Copyright Unbalanced

Virginia Postrel has a good piece on free market copyright reform:

Making the intellectual case, the Mercatus Center at George Mason University, a hub of free-market scholarship, has just released “Copyright Unbalanced: From Incentive to Excess,” a collection of libertarian and conservative critiques. The book doesn’t oppose copyright per se, but it excoriates the current system’s lengthy terms and expansive enforcement powers.

“Whatever your philosophical position, if you are skeptical of government power, you should likewise be skeptical of the copyright system that has developed over the last century,” writes Jerry Brito, the volume’s editor, in the introduction.

…Consider how the law applies to Robert Frost’s classic poem “Stopping by Woods on a Snowy Evening,” first published in 1923. Back then you only got copyright privileges for works officially registered with the copyright office, and only for a term of 28 years, which could be renewed if you filed again, as Frost did in 1951.

Requiring such simple procedures reserved copyright privileges for creators with strong commercial or sentimental interests in limiting the publication of their works. Today, by contrast, copyright automatically applies to every eligible work, including your vacation snapshots and your 4-year-old’s handmade Mother’s Day card.

Under the law when Frost wrote his poem and renewed the copyright on the volume including it, it would have presumably entered the public domain in 1979, more than a decade after its author’s death in 1963. That’s not what happened. Beginning in 1962, Congress gradually extended copyright terms, and in 1976 it passed a new copyright act that gives works already under copyright a new term of 75 years from their first publication. That meant “Stopping by Woods” wouldn’t go into the public domain until 1998.

That’s not what happened either. Just as the poem’s copyright was about to expire, Congress passed the Sonny Bono Copyright Term Extension Act, which gave existing works a new copyright term of 95 years. (The 1923 Frost volume including the poem was one of the works cited in a lawsuit unsuccessfully challenging the act’s constitutionality.) So Frost’s poem won’t enter the public domain until 2018 — assuming that Congress doesn’t pass yet another extension.

Fifty-six years of copyright was clearly enough to encourage Frost to write the poem. Anything further is just a windfall for his estate and his publisher. The Constitution, reformers are quick to note, gave Congress the right to grant copyrights “to promote the Progress of Science and useful Arts,” not to benefit producers.

You can get Copyright Unbalanced which includes excellent papers by Reihan Salam, David Post, Tom Bell and others here (amzn) and read the first chapter (pdf).


Mark Twin testified about copyright before Congress in 1906:

"The excuse for a limited copyright in the United States is that an author who has produced a book and has had the benefit of it for that term has had the profit of it long enough, and therefore the Government takes the property, which does not belong to it, and generously gives it to the eighty-eight millions. That is the idea. If it did that, that would be one thing. But it does not do anything of the kind. It merely takes the author's property, merely takes from his children the bread and profit of that book, and gives the publisher double profit. The publisher and some of his confederates who are in the conspiracy rear families in affluence, and they continue the enjoyment of these ill-gotten gains generation after generation. They live forever, the publishers do."

In 2012, publishers do not "live forever."

Twain's 1906 testimony can be found here:

Yeah, if I make something with my hands, no one can come and take it away from me.

But, if I make something with my mind, its a free good for you to copy.

If you make something with your hands it is free for me to copy it as well.

Not really. I am in possession of the thing I made with my hands. I can sell it to others, and even if they copy the thing, they have to work to create the copy. But, if I tell you my poem, you will copy it and send it to others on the wings of electrons.

How terrible! We should instigate a burdensome and unwieldy legal mechanism to force people to act like electrons are chairs. That's the most reasonable response to this situation.

You are in possession of the thing you make with your mind also. How hard or easy something is to copy is not a principle on which to base the decision of whether to create perpetual government monopolies whole-cloth. Should there be copyright protection for machines that are easy to copy? What about sculptures that are extremely difficult to copy?

Sure, if you use your own hands to make your own instead of taking mine.

As for patenting a rounded rectangle? Laughable reason to stop me from making my own.

Let's quote that Monticello mediocrity -

't has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance.

By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property.'

Oops, wrong quote - that one is quite on topic in terms of exclusive terms for creative work.

This one isn't bad -

'f nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.'

Neither is this one -

'That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.'

Strange - Jefferson even predates Baron Macaulay in opposing extended terms of monopoly, granted by the state past the life of a creator.

Well, at least the research director of the Indepent Institute hasn't claimed Jefferson is a mediocre thinker.

Unsure what your point is? You love Jefferson? You can't accept that someone has a lesser opinion of him?

If you don't want anyone to see it, don't distribute it.

Yeah but if I take one of your things you have one less, If I copy your thing, you still have it.

It gives it to "publishers" as a class, not to a particular publishers.

As we enter 2013 the class of "publishers" is now beginning to include anyone with an internet connection.

What a relief that even Mark Twain can be wrong. Ideas are not anyone's property until a government makes it so. Moreover, publishers don't make much money on works in the public domain as market forces quickly reduce their price toward the publisher's costs.

The bit about "publishers don’t make much money on works in the public domain as market forces quickly reduce their price toward the publisher’s costs." is very true now. But probably wasn't in Twain's time, so can't blame him.

Copyright used to protect publishers, not authors. That was Twain's complaint. If he minded anything about the length of copyright terms, it was that they were too short.

Well according to the Coase theorem it does not matter how the law is--the free market will sort it out, so no net loss to society as a whole, no? Or did I misread the Coase theorem? BTW I'll wait for this work to appear on Piratebay--and get it free.

But no linking to the Piratebay here - such links are automatically filtered out. Even when the link is legal, as is the case in the Piratebay Physibles section for exchanging 3D printing files.

God forbid someone wants to avoid contributory infringement.

From the Baen Free Library -


by Thomas Babington Macaulay

On the twenty-ninth of January 1841, Mr Serjeant Talfourd obtained leave to bring in a bill to amend the law of copyright. The object of this bill was to extend the term of copyright in a book to sixty years, reckoned from the death of the writer.

On the fifth of February Mr Serjeant Talfourd moved that the bill should be read a second time. In reply to him the following Speech was made. The bill was rejected by 45 votes to 38.'

The writing is wonderfully early Victorian, and here is just a sample -

'The first thing to be done, Sir, is to settle on what principles the question is to be argued. Are we free to legislate for the public good, or are we not? Is this a question of expediency, or is it a question of right? Many of those who have written and petitioned against the existing state of things treat the question as one of right. The law of nature, according to them, gives to every man a sacred and indefeasible property in his own ideas, in the fruits of his own reason and imagination. The legislature has indeed the power to take away this property, just as it has the power to pass an act of attainder for cutting off an innocent man's head without a trial. But, as such an act of attainder would be legal murder, so would an act invading the right of an author to his copy be, according to these gentlemen, legal robbery.

Now, Sir, if this be so, let justice be done, cost what it may. I am not prepared, like my honourable and learned friend, to agree to a compromise between right and expediency, and to commit an injustice for the public convenience. But I must say, that his theory soars far beyond the reach of my faculties. It is not necessary to go, on the present occasion, into a metaphysical inquiry about the origin of the right of property; and certainly nothing but the strongest necessity would lead me to discuss a subject so likely to be distasteful to the House. I agree, I own, with Paley in thinking that property is the creature of the law, and that the law which creates property can be defended only on this ground, that it is a law beneficial to mankind. But it is unnecessary to debate that point. For, even if I believed in a natural right of property, independent of utility and anterior to legislation, I should still deny that this right could survive the original proprietor.'

These discussions are much older than the 20th century after all, the arguments not having really changed much over several centuries, even though technology does.

Read the entire essay - Thomas Babington Macaulay is a truly fine writer, and his discussion goes straight to the heart of the matter. Which is an attempt by those who profit from copyright to remove the very reason it exists, which is for our mutual benefit, and not that of the copyright owner alone.

And further note that the link dates from September 1, 2001, being posted by Eric Flint - it took 11 years for a libertarian to catch up to a union organizer when it comes to a matter of freedom. (From wikipedia - 'Flint worked on a Ph.D. in history specializing in southern African history. He left his doctoral program over political issues and supported himself from that time until age 50 in a variety of jobs, including longshoreman, truck driver, and machinist, and as a labor union organizer. A long-time leftist political activist, Flint worked as a member of the Socialist Workers Party.' )

Well done, p_a.

From the baen library and includes no explosives? I don't believe it.

Just an anecdote: when my father died and we wanted something appropriate to put on his gravestone, I chose a verse from Robert Frost (quite a lengthy one too). I dutifully wrote to Random House asking for permission. This is the reply (omitting names):

Thank you for your enquiry.
We are pleased to give permission for you to use the first stanza of
"Reluctance" by Robert Frost on your father's gravestone. On this occasion,
there will be no charge. Our usual requirement for acknowledgement is:

"Reluctance" from The Poetry of Robert Frost edited by Edward Connery Lathem,
published by Jonathan Cape. Reprinted by permission of The Random House
Group Ltd.

I appreciate that this will not be feasible under the circumstances. Perhaps
just the name "Robert Frost" could be inserted under the verse?

With my condolences,

So - when we'd stopped laughing - that's what we did.

I'm pleasantly surprised that they even responded.

You don't expect a comment beginning with "my father's death" to end with "when we stopped laughing"

There was a long gap between the two. And my father would have laughed the loudest.

I dutifully wrote to Random House asking for permission.

Wow. You must be a publisher or an IP lawyer.

Never mind the topic, I just can't stop laughing at the phrase "a hub of free-market scholarship". Scholarship that has to be labelled with an ideology is no longer scholarship, it's propaganda. No thanks, I'd prefer to get my scholarship from people who don't assume the conclusion before they start the study.

You can do research about free markets without being a libertarian.

Good luck finding any of that.

what's to stop me from, say, copyrighting all possible sonnets or haiku on the most common 10,000 words in english? i could write that program.

This story has already been written - here is part of the brief introduction from the author.

'I discussed copyright at some length 25 years ago—a year before the first TCP/IP wide area network in the world went operational—two years before the first Macintosh went on sale!—in the following story. It won the 1983 Hugo Award for Best Short Story, and I hope you’ll still find it illuminating today.'

You can read it here, for free -

A nice read. Thanks for posting it.

A howler. Excerpt below. Only can the pen of a nerd sci-fi author can produce such a paragraph. And it's wrong legally ('accidental' reproduction of copyrighted work, without access to the original, is not a literal copyright infringement). As an aside, and it can be shown, with probabilistic certainty, that given long enough time a series of monkeys can type out all of Shakespeare's works. See stats book below, reproduced courtesy of

"My husband wrote a song for me, on the occasion of our fortieth wedding anniversary. It was our love in music, unique and special and intimate, the most beautiful melody I ever heard in my life. It made him so happy to have written it. Of his last ten compositions he had burned five for being derivative, and the others had all failed copyright clearance. But this was fresh, special--he joked that my love for him had inspired him. The next day he submitted it for clearance, and learned that it had been a popular air during his early childhood, and had already been unsuccessfully submitted fourteen times since its original registration. A week later he burned all his manuscripts and working tapes and killed himself."

Example Suppose that an “immortal monkey” is constantly typing on a word processor that is not breakable, lasts forever, and has infinite memory. Suppose that the keyboard of the wordprocessor hasm−1 keys, a space bar for blank spaces, and separate
keys for different symbols. If each time the monkey presses one of the m symbols (including the space bar) at random, and if at the end of each line and at the end of each page the word processor advances to a new line and a new page by itself, what is the
probability that the monkey eventually will produce the complete works of Shakespeare in chronological order and with no errors? ANSWER: it is certain, and furthermore an infinite number of such copies will be produced

(C) 2012 by Ray Lopez. All rights reserved.

Ray, it is not wrong legally. In fact, very similar cases have happened! There are rulings of infringement based on unremembered hearing of a song in childhood.

No Cliff, you prove my point. You must have access to the copyrighted material before there can be literal copyright infringement. That is, you have to have been exposed to it. Hence "clean room defense" in copyright is to lock up programmers and have them come up with the 'same thing' as the copyrighted material without being contaminated by the same. That said, this has nothing to do with the 'look and feel' copyright cases (aka 'non literal' copyright infringement).

Nice one! Thanks for sharing.

Proper copyright term should be no more complicated than a first-year accounting exercise:

Pick a discount rate. To be generous to the creator, model the present value of the of copyright as a perpetuity. After one doubling time at the chosen discount rate, the present value of past cash flows from the public to the copyright holder is equal to the present value of the copyright. The public has now paid for the work.

The historical 28 years implies a discount rate of 2.5%, which is about the right ballpark.

In addition to everything Alex has said, what I don't like is that copyright violations also constitute a public or criminal offense (subject to criminal penalties), not just a private violation of civil law subject to civil remedies -- this seems too overbearing for merely copying someone else's work, especially now that copyright protection is too pro-creator instead of pro-copier (as it is with fashion and tattoos)

We're watching you, Enrique.

But with so many social media networks these days, it's more apt to say: "everybody is watching everyone else"

I favor weakening of copyright but one of my worries about getting rid of or weakening copyright laws is the things that people might do to try to attempt to keep the works from being copied. dongles and such in software, releasing books chapter by chapter etc. They could make things difficult enough that you might as well have the copyright laws as hey exists.

Oh, I'd totally take weak laws. Any dongle, protection etc. that might come is trivially hacked.

The fundamental advance has been reproduction: Once it is possible to read / hear / see it, it is possible to copy it.

Some people seem to be forgetting the principal that property rights are not absolute.

Take for example the issue of digging up some mineral on land you own. In many legal codes, a portion of whatever minerals were dug up were owned by the King. There were cases where this portion was 100%.

Presumably if this were directly applied to ideas, copywrites would be for perpetuity, but the profits would be taxed at a much higher rate than normal.

Of course this ignores difference between minerals and ideas. It only behoves dragons, dwarves, and trolls to hoard minerals. Everyone else has an interest in selling their minerals for cash that can be used to purchase other goods. In the case of ideas there is often an incentive, from the perspective of both individuals and governments, to NOT put an idea into circulation. The original old style copywrite laws were designed in fact to give an incentive to discover ideas and then get them into circulation reasonably quicky.

Personally I prefer awards as an incentive for invention (the suggestion of using the net present value of the cash flows from the idea or invention is a good one). But I can see a strong copywrite regime with strong anti-hoarding provisions; eg you can be stripped of your "ownship interest" in your idea if you are not disseminating it, though I don't see how that works politically.

An acquaintance, retired from a large high-tech electronics business, told me his former company held no patents. Said that the management philosophy was based on the fear that patents (and protecting them) would turn their company from looking ahead to looking behind, and that staying ahead of the competition was the only way they could thrive. And they did thrive, to my knowledge.

Yeah well for ever such 'success', and I guess Dell is one of them (they were light in patents, as was Cisco, as was Google, for the longest time), you have 'failures' like Gary Kildall, who wishes he had sued Bill Gates for copyright infringement. Google him. Died "penniless" (well compared to Bill he was penniless).

Not to appear snarky, but what's wrong with failure? You read about the price of "success" being the payments to lawyers fighting infringement, and as I wrote above, the cost to the company in looking behind them. That I would call failure, too.

I am no fan of big business, and their property fights seem absolutely medieval to me.

FYI: There is a difference between copyright and patent.
Subtle, and different.
Patents primarily cover inventions.
Copyrights cover creative, works of fiction, art, music, photography .
With patents, the right is given to exclude others from offering for sale, importing, making, or using the invention.
Acts of Copyright generally give the owner of copyright the exclusive right to reproduce the copyrighted work.

Republicans nowadays are anxious about expanding their coalition. Embracing copyright reform would be a great way to make inroads in Silicon Valley - young, wealthy people with a large reach.

I'll buy it when I can put it on my Kindle.

Weakening copyright is a lot like eliminating lawmakers' salaries. It sounds like a good idea until you think about it for five or six minutes.

You can argue all you want that people should be serving the government, or writing novels, or inventing things, just for the sake of the public good and not for profit. But as soon as you stop paying for these things, the result is that only the already wealthy, or those who are in the pay of the abundantly wealthy, can afford to take on these jobs.

Furthermore, the current failure to enforce copyright laws takes profits away from the creators of and investors in intellectual property and transfers it to internet advertisers and ISPs that control distribution. Google profits the most from piracy and they also pay for many of the anti-copyright non-profit foundations, who write propaganda in their favor.

Here is one example among many:

There is no legitimately free market without the enforcement of regulations and laws. Weakening copyright further will greatly diminish the financial rewards for creating intellectual property, with obviously harmful long term consequences.

There is nothing in the post about making copyright weaker, only shorter.

Right, and there's no way to monetize intangible goods other than trying to force everyone to treat them like chairs. That's why SAAS failed miserably, and game developers are moving away from a microtransaction model. Oh, wait.

It is becoming more and more challenging because obviously there are only so many different ways that you can say you are a Personal Injury Attorney.

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