Don’t Mess with the Mouse

by on November 18, 2012 at 8:38 am in Economics, Film, Law | Permalink

On Saturday the House Republican Study Committee released a radical but sensible position paper on copyright that called for limiting statutory damages (which are typically far higher than actual damages), expanding fair use exceptions, punishing false copyright claims and limiting terms. The position paper included good material on how to interpret copyright law such as:


Myth: The purpose of copyright is to compensate the creator of the content:

…according to the Constitution, the overriding purpose of the copyright system is to “promote the progress of science and useful arts.” In today’s terminology we may say that the purpose is to lead to maximum productivity and innovation.

This is a major distinction, because most legislative discussions on this topic, particularly during the extension of the copyright term, are not premised upon what is in the public good or what will promote the most productivity and innovation, but rather what the content creators “deserve” or are “entitled to” by virtue of their creation. This lexicon is appropriate in the realm of taxation and sometimes in the realm of trade protection, but it is inappropriate in the realm of patents and copyrights.

The paper also made a number of excellent points about how too much copyright can impede innovation and how rent seekers may come to dominate the process.

Mike Masnick and Cory Doctorow called the report “a watershed moment,” and there was lots of discussion on twitter and elsewhere about how this represented a Republican move towards recapturing youth and reasserting support for markets and innovation over business interests.

Alas, it was not to be. Within 24 hours the report was yanked. It doesn’t take much inside knowledge to guess what happened  It does give me some pleasure, however, to say that you can still read the report courtesy of the Maryland Pirates.

Alexei Sadeski November 18, 2012 at 9:01 am

Patents are problematic in that their exercise necessarily limits public access to innovation. Copyright does not have this problem.

Furthermore, copyright permits innovation in ways which patents do not; building upon a previous copyrighted work is common, is permitted, and generally considered healthy. So long as the innovation is not a literal facsimile of the original, copyright holders are considered whole.

Because of this, I have personally reached the conclusion that copyright should be extended to perpetuity. I say this as a former fan of short copyright terms. If someone writes an essay, a book, or records their own performance, that should be his or her property to do with as they wish and only as they wish. I do not see how the public is harmed by this.

It ultimately comes down to how one defines property, I suppose, but perpetual copyright for creative for intellectual and artistic works seems reasonable to me.

Kronrod November 18, 2012 at 10:32 am

> I do not see how the public is harmed by this.

In the same way as the author is harmed if there is no copyright: the public misses out on many opportunities to enjoy the creation.

Do you really believe that a world in which the heirs of Da Vinci can decide who is allowed to see the Mona Lisa is better than a world in which everyone can freely reproduce that image as he likes?

Alexei Sadeski November 18, 2012 at 1:33 pm

I appreciate that you chose a work of concrete art as your example; this may perhaps be the strongest sort of case in favor of my intuitions surrounding perpetual copyright, and thus may provide a useful test case as well.

We are completely fine with Da Vinci’s heirs controlling the physical work of Mona Lisa. They may sell it, donate it to charity, or keep it for private use in their own collection (in this particular case, I assume the painting was sold by Da Vinci himself long ago, but the point holds). Assuming the rights to the work were not sold, however, I see no problem with Da Vinci’s heirs collecting a modest sum for the right to reproduce this iconic work. Art history textbooks, museum giftshops, and quality reproductionists can all pay royalties to the Da Vinci heirs; I don’t see how this produces some harmful outcome or market failure.

Basically, the rights extended to the physical work – ownership in perpetuity – can be extended to the intellectual work as well, and without any huge harm or consequences.

Also note that “riffing” off of the intellectual work – satire, heavy modification for humor or art or any reason really – would be outside the purview of the copyright, and thus permitted without royalty or respect paid. I am mainly concerned with reproduction which credits the author; “official reproduction,” if you will, and feel that the Da Vinci heirs should receive some compensation for such use.

Kronrod November 18, 2012 at 3:23 pm

Your view is consistent, simple and principled. But I do not believe that it maximises the wealth of society.

Unlike physical goods, digital works can be replicated at negligible cost. At the same time, any legal and/or technical rights management system comes at a cost per transaction. This cost will always be significant in relation to the replication costs, in many cases even prohibiting. Imagine if you had to agree to some kind of transaction whenever you sing a protected song under the shower. This overhead is inherent to your system and prevents the long tail of potential customers from being served — value that is never realized. Also, while your system fully preserves property rights, it cannot be implemented without compromising privacy rights. Your system cannot be enforced without thorough surveillance of all users. You may say that property rights are always holier than privacy rights – but that is a rather extreme position.

dan1111 November 19, 2012 at 5:50 am

I can break all sorts of laws in my home without anyone ever finding out. Enforcing 100% compliance would in many cases involve unacceptable invasions of privacy. However, it does not follow from this that the laws themselves are bad; rather, there just need to be reasonable limits on enforcement. And that is exactly what we have, with rules on search and seizure, etc.

Singing in the shower is a reductio ad absurdum. In the case of copyright, case law has already arisen that protects fair use of copyrighted material from enforcement, and it covers things far beyond singing in the shower. For example, playing recorded music very loudly in a location where others can hear is fine, as long as you are doing it for your own personal use.

step21 November 18, 2012 at 5:50 pm

As I see it, the harmful consequence is the perversion of the original objective of copyright, this being the *artist* receiving a certain remuneration, so that he has a stronger incentive to produce, and can keep on producing. Once a certain amount of time has passed after the creation, this will no longer work, and while his heirs might like it, it does not in any way benefit society or create new value, it just is a burden on society, because the institutions supplied by a society are necessary to enforce it.
And I think you misunderstand copyright, because it is a monopoly, or at least can be.

dan1111 November 19, 2012 at 6:04 am

The value the artist gets out of a copyright does relate to the length of the copyright term. The artist can capture value that extends beyond his/her lifetime by selling the rights.

Also, I think it is misleading to call copyright a “monopoly”, as this word suggests that one entity controls an entire market. An artistic work competes with all other works of the same genre in an extremely competitive market. If a certain singer refuses to sell a song, there are still millions of other songs available. People can even write very similar songs.

Pshrnk November 19, 2012 at 5:26 pm

Society as a whole may be harmed if this income leaves many generations of Da Vinci heirs with no incentive to themselves be productive.

Rahul November 18, 2012 at 10:50 am

Think the other way around: How does the public benefit from it?

Alexei Sadeski November 18, 2012 at 1:34 pm

That seems a bit of a “guilty until proven innocent” approach. Property should be confiscated or limited only when absolutely necessary, no?

Mark H November 18, 2012 at 2:42 pm

It is a mistake to think of intellectual property in the same sense as classically defined “property rights.” There is no such thing as intellectual property that can be defended until the government says that there is. And if the government is going to go out and define intellectual property AND send prosecutors after people who go against their rules, they ought to have a good reason for doing so.

Encouraging innovation would be a fine reason. Causing the greatest good for the greatest number of people would be a fine reason. Alexei Sadeski deciding that IP should be protected the same as physical property would not. This seems kind of arbitrary to me: perhaps you could elaborate more on why you think that (relatively recently created) IP rights are such a fundamental human right?

Fallout2man November 18, 2012 at 8:44 pm

The difference here is that property rights were created to form a solution to real problems concerning the nature of physical objects. Two people may not posses the same object at the same time and nor may they make use of it indefinitely as like all things it has a finite lifespan determined by the materials used in its creation.

Physical property is scarce, cannot be available to more than one person at a time, and is fragile. None of these things are true of ideas. Indeed, Copyright itself was first formed around the advent of the Printing Press as an industrial regulation to prevent books the King did not approve of from being published. And it did largely work at the time since the only printers were large professional publishers which could afford the investment in a press.

Copyright over time was altered in British law to afford the author guaranteed compensation from the publisher for their works and when America drafted its constitution it was this basis with which we wrote our own version of copyright authority into the work. It was explicitly specified that this was done to promote the maximal amount of creative and scientific progress.

Also similarly derivative works may not be based upon older copyrighted works unless they are so significantly different one cannot say they directly borrowed their ideas from any given work. Remember, your copyright case is decided by a judge and the reality is that whether or not you can use anyone else’s idea really depends on the size of your wallet and the size of your opponent’s. I’m reminded of George Lucas suing the makers of the original Battlestar Galactica because he thought the ships and lasers looked too much like Star Wars.

Square regularly shuts down fangames of franchises they have made public statements about having no intent to continue (such as the Chrono franchise) entirely because they feel like allowing fan-games hams their creative reputation or some other such nonsense. The point is that your ability to build on others works and include their ideas really depends on the capriciousness of the original creator and the size of their current wallet.

So given that case perpetual copyright makes no sense whatsoever. It does not solve any practical problems, it does not guarantee the public any good, in fact it really seems very much like the original Kings copyright. Where instead of one king we’ll have a group of large media conglomerates with the power to veto any new creative or scientific work.

The idea that this is guilty until proven innocent is just ridiculous. It has no relation whatsoever to our current American system of copyright/patent nor how it was formed and has no legal or philosophical basis upon which to be made other than a misunderstanding of history.

Matt Katz November 19, 2012 at 3:40 pm

Confiscation only works for physical property. It is a meaningless term when referring to creative works.

You refer to the rent-seeking monopoly on reproduction of a creative work. This is a temporary right granted to creators to spur more work and is not property.

You may wish to consider this from a different perspective. There are a class of creative works I cannot legally create because of current copyright law. I am unable to earn a living from creating them and the public is deprived of the ability to enjoy the work.

derek November 18, 2012 at 10:57 am

I disagree. Perpetual copyright puts the vast majority of works out of circulation. You just have to look at the work that the staunch supporters of copyright actually produce. Infinite variations on stories that are not copyrightable.

Unless you think that reality tv is the pinnacle of cultural production. It uses, refers to, hums no copyrighted works. That is why it is on tv. The costs of tracking down copyright and negotiating remuneration make it too expensive to do otherwise.

Alexei Sadeski November 18, 2012 at 1:37 pm

Until recently, this was actually a relatively simple problem to address. You simply require that the copyright holder renew their right every ten or twenty years or so, for a modest fee. If they don’t renew, it enters the public domain. This frees up, about 99.9% of existant intellectual work.

This is how things used to work (renewal, but with an time limit – not perpetually), and returning to a renewal system would address this issue.

Fallout2man November 18, 2012 at 8:51 pm

Not really, all it will do is further commoditize Copyrights. If copyrights may be retained perpetually and simply require a regular renewal all that will happen is corporations will have a far greater interest in acquiring rights. Look at the Mobile Phone market right now, if you think defensive patents are bad wait until you see defensive copyright. If one can basically buy up enough variations on certain tropes/themes/etc and they have a large wallet they can essentially make themselves into a patent-troll on steroids and act as gatekeeper to entire classes of artistic works by simply suing competitors who do not purchase rights.

I hardly think what we need is still MORE generational rent-seeking by corporations. Creativity largely exists because others are allowed to build upon the works of the past. To think that any change enabling perpetual copyright will lead to less of this and not more is rather naive. The only reason media companies don’t do this already is because copyrights still have fairly limited use because one can expect they will eventually expire.

meh November 19, 2012 at 10:00 am

+1.

I can’t believe there is such a long argument *for* more rent seeking on this blog.

Mark H November 18, 2012 at 11:00 am

Copyrights and patents are government-granted monopolies. To say “I do not see how the public is harmed by this” is to say that you do not see how monopolies are harmful to the public. Economists and non-economists alike would pretty much uniformly agree that monopolies (even government-granted ones like patents and copyrights) are, in fact, harmful to efficiency and equity alike. The discussion is centered on whether or not this loss is outweighed by the gains from innovation.

Just about everybody on the planet agrees that copyrights are a tradeoff. To claim that there is no harm done at all is absurd on its face.

Alexei Sadeski November 18, 2012 at 1:40 pm

Patents are a monopoly, copyrights are not.

With a copyright, you have protection only for the exact thing which you have created. With patent, you have protection for an entire class of ideas.

If I write the first book which involves a girl falling in love with a vampire whom actually turns out to be a boy wizard, and copyright that book, another author may come along and write a book with an extremely similar plot without violating my copyright. Patents, to mix analogies, would require that the second author pay me royalties simply for the ability to write a book involving a similar plot and storyline.

The “monopoly” guaranteed by copyright is so narrow as to not be a monopoly at all.

Mark H November 18, 2012 at 2:28 pm

So Steinbeck’s heirs should be able to monopolize his works because everybody has the right to just come along and write similar books? And the Beatles’ great grandchildren should be entitled not only to their (almost sure to be) vast inheritances, but also to their sales in 50 years? AND they should be solely entitled to control who has access to their great grandfathers’ works?

…because somebody could write a song similar to a Beatles song? Is that really what you’re defending?

dan1111 November 19, 2012 at 6:09 am

A monopoly would be one person controlling all novels. Does Apple have a monopoly on computers? No, they have a small percentage of the market. You may like Apple’s distinctive features and wish that all computer makers had the right to make exact copies of Apples, but that doesn’t make it a monopoly.

Willitts November 18, 2012 at 3:10 pm

While not disagreeing with you, there are only a few genuinely unique characteristics of the Harry Potter novels. J.K. just made a new kind of stew from old ingredients.

Guitar licks and riffs are so routinely and mutually stolen without attribution, that no one attempts to enforce any copyright if they exist.

Matt Katz November 19, 2012 at 3:27 pm

This is not true. Consider Vanilla Ice and Ice Ice Baby. Sued by Queen because of the similarity of the riff. https://www.youtube.com/watch?v=1s0hEi8zhmg

Consider Paul’s Boutique by the Beastie Boys. It is acknowledged that the entire album could not be created today because of the cost of clearing the samples.

Xmas November 18, 2012 at 1:28 pm

Actually, I’ve got one for you…Song of the South. It was a Disney film based on the blended mythology of African slaves around the time of the Civil War.

It’s going to sit in Disney vaults for as long as they hold the copyright. No debating the quaint racism of the mid 50s that’s captured in the movie. No re-editing of the movie to present the culturally important bits. No chance of some independent movie maker producing a cartoon of Brer Rabbit and Brer Fox stories while Disney hold a copyright to a movie containing those characters (Unless someone makes Neil Gaimon’s ‘American Gods’ into a movie.) A couple hundred years of African mythology blended with American Slave culture trapped in a vault because Disney doesn’t want to appear racist.

It’d be like Huck Finn and Tom Sawyer remaining unpublished because Mark Twain’s great grandchildren thought the book contained too many instances of the “N” word.

Alexei Sadeski November 18, 2012 at 1:49 pm

I appreciate your example, and would like to highlight how my intuition differs from yours:

It seems imperative that Disney be permitted to control their own brand and image. Mark Twain’s “brand,” if you will, incorporates directly the gratuitous use of the “N” word and other old timey references. The Disney brand, as it is presented today at least, clearly does not.

I see no problem with anything bearing the Disney trademark and copyrighted Disney characters to be released at the sole discretion of Disney – and for this protection to exist in perpetuity.

Regarding Br’er Rabbit in particular, it is questionable as to whether all depictions of him would be protected by copyright. He is a figure whose existence far predates Disney, and I don’t think that copyright is to blame for the dearth of contemporary animated mass market recreations of 19th century African folk lore.

Disney may hold the copyright to certain particular Br’er Rabbit stories, but copyright does not extend to all adaptations, riffs, and stories sharing common themes.

Fallout2man November 18, 2012 at 9:03 pm

But lets explore this question further! WHY is it imperative that Disney be permitted to control their own brand image? It’s imperative because???? It enables them to be more effective at making money?

Now perhaps this isn’t your reason but it IS the one most easily inferred from your statements. But this isn’t a particularly good reason because it ignores the dichotomy of interests at stake concerning business. Business is not a tautology and making money is not some inherent moral good, despite what ardent believers of Supply Side Jesus will tell you (http://www.beliefnet.com/News/2003/09/The-Gospel-Of-Supply-Side-Jesus.aspx). You are forgetting the primary purpose of limited liability business is to enable the creation of wealth for all peoples. Commerce exists to enrich everyone and NOT solely because we believe it some moral right people should be able to extract money from someone else.

If we did we would certainly not have health and safety regulations, why should we CARE if lead or mercury makes it into children’s toys? After all if we only care about the interests of the business owner it surely would be better for them if we brought back slavery, allowed child labor, repealed all safety, health and wage regulations. But obviously we don’t because this would have a far greater collective cost to the civil society we live in. What this shows is that there are more interests at stake here when we consider whether business SHOULD be able to exist.

After all, we don’t allow people to make a business of selling slaves, selling nuclear arms (to just anyone), or selling any great deal of things. So going back to the subject of copyright, WHY in this case should we allow Disney to do this? You have not made any compelling reason for this other than your tautological belief that because IP is referred to as Property that it should be considered the same as physical property.

Would you perhaps like another chance? ;)

Also: Disney’s ability to sue regarding Br’er Rabbit depends on how close the depiction looks to theirs. It would need to be utterly unrecognizable for it to pass muster and even then the company involved may still try to sue them out of existence. One thing often overlooked is that many companies with deep pockets will employ death-by-court-fees to anyone poor enough to try and create a derivative work. Even if they know they’ll lose the case they know the costs alone will bankrupt the defendant and that’s all they need to get them to stop.

You have made no argument whatsoever that this practice will cease when perpetual copyright is granted. Why should we believe it will? Because you SAY so? o_O;;

John November 19, 2012 at 10:06 am

well said.

Boris November 19, 2012 at 12:05 am

> but copyright does not extend to all adaptations, riffs, and
> stories sharing common themes

Except it does extend to a wide range of such, in fact. And figuring out whether it extends to a particular adaptation or riff involves going through the legal system, with the ensuing uncertainty and lack of consistency.

Xmas November 19, 2012 at 6:06 am

Adaptions, Riffs and Stories Sharing Common Themes are punished with the Copyright stick all the time. “The Wind Done Gone”, a retelling of the 1936 novel (which the 1939 movie was based), was release 65 years later and put through the legal wringer. The book was a commentary and a parody in a technical sense. Yet, 65 years after the original story, the ‘owners’ of Rhett and Scarlett can bludgeon down any other story that features those characters. And that is a well-known book and movie.

There are thousands of other books and movies (and songs) created around the same time. These stories contain diverse themes, ideas, phrasings, conversations and characters that are all potential legal clubs to bash works being produced now. Not to mention that some of those works created back then deserve to be resurrected, modernized, and retold because they are worthy of such treatment.

Cliff November 18, 2012 at 10:37 pm

Alexei,

Unfortunately, you are woefully unaware of the real-world status of copyright law. This statement: ” building upon a previous copyrighted work is common, is permitted, and generally considered healthy.” is absolutely 100% false. These are considered derivative works and infringe, unless YOU can prove fair use. Proving fair use is a fact-intensive, difficult endeavor, that most people cannot begin to bear. Therefore, ipso facto, anything “building upon a previous copyrighted work” is illegal and very costly to attempt.

Being someone who actually practices copyright law in the real world, I can tell you that the baseless allegations of copyright infringement against what is actually fair use far outstrip the legitimate claims of copyright infringement, which has an extreme chilling effect on creativity. In fact, corporations like Getty images exist as copyright extortion rackets, sending frequently baseless copyright infringement letters by the thousands and scaring people into settling for hundreds and thousands of dollars. No one can even use the song “Happy Birthday” on TV, just because the purported “owners” will sue anyone who does, despite the rights seemingly having obviously expired decades ago.

Worse is the situation of orphan works. Because of the constantly shifting copyright term, there are millions upon millions of works, the owners of which cannot be identified, which may or not still be under copyright. Therefore, obviously no license can be taken. Furthermore, if someone were to act without a license, someone would likely pop up in the future with millions of dollars in statutory damage claims. Your proposal would only make this situation 1000x worse.

Urso November 19, 2012 at 10:38 am

“baseless allegations of copyright infringement against what is actually fair use far outstrip the legitimate claims of copyright infringement”

Alexei is missing a huge issue — that, as a practical matter, major corporate owners of copyrighted works can afford to litigate these matters until the cows come home, and individual authors cannot. He also seems to assume that the copyright owners will look at a work and say, “well, that work borrows some from our copyrighted work, but it clearly fair use, and it adds to the cultural patrimony, so we’ll let it slide.” This is almost hilariously naive.

Moreover, from a legal perspective, fair use is a *defense*, which means the burden is on the defendant to prove it. This is both very expensive and very uncertain, and in this litigation the copyright owners have nothing to lose but their attorneys’ fees, while the authors may very well face personal bankruptcy.

Boris November 19, 2012 at 12:03 am

> building upon a previous copyrighted work is common,
> is permitted

Except that under current copyright law, it’s not. The copyright is not granted to a work as a whole, but to various aspects of the work individually, and covers “obvious” modifications of the aspects too (where “obvious” is decided by the courts).

Or put another way, the copyright Disney holds is not just on existing literal Mickey Mouse cartoons, but on the character of Mickey Mouse, and anything else that looks sufficiently similar (again, as decided by the courts). Typically this “sufficiently similar” is quite more far-reaching than “literal facsimile”.

If copyright in fact worked the way you seem to think, it would be a lot more palatable to consider indefinite copyright terms, of course. But it doesn’t. If it did, you would not need to acquire the rights to use part of a song in a movie, or to include a reproduction of a painting in an art history book, or many other things that are currently covered by copyright law.

Saturos November 18, 2012 at 9:47 am

If it’s too good to be true, it probably is (not true).

libert November 18, 2012 at 10:38 am

The Republican elephant logo at the top of the copyright study is marked with a “TM”.

Rahul November 18, 2012 at 10:52 am

Brilliant!

Brian November 18, 2012 at 11:42 am

Not really. “Trademark” and “copyright” are two completely different concepts.

Guest November 18, 2012 at 1:12 pm

Trademarks have long been considered to be perpetual (potentially). Their value lies in the identification with the company or brand, not as ideas that contribute to the sum of human knowledge. Unless the trademark becomes identified with an entire area of commerce (e.g., “escalator,” Google?), the public doesn’t have an interest in its free dissemination.

Tom West November 19, 2012 at 1:08 pm

> The Republican elephant logo at the top of the copyright study is marked with a “TM”.

I suspect that the trademark is that particular depiction of the elephant. And small wonder, as one wouldn’t want unauthorized people using that logo.

Of course, when the game company TSR published an Indiana Jones game with little cardboard figures, along with “Indiana Jones ™” and the other trademarked good guys, the bottom of the bad guys figure did have “Nazi ™”, so who knows companies try and trademark… :-).

mw November 18, 2012 at 10:45 am

I’m not too worried, the half-life before sensible, abandoned Republican ideas make it into Democratic reform legislation is about ~8 years, so it’ll come back.

Bill November 18, 2012 at 10:47 am

When copyright gets wrapped up in the experience–when Disneyland means a Mickey Mouse experience, and other fantasyland experiences–copyright protection supports the development of different products.

“It’s not like people can’t find their own way of being creative without ripping off icons developed by other people.” @C Bill 2012

mulp November 18, 2012 at 1:21 pm

Why isn’t the Disney trademark on Mickey Mouse sufficient to protect Disney corporate innovation?

Doesn’t the free distribution of very old Mickey Mouse material actually create a greater incentive for innovation?

Disney ceases to be able to live in the past on the innovation of the young Walt Disney who first came up with the innovation of a constant stream of Mickey cartoons, then the innovation of using Mickey as the central theme of an amusement park – an amusement park was not an innovation as they existed in vacation spots all over the US. Since the perpetual copyright protection of Mickey has been apparently granted, Disney corporation has stopped innovating. No new Mickey cartoons. No new Mickey theme parks. No new Mickey product branding.

If Disney lost their monopoly on viewing of Mickey cartoons, Disney might decide they need to reboot Mickey to first replace their small revenue from the ancient and obsolete Mickey that Disney dribbles out occasionally to tap into boomer nostalgia.

Where has Disney innovated since the Mickey copyright protection? Buying Steve Jobs’ driven innovation in animation? What is innovative about buying competitors to Mickey and other cartoons that the long dead Walt Disney created?

Steve Jobs was booted by Wall Street from Apple because they thought he was failing to focus on making money from his past innovations instead of insisting on remaking the world his way. Wall Street does not like innovation, and perpetual copyright is seen as the way to eliminate the need to innovate.

Bill November 18, 2012 at 2:43 pm

distribution of very old copyrighted material might diminish the value of current trademarks. As to competition with yourself because others gain access to the free mickey mouse material, this is not innovation, but a spiral into the abyss. Ask yourself, if you owned Mickey Mouse, how you would react to a clip of Mickey as a lead in to a grade D movie, or part of a p-rn film. Control of rights affects the value of other rights, including trademark, as well as the value and association of those marks with copyrighted works.

Otherwise, I will create a Harry Potter wand when the copyright expires.

Matt Katz November 19, 2012 at 3:47 pm

Trademark exists to prevent confusion between businesses – it is the mark I can use in trade to identify myself. Trademark is perpetual because it serves consumers to not be tricked. It is not created soley for the benefit of the business that owns the trademark. It is a right granted to a business to benefit the public.

You should be able to build upon the contributions of J.K. Rowling to our culture. She has made money on her creative work. Once her copyright expires you should be able to create any riff on her works that you want in order to make money for yourself. She does not have a right to perpetually make money.

Cliff November 18, 2012 at 10:40 pm

I hope you have actual experience with copyright practice to be writing something like this, Bill. What you wrote does not make much sense to me, but trademark should be sufficient to protect Disney’s interests in that respect. Using copyright law in that way is a perversion.

Orange14 November 18, 2012 at 11:08 am

Interesting that the Republicans would issue a report addressing a problem that they caused (Sonny Bono R-CA was the author of the copyright extension bill, aka Mickey Mouse law) and the yanked it. It’s really quite ludicrous to have the copyrights extended for such a long period in the US when it isn’t in the rest of the world. We are stuck in terms of having free books on Project Gutenberg whose copyrights were issued after 1930 or so. Lots of interesting things that have been published that one can really no longer find outside of used book stores.

Dan in Euroland November 18, 2012 at 11:59 am

The Bono Act passed the house by voice vote, the senate unanimously, and signed by Clinton. Both parties are to blame for the problems surrounding copyright.

Anon. November 18, 2012 at 11:18 am

…why is the text not justified?

RayLopez November 18, 2012 at 11:54 am

Alex showing his mood affiliation again? Look, I use Piratebay.se just like anybody else, to download stuff I could buy at Amazon (unless I want a hardcover, non-Kindle version), so I’m not against weak IP in practice. But in theory it’s like rent control–works great in the short run, but in the long run does not really encourage more housing. True, I was against extending the copyright provisions back in the days of Reagan so some scaling back in that narrow area is OK. But we need more IP protection, not less IMO. And I don’t like Disney as a corporation either. They mess with their creative talent, paying them peanuts, etc etc etc. Still, freeware will only get you so far (same holds for science; imagine the innovation we would have today instead of relying on Good Samaritans who wish for a Nobel Prize to innovate, as is conventional practice).

Dan in Euroland November 18, 2012 at 12:04 pm

Well if science had stronger protections then we would probably have less innovation because most scientific knowledge is cumulative. It builds off of previous discoveries. To have to negotatiate and pay licensing fees on all prior knowledge is a massive disincentive to scientific investigation.

Basic science is a public good.

Anon. November 18, 2012 at 12:24 pm

>But we need more IP protection, not less IMO.

Why? That’s a radical opinion, surely you have SOMETHING to back it up? There’s been tons of research into optimal copyright/patent lengths and current legislation is an order of magnitude higher than what is generally considered to be optimal.

prior_approval November 18, 2012 at 1:35 pm

‘Still, freeware will only get you so far’
Like the entirety of the Internet? Where only a minority of people and companies use inferior software that requires payment (Windows comes most prominently to mind, but is not the only example).

bob November 18, 2012 at 2:44 pm

You are being silly. A large majority of the software running in the enterprise is not sold. It is either free like Linux, or is built in house. Pretty much everything else could switch to software as a service: You never have a copy, just pay for a key to access the servers that run it.

There are very few companies that rely on retail sales. Most of them would easily adapt to a zero copyright world. Let those that cannot die.

Henrico Otto November 18, 2012 at 12:14 pm

Sad really because this is a point where the left and the right agree, but still they can’t get it done because of monied interests’ influence

Bill November 18, 2012 at 3:12 pm

Or, consider, that it is moneyed interests on the other side who wish to get a free ride on the works of others.

Cliff November 18, 2012 at 10:41 pm

What moneyed interests would those be, Bill? Do you have any clue the amount of lobbying taking place on each side of this issue?

Willitts November 18, 2012 at 3:20 pm

“by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

The modern interpretation of the purpose of that Constitutional clause is valid, but the precise method of doing so was made crystal clear in the Constitution. It would (or should) take a Constitutional amendment to change that. On the other hand, “limited Times” is subject to substantial judgment by Congress.

Frankly, I think the patent wars in the tech industry is absolutely bonkers. They have patented gestures. They have patented shapes and design elements. They have patented software features.

An interesting note: the (current) formula for Coca Cola has never been patented, otherwise they would have to reveal its secret recipe.

Here is a good primer on the differences between patents, copyrights, trademarks, and trade secrets:

http://zvulony.ca/2010/articles/intellectual-property-law/understanding-intellectual-property-law/

Alyosha November 18, 2012 at 5:31 pm

I think Willitts is quite right about the tech patent wars. The patent system is in desperate need of reform to approximate a system that encourages innovation and development in science and technology.

Copyright, on the other hand, seems quite necessary to me. While it may be impossible to defend from the onslaught of knock-off brands (which there is much of from expensive purses to Chinese Mickey Mouses), these all suffer in the eye of the consumer in contrast to the legitimate and original brand. I think it’s quite fair for anyone in entertainment to want copyright law to stay weighted toward the original “author”. As Alexei Sadesky has already mentioned, copyright gives such a narrow “monopoly” that it’s not really a real monopoly. Patenting, on the other hand, seems to limit innovation in technology. Why do we all have to suffer just because of the different video codec patents that Microsoft, Google, or Apple own? Creators and companies should be able to retain rights for products, but not for the organization of circuitry or information.

Cliff November 18, 2012 at 10:43 pm

Copyright protection is unfortunately not narrow in practice, as I mention above.

John David Galt November 18, 2012 at 7:36 pm

This is an excellent paper and proposal as far as it goes, but I would add a few things the writers apparently failed to consider.

1) All the arguments for long copyright terms, other than those dismissable as rent-seeking, amount to saying that authors of old works that are still selling are still providing value to the public and so deserve payment.

I would address this while still fixing the ill effect of long copyrights on innovation, by dividing copyright protection into two types. “Complete copyright” (which gives the author a veto over any non-“fair” use of the work, including derived works) should be limited to a very short time, say 5 years from original publication. After that the owner should be left with just a “royalty right” similar to the present automatic mechanical licensing scheme for music, whereby anyone can use the work as he likes by paying a standard fee.

2) So-called DRM, under which sellers of copyrighted works limit how they can be used, has become heavily abused (used to forbid actions that don’t actually violate the author’s rights, such as fast-forwarding past commercials or viewing the work in other countries). It needs to be completely legal to bypass such schemes whenever they interfere with actions the vendor doesn’t have any right to prevent. (And if a software vendor wants to sell you only a license, it needs to say so on the outside of the package as the UCC has always required in states that didn’t ratify UCITA — no more “clickwrap license” surprises. And while we’re at it let’s have courts start throwing out license agreements as unconscionable when that is called for.)

3) End re-importation bans, and the price discrimination they enable.

And 4) Outlaw the practice of extortion by threatening a lawsuit, because it cheats the accused out of their day in court and all the procedural rights that go with it. If you want to sue someone, just sue them (and be subject to loser-pays). Similarly end plea bargaining in criminal cases.

BeeKay November 18, 2012 at 9:54 pm

This is what is wrong with the copyright laws.

If I invent the cure for cancer, I have a patent for 20 years. Then that is it. Game over. No more money. If someone infringes on my patent, I have to pay a lot of money, and the best I get is actual damages.

If I write a violent song about killing cops, I have copyright protection for the rest of my life PLUS SEVENTY YEARS. If someone infringes, I get to sue them and make MORE MONEY than damages!
I can make more money from suing infringers than actually selling CD’s!

Dana November 19, 2012 at 2:20 pm

Seems to me like Alexei Sadeski may be on a mission to redefine the term “IP trolling.”

thomas jones November 22, 2012 at 9:46 am

Nice to see that the American Constitution is the final arbiter on all matters including those which preceed it in history, such as copyright. A quick look at Wikipedia suggests:

“The British Statute of Anne (1710) further alluded to individual rights of the artist, beginning: “Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing… Books, and other Writings, without the Consent of the Authors… to their very great Detriment, and too often to the Ruin of them and their Families:”[5] A right to benefit financially from the work is articulated, and court rulings and legislation have recognized a right to control the work, such as ensuring that the integrity of it is preserved. An irrevocable right to be recognized as the work’s creator appears in some countries’ copyright laws.”

Although I agree with most that Patents are stupid, I think there is little evidence that copyright inhibits innovation (and certainly plenty above appear to mix up these concepts). And I don’t think the last 20 years have been that helpful for copyright holders, whose rights are still a matter of law. I don’t blame them from holding onto the few cards they have (such as large statutory damages) when they’re arrayed against the googles and gadget makers who have no interest in protecting the rights of artists or the firms who have funded them before they’d made money from their copyrighted works. Just because it’s easy to steal someone’s copyrighted work doesn’t make it right.

Comments on this entry are closed.

Previous post:

Next post: