That admitted, I’m less taken with his other remarks. Of course, copyright does not exist to benefit descendants but rather to encourage production (not just authors, of course, as Josh Stratton writes). Benefits to descendants, however, are one of copyright’s ancillary effects. They are not bad. Many people have benefitted from their parents’ industry and foresight. Kept within reason and proportion, such consequences are positive. Leaving stirpes a business or a copyright is not the same as leaving a bag of lottery tickets, however; Josh’s analogy breaks down. A business can be run and directed; copyright is a property that can be managed to produce income. It is not a matter of chance. If the copyright act is not designed for ensuring the security of families, it can and often does result in such security.

Indeed the Disney family is not much in control of the Walt Disney Corporation. The Disney Corporation has the ability to (unfairly, in my judgment) manipulate the legal system for its advantage; its lawyers are smarter than the government’s lawyers. They have arranged for harmful rewriting of copyright laws, through the copyright extension act of 1998, in order to protect property of the Disney Company–Mickey Mouse, Donald Duck, etc. President Clinton should not have signed this law, the Sonny Bono Copyright Extension Act, when Congress passed it. It has vitiated the idea of copyright and resulted in straight jacketing the intellectual freedoms and productiveness copyright laws themselves were designed to encourage.

David, as you’ve stated that there are simple metrics, and that Josh’s metrics are wrong, perhaps you can enlighten us as to what your metrics are? Otherwise, your response boils down to nothing more than “you’re wrong, so there”.

Josh Stratton writes: It is wrong and paternalistic of you to interject your opinion. No, it isn’t. Is this a discussion for extreme libertarians only? If those are the rules of debate, I can bow out now.

And anyway, given that no one is twisting the arms of authors, why would it bother you that they might waive or assign their rights? We are talking about adults who are able to make their own decisions in what they find to be their own best interests. It is wrong and paternalistic of you to interject your opinion onto them, and to give them unassignable, unwaivable copyrights in a misguided attempt to protect them from themselves. Why not bring back the fee tail while we’re at it? Indeed, these actually weaken their position since lack of control over a work by a later purchaser makes the work significantly less valuable to them, meaning that the author can’t make as much money. There’s also the injustice of allowing authors to terminate transfers and take advantage of the oft-times significant value that a publisher has put into a work. We don’t have these concepts enshrined into law for any other property. Toyota doesn’t have moral rights it can assert against a car owner who drives a car that’s been damaged and not repaired. They can’t sell a car outright to someone, and then decide down the road that they want it back.

As for hiring a lawyer to help negotiate and draft serious business contracts, it’s not a bad idea, actually. If you were asked to invest in a business that didn’t bother using lawyers for its major business dealings and contracts, you’d probably run screaming. That is not a safe or professional way to behave. Why should authors engaged in major business transactions be different or special? They can, of course, do the work themselves, and run a significant risk, but if they’re level headed and approach their business dealings seriously, they’ll probably get professional legal help, just like any serious businessperson. If they don’t, well, they made the bad judgment, so let them live with it. At least they’ll know better in the future.

I wonder if Josh would have let people sign themselves into indentured servitude, when the 13th amendment was being drafted. After all, if they “don’t care” enough to preserve their freedom, why should the public care?

Copyright is supposed to be a bargain between the creators of works of art and the consumer–one which when properly observed is supposed to benefit the public by the encouragement of the production of new works.

Imagine for a moment what the world would be like if there really were an eternal copyright and that such a system had been in place for a long time. This would mean the the plays of Shakespeare would still be under copyright–you would have to obtain the permission of the Shakespeare estate (or the permission of some large corporation which owned Shakespeare) in order to perform Othello in public. Shakespeare scholars would have to beg permission to write about his works or quote them in certain ways. Anyone who wanted to create derivative works based on Shakespeare’s plays would have to get permission to do so–Leonard Bernstein Arthur Laurents, and Steven Sondheim would have been sued by the Shakespeare estate when they tried to write West Side Story without permission. In the sciences, it would be impossible to use Einstein’s equations of relativity in creating new works of physics without the permission of the Einstein estate. Very little in the arts and sciences is truly orginal–just about everything borrows from past works. All of our culture would be locked up under the control of large for-profit corporations, where would be virtually impossible to create anything without begging permission and paying fees. The content industry would become like the seventeenth-century English book publishing industry, with the rights to authors long dead still tied up under copyright, and the industry being a system of hereditary privilege where it would be illegal to publish anything that the Crown did not approve.

The distinction between an idea and the particular expression of the idea would become blurred–it would be impossible to build upon the past without seeking permission or paying fees, which would cripple our ability to share ideas. The notion of fair use would be obliterated–just about everything in the arts and sciences would be owned by somebody and it would be illegal to use them without seeking permission and paying some large corporation.

Sure, but since that protection comes at a cost to the public, in that everyone other than the author loses some freedom with regard to the work, there’s a public detriment that goes along with that. I think it’s unlikely that the benefit to one person will outweigh the detriment to absolutely everyone other than that one person, and so it’s important to find some sort of benefit to the right that goes to all those other people in some way. Remember that what is important is not whether there is any benefit at all, but whether there is a net public benefit, i.e. whether the public benefits even after accounting for the detriment that a given regulation imposes. Otherwise you could just say that we should give a million-year copyright to the author, since he benefits, and he’s a member of the public.

Furthermore, even non-artists may prefer a system in which they have access to works as envisioned by the artist rather than as modified by a content owner with deep pockets.

I don’t see how this helps. You’re saying that in a case where the author sufficiently didn’t care enough about his work enough to assign the rights to someone else, that we should second-guess him and make sure that he has some rights anyway, even though the assignment indicates that he doesn’t care and isn’t going to assert those rights. This is paternalistic and pretty hostile to the new copyright holder, who, let’s remember, is not necessarily a bad guy.

If this is your goal, and it’s not a bad goal, then how about a system that is more finely targeted to dealing with it? I suggest that strict formalities, including deposit, should be required in order to get a copyright. This means that the author is going to have to deposit the work as he created it with the Library of Congress. And one of their missions is to preserve works. (And they really ought to have less discretion about that, than they presently do, IMO) The new copyright holder will want to protect its modified version, but that’s a derivative, and so 1) will need to be independently registered, and 2) will only be protected as to the portions of it which are original; they’ll have every interest in making sure that the original was copyrighted too, since they’re relying on that.

If we combine this with another envisioned law, that there is an exception for any otherwise infringing act engaged in by natural persons acting noncommercially, any members of the public who want to share copies of the original work can get access to the deposit copies and start making their own copies, sans the modifications of the new copyright holder.

Lastly, if there is a credit / disclaimer system as described earlier, it’ll be clear which versions are the original version the author deposited, which versions are modified, etc. making it easier for interested readers to find whichever they like.

And this can all work even if the author is apathetic about the work. Remember that there even though the public might have a desire to see the original version of the work, the author is never obligated to make sure that it survives if we give him the rights and the choice as to whether to use those rights. Authors might not want to, for instance if they fear it would offend the copyright holder with whom they wish to do more business in the future.

I think that my solution is a bit more likely to work as it doesn’t rely on the author to care on behalf of the public, but instead lets those members of the public who do care take matters into their own hands. It also doesn’t involve any non-infringing versions of the work being suppressed, which I don’t think is helpful to the public. Just as there will be those members of the public who have an interest in seeing the original work, there will be those who prefer the derivative, and those interested in the choices made to produce the derivative. Original works aren’t inherently better, you know; that’s a matter of taste which the government is not competent to make and should not use as a basis for any policy. But if you have a two, or five, or a dozen, or more versions, odds are better that at least one will be widely popular.

It cannot be simply dismissed as of no public interest.

It seems to have had no appreciable incentivizing effect on authors. And that is what any copyright law which restricts the public absolutely had better do. Actually preserving works is better accomplished by not restricting those works in relevant ways so that anyone and everyone can be involved with that who wants to. Limiting your pool of protectors isn’t a good strategy for protection. I think that the LoC has an important role, but ultimately, those works that we have left from antiquity didn’t survive to reach us because they were in central libraries. Libraries burned. They survived because they were widely disseminated and not under the control of the author.

Josh wrote: “In any event, whether the copying was for profit or not is irrelevant.” That’s certainly not true. Whether the copying was for profit is always a factor in determining whether it is fair use. Obviously, there’s a pretty broad fair use right to design and build buildings that resemble those that you have seen.

It’s irrelevant to the prima facie case. And while you could always argue fair use in an architectural work infringement case, your odds are not as good, I think, as they might have been in some other sorts of cases. For starters, the fourth factor is going to be really tough. Plus the odds are a lot greater, given the costs of construction, and the looming issue of winding up either ordered to destroy the structure, or being unable to ever sell it without the permission of the rightsholder, both of which are very real remedies in copyright law.

Personally, I’d just as soon get rid of the entire idea of copyrightable architectural works; it hasn’t encouraged architects to do anything they weren’t already doing, and it is a big imposition on the public. The architecture market is driven by other considerations AFAICT. Copyright doesn’t play a significant role at all.

What next? Copyrighted hairstyles? Poses when standing or sitting? Arrangements of furniture in a room? You can make copyrighted drawings of any of these things. But people have a broad fair use right to be influenced in their own lives by what they see in their day to day lives.

So A Great Idea Lives Forever. Shouldn’t Its Copyright? what do we all think about this statement. Well firstly it has not basis in history or law – it completely ignores the idea/expression dichotomy, but that isnt its worst aspect – it also completely ignores the basis on which copyright is granted in the first place (IE to reward an author for a period with exclusive rights and then provide the work to the public).

I take great offence to non-lawyers getting into the debate about copyright. It is clear that little thought has been put into this article and even less research has been undertaken.

Take for instance the statement “No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.”

Huh???? – How can real property equate to intellectual property???? That statement is a nonsense, there has never been any connection between intellectual property and real property. THe only connection is the similar right to alienation and power to move on trespassers/infringers – but that is similar as well to correlating rights in chattels. It is after all a characteristic of legal property.

If you want my opinion – the article is a load of horse s*@t