Well, that’s demonstrably false. There were numerous non-poor artists prior to 1710 in England, or whatever the appropriate later date was elsewhere. But they were the sorts of artists discussed above that didn’t make their money from what we would consider to be copyright-type sources (e.g. royalties for each book printed, or each play performed). They were the ones that sold individual works, or worked on commission, or sold tickets, or had patrons. There’s no shame in making a living that way — when I supported myself as an artist, my income usually came from finding clients that wanted something specific done for them. Basically I was skilled labor. Now that I’m in the legal profession, I’m still working as skilled labor.

Of course, we can get even more art made and in the public domain if we have a carefully designed copyright system. It helps the artists who can’t make a living in the way describe above. So, as long as the copyright system yields a net public benefit, it’s good to have along with the more traditional ways.

A real tyranny is where the works are published without consent and the author has no right or recourse to remedy the problem.

While I understand your point, you are describing works in the public domain. I would not characterize that as tyrrany. Instead, I would say that it is the — arguably not fortunate for authors — natural state of affairs. Copyright isn’t the norm, though. It’s gravy, and it’s costly. Too much copyright is bad for society, and costs too much to sustain.

I dont think withdrawal from Copyright Treaties is in the US interest re foreign markets but who knows.

Meh. Berne can be easily manipulated so that US authors wouldn’t really have a problem with it if the US wasn’t in Berne. Which we weren’t until quite recently, but everyone seems to have managed.

Basically, I think that the US ought to implement the laws that are best for the US, and should allow other countries to do the same. Circumstances vary, and I think we can more safely rely on each country to do a better job of finding the ideal copyright system for their own people than WIPO can, especially if they continue to insist on minimum standards everywhere. All I want to see on the international front is unilateral national treatment, and a policy of avoiding formalities that would so conflict with the formalities of another country that an author would have to choose between them. I see no need for anything else.

I only strongly disagree with the concept of registration of copyright. It seems to me that only educated middle and upper class persons would have access to copyright in that instance.

I don’t think that it is that obscure, and as I have said, I am all for the Copyright Office running public information campaigns. Already, there is a lot of information at their website (copyright.gov) for anyone who cares to even casually look. However, to further address this (and some other concerns) I am willing to float the idea that we could take a page from US patent law, and provide a one year grace period to file, starting on the date of first publication. But, remedies for works in this grace period (minus a few that cannot avoid it, such as live TV that is also being recorded, where we have expanded the definition of publication to include public performance) would likely be sharply limited, since it presents problems with public certainty, as well as a problem akin to that of submarine patents.

Nevertheless, remember that in the period of 1790-1977, publication sans registration put works in the public domain. I do not believe that there has been a significant shift in demographics regarding who seriously claims copyrights between then and now. Automatic copyrights, on the other hand, protect many many works that need no protection at all. I would rather take the risk, especially given that we’ve seen it work, than overprotect.

Poptones–
If I build a car I OWN that car.

Ah? So the autoworkers own the car? Do they get to drive them home, too?

Personally, I like the famous story on roughly this subject that is told about the 18th century Japanese judge, Ooka Tadasuke. A poor student lived over an inn. He could only afford very plain food, but the smells of cooking food wafting in from the inn downstairs made his situation bearable. The innkeeper eventually sued the student, since he wanted to be paid for the smell that the student was enjoying. Everyone thought the innkeeper didn’t have a chance, as his argument was so stupid, but Judge Ooka accepted the case anyway. His verdict, which provided a nice lesson to the innkeeper, was that the student should pay, but that the appropriate payment for the smell of food was the sound of coins clinking together.

Like I said, just because something is the fruit of your labor, that doesn’t mean that you own it. The smell of the food wasn’t owned. Someone who improves their house, which boosts the value of neighboring houses, doesn’t get to demand anything of his neighbors. If you work to come up with an idea that doesn’t rise to the level of copyrightable expression or patentable invention, and which isn’t a trade secret, then anyone can use it freely. Hopefully you get the point.

Of course, let’s also remember that the sweat of the brow theory is dead, dead, dead in the US, when it comes to copyright. It has no constitutional support at all. There is a good reason for copyright, but letting someone claim the fruits of their labor is not it.

The difference is, of course, that in the online realm there really is no “rarity.” One of the foremost mottos of usenet is “everything eventually gets posted… again.” Even if I put my john hancock on a work there’s nothing to stop someone from copying it in essentially infinite fashion, therefore no (present) ability to add any of the values to electronic works that apply to your (weak) car analogy.

Well, that’s not true at all. If Alice writes a post, and Bob copies the post bit for bit and reposts it later, the posts are still distinguishable in that Alice didn’t cause the post to be put up a second time. This isn’t really a difference in the content or anything, but it is still present, however intangibly. If you’re interested in more on this, let me refer to you an excellent essay called What Colour Are Your Bits?.

and more predominantly so in countrieds with poor copyright enforcement.

I don’t know if there must be a connection, though. For example, let’s imagine that the UK stopped having copyright. Artists still might be able to find foreign audiences, and foreign copyright protection, and avoid being quite so poor. Still, this is a minor counterexample.

The stronger the coipyright enforcement, the greater this balance is tipping in favor of those actually creating the work as opposed to those who essentiallty provide nothing but gatekeeping and warehousing functions.

Well I have a higher opinion of the value added in publishing, whether the entity doing the work is the self-publishing artist or the publisher the artist has outsourced to.

But either way, I don’t see any basis for your claim that stronger enforcement is relevant.

To digress a bit, strong enforcement of copyright is interesting in that it is quite independent of what copyright actually consists of — perfect, or nearly-perfect enforcement of a 1790 Act copyright might well be stronger than ordinary enforcement of a 1976 Act copyright. Because of this, and the assumption to date that however broad the law is, that it will not be fully enforced, a greater degree of enforcement would seem to require a reduction in protection in order to stay at the same overall point that the legislation was meant to put us at.

Second, I think that you can go a long way with limited enforcement resources by choosing your battles. Rather than waste time pursuing every infringer, go after the deep pocket or the head of the snake (i.e. an infringer that feeds other infringers, such as Napster, which fed all its users).

Third, I think that enforcement should be left in the hands of the copyright holder (infringement should not be criminalized). Since it is their work, they are in the best position to know how much enforcement they want. Further, since the enforcement basically only benefits them, and there’s no particular danger to society, it’s appropriate for it to remain a civil matter. See e.g. patents, which are entirely civil, and which are the closest thing to copyrights.

Anyway, getting back on point, I don’t see that stronger enforcement of copyright tends to weaken the position of publishers. Authors could assert their copyrights against publishers, but then, they’ve always been able to do that, and publishers of the sort we’re talking about are not terribly difficult to find and enforce a judgment against. And merely having a greater ability to enforce copyrights doesn’t mean that one will better be able to market or publish a work on one’s own.

While I think that we are seeing some kinder, gentler publishers, as it were, I think this has little to do with enforceability, and more to do with artists being more careful and serious in their business dealings. Some publishers are responding to that, other publishers are being formed in order to respond to that, and more authors are opting to self-publish as a result of being more informed.

So long as the Copyright Office stayed neutral in the matter (the government is equally the government of publishers and artists after all), then I think some sort of awareness campaign regarding publication options, the rights involved, etc. would be a good idea. Nothing wrong with making sure everyone is well informed.

Did you see the Arctice Monkeys on SNL?

No, I’m one of those people that thinks it isn’t a very good show anymore.

And their title is essentially self publish on a small indie label, and they attained their fame via a different type of publisher – one that still acts as gatekeeper but only in the sense that whatever ain’t popular don’t get eyeballs. That new publisher doesn’t keep 70% of the profits and demand recoupment for physical infrastructure because their audience itself provides that nominal revenue as well as enough profit to make it a viable business.

Good for them. Look, I never said that having a publisher that demands a lot is inherently a good thing, but rather that artists should be free to make those kinds of deals, so long as it is their choice. I do not think that artists are children, who should be protected from themselves; if they make a good choice, then that’s good for them, and if they make a bad choice, then that’s too bad for them. I don’t think we should interfere.

As I said, I think that it’s good if artists are well informed, so that they know they’re doing something that could be a bad idea, but being poorly informed isn’t a good enough reason for making the deal voidable. And hey — it could be that the artist is informed, and is deliberately signing on with the sort of publisher you don’t like. Who are we to say that they shouldn’t be allowed to? Do these publishers make rather one-sided deals? Yes, but I can see why they would (after all, they’re self interested, just as the artist surely is), and if an artist is willing to take that deal, then so be it.

And I still fail to see the connection you’re making between stronger enforcement and nicer publishers.

In this manner everyone benefits from stronger copyright – the fans, the artists, even the music industry which now has to take on less burden and risk when it’s time to start cranking out physical goods.

The risk the publishers take is not that of piracy. The risk is that the artist is a flop. Hell, if there is piracy, that’s a good sign that the artist is popular. Once he’s popular, then you can turn your attention to reducing piracy, and you might even get somewhere with that. But the losses due to piracy aren’t nearly so major a concern as the losses from signing bad artists.

For example, people were pirating the latest Star Wars film quite a lot, right around when it hit theaters, as I recall. Yet the movie still did excellent business (despite not being as good as the original ones) and Lucas, who is as close to a self publisher in the major film world as you’re going to get, did well. But the people who invested in, oh, Cutthroat Island, lost their shirts. The production company ended up going bust due to this and another big budget flop, and no one bothers to pirate it. This is because it stinks on ice.

I would suspect that the single entity who suffers from the greatest amount of piracy (in terms of the number of pirates and the amount that the works involved sell for) would be Microsoft. And while they’ve been taking some action against this, they’re hardly hurting because of it. In fact it’s probably helped them, since free (illegal) Windows negates the price advantage of free (legal) Linux, and once someone is using Windows then at least MS can benefit indirectly from starving competitors of a user base. It can try to pick up the piratical users later, turning them to legitimate options.

While a small author might have more difficulty weathering a lot of piracy, I suspect that if they could enforce their rights more effectively, they would have less piracy, less popularity (since at least the pirates must like the artists’s work, if nothing else), and roughly the same amount of sales. I don’t think that the casual pirate — and that’s who DRM is aimed at — will bother to go legit.

Certainly, they couldn’t for everything. For example, if I were back in my old job, and I had just pirated everything, I would have many more programs and fonts on my computer than I did. If I had to operate legitimately (which in fact I did), then, being on a limited budget, I’d have to start making choices. I might have pirated both Illustrator and Freehand, because they were free, but if I had to pay, I would likely not buy both. Maybe not either. So while Adobe and Macromedia would have had less piracy, that does not mean they would have had more sales.

If the level of sales stays roughly the same, with or without piracy, and especially in consideration of the (arguably minor) benefits of piracy such as spreading awareness of a work, perhaps to people who will pay for it, then an author who cannot make ends meet with piracy will not be doing any better without it.

It costs a fortune to market mariah on mtv, but if you already have the audience then mtv comes to you.

Well, getting the audience is the trick, isn’t it? Basically you seem to be saying that it is okay for a publisher to spend time, money, and its reputation on artists (so that it can get the audience), but that it should do so for peanuts (because the artist-with-audience no longer needs the leg up). If an artist can find a publisher willing to do that, then good for them! But I would not be surprised if many publishers refused to work on those terms. I take a wait and see attitude as to how this works out, and I think that copyright law should permit both models to function, so that the choice is left up to the market.

You just can’t get past this antiquated view of publisher vs person, can you?

Well, I think that the parties involved, be they publishers, authors, or the public, are all self-interested. They’ll act only when it benefits them to do so, and only in self-beneficial ways. They’ll cooperate and even compromise, but only if they will do better by doing so than they would otherwise. I think that altruism exists, and I take advantage of it where I can, but I don’t rely upon it.

So I don’t think that I have an antiquated view of how this all works. I think that I have a pragmatic view. So, since I am interested in the public benefit, I only want to maximize that. This guides my actions. I will compromise (e.g. grant copyrights) or not, if it is in my overall interests. I will gladly let authors and publishers do whatever they want, however they want, on their own or hand in hand, if it serves my interests. And I expect that the only way to get them to do anything is to make it be in their interests too.

Nicer publishers are fine. I have no objection to them at all, and I wish them the best of luck. But if DRM or whatever ultimately reduces the degree to which the public interest is satisfied, then I won’t stand for it. If this means that we can’t have nice publishers, then whichever one is worse from a public benefit standpoint (which involves significantly more than merely how many works are created, as I have repeatedly shown) will just have to go.

And this is still the case today, all around the world; and it was also that way prior to copyright. This constant feature of the landscape probably should indicate to you that it has to do with something other than copyright.

Yes but 50 cent would still be very poor if it werent for copyright. Professors would have to rely on University wages (as opposed to actually making it in the workforce). I think you may have to accept that some artists are poor because they dont produce a viable product. On the other hand all artists would be poor without copyright. Saying that certain artists products dont make it is not relevant when copyright exists within a free market system.

Well, that is because we still have a tyranny of publishers, we’ve always had a tyrrany of publishers,

A tyranny is basically where the oppresed have little or no rights. Publishers these days are not tyrannical as you suggest because they are bound not to publish works unless authorised by the author. A real tyranny is where the works are published without consent and the author has no right or recourse to remedy the problem.

Re: Your Proposed Reforms

Nice. I agree with some such as reducing copyright term, broadening the definition of publication and alteration to the mechanisms of protection of unpublished works.

I dont think withdrawal from Copyright Treaties is in the US interest re foreign markets but who knows.

I only strongly disagree with the concept of registration of copyright. It seems to me that only educated middle and upper class persons would have access to copyright in that instance. It would also provde a feast of litigation when the record companies start stealing songs etc. I think it would just end up in an unfair system –> As such that is the only issue I would want to debate.

Bullshit. If I build a car I OWN that car. I have an inherent right to whatever value I feel it holds. If I feel it is worth more than you are willing to pay it is not your right to just take it and throw whatever “donation” at me YOU think is fair – I keep the car and you don’t get it, period. I retain 100% of the value I feel the car holds. If that ultimately means I end up sleeping in the car (parked down by the river) because I am destitute and too stubborn to trade it for food and shelter, that is my choice to make.

Were this not the case, much speculation and investment would be impossible. E.g. if Ford sold Model T’s rather cheaply, but they certainly can’t demand that later sellers give them the difference when they sell at a higher price, now that they’re antiques.

Ford did not build that value into the cars – the owners who purchased those cars added that value themselves – by warehousing the car, maintaining the car, refurbishing the car if need be, and then marketing the car to an audience that values traits like nostalgia and rarity. Otherwise the car is just so much scrap metal that ends up as part of someone else’s engine block or differential housing.

The difference is, of course, that in the online realm there really is no “rarity.” One of the foremost mottos of usenet is “everything eventually gets posted… again.” Even if I put my john hancock on a work there’s nothing to stop someone from copying it in essentially infinite fashion, therefore no (present) ability to add any of the values to electronic works that apply to your (weak) car analogy.

The other thing to remember is that there were a lot of poor authors in this time but not that many poor publishers.
.
And this is still the case today, all around the world

and more predominantly so in countrieds with poor copyright enforcement. The stronger the coipyright enforcement, the greater this balance is tipping in favor of those actually creating the work as opposed to those who essentiallty provide nothing but gatekeeping and warehousing functions.

Did you see the Arctice Monkeys on SNL? I wasn’t terribly impressed, but apparently a LOT of folks younger than myself were. And their title is essentially self publish on a small indie label, and they attained their fame via a different type of publisher – one that still acts as gatekeeper but only in the sense that whatever ain’t popular don’t get eyeballs. That new publisher doesn’t keep 70% of the profits and demand recoupment for physical infrastructure because their audience itself provides that nominal revenue as well as enough profit to make it a viable business.

In this manner everyone benefits from stronger copyright – the fans, the artists, even the music industry which now has to take on less burden and risk when it’s time to start cranking out physical goods. This allows a more diverse selection of publishers of physical works to compete because the risk to each is not so great. It costs a fortune to market mariah on mtv, but if you already have the audience then mtv comes to you.

You just can’t get past this antiquated view of publisher vs person, can you? Too bad for you that archaic “us vs. them” mentality renders baseless pretty much the entirety of your argument.

Roughly, but of course in a natural state sans copyright, that value is widely dispersed. The author can capture some of it, for example by being first to market with copies, or by giving particular copies his imprimatur. Copyright results in his acquiring more of the value than he could on his own.

Of course, one doesn’t have an inherent right to all the value of the fruit of one’s labor. Were this not the case, much speculation and investment would be impossible. E.g. if Ford sold Model T’s rather cheaply, but they certainly can’t demand that later sellers give them the difference when they sell at a higher price, now that they’re antiques.

increase the value of the bribe above that of the work

Well, it shouldn’t. I’m interested in the copyright bargain favoring the public, not artists. They can benefit too, but not at our ultimate expense.

Is there anything in the nature of exclusivity which increases the value of the bribe?

Sure. For example, if there is an exclusive derivatives right, then the author of a book can control whether or not a movie can be made, and can get a fair amount of money by exploiting this right.

Isnt it made equal according to “Fair Use”?

Fair use isn’t that expansive.

I note in previous posts you have moved from getting rid of DRM to Copyright at various times. Yet there seem to be very little suggestion of actual substantive changes (apart from registration) to the regime.

Well, I don’t really want to get into details here. Just tagging something for attention is a lot easier than getting into the nitty gritty, which I am still in, when I can spare a little time.

But generally I’d like to see the US withdraw from all copyright treaties. The definition of publication should be broadened. Terms should be massively shortened, but able to be renewed periodically (excepting for some works, e.g. software, which tend to ‘age’ faster). Existing terms should be reconciled with the new lengths, but in a simple to understand fashion. Formalities (registration, deposit, notice) should be made manditory for applicants, and might be strengthened a bit (e.g. supplemental deposit). Copyright restoration would be abolished. 106A would be abolished. Subject matter would be reined in (via the utility rule) so that architectural works would no longer be eligible for copyright. The merger doctrine might be codified. The infringement tests should at least be examined, as they’ve been getting abused. Everything in chapters 9 through 13 would be abolished (though I reserve the right to think on chip mask protection further). Also an anti-DRM provision, as already discussed, would be set up. A broad exception for natural persons not engaging in commercial activity would be available. Infringement would be decriminalized, and for civil infringment, strict liability should be retreated from. 117 should be redone so that it is made more applicable in the real world (possibly this will involve dealing with the EULA problem). Importation rules would be clarified. National origin would no longer be relevant, since unilateral national treatment would be available (though this means that foreign authors would have to comply with the same formalities as domestic authors). 105 would be expanded to cover any governmental works; the US would still be covered, as would the states, foreign governments, IGOs, etc. as none of these bodies need the normal incentives and in any case, governmental copyrights are a very hostile notion to the proper place of government as the servant of the people. 108 would be broadened a bit, as would 109. 107 might do with some very slight tweaks, but fair use should still be left vague, and up to the courts. Most of the other exceptions are closely tied to their industries, and merit very careful attention. I would also probably keep the homestyle exception; I don’t care for it intellectually, but small businessmen really have a tough time understanding their interactions with copyright law. Some protection for unpublished works would be available, but it would need to be carefully shaped so as to not be prone to abuse but to still deter and remedy manuscript piracy. 511 might as well go, it’s already well-known to be unconstitutional. 512 needs to be reworked, as it gets abused quite a lot; the idea is not a terrible one, though. Also the statute of limitations should be clarified as being on the injury rule. The Copyright Office might benefit from some shaping up, but mostly my beef has been with Registrars that seem to always side with authorial interests, instead of considering the public interest. Lack of typeface and font subject matter should be clarified. The 121 exception should probably be broadened; specialized formats and authorized entities are silly. I am concerned with how broadly the 106 rights are granted; is it best to rely on narrow exceptions, or should we make the rights grants narrow too? And I’d generally reorganize everything for clarity, just as the 1976 Act did for the 1909 Act.

That’s the gist of it, bearing in mind that the industry exemptions will take the most work, and I’ve not decided what to do there. Of course, I’ve probably forgotten to list something really obvious, so I welcome suggestions and comments.

IE scandalous works of fiction or fact.

I think you meant, ‘not scandalous works.’ Anyway, I never said I want to bring the 1790 Act back to life, I just said that it existed when you basically claimed otherwise.

The other thing to remember is that there were a lot of poor authors in this time but not that many poor publishers.

And this is still the case today, all around the world; and it was also that way prior to copyright. This constant feature of the landscape probably should indicate to you that it has to do with something other than copyright.

only painters (who could sell thier individual works) became relatively well off

Of course, if you’re selling by the piece, copyrights aren’t relevant to you. In fact, most fine artists today don’t care much about copyright; the market that relies on copyright isn’t the one that they tend to operate in. For example, Warhol could sell a painting of his for a hefty sum, once he was established. But if I had a poster of it that was a perfect replica, I’d get what, a few bucks? The value isn’t very much in the work, in that market, it’s in the copy made by the actual artist. Which is funny, because I seem to recall another artist who never made anything anymore, but just signed the output of his assistants; he made a lot of money and made fun of his customers because they would pay so much for just a name. I’ll be damned if I can remember the name, but I’m sure it’ll come to me later. (And while I am thinking of someone specific, lots of artists use anonymous assistants in this fashion)

Frankly, if authors would write a manuscript, never bother to print up copies, and could find some interested buyers, they might be able to get into the same market. (Though visual art is a bit more accessible than having to page through looseleaf)

If you returned to the systems of old, including return to the requirement of registration you could again see a tyranny of publishers. This is a point I make repeatedly and which you seem not to appreciate in your posts.

Well, that is because we still have a tyranny of publishers, we’ve always had a tyrrany of publishers, and I don’t really see how we could stop them from at least being extremely powerful in the field, or whether it would be a good idea to break them.

And while I imagine poptones will chime in with his half-baked DRM rant, and that everyone is able to publish now, remember that publication is often not a simple matter of a few mouse clicks. Publishers have contacts that authors will tend to lack, because the publishers do more business than any author ever will, and can spend the time to do this networking really well, amortizing it across their entire business; this gives them a leg up in getting people to buy copies, in getting specialized help (e.g. a specific recording engineer, rather than just some guy). If specialized equipment is needed, such as a printing press, they tend to already have these, and can again amortize it, making it easier for them to afford. If lots of capital is required, publishers will often have that, or will have the connections to get it from investors, while authors will likely have a harder time.

Sure, anyone can publish their homemade video online. It is harder for the independent filmmaker to get $50 million, to bring stars onboard that the filmmaker doesn’t already know personally, to get his movie distributed in theaters worldwide, to get millions of DVDs pressed and sold to retailers, etc. That’s why we have specialists — the publishers. And they put in a lot, so they demand a lot back; this is the cost of doing business with them. Or, if you can do all those things for yourself, then by all means, keep all the rewards for yourself too. Most people seem not to be able to self-publish in the way they want, or not to be willing to try. So long as it’s their choice, it’s ok with me, whatever they decide.

Isnt the beauty of the system that the rights in copyright are exactly equal to value of the work (since that price is determined by the market at work). What you are bribing him with is equal to the value of what he creates. Of course you will argue the term and nature of exclusivity increase the value of the bribe above that of the work but that is just a term question and I have already agreed the term should be decreased. Is there anything in the nature of exclusivity which increases the value of the bribe? Isnt it made equal according to “Fair Use”?

However, my main reason for reform is simply that I think copyright can be implemented better.

Well no one said the system was perfect but I note in previous posts you have moved from getting rid of DRM to Copyright at various times. Yet there seem to be very little suggestion of actual substantive changes (apart from registration) to the regime.

Well, let me remind you that the first federal copyright law was enacted in 1790

And it was only available to americans who registered and it was only in respect of works as accepted by the Copyright Office – IE scandalous works of fiction or fact. The system was so limited that it was only really available to white, middle class male authors – and there werent that many.

The other thing to remember is that there were a lot of poor authors in this time but not that many poor publishers. Whilst printing presses grew up all over the country only painters (who could sell thier individual works) became relatively well off. Right into the time of Walter Randolph Hearst newspapers could steal entire stories without fear of legal suit.

If you returned to the systems of old, including return to the requirement of registration you could again see a tyranny of publishers. This is a point I make repeatedly and which you seem not to appreciate in your posts.

And they lived in Europe before Europe had copyright laws either.

Yes but they got ripped off all the time.

Remember that the value of the work and the value of the bribe must be weighed. Merely having more works created isn’t valuable enough to be worth having copyrights. To get to the requisite levels of value, the works must also be as minimally protected as possible (that is, the most works for the least protection) in terms of length and scope.

For example, (and this is quite simplified) let’s arbitrarily say that with:
No copyright, 10 works will be created
1 year of copyright, 110 (10 + 100) works will be created
2 years of copyright 1110 (10 + 100 + 1000) works will be created
3 years of copyright 1210 (10 + 100 + 1000 + 100) works will be created
4 or more years of copyright 1220 (10 + 100 + 1000 + 100 + 10) works will be created.

We know that this roughly corresponds with the actual incentivizing power of copyright, as the incentive is the possible economic value. Of the small fraction of works with any economic value, they almost always have all of that value up front whenever they come out in a particular medium (e.g. movies make more at the box office on opening weekend than at the box office a month later, and sell more DVDs in their first week in stores than a month after that). It’s true that some works trail off more rapidly than others, but the trend is the same.

We also should bear in mind that even where a work is not immediately profitable, but takes a long time to become so, that it is also probably a poor investment and thus a disincentive to its author. This is because there are probably better alternatives that would have been profitable sooner. And since money now is worth more than the same amount of money in the future, the sooner a work is profitable, the more profitable it ends up being. This is to say, why spend $100 and not take a day job that would provide $100, to make a work that will not repay the $200 until 20 years have elapsed, when you could have just put the $200 into something else, which would yield $200 in 2 years, and $2000 by the time you get to the 20 year mark. This further lets us predict how artists — who are investing time and money — as well as their backers, if they need backers, will respond to particular amounts of copyright.

So given those numbers, the ideal copyright would be at 2 years. Yes, that means that 110 works that could be incentivized are not being, and thus won’t be created. But they are in the realm of diminishing returns. Better to have 2 year copyrights and get 1110 works than to increase the copyrights of everyone for an additional 2 years just to get a paltry 110 more.

Of course, if you have a system of required registration and frequent renewals, which is my suggestion for solving the orphan works problem, then you may be able to provide the extra 2 years for the 110 works that need it, without all or many of the other 1110 works getting time they don’t need (including the 10 works that didn’t need a copyright at all in order to be created).

In any case, this is because the value to the public isn’t simply the number of original works created, but the number of works created and much more besides, including how free we are to use, copy, etc. the works as we like. It’s just like how for two otherwise-identical pieces of land, the one with easements and covenants on it is worth less than the one that is not encumbered at all. There is significant value in having things which are unencumbered. So if adding a year of encumberance to everything yields 1000 more works, that seems like the public is getting a good deal. If adding a year yields 100 more works, then not so much. If it yields only 10 more works, then it seems to not be worth it at all. The extra works with the encumberances on them and the more easily incentivized works are simply not as valuable as fewer but less encumbered works.

For this reason, infinitely long copyrights will never be justifiable, because however many works are incentivized, it will likely be few (since it’s not worth much economically), and the cost to the public of the encumberance totally outweighs any gain from having the extra works. Finite but long copyrights face the same problem.

In fact, I am confident that copyrights can be remarkably short, compared to where they are now, without any significant decrease in incentive provided or the works that are created, and with much greater value to the public than the few works that won’t come along, because for the vast majority that would nonetheless be made, they are not encumbered nearly so much.

The fact you personally are prevented in some cases from repeating his speech verbatim does not mean the speech does not exist. You got what you wanted, you just don’t have rights to claim it as your own.

I don’t understand what you’re trying to say here. Could you rephrase it?

Well, on the whole, if I had to pick between free speech and copyrights, I’d take free speech. Fortunately, while there is certainly a tension there, they are reconcilable and can work together well. I fear that we’re getting into dangerous territory, see e.g. Reimerdes, and that we might want to adjust copyright for First Amendment reasons if this trend continues. However, my main reason for reform is simply that I think copyright can be implemented better. If we have too little copyright, it should be increased, and if too much, it should be decreased. I think we have too much right now, which is why my proposals usually center around decreasing it.

It was this paradox that caused the US to take so long in accepting copyright law in the first place (Re Dickens).

Well, let me remind you that the first federal copyright law was enacted in 1790, long before Dickens was even born. And that most of the colonies enacted their own copyright laws even earlier, when they became independent from England. The Statute of Anne never really meant much here, as far as I can tell, but then again, it was some time before the King even allowed presses to be established on this side of the pond anyway, and the market was not so big for a long while.

The issue with Dickens was not whether the US should have copyright; we did. The issue was that at the time we only granted copyrights to Americans. Of course, we would have been very happy if Mr. Dickens had become an American citizen.

In any event, that’s been long taken care of, and even I don’t suggest that we get rid of national treatment. Hell, my position is actually that the US should engage in unilateral national treatment, and allow anyone of any nationality to obtain a copyright here, regardless of whether or not their country reciprocates. This is because I think we ought to be promoting the progress of science in order to provide a benefit to Americans, and that the nationality of authors is really not relevant. Getting the work published in the US, or at least deposited, is important, however.

But there is always that lovely Oliver Wendell Holmes to remember:
a person has a right of free speech but they cannot use thier freedoms to shout “fire” in a crowded theater

Would it have killed you to directly quote accurately? “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.” Also I really hate that quote, since the case it is from, Schenck v. US is not only really awful on its own merits (Schenck was convicted for distributing leaflets that condemned the WWI draft and which called for peaceful petitions to end it — the conviction was upheld), but it is also not really good law. Holmes backed down in later cases, and cases such as Brandenburg v. Ohio supplanted it. Also, as already noted, Schenck was in 1919 and the US has had copyright since 1790.

In any event, I have not said that copyright is inherently unconstitutional on free speech grounds. I merely said that it is in opposition to free speech, and that it is essentially paid for through a lessening of free speech. My concern is whether we are getting a good deal, when we pay for copyright in this manner.

the resource is essentially the creative fibre of artists

If artists could create copyrights on their own, there would be no need for the government to grant them. Your assertion is wrong, for reasons I’ve already pointed out.

we do not allow for the ownership of citizens in any other way so be it with copyrights

Now you’re bordering on dangerous territory. As always, I am adamantly opposed to the idea that anyone could ever force artists to create works. However, copyright is not about that. Copyright is about how we bribe artists into willingly creating works, and about the disposition of those works once they have been created.

I see these scenarios:
1) If an artist does not want to create a work, that’s fine with me.
2) If an artist creates a work without needing a bribe (i.e. without needing a copyright), then I see no need to give him a bribe to do something he’s done of his own free will.
3) If an artist has to be bribed into creating a work, I will gladly give him a bribe, provided that the work (and what I can do with it) is more valuable to me than whatever I’m bribing him with. If the bribe isn’t enough for the artist, then presumably he won’t create the work, and as I have said, I am fine with that.

In no event would I force the artist to create, but I am also not suggesting that the public — or artists — act contrary to self-interest.

Criticise it if you will but always remember that the artists and novelists lived in Europe until copyright laws landed on your sovereign shores.

And they lived in Europe before Europe had copyright laws either. In fact, England had them first, and France, Germany, and as far as I know, the rest of Europe, only had them after the US did (excepting Denmark, which got in after England but before the US existed). I suspect that Europe had more authors et al for other reasons than copyright. Economics, technology, and available lesuire time probably all played significant roles. Don’t forget that things do happen in the creative world for reasons other than copyright.

some of their rights (free speech and press) with respect to particular works

I always forget that I am talking to Americans. It must be noted that in the rest of there is no right of freedom of speech and all works are therefore “up for grabs” as it were.

The paradox between freedom of speech and copyright is essentially an American problem. It was this paradox that caused the US to take so long in accepting copyright law in the first place (Re Dickens).

But there is always that lovely Oliver Wendell Holmes to remember:

a person has a right of free speech but they cannot use thier freedoms to shout “fire” in a crowded theater

The consequence was an acceptance of limitations on free speech including congressional acceptance of copyright laws.

The point is that the resource is essentially the creative fibre of artists. It is not a resource that government or the public can own – for we do not allow for the ownership of citizens in any other way so be it with copyrights. Rather it is one induced into a public spectacle by incentives such as copyright.

Criticise it if you will but always remember that the artists and novelists lived in Europe until copyright laws landed on your sovereign shores.

When an author is granted a copyright, the public is essentially giving up, temporarily, some of their rights (free speech and press) with respect to particular works. Remember, a copyright is a negative right, in that it is not a right to do anything, but is a right to exclude others from doing something (hence the term ‘exclusive rights’) that those others must have already had a right to do. This is further evidenced by the mechanics of copyright expiration. It’s not so much a public resource as the resources of every member of the public, but I don’t think that that lessens the point I was making.