Comments on: doc’s diagnosis

By: Milan Cole

Milan Cole — Sun, 21 Jan 2007 02:11:16 +0000

The absurd corporate greed that is at work in these copyright extensions makes it hard not to be a cynic. In my mind the challenge lies in effectively communicating the importance of this subtle change to a public that does not realize what we are losing.

By: Lawrence Solum

Lawrence Solum — Wed, 05 Feb 2003 15:00:19 +0000

I just read Doc's comment. The thesis of "Going Deep" is insightful, and I believe explanatory, up to a point. I think that there was another rhetorical trope that has great explanatory power--"tradition." The Eldred majority was very concerned with the long tradition of retroactive extensions. This trope is connected to, but distinct from, the originalist (first-Congress) argument that is another central piece of the majority opinion. There is, of course, a nice synergy (for the pro-CTEA side) between the property trope and the tradition trope. They work together to suggest that the anti-CTEA forces are indeed "radical."
BUT! But, this rhetoric can be turned around. The tradition argument does not play in the context of a challenge to the anti-circumvention provisions of the DMCA. Indeed, Justice Ginsburg virtually invites an argument that the DMCA lacks the built-in protection for free speech provided by the fair use doctrine in the section of her opinion on the first amendment argument against the CTEA. The DMCA is not traditional. Indeed, imporant and influential thinkers on the right are deeply troubled by the DMCA, precisely because it interferes with traditional property rights. See Randy Barnett, Reds in Suits: A review of Larry Lessig's, The Future of Ideas, in Regulation, Fall 2002, vol 25, p. 64. The DMCA is all about a radical break with tradition and interference with traditional property rights. Take the pro-CTEA arguments, and turn them around!

By: Edward Hugh

Edward Hugh — Sun, 02 Feb 2003 16:46:28 +0000

Sharing as I do your concerns about the ludicrous state of current US copyright law and the associated ‘iceberg’ effect for recent culture (with 95% being sent rapidly under water), I still cannot help feeling that the unintended and unforeseen consequences are likely to be the important ones here. There’s an old argument of Darwin’s from the Descent of Man about cultural evolution which keeps knocking about in the back of my head. The relative weight of accumulated learning is greatest in a society with a generally slower rate of change. In a society like ours, however, where change is rapid and accelerating, there’s a high premium on thinking on your feet and contact with the new. This in fact should favour those who, for want of a better expression, we might call the ‘early adopters’. I don’t know what the percentage is of the really good new ideas knocking around today that are freely available on the internet, but I’d guess it’s quite high (personally I haven’t noticed a good idea recently that I’ve had to pay for). I would also guess that most freely available ideas are pro-change and adaptation. So isn’t there really something implicitly absurd about those who are by nature more resistant to change – our more conservative thinkers – making sure that their best ideas are all locked away and difficult to get at. Of course culturally this is a terrible waste, but it is rather like shooting yourself in the foot.

Meantime initiatives like CC have enormous potential. It rather puts me in mind of the BBC trying to get all those off-shore pop-music pirate radio stations taken off the air in the 1960’s. For the young people of the day the very ‘unofficial’ nature of the music was its attraction. By the same token CC should selectively attract those with the greatest ‘fitness’ for the new environment. The tragedy in all this, if tragedy it is, is that the opponents of the public domain are not as preoccupied about the future of their own ideas as we are for them. Remember that whoever it was that said ‘people are never so innocently engaged as when they are occupied making money’ (Carlyle, De Toqueville?) probably wasn’t thinking much about making money when he said it.

By: Nathanael Nerode

Nathanael Nerode — Fri, 24 Jan 2003 01:31:18 +0000

A clarification — you should have won even on property terms. The copyright extension, in property terms, is a *theft of public property* — of a future interest — and a government transfer of that property to private interests. Unfortunately, the culture of property which the seven justices subscribe to has no respect for the concept of public property whatsoever. This is the same grotesque viewpoint under which giving away public land — the commons! — to private interests at a gross discount is considered a reasonable and proper use of public property. Not to be confused with selling it at its true value.

By: Bruce Baugh

Bruce Baugh — Thu, 23 Jan 2003 18:11:13 +0000

Kevin, I'd be very happy with the sort of copyright protection the Constitution provides for. No beef there. And I look forward to seeing your website!

By: Kevin Atkinson

Kevin Atkinson — Thu, 23 Jan 2003 17:37:56 +0000

Just to be clear I am not advocating the abolishment of copyright laws, just a return of copyright laws to what the framers had in mind.

Perhaps the phrase “Ideas of not property” is a bit strong, a better one might be “Ideas can not be treated like traditional property”. However the use of the words “stealing” and “pirates” when talking about copyright violations is definitely wrong.

I am fairly serious about starting a web site if I can get some honest commitments from knowledgeable people to contribute content. Yes, it will have a slight bias however, I will not intentionally distort the facts. I will accept any arguments provided that they are not FUD or B.S. I will not accept arguments from the like of the RIAA or MPAA unless they or FUD and B.S. free. So once again if you are interested email me at [email protected].

By: Bruce Baugh

Bruce Baugh — Thu, 23 Jan 2003 16:47:10 +0000

Paul, I make my living right now with fiction and writing in the roleplaying game industry. So this is a matter of very direct concern to me. I realize that not a lot of people do it, but then not all that many people making their living doing some of the things whose assumptions currently drive a lot of IP debate, either.

And in addition to those who make a living at it, there are a lot of folks who supplement some other income by selling pieces once in a while.

Is it, then, your contention that I need to find another livelihood? I don't feel anyone is ever guaranteed the right to do the work they'd like - or at least shouldn't be - I'm just trying to work out the personal consequences of various proposals.

By: Adam Goldstein

Adam Goldstein — Wed, 22 Jan 2003 19:37:45 +0000

Bruce: arguably you could make a living selling fiction using nothing but contract and tort law. You could contract away the exclusive rights to publication, and with the right notice and licenses, arguably sue those who copied for tortious intereference with that contract. The work itself could include a license limiting its use to eyes only or somesuch--therefore, anyone who copied it would be in violation of the license. (Lexis Nexis does something like this, since in the U.S., a database can't be copyrighted. Their Terms of Service put a contractual limitation where no IP limitation functionally exists.) Shrinkwrap licenses on software are valid--why not one on a book? So there's another area for contract liability.

More or less any of the reserved rights in copyright law can be viewed as a default contract for the use of IP when no other contract terms are stated, so virtually any of the rights issues in copyright can be replaced with licensing.

These really aren't any different than "fair access" concepts as we currently understand them. A work protected by copyright gets special access protection from the DMCA, but in a non-IP setting, a contract is just as valid, if harder to enforce. (If a toothpaste company wanted to put a label on the tube stating that by extracting toothpaste from the tube you agree to brush your teeth between the hours of 8 and 12 AM, you always have the choice to choose other toothpaste . . .)

By: ECR

ECR — Wed, 22 Jan 2003 17:14:38 +0000

oops, left out the h in Ashcroft in my previous post, sorry

By: ECR

ECR — Wed, 22 Jan 2003 17:07:04 +0000

All this debate on protecting Intellectual Property leaves me even more annoyed for the following reason:

The Public Domain is property that belongs to all of us. As a member of the public I strongly feel it is my property to enjoy. In the US Constitution, protection of the Public Domain property, in the form of promoting the Progress of Science and useful Arts, is entrusted to the US Congress. For this protection Congress is given the negotiation powers of securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Whenever Congress extends copyright terms they are giving away Public Domain property and in exchange they should obtain this progress of Science and useful arts for the Public Domain. Every time that Congress gives away Public Domain property without the Public Domain receiving anything at all in exchange, Congress is making law that completely fails in their constitutional duty to protect the property entrusted to them by the people, the ultimate owners of the Public Domain.

The defense of property is also a reason to strike down the Sonny Bono act.

Something ironic in the comparison between IP and physical property is that copying an idea doesn't deprive the inventors and artists from using it but prohibition to copy and make derived works does deprive the Public Domain from it. In this sense it can be said that Public Domain's IP is closer to physical property than Author's IP

Eldred vs Ascroft is over. I can only hope that a future case will bring the Congressional duty of protection of Public Domain property to the Justices' attention. On the second front, it wouldn't hurt to remind your congressperson that there is a Public Domain property that they're supposed to be defending.