August 4, 2008

Justin Levine Compares American Revolutionary Patriots to Thieves and Leeches

Hatched by Dafydd

Yesterday, too-frequent guest poster Justin Levine, on Patterico's Pontifications, reiterated his oft-expressed opinion that copyright is somehow unAmerican and wicked... because "information wants to be free," you know. This is a position that Mr. Levine loves to pronounce but hates to debate; he prefers pontificating:

And so... these Learned Men, having Inquir'd deeply into the Case for the Opposition, discover'd that the Opposition had no Case and were Devoid of Merit, which was what they Suspected all along, and they arriv'd at this Happy Conclusion by the most Economical and Nice of all Methods of Enquiry, which was that they did not Invite the Opposition to confuse Matters by Participating in the Discussion.
-- Robert Anton Wilson

This time, Mr. Levine coupled his profoundly anti-capitalist rant against allowing artists and writers to profit from their creations -- which forces Mr. Levine actually to pay for his favorite books, music, movies, and software applications, an irksome demand that appears to make him positively irate -- with a new crusade: He now calls for a massive increase in file "sharing" (that is, theft of intellectual property), to steal away whatever small amount most of us make from writing and other creative endeavors. And in the process, he makes a rather jaw-dropping comparison:

That is why I have reluctantly rejected the centrism that Patry still desperately tries to embrace in this debate. I actually sympathize with it to an extent, but the world copyright cartel [!] has metastasized in such a way that it makes reasonable compromise all but impossible.

I suppose that the participants of the Boston Tea Party were law breakers whose actions were condemned in many quarters at the time. I see the file-sharing community in the same light and hope they can help lay the groundwork for a much needed revolution.

A "revolution" that would allow Mr. Levine to pick up copies of Blizzard of Oz, the Remains of the Day, and HALO 2 -- for free! Commercial entertainment products want to be free!

Let's think about this identification of Mr. Levine's. The participants of the Boston Tea Party were British colonists who were being taxed by the British Parliament -- without having any representation in that legislative body. It wasn't the tax itself; American colonists were actually paying less for tea than (some) British subjects living in England. It was the principle that no free Englishman ought to be governed by a body that refused to allow him the same voting rights that all other Englishmen have.

Justin Levine sees that as analogous to a fully representative government protecting the property rights of the creators of intellectual property, including their right to dispose of that property as they choose... including selling or leasing those rights.

In other words, Justin Levine opposes Capitalism and urges a wave of theft by a gang of moochers, parasites, and freeloaders... theft that targets writers, musicians, filmmakers, software designers, and other fairly vulnerable creative artists, who for the most part do not themselves have the wherewithal to go after the nihililst thieves.

And he compares these parasitical freeloaders to the Founding Fathers of the American constitutional republic... who, by the way, were so concerned about intellectual property rights that they actually included copyright and patent in the United States Constitution (article I, section 8, paragraph 8).

I strongly urge everyone reading this post to follow the link above to Justin Levine's post and leave a comment expressing just what you think of him leading a cheer for thieves and leeches and calling for more, more, and ever more theft, a veritable "revolution" of robbery.

Oh, wait; you can't: Reflecting his passionate devotion to the libertarian ideal of rational debate, Mr. Levine closed comments on the post the moment he posted it.

You know... that sounds remarkably similar to the rhetorical approach of Squeaker of the House Nancy Pelosi (D-Haight-Ashbury, 93%) and Senate Majority Leader Harry "Pinky" Reid (D-Caesar's Palace, 85%). But perhaps that's just me.

Hatched by Dafydd on this day, August 4, 2008, at the time of 5:38 PM

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Comments

The following hissed in response by: Voiceguy in LA

Typical. I've stopped reading his posts after he made a completely unwarranted personal attack on me for daring to question him in a comment I posted.

What's frightening in this case is that Levine has no clue what Patry's actual problem is. And that problem is worthy of debate, in the face of Congress's unprecedented extension of copyright protections far beyond historical standards.

Patterico can do better.

VG

The above hissed in response by: Voiceguy in LA [TypeKey Profile Page] at August 4, 2008 6:14 PM

The following hissed in response by: hunter

Thieves are cowards and cowards are thieves.
Justine Levine demonstrates this rather well.

The above hissed in response by: hunter [TypeKey Profile Page] at August 5, 2008 5:00 AM

The following hissed in response by: ~brb

He? Him? Mr.? Isn't Justine a woman's name?

~brb

A Proud Member of the World Copyright Cartel since 1979.

The above hissed in response by: ~brb [TypeKey Profile Page] at August 5, 2008 7:25 AM

The following hissed in response by: Dafydd ab Hugh

~Brb:

Oops, thanks; I corrected the name.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at August 5, 2008 12:52 PM

The following hissed in response by: wtanksleyjr

Frankly, your rant against Levine's position is as bad as his half-a-sentence advocating theft. No, he's wrong, but so are you. Modern copyright law is NOT built to recompense the author; it's built to preserve corporate investment over a period vastly greater than the life of any (mortal) author. It's also been extended multiple times by act of Congress in such a way that it's been a long time indeed since creative works have entered the public domain.

The foundations of modern copyright law have some credibility; they're built on the European conception that authors have a fundamental human right to profit from publishing their work. Unfortunately, they are opposed to the American conception that, absent reasonable compensation, humans have a right to act according to knowledge that they have legitimately obtained.

The US Constitution recognizes only what I've called the American notion; it grants powers to Congress to create copyrights and patents, but only for limited duration, and for the express purpose of promoting the arts and useful sciences (note the absence of "protecting the rights of authors" language).

The European notion has much merit, but any non-extremist must recognize that the American perspective is needed: that creativity benefits both from profitability AND from a robust public domain. And further, that the line between protected, profitable works and available public-domain works is best left clearly visible.

None of this excuses "filesharing" (euphenism), nor does it excuse Justin's half-sentence attempting to link self-serving violators of legitimate copyright with legitimate protesters. But I hope it clarifies the difficulty of the problem: it's not as simple as simply deciding to respect authors.

The above hissed in response by: wtanksleyjr [TypeKey Profile Page] at August 5, 2008 5:42 PM

The following hissed in response by: Gbear

Another reason lawyers should be compensated at the minimum wage. The world would be a better place.

The above hissed in response by: Gbear [TypeKey Profile Page] at August 5, 2008 6:27 PM

The following hissed in response by: nk

It's my conceit that I'm the reason Justin Levine no longer allows comments.

The above hissed in response by: nk [TypeKey Profile Page] at August 5, 2008 7:53 PM

The following hissed in response by: Dafydd ab Hugh

Wtanksleyjr:

Frankly, your rant against Levine's position is as bad as his half-a-sentence advocating theft. No, he's wrong, but so are you.

Perhaps you could be so kind as to point out where in this post -- or any other -- I advocated "preserv[ing] corporate investment over a period vastly greater than the life of any (mortal) author."

I sure don't remember writing that; in fact, I really don't have an opinion how long copyright should protect a work from entering public domain, so long as it's not during the creator's lifetime. But I must have praised the current system somewhere in this post, because you angrily insisted that I was "wrong," just as wrong as Mr. Levine, and singled out my support for the current law.

Could you please quote it? I can't seem to find it. I'm sure my eyes are just sliding right across it.

Nk:

I, too, tried to have a civilized discussion with Mr. Levine about this issue a year or so ago. I'm willing to entertain any reasonable compromise. But Mr. Levine's idea of debate is to keep screaming at me that I'm a tool of the corporatist interests and the "world copyright cartel," because I insisted that as the creator of literary works, I should be allowed to profit from and control my creations at least during my lifetime.

That doesn't sit well with a man infuriated that he cannot get all his favorite entertainments for free.

He abruptly ceased responding and has closed comments on this topic since then, whenever he posts on it. So perhaps I'm as much to blame as you.

In either case, Mr. Levine is one of those libertarians who is indistinguishable from a libertine: He wants his noodles, and he wants them now! And by the way... he wants them for free.

Come to think of it, he's rather indistinguishable from a liberal, too. (Which is likewise true of the LP at this point.)

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at August 6, 2008 12:35 AM

The following hissed in response by: Dafydd ab Hugh

Folks:

I think Porsches want to be free, too. Don't you?

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at August 6, 2008 12:36 AM

The following hissed in response by: Bart Johnson

I am conflicted between theory and reality, between morality and pragmatism.
As is often mentioned, "Past performance does not guarantee future results."
Further, we all know that statistically, a sample size of one is meaningless.

In the face of which, we need to turn our attention to yesteryear, when tape recorders were invented.
Tape clubs, (the forefathers of BlockBusters)
sprang into existence when the RCA tape of "The From America Suite" sold for Ninety Dollars.
Fairly good copies could be made for ten dollars. Mind, those were signficantly bigger dollars than the ones we play with today.
The record people went ballistic with their predictions of destitution from the theft of their work.
In fact, however, the record people ended up making more money than they knew what to do with.
Then came the catastrophe of the VHS systems that could steal entire reruns of "I Love Lucy" without a dime of residuals. More wailing and gnashing of teeth. The dentists and the repairers of rent
clothing had to work overtime.
Rather than destitution, however, Desilu became one of the richest companies in the
entertainment industry. Funny how that worked out.

It may be related, in some alternate universe, to the empirically observed fact that when you
reduce tax rates, the total vigorish goes up.

YMMV, but the past hints that one should observe loss before going to court.

The above hissed in response by: Bart Johnson [TypeKey Profile Page] at August 6, 2008 1:30 AM

The following hissed in response by: wtanksleyjr

Perhaps you could be so kind as to point out where in this post -- or any other -- I advocated "preserv[ing] corporate investment over a period vastly greater than the life of any (mortal) author."

I didn't say you'd advocated that. I said you'd ranted against Levine specifically for opposing modern copyright law (as well as specifically for advocating self-serving copyright law violation, a position about which I agree with you).

Let me quote you directly:

Justin Levine sees that as analogous to a fully representative government protecting the property rights of the creators of intellectual property, including their right to dispose of that property as they choose... including selling or leasing those rights.

No, he doesn't, because that is NOT the aspect of the law he's concerned about. Reading your post is like reading some ancient Briton opining that "the Americans see vandalism as analogous to a legitimate government providing valuable customs services to colonies for lower prices than they can afford in their own homelands." Yes, the Briton may have been right on the facts; but he would have totally missed the fundamental injustice that the Americans were protesting.

Why does Levine's side (I can't speak for Levine, having never read him aside from this one quote) ACTUALLY think modern copyright law is unjust? They don't (contrary to your framing) think it's unjust because "it protects property rights" (to use your framing); they think it's unjust because it treats a tradeoff between mutually exclusive rights as though it were merely a question of the producer's human rights -- therefore the consumer is given no input on the debate. This results in de facto government without representation -- the big "producers" (well, conglomerates) get to make the law, and they've made a law which cares so little about normal operation that most of the things you can do with recording media are in the gray area of the law. (Needless to say, filesharing an MP3 of a new song is obviously not a gray area!)

The fact is that unlike Life, Liberty, and the Pursuit of Happiness (hmph, I still think Property should go here), there is no fundamental human right to be compensated for your ideas and creations. In fact, it's very clear that enforcing such a "right" necessarily restricts the rights of others.

Anyhow, this remains: if you'd posted about his stupid anti-law half-sentence I'd be in total agreement with you. Instead you chose to put words in his mouth that aren't even relevant to the debate.

Unless... of course... You saw him say those words... In which case I reiterate my request for a quote, and then I'll disagree with both him and you.

(By the way, this is off-topic, but you can't be serious about "lifetime of the author" copyright. What does that have to do with maintaining commercial value? It would drop commercial value of a life-threatened author to almost nothing. Fixed-period copyright is much fairer, and also has the virtue of being directly constitutional. Oh, and it also makes it easier to determine what works have fallen into public domain.)

-Wm

The above hissed in response by: wtanksleyjr [TypeKey Profile Page] at August 6, 2008 6:58 AM

The following hissed in response by: nk

Justin Levine is essentially a moron*. His position is that works of authorship are "fungible". That they are only worth the paper or disk they are imprinted on. For eaxample, if you can get your hands on a copy of "Dark Knight" every disk you burn from that will be worth only what it cost you to burn the disk.

*I said "moron" only because I respect Dafydd's proscription against stronger language.

The above hissed in response by: nk [TypeKey Profile Page] at August 6, 2008 10:17 AM

The following hissed in response by: nk

Support for my last comment. Keep on reading to fully understand Levine's idiocy.

The above hissed in response by: nk [TypeKey Profile Page] at August 6, 2008 10:24 AM

The following hissed in response by: Voiceguy in LA

Levine would benefit from some education in property law and copyright law.

In my copyright law classes, taught by one of the leading figures in the field (Paul Goldstein), the key concept of "appropriability" was introduced. This is actually something that arises in property law as well.

The example he used was a farmer planting a field of corn. Why would the farmer do this? Of course, it's because the farmer intends to appropriate the value of the corn crop to himself. In other words, he will harvest the corn and sell it. The concept of private property means, ultimately, that this farmer's right to appropriate such value to himself is legally protected from thieves and encroachers.

The big difference between this physical example and matters involving intellectual property is a simple one:

The farmer can only sell his crop of corn once. In other words, the farmer must recover all of his investment in creating the crop of corn from a single sales transaction.

What happens when the farmer cannot appropriate enough value from his corn crop to reimburse the cost of growing it, plus a modest profit? Answer: He stops growing corn.

Intellectual property, once created, is often reproducible at negligible cost. It's not like a crop of corn that can only be sold once; the same intellectual property "crop" can be sold many times, in the form of books, movies, audio recordings, and so forth. Particularly in the digital age, where replicas are truly indistinguishable from one another, there is no practical limit to the number of "corn crops" that can be cloned from an original work of intellectual property creation.

But the appropriability issue remains.

Just like the farmer, a creator of intellectual property (other than a mere hobbyist) requires the ability to appropriate to himself the value of what he has created, in order to be willing to keep creating works of intellectual property. But this seems to be the exact point at which Levine falls off the bus. He contends that the very fact that intellectual property can be reproduced cheaply means that its creators are not entitled to any right of appropriation of the value of their creation.

Remember, just as it costs money and takes effort to grow a crop of corn, it often requires serious money and effort to create intellectual property. Feature films have production budgets of tens of millions of dollars, even though the finished film, as a digital file, can be shared essentially cost-free. However, Warner Brothers and Fox and Sony Pictures and Universal are not going to keep piling millions of dollars into producing feature films unless they have some reasonable prospect of earning back a decent return on that investment.

In Levine's world, the studios would get virtually nothing in return. Therefore, in Levine's world, feature films would soon disappear.

Now I do happen to think that Congress may have gone a little too far to one side in balancing the rights of authors against the rights of the public. I think the Digital Millenium Copyright Act goes way too far to chill lawful expression and private activity. The most recent extensions of copyright term were excessive, in my view. But in principle I have no problem with the overall concept of protecting intellectual property, particularly from uninformed freeloaders like Levine.

VG

The above hissed in response by: Voiceguy in LA [TypeKey Profile Page] at August 6, 2008 11:55 AM

The following hissed in response by: wtanksleyjr

VG, great summary. Thank you; I agree. I think this is the "centrist" view that Levine rejects (and the quoted lawyer endorses). Note the lack of need for talk about "rights"; this is a social benefit argument, not a rights argument, whose conclusions can reasonably be expected to be compatible with the US Constitution's stated requirement "promote the Progress of Science and useful Arts". (By the way, note that the power granted to congress is not directly to establish copyright or patents, but rather to "promote the progress" by means of such establishment.)

The above hissed in response by: wtanksleyjr [TypeKey Profile Page] at August 6, 2008 12:33 PM

The following hissed in response by: wtanksleyjr

nk: I didn't read the entire thread, but I didn't see any "idiocy" displayed by any participant (I stopped at comment #24). You all argued well and passionately -- I don't think Levine pulled out the strongest rhetorical arguments, but neither did you.

I think a crucial point was made in comment #24:

Certainly nk is correct in his assertion that a person owns what he creates, but the acts of creation and publication are distinct, and when the creator chooses to publish, that act diminishes if not destroys the creator’s ownership rights, except where the public has accepted the continuation of those rights as a condition of the publication.

The point being made here needs to be clarified (alas): by the act of publication, an author inevitably and naturally diminishes his rights to control and exclusively profit from his work. This is as true for copyrightable works as it is for patentable works.

The primary purpose of copyright and patent laws, according to the US Constitution, is to promote the progress of the arts and sciences; this they accomplish by allowing the author to exercise a limited amount of control over what the public can do with his work for a limited amount of time. In return, the public as a whole receives the benefits of having that knowledge now, and in addition the benefits of being able to fully use that information later.

And finally, nk, the fact that there is value in literature is not therefore an argument that there must be someone with a monopoly over that value. The fact that an author created that value is not an argument for granting all of that value to the author over all time. There may be such an argument, but the simple fact in itself is NOT itself that argument.

-Wm

The above hissed in response by: wtanksleyjr [TypeKey Profile Page] at August 6, 2008 2:30 PM

The following hissed in response by: k2aggie07

I would like to add my two cents, as it were, with a few observations:

BitTorrent traffic is estimated to be anywhere from 50-75% of bandwidth usage on the internet.

Rationally,why would anyone ever, ever pay for music these days? Fifteen minutes, tops, and you have an album for free with art, correct metadata, etc from BitTorrent -- and save yourself $20.

DRM is driving the music industry out of business.
As long as the record labels continue payola on massively / nationally integrated radio and push the songs they choose and the artists they pick, as long as local radio stations keep disappearing and local bands have little to no chance of rising to the top through aggregated audiences, as long as the music is simply not worth the price...piracy will reign.

In a free market the only reason a black market ever exists is if artificial price controls over-value a product -- and the market is not allowed to adjust.

I'd like to present a theory. Declining record sales haven't been caused by illegal mp3 downloading, or even greatly exacerbated by it. Instead, declining diversity of music and a controlled music industry with little originality did.

Americans, and people in general, don't have a problem paying for a quality product. When people begin stealing things (or even just not buying them) it generally means there's a problem with the producer, not the consumer.

Please note that I am not advocating theft. I am, however, laughing my rear off at a fat, stupid industry controlled by people awash in unoriginality and too unimaginative to address a problem other than by adding wave upon wave of consumer-unfriendly padlocks to their product...thereby making people all the more likely to resort to piracy just to use the products without jumping through hoops..

The above hissed in response by: k2aggie07 [TypeKey Profile Page] at August 6, 2008 5:41 PM

The following hissed in response by: Dafydd ab Hugh

Wtanksleyjr:

The fact is that unlike Life, Liberty, and the Pursuit of Happiness (hmph, I still think Property should go here), there is no fundamental human right to be compensated for your ideas and creations. In fact, it's very clear that enforcing such a "right" necessarily restricts the rights of others.

Absolutely true. I don't have a right to demand that some publisher buy the Pandora Point, whether he wants to or not.

Of course, nobody has made such a silly claim in this debate; it's a bizarre straw man.

But I argue I do have a constitutional right (I don't know what a "human right" is) not to have my property stolen by private citizens (with which I believe you agree), or expropriated by the State for the masses without being justly compensated for it.

What is this right of consumers you seem to believe is found somewhere? This would be a right of consumers to obtain my creations for a price they deem fair -- whether I want to sell them or not?

What if I write something then decide I don't want to publish it. Does some consumer who falls into possession of that work -- by hook or by crook -- have the right to publish it on behalf of all the other consumers who otherwise wouldn't see it?

Where do you get this? Freedom of speech has always included the right to read what others have written... but it has never included the right to read what the writer doesn't want to publish! Does that mean all my first drafts, my grocery lists, and even my private diary (if I kept one) are all up for grabs?

Upon what great political document, or under what accepted theory of government, do you find such a right on the part of consumers to read things that the creators don't want to publish... and worse, to read them at a price that the consumers decides is reasonable, even if the author disputes that decision?

(By the way, this is off-topic, but you can't be serious about "lifetime of the author" copyright. What does that have to do with maintaining commercial value? It would drop commercial value of a life-threatened author to almost nothing. Fixed-period copyright is much fairer, and also has the virtue of being directly constitutional. Oh, and it also makes it easier to determine what works have fallen into public domain.)

W, I didn't say copyright should expire when the author does! I said that it's bizarre and ludicrous that a work can enter public domain while the creator is still alive, still trying to profit from his creation.

Suppose that's his only work that actually sells well enough to live on. Back in the old days, 27 years + a 27-year extension = 54 years after publication, it abruptly goes into PD -- and thereafter, publishers can still sell the book and make lots of money off of it... but they have no obligation to pay the actual creator even one thin dime for that privilege.

I don't now the current law (it changes pretty rapidly), but fairly recently, the period of copyright was author's lifetime plus 50 years. I am open to negotiation about the second part; but I am adamant that works should not drop into PD while the author is still living.

I also find it interesting (and telling) that you and Levine continually identify the creator of a work with some vast megacorporation. It's true that when, say, Michael Buble releases a CD, 143 Records and Reprise make money off of it; if they didn't, they wouldn't press the disks, assemble the packages, and distribute them to stores and to Amazon and such.

But Buble also makes money off of each sale, because he, as the performing artist, gets a royalty for his performace -- which is his creation. And of course, the individual songwriters or their heirs or assignees make money when a song they wrote is performed on a CD by anybody.

By attacking "big producers" and "conglomerates," you gloss over the fact that you are also attacking the rights of the individual artists, writers, and performers as well.

Now that I've been thinking about it, I believe a good compromise would be that the human author(s) of a creative work should have exclusive authority to sell publication rights of whatever duration he (they) choose, so long as at least one of the human authors still lives. For "author," read author, composer, director or screenwriter, sculptor, painter, etc.

(If a corporation is the "author" of a work for purposes of copyright, different rules would pertain which are beyond my immediate ability to craft. Probably it would be like trademark law, where the owner must continually demonstrate that he is using the trademarked (copyrighted) work for commercial purposes, actively selling it and suchlike.)

After all the authors of a work are dead, for any work that was published with the authors' permission, and so long as the work is not "out of print" (OOP), the publisher currently publishing it should retain that sole right. Here we should use any reasonable and appropriate definition of OOP; but a work that simply exists in a publisher's digital "catalog," with no effort on the publisher's part to sell it and no significant sales, should certainly be considered OOP.

(We can just use the wording for when a book author can revert the rights of a book back to himself; that code section defines OOP quite well and workably.)

Once the author is dead and a work of his is OOP, then any publisher should be able to publish it; but that publisher must pay a royalty to the authors' estates. The royalty would start out about what the last publisher was paying while the author lived, then slowly diminish over time until it disappears altogether (after a number of decades pass following the author's death).

Thereafter, the work is considered public domain, and anyone can publish it without paying a royalty to the authors' estates.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at August 6, 2008 6:30 PM

The following hissed in response by: nk

Yeah, I think that a promise, enforced by law, that only he and maybe his children could exploit it commercially, would be a very small price to pay for another Shakespeare play.

The above hissed in response by: nk [TypeKey Profile Page] at August 6, 2008 7:49 PM

The following hissed in response by: wtanksleyjr

Absolutely true. I don't have a right to demand that some publisher buy the Pandora Point, whether he wants to or not. Of course, nobody has made such a silly claim in this debate; it's a bizarre straw man.

I ...er ... didn't intend to say it that way. Sorry. My fault.

I meant to say that nobody has the right to expect to continue making money using the same business model across time. Things change; technologies can make an old business no longer profitable. That's just how things work. Sometimes you have to find a new way to do business.

But... I'm not intending to say, either, that copyright is obsolete. I definitely believe that some ways of thinking about copyright are stillborn (never valid), and are creating a stink.

But I argue I do have a constitutional right (I don't know what a "human right" is)

Surely I don't have to quote the Declaration of Independence to you, right? You're free to disagree, and it's not the law of the land, but it is the background against which the Constitution was written. The Constitution attempts to describe a government which would protect the rights referred to (but not created by) the Declaration AND which would be stable and strong enough to actually succeed in doing so.

...[a right] not to have my property stolen by private citizens (with which I believe you agree), or expropriated by the State for the masses without being justly compensated for it.

You've got a total right to both, I believe. The solution is simple: don't publish and none of those things will ever (legally) happen. If you DO choose to publish, you've got to think carefully about the costs and benefits. You know the benefits -- people hear about your ideas and creations. But there are costs, too. You either have to negotiate a trade-secrets NDA with everyone you allow to experience your work (in return for which they'll expect some reasonable compensation!), or you can use copyright law to bind ALL of society into a kind of NDA agreement with you, in return for which society at large must demand some kind of compensation.

It's not expropriation; it's plainly and simply the natural result of publication: your ideas get known by more and more people. It's fair compensation for you NOT having to negotiate NDAs with everyone you sell to.

The question isn't whether your work should become available to all; the question is WHEN it should happen.

under what accepted theory of government, do you find such a right on the part of consumers to read things that the creators don't want to publish

Stop right there -- I support trade secrets, and any other kind of secrets. If you don't publish, copyright can't expire and the public domain will never see your works. If you distribute only under NDA, your protection should only expire according to the terms of the legal agreement (although those terms can and will be limited by local law, which both parties to the NDA should know).

But once you HAVE published, copyright law applies; you have no more right to deny your customer the right to copy and redistribute it after its copyright term has expired than HE has the right to copy and distribute it before that term has expired.

Once again, the question is... how do we decide when the term expires? What considerations are there? Reading your prose, one would think that the tender feelings of the author were the only issue... If that were true, why not follow "nk" and recommend an eternal extension of copyright? True, the author wouldn't always benefit from it, but the author could at least ask for much more money from an assignment of the rights to a corporation! (Well, such a system would be blatantly unconstitutional, but WHY did the authors put that pesky clause "for limited times" into that pesky document, anyhow? Perhaps it was an accident!)

Obviously, I don't believe "for limited times" is a constitutional accident. The philosophy behind it is well-supported by other founding documents, and it's simply not compatible in any way with your philosophy.

Suppose that's his only work that actually sells well enough to live on. Back in the old days, 27 years + a 27-year extension = 54 years after publication, it abruptly goes into PD -- and thereafter, publishers can still sell the book and make lots of money off of it... but they have no obligation to pay the actual creator even one thin dime for that privilege.

That really warms the very cockles of my heart, if my heart had cockles or blood to warm. Unfortunately, as a sub-reptilian I lack a proper circulatory system (heck, I don't even have a blog), so I'm going to be callous and ask by what right that author has any expectation for the publishers -- or me -- to pay them a stipend? It's a sad story, but why should we build law around THAT sad story? Many respectable improvements will never see the light of day because copyright won't allow them to be published. Disney himself benefited massively from the public domain -- very few of his big animated hits were licensed under copyright law; most were taken from PD.

Originality is wonderful, but derivative works are important as well. To exaggerate for the sake of effect: if Homer enjoyed the full-strength copyright protection some seem to want, there would hardly be any stories in Western literature -- he having taken all the interesting twists. We couldn't even discuss balancing copyright law, since that's steering between the Scylla of copyright lawyers and the Charybdis of widespread disrespect for authors.

I am adamant that works should not drop into PD while the author is still living.

The founders weren't adamant that way.

The only argument you've presented is a sob story that completely ignores the other side of the story -- the benefits to creative effort that come from a robust public domain.

YES, that means the author may possibly have less time to profit -- but it also means that whoever he sells his work to has a KNOWN amount of time they can profit exclusively from it. That's going to make pricing and selling it easier, not harder.

Now that I've been thinking about it, I believe a good compromise would be that the human author(s) of a creative work should have exclusive authority to sell publication rights of whatever duration he (they) choose

I'd love a good compromise. It's a little hard with the two sides locked into their worldviews so hard, and SO much money at stake.

With all due respect, though, I don't understand that one -- are you saying that one author can commit the state to "for any duration" enforcing his copyright, simply by selling it to some corporation for that duration? So I could protect my work for a million years?

Very long copyrights will distort the economy by making corporations more powerful than authors -- not a creatively useful outcomes. Obviously, very short copyright terms also distort the economy, by making publication vastly less attractive than an NDA. It seems clear to me that there's a practical balance point -- it might be hard to find, but surely there's _something_.

I also find it interesting (and telling) that you and Levine continually identify the creator of a work with some vast megacorporation.

Sorry, I don't know Levine, but I don't intend to do this... Where does it appear that I'm doing it?

The problem DOES become especially painful with corporations, which can enforce copyright law however long it extends (and can lobby to have it extended, ala Disney). But so long as corporations EXIST, if copyright lasts longer than a human life, a rational author will always sell his copyright to a corporation, which will have a higher expected value for it than any human could.

The rest of your compromise is ... well, I like it, to be honest; I think you're offering it in total sincerity. But it's not a compromise. It's just "what your side wants", plus a forced royalty fadeout (which I think is your attempt at compromise, but as a free market person I find forced price setting odious). I think if you consider the enforcement complexities, plus the economic side effects, you'll agree that it's probably not a good deal for either side.

Another possible compromise would be to have a copyright registry; you get automatic copyright for free for x years, then you have to renew, again for free for y years. Next you have to pay a small fee to extend the copyright another y years; for each additional extension you have to pay more. You get a maximum of z extensions, for a total of x+y*z years of copyright protection; your assignee can make the extensions for you. The values of x,y, and z must be fought out, and surely the amount of money you pay to the office will be an issue of fevered debate. To make things easier, perhaps the law will allow those who let their copyright lapse buy it back -- they would gain no right to collect from people who used your work during the lapse, but before and after would be more than fair game.

This has its own problems, but at least it's somewhat easy to tell when something's in copyright -- you just ask at the office.

Personally, I think the best solution is a simple one: a fixed period of years, starting at publication, with no extensions. I like this because it's relatively easy to tell when an item's copyright has expired. HOWEVER, one nice thing about technology is that it can track much more complex laws, so I'm not totally against some other formula (like the one I proposed), so long as the law provides means to allow a user to be sure they're not violating it.

-Wm

The above hissed in response by: wtanksleyjr [TypeKey Profile Page] at August 6, 2008 9:49 PM

The following hissed in response by: Dafydd ab Hugh

Wtanksleyjr:

But I argue I do have a constitutional right (I don't know what a "human right" is)

Surely I don't have to quote the Declaration of Independence to you, right? You're free to disagree, and it's not the law of the land, but it is the background against which the Constitution was written. The Constitution attempts to describe a government which would protect the rights referred to (but not created by) the Declaration AND which would be stable and strong enough to actually succeed in doing so.

I know what the "inalienable rights" in the D of I are; but that's not what "human right" means.

In common parlance, human rights means this, the putative "Universal Declaration of Human Rights."

This document is a higgledy-piggledy hodge podge of gen-you-ine, enforceable rights and socialist claptrap, and it's impossible to know for sure what is and what is not a "human right."

The different rights contradict themselves -- for example, article 19, freedom of expression, is completely contradicted by article 12, the right of each human not to be subjected to "attacks upon his honour and reputation."

Article 23 is a complete repudiation of Capitalism. Article 26, part (1) is literally impossible; part (2) is an enthusiastic paean to State-run propaganda mills; while part (3) turns around and completely nullifies parts (1) and (2)!

So if you can explain this document so someone as feeble-minded as I can understand it, then perhaps I will know what "human rights" are.

But I argue I do have a constitutional right (I don't know what a "human right" is) not to have my property stolen by private citizens (with which I believe you agree), or expropriated by the State for the masses without being justly compensated for it.

You've got a total right to both, I believe. The solution is simple: don't publish and none of those things will ever (legally) happen. If you DO choose to publish, you've got to think carefully about the costs and benefits. You know the benefits -- people hear about your ideas and creations. But there are costs, too. You either have to negotiate a trade-secrets NDA with everyone you allow to experience your work (in return for which they'll expect some reasonable compensation!), or you can use copyright law to bind ALL of society into a kind of NDA agreement with you, in return for which society at large must demand some kind of compensation.

It's not expropriation; it's plainly and simply the natural result of publication: your ideas get known by more and more people. It's fair compensation for you NOT having to negotiate NDAs with everyone you sell to.

At this point, we part company so thoroughly that there is no point continuing this conversation. Quite simply, you believe that by publishing my novels, I have given them to the world... and from that moment, anybody has the "human right" to republish them and sell copies without paying me a dime.

But if I'm really, really good boy, you might graciously toss me a few scraps -- as charity, you understand, or perhaps as you might toss a quarter to a street juggler on a whim -- so long as I don't make a pain out of myself by yammering on about how I should actually own that which I create.

Others may continue this discussion, but I'm out of here. (Hey, wait -- I live here!) All right, I'm out of this so-called debate: If you begin from the premise that you own anything you see and take a liking too, like a Kropotkian anarchist, and that you should be able to seize it and begin selling it yourself without any compensation to its creator... then you're too weird for me.

You are, however, a pretty good bookend to Justin Levine.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at August 7, 2008 2:10 AM

The following hissed in response by: wtanksleyjr

I know what the "inalienable rights" in the D of I are; but that's not what "human right" means.

That's a very good point, and I accept the correction. Let it stand that I agree with you in rejecting the document you cite, and I don't agree with its philosophy of rights anyhow -- because it doesn't consider that every right is paired with a duty, it thinks that assigning more rights is always an unqualified good thing.

In fact, assigning more rights also assigns more duties; if the rights are too broad, the duties might be too onerous (which is bad) or unenforceable (which isn't good, and suggests that perhaps the rights in question shouldn't be a matter of law).

This is precisely why I disagree with both that "Declaration of Human Rights" and with your view of copyright -- not because I don't believe in humans, rights, or copyright, but because I recognize that rights are always paired with duties, and just because a right looks beneficial for one person/set of people doesn't mean that the duties it imposes are a reasonable exchange for the people on whom they are imposed.

At this point, we part company so thoroughly that there is no point continuing this conversation. Quite simply, you believe that by publishing my novels, I have given them to the world...

Emphatically yes, by the definition of "publishing". If you didn't give something to the world, you didn't publish it.

Can we agree on this?

and from that moment, anybody has the "human right" to republish them and sell copies without paying me a dime.

Emphatically NO. This is a strawman. I do not claim this, any more than I claim that by showing your face in public you give anyone the right to punch it. The difference is that I can show *arguments* why the public should not punch your face, and why the public should not copy your published works. You have shown no arguments!

Let's switch out of the "rights" terminology entirely, and talk about duties. I think we can agree that truly inalienable rights are always complementary with absolute moral duties: for example, if someone has an absolute inalienable right to life, everyone has an absolute moral duty to not take that life (let's keep this simple -- moral theories are always nuanced, so just assume there are nuances I'm not describing). Can we agree on this?

Therefore, if you have a right for the public to pay you before copying your published works, the public has a duty to refrain from copying your published works. This statement seems perfectly valid to me, and it seems consistent with both of our views. I think we would both answer YES. In fact, I think we would both agree that it's reasonable for the public to be forced to shoulder that duty. Can we agree on this?

so long as I don't make a pain out of myself by yammering on about how I should actually own that which I create.

Go ahead! Own it! Control it utterly! But that doesn't automatically, without further consideration, give ME the duty to obey you after you SELL what you created to me -- unless I accept that duty in exchange for you granting me possession of that embodiment of your work.

That's SUCH a reasonable exchange! It makes so much sense! I accept a duty that I owe to the author; the author gets the double benefit of being able to have others use his work AND being able to control his work. I love copyright.

But if it's an exchange, I have some right to negotiate the TERMS for that exchange. You want me to accept "life of the author plus" terms; I'd like to discuss that (it's a reasonable request). Can we agree on that?

My objection to "life of the author plus" terms isn't an inchoate mess like "it's too long!"; it's a pragmatic objection that it doesn't give a definite benefit to the author himself (since he can't know how high to price his asset to publishers) while imposing a possibly too large cost on society (for example, it becomes very hard to tell when a copyright actually expires). It's a cost calculation based on an irrelevant aspect of the situation.

The non-negotiable common ground we share is the US Constitution. Both of our proposals are compatible with it (unlike "nr", whose proposal is for an unlimited period). If you call me an anarchocommunist for wanting a shorter period, it seems you have to call the founding fathers anarchocommunists for giving Congress the power to set the period that short. Since they did not specify one, but DID require that the period be limited, it seems to me that the period is open to prudential debate, meaning debate that takes into account the costs and benefits of different alternatives on the entire system.

Can we agree on that?

I don't demand that you "don't make a pain of yourself by yammering" about how you should own what you create. On the contrary, I beg you to yammer on, along with me. Your stance now is a position of power -- the trend in the law is on your side, not mine. Copyright is being used ever more expansively, and is stretching to control not merely copying, distribution, and public performance, but even mere use. If you decide to stop yammering, I lose by default.

You are, however, a pretty good bookend to Justin Levine.

What does this metaphor mean? I don't like Levine -- should I be insulted? Or do you mean that I'm on the opposite side of the same shelf in a "pretty good" way (I guess that's praise, right)? Personally, I'd rather hear you say that you associate me with William Patry; except, I hope, for the poisonous despair he shows and I don't share.

Daffyd, you know that I'll concede the point when I'm shown to be wrong. I've conceded many points to you in the past (and I appreciate your willingness to debate them, and accept that you're free to allow me to be wrong without debate). Yet in this thread you don't address a single one of my points -- you're bringing up irrelevancies like whether I used the phrase "human rights" when I should have used "inalienable rights" as though those were central to anyone's argument.

-Wm

The above hissed in response by: wtanksleyjr [TypeKey Profile Page] at August 7, 2008 11:39 AM

The following hissed in response by: Dafydd ab Hugh

Wtanksleyjr:

Yet in this thread you don't address a single one of my points -- you're bringing up irrelevancies like whether I used the phrase "human rights" when I should have used "inalienable rights" as though those were central to anyone's argument.

Because you brought it up to make a kind of snarky comment about me not knowing what the DoI said. I reject the term "human rights" because it's almost invariably used by internationalist lefties to cram "social justice" down our throats. (And in this case, I reject their own idea of copyright and ownership as simultaneously being far too generous to and restrictive on authors.)

I'm sorry you don't accept my responses as "addressing" your points. I'm not going to get into the philosophical underpinnings of social consent on copyright, because -- after many years in libertarian circles -- I have decided that's just airy-fairy intellectual self-abuse.

In the real world, what the public gets is a copy of a work they want to read/listen to/watch; what they give up is the legal right to duplicate it for distribution to others (and of course the cost of buying it).

Everybody understands that exchange, but some don't want to abide by it. The nitwits on Napster and its successors, for example.

It's really very simple:

What right are we talking about? We're talking about the right of a creator to financially profit from his creation. There is no corresponding "right" of consumers to financially profit from selling someone else's book, CD, or whatever; they had nothing to do with it.

If somebody wants to sell a used book, CD, DVD, or his own print of a painting or whatnot, that's fine with me. And the courts have already held that's perfectly legal. There's no dispute about that.

So we're only talking about who gets to decide whether somebody can publish that work for commercial gain or distribute it for free to potential customers, and how long the decider can control that decision.

All your sophistries boil down to this: How long does a skinflint wannabe-publisher have to wait before he can publish somebody else's creative work without compensating that person? How long before he can make CDs of somebody else's software and start selling it for his own profit, cutting out the creator? How long before he can start selling CDs of somebody else's music without paying a royalty? That's the size of it.

That period is up to Congress. Congress has spoken. If you think they have spoken awry, petition your congressman to do something about it. But you are simply not going to get Congress to go back to the old system with a defined term -- typically shorter than many authors' lifespans -- after which publishers can rake in the dough without paying the human creator anything. It was changed for a reason: Because artists successfully argued that a 27+27 year term only benefitted the lower-tier publishers... not the artist, and not the public.

(By the way, it's not that hard to determine whether copyright is still in force; publishers do it all the time. It takes some time, effort, and money... that's all. If you make a stupid mistake and publish copyrighted material, the courts will just make you pay compensation; you don't go to jail.)

I have addressed your arguments many times; you don't recognize it as a response because I'm not responding using the philosophical-rhetorical method you expect.

But I think I have been fairly clear: The author owns all rights upon creation; by publishing, he licenses some of those rights to a middleman; after his death, a clock begins ticking... some years later, the exclusivity of publication rights expires.

All else is simply negotiating the price.

I've already told you that I'll accept any reasonable system that doesn't end up with me watching some cheap-ass publisher putting out copies of my books and not paying me for the privilege... and I'm not going to debate the rest of those details.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at August 7, 2008 2:37 PM

The following hissed in response by: wtanksleyjr

I've already told you that I'll accept any reasonable system that doesn't end up with me watching some cheap-ass publisher putting out copies of my books and not paying me for the privilege... and I'm not going to debate the rest of those details.

Further, you specify that this protection must extend over your entire life. Yes; I hear you.

Since I believe that "the devil's in the details", and you say above that you won't discuss the details, there's no point in discussing this further.

I personally hope that someone's willing to discuss the details. How does an individual who needs/wants to copy something know whether it's protected? How shall individuals compensate authors? How shall copyright-violating individuals be located, isolated, and prosecuted? These questions didn't used to matter -- and nowhere do you express a worry about them. But they're huge questions now; a "publisher" doesn't own a huge printing press anymore.

I'm truly glad that Congress is examining a copyright registry bill which will answer the first question. I hear that some are discussing "bulk licensing" (consumers pay into a pool, and can then download from a pool into which authors can donate their products in return for shares of the pool), which starts to answer the second question (maybe). I have no idea how the third question will be handled, although it's perhaps the most important one of them all, especially with the law as it now stands.

The above hissed in response by: wtanksleyjr [TypeKey Profile Page] at August 20, 2008 2:26 PM

The following hissed in response by: Dafydd ab Hugh

Wtanksleyjr:

How does an individual who needs/wants to copy something know whether it's protected?

The principle of "fair use" is well understood with a wide body of caselaw behind it: You can quote some portion of the published piece as part of a larger piece about it... for example, a blogger quoting some portion of a newspaper article to argue with it. This is true whether the work is protected or not.

If you're quoting the entire thing (or nearly), then you might end up in court -- but almost certainly you would get a C&D lawyer-letter first.

If you want to go beyond fair use for some legitimate reason -- for example, Xeroxing a story to use in a literature class (something I never have to worry about!) -- then you contact the magazine or book publisher, explain what you want, and they'll contact the author... who either will or will not give permission. If the work is in public domain, the publisher will likely tell you that, too.

If you're uncertain, do a little research: Is the author deceased? If so, contact the estate. Once again, publishers tend to be quite willing to let you know the status of copyright anent some work.

That's the way it has worked for decades, and worked very well, I might add.

How shall individuals compensate authors?

For what? If they're not commercially exploiting the work, if they're staying within the fair-use exception, or if they have permission, they don't owe the author or copyright holder a dime.

If they want to republish it (as part of an anthology or collection, for example), they have to (a) find the copyright owner, and (b) make a contract with him, her, or it. If the owner doesn't want to allow publication, the wannabe new publisher is out of luck.

Honestly, W., publishers at all levels, from Bertelsmann AG or Warner Communications down to some shoestring reprinter with one employee (her husband), deal with this every day. They know how to do this. This is the easy part. (The hard part is knowing what people will want to buy.)

How shall copyright-violating individuals be located, isolated, and prosecuted?

Same way they are today: If the violation is egregious enough to come to the attention of the author or publisher, the violator will get hammered (or might; some authors are softies). If not, then he skates.

None of this is controversial, Wtanksleyjr; we've been dealing with it for literally more than 150 years. As I recall, both Charles Dickens and J.R.R. Tolkien had to deal with massive copyright violations... and both got screwed because America was not yet signatory to British copyright laws and vice versa.

But we learned from that; and now you can publish in GB or the USA without worrying that somebody will simply reprint your book in the other country and thumb his nose at you. And of course, many other countries are also signatories... but not all.

That's why we have a civil court system.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at August 21, 2008 3:13 AM

The following hissed in response by: wtanksleyjr

It's just odd that you think that "we've been doing this for more than 150 years" is an answer. There are two problems with this as an answer.

First, it ignores the changes to copyright law that have occurred in the latter half of the past century, which have essentially stopped the accumulation of public domain material during that period and made distinguishing copyright from public domain vastly more difficult.

Second, it ignores the changes in technology, which refocuses enforcement from easily-tracked publishers to almost every individual.

One must have some pity for the folks at the RIAA, even if not for the people who get swept up in their dragnets -- how else, under current law, are their copyrights supposed to be enforced?

But like I said, I'm optimistic. There's a lot of pressure to fix these three problems, and at least some effort is being made to resolve them. The people, like you, who claim to believe that there's no problems seem to be belied by the articles they write complaining about problems.

The above hissed in response by: wtanksleyjr [TypeKey Profile Page] at August 21, 2008 10:52 AM

The following hissed in response by: Dafydd ab Hugh

Wtanksleyjr:

What you enumerate above are all minor problems of implementation, the same sort that crop up all the time in every aspect of the law.

Consider the prohibition of child pornography, for example; pedophiles no longer just sell grainy photographs on streetcorners; now they use P2P networks to distribute.

And with CGI so advanced, pedophiles can now create computer images of child sex without any living models being involved. Is this still child pornography?

Do these challenges mean we must completely rewrite the entire tapistry of anti-child pornography law from top to bottom? No: They just require courts to resolve different types of problems than in the past, police departments to develop new strategies for enforcement, and legislatures to tinker a bit around the edges. But by and large, we'll still prosecute child pornography more or less the way we do now.

It's the same with copyright; that's why I say I'm not interested in the details -- I leave that to the copyright lawyers. Legislatures, law-enforcement agencies, and courts will be forced to make changes; that's perpetual and ongoing.

I'm interested only in the broad outlines of what is protected... and as a society, we've already come to an agreement on that: The property rights of living authors will be completely protected; for some defined number of years, their estates will be somewhat protected; and at some point, the work passes into PD and is not protected at all. Same goes for composers and other artists.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at August 21, 2008 2:42 PM

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