“Fair use” is a doctrine of copyright law (with counterparts in patent and trademark law as well) that allows a degree of unauthorized copying of copyrighted works. Shocking! Squatters’ rights! Can a teenager take my car for a joy ride and when he’s caught plead “fair use”–that I wasn’t using my car and didn’t miss it for a second! But there’s a big difference between physical and intellectual property. Only one person at a time can use my car, so, in general if not in every instance, someone who takes it interferes with my use of it. But if someone copies my copyrighted book, that doesn’t interfere with anyone else’s use of the book, or prevent my publisher from continuing to sell copies, though it may reduce his and my income. That’s why “theft” of intellectual property, and such synonyms as “piracy,” are merely analogies, and often misleading ones. It’s hard to see how I could benefit from someone taking a joyride in my car without my permission, but easy to see how I could benefit if a reviewer of one of my books quoted a paragraph of the book in his review without having to get my permission (which would undermine the credibility of the review).
Bill Patry, a distinguished copyright lawyer and treatise writer, and I have written an article soon to be published in the California Law Review in which we advocate an interpretation of “fair use” that would solve the major problem that extending the copyright term creates. We argue that it should be considered fair use to copy an old work if the copyright owner hasn’t taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry. Given such a rule, such registries (which have counterparts in the case of works of visual art) would spring up overnight. Then if an Eldred wanted to publish some old work, he would consult the registry or registries and if no owner was listed (which would usually be the case, because most old works have no commercial value and so their owners won’t bother to try to keep them from falling into the public domain), he could publish it without a license.
It’s a nice answer to the problem of search costs created by assigning ownership in intangibles. As you’ve nicely pointed out, assigning copyright ownership can avoid the inefficiencies of rent-seeking behavior; but those can be small compared with the costs of figuring out who owns what, much less negotiating with them for a license. An internet-accessible registry would avoid many of the search costs associated with avoiding infringement.
But who would maintain the registries? I’m unfamiliar with the registries for visual art that you mention. Are those privately run?
Judge Posner,
Can you talk some more about the legal precedent of fair use?
How simple is it to reinterprate the doctrine of fair use? Where does the concept of fair use have its origins? I’ve been told that it is discussed in U.S. Copyright Act, 17 USC 107 and comes up in Sony vs. Universal, but where else does it show up and where did it get its start?
Also, what other countries employ a doctrine of fair use?
Thank you very much for your posts!
It has always seemed to me, that given the Art. 1 Sec. 8 power to create copyright in favor of promoting the progress of “Science and useful Arts,” and the inherent time limitation in that clause, that to the degree that copyright stalls the progress of science and the arts is the degree to which it becomes unconstitutional. And, at least historically, I’ve always been told the root of that idea was to avoid the old “letters of patent” system whereby one producer of the material could gain a monopoly on scathes of public works he had no creative interest in.
To me, that means a system would be required by our founders whereby no artist loses direct control without compensation over his work, but also whereby no advance in the arts or sciences would be stalled. And it seems to me that even by allowing, as you suggest, the copyright owner to make his own determination of what point at which he should stop defending his copyright, it still allows a system to remain in place whereby attempts to improve upon or complement a work still under copyright are stalled, and as such possible advancements in art or science are lost.
Given that the stated constitutional interest to be protected is the advancement of those fields, and only the mechanism results in copyright, doesn’t this mean we need to value access to copyrighted works even more strenuously when the attempt is anything other than mere piracy? And shouldn’t the exception to a claim of infringement be not a public domain or fair use allowance, but a showing simply of an advancement in arts or sciences otherwise lost? Granted, the standard would be hell. But we strictly armchair legal theorists have the luxury, I’m pretty sure…
How would you notify copyright owners of this requirement? Would this be retroactive or only for newly created works?
Any chance of a compare and contrast between your approach and that of the proposed Public Domain Enhancement Act?
I’m not sure that this solves the problem of copyright term extensions as I see them. The idea is that all works should eventually fall into the public domain. Whilst having unprofitable works falling into the public domain quickly is a good idea I feel that this idea would allow popular works such as Milton, Keats etc stay in private ownership forever; this clearly makes the world a poorer place and is against the spirit of the constitution.
The other worry I have is with the concept of ownership, I have no problem with creators re-registering for their lifetime as this provides an incentive to create, likewise dependents should have some limited right of control such that the creator may provide for partners and children on their unfortunate death. However the current term extensions benifit only corporations and distant relatives, neither of these benifactors seem to meet the requirements for promoting the progress of the arts and sciences.
To Andrew Leifer:
Although you addressed your questions to Judge Posner,
I hope that you don’t mind that I provide this link
to good background on fair use:
http://en.wikipedia.org/wiki/Fair_use
Joseph Pietro Riolo
<[email protected]>
Public domain notice: I put all of my expressions
in this comment in the public domain.
A registry would have the same problem as the old renewal copyright system. There is always going to be people who screw up and don’t sign up when they should. Even movie companies used to sometimes forgot to renew the copyright. It was a big administrative hassle.
Copyright extension is a bad idea. It is a joke to say that the present value of an extra twenty years of copyright seventy years in the future is a significant incentive for creators. Making the copyright extension retroactive is just a givaway to Disney.
I say if you are going to giveaway to Disney, giveaway to Disney. Pass an animated film act, indefinitely extending copyrights in animated films as long as an expensive and escalating annual fee is paid. Otherwise, Disney is just going to mess up the copyright system again in 15 years.
The issue is less propertization than bowdlerisation. Letting Disney maintain a right to the images of animated characters will insure that derivitive works using the animated characters remain child appropriate.
Judge Posner,
I look forward to reading the piece you wrote with Bill Patry. To avoid Berne and TRIPS violations, it would seem such a scheme would have to be limited to United States works, or to works which have already received the Berne-mandated life-plus-fifty term.
Is your proposal so limited, or have you devised a Berne workaround?
Michael
Two weeks ago, Scott Mathews put forward the idea of a DRUMS database (Digital Rights Uniform Metadata Service) It would be similar to the DNS database that relates Internet names (like http://www.lessig.org) to their assigned IP numbers in addition to holding information about the IP number responsible. No one has a registry of all IP addresses, rather the top DNS databases only KNOW who is responsible for certain range of names.
For those not technically oriented, it works like this: If you are looking for http://www.lessig.org/blog, and your ISP does not know where it is, it will ask the DNS above it where such a website is. Assuming no one know, the search can propagate all the way to the top DNS machines, called root machines. The root DNS machines will bring back the IP address of the machine that is responsible for all .org domain names. Your ISP will query that machine and it will give you the address of lessig.org. Your machine then will query lessig.org and ask for the content of the /blog subdirectory.
If it sounds too complicated (and believe me, it is not), consider another case: the telephone network. No phone provider has a full directory of ALL USA and Worldwide phone numbers. It would be wasteful and hard to maintain. So if you want to call (305) 555-5555, this is what really happens. First you dial for a long distance carrier and input the number. Upon hearing 305, the long distance carrrier will connect you to their exchange in Florida. He does not even look at the other numbers. The exchange in Florida then looks up who is responsible for the 555-XXXX numbers and forwards the call to that exchange. finally, the 555 exchange looks up what is the wire-pair to the 5555 home and will connect the phone call to that home.
A DRUMS database would work in a similar way. No one has to keep a record of ALL Digital or creative works. Each publisher has to keep his own records including permissions and such. The Library of Congress may backup that information but that would not be necessary for the system to work. Anyone looking for the information would eventually end up at the publisher’s database. Now here is where the law would come into play. Absent a registry in that database, a work will default to the Founders Copyright: 14 years + a one time 14 year renewal, then lose your copyright. That would be a mighty incentive for publishers to keep their database upto date. We could make falsifying information in the database a criminal offense (things like adding five years to the original publication date in order to maintain an otherwise expired copyright).
But how long will it be before services spring up to “remember” when your copyright renewal is up and automatically re-register? Every major publisher (text, movie, music, etc) will come up with a system to automatically re-register everything that they hold copyright on. If we try to offset that with a fee (perhaps an increasing fee as was mentioned), then we get into the problem of only allowing large corporations to hold copyrights, as the “little guy” won’t be able to pony up the cash.
I see this as being very useful to clear out all of those bits of IP that are currently falling into oblivion because they are not being republished and are also not entering the public domain. But I don’t think it is a long-term solution.
Perhaps such a system should be double-ended. An owner could register their continuing economic interest in the works covered by the copyrights they own; but a user could also propose to use an abandoned work, thereby putting the owner(s) on notice in advance. If the owner(s) don’t come forward within a set time limit… off you go.
However, I’d be worried that either my system, or the Patry-Posner one, would reduce the imperative to defend, protect, and ultimately extend the public domain, and that it would in fact be used as a counter-argument FOR further copyright term extensions. The authorities here in Canada have already hinted at that… “Don’t worry about term extension, it’s SOOOooooo easy to get a collective license to use a work with an unlocatable copyright owner…”
Fair use and an unlocatable copyright owner scheme are, in the end, no substitute for the public domain. They are at best a bridging mechanism. Be very careful what you wish for; you might just get it.
There is always going to be people who screw up and don�t sign up when they should. Even movie companies used to sometimes forgot to renew the copyright. It was a big administrative hassle.
There’s an expression for that. “Tough shit”.
If you invent the cure for cancer, and can’t or won’t commercialize it in the prescribed term… tough shit.
If you write a doggerel poem about curing cancer, you own the rights to that poem, without any formalities, for a much longer term than your patent in your cancer cure.
If a movie is worth annual economic rent of tens of thousands, let alone millions, it’s worth someone’s while to fill out a form and put a stamp on it. You have to do that with other kinds of property, worth much less than a Hollywood blockbuster.
The issue is less propertization than bowdlerisation. Letting Disney maintain a right to the images of animated characters will insure that derivitive works using the animated characters remain child appropriate.
The copyright regime should not and must not care.
Copyright owners say their rights are content-neutral. That is, they want equal protection for a Disney film, a doggerel about curing cancer, a recipe on the back of an envelope, or a dirty limerick about young men from Nantucket.
Thus, copyright term must be determined content-neutrally. The fact that a work that is about to fall out of copyright might be defamatory, blasphemous, offensive, or made thus by follow-on creators, is no business of the copyright policy makers.
Indeed, if anything, copyright has been used more to ensure that the author’s original raunchy, smutty intent is kept in the work, than to make sure third-party smuttiness is kept out. See Perrin, Dr Bowdler’s Legacy. A great read!
I have an idea, it’s called “copyright nullification”. It works like this:
1) Intellectuals and politicians sit around and ponder complex new systems of copyright verification and enforcement.
2) The consuming public loots the media companies four ways from sunday.
3) Media companies either give-up or collapse and go into receivership.
4) The consuming public has nullified the copyrights.
If this were real property it would be called adverse possesion.
> If you write a doggerel poem about curing cancer, you
> own the rights to that poem, without any formalities,
>for a much longer term than your patent in your
>cancer cure.
The formalities were removed to simplify the copyright system. Copyright renewal was one of the formalities. A registry is just another formality.
>copyright term must be determined content-neutrally.
The ideal content-neutral solution is to have no copyright extensions. There is no good economic argument for copyright extensions.
Disney’s ability to get copyright extensions comes from a fear of an “Air Pirates” situation. Parents do have expectations of source associated with Animated characters. This expectation isn’t content-neutral and it won’t go away in 15 years. By narrowly tailoring a benefit for Disney, we can avoid any additional copyright extensions and maybe even rollback the current copyright extension.
Parental Fears
Trademarks do last forever, as long as they are in use and enforced. Parents wishing for authentic Disney animations can and should look for Disney’s logo. Copyright has pretty much nothing to do with it.
A registry would have the same problem as the old renewal copyright system. There is always going to be people who screw up and don�t sign up when they should. Even movie companies used to sometimes forgot to renew the copyright. It was a big administrative hassle.
Until now, I never realized that our copyright laws were constructed to prevent copyright owners from making a mistake which might result in their loss of rights. Rights, which when lost, are merely returned to the public domain. And somehow I doubt those few mistakes had any impact on the existing copyright system’s value as an incentive to create.
I have a couple of questions on copyright that I’ve been unable to find an answer to.
First of all, is the extention of the term of copyright after the death of the creator. Why is the creation of works of art singled out as the only field in which the rights of an individual continue to exist after the death of that individual? The skills of a lawyer do not continue to benefit any heirs, yet the skills of an author do. Why? What is the difference between the two skills that justifies the different treatment?
Secondly, why are corporations permitted to hold a copyright? A corporation is at its heart, a legal fiction. Corporations are merely a vehicle that individuals can use to pool resources and thereby do things that are beyond the resources of any one person. Being a fiction, a corporation is incapable of any thought whatsoever, let alone creative thought. Individuals working for a corporation may indeed be very creative, and the resources available to the corporation may be required for creative purposes, but in the end, it’s still the individual that does the creating, not the corporation.
Judge Posner:
I look forward to reading your article when it appears. You refer to your proposal as an “interpretation” of fair use. I take it that by that you mean a judicial interpretation. But how could a court adopt such an interpretation, given Congress’s clear intent in 1976 and 1988 to remove precisely such formalities from the Act? Your proposal would appear to resurrect the registration requirement that Congress eliminated in 1976. Are you proposing that Congress adopt an amendment to the Act?
The formalities were removed to simplify the copyright system. Copyright renewal was one of the formalities. A registry is just another formality.
I used to be anti-formality. Now, I’m convinced that, at very least for copyright to subsist in the ultraBerne timespan, a minimal formality is required.
You have to register a $500 car, a $5000 ATV, your holiday property in Maine… I don’t see any reason why, if it’s valuable to you, you shouldn’t have to jump through a minimal hoop — fill out a form, put a stamp on it — to secure your title to your blockbuster film or your great Zambian novel.
The ideal content-neutral solution is to have no copyright extensions. There is no good economic argument for copyright extensions.
No argument from me, here…
By narrowly tailoring a benefit for Disney, we can avoid any additional copyright extensions and maybe even rollback the current copyright extension.
Why the hell should we tailor a benefit for Disney?
If for Disney, why not for Mary Bono and Barrie and Margaret Atwood?
Why is the creation of works of art singled out as the only field in which the rights of an individual continue to exist after the death of that individual?
That’s just it. They don’t, any more than your driving priveleges do.
Those rights of the individual become someone else’s rights through testament, or through — ugh — intestate succession. (This is the nightmare scenario for historians, and it’s also, in my experience, the DEFAULT scenario.) They aren’t that much different from the Author’s rights to his bank account or his land on Maui, except that the law would quieten any claims to those types of property a hell of a lot earlier than 70 years post mortem.
The economic interest in the work goes through three stages. First, it’s owned by the author. Then, it’s owned by whoever accedes to those rights through assignment or succession. Like, when you die. Finally, it, at least in most countries, loses its exclusivity. Thes three stages are bounded as follows; viz,–
===== (WORK IS CREATED) =====
AUTHOR HAS RIGHTS unless Author assigns them away
===== (DEATH OF AUTHOR) =====
NON-AUTHOR OWNER OF CR HAS RIGHTS
===== (COPYRIGHT EXPIRES) =====
EVERYONE, INCLUDING INCUMBENT OWNER, HAS RIGHTS
===== (HEAT DEATH OF THE UNIVERSE) =====
Two important points: The owner of those rights at the expiration of copyright only loses the EXCLUSIVITY of those rights. Not the rights. This is a particularly important point when, as recently happened here (Canada) heirs to copyrights in unpublished AND CONTROLLED ACCESS papers wanted a copyright term extension, ostensibly to protect sensitivities and avoid defamation liabilities. It was a pure cash grab, of course; first off, the material, being controlled-access, was still under their economic control (Mr Thirdparty couldn’t publish it even if he wanted to, without physical access); and second, even if the material HAD been open-access, the law of copyright doesn’t prevent a third party from disclosing, in their own words, or even, within limits, the author’s words, the facts and events narrated in that work, even if embarassing or potentially defamtory. (And defamation wouldn’t succeed against the heirs, anyway, as long as they are a stranger to the creation of the work and its publication, which they are.)
Second, copyright term extensions NEVER affect the author’s economic rights. The author’s death is the triggering event for copyright to start running down. The author is already dead, very dead, really really really dead, an ex-author, defunct, when the soon-to-expire term, well, is soon to expire. Try to outlive your copyrights. I dare you. You big wuss, cm’on, outlive ’em. Just by a few minutes.
See. Can’t be done.
Copyright term extension battles are as between NON-AUTHORS and the public. Always.(*)
(*Well, almost always. There are a few outlier cases…)
Titus.
Your argument is a non-argument. You said
“then we get into the problem of only allowing large corporations to hold copyrights, as the �little guy� won�t be able to pony up the cash”
How much is your copyright worth to you? If that copyright is making you more money than the renewal fee, then it is a good business decision to renew the copyright. The renewal fee is nothing but the cost of doing business. But if the renewal fee is more expensive than the money you get from your copyright then why hold on to it? It is better for society that you let it revert to the public domain. No company can survive for long by holding to useless copyrights on the speculation that someday they will cash out on them. That is like holding to a warehouse of hippie T-shirts hoping that the 60’s come back.
Here we go again. WJM, you’re once again ignoring the fact that the longer a copyright term, the higher the present value an author can sell their copyright for now, while still living. There’s no need to outlive a copyright to reap the added benefit from it. If you sell a bond that matures in 10 years, but you only expect to live 2, I’m pretty sure you’ll ask for the price of a 10-year bond rather than a 2-year bond (with the same principal), even though the bond will outlive you by 8 years.
It�s hard to see how I could benefit from someone taking a joyride in my car without my permission, but easy to see how I could benefit if a reviewer of one of my books quoted a paragraph of the book in his review without having to get my permission (which would undermine the credibility of the review).
c’mon judge posner. the exact same (lame) arguments that file “sharers” use apply here:
the joyrider might be impressed by your car and want to buy it from you.
you benefit.
the joyrider might be impressed by the car and buy one from the manufacturer.
the manufacturer benefits.
other people might see the joyrider (who is a very hip cat) driving your car and buy one for themselves.
the manufacturer benefits and you might even benefit from being associated with the joyrider.
of course, you (like the RIAA) may fail to see these wonderful benefits, call the police, and press charges against the joyrider.
your comments about copyright infringement not equatling with theft are also a bit troubling.
That�s why �theft� of intellectual property, and such synonyms as �piracy,� are merely analogies, and often misleading ones.
copyright confers to its owner the right to some substantial control over how a creative work is copied. in effect a copyright owner owns ALL the copies of his work regardless of who made the copy. (fair use forces the owner under certain circumstances to in effect extend an automatic license, but it does not remove the material from copyright protection.)
when you take a copy for personal use, you permanently take from the copyright owner one of his copies without permission. he is permanently deprived of his property.
this is theft under any definition – not a tenous analogy.
what makes copyright infringement more problematic than plain old theft is that the owner is not required to surrender her original. if we “share” a book with you, we are deprived use of the book while you have it. we can neither share it with anyone else while you have it so the sharing is quickly exhausted.
but if we “share” an MP3 file with you, we both have a copy. we can also share the same file with hundreds of people – even with people we have never met, and do not know and we never have to surrender our copy!
this is not sharing, this is copying and the copy you make is owned by the copyright owner. assuming you do not have his permission to have the copy, you have deprived him of his property without his permission, and this makes you a thief.
it does not help the enforcement of copyright law to softpedal copyright infringement as something other than theft.
in our humble opinion.
To Three Blind Mice,
Once again, you continue (as in the past) to ignore
the differences between the tangible and intangible
things. You have used the title “Three Blind Mice”
as your identification without permission from the
original author. Does that make you a thief?
According to your definition, it is. And, it is
hypocrite of you to tell us that we should agree
with your definition of thief while you are
yourself a thief.
The differences between the tangible and intangible
things call for different words to describe the
illegal activities. Lumping all illegal activities
under one word “thief” only clouds your judgment
as it is happening to you. Why don’t you use the
word “infringer”? It is in our dictionary and it
is there for a reason – to distinguish it from
thief.
Joseph Pietro Riolo
<[email protected]>
Public domain notice: I put all of my expressions
in this comment in the public domain.
From three blind mice:
in effect a copyright owner owns ALL the copies of his work regardless of who made the copy.
It is this exaggeration that leads you to equate copyright infringement with theft. It is an exaggeration because the copyright owner has very little, if any, property interest in a copy of his work legally in someone else’s hands. If I own a book, I can transport it wherever I want, I can destroy it, I can sell it to someone else, I can proclaim it as my own and publicly mutilate or alter it, whether it is in the copyright holder’s interest that I do so or not.
The copyright holder’s rights can be interpreted as a small sliver or “bundle” of property rights, in that, although I may own a book, I’m not allowed to make a copy of it without permission.
(In principle, if I own a piece of tangible property, I can duplicate it without permission from the previous owner. Think about what this means, though, and since we don’t live in Star Trek, one can question whether this has meaning as a property right.)
Another interpretation, and the one that the language of the law is written in, is that copyright is not a property right at all, but a monopoly on actions. The copyright holder has no property interest in my copy of the book, but no one except the copyright holder is allowed to make (or distribute) further copies of the book without permission.
Any landowner knows that owning tangible property does not mean you can do anything you want with it. Similarly, copyright is an assertion that making copies of a work is not one of the privileges of ownership.
In any case, the copyright holder doesn’t own a copy I make, legally or illegally. He certainly doesn’t own every copy of his work. When I buy a book, I own it, and I can do anything with it that I can do with my hammer. (Admittedly, it wouldn’t be much fun to drive nails into wood with a book, but I’ll do it if it convinces you that infringement isn’t stealing.)
WJM, you�re once again ignoring the fact that the longer a copyright term, the higher the present value an author can sell their copyright for now, while still living.
I’m not ignoring that fact, because it isn’t a frigging fact. It’s at best a hypothesis.
I am still waiting for you, OR FOR ANYONE, to demonstrate that authors have been able to sell their copyrights for more, since term extension; or that they are able to sell them for more in long-term countries than in Berne-term countries; AND that these differences, if quantifiable, can be unambiguously attributed to the differences or changes in national copyright law.
Until this evidence is brought forward, THERE IS NO FACT TO IGNORE.
There�s no need to outlive a copyright to reap the added benefit from it.
There IS a need to actually accrues additional value, attributable to the additional term of copyright provided for by a term extension, in order for the author to reap the benefit.
IS THIS ACTUALLY HAPPENING?
Do you have any FACTS? Any FIGURES? that tend towards this conclusion?
Of course, you don’t.
If your hypothesis is correct, then authors in Mexico and Nigeria should be much better off than those in Canada or Japan. Are they?
If your hypothesis is correct, then perpetual copyright should tend towards authors making an infinite amount of income, right? Why or why not?
If you sell a bond that matures in 10 years, but you only expect to live 2, I�m pretty sure you�ll ask for the price of a 10-year bond rather than a 2-year bond (with the same principal), even though the bond will outlive you by 8 years.
That MIGHT be a useful analogy, IF bonds, completely at random, lost 70 percent of their value after year one, and 5 percent annually thereafter, while only two percent, again at random, actually held their present value at the end of term.
That’s, roughly, what happens to PUBLISHED works. Let alone unpublished and ephemeral ones, all of which are protected equally by copyright.
So, when are you going to provide us with some FACTS to back up your dogma? Of course, you don’t need to… dogmatics never do.
Joseph Pietro Riolo,
Thanks for the link. Its very comprehensive.
in effect a copyright owner owns ALL the copies of his work regardless of who made the copy.
It is this exaggeration that leads you to equate copyright infringement with theft. It is an exaggeration because the copyright owner has very little, if any, property interest in a copy of his work legally in someone else�s hands. If I own a book, I can transport it wherever I want, I can destroy it, I can sell it to someone else, I can proclaim it as my own and publicly mutilate or alter it, whether it is in the copyright holder�s interest that I do so or not.
bob wieman, for the copies we sell – that is for example the expression of our creative content printed on paper, recorded on computer media – we have exhausted every right – except for a limited right to control subsequent copies made therefrom.
you can sell your book, burn it, lend it to a friend, or buy it and not read it. what you cannot do is create a copy (outside equitable fair use) and call it your own. our position is that the copyright owner no longer owns the book you legally bought, but retains limited rights to the copies you might make from it.
this hardly seemes like an exaggeration.
what seems to us like an exaggeration is the continual insistence by learned people such as judge posner that taking something of value from someone without their permission is anything short of robbery and that those who engage in such activites on an industrial scale are anything less than pirates, or that making such an analogy is misleading!
we ask who is misleading whom?
To Three Blind Mice,
With you three being blind to the subtle differences
between tangible and intangible things, the answer
is obvious: You are the ones who try to mislead us
in believing that making a copy from a copyrighted
work without permission from its copyright owner is
equivalent to thief, robbery, pirate or whatever
term you like to use.
Perhaps, you should let some of us who have deep insights
guide you to the correct understanding.
Joseph Pietro Riolo
<[email protected]>
Public domain notice: I put all of my expressions
in this comment in the public domain.
So, when are you going to provide us with some FACTS to back up your dogma? Of course, you don�t need to� dogmatics never do.
Woof. I’m not the only one without footnotes here. Since you’re the one arguing that copyrights differ from every other investment known to humanity, in that they magically stop producing revenue when the initial investor dies, I rather think the onus is on you to produce some evidence of this somewhat amazing hypothesis. Until you do, I remain unconvinced, as should everyone else.
With you three being blind to the subtle differences
between tangible and intangible things, the answer
is obvious: You are the ones who try to mislead us
in believing that making a copy from a copyrighted
work without permission from its copyright owner is
equivalent to thief, robbery, pirate or whatever
term you like to use.
thus Joseph Pietro Riolo
let’s see if we can make this simple enough so that even george bush would understand it.
emma is an author. she writes children books. she publishes her books on CD-ROMs and sells them through a local store owned by a friend. the money emma earns supports her family. (let’s say she’s a single mom to make her a sympathetic character.)
her friend provides shelf space, operates the cash register, and keeps 10% of the sales price of every CD-ROM that’s sold.
joseph pietro riolo (no relation to the other joseph pietro riolo) comes in one day and buys a CD-ROM, pays 20 evros cash (plus VAT), and takes it home. emma pockets 18 evros and her friend 2.
his daughter loves it.
since he is worried that it might get scratched, he decides to make a copy for himself.
his son wants to read the book too, but the daughter says no way. fights, screaming, finally, joseph relents and gives his son the back-up copy to watch so his daughter does not have to surrender her copy. the son is perfectly satisfied since he has an EXACT copy that he can read at the same time as his sister.
joseph tells his friend mary about the book and offers to lend her a copy of his. so he goes home, makes another copy and gives it to mary.
mary’s daughter loves it. her daughter is perfectly satisfied since she has an EXACT copy of what she would have to pay 20 evros (plus VAT) – for free.
mary’s son wants to read the book too.
et cetera
in the print world, for each kid who received their own copy of emma’s book, emma would have received 18 evro that she would have used to buy medicine for her sick child. (oh, we forgot to mention that emma’s child is very ill. poor emma.)
but because emma was foolish enough to use digital media to pubish her work – and subjected herself to joseph pietro riolo’s perverted concept of fair use – emma receives nothing after the initial sale.
not theft joseph? tell it to the sick child.
To Three Blind Mice,
You used the fallacy called “argumentum ad misericordiam”
(also known as “appeal to pity”) to get people to agree
to your position on the meaning of theft. I would do
the same to show how authors and artists are thieves
by forcing people to pay higher price than reasonable
price but I am not going to do that.
Does it ever occur to you that by your definition,
99% or more of the U.S. population are already thieves
and are put in same category as real thieves? That’s
absurd, isn’t it?
Does it ever occur to you that you are also a thief?
I mean, you infringed authors’ and artists’ rights
once in a while during your lifetime. Nobody on
earth never infringes authors’ and artists’ rights.
You should know that I don’t like people doing
infringement habitually or regularly but unlike you,
I could not put them in same category as the bank
robbers or any kind of thief.
About your story, it is interesting to note that you
left out one possible scenario. What if that Joseph Pietro
Riolo never makes any copy? What if he tells his son
to wait for his daughter to finish reading the book?
What if he lends the original CD-ROM to Mary for her
daughter? In that scenario, Emma still does not get
any additional money. Are you going to tell the
sick child that those who share original copies without
buying additional copies from Emma are also thieves?
Joseph Pietro Riolo
<[email protected]>
Public domain notice: I put all of my expressions
in this comment in the public domain.
A Rolo, you’re always a whole role of smiles, whether you intend to be or not.
Woof. I�m not the only one without footnotes here. Since you�re the one arguing that copyrights differ from every other investment known to humanity, in that they magically stop producing revenue when the initial investor dies
Huh?
Where the hell have I said this? Do you have reading comprehension problems?
All I have said is that the VAST MAJORITY of works cease to be of economic value not only well within the term of copyright, but even well within the life of the author, IF THEY EVER HAD ECONOMIC VALUE AT ALL. Which most “works”, within the meaning of the Copyright Act, dont’.
Yes, SOME works still have economic value to the owner of copyright — IF THERE IS ONE — on the day that the copyright expires. However, this is the case in an absolutely negligible number of works, and a minute proportion of works.
So, works don’t “magically stop producing revenue when the initial investor dies”. Why not? Because most never produced revenue in the first place, and most of those that did, didn’t do so for very long and have long since stopped doing so.
Let me ask: Does your evidence on copyright term, and its impact on revenues, show that a work that is worthless 50 years after publication, or 50 years after the death of the author, is now worth, I dunno, $20 because of term extension?
“y+n > y”, right?
I rather think the onus is on you to produce some evidence of this somewhat amazing hypothesis. Until you do, I remain unconvinced, as should everyone else.
I don’t have to prove an “amazing hypothesis” that I don’t hold. You are either an idiot, or you are being disengenuous, in presenting my argument this way.
Here’s some pretty compelling evidence, from the preliminary results of my research:
How many 50 year old books are in print today?
The only thing that is changing as I add data is that the curve on the lower part of the graph, say, from 1957 to today, is smoothing out somewhat.
Further to this, and this graph doesn’t show it, the majority of books, first published in Canada in 1954, that have been in print since 1990, have not in print by mere motion of the copyright owner… they have been in print because either the CNIB (Canadian National Institute for the Blind), some other similar organization, or a research library, have created new versions (talking books, braille, microform) for the use of the disabled or researchers, making use of exemptions to infringment in the existing Copyright Act.
That is, the percentage of works, fifty years after PUBLICATION — let alone the death of the author — that are still in print because the author or copyright owner are still making economic use of them, is absolutely minute.
How can term extension change that? (Hint: it can’t, and doesn’t.)
AND, the data for this graph is somewhat deliberatly skewed: I only included works with personal authors; “works” like government publications, anonymous ephemeral publications, corporate reports, etc., which have even shorter shelf-lives, are excluded. A comparable graph for ALL works comprehended by the Copyright Act would be even more dismal.
So, I ask for the umpteenth time: Where is your evidence that a longer copyright term results in more revenue to the author while he’s living?
joseph pietro riolo.
if we are guilty “argumentum ad misericordiam” it is only to balance the “argumentum ad RIAA” where an evil corporation becomes the object of derision instead of the artists and individuals they represent.
What if that Joseph Pietro Riolo never makes any copy? What if he tells his son to wait for his daughter to finish reading the book? What if he lends the original CD-ROM to Mary for her daughter?
then joseph pietro riolo is acting as a responsible citizen of the world.
In that scenario, Emma still does not get any additional money. Are you going to tell the sick child that those who share original copies without buying additional copies from Emma are also thieves?
emma has no right to the original copy once you buy it. you own it. you can share it, burn it, trade it, give it to a library and emma never gets anything other than the original purchase price.
you see, you are speaking about a single copy for which emma has been paid. you cannot share it without surrendering it. if each child wants their own copy, you cannot satisfy this need without buying more – or making your own copies illegally.
and this, joseph, is the key difference between tangible and intangible property.
what you bought from emma was not her story, but a printed book containing the story. you don’t own the story, you own the book. similarly, people who buy CDs do not own the songs on the CD, they own the CD. this is the difference.
you did not buy from emma right to produce and distribute multiple copies of her story as you apparently claim.
our position is that once you start making your own books and giving these away, you are stealing from emma.
taking something of value without the permission of the owner is theft.
it is misleading and dishonest to portray copyright infringement as anything other than stealing as judge posner, professor lessig, and many other people in this forum continue to do.
To Three Blind Mice:
You have turned the word “theft” into an amoeba
word that no one is able to escape from the reach
of amoeba. By your definition, every one including
yourselves is guilty of theft.
But, don’t worry at all. Some dictionaries are
on your side. So is Department of Justice (see
the recent press release at:
http://www.usdoj.gov/opa/pr/2004/August/04_ag_578.htm).
Your goal is to vilify the infringers with the
emotion-laden words such as theft, stealing, and
so on. This is why you are even more dishonest
and misleading than Judge Posner, Professor Lessig,
and others who refuse to lump infringers and real
thieves under one amoeba word called “theft”.
You missed the point in my alternate scenario.
By lending a copy to Mary, that other Joseph Pietro
Riolo actually deprives Emma of the potential market
value of one person. Every time the original copy
is passed from one person to other person, Emma
loses market value of one person. When the original
copy is passed to the 1,000th person, Emma loses
the market value of 1,000 people.
Tell that to the sick child in your story.
To see how big your amoeba is, allow me to ask
questions:
If I make a parody of Emma’s story and sells parody
to the public and it becomes more popular than Emma’s
story, am I a thief?
If I read Emma’s story and collect some basic ideas
from the story and build a different story based on
the basic ideas and sell my story to the public and
it becomes more popular than Emma, am I a thief?
When the copyright in Emma’s story expires and I sell
copies of the story to the public and keep all money
from the sale for myself without giving money to the
sick child, am I a thief?
Allow me to quote from the U.S. copyright law:
[Start of quotation]
Section 121. Limitations on exclusive rights:
reproduction for blind or other people with
disabilities
(a) Notwithstanding the provisions of
sections 106 and 710, it is not an
infringement of copyright for an authorized
entity to reproduce or to distribute copies
or phonorecords of a previously published,
nondramatic literary work if such copies or
phonorecords are reproduced or distributed
in specialized formats exclusively for use
by blind or other persons with disabilities.
[End of quotation]
Are these blind people and people with disabilities
thieves? Just imagine that Emma and her sick child
will never get a penny from these legalized theft.
Joseph Pietro Riolo
<[email protected]>
Public domain notice: I put all of my expressions
in this comment in the public domain.
Ah, insults, the last refuge of a scoundrel. Let’s review the bidding:
WJM: “Second, copyright term extensions NEVER affect the author�s economic rights. The author�s death is the triggering event for copyright to start running down. The author is already dead, very dead, really really really dead, an ex-author, defunct, when the soon-to-expire term, well, is soon to expire. Try to outlive your copyrights. I dare you. You big wuss, cm�on, outlive �em. Just by a few minutes.
“See. Can�t be done.“
WJM, unless you have an odd relationship with the English language, this is an argument, which you’ve made before, that extended copyrights cannot produce additional value for any author because the extension is at the end of a period that is already after the author has died. I’ve challenged this argument repeatedly as based on the false (hidden) premise that no one can now calculate the present value of future royalties.
Your response to this challenge, twice now, has been to deny that you’ve made that very argument, but to insist you’ve only made a completely different argument, namely that “the VAST MAJORITY of works cease to be of economic value not only well within the term of copyright, but even well within the life of the author, IF THEY EVER HAD ECONOMIC VALUE AT ALL.” I.e., spread out over all works, you claim (in odd-numbered hours) that the increased benefit to the few is nominal and not justifiable as public policy. That has nothing to do with the first argument, which does not have anything to do with public policy, but makes a claim that additional revenue from copyright extension is theoretically impossible due to the death of the author before the extended term begins. Your web page may or may not support the second argument, but it certainly doesn’t support the first, which in even-numbered hours appears to be your position.
Choose an argument and go with it.
WJM, unless you have an odd relationship with the English language, this is an argument, which you�ve made before, that extended copyrights cannot produce additional value for any author because the extension is at the end of a period that is already after the author has died.
So far, so good.
I�ve challenged this argument repeatedly as based on the false (hidden) premise that no one can now calculate the present value of future royalties.
No one can, because no one is psychic. No one can predict, with certainty, that a given work will still HAVE value X years from now, LET ALONE, that the value of that work will be V, as you seem to believe — WITH NO EVIDENCE — is possible.
If it WERE possible to do this, then there would already be compelling evidence of this. Namely, works that were out of print (as authorized by copyright owners) and on the cusp of falling into the public domain, should have instead been kept in print, in those countries that made the change.
Authors in countries that have made the change should also be earning 40% more (70/50 vs. 50/50) relative BOTH to their own country pre-change, and other countries that have not followed suit.
IS THIS ACTUALLY HAPPENING? If so, where, and can you point me to some resources on this fascinating phenomenon?
Your response to this challenge, twice now, has been to deny that you�ve made that very argument, but to insist you�ve only made a completely different argument, namely that �the VAST MAJORITY of works cease to be of economic value not only well within the term of copyright, but even well within the life of the author, IF THEY EVER HAD ECONOMIC VALUE AT ALL.� I.e., spread out over all works,
It’s the same argument. “Spread out over all works” is the only way that this can be measured, because the term extension itself is spread out over all works.
Similarly, if you witness an X percent drop in smoking rates, and a Y percent increase in life expectancy, you don’t analyse this phenomenon by studying your uncle Harold, who smokes, and your Aunt Gemma, who doesn’t. You have to look at aggregate data. That’s where you’ll find the compelling evidence of cause-and-effect (or its absence).
If you accept that “y+n >y”, then that equation should float all boats equally. Yet it hasn’t, at least not that I’ve yet been able to discover after entering thousands of data points. The proportion of works that are still being economically used in Canada (a 50-year jurisdiction), first published in 1934, is statistically indisinguishable from the proportion in the United Kingdom (a 70-year jurisdiction) or the United States (a 70-to-God-Knows-How-Long jurisdiction).
you claim (in odd-numbered hours) that the increased benefit to the few is nominal and not justifiable as public policy.
I claim that IF the benefit to the few is even quantifiable — and evidently it is not, as someone of your obivously superior intellect would have quantified it by now — that benefit would have to be somewhere above 99 times, and possibly 999 times or more, the economic burden created by the worsening of the absentee copyright owner problem alone over time… let alone the burden to the public in respect of the works still being economically used.
That has nothing to do with the first argument, which does not have anything to do with public policy, but makes a claim that additional revenue from copyright extension is theoretically impossible due to the death of the author before the extended term begins.
Unless you, OR ANYONE, demonstrates — not a frigging hypothetical equation, actual bloody evidence — that AUTHORS, living AUTHORS, are actually accruing additional benefit from the term extension, fifty and more years before the extend term even begins, then, yes, that additional revenue is, ON THE EVIDENCE, non-existent.
I’m not from the Show-Me state, but I’m at least as skeptical. Show me.
Your web page may or may not support the second argument, but it certainly doesn�t support the first, which in even-numbered hours appears to be your position.
You are fond of theoretical equations. Here’s one.
If you have an asset that, in year 1, is worth $100, over which you have a monopoly of the economic use, and it depreciates in value by just 5% annually, that asset at year 50 has, over its lifetime, accrued to you 95% of what will have accrued at year 70.
Now, the asset in question is the economic value of ALL copyrighted works. Why? Because the copyright term extension doesn’t discriminate. It extends Mickey Mouse as well as a pulp romance from the 1930s that is deservedly forgotten as well as an outdated scientific treatise as well as Mein Kampf.
The average work has a value of V. After 50 years, no more than 1% of all works have any economic value to the copyright owner at all. Under copyright theory, if they did, they would still be in print, as the owner would still be making use of that monopoly. (In fact, there’s an incentive for the owner to do so late in the monopoly, before it expires.)
Total value of the asset now? V*0.01 AT MOST.
In other words, a much more severe depreciation than even the 5% model.
Term extension cannot take a useless work and make it useful, cannot make an unproductive work and make it productive. You like math? Here’s some math: 140% of 0 is 0!
Punch it in on your calculator.
So, take a generous estimate of 1% of 50-year old works — old, no direct connection to the term of copyright — still having economic value. Assume, arguendo, that that figure, again a high estimate, persists to 50 years after the death of the author, which is a longer period than 50 years after publication alone. And assume, as you seem to do, that a 70-year copyright is 40% more valuable than a 50-year one.
A 50-year copyright is worth V*0.01 at the end of term (0.01*initial value of all works, the other .99/1 of all works having a value of 0.)
A 70-year copyright is, AT BEST, worth V*0.14:
0.99*0*1.4 = 0
0.01*V*1.4 = V*0.014
Total additional value added to V, the original value of copyright at the time the work was published? 4/10 of one percent.
Explain to all of us reading this, in small words that we can all understand, (a) how this value is realized by the author WHILE STILL ALIVE, and (b) what evidence you have that this is actually happening in 70-year jursidictions, as opposed to those same jurisdictions pre-extension, or other jurisdictions which have not made the term longer?
So, I ask again, what evidence do you have that would tend to support the acceptance of your hypothesis as theory?
WJM, we’re not talking about all authors. At least I’m not; frankly, I have no clue what you’ve been talking about, because it seems to change moment by moment. The only point of yours I’ve ever responded to is the claim that there is some sort of definitional problem with realizing royalties that won’t be earned until after you’re dead. There’s not. It has nothing to do with what the revenue averaged out over all authors is, and it’s bizarre that you keep insisting on that point. It’s simply a question of whether copyrights have a calculable present value that includes the portion of the term after the author dies. I’ve always said yes; and as near as I can decipher, at times you’ve said no.
But your very own calculations above, even if accurate for the author closest to the mean (which I find doubtful, and which in any event includes many thousands who never even published their works), show a nonzero additional sum that can be calculated. So I have no idea why you’re asking me how that sum can be paid. It’s easy. You determine the amount and write a check. I don’t see why you needed me to walk that last step with you.
As for (b), it’s irrelevant. The whole question is whether it’s possible to calculate such royalties and pay them today. You’ve already shown that it is. End of story.
WJM, we�re not talking about all authors. At least I�m not;
We’re talking two separate languages.
I’m glad you’re not in charge of drug approvals; you’d be happy for the few pregnant women who had their morning sickness relieved, and ignore not only those who didn’t, but also the thalidomide babies.
frankly, I have no clue what you�ve been talking about, because it seems to change moment by moment.
If you can’t figure out that this is the basic question of copyright term — how much is enough for authors, how much is too much for the public interest — then you really have no business discussing copyright term questions at all.
The only point of yours I�ve ever responded to is the claim that there is some sort of definitional problem with realizing royalties that won�t be earned until after you�re dead. There�s not. It has nothing to do with what the revenue averaged out over all authors is,
Yes, it does. This is the only way you can figure out whether a copyright term extension is a net benefit to the economy.
I’d love to see your personal finances. Would you take out a $100,000 loan at 8%, to invest in an investment at 5%? Under the RT math, that’s a sound way of proceeding; you’re getting 5%; ignore the cost!
and it�s bizarre that you keep insisting on that point.
No, what is bizarre is that you posit a hypothetical benefit, and ignore all costs.
It�s simply a question of whether copyrights have a calculable present value that includes the portion of the term after the author dies. I�ve always said yes; and as near as I can decipher, at times you�ve said no.
I’ve said that calculable present value is (a) negligible at best, and (b) that there is absolutely NO EVIDENCE that it actually can, or does, accrue to living authors.
But your very own calculations above, even if accurate for the author closest to the mean (which I find doubtful, and which in any event includes many thousands who never even published their works)
Erm, NO.
That’s based on PUBLISHED works. Unpublished works are even more ephemeral, have even more $0 commercial values, and are even less likely to generate $ for anyone — author, non-author owner, third party — at any point during their life cycle.
show a nonzero additional sum that can be calculated.
A negligible non-zero additional sum that can be POSITED. Not calculated.
Again, WHERE IS THE EVIDENCE that the term extension has ACTUALLY resulted in an additional accrual to the living author, whether the 4/10 of one percent that my method would predict, or the 40% that yours would?
So I have no idea why you�re asking me how that sum can be paid. It�s easy. You determine the amount and write a check. I don�t see why you needed me to walk that last step with you.
Unless that HYPOTHETICAL amount ACTUALLY IS BEING PAID, then the amount is not 40%, it’s not 4/10 of one percent, it’s ZERO.
Again, I ask, where is your evidence that the term extension in those countries which have extended term has ACTUALLY, in the real world, resulted in higher incomes for living authors?
Unless you have it, your hypothesis is, like most 50 year old copyrights, without value.
As for (b), it�s irrelevant. The whole question is whether it�s possible to calculate such royalties and pay them today. You�ve already shown that it is. End of story.
Not end of story.
You say the value that can be calculated is 7/5. I say it is, if it exists, at most 4/10 of one percent. That alone makes the story open-ended, since there are two conflicting endings dangling.
Second, you still have to show that any hypothetical value is actually being accrued. If it is NOT being accrued, the value is ZERO. That too, conflicts with your ending of the story.
So, for the umpteenth + y time, WHERE IS YOUR EVIDENCE?
This is the only way you can figure out whether a copyright term extension is a net benefit to the economy. I think this is where we’ve mis-fired. I’ve never commented on this issue. I’ve only maintained that it is possible to calculate the present value of a single copyrighted work, including the period after the author dies. If your last post is your final answer, you appear to agree that such a calculation is possible. You just claim it’s not actual. I don’t have any opinion on that one way or the other, and have never expressed one.
And I’ll be the judge of what I have business discussing, not you.
If your last post is your final answer, you appear to agree that such a calculation is possible.
An entirely hypothetical calculation is possible, in the same way that when you smoke a little doob, you hypothesize that the universe is just one big giant atom, and every atom in it is a little teeny-tiny universe.