-kd

According to:
http://members.aol.com/nancyds/wlot1.html#top
“According to a national survey [National Writers Union American Writers’ Survey] of 1,143 writers working in seven genres, experienced writers work long hours, are highly educated, yet their median income from freelancing totals only $4,000 a year.”

So I think this supports my position that most writers either don’t get paid (and so are probably not in the survey because it only looked at members of the National Writers Union and some other categories presuming career-ish writers) or that if they are paid, they fall in the $5K per yier tier (where given almost every writers predilection to read or consume media, they come out behind on copyright). Still looking for hard numbers on total numbers of writers in the U.S. yet.

When rereading my comments above, I realized where I wrote:
“This all assumes a system that rewards talent by grants”
I should in retrospect have written:
“This all assumes a system that enables talent by grants”.

Presumably as a matter of public policy a society should not be “rewarding” talent (to the extent it is not a function of a virtue like sustained hard work). Rather, a society should be “enabling” talent to meet society’s unmet needs (to paraphrase WIlliam C. Norris).

Personally, I agree these are just words, although it has been said the pen is mightier than the sword. Part of writing on this topic for me and others is to think through how the internet has changed our society, and given that, to direct daylight onto the dark self-serving myths surrounding copyright. Hopefully, and eventually, this will make visible for all to see the self-serving and often flawed assumptions underneath the copyright system (especially given digital technology and Moore’s law). This exploration of the mythology surrounding copyright hopefully shows how the current copyright laws reflect a certain current social configuration of priviledge (e.g. who has capital now, who pays the costs vs. who gets the benefits), and hopefully refutes the implicit notion that copyright is a social absolute which is the only reasonable way to foster creativity and wealth and the public good. Such is the foundation for thinking through in what directions progress is possible, as well as which of these directions various individuals should pursue according to their interests and ideals.

Still, I agree it is unlikely those with priviledge in the current system (RIAA, MPAA, successful authors, Disney, Microsoft) are going to easily give it up. The non-violent and legal options I see are:
* persuading those with such priviledge to give it up voluntary by changing the law (unlikely, as you imply), [the closest example I can think of (with a directly far crueler aspect than copyright, admittedly) was that the continual strengthening of laws supporting the “natural rights” of U.S. citizens to hold “property” (i.e. slaves) over a period of decades through legislation and court rulings in the U.S., until the Fugitive Slave Act
http://www.yale.edu/lawweb/avalon/fugitive.htm
— making third parties liable (fines, imprisonment) for helping escaped slaves — was essentially the last straw leading a decade or so later to a bloody civil war]
* donating works under free licenses (more likely), or
* encouraging volunteer creators to work within the rules of the current system to move it to another configuration by making more free works (most likely).
For me, I have concluded to spend more time making free works under the current rules, in hopes of helping society transcend the system. Yet, I think a small amount of time spent writing on these issues may have a beneficial effect.

http://www.aei.brookings.org/publications/abstract.php?pid=302

From the abstract: “This article questions the economic justification for copyright law�s prohibition against unauthorized copying. Building on the thesis of Stephen Breyer�s 1970 Harvard Law Review article, “The Uneasy Case for Copyright,” it contends that not only may copyright law�s prohibition against unauthorized copying (17 U.S.C. �106) not be necessary to stimulate an optimal level of new creations, but that �106 appears to have a net negative effect on such output! It observes that the higher revenues that �106 generates for popular creations are, in the lottery-like entertainment markets, generally used for promotional efforts (rent seeking), and that such marketing crowds out many borderline creations. The article also identifies and explains how new technologies and social norms provide many viable business models for financing new creations relying on only a heavily abridged version of �106. Hence, the article questions whether the current �106 could survive the intermediate scrutiny standards of the First Amendment, given the lack of evidence that the benefits of �106 exceed its costs.”

This is a fantastic paper. It is full of references and numbers — a lot of hard work and scholarship obviously went into it.

Perhaps Lawrence Lessig might consider a top level blog topic about this paper?

[Credit: I just saw this link in a comment posted by __billy blaze__ to a copyright reform mailing list hosted at infoAnarchy.]

While I personally don’t care much for Micky (people have documented how he is essentially derivative of Buster Keaton and Steamboat Bill, who I prefer) the deeper point is that cultural icons need to be evolvable by the culture. Still, there is a general issue of rewarding people who create worlds of characters as opposed to letting them have total monopoly control forever of this virtual world they have invited others into — I think this issue needs to be thought about more, and ultimately may be one more of morality than commerce.

> Very few, I would suspect, and even having _Steamboat Willie_ lapse
> into the public domain would not accomplish that goal, since
> Mickey and most other iconic creations are protected by trademark.
> You couldn’t produce new Mickey Mouse cartoons, incorporate the
> character into stories or comics, or anything else other than
> reproducing the original cartoon or stills from it.
> The whole new-use argument is greatly exaggerated.

There is a post above by Roy Berman talking about this trademark point. While I agree with their sentiment, I have to agree in practice you are probably right as far as trademark law is currently being broadly interpreted. However, there are legal scholars who will state this interpretation is too broad. Perhaps a new law is needed to address this overstepping of the judiciary. Essentially, trademarks are supposed to prevent confusion in the marketplace, and are supposed to therefore be like adjectives. So a Micky Mouse(TM) watch is a good use of Micky Mouse as a trademark (distinguishing it say from a Timex watch). But when terms come into common use and are used like nouns, then generally the trademark is weakened or lost– like on Kleenex, Escalator, or Xerox. Micky Mouse and other characters are widely used as nouns. So to generalize on that, I feel content should not be trademarkable — only its brand descriptor. However, to repeat, it seems like the current rulings seem supportive of your position — although some new law may still be being made in relation to the bounds of fan fiction sites. By the way, I was in a store the other day and looked at a Disney Character fishing rod and they used a (C) after the name (was either Micky or Goofy), not an (r) — so perhaps Disney’s threat would be hollow in the end and it knows it?

> I also think that it’s reasonable to differentiate between absentee
> copyright holders and careful stewards such as Disney.
> People and companies who have built businesses around their
> creations deserve added consideration. _Steamboat Willie_
> would be long forgotten and essentially worthless if Disney
> hadn’t carefully built on it over all the years since its release.

I agree with the notion of differentiating the two, but the fact remains that copyright is a bargain — not a natural property right. And the bargain is the work goes into the public domain in a limited time, whether it is still profitably exploitable or not. Disney should have planned for this by continually innovating — which is another consequence of properly constructed copyright. With short durations for patents, companies dealing in them often really do keep innovating.

Disney however can always still have Disney trademarked versions of Micky Mouse, so that when you see the Disney Brand version of something you know what you are getting (good or bad) just like when you go to see Disney’s Snow White you know what to expect (even if there were similar offerings by other vendors).

For a contrast, look at Red Hat’s business model — it lets pretty much all its works be redistributed but it has focused on creating a brand identity. The presumption is when you get your Linux software directly from Red Hat, you know what to expect.

I would agree in general with this sentiment, but in my opinion the system is so far out of place and the entrenched interests have so much money to fight this, and have been doing for so long to shape the debate, that even the smallest effort will be a huge battle. So I think one should go for something big to make the battle worth the effort — thus the suggestion of an annual tax. Such taxes (like the “Carbon Tax”) are often proposed as a free market way to adjust for external costs as opposed to regulation.

> [Good suggestion snipped to insure that copyrighted works are available.]

A good start. It might be nice to add compulsory licensing for redistribution and for derived works as well (although again, the issue arises then of how much to to charge for a license based on how much the work is thought to be worth…)