Talk:Against perpetual copyright

Document Structure

Please assist in determining what the structure of this document, Against Perpetual Copyright, should be. Mr. Lessig's initial post suggested that we "write the reply" to Mr. Helprin's article. While a reply would suggest an open letter format, I believe this topic would be better served as an article explaining why perpetual copyright is a bad idea, rather than a more limited rebuttal to a specific person's writings.

The current structure of this entry looks approximately like this:

• Introductory Paragraph
• Rebuttal Paragraph 1
• Rebuttal Paragraph 2
• RP 3
  • Out-of-place editorial comment
• RP 4
  • Out-of-place editorial comment
• RP 5
• A Few Points
  • Miscellaneous 2-sentence Point 1
  • Miscellaneous 2-sentence Point 2
  • etc.
• Other Points
  • Far
  • Too
  • Many
  • Miscellaneous
  • Notes
• Additional Material
  • Related Item 1
  • Related Item 2
• An argument from natural rights
  • Miscellaneous philosophical rant

There are two broad suggestions I'd like to make to remedy this extremely unorganized presentation of information, and then allow us all to have a conversation on the specifics.

1. The article page should always have a readable, presentable article, free from miscellanea and editorial notes, even if it's not the final product and isn't as good as it could be. Therefore:
2. Ideas, miscellanea, and editorial notes should be placed here, on the discussion page, so that they can be incorporated into the main article in an organized fashion. This also gives us the freedom to debate changes rather than fighting an invisible tug-of-war over what should or shouldn't be included.

Looking forward to working with you all on this. --Jhneely 21:16, 20 May 2007 (PDT)

Request for Payment letter

Dear Mr Helprin,

In light of a rumored bill before Congress to retroactively extend the limited copyright in the US to 25000 years after the death of the author (or the destruction of the last copy of the work, whichever comes last), we are investigating several potential copyright infringements in your last op-ed entitled "A Great Idea Lives Forever. Shouldn't Its Copyright?".

Descendants of James Madison request to be compensated for any citation, partial or full, of any of his works. Descendants of Hammurabi (currently estimated at about 127 million) claim copyright on any western law text and discussion thereof, as they are all derivative works of Hammurabi's Code of Law. Finally, there have been claims by descendants of Evander, son of the Sybil, that all Roman letters fall under their copyright, and that therefore any text using them needs to pay them a fair share of proceeds.

Preliminary calculations put the projected statutory infringement fines at 4.2 trillion dollars. This number may change as more claimants come forward. As it is unknown how much more the US Congress is going to extend copyrights, we suggest to settle sooner rather than later.

Sincerely,

Howard Howe, Dewey, Chetham & Howe, LLP

RFT 00:00 21 May 2007 (PDT)

Just want to note this: In the system of perpetual copyright, more and more of the culture would be locked down. Our thinking would be limited by things we can and can't. By copyrighting the "right" things one could control the others. It isn't 1984, is it?

--Adam 05:05, 22 May 2007 (PDT)

User RFT, you are brilliant. If you ever need a literary agent, I volunteer. At the behest of rent-seeking publishers doing the special interest jive, the copyright term has already been bloated far beyond anything anticipated by 19th century philosophes. Maybe we ought to go back to the 18th century English Statute of Anne—14 years plus another 14, should one bother to renew. Those 18th century dudes were smart. They knew how to limit a property right when they saw one.

What is with the title of the Helprin op ed? A fundamental of copyright law is that "ideas" are not copyrightable. Only their actual expression is. Wanna lock down an "idea," try patent law.

--Lynn 30 May 2007

Was the NY Times story satire?

The story was satire, poorly written satire, but satire nonetheless. Siraf 17:10, 20 May 2007 (PDT)

I'm gullible. Or oblivious. --Tauberer 15:04, 20 May 2007 (PDT)

If it's satire, many of the counterguments I'm seeing are even worse satire. They're bad enough to make me want to sign up on Helprin's side. Esr

That didn't have the ring of satire, IMHO... --Karl Fogel

The guy's from Claremont. Trust me, it ain't satire. They believe this kind of stuff there. It's religion to them Jim Carlile

It most certainly was not satire. It may have been an attempt at satire, but if so, it failed to the point of being an actual advocate for infinite copyright terms. GregLondon 17:50, 20 May 2007 (PDT)

This is where if the NYT page were a lil more open or interactive (having comments or trackback or writeable updates just on the author/NYT side), intent could be cleared up. The tone doesn't seem like satire to me, but the ridunkulousness[1] of the article does. andeezy

Mark Helprin's Inspirations?

If anyone here knows any of Helprin's work, it might be worth adding some notes about obvious inspirations/omages/derivative plotslines, etc from prior works. -- sirdook

Mark Twain? Boingboing mentions something like that here. Here's Mark Twain's argument that Mark Helprin has rehashed. Maybe if Twain had infinite copyrights, etc., Helprin would be in trouble right now with Twain's prior stuff? Hahaha.... the irony... Cowicide 18:23, 20 May 2007 (PDT)

The title of Mark Helprin's book Winter's Tale, of course, comes from a work by the same name written by William Shakespeare. The first sentence in the book begins "There was a white horse," which may well derive from Revelation 19:11 (The Coming of Christ) of the God's Word Bible: "I saw heaven standing open. There was a white horse, and its rider is named Faithful and True. With integrity he judges and wages war."

Hoping this distinction isn't too subtle: Helprin was truly precise in titling his marvelous novel "Winter's Tale" as distinct from Shakespeare's delightful play "The Winter's Tale". To my mind they're not the same. The novel, still under copyright, has a title clearly (and passionately and explicitly) *derived* from the title of the play, now in the public domain. For casual writers, Helprin's decision to drop the definitive article might seem like mere sloppiness. Walter_Dufresne

Positive vs Negative Rights?

The section on positive vs negative rights is parochial at best, confused at worst. There are longstanding problems with adequately spelling out a positive/negative distinction for rights, but even at a rough intuitive level, that difference isn't at all clear in this case.

Consider this general positive/negative aspects of property rights; conceptually each can apply just as well to real estate as to intellectual property.

Negative right: Right against others that they refrain from making use of your property without your permission

Positive right: Right against the government that it enforce the negative right and enforce compensatory judgments against

Finally, the point about natural rights is likely to be highly controversial; some think no property rights exist outside of some organized social system. Helprin, it seems, would go the opposite route and argue that intellectual property right have just as much a claim to be natural rights as do rights in physical property. These are deep philosophical disputes that, while interesting in their own right, only detract from the primary purpose of this response. -- sirdook

I think that this line of thinking is probably going somewhere. The response at this point could use a somewhat broader perspective; the core of his argument is essentially that intellectual "property" is a natural right and not a social or legal construct. I think that examining the history and use of ip and physical law is sufficient to do so; for instance the enclosure movement in England whereby formerly open common areas were fenced off into individual parcels was on some level an attempt to limit transaction costs; this shows that these property right are not always "Natural", since they were created.

Additionally, as far as the economic argument goes, some (Landes and Posner?) have argued that the optimum copyright term is about 15 years; however, as other commentators here have noted this is not an argument against Helprin. --Sdh 19:29, 20 May 2007 (PDT)

Cost to produce

To have credibility, this counterargument needs to acknowledge that some creations (e.g. motion pictures) have a substantial cost to produce, rather than the "virtually zero" cost of writing a story or painting a picture, which is asserted here. Failing that, proponents of perpetual copyright could counter-counterargue that the works of Disney et al. do deserve such protection (which is, after all, one of the goals of the copyright-extension lobby). (And I might add that anyone who thinks that the hundreds to thousands of hours spent on writing a novel really equals no cost needs to be introduced to the concept of "opportunity cost", or even the old adage that "time is money".) - TVerBeek 18:14, 20 May 2007 (PDT)

• But that doesn't explain why copyright should last 95 years. Why wouldn't 10 be sufficient? I don't see how Hollywood's incentives would be any different. They're not thinking in anywhere near that long of a term when they greenlight a film. Spider-Man 3 cost several hundred million dollars to make — and earned back that money in its first day in U.S. theaters. Would Sony Pictures really have not produced it if they "only" had monopoly rights on it until 2017? Profits to be realized that far out have almost no net present value. Would George Lucas be starving in a garrett if Star Wars (the original film) had entered the public domain in 1987? Of course not — he'd still be a millionaire many times over from the merchandising rights sold in that time frame alone. There's clearly an advantage to having some copyright law over having none at all. But once you get much above a decade, it's just a giveaway to massive media corporations and provides no real additional incentive to produce. Companies simply don't look a decade or more ahead. JDG 19:01, 20 May 2007 (PDT)
• The cost to produce a work is non-zero. However up until 1976, creators demonstrated a complete willingness to produce new works with a 56 year or less copyright term. Which would mean that they believed the cost to produce their novel or movie or work of art was something they could profitably recover in less than 56 years of copyright monopoly. The important point is to get that this compensation is reward to offset the cost to produce, not some dogma of forever owning the monopoly to any works they happen to be the first to create. GregLondon 21:31, 20 May 2007 (PDT)

Alternative counter argument

Mark's article annoyed me so I wrote another response at http://www.worriedcitizen.com/2007/05/why-cant-i-download-house.html. It takes a much less academic tone than this counter argument, but you are welcome (yes, this is an implied license) to incorporate elements of it here if you wish. Worriedcitizen 18:32, 20 May 2007 (PDT)

Worriedcitizen, I read your thing, but... yeah, you can't download a "house", but you can potentially download blueprints and steal interior designs from someone else and resell them. Just food for thought. Cowicide 18:51, 20 May 2007 (PDT)

That's true, but if I steal your house I'm depriving you of it, but if I steal your blueprints, you still have the house. Clearly, I think the easiest way to attack the many Helprins of the world is to make clear that the word "limited" means just that, it does not mean infinity minus a day, and that depriving someone of the use of their property never happens under the public domain. It's a bogus analogy. Jim Carlile

It's a bogus analogy that has ingrained itself into public consciousness so thoroughly that we can't tell satire from argument anymore (See above). Helprin: "their good fortune is a poor excuse for seizing either their property or that of their leaner colleagues." One does not need an excuse -- poor, medium, or great -- to copy a work of art, because the copying does no harm. Mateo LeFou 06:27, 21 May 2007 (PDT)

Work for hire

(some background: http://en.wikipedia.org/wiki/Work_for_hire)

IANAL, etc.

Can I suggest that someone ties in the "Work for hire" component?

If Shakespeare (to use the example everyone else is ..) were around today, most of his work would be considered a Work for Hire, and so the ownership of his work would actually fall to his employer. So it wouldn't be the descendants of Shakespeare that you'd need to track down, it would be the descendants of the owners of the theatre/company.

Much of what we today consider "great works of art" were actually commissioned to be created, and would therefore be also considered a WFH. Under an eternal copyright scenario, these works would now be paying the descendants of wealthy european royalty, not the original creator.

Which is even more absurd. You'd be not just rewarding people who had nothing to do with the original work, but actually rewarding the people who could already afford to hire someone to create art for them.

It's a good point. It seems to me that people are constantly misconstruing or mixing up who benefits from copyright. Really - it is the corporations. At what point is WFH becoming the "Company Store." Dickey47 07:56, 31 May 2007 (PDT)

physical property mirrored copyrighted intellectual property

The essay includes the following sentence: "To put it simply, a world in which physical property mirrored copyrighted intellectual property would be a world where no one could own anything without paying royalties for it to someone else." I don't quite understand the value or meaning of this sentence. It seems to be part of a larger argument to create an 'A follows B' scenario to disprove the equivalence of intellectual and physical property. This doesn't make sense given the basic premise of Helprin's argument: physical property laws are sound, but intellectual property laws are broken, but could be fixed by applying physical property laws. I think this sentence ought to be deleted, but I wanted to check to see if it made sense to others, both on it's own and in context of this essay. Comments? Rosenbluh 21:17, 20 May 2007 (PDT)

Not an attorney either. It is poorly worded, to say the least. Makes me think about Microsoft's policy of software ownership - it is really a lease. Dickey47 08:02, 31 May 2007 (PDT)

My comment is that if the editorial author wants to say physical and intellectual property should be treated the same, he needs to deflect the arguments that unused intellectual property should, like physical property, be subject to salvage or adverse possession under the right circumstances. To my mind (and I'm no lawyer, so my thinking may be way off), an end to an exclusive copyright period simply salvages intellectual property for the common good. The idea of "public domain" strikes me as analagous to building a museum around the recovered remains of an old shipwreck. The owners of the ship either got paid off by insurance a long time ago or they're dead. The remains are taken over, repackaged, and sold to the public in a way that makes the world a better place. If their descendants showed up and demanded a cut of the admissions price to see the exhibit or simply wanting the entire exhibition closed down, they should be told to take a flying leap. IMO, at least. To make his point, the editorial author needs to address this point, as well as the adverse possession situation I talk about further down the page. I don't see where he's done that. If fact, if he thought about it more deeply, he might not really want anyone to consider physical and intellectual property as equivalents. I dunno. The editorial seems so bogus to me that it's hard to tell how best to attack it, but this is surely one area where he didn't think things through. (Sorry about the length of my comment; I'm at work and didn't have time to write anything concise.) BenEnglish 08:50, 21 May 2007 (PDT)

Makes me think about how Domains are purchased and folks sit on them like vultures. Didn't they have to crimp down on that - at least for personal names - to where if you purchased a domain and someone with that real name wanted it that you, as the original purchaser, had to show you had a honest investment in the name?Dickey47 08:02, 31 May 2007 (PDT)

The title of the article is a major misconception

This fellow seems to think that IDEAS can be copyrighted. How clueless is this? This demonstrates a profound misunderstanding of the law, and he needs to be called on it.

• Is the title due to Helprin, or to the NYT editor?

History of the arts and possible copyright infringement

Throughout the years many painters have directly copied, and rethought their predecessors works. The most famous of this being Manet's "Olympia" in juxtaposition against Titian's "Venus of Urbino". The lighting, the pose of the model, the age of the girl, and the expression on her face are all similar. It is evident that Manet copied his Olypmia from Titian. Manet also went to the Louvre and copied works there for later inclusion into his own pieces. In today's age an artist is not only bombarded with images of advertising, television, and film, but also access to thousands of years of artwork which can be purchased relatively inexpensively at a local bookstore. To deny an artist the ability to rethink the past, as well as confront current imagery would limit the depth to which art can critique and interpret said imagery. This idea could be pushed into various realms including science, and literature as well.

A little different but here it is: what about all the old 1800's and really early 1900's books that no longer fall on copyright - you can get them from google books or gutenburg. But newer works with very long copyrights might be based on some of it. Even if you give credit to the out of copyright work, can the publishers of the newer work (also based on the older work) come after you?Dickey47 08:05, 31 May 2007 (PDT)

Statute of Limitations for Copyright

Regarding the recent call for perpetual copyright. How is that supposed to work in practice? If an heir comes forward claiming rights to some pieces of work, how do we verify the signatures on the contract for people long dead? We can't dig them up and ask them if they're authentic!

What about once the ink has faded and the paper turned to dust? What then?

Did Bacon write Shakespears plays? Does Shakespeare's heirs get the money or Bacon's heirs get the money?

Does Milli Vanilli own the rights to 'their' recorded voices? Can you locate and prove the contracts even for something only quite recent?

Is dum-de-dum-de-dum-dum originally Stock Aitken and Waterman or a 10BC musician named Tiberious? Can you prove it?

If you accept Helprin's reasoning it is a logical conclusion that it would benefit the public more to restore lapsed copyrights to their appropriate owners but it does not follow that congress (or other governments) would do so. Nobody will contest the point that congress rarely does what is logical or in the public's best interest. Funkyj 11:15, 21 May 2007 (PDT)

This is just lawyer nonsense. The statute of limitations on civil contracts (the prescriptive period) is 10 years maximum. Everyone keeps their information for no more than 10 years, even banks throw away old records! The idea is, that it's difficult to prove something that happened 10 years ago, people's memories are jaded, and old contracts have long been shredded. Dead people have no memories and can't testify in court.

Copyright needs to be brought in line with other civil contracts and reduced to 10 years.

Isn't 100 years the standard maximum for leases? I know under Australian/British common law that any contract for 100 years or more is automatically interpreted as forever. That's why governments in Australia never lease land for more than 99 years - and in Australia there are very large properties leased under Crown leases. Why should copyright be any different?

Money for Old Rope Makers

Sir, People don't buy Windows 3.1 anymore, even if it goes out of copyright nobody will want it. People don't buy Peggy Lee's (1940's singer) music anymore, if it doesn't have value now, it won't suddenly become valuable when it goes out of copyright. Steamboat Willy will not displace The Lion King in the box office if it should fall out of copyright. How do you know Walt didn't want it that way? You can't ask him, he's dead!

If anything, copyright should expire as soon as the holder has had their chance to make money. Any longer risks creating copyright trolls, like the patent trolls we have now. Lawyers crawling out of the woodwork, suing everyone for infringing on some long dead artists work with no way to verify their claims.

New rope makers should not be have to pay the heirs of old rope makers for the right to make new rope.

Statute of Limitations on REAL Property

http://www.freep.com/apps/pbcs.dll/article?AID=/20070511/ENT05/705110327/1115

"The three-year saga surrounding Van Gogh's "The Diggers" has ended.

"The heirs of a German-Jewish woman from the Nazi era who lost an ownership dispute with the Detroit Institute of Arts over the painting Thursday dropped their appeal of the federal court decision that found in favor of the museum. That means the $15-million picture, which has belonged to the DIA since 1969, will remain in the museum's collection and the DIA will not have to pay restitution.

"In March, U.S. District Court Judge Denise Page Hood in Detroit cited the expiration of Michigan's three-year statute of limitations in finding for the DIA. The case landed in court in January 2006 after the DIA failed to resolve a dispute with 15 distant heirs of Martha Nathan, who fled Nazi Germany in 1937."

This is REAL property, where a physical thing is transferred. Imagine how impossible it would be to determine ownership where anyone can pop out of the woodwork waiving a contract they claim is valid and demand money. How could you verify the signatures on the contracts for long dead people?

In this example, these 15 distant 'heirs' popped up, claiming ownership and there was no way to determine who owns what. The judge correctly cited the civil statute of limitations. It's there exactly for this purpose.

if you accept Helprin's logic (I do not) one could easily argue that, while it would make sense to restore copyrights retroactively, it would be impractical to do so. Of course we could create a new court, modeled on the court of chancery described in Dicken's Bleak House, to handle restoring lapsed copyrights to their rightful (cough, choke, retch) owners. Funkyj 11:27, 21 May 2007 (PDT)

Copyright needs to be brought in line with other civil contracts. It needs to be short enough to verify ownership of the contracts and signatures. 10 years to 20 years is the realistic limit on that. It should be shortened accordingly.

---

Actually, real real property (as opposed to the real *personal* property cited above) is an awfully good example of a fairly simple principle that's existed for a long time. If you have an asset that you allow to lie unused, the law supports mechanisms whereby an involuntary transfer of it to another person can happen. "Salvage rights" are an example.

Where land is concerned, it's called "adverse possession." The way it works is fairly simple. You have a plot of land that's belonged to your family for generations. It's isolated and you don't live anywhere near it. You simply don't care about it and you don't pay the taxes on it. You ignore it. I see this land and realize that you're ignoring it, so I move onto it. I improve it. I pay the taxes. I file liens against the land for the fencebuilding I'm doing and other improvements I'm making.

It depends on state law, but if you let me do this, completely unhindered and unremarked, for a long enough time (a decade or two in most states, iirc), then I can file the right paperwork at the county courthouse and actually own the land in a legal sense.

The idea is that things of great value that can be used to make the world a better place should not be able to be buried forever by the people who "own" them. You don't get perpetual ownership of your land if you ignore it. Ideas are something that deserves the same treatment which is, it seems to me, a perfectly adequate justification for keeping exclusive copyright periods as short as possible. Nothing is so good, even the works of Shakespeare, that people will pay for it forever. Thus, infinite copyright eventually translates to an essentially infinite number of orphaned works. That would be a tragedy. BenEnglish 08:32, 21 May 2007 (PDT)

• Additionally, speaking of real property, we also have the principle that we can take property for the common good. Your property rights are not absolute even when we're speaking clearly of property (i.e., plain old plots of land). So even were we to concede Helprin's property model, we still don't have to recognize some kind of eternal "right". It simply isn't in the interest of the common good to allow a small set of people and/or corporations to lock up literature and other artistic works forever. I suspect that we could turn around and argue--using the takings clause--that even in a "property" model, society is compensating the creator with the limited monopoly grant then taking the "property" for the common good. I reject the concept of "intellectual property" and the property model but do find it interesting that, as you point out, even real property doesn't carry perpetual, absolute rights.

• And the problem of which you write is happening already. Movie studios have vast libraries that reach back decades. The works are deteriorating because the media is aging. The studios have little economic incentive to do anything about the losses but given the extensions to copyright, they still can keep the works locked up in vaults until they turn to dust. In short, it's not just works are being "orphaned", they are being destroyed. I can't see how that does any good for anybody. Those works are being lost because of simple minded greed. And I say "simple minded" because even the copyright holding corporation is obtaining no benefit. The works are simply aging and fading away, locked in vaults because of the legal principle of "MINE! MINE! MINE!". On the odd chance that maybe some work in some dusty vault might produce a profit some day, vast libraries are being lost. But try to do anything about it yourself, you'll get a "cease and desist" letter. Mkbilbo 06:46, 30 May 2007 (PDT)

Copyright on Happy Birthday

How does the song go? Happy birthday to you....

Written in 1893, the current words are claimed to be written in 1935 and still in copyright until 2030 although the author is unknown, and so the contract chain is incomplete and the real ownership can't be determined.

• The author is not unknown. Officially, "Good morning to all" and "Happy Birthday to you" are the work of the Hill sisters.

It's not even sure the lyrics weren't simply copied from elsewhere!

Warner Chappell Music claim ownership to the lyrics (the music is public domain). Although any random person could appear to claim to be the heir to the lyrics. Since the author isn't know there's no way to determine the validity of any such contract and they'd be as valid as Warner Chappell Music claim.

That's just 72 years ago, still within a lifetime for some people and yet the contract chain is incomplete. Imagine the practicality of determining copyright when nobody from that era is living.

Copyright needs to be determinable, it needs to be less than 20 years duration.

• Pardon me butting in but I agree strongly with you. The duration needs to be no more than one generation. Consider, say, Star Trek. I grew up watching that show. Like the generation before me grew up with comic books. A lot of people in my age group hung on to that show long after the corporations walked away. Under the old laws, the copyright would have run out by 1997 (or sooner) and would have available to an new generation to work with. We'll never know how that would have worked out but I do know that back in my "fan" days, I saw fan work that blew the doors off anything Paramount (Viacom, CBS, whoever they are these days) has come up with. The corporate types ran the show into the ground until it became almost a parody of itself. Cancellation of the last derivative series was a mercy killing. I've long since drifted out of "fandom" and even away from SF but found myself rather relieved when Star Trek was finally "put down." It was like watching an old friend wither and grow feeble and become a mere shadow of himself. What was the "good" in that? Well, the corporations made a fortune. Not the creator of the show, he was forced out. Oh I'm sure he left quite a chunk of change to his wife and kids but nothing like what the corporations sucked in. The actors? The writers? Limited compensation (though, granted, hefty amounts) but no royalties. The dirty truth is that the reason you saw the actors doing "conventions" was, they needed the money. The people who did the actual, creative work obtained only a small fraction of the profits generated over the years by that "franchise". And we, the public, gained repetitious, unimaginative, derivative works that were derived from derivative works. And the next generation of writers that may have done something interesting with the public domain Star Trek? They got cease and desist letters from lawyers. Mkbilbo 08:33, 21 May 2007 (PDT)

• Adding my comments (Peter). I think the endless Star Trek repeats are one of the most annoying things of overlong copyrights. I know that when my grandkids are grown, they'll still be licensing this one out for reruns. Holding it back a few years to make it 'fresh', then rereleasing it for another rerun to another generation. What I'd expect to happen if it went into public domain, is it would be shown to death on lots of different channels and that would be the end of it. Just like the only public domain music played are a few classical hits, it's not worth churning the old products over and over again unless you can make it new and therefore own the exclusive copyright controls. If you promoted public domain product, anyone else could simply leech off your marketing. i.e. a strong incentive to not promote old (non exclusive) work, and the create new work. Star Trek has had plenty of time to make it's return, they need to keep moving forward with new IP not old reruns.

• • You're right, they'll be trying to milk that old show until the end of time itself. Or at least until 2086 (provided the corporations don't ram through another extension of copyright). Our incentives now run in reverse. There's less reason to bother with new works if you can re-release the old ones over and over and over again. Further, art is by its very nature "derivative". That is, every artist builds on what has come before. We'll never know what, heh, the next generation would have done with the ST world had it entered the public domain. Certainly rehashing the same ideas repeatedly in endless spin offs and movies hasn't produced much. Some diverting entertainment now and again but nothing truly creative. I would have loved to get my hands on that fictional world. Had an idea years ago of a "re-imagining" kind of thing (rather like what Ron Moore has done with BSG). Very dark. Kind of a "Star Trek noir"? <g> Forget about Paramount/Viacom/CBS/whoever-they've-merged-with-this-week taking any serious creative risk however, repackaging pablum is safer. Go for the lowest common denominator to maximize sales. Risking the ire of fans over a radical departure from "the canon" is out of the question. At least parody such as "Galaxy Quest" has managed to get off the ground. But corporations are trying to kill even that (such as in the suit against "The Wind Done Gone"). Shorter copyright drives the search for the new and creative. Longer ones undermine that drive. Perpetual ones would end it and we, as a society, would go moribund in our creativity. Mkbilbo 10:53, 22 May 2007 (PDT)

Gentlemen & Lessig, please go on the attack

I'd like to see copyright reduced to 20 years. I've made several suggestions above as to why it's an anomaly and I'd ask that you seize this moment to go on the attack and get it reduced back to a duration more sensible.

BBC is constantly fed with 'extender' articles by copyright lobbyists, UK Parliament is lobbied heavily by monied interests, this is a bigger problem than just the NYTimes. But as long as it's under discussion, we should set the agenda not the copyright lobbyists.

Best wishes.

• 20 years might be a bit short. The original US copyright was 14 years with the option to extend to 28. There are some really good arguments put forth by Eric Flint and Thomas Macaulay for the ideal length being around 40 years. See this comment and this other comment below. Lachlan Hunt 12:33, 22 May 2007 (PDT)

• • There is historical evidence to show that 42 years is effective. Plenty of US authors wrote great novels up until 1909, including Mark Twain, the infinite copyright man himself. Then up until 1975, terms were 56 years, and plenty of novels, movies, and the like were created under a 56 year copyright. So it would seem that there is historical evidence to support a 50 year copyright as sufficient incentive. Less than that and you no longer have evidence to base your argument on. It might be that plenty of people would still write with a 20 year copyright, but we just don't have evidence. (I don't know if the economic situation of the publishing industry when the statute of anne was passed is directly correlated to the current business world or not.) GregLondon 13:03, 22 May 2007 (PDT)

• • • I haven't read your entire work (though I'm planning to do so) so this is off the top of my head but I suspect it would be difficult to claim "historical evidence" given that technology had a major hand in the history. That is to say, how can you separate out which was the greater driving force, the term of copyright from 1831-1909 or the technology enabling a publishing industry to arise? I understand the steam powered printing press was patented in 1830. Do we know--can we know--what would have been the outcome if the old 14+14 term had stayed in effect when mass production became seriously possible?

• • • You know, there's a public good issue here. Artists of all kinds grow up with and absorb the works of the generations before them. This builds a foundation for their work. The public domain is needed. With technology shortening the "cycle" of works being absorbed by a generation (that is, distribution is very, very fast these days and more people have access to works than was possible before), copyright terms may be going in exactly the wrong direction. Take the Harry Potter phenomena. An entire generation is growing up on those books and movies. Those will form the basis of their creative works. Except that it can't. Not for... who knows how long? Rowling is 42 this year. She could easily live another 50. Add 70 years and Harry Potter will be tied up for 120 years. We're talking in terms of, oh, 2130... 2130! Is it really in the interest of the public good that the generation giving her money (in truckloads) will be legally forced to be passive consumers for their entire life? And is it best for society to essentially reward Rowling for sitting on her duff, rehashing the work for the next half decade or so? This is not to say she will, she may move on and create many other works. But, economically speaking, the path of least resistance is the Lucas path. Rehash, rerelease, remarket. Creativity isn't easy. It's work. If you can rest on your laurels for the rest of your life, why bother with the effort?

• • • I'm afraid works such as Harry Potter will go the way of Star Wars/Star Trek (et al). Drained of creativity for the sake of marketing, rehashed endlessly, and, in time, become nothing more than a MacDonald's tie-in. Mere shadows of themselves as the generation who grew up on them will find themselves sued if they attempt to do what artists have always done: build on what came before. Works need to pass into the hands of the next generation of artists. Not be locked away by corporations and/or artists-turned-misers and beaten to a pulp until we're all sick of hearing about them. I grew up on the old Star Trek (watched it since I was five years old) but, I swear, if I hear of yet-another-spin-off, I'm going to throw up. I find it rather sad that the work didn't enter the public domain so new artists could build on it. We'll never know if an interesting new work could have emerged. It's illegal. And why? So a corporation can rerelease a Spock doll every few years?

• • • I'm not even sure authors and other artists are doing themselves such a favor. Not when you see what's become of the big, successful works in recent decades. Lucas' "vision" has been reduced to "how many dolls can we sell of this character?" Yeah, he's rich and getting richer. But does the world really need another Indiana Jones Disney ride? He's trashing his own legacy. To the point it's becoming parody of itself. Moving from "cultural icon" to "cultural butt of jokes". Does this really do the artists any good beyond more money to pile up? Did we really do Stephen King a favor by allowing him to spend his days essentially rehashing his old work? The incentive is not "create more", it's "play it safe, do the same thing that sold before, don't change, don't grow, don't take risks, and rerelease 'new' versions every few years" (such as his New! And Improved! version of "The Stand"). Mkbilbo 08:45, 30 May 2007 (PDT)
      • Greg London is a god. OK, with that out of the way, didn't his Bounty Hunter tale explore a "cooperative" of people that dip into a "trust" of sorts to pay themselves but do their work for the benefit of the people? In that vain, I'm hoping musicians and writers do something like that. There has to be some sort of Bounty Hunter like trust out there already - if so, what is it and why aren't more artists using it? Dickey47 08:27, 31 May 2007 (PDT)

Back to the days of feudalism

More needs to be made of the fact that feudal days were the last period in history that "perpetual grants" existed. For example, the King James Version of the Bible is still copyright. The grant was "in perpetuity" and exists today. But the KJV is public domain because we rejected the idea of perpetual grants.

I would like Helprin to explain why he prefers feudal days over the modern period. If our Founders were so off base in their ideas about limited monopoly grants (and make no mistake, "copyright" is a monopoly grant, not a "right"), why did we go from horse drawn buggies to the moon in two centuries?

The first copyright law ever passed by our Congress set a maximum term of 14 years. That was it. And with limited, narrow grants, we went from an agrarian society to me sitting here, bouncing signals off a geosync satellite to communicate with a near instantaneous global network.

Which system worked better? Feudalism with perpetual grants or the democracy with limited, narrow grants made with an eye to the public good?

Mkbilbo 08:17, 21 May 2007 (PDT)

less is more

In my opinion, anyways. Shortened a few sections. will try to organize the big section in the middle into smaller pieces at some point. When preaching to the choir it probably isn't a problem to be long. But when trying to refute the other side, I think less is more, if for no other reason than they might actually read it. GregLondon 09:01, 21 May 2007 (PDT)

Economic Argument

From an economist’s perspective, the real issue here is rival vs. non-rival goods. Rival goods are like apples. Once one person has eaten an apple, noone else can eat that apple. Most physical goods are rival. However, intellectual property is a non-rival good. An infinite number of people can enjoy intellectual property without diminishing its value to others. From this perspective, society is best served when intellectual property is shared freely and openly with all.

However, if this were the case then noone would have the incentive to produce IP, so we wisely allow the creator a limited copyright period to derive some benefit from the work. This is the only purpose of copyright: the advancement of the useful arts. With this in mind the status quo of 70 years is likely to be already too long, and Mr. Helprin’s suggestion is likely to stifle American creativity.

“No good case exists for the inequality of real and intellectual property” is the ludicrous quote that best encapsulates the author’s position

• That's the difference between Zero-Sum-Game and a non-Zero-Sum-Game. GregLondon 09:39, 21 May 2007 (PDT)

[Edit: I don't see anyone anywhere acknowledging that, in general, be it real or personal or intellectual, we do not protect property for the owner's sake so much as for society's sake--the theory of maximum surplus through ownership and valuation ...

Also, let us not forget that Lardner & Prossser did an economic analysis of copyright law (funny, that also happened to be the title of their article) in the J. of L. & Pub. Pol'y in the 1970s. There they acknowledge that the greater copyright protection is, the more each creator will have to pay an old creator to use bits and pieces of previous work, and therefore the leftover incentive can actually decrease as protection increases.]

Zero-Sum Game

Had to stop reading after the second paragraph because of the repeated statement that real estate is a zero-sum game. Economists would probably explain why few economic things are zero-sum games, particularly not a piece of real estate.

The value rises and falls with circumstances, often spectacularly so. There is no zero sum. To keep stating this puts off everybody with some minimal economic knowledge and raises the suspicion that the authors of this piece don't know what they're talking about.

I would recommend to remove that expression and replace it with something better. If we find no serious disagreement on this and nobody else does it, I'll later try to amend the text.

Hans-Georg

The usual economic terms are rivalrous vs. non-rivalrous. --Webmaven 11:40, 23 May 2007 (PDT)

Thanks! Just wanted to edit and remove the false zero-sum expression, but noticed that it keeps popping up in the article and made its way even into the table of contents.

Will stand back for now and keep pondering the change.

Hans-Georg 2007-05-24 15:41 UTC

• The Real estate market as a whole may not be a zero-sum-game because of price changes over time, but in any single transaction, the sum is zero. Alice sells one acre for $10,000. Bob buys one acre for $10,000. The sum of the transaction is zero. There could be a broker's fee and taxes and whatnot that get thrown in, but the basic transaction between Alice and Bob is essentially zero sum. only alice or bob can own the one acre, not both. Which contrasts fairly well the difference between that and intellectual works. Alice can make a copy of a song and send it to Bob, while she keeps her original. That is not zero-sum. GregLondon 14:18, 24 May 2007 (PDT)
  • The problem with using the term zero-sum in this way is that it usually refers to some sort of iterated series of transactions between many participants. Furthermore, anything can be made subject to a game, and the rules set to make it zero-sum or not. The preferred term of art for this aspect of the inherent nature of intellectual works is non-rivalrous, whereas real property is rivalrous. So, for example an actual physical copy of a book is a rivalrous good (at least until we have home matter compilers) because if I borrow it you don't have it until I return it. However, the text in it is an inherently non-rivalrous good, and only as a matter of policy and law do we temporarily treat the immaterial text as if it emulates the rivalrous nature of the physical copy. The whole point of the rebuttal is to make clear that this is a temporary abberation, and that freed of the attendant monopoly the text can be freely promulgated even without a transaction. --Webmaven 14:50, 24 May 2007 (PDT)
    • I am not attached to the term. I do not see any significant functional difference between the two. The transferring of a physical CD can be described as a zero sum game. The song contained on the CD can be moved around as a non-zero-sum transaction. Copyright law gives exclusive rights to the author, so that transfering the song becomes a zero-sum-game. Copyright is a strategic move which removes the option of anyone freely copying the song without the authors permission. The remaining option is to get a copy of the song with the authors/publishers permission, i.e you buy it. But like I said, I'm not attached. Either way, the zero-sum-game term or the rivalrous term might be best if linked to the wikipedia article on teh subject for those not familiar with the concept. GregLondon 14:48, 25 May 2007 (PDT)
      • Greg, the problem is that among economists the term zero-sum game isn't used that way and is confusing, if not wrong. You apply it to one single transaction between one buyer and one seller, but that's trivial and is not what is usually meant by zero-sum game. By the way, even in the single transaction it may well be wrong, because the value of the money is fixed at $10,000 in your example, but the value of the property is quite different for the two partners in the transaction. It actually has to be, otherwise they wouldn't do the transaction in the first place. Hans-Georg 2007-05-25 09:02 UTC -- Dropped in here again and saw that the changes have been made. Thanks to whoever did it. The article is getting better. Hans-Georg 2007-08-01 16:30 UTC

Real Property and Intellectual Property are At Odds with Each Other

One thing that few people bring up is that intellectual property rights and physical property rights are not complementary notions, they are competing notions. All increases in intellectual property rights decrease physical property rights. If I have complete physical rights, then I should be able to etch anything I want onto blank CDs, even if it happens to be a song from a popular artist. If I have complete intellectual property rights, then no one can etch my song in any form without my permission. They are fundamentally opposed, so any talk about bringing intellectual property up to the status of real property is simply nonsense. It's not about even about agreement or disagreement, it's just that the idea itself isn't valid.

Also note that a free exchange of ideas requires that the ideas be freed.

Thomas Macaulay's Speeches on Copyright Law from 1841

These speeches about copyright law by Macaulay from 1841 are still as relevant today as they were 166 years ago. You should be able to find some really useful information in there that explains why even the current length of copyright terms are are absurd, let alone perpetual copyright. Lachlan Hunt 10:31, 21 May 2007 (PDT)

Ridiculous Public Good quote

We quote the original articles statement

"'Freeing' a literary work into the public domain is less a public benefit than a transfer of wealth from the families of American writers to the executives and stockholders of various businesses who will continue to profit"

In addition to what the current article points out, this statement by Helprin is merely an unsubstantiated statement. We could just as easily make the opposite unsubstantiated statement. What evidence is there that Helprin's statement is true?

Also, if Helprin's statement is true then it would logically follow that the public would benefit from removing all works from the public domain (e.g. Dicken's novels, fairy tales, folk songs, epic poems, the bible) and selling or giving them to private individuals (e.g. the Church of England for the King James bible).

Perhaps copyright licensing fees should also be retroactively paid on works that were formerly in the public domain. E.g. Disney might pay the new copyright holder of the Sleeping Beauty tale for their previous and ongoing use of this work. At the very least, when the Sleeping Beauty story is restored to the private domain Disney should either cease and desist from distributing their derivative works or they should negotiate a license with the license holder. Of course the descendants of the Grimm brothers are a likely candidate to be the renewed owners the the Sleeping Beauty copyright. Funkyj 11:06, 21 May 2007 (PDT)

• The number of ways Helprin is wrong in a single sentence is sometimes mindboggling. However, I wouldn't suggest attempting to refute every single way that his words could be taken and show how they don't work. I think it is important to try to find the most basic assumption that he makes that is wrong and refute it, rather than show all the different ways he is wrong. GregLondon 12:02, 21 May 2007 (PDT)

Copyright for ever? Never!

Dear NYT, I read the op-ed “A Great Idea Lives Forever. Shouldn’t Its Copyright?” by Mark Helprin, published May 20th. The author makes a statement, and asks a question, at the end of his piece: “Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else? The answer is obvious, and transcends even justice.” However, the answer, is actually quite a stupid one. It’s a stupid, because the question is stupid. I am the son of a well-published writer, and a grandson of a well-published poet (while they both wrote mainly in Macedonian and Bulgarian, they also have books published in Russia, Germany, and the USA). Last year, I have decided voluntarily, 30 years after the death of my Father, and 19 after the death of my Grandfather to give up “my” copyright. I am now publishing their works under Creative Commons - attribution non-commercial).

I did that for several reasons: a) I want as many people as possible to read their books, for free b) They made their money because of skills they have, I want to make my money with the skills I have. c) Ideas are not like real estates. Unlike land, which can never become more than it is currently on our planet, ideas can multiply, and increase, and become the foundation of new ideas. If I am to limit the access to my father and grandfather’s books, that means I limit the possibility of people to read more than a hundred sonnet crowns, thousands of poems, tens of children stories, history books, memoirs, etc. which probably would never or hardly ever will be published again (my Grandfather’s book, Goli otok - the island of death, published by the Columbia University Press in New York was last sold for $ 350 on Amazon), or even if published, how many people could afford it? d) I want people not only to read them, but also - if they want - to translate them in other languages.

I don’t know if their ideas and books are great ones, but if I decide to not publish them under Creative Commons, that for sure will be an idea. The same idea would be if I had hundreds of years of copyright, and I keep the books and ideas for me and my family - just like land, as Mr. Helprin suggests. That will not be just an idea. That would be an extremely stupid idea.

published at my blog blog.veni.com Veni 12:17, 21 May 2007 (PDT)

You keep talking about "ideas'. You don't copyright ideas, only their expression

So if Disney [just as an example] produces "Dreamtime" an animated feature based on indigenous Australian heritage - do they now "own" that story at least in USA? Would a touring group of indigenous Australians need a licence from Disney to tell the same story - would their tale be derivative? Hopefully not. My point it is one thing to say all work produced in the USA is covered - but such a law would create an incentive to lock up US "rights" to as much material from the rest of the world as possible.

A non-rebuttal, but something to think about

Physical property is not forever, which is the obvious problem in the original article. I own a house, but it ceases to belong to me when I stop paying taxes on it. Perhaps IP should be the same: You have an instant monopoly for a finite period of time, after which your monopoly is taxed. Those who choose not to pay that tax forfeit their monopoly. This would help solve the problem of orphan works (which make up the vast majority of items still under copyright). It would also satisfy the Disneys of the world. Everyone wins.

The problem I see with that is that it feels somewhat equivalent to throwing an individual to the lions so that the people who remain can live a little longer. It most certainly would make Disney happy if all they had to do was pay some money to register their copyrights and know that they would forever hold a monopoly on the entire set of Disney characters. They've been paying millions of dollars every year in campaign donations, a registration fee would be a pittance to them. So, while the idea would solve the problem of orphan works, it does not solve the problems of infinite copyright. It feeds someone to the lions, and we all get to live a little bit longer, but you've still got lions. GregLondon 14:35, 21 May 2007 (PDT)

Stallman on Copyright Law

Concerning the fact that the framers of the US Constitution did not believe that copyright was an intrinsic right but rather an encouragement to authors by allowing them to recoup the cost of their labors, Richard Stallman's GNU Manifesto (http://www.gnu.org/gnu/manifesto.html) says this:

"Control over the use of one's ideas" really constitutes control over other people's lives; and it is usually used to make their lives more difficult.

People who have studied the issue of intellectual property rights carefully (such as lawyers) say that there is no intrinsic right to intellectual property. The kinds of supposed intellectual property rights that the government recognizes were created by specific acts of legislation for specific purposes.

For example, the patent system was established to encourage inventors to disclose the details of their inventions. Its purpose was to help society rather than to help inventors... The copyright system was created expressly for the purpose of encouraging authorship.

...All intellectual property rights are just licenses granted by society because it was thought, rightly or wrongly, that society as a whole would benefit by granting them. But in any particular situation, we have to ask: are we really better off granting such license?"

This reason lessens and then disappears as copyrights are extended. One might argue that a 30-year copyright does more than a 20-year copyright to encourage authors to put in the hard work to create new works, but who can argue that a 300-year copyright gives more encouragement than a 200-year copyright?

Also see Stallman's "Did You Say 'Intellectual Property'? It's a Seductive Mirage" (http://www.gnu.org/philosophy/not-ipr.html).

Guymacon 15:00, 21 May 2007 (PDT)

section moved to talk

I moved the section below "Locke and Natural Rights" to the talk page. It seems too far removed from the issue to be asking ontological questions like "What is property?" in a discussion of how to set copyright terms. I don't think anyone argues what physical property is. I don't think anyone argues that intellectual works is physical property. So, I'm having a hard time seeing how this section has a direct relationship to the issue. GregLondon 15:28, 21 May 2007 (PDT)

Good call. While there are people in this world who don't believe in any property rights, the person who we are crafting a reply to isn't one of them. Also, the last sentence is overly argumentative, IMO. It's good background, though. Guymacon 16:21, 21 May 2007 (PDT)

Locke and Natural Rights

Any argument that a limited term for copyright is an unfair abrogation of the creators rights to their property is incoherent without some background understanding of where property rights come from in the first place. If property rights are mere practical tools to promote progress and economic activity then arguments about 'fairness' have no sway at all. In such a case we have no obligation to protect any property rights except insofar as they promote progress and Helprin seems willing to admit that limited copyright might be better for the public good.

Thus for Helprin's arugment to make any sense we must assume some natural rights theory of property. Now there are too many such theories to count and it is Helprin's burden to make his case from a particular understanding of property rights but it is the Lockean argument for a natural right to property that is often taken to underly the western respect for private property. On Locke's conception it is true that we gain a right to property because we have a right to our bodies and by mingling the work of our bodies with an object we gain possession of that object.

Already we see the difficulty merging this conception of property rights with Helprin's argument. Locke's conception of property rights seems to only protect the actual object the artist makes with his own hands, not derivative copies (see here Russell 2004 cite). Indeed Locke's conception of property rights seems incompatible with any notion of copyright whatsoever as the possession of a copyright is exactly the power to deny someone else the product of their labours. Should I copy out a book of Helprin's using paper and ink I have crafted myself it would be a violation of my rights to property to force me to give up part of that labor to the copyright holder. If we don't take this point of view, and suppose that anyone who crafts a chair, builds a bow or brews ale or does anything at all owes something to the descendants of the first man to do so Locke's whole theory seems to fall apart.

Even if one does not accept this argument it is important to realize that even Locke's conception of property has limitations. A man may not claim property rights to more than he can productively use. The first man to reach antartica could not have claimed the whole of the continent for his use merely because he had expended labour to discover it and the fact that he could 'use' it to charge rent on other potential users doesn't change that. Yet this restriction alone would seem to prevent the copyright holder from claiming rights to more than the copies of a work he personally uses.

In short, a Lockean conception of property rights seems incompatible with Helprin's position as is the pragmatist view of property rights. Thus if Helprin wants his argument to be taken seriously, rather than merely being an emotional appeal, the burden is on him to articulate an alternative theory of property rights and explain why they support his position.

• Excellent point. Helprin is obviously oblivious to the theory of rights the US Founders built our system on. His dismissive tone toward Jefferson is actually quite appalling. Considering how successful this country has been in creativity over the last two centuries and change, being dismissive of the system that got us here is breathtakingly stupid. Our Founders were not "gods", of course, this may not be the best system ever devised by human beings, but it took us from an agrarian society to space in a mere two centuries. Obviously, they did something right. My first, emotional reaction to the article was "oh great, another twit who thinks he's smarter than the Founders." Yes, times do change. Yes, situations change. Yes, the Founders could not have foreseen this future. Yes, they were human and flawed and the system they set down isn't holy writ from on high we should never, never, never touch. BUT... it's worked breathtakingly well. Just waving your hands and dismissing the thinking of the people who gave birth to a country that had such a meteoric rise is... well, it's stupid. That's the only word I can put to it. Mkbilbo 11:05, 22 May 2007 (PDT)

Eric Flint on copyright length

Eric Flint has some excellent (IMHO) essays on copyright duration (and DRM) here: http://baens-universe.com/columns/Salvos_Against_Big_Brother (particularly the essay from August 24, 2006). CWitty 19:03, 21 May 2007 (PDT)

Sylvia Plath

"To the claim that this provision strikes malefactors of great wealth, one might ask, first, where the heirs of Sylvia Plath berth their 200-foot yachts."

Sylvia Plath's copyrights have not expired, they are owned by the Sylvia Plath estate, which is her children Frieda Hughs, and her reclusive brother. They have been using this copyright to great financial effect

http://dir.salon.com/story/books/feature/2003/10/17/plath/index.html?pn=2

"n June 2002, Frieda Hughes further complicated her proprietary stance over her family's story by accepting an $80,000 grant to be distributed over three years from Britain's National Endowment for Science, Technology and the Arts. Hughes' NESTA grant, which is funded through national lottery money and is therefore rightly considered a public charity, is intended to give her the "opportunity and means" -- apparently without regard to the fact that she is one of the two sole copyright holders and financial beneficiaries of the works of her mother, whose poetry and fiction has been in constant, vigorous print around the world for four decades -- to write her life story, charting her first 40 years through poetry and painting. Just four months later, Hughes announced her bitter rift with her stepmother, Carol Hughes, over control of the income from her father's estate, said to be worth $3.5 million at the time of his death."

and late last year, Frieda Hughs was found schmoosing on Alan Bond's fabulous new Yacht.

http://www.news.com.au/business/story/0,23636,20941614-462,00.html

"He drank vodka and elderflower cocktails alongside guests such as Peaches Geldof and poet Frieda Hughes, the daughter of Sylvia Plath and Ted Hughes"

-Breton Slivka

And this story brings to my mind the public funds given to PBS (Public Broadcasting System) to develop the Bill Nye the Science Guy series. Originally the videos were sold at about $25, now, through Disney, they are sold at twice that.

The funny part is that the Nye series uses a lot of the vintage educational videos snips in his videos. Maybe that is ironic.Dickey47 09:11, 31 May 2007 (PDT)

My Land: From the Centre of the Earth to the Top of Heaven

I've just finished reading "Free Culture" and in the early part Lessig talks about the property owner who tried to charge a fee for aeroplanes flying over his property. The government realised quickly that this was unworkable for the new airline industry. The government will not hesitate to resume land (after adequate compensation) for any public good such as freeways. Property, even real estate, is not exclusively yours what ever comes.

Where is "Free Culture" found? As an aside, what if the air over your property involves very low hung powerlines that keep you from building a shed - and thus using your own property? And if those powerlines were for your neighbor and there is no right-of-way - but the power company claims it has been there for decades.

Seems to me the reason for all these rights problems is there are so many permutations of rights and specific instances it causes copyright and other IP rights to become all gray.Dickey47 09:15, 31 May 2007 (PDT)

Surface Glosses

This section of the rebuttal takes the quote out of context and completely misses the point.

Helprin was trying to say that equating works of art with ideas isn't fair to either. To use an obvious example, there's a difference between protecting the idea of a talking mouse, and protecting the specific embodiment of that idea that is Mickey Mouse. The specific artists who created Mickey Mouse created something unique. In fact, I might go so far as to say that he is advocating THREE items of value in a work, the overall idea (from which someone else would make a unique Mickey cartoon), the specific artistic embodiment (from which someone would make an exact duplicate), and the physical entity (a given reel of film containing the cartoon.)

Rights for the physical entity are handled by property laws.

Rights for both the idea and the artistic embodiment are handled by copyright. When we talk about derivative works, we're talking about the rights to the idea. When he talks about stealing, he's talking about duplication of the artistic embodiment.

The argument for allowing derivative works after limited times is made quite eloquently over and over by proponents of limited copyright terms. It is clear that allowing derivative works benefits society. However, this argument falls on deaf ears because when we say "derivative works" authors hear "wholesale copying."

We need an argument that succinctly states why allowing exact duplicates also benefits the public good. It would be preferrable if this argument was not an economic one, such as "it makes duplicates cheaper if the public doesn't have to pay the artist for them" (even though I think that is a strong argument since the primary impetus for copyright was economic.) Orphaned works are one good example of an argument for allowing duplication. I think another good example would be that it allows art to move from being just a product that is bought and sold to being a part of the culture, much like Shakespeare has become a part of the culture for the English-speaking world. The song "Happy Birthday" is probably also a good example of a work that would become a stronger part of the culture were it not for the existing copyrights. All of this would have to be put more eloquently than I have put it.

• For that, look to the patent law case of Scott Paper v. Marcalus, 67 USPQ 193, which describes the constitutional purpose of patent in words that apply mutatis mutandis to copyright also:

The aim of the patent laws is not only that members of the public shall be free to manufacture the product or employ the process disclosed by the expired patent, but also that the consuming public at large shall receive the benefits of the unrestricted exploitation, by others, of its disclosures....The public has invested in such free use by the grant of a monopoly to the patentee for a limited time. (Scott Paper Co. v. Marcalus Mfg. Co., Inc., 67 USPQ 193, at 196. 1945. Stone, J. Emphasis added.)

Similarly the aim of the copyright laws ought to be not only that members of the public shall be free to reproduce the expression formerly monopolized under the expired copyright, but also that the consuming public at large shall receive the benefits of the unrestricted exploitation, by others, of the work's expression. The public has invested in such free use by the grant of a monopoly to the author for a limited time.

How long should such a rebuttal be?

There is a lot of good material in the article so far, and it is good to see sections improve over time. Alas, there comes a point where too much good material overwhelms readers who aren't passionate about the topic -- the "my eyes glaze over" effect.

One thing that will help is to condense and combine the arguments wherever possible, and I encourage the contributors to look for opportunities to do that. Other possibilities that come to mind are making short and long versions, or possibly separate documents titled "the case (or perhaps argument for or advantages to?) for content creators", "the case for users", the case for society at large", etc. Does anyone have any other ideas for avoiding MEGO?

Guymacon 14:43, 23 May 2007 (PDT)

Only so many permutations

This section as written has problems. The discussion about the content ended up inline instead of on the talk page, the math is wrong, and it's not really a specific argument against perpetual copyright. Because of this I deleted it and moved it here, in the hope that a better version can be hammered out here. If anyone objects, feel free to revert the page and to start a discussion here about why it should stay as is -- I don't wish to step on any toes.

(start of deleted section)

Much of modern language originated with written words in the last thousand years. Were Helprin's idea the law, I suspect he would be at risk of suit by the great-great-great-great-great-great-great grandchildren of everyone from Shakespeare on down for using in his op-ed common phrases that turn out to owe their origin to someone else.

But, you say, it would be absurd to copyright, for example, plots. Boy meets girl. Consider then, music written in 4/4 time. A liberal calculation, assuming a 16 note scale, sharps, flats, and regular notes, the possibility of silence, a possible 32 beats per note, and 4 beats per bar, yields a total of only 75,264 different melodies expressed in 12 bars or less. This includes one or more repetitions within the 12 bar interval, as well as the melody of John Cage's 4'33". At the rate of one new melody per day, surely not an outrageous rate given the number of musicians in the world, all possible 4/4 melodies will be exhausted in a mere 207 years. Of course we will run out of appealing 4/4 melodies far sooner.

[Someone better than me needs to do this edit: the calculation above is completely wrong. Given 16 notes in the scale (plus one for silence) and 32*4*12 = 1536 slots into which to insert them, the number of melodies is 17 ^ 1536 or 10^1890 - which is effectively infinity (far far more than one per subatomic particle in the universe per microsecond since the big bang). This argument should therefore not be included in the essay.]

[agreed... besides, an octave has 12 notes, not 16; some of the notes are only a half-step apart so they are each other's sharps and flats. Still, even assuming only quarter-note granularity and making some other simplifying assumptions, we have 13 notes -- 12 plus silence -- raised to the power of 4 * 12 = 48 slots, that's 294632676319010105335586872991323185304149065116720321 possible melodies, which is 689925480199063588187769284606774816 melodies for every second in the history of the universe. This argument should therefore definitely definitely definitely not be included in the essay.]

[ and finally, see more below; the Spider Robinson piece I cite makes precisely theis argument... though I think that it's legally immaterial. --Baylink 11:34, 21 May 2007 (PDT) ]

The point of this calculation is not to produce an exact number, but to show that it is as absurd to allow perpetual ownership of melodies as it is to allow ownership of plot lines. The essence of copyright litigation revolves around showing "substantial similarity". Plot is as important to the equation as timing and tone, as important as incorporated elements of industrial design. Which brings the argument back to its point: an ordinary artist would soon be unable to navigate the resulting legal minefield.

Gino Stefani (Melody: A Popular Perspective Popular Music, Vol. 6, No. 1 (Jan., 1987), pp. 21-35) defined melody as "simply music in so far as it is close at hand; it is that dimension of music which everyone can easily appropriate in many ways: with the voice by singing, whistling or putting words to it; with the body by dancing, marching, etc." There would be no better way to kill the production of new music, or any art, than by preventing artists from appropriating the work of another.

Inevitable Discovery: very few ideas are so vastly original that someone else would not have thought of them eventually. A limited period of exclusive usage recognizes the work and contributions of an individual to art and science while recognizing that their contributions would have been arrived at eventually by others and a perpetual exclusive license is inappropriate.

Seven Plots: there are only seven basic literary plots; what if these had been copyrighted back in the day (this is certainly akin to the modern usage of copyright). Wouldn't this throw us back into the effective realm of kings and dynasties, because a small set of families would own the fundamental ideas of humanity? That would largely strip Mr. Helprin of his ability to have any property rights over his good ideas that last forever.

To be sure, copyright as currently construed won't protect basic plot ideas or short elements. But the reason it does not do so is the same reason it is not perpetual -- a need to balance the interests of later users against the interests of the author. If the whole balance enterprise is misguided, as Helprin seems to believe, why shouldn't Shakespeare (or the authors of the Bible, once they can be found) own rights to "their" original turns of phrase?

(end of deleted section)

Guymacon 14:58, 23 May 2007 (PDT)

• I was eyeing that section for possible removal, but I figured I had cut a lot already, so I left it for someone else. The article should definitely be short enough that the somewhat-interested would actually read it, or most of it, rather than being so long that we end up effectively "preaching to the choir" because the only ones who read it are the people who already passionately agree with us. GregLondon 08:17, 24 May 2007 (PDT)

• Another section for potential deletion is the other points against Helprin section, which is basically a laundry list of bullet points. I think the existing sections cover most of the important rebuttals, the "other points" section is sort of a catchall. I'd say cut it. GregLondon 08:22, 24 May 2007 (PDT)

Could Shakespeare do today what he did back in his time?

Putting aside cultural aspects of the question, I'm asking from a legal standpoint. I don't have my copy of the Riverside edition of Shakespeare's works on hand; but one of the themes the editors discuss is the source of each of the plays. Some of the plays lifted material from sources that were less than 20 years old, if I recall correctly; and these would not be considered fair use by todays standards.

• An example of Shakespeare copying creatively from a near-contemporary here

Emerson in his Representative Men talks about Shakespeare taking the best of what was available:

"The secure possession, by the stage, of the public mind, is of the first importance to the poet who works for it. He loses no time in idle experiments. Here is audience and expectation prepared. In the case of Shakespeare there is much more. At the time when he left Stratford and went up to London, a great body of stage-plays of all dates and writers existed in manuscript and were in turn produced on the boards. Here is the Tale of Troy, which the audience will bear hearing some part of, every week; the Death of Julius Caesar, and other stories out of Plutarch, which they never tire of; a shelf full of English history, from the chronicles of Brut and Arthur, down to the royal Henries, which men hear eagerly; and a string of doleful tragedies, merry Italian tales and Spanish voyages, which all the London 'prentices know. All the mass has been treated, with more or less skill, by every playwright, and the prompter has the soiled and tattered manuscripts. It is now no longer possible to say who wrote them first. They have been the property of the Theatre so long, and so many rising geniuses have enlarged or altered them, inserting a speech or a whole scene, or adding a song, that no man can any longer claim copyright in this work of numbers. Happily, no man wishes to. They are not yet desired in that way. We have few readers, many spectators and hearers. They had best lie where they are.

"Shakespeare, in common with his comrades, esteemed the mass of old plays waste stock, in which any experiment could be freely tried. Had the prestige which hedges about a modern tragedy existed, nothing could have been done. The rude warm blood of the living England circulated in the play, as in street-ballads, and gave body which he wanted to his airy and majestic fancy. The poet needs a ground in popular tradition on which he may work, and which, again, may restrain his art within the due temperance. It holds him to the people, supplies a foundation for his edifice, and in furnishing so much work done to his hand, leaves him at leisure and in full strength for the audacities of his imagination. In short, the poet owes to his legend what sculpture owed to the temple. Sculpture in Egypt and in Greece grew up in subordination to architecture. It was the ornament of the temple wall: at first a rude relief carved on pediments, then the relief became bolder and a head or arm was projected from the wall; the groups being still arranged with reference to the building, which serves also as a frame to hold the figures; and when at last the greatest freedom of style and treatment was reached, the prevailing genius of architecture still enforced a certain calmness and continence in the statue. As soon as the statue was begun for itself, and with no reference to the temple or palace, the art began to decline: freak, extravagance and exhibition took the place of the old temperance. This balance-wheel, which the sculptor found in architecture, the perilous irritability of poetic talent found in the accumulated dramatic materials to which the people were already wonted, and which had a certain excellence which no single genius, however extraordinary, could hope to create.

"In point of fact it appears that Shakespeare did owe debts in all directions, and was able to use whatever he found; and the amount of indebtedness may be inferred from Malone's laborious computations in regard to the First, Second and Third parts of Henry VI, in which, "out of 6043 lines, 1771 were written by some author preceding Shakespeare, 2373 by him, on the foundation laid by his predecessors, and 1899 were entirely his own." And the proceeding investigation hardly leaves a single drama of his absolute invention. Malone's sentence is an important piece of external history. In Henry VIII I think I see plainly the cropping out of the original rock on which his own finer stratum was laid. The first play was written by a superior, thoughtful man, with a vicious ear. I can mark his lines, and know well their cadence. See Wolsey's soliloquy, and the following scene with Cromwell, where instead of the metre of Shakespeare, whose secret is that the thought constructs the tune, so that reading for the sense will best bring out the rhythm,- here the lines are constructed on a given tune, and the verse has even a trace of pulpit eloquence. But the play contains through all its length unmistakable traits of Shakespeare's hand, and some passages, as the account of the coronation, are like autographs. What is odd, the compliment to Queen Elizabeth is in the bad rhythm.

Emerson continues on in the discussion

It seems that any sane copyright law should allow at least some one like Shakespeare to do his magic.

• Or Handel, whose Israel in Egypt is extensively copied from others' works. More on Handel's creative copying here.

moved to talk

I've moved the "other points against Helprin" section to the talk page. pasted below. GregLondon 16:43, 25 May 2007 (PDT)

Other points against Helprin

• Also argues that artists themselves need to be "freed from a form of confiscation not visited upon anyone else" -- but don't they die before this happens?
  • Are any artists actually worried about their copyright running out?
    • Some old musicians in the UK who are getting hit by sound recordings' being protected by UK copyright for only 50 years
    • Authors may be able to sell their copyright to corporations that will outlive the author for greater returns if the copyright protection lasts longer
  • Don't the worries that actually plague artists stem from publishers and royalties, both being complications raised by copyright itself?
• how long should patents last?
• Helprin argues for the lengthening based on the "next Great American Novel", conveniently ignoring the other 100 authors with 100,000 lower-quality manuscripts which will all receive the same lengthening
• issues in transferring copyright
• Non US based legal systems with no US constitution but limits on terms.
• Surely the main point: the stifling effect of permanent copyright on freedom to create
• Positive rights vs. Negative rights
  • Some people believe the ability and right to possess real property is natural and does not derive from government protection while the protection of intellectual property is a positive right that requires government interference that restricts the rights of others. However, it can also be argued that the type of possession which is natural is akin to squatting or "I hold it in my hand". A landlord's ownership of an apartment building, for example, could be said to derive from government protection.
  • These people believe that "positive" rights should be limited in both scope and duration. Perpetual copyright would represent a permanent restriction on the rights of legitimate consumers and producers, and would require government to act as a police force to ensure that copyright owners profit. Instead, a free market dictates that individual owners should continue to produce creative works in order to continue to profit.
• In other fields it is accepted that an idea eventually passes to the general public. This allows civilizations to evolve and the creators of technology to have motivation for staying creative. Why should immaterial 'intellectual property' be any different? (We ask this despite the fact that, of course, an idea passes to the general public as soon as its expression is published.) In any case the people who usually benefit from this are not the artist, but corporations, especially when we are talking about copyright beyond the death of the artist. If you visit a museum, you will realise that even if the copyright has expired for the works, the attribution of who created them stays. A good example is Disney, especially since they try extending copyright all the time: Disney based most of his early works on existing stories, adding his own flavour to them. If copyright had persisted on those early works, I very much doubt that we would have seen films such as "Pinocchio" (orginally by Italian author Carlo Collodi) and "Snow White" (partly borrowed from a book by the Brothers Grimm), since Disney did not have a large funding at that point in time.
• As a practical analogy, say there were a serious move afoot in Congress to extend copyright forever. Odds are such a law would be for all existing copyrights, but not retroactively to public domain works. All works created before 1923 are in the public domain, but the Sonny Bono act extended the period for copyrighted works after this date by 20 years more beyond the author's date of demise. This in itself was a bit peculiar, but since there was an eventual copyright expiration date, then little long-term harm would be done by this single piece of legislation. If extended in perpetuity, by what principle would works published December 30, 1922 be in the public domain forever and those published a day later be copyright forever? What seminal event happened on January 1, 1923, that changed the world in such a way that such a monopoly was the only reasonable response?
• We can take the act of extending copyright to infinte duration a step further by conferring intellecutal property protections (presumably also of infinite duration) to theorems, algorithms and other natural laws whose discovery is currently not subject to patent or copyright protection. It doesn't take much thought to recognize the severe negative impact this would have on basic scientific research. Unfortunately, the strong IP folks are already pushing in this direction, as business methods, genes, and stem cell lines now all being patentable.

Analogy wars

Helprin's entire point is built on analogy

author writes book == author builds house for himself to live in.

This analogy itself can be criticized, and counter-analogies offered. Here is my contribution to the analogy wars:

There is no good analogy in the law of real property to a copyright or a copyrighted work

The core of Helprin's argument seems to be, "if I build a house on my land, it should be able to be privately owned forever." But writing a book for the general public is nothing like building a house on one's own land. A landowner who builds on his own land lives in the house he builds. No one else lives there. No one's life is disrupted or changed by the presence of the new house, except perhaps the next-door neighbors'. None, except maybe the immediate neighbors, need modify their behavior on account of the new structure. Those who live far from the house are not even aware of its existence. Additionally, in many jurisdictions, the tenant must constantly pay taxes on the land, regardless of whether the land generates income or not.

A literary work that is released to the public is nothing like this hypothetical house. Thousands, perhaps millions, of private lives are altered by the existence of the book. If anyone can be said by analogy to "live inside" the work, it is not its author (whose attention is taken up by his next work), but its readers. So if some analogy to house-building must be used, then the author is analogous to a hired builder, and the reading public is the analog of the homeowner. The copyright, on this analogy, is the mortgage that the homeowner pays on the house over a term of years.

But might we not use the analog of a public accommodation for the literary work, likening it to an amusement park which members of the public visit for their diversion? The analogy fails for the same reason the author's-house analogy fails. It does not account for the non-local nature of a literary work, and the intimate relationship a work has with its readers' very thoughts and speech. The analogy which likened the public to a housebuyer tried to account for this by making the whole public analogous to a single individual, the homebuyer, who lives inside the literary work, which was likened to the house. The non-local nature of the public, in that analogy, was accounted for by locating the entire public in a single analogous individual. The intimate relationship of the work to the reading public, in that analogy, was accounted for by likening the work to the house the homeowner lives in.

The amusement-park analogy, however, is at a much lower level of abstraction. The public is made analogous to the holiday-makers who visit the park. The non-local nature of a literary work can perhaps be accounted for by likening the work not to a single amusement park, but to a chain of parks all over the country. But this analogy still does not account for the intimate nature of literary works. A song or a story--a literary work-in-itself--lives in a reader's head. So a holiday-maker's memories of having visited an amusement park, and his photographs of his time there, are not the analog of a literary work. It must be the amusement-park itself that is the analog of the work. But a literary work goes home with a reader, both in the form of printed copies of the work, and in the way it influences the reader's thoughts and speech. The amusement-park itself does not go home with the holiday-makers. The analogy fails.

Techdirt folo

Techdirt follows up on the topic, with a pointer to another NYT piece which sounds like it's on our side. --Baylink 06:55, 30 May 2007 (PDT)

• Interesting thought came to me as I replied to a comment on the site. Is this non-stop tightening of "intellectual property" in the interest of artists and inventors? Such as when criminal penalties were added to what had once been a civil matter. That is, before, infringement could cost you profit but not jail time. Now we have things such as the NET Act which provide criminal penalties even for non-commercial distribution. Technically, you can throw someone in jail for sharing a single song. Something kids do--innocently enough--all the time. How many teenagers in jail (or juvenile) would it take before there's a backlash? Were the public to wake up one day and say, "Wait a minute, WE give you people those monopoly grants but you threw my kid in jail for sharing a song with his friends?", what happens to copyright then? Mass public domaining? Drastically shortened terms? An actual abolition of copyright (which could be done, the Constitution allows but does not require the monopoly grants)? I can't help but think of the story that Disney was sending cease and desists to day care centers to make them stop using Disney characters in wall murals. Which isn't an urban legend according to Snopes but actually happened. And I recall how disgusted people were over the move. How many times of such things happening would it take before the public became seriously angry and beat on their Congresscritters to start pulling copyrights entirely? How much damage could be done by a nasty backlash against copyright holders? Mkbilbo 09:30, 30 May 2007 (PDT)

Looking closely at Twain's argument

Many people point to Mark Twain as the predecessor of Helprin's argument. It is worth looking closely at Twain's argument for perpetual copyright [2]: he argues that it can be established since there are very few authors / works that "can outlive the forty-two-year limit" (that was in force at that time). "This nation can't produce two authors a year that can do it; the thing is demonstrably impossible." - if so, then let that one genius per year profit from perpetual copyright. This argumetn is flawed since these single works can be assumed to be keystones of our heritage. But additionally it's an argument that made some sense in a reality of print-only publishing - but makes no sense in a digital culture, where a long tail of heritage lets any work "outlive the limit".

Furthermore, Twain argues for the artist, against the publisher: "One hundred persons- that is the little, insignificant crowd whose bread-and-butter is to be taken away for what purpose, for what profit to anybody? You turn these few books into the hands of the pirate and of the legitimate publisher, too, and they get the profit that should have gone to the wife and children."

Tarkowski

Cruxlux debate capture

I've tried to capture Helprin's arguments and all the counterarguments made here in a debate at Cruxlux, if anyone's interested: http://www.cruxlux.com/debate/200/copyright-should-last-forever . That first page shows his arguments and the responses to each. The "Case against" link shows arguments against the primary thesis. If you find it useful, could build off it and perhaps challenge people from the other side to join in. (Cruxlux is a site I'm involved with that tries to organize blog debates and really put specific arguments head to head in a clear way.) guha 23:00, 14 June 2007 (PDT)

More passages move from article to discussion

The following marginalia seem better placed in the discussion section.

This passage, apparently from two different hands, was moved from the second paragraph: (The fact that there is a limit to the amount of real estate in the world has nothing to do with distinguishing physical from intellectual property. For one thing, personalty is not "zero sum," or finite, at all, personalty is infinite in fact. [so whoever keeps reinserting inane "zero sum" references here really must simply stop already and think about it more clearly...the finite nature of real estate says precisely nothing about what any conceivable term limit on real estate property should be or who should impose it, individuals through a bargaining process, or the state. The state might by statute impose various term limits on real or personal property whenever it pleases, and in fact, this often occurs, as when the state walks in to "condemn" land, to wit, Kelo.])

From the third paragraph: [Nothing, however, in law or the constitution, says that copyright was supposed be limited to permitting creators to "recoup" the costs of their "labor." Au contraire.]

From the section about the social burdens of perpetual copyright: [Will you please stop saying "zero sum." This is opaque and unpleasant as well as inaccurate jargon used in this context. The real point is the complexity of intellectual properties which creates large transactions costs to burden the vast majority of society if the public domain were abolished, simply to benefit the (unworthy) heirs of a very tiny handful of creators whose work retains value a few years after first publication. (The benefits to these individuals, of a license to rent-seek, gives little incentive to original creators and would retard science, art, and progress by placing enormous transactional burdens on free and natural expression.]