had to be specifically requested.)Report

      • Avatar Saul Degraw says:

        @jim-heffman

        I think it was 25 years with a 25 year extension (specifically requested) in the 1909 Act.Report

      • Avatar Alan Scott says:

        Twenty-eight years with a twenty-eight year renewal, as of 1909, though earlier terms had been fourteen years.Report

    • Avatar Jim Heffman says:

      “If you’re not publishing the thing, I’m at a loss to know why you’re allowed to hold onto the copyright.”

      For the same reason that vacant lots don’t revert to county ownership.Report

      • Avatar Will Truman says:

        Several years ago, the state informed me that if I did not collect certain money that is owed to me, the state would claim said money for itself.

        Anyway, intellectual property taxes could be a solution to this.Report

      • Avatar Will Truman says:

        From Findlaw:

        [M]ost states can seize property if the property appears to be abandoned for a certain amount of time.

        Report

      • Avatar Jim Heffman says:

        “Abandonment” has a more stringent definition when we’re talking about governmental seizure of private property, though. Searching legal dictionaries suggests that a property must be positively abandoned, rather than simply vacant or inactive. A “NO TRESSPASSING” sign is sufficient to declare a property not abandoned.

        I agree that taxes on IP are an idea that we ought to look into now that people are starting to defend IP more like physical property. Maybe once there’s a cost to simply owning IP, there will be more of an incentive to get some revenue out of it (or to just give it up to the public domain.)Report

      • Avatar Dan Miller says:

        It’s not the same as seizure, but I know that in DC vacant properties are taxed at a higher rate than properties that are in use.Report

      • Avatar zic says:

        @will-truman there’s a tremendous interest in abandoned works, when it comes to copyright. Often, these are pieces where it’s nearly impossible to tell who actually owns the copyright.

        But they are not considered abandoned property, like a bank account, etc., they’re considered works out of print, and they will remain that way until some proves they own the copyright and republishes the work or until it enters the public domain.

        Magazines from the 1930’s to the 1960s, in particular, have spawned a huges swath of abandoned works; with the rights never clearly delineated between original author and publisher, and then sets of rights allowed to grow dormant or sold/re-sold to secondary owners. There are also contract rights that are nearly impossible to trace because the contracts are long since gone; was the original work work-for-hire? What rights were originally sold? This all complicate things beyond imagining.

        It’s a print-based way of thinking of copyright that’s not very functional in an internet-based world.Report

      • Avatar Patrick says:

        I agree that taxes on IP are an idea that we ought to look into now that people are starting to defend IP more like physical property. Maybe once there’s a cost to simply owning IP, there will be more of an incentive to get some revenue out of it (or to just give it up to the public domain.)

        Jim and I agree on something!Report

      • Avatar zic says:

        Personally, I think a tax on IP (as it pertains to copyright) would have a really chilling effect.

        First, copyright, owning intellectual property, stems for creating intellectual property — some thing, be it a doodle, a poem, a snap shot, or a jingle. The very act of creating it means that you own it; and since you own your creation, you have, in theory, the right to distribute it, which includes selling any or all of your rights to someone else.

        The follow on trains of transactions, I can see being taxed in some way. But I do fear the general notion of an IP tax — of owning IP — might seriously impede people from creating and potentially invoking that tax.

        So whatever the discussion, recognition of the creative process, and not unduly burdening it, merits serious consideration.Report

      • Avatar Jim Heffman says:

        Step 1: Create an IP tax.
        Step 2: Declare that a rightsholder can relinquish copyrights or patents to the public domain in lieu of paying taxes owed.
        Step 3: A rightsholder who wishes to claim damages for infringement must, as part of the process, show a clear record of IP-tax payments over the entire copyrighted period.

        (It occurs to me that I’ve pretty much reinvented copyright licensing fees, only now you’re allowed to maintain the rights in perpetuity instead of only for a limited term.)Report

      • Avatar Mad Rocket Scientist says:

        IP taxes would be interesting. If your IP costing you more than it is making, it might be time to release it into the public domain.Report

      • Avatar Jaybird says:

        You know, I don’t hate the idea. I think it would work. It’d allow Disney to keep Steamboat Willie in copyright in perpetuity while freeing up orphan works overnight.

        I kinda like it.Report

      • Avatar Mad Rocket Scientist says:

        The follow on trains of transactions, I can see being taxed in some way. But I do fear the general notion of an IP tax — of owning IP — might seriously impede people from creating and potentially invoking that tax.

        That is easy to fix, go back to the original copyright time length. You have 10-15-25 years tax free, after that, maintaining the copyright will cost you.

        If a publisher is still making bank on a book, he has incentive to pay the tax. At some point, it stops being worth the expense. Then the right reverts to the original author or his/her estate, who can then option to pay the tax, or release it to the public domain.Report

      • Avatar zic says:

        /zic madly stomps her feet and throws a hissy fit.

        Do any of you know any artists? Do you have any idea how they work to refine their mastery of their art? It’s not just this painting, that song, this production of a play; it’s iteration after iteration, as they learn the skills.

        this is like total nightmare to me. Artists are already starving.Report

      • Avatar Jaybird says:

        Zic, does MRS’s addendum change anything?Report

      • Avatar Will Truman says:

        @mrs That’s close to exactly what I had in mind. Free for a limited time, taxed after in accordance with its value.

        @zic I wouldn’t be opposed to the proceeds going back into the arts community.Report

      • Avatar zic says:

        @jaybird I don’t know.

        First, copyright is a lot more then books, it’s any work of original expression. It’s what protects creators, excepting creators of actual useful items, a book is not considered useful under copyright law, believe it or not, so that the creators can, for some limited time, profit from their work. Here in the US, virtually any thing you write, draw, sculpt, compose, photograph, film, is a protected creative work. What Jim’s suggesting, raw, would impose a tax on all that material, no matter if the creator was actually profiting from it or not.

        A refined tax, on sold rights that don’t revert, (a ‘don’t sit on this property’ tax, might address the availability concerns without intruding on creative process negatively.

        But since the purpose of copyright is to foster creative process, a tax on holding copyright, as the law now exists, would do exactly the opposite. There are better ways to reclaim orphaned, abandoned, or ignored works then a tax on creativity.Report

      • Avatar Jim Heffman says:

        If you don’t want to pay the fee, don’t register the copyright.Report

      • Avatar Will Truman says:

        If someone’s work is without value, then the tax (at least in my reading of it) would be pretty nominal. And would only apply to the extension of the copyright past the initial experation.

        My honest preference is that we simply allow the copyrights to expire after a certain amount of time. Full stop (well, I’d be more than okay with 28-28 with explicit renewal required). But if we want to treat intellectual property like tangible property, then here we go.Report

      • Avatar zic says:

        @will-truman I don’t think I’m quite getting through here.

        The suggestion — a tax in IP — would be, as stated, a tax on work never published at all. Work that flops, and never breaks even. (It can cost a lot to produce a work of art.) This is a discussion of taxing blog posts you write, but don’t post. It would, potentially, be a tax Eric or each contributor has to pay on every published post here. It’s all intellectual property.

        Going back to the ‘arts community’ would be simply returning this massive theft of most artist’s already limited resources.Report

      • Avatar zic says:

        @jim-heffman the only reason to register a copyright is to assure the right to defend it. Otherwise, you’re just out $35 bucks.

        If you want to defend a violation in court, the work has to be registered. But the work is still copyrighted, even without registration.

        Most artists I know (and we’re talking musicians, painters, sculptors, writers, and a few computer nerds making computer art) do not register their copyrights, it’s a waste of their money. Those are, generally, not the people worrying about copyright violations, a second class of businesspeople — publishers and distributors — are the folks who generally get antsy about copyright violations.

        Now some law that made this distinction? Maybe. But as the law currently stands, the owner is the owner, and there is not difference no matter if the owner is the original artist or distributor/publisher. I’d also like to point out that there’s a long, torrid history of publisher/distributors abusing and stealing from artists. That’s why there’s so many disputes between rock stars and record labels, isn’t it? Ever read something by an author, peeved they cannot get a book reprinted though there’s some demand? I have.

        I’d much rather see a system that returned those rights to the creator after a time out of distribution or to the public domain. I don’t have much issue with the life-of-the-author copyrights, and some small number of years after the author’s death (widows and disabled children might need that income, too). But the current copyrights are egregious; and the limitations of trademark are horrendous. Patents are mostly worthless, now, in this era of patent trolls, and may well become this complete drag on manufacturing innovation by entrepreneurial people working out of their garages.

        The only one that seems to really work is trade secret. Sign a contract not to tell to work here; a contract with huge penalties. CocaCola was built on trade secret.Report

      • Avatar Will Truman says:

        @zic Only if you seek to maintain the copyright after the original period. That would mean ten years or so from now, the comics I wrote in 1995 would go into the public domain. Unless I register it. Since the comics I wrote in 1995 has virtually no value, the tax would be almost nothing (the equivalent of a registration fee). I have an affinity for that comic, so I renew it. That comic I wrote in 1996 I have no affinity for, so I do not renew that one. And it costs me nothing.

        This is only theft in the sense that anything entering the public domain is theft, by my reckoning.Report

      • Avatar zic says:

        I’d have to see the details.

        Like I said, all if IP law is seriously fucked up now, it’s a nightmare for people who actually make things. You should hear my bil talk about the problems of software patent trolls; the nightmares he has about it. My husband tends to give his work away, give his copyright away, following an open source model, and people pay him for his time to develop and teach and guide projects. Sometimes, they pay him very well. Sometimes, he nearly gives his time away because he like the work. Most of my portfolio contains mostly written work and/or photography; a few musical compositions, a few pieces of physical art; and so I tend to try to keep all rights, selling only limited publication rights for written words or photographic images. Since I re-started doing a lot of photography, I’ve been following my husbands model; I can’t be bothered to try to sell my work at this time. That’s a business in and of itself, and I’m already running other businesses. As a creator, mostly of useful things that have no copyright protection at all.

        Before doing anything to tax IP, and most particularly to tax copyright works of art — and remember the bar here is low; it includes the scribbles of your comic you threw in the trash — I’d hope for a complete rethink on how it might work better in the digital age, with some serious study of open source models. I’m really reluctant to think that another tax here, there are already several involved if you in any way profit from your work, is just more room to line the pockets of people who don’t actually create anything except profits from which the actual creator probably hardly benefits, which was the basic intent of copyright. It was meant to make it worth people’s time to do more then eek out a living.Report

      • Avatar Patrick says:

        @zic

        Taxes are generally assessed on value. You’re talking basically about a property tax scheme.

        None of that would apply to a creative commons licensed product. You can’t make revenue off of them, there’s no monetary value to them for the creator.

        Yes, this means that Steamboat Willie would be taxed more highly than Winnie the Pooh, who would be taxed more heavily that The Space Giants.

        Sure.

        But if you hold 15,432 pieces of copyrighted material in your portfolio and 3 of them are making you 80% of your revenue and 22 of them are making 19%, releasing the other 15,407 into the public domain is a solid business move.

        If someone takes one of those things and makes a new thing out of it, well, that’s making new things.Report

      • Avatar Patrick says:

        For somebody who has no established record of revenue on anything, like the home poet or the blogger, the content has no monetary value.Report

      • Avatar zic says:

        @patrick, perhaps. I’m too tangled in the weeds here, but what you’re saying seems reasonable when it comes to acquired portfolios. The distinction between acquired portfolios and creator portfolios matters, since a lot of the work we’re talking about was done in the 1900’s, and it’s pretty common to see people holding copyrights to works they didn’t create. I recently lost a friend who recorded and toured on the RCA Networks with Chet Atkins, she doesn’t won any of the rights to the music she composed, RCA owned it then, and some company in Germany owns it now.

        I have very different concerns for creators here than I do for acquisitions, and your release option, for creators, or a fair-market value tax creates all sorts of problems. Think of recording artists like Prince or Miles Davis, people with home studios and huge problems with their record labels. When they went dark — Miles went for years without releasing an album because of his label — I doubt they stop composing or recording. This stuff is very valuable; and it can take decades to sort out the legal contact disputes of really famous artists. One potential I see happening here is a tax used as a tool to force the artist to release the material under conditions of a contract they’re contesting.

        Say Will’s next comic strip takes off, and his work becomes famous. What of the sketches and scribbles he makes, and perhaps keeps, as he works out his ideas? Some day, those sketches might be valuable as works of art on their own, they may provide Will with a comfortable retirement or a college fund for Lane. And just how would an artist inventory their intellectual property? That in itself is a huge problem; just the finished comic strips? The sketches? The notebooks where you collect ideas? To pay taxes on it, it would have to be inventoried, valued and re-valued every year; like the way businesses do annual business inventories. This creates this paperwork burden, one every single artist I know would reject.

        I think contract law may be better for sorting a lot of this stuff moving forward; better guidelines on timeframes for rights reversion, etc., would go a long way to solving a lot of the problems of orphaned and abandoned works. It would be good to return rights to creators if a publisher/distributor doesn’t publish or distribute the creation, similar to the idea of ‘use it or lose it’ associated with trademark. If there is no creator to return rights to, I’d see a process for moving abandoned and orphaned works into the public domain that’s relatively easy for interested people to initiate.

        But a tax on copyrighted properties, owned by the artists who made them? Ugh. That’s literally asking you to pay a tax on your kids’ paintings held on to the refrigerator by Mickey Mouse magnets. Tax the magnets.Report

      • Avatar zic says:

        Most artist work multiple jobs, a day gig, a night gig. They work seasonally; maybe making snow all winter, and painting the mountains all summer. They always try to make money doing their art, they try make huge amounts of time available to create it. But I know very few artists who actually are able to live purely on the results of their creative work. I know a lot of artists who spend their lives teaching, waiting tables, working call centers and temp jobs, and consistently making some portion of their income from their art.

        Those are the people copyright law was intended to protect, and those are the people an IP tax would hurt.Report

      • Avatar Plinko says:

        I would be really interested in a fee scheme where copyrights would be granted for a limited term for free (say 7 or 12 years) with annual renewal for up to 15-25 more years or somesuch, but with fees that increase greatly every year (ie year one renewal might be $10.00, year ten maybe be $10K). The idea would be to encourage firms and rights holders to relinquish at some point while allowing them to publish and make money from successful works.

        I am sure there’s a ton of holes to shoot in it, but a solve that protects ideas for a short term while reducing the expense and difficulty with older, abandoned works is sorely needed.Report

      • Avatar Mad Rocket Scientist says:

        @zic

        I could see creator copyright being free until death as long as no money is made off of it. If you do make money of the sale of a song recording, or prints, etc, then you pay a nominal IP tax that year.

        After death, the estate acquires the IP and has to decide to register it, or release it. Registering it costs a nominal tax every year. Failing to register in a timely fashion (& pay the tax) causes an irrevocable public release.

        Any copyrights that are transferred to a third party automatically require registration & annual tax payment based upon the IP generated income. Failing to pay the IP tax causes the IP to instantly revert to the creator, or their estate (contracts not withstanding – so if RCA forgets to pay the tax on an IP they have under contract, the rights revert & the contract is terminated on that date).Report

      • Avatar Will Truman says:

        As an aside, the ramifications distinction between “The original creator” and “Some company who purchased the creation” has a bit of blurriness. If you make it expensive for companies to purchase IP, they will pay less for it, and creators won’t be able to sell it for as much.Report

      • Avatar Jim Heffman says:

        I’ll be honest and say that in my mind, “property tax on IP” was only levied against IP that was publicly distributed. If I draw Space Battle XXVII in my notebook I don’t have to pay a tax for that, but if I want to publish a book of Space Battle Drawings then I do have to pay a tax.

        And, seriously, I’ve pretty much figured out that what I’m advocating is a return to the “fee-for-registration” scheme. The idea being that it’s easier to determine whether something is copyrighted and who owns it–because there’s a single office that has a big database of which works are copyrighted, when it happened, and who did it (and, presumably, this office would also need to be informed of rights transfers).Report

  2. Avatar Jim Heffman says:

    As Saul pointed out in that thread, it can be quite a chore to determine the rights status of an older work.

    Due to reversion clauses, many authors are making some money off of publishing their backlists as ebooks. (Reversion clauses state that after a work is out-of-print for a certain amount of time, the rights go back to the author so they can negotiate a new contract with another publisher.) But if an author died prior to the reversion, then who actually owns the rights? The author’s estate? And what if not everyone agrees that the work was actually out of print? (Some publishers are infamous for claiming that the theoretical existence of a theoretical copy in a theoretical store means that the work is “in print”.) And, finally, the publisher might have been bought (or gone out of business entirely) in the time between the last printing and the reversion, which means that the rights are technically reverted but nobody actually executed them.

    You can also say ‘well the work is old, it should be public domain by now’, but the Supreme Court has ruled that this is not necessarily the case (see Golan v. Holder.)

    And, ultimately, it’s a matter of money. Sure, they could sell a few copies POD–but even that needs some money to set up the files that you send to the publisher, scan the original artwork, make sure it all gets done properly, warehouse the books and ship them to buyers, and so on. Tack on the cost of verifying the rights and it’s cheaper just to get something new.

    That said, you could always take the Google route of “just do it and let ’em sue”. If nobody knows who owns the rights then you’re unlikely to be sued for violating them!Report

    • Avatar Will Truman says:

      Fair point about rights-reversion. That’s one of the things keeping The Fly in limbo.

      As far as “a matter of money” not wanting to do anything with them becomes a lot more reasonable if you would legally prevent anybody else from doing the same.

      Nigh-perpetual copyrights may be Constitutionally permissible, as the court has ruled it so, but it is in my view nonetheless bad law.

      All of which is to say, perhaps Google has the right approach.Report

      • Avatar Jaybird says:

        If the punishment was a slap on the wrist, Google’s approach would be perfect. You get a cease and desist, you quit, everybody’s happy.

        I think the punishment is worse than that, though. Am I wrong?Report

      • Avatar Will Truman says:

        While the official penalties do more, I think it starts with a C&D and ends there if you cease and desist. Obviously, you lose any investment you put in the project.

        As long as there is some ambiguity. If you’re running a file server with the Star Wars movies on them, it’s a different matter.Report

      • Avatar Alan Scott says:

        The C&D is a non-required courtesy, though. A rights-holder could choose to immediately sue rather than give the infringer the opportunity to remove the offending works, if they so chose (and some have).Report

  3. Avatar Saul Degraw says:

    A few thoughts addressing stuff said by everyone:

    1. Copyright is technically created upon the date of writing a document. I technically hold a copyright on my upper-level research and writing paper for law school. I just can’t enforce the copyright until I register it with the US Copyright Office.

    2. Copyrights are not trademarks and they have been. There is no use or lose it quality to a copyright. The purpose of copyright is to promote the “useful arts and sciences” and this means creation of works. Creation does not necessarily equal publishing. It is entirely conceivable that someone can enjoy writing plays for their own amusement but still want a copyright on their property and this would be encouraging creation. Creation does not mean it has to go out to the public. Why shouldn’t a person be able to make art for themselves and copyright it?

    3. As I mentioned in Linky Thursday, most copyrights are not worth the expansive treatment we give them and this can include most works released by major media companies. However there are some that are worth being copyrighted until the End of Time and it is quite clear that the Founders could not imagine the rise of Disney and Time Warner when they wrote the copyright and patent clause in the Constitution as Lee pointed out. One wonders what sort of arguments Disney will come up with when Mickey Mouse is about to enter the corporate domain.

    4. I think Jim has some good points on the costs of maintaining servers and files and other stuff for marginal POD or ebook publishing. Server space is still a cost and there are probably costs-benefit analysis done for how many e-books or POD must be done for the cost to be justified. I still think POD is probably better for self-publishers than anyone else.

    This whole kind of argument shows how a lot of people seem to have a “have your cake and eat it to” relationship to property. Intellectual Property is still property and within reason it is up to the owner to decide what do with it including not publishing because they think costs will outweigh profit. Yet this causes people to complain. This is not so much to you because I am sure many make this complaint about stuff they like. Why is there a moral or ethical obligation to offer an entire catalogue as ebook or POD just because it is feasible?Report

    • Avatar Patrick says:

      “The purpose of copyright is to promote the “useful arts and sciences” and this means creation of works. Creation does not necessarily equal publishing. ”

      Um.

      “useful” is kind of an important word in that first sentence.Report

      • Avatar Saul Degraw says:

        Useful will always be a hotly debated topic when it comes to anything but especially property. And I think usefulness is interpreted very loosely because there will always be someone who can come along and employ something to a better/more utilitarian use.Report

      • Avatar Patrick says:

        “Not using it at all” seems to be “not useful” under any reasonable stretch of “use”.Report

      • Avatar zic says:

        Ironically, “useful items” are actually not covered by copyright. I cannot copyright “apple pie,” though I’ve published a recipe for apple pie here. What’s copyrighted any words, images, etc. in my specific recipe, and I own the right to distribute the recipe, which I did here. When it comes to my designs, it means, no matter how original a design I might come up with, someone else can (even after carefully examining my design) come up with their own; so long as it’s their ‘original’ work; which might mean something as simple as wording the instructions slightly differently.

        Another thing to remember is that just because a work is copyrighted, does not mean that you can not use it in your own derivative work. I could, for instance, use one of my favorite writing prompts and simply start re-typing the text of a favorite book, typing and typing, until I start creating my own story out of it, a derivative work. But I cannot legally distribute that work; that privilege belongs to the holder of the copyright, without permission.

        I can give up rights; which is what the creative commons licenses do, or what I did when I submitted my apple pie recipe to Ordinary Times. Because there was no contract involved, it means that the submission was for a single blog post here; and re-publishing that recipe would violate my copyright. Most examples that you’d find of my writing as a journalist on the internet are blatant copyright violations; reposts by people aggregating information on specific topics. And to be honest, I’m glad they’re out there, else my work would already be invisible to the world; I have no intention of pursuing them, and I’ve occasionally linked to them from here.

        As I said upthread, it’s most helpful to think of copyright as who owns the right to distribute something. If you don’t own it, and you share it, chances are, you’re violating someone’s copyright. If you do own it, and someone else distributes it without your permission, it’s a copyright violation. I have some knitting patterns that appear on Chinese and Russian servers, where they’re given away for free, viruses included; I can do nothing about this. There are, as far as I know, two exceptions to this: the first sale doctrine, meaning that when someone buys a book, record, whatever, they have the right to sell that original thing they purchased. The second is fair use, which is an exception seriously worthy of protecting.Report

    • Avatar Will Truman says:

      2. It makes sense for there not to be a “use it or lose it” when it comes to copyright when we’re talking about a limited duration. The argument for it becomes stronger as copyright terms are expanded.

      3. I’m not sure by what you mean by it not being worth the expansive treatment.

      4. There are services that will do it for you without cost, for a cut of the profits.

      4b. If you don’t want to do it, fine. Turn it over to the Public Domain so that someone else can. It’s the notion of “I don’t want it, but I don’t want anybody else to do anything with it either” that I object to. I support the existence of copyright largely on the basis of promoting the useful arts and sciences. Not so much for keeping stuff in a basement.Report

      • Avatar Saul Degraw says:

        Re #3:

        Most works copyrighted will never be Superman or Spider-man. They will have a limited popularity (if any) and not be worth anything to anyone is a relatively short amount of time.Report

      • Avatar Will Truman says:

        All the more reason not to protect them for so long!Report

      • Avatar LeeEsq says:

        @will-truman, corporations are probably making a very wise strategic choice when the choose to protect their lesser works along with their iconic works. Its probably going to be extraordinarily difficult for Marvel to protect Spider-Man or Thor copyrights with dear life but allow more public usage of Howard the Duck or Doctor Strange. You never know when some minor character is going to become a cult classic or big hit. If Thor became a big hit than maybe the Sub-Mariner or Dark Hawk has potential to be the next big thing.Report

      • Avatar Will Truman says:

        If I were king, I’d actually do more than just complained. I’d beef up abandoned works so that if you don’t have some variation (paper, audio, or ebook) of it for sale, it enters the public domain after a period of time. Less philosophically, it’s the sort of thing that makes me more ambivalent about copyright laws and more supportive of their reform in ways that content-creators and producers might not prefer.

        In the real world, the only thing that might have an effect is Google’s efforts at exposing works as orphaned.Report

    • Avatar Lyle says:

      Re Point #4 However google and others have decided that the server costs of handling works that are in the public domain are manageable. So if they are ok with books that return nothing the cost of selling a book in copyright for a fee should cover the costs well.
      I also favor the idea of taxing copyrights after say 50 years, with failure to register and pay meaning the work goes in the public domain after a couple of years of non payment. (for registered works)Report

      • Avatar Saul Degraw says:

        The resources of Google are much greater than the resources of even the largest publishing companies.

        Now what if you are a small publishing company?Report

      • Avatar Will Truman says:

        @saul-degraw The answer is the same. Google or Amazon will still host it.Report

      • Avatar Michael Cain says:

        @saul-degraw
        Bittorrent taught us that people will donate disk space. SETI@Home and Folding@Home taught us that people will donate processor cycles. GNU and Linux taught us that people will donate programming hours. Public libraries have armies of volunteers, some of whom would be willing to spend part of their time flipping the platen and pages in a book scanner instead of reshelving books. Approached properly, I’m sure that there are people willing to pop for the cost of putting scanners in the hands of those libraries.

        After the orphan-works problem, I think software is the biggest one. There’s quite a bit of software for scanning and character recognition out there, much of it abandon-ware. There doesn’t seem to be a project where features are accumulating. Particularly features for after-the-OCR: finding and correcting scanning problems because the character or word makes no sense where it appears, recognizing structures like words split across lines and paragraphs split across pages, page numbers, chapter and section headings, etc. I suspect one of the limiting factors for Project Gutenberg is the amount of human effort required to do things like that.Report

      • Avatar Lyle says:

        To answer Saul’s comment, if you keep the book in print its not a problem. Contract with someone to scan store and sell the book as a print on demand or ebook. Unless you have hot authors and bookd likley Amazon is a net positive for you as a small publisher. Otherwise you would not get shelf space in local stores in the old model, and slow selling books would get returned. You could of course contract with a local UPS store or print shop to do print on demand, but the problem is to get your website found. (Perhaps a mod to books in print to add the web address to order)Report

      • Avatar Saul Degraw says:

        @michael-cain

        For orphan works, sometimes you have to go to the DC Copyright Office library and do a physical search for the chain of command. We determined that was ultimately what had to be done on the time I did a search for a copy-right owner. There are also complications with the work for hire doctrine especially as companies merge and such.

        @will-truman @lyle

        I am not opposed to any of the ideas you expressed here. I would suggest that coming up with a business plan and then going about to find the rights-holders and convince them that you are right and they can make a profit is a better course than “people should do this” blog posts. This is probably harsher sounding than I intend it to be.Report

  4. Avatar Saul Degraw says:

    Some other interesting things to note:

    1. The 1976 Copyright Act that everyone rails against was meant to make the US be in accordance with the rest of the world with Copyright. The US offered much more limited copyright protection than most of the world until the passing of the 1976 Act. So this is one area where the US was better than the world standard from certain viewpoints until fairly recently.

    2. The number of blockbuster copyrights is probably increasing because of media conglomeration, mass entertainment, and the rise of the franchise. The Smurf and Scooby Doo movies come to mind in this view because there seemed to be a big lag between the last original cartoon and the movies being released. Comic book companies will be combing through their back stock for more characters to put into movies and will do so until the comic book movie bubble bursts. This is probably increased by the work for hire doctrine.Report

    • Avatar Alan Scott says:

      That’s an odd juxtaposition of facts. I mean, for all that the 1976 act brought us in line with international standards in certain respects, the US is fairly unique in not recognizing “Moral Rights”, requirements about attribution and subsequent use that significantly reduce the power work-for-hire and corporate copyright.Report

  5. Avatar James Hanley says:

    While I’ve never been anything but a critic of current copyright law, there’s a touch of “I want it, so I have a right to access it” here that I can’t really get behind.Report

    • Avatar Saul Degraw says:

      Concurred.

      Unless we are talking about why I should have a Brooklyn Brownstone. That is a completely different story.Report

    • Avatar Patrick says:

      Well, the rights talk business gets in the way again.

      I think you’re looking at it backwards.

      IP law was created, in the first place, to encourage creators to create, distributors to distribute, and people to consume. That’s the ostensible purpose of the law, and has pretty much always been.

      The entire premise is built upon the idea that people make stuff with the purpose of disseminating it, not sit on it.

      Theoretical:

      I develop a cure for AIDS. I patent it. I then sit on it, because I like to see people dying of disease, and I want to go down in history as the world’s second biggest monster.

      Do I have a “right” to do this? My work is presumably based upon all of the science knowledge that has existed up to this point, which I have access to and which I was granted access to under the same underlying proposition of “production for use”.

      Classic property rights thinking doesn’t extend well into IP.Report

      • Avatar Jim Heffman says:

        “Do I have a “right” to do this?”

        Do you have a “right” to have floor space in your house that you don’t step on every day?Report

      • Avatar zic says:

        damn if that’s not the sneakiest goodwin I’ve ever seen, @patrick

        Kudos.Report

      • Along these lines, it’s worth mentioning that the concept of abandonment is actually pretty well established in IP law. However, it’s treated very differently in trademarks and copyright. In trademarks, failure to use the trademark for three years creates a presumption of abandonment that the owner can only rebut by showing evidence of an intent to use the mark during that period (a self-serving statement that “I meant to use the mark” isn’t enough – you need something concrete). But in copyright, “use” becomes irrelevant and the burden of showing evidence of “intent” shifts to the defendant, who needs to show that the owner made some sort of overt act indicating an intent to abandon the copyright.

        So in trademark, once there’s a significant period of non-use, the defendant gets the presumption that the trademark was abandoned, and the original owner has to produce the evidence to rebut that presumption. This makes sense, seeing as only the original owner is likely to ever have evidence of his intent.

        But in copyright, non-use is basically irrelevant, and the defendant has to prove an affirmative intent, not just neglect, by the owner, even though the owner is likely the only one with access to evidence of his own subjective intent.

        This distinction really doesn’t make much sense. The purpose of trademark law is largely to prevent consumer confusion, while the purpose of copyright is entirely to encourage production of creative works by permitting authors to exploit those works. If the author is not, in fact, exploiting the works, then why should he be entitled to prevent others from doing so? While I agree with the trademark standard, it seems like if anything there’s less of a reason to apply that standard to trademarks than copyrights: an abandonment of only three years is a sufficiently short period of time that consumers could still remember the old, abandoned mark and thus may easily wind up mistakenly believing the new mark had the same provenance of the old mark.Report

      • Also, too….patent law is an even more egregious example, seeing as patent rights are truly exclusive – an infringer doesn’t even have to know about your patented product for you to have a right to stop them. I’m not sure if patent law has a parallel to the abandonment doctrines once the patent has been registered, though.Report

      • Avatar Jim Heffman says:

        “If the author is not, in fact, exploiting the works, then why should he be entitled to prevent others from doing so?”

        And from here it’s only a tiny little step to deciding that an author might not be exploiting his works properly, in a way that produces the greatest benefit to society, and that’s why we have to take away Susette Kelo’s house.Report

      • Avatar zic says:

        building on what @mark-thompson says here, one thing that’s growing ever-more common is the use of trademark to protect material that is not eligible for copyright.

        The feds will never raid vendor selling knock-off generic shirts; not subject to regulation. But they will raid a vendor selling faux Nike-swish shirts. Much logos we see on the useful objects we use every day is an attempt to use trade to gain some protection from copycats that copyright fails to provide.

        Even when the copyright on Mickey Mouse finally expires, and the dear mouse enters the public domain, people will probably still not have access to much because the dear mouse is also trademarked.Report

      • Avatar Patrick says:

        Except almost all the states already had eminent domain laws that wouldn’t have made Kelo case come up (even socialist California), and IIRC most of the rest have amended their own constitutions since, because pretty much everybody agrees that Kelo was ridiculous result even if correct interpretation of law.

        Yep, I remember correctly.

        The stink about asset forfeiture is also increasing, so it seems the trend is *away* from illegitimate seizures, not towards.

        In any event, “you’re not using your exclusive monopoly to distribute” is a pretty clear difference.Report

      • Avatar Jim Heffman says:

        Patrick: You aren’t making a very good argument when you point out that people wrote laws specifically contra the notion of “government can take away your property if it thinks you aren’t using it efficiently or effectively”.

        Because, um, that’s kind of what you’re saying here.Report

      • Avatar Patrick says:

        Well, gee, Jim, if you’re going by the historical record, and you only look at the bad stuff, no government power should ever be granted and individuals are right fucking dodgy too.

        Might as well just start shooting people. Anything else is a slippery slope to somewhere.Report

      • Avatar Jim Heffman says:

        Bro, don’t be all mad at me here. You started down the path of “property has to be used and useful to deserve protection” and I’m just showing you where that goes.Report

    • Avatar Jim Heffman says:

      ” there’s a touch of “I want it, so I have a right to access it” here that I can’t really get behind.”

      I think it’s more along the lines of “was the intent of copyright protection really to encourage violations by making it unfeasibly expensive to obtain reprint rights?”Report

    • Avatar LeeEsq says:

      I’m not fond of the “I want it so I have a right to access it” theory to but I don’t like it when copyright holders keep works inaccessible just because.Report

    • Avatar Will Truman says:

      @mark-thompson Three years does seem kind of short for trademark law, though I would hesitate to make it too long.

      I’ve been spending a lot of time trying to figure out trademarking lately. I’m interested in using some public domain properties, but others have already done so and now claim the trademark to the characters that have entered the PD.

      As @zic points out below, the perpetuity of trademarking makes it so that nobody will ever really get to use Mickey Mouse, as such. At the same time, I’m not sure how it can really be any other way as long as it keeps getting used.Report

      • Avatar zic says:

        @will-truman

        I’ve been pondering Mickey. He is the creation of Walt Disney, the brand of Disney Studios. I don’t have much problem with Disney having him perpetually locked. But I have a huge problem with Winnie the Pooh. Absolutely enormous problem with Pooh carrying a trademark after his copyright has completely expired, and I’d hate it if that copyright were extended by one single day. But Mickey? I regret that there’s not more of a culture of encouraging derivative art work; I think that kind of ‘fan fiction’ production stimulates interest, it doesn’t threaten it.

        Those are all issues at the heart of examining how copyright, as it currently functions, both hinders and helps creators, and could it do less hindering, more encouraging, and function at a speed more akin to the digital age, we’re still barely out of the Ben Franklin era right now.Report

  6. Avatar Tod Kelly says:

    This post reminds me of one of my favorite albums, Costello & Nieve.

    The album was a live acoustic recording of Elvis Costello and Steve Nieve playing in small venues earlier that year. It was released by Warner Brothers in 1996 as a five-CD box set. Shortly after it’s release date, however, Costello and Warner Brothers had a daily acrimonious split, and seemingly out of spite they subsequently refused to either re-issue it or allow Costello to purchase the rights to the recordings.

    I read about the recordings for years but was never able to track down either a new or a used copy. (This was before eBay — or perhaps before I knew what eBay was.) Eventually I found a track list online and set up a search for each song on Napster, which I kept running all day for about three months before I’d collected good copies of all of them.

    I think about this a lot when I hear record companies talk about piracy. I’m sympathetic to concerns about piracy, obviously, but still…Report

  7. Avatar Maribou says:

    “The fact that it’s still held in copyright, by a publisher that (assuming it’s not the toy gun) that has no interest in it, represents something aggravating about copyright law. ”

    1) This book was published in 1958 so it might actually have gone out of copyright by now. It depends on whether they renewed the copyright at the time (they probably did, but who knows). See: http://copyright.columbia.edu/copyright/files/2010/08/researching-the-copyright-status-of-books.pdf

    2) It probably isn’t held by the publisher, but by the author/illustrator. Most authors and illustrators sell the rights to publish/sell *for a limited time*, not perpetual rights (academia is a big exception to this). It’s possible they were working as a contracted “work for hire” due to being part of the big series (eg Nancy Drew novels were done that way), but unlikely. Quite possibly the reason it’s not in print is that no one can find the author and/or illustrator to get them to resell the rights to publish…. orphan works are a HUGE problem.Report

  8. Avatar Maribou says:

    Oh, thing the third, it’s starting at 6 bucks, actually:
    http://www.amazon.com/gp/offer-listing/0375815937/Report

    • Avatar Maribou says:

      (Older editions are often more expensive due to collectors’ value. And the ridiculously high prices you sometimes see on bookselling sites are mostly the result of automated/algorithmic pricing rather than a “real” / reliable value for the book.)Report

      • That explains a lot. I once tried to look for a book on the history of Canadian antitrust policy, published in 1980-something, and the only copy I found on Amazon was in the $600.00 range. I can’t imagine anyone wanting to shell out money for it. Even though it was pretty good book.Report

  9. Avatar ScarletNumbers says:

    The end result is that when this book – which is not in great shape – falls apart, my only option will be to tear it apart and scan it into an ebook. Which may or may not be legal, but I don’t really care.

    It’s your book. Scanning it into an ebook is legal. I wouldn’t distribute it to others though.Report

    • Avatar zic says:

      @scarletnumbers is exactly right here. It is your book, you can scan it, you can print it out for yourself as many times as you want. But you’re not supposed to sell it or post it to the internet or mail out copies to all your friends if it’s still under copyright protection; you have a right to the copies because you own the original, but you do not have a right to distribute the copies.

      In the digital age, this get’s dicy once you’ve scanned a book; for you can’t really ever guarantee that you’re selling the original copy without maintaining a replica; you have a first-sale doctrine right to sell the original, and though the law is silent on this, in theory, that would include an obligation to destroy all replicas, since you no longer own the book.

      This are just a few of the weird twists and contortions of copyright law. They are at the root of how iTunes functions, and you’ve seen them in action when you migrate devices.Report

    • Avatar Will Truman says:

      What you say sounds right, reasonable, and sane.

      Which makes me uncertain that it is the actual law.Report

  10. Avatar DavidTC says:

    I’m a little late to this party, but I think there are pretty strong reasons to change our copyright laws to reduce unused and abandoned works that stay out of the public domain for no reason. And over the years, I’ve come up with a rough idea how the law should be. Note these years are pretty random, different amounts of time might work differently. The important thing is the order.

    For five years after creation, everything is automatically under copyright. You don’t have to register it unless you want to sue. If, at the end of five years, you don’t register it, which is $15 dollars or whatever, it becomes public domain.

    If you did register it at any point before the five years are up, you get an added 10 years. And you can do that again, for another decade, for the same amount of money, or just pay $30 to start with. Or maybe just make it a single fee for the extra 20 years. (This 25 years is designed to mimic the 28 years of original copyright law.)

    The point of requiring a trivial fee? To stop literally everything ever done from sitting under copyright for a *century*. Things like this very blog post. It’s insane. You get a five year grace period in case you didn’t realize it was going to popular, or in case you screwed up the copyrighting.

    After that? It starts going up logarithmic. $150 for another decade. $1500 for the next decade. $15,000 for the next decade. You see where this is going. (We could, even, hilariously make the entire thing logarithmic and charge them $1.50 for the first decade.)

    The point of this? Entities that hold copyrights for a long period of time are, basically, using public resources. Those things are *supposed* to be public domain by then. They should have to pay a lot to make them *not* be available to the public.

    Also, no difference between corporations and people, and nothing at all based on the date someone died, which is just silly and doesn’t make any logical sense. (Logically, that *discourages* creators from creating more work while alive, because they have permanent incomes, and encourages them to create new works only decades after they are dead, which seems unlikely.)

    And one more thing: I understand we’re probably not going to be able to retroactively make entities start paying very high fees, but one thing we should do is make *everyone* retroactively re-register copyright. You get, I don’t know, a decade to register any copyright that is yours, or at least file a claim that such a copyright is yours.

    Everything else? Everything that no one has claimed because no one knows where the damn rights ended up? Public domain. All the random things that the creator didn’t care about? Public domain.Report

    • Avatar KatherineMW says:

      I like most of this, but I don’t think copyright should last longer than, say, 50-70 years at most, for any work. $15,000, or even $150,000, or $1.5 million, or $15 million, is pennies to an entity like Disney. There needs to be a point where it expires, regardless of how much you’re paying. And 70 years is enough that a writer/artist can be confident (unless they’re starting at a very young age) that they’ll be able to receive the proceeds of their work for most/all of their life.

      Any downsides to this are merely sentimental (e.g., my horror at the prospect of published, unauthorized Lord of the Rings fanfiction) and are outweighed by how much having greater amounts of work in the public domain would stimulate creativity.Report

    • Avatar zic says:

      Again, I think this puts an incredible burden on struggling artists. I also think it puts a burden on amateur artists who, over years, develop the skills and become ‘professional.’

      A work of art, be it a short story, a journal you keep yourself, or your collections of drawings is and should be yours to do with as you please throughout your life, and they should remain protected as yours. My husband has thousands of compositions; some he performs occasionally. He still pulls out charts from the 1970’s, and re-arranges them for bands he’s playing with now. To suggest that, some point after creation, he’s supposed to have to either register that work or surrender his rights to it seems like outright theft; this is his life work. It’s no different than going into a lab doing long-term research after just a few years and saying because they haven’t finalized their work, it’s no longer their work.

      Talking about rights, where the work is not owned by the creator, I have more sympathy. But what you’re suggesting frightens me; artists often work on the same thing throughout their life, going back to an idea, an inspiration, again and again. That deserves protection; and their efforts deserve to be their own so long as they haven’t decided to sell the rights to the work.

      Did you know that if you buy a painting, you have the right to that painting, but you do not own the copyright of it? You cannot, for instance, make posters of it to sell, unless, on top of purchasing the painting, you also purchase the copyright, because without that copyright, you do not own the right to distribute the painting; just the painting itself. Same as when you buy a DVD of a movie or book.

      To play a thought experiment here: An artist paints a beautiful painting, puts it in a show, and you buy it. You’ve purchased the original work in that transaction, but unless you’ve got a signed contract releasing other rights, you’ve only purchased the painting, not the copyright on the painting. You cannot make posters of your new painting to sell, only the copyright holder has the right to make derivative works and to distribute the painting in question, and in our scenario, that’s the artist.

      At some point, if the artist gains some fame, those derivative works might become valuable; but chances are that the image will never be worth anything beyond the selling price of that original painting. How much are we willing to ask somebody who may be barely surviving to invest to protect their work, to keep it their own, while they’re still working and productive? What happens if the artist doesn’t renew the copyright after five or 10 years or whatever the short-term copyright expires? Does the painting enter the public domain, and anyone can make posters of it? You going to let someone from the adoring public in to photo or scan your painting, which they now have a right to use for their own artistic expression?

      A lot of the discussion here seems to focus on the rights to works that have been published and are being sat upon by publishing companies; but that’s a really small portion of the actual material that’s produced and automatically granted copyright.Report

      • Avatar James Hanley says:

        I heartily endorse this argument.Report

      • Avatar Jim Heffman says:

        “To suggest that, some point after creation, he’s supposed to have to either register that work or surrender his rights to it seems like outright theft”

        That was how things worked up until 1976 and it seemed to do okay.

        You seem to be very upset at the idea that someone must publicly register property in order to have it be protected by law against trespass. Why is that?Report