O'Reilly On How Copyright Got To Its Current State 177
Schneed Tweedly writes "William Patry is one of the leading scholars in the world on copyright law. For a long time he maintained a blog, "Patry on Copyright," that discussed new cases as they came out. A few days ago, though, he shut down his blog because 'the Current State of Copyright Law is too depressing.' O'Reilly has a long post up on their news site discussing Patry's retirement from blogging and giving a history of copyright that explains how we got where we are."
Is it really? (Score:2, Insightful)
Sure, copyright legislation is getting stricter, but that's only because it's trying to combat the increasing cases of infringement. It's a fight that's about to end, and there can only be one winner. When the rivals are the governments vs the entire world, my money isn't on the governments...
Re:Is it really? (Score:5, Insightful)
Mickey Mouse (Score:5, Insightful)
Comment removed (Score:5, Insightful)
Expression vs. function (Score:2, Insightful)
I know this is rather tangential, but the article did start out with contrasting Expression vs. Function under "Copyright in Context" heading. I think the best proof that software is ruled by copyright vs. patent is available at http://99-bottles-of-beer.net/ [99-bottles-of-beer.net] 99 bottles of beer, programmed in 1214 different languages and/or variations. Clearly the function is the same, but the expression differs wildly.
we just have to change copyright (Score:2, Insightful)
Let's change "copyright" to "copywrong" to reflect the current situation.
Re:Is it really? (Score:4, Insightful)
Infringement cases are increasing because of the continual copyright term extensions.
Bah.
Re:No Mention of the Copyright Extension Act? (Score:5, Insightful)
To expand upon this, I feel like the large corporations who fucked up copyright have ruined it for the rest of the creators who just want to make a living. People no longer view the copyright issue as a moral one, and a pure legal one. Its not the large corps that are going to suffer. Its the hobby game developers, independent photographers, small bands, and other people that copyright was made to promote.
How copyright got this way? (Score:5, Insightful)
That's easy: Greed.
Copyright was not originally a moral issue. (Score:3, Insightful)
To expand upon this, I feel like the large corporations who fucked up copyright have ruined it for the rest of the creators who just want to make a living. People no longer view the copyright issue as a moral one, and a pure legal one. Its not the large corps that are going to suffer. Its the hobby game developers, independent photographers, small bands, and other people that copyright was made to promote.
Au contraire, I think. As most of us around here know, the reasoning enshrined in the US Constitution for copyright is to "promote the progress of science and useful arts." That's not a moral issue. There's no discussion of the moral rights of an author, or intellectual property, or the ownership of one's ideas or the creations of one's mind.
No, from what I can see, copyright was established for a very practical purpose. It wasn't a moral issue. If anything, people are making it into one nowadays - it's all talk about rights and ownership and fairness.
Re:No Mention of the Copyright Extension Act? (Score:4, Insightful)
A large problem is that most people just don't feel copyright infringement is immoral anymore.
It's not immoral, and never was. Copyright infringement isn't wrong, it's merely illegal. It's an economic incentive for writers and inventors written into the constitution.
That's it.
How it really worked: (Score:4, Insightful)
A few megacorporations (like Disney) realized their ace-in-the-hole (like Mickey) was about to hit public domain.
So they sent bags of money, hookers, and bags of money with hookers hidden inside, and made sure the "right" collection of congresscritters got them along with the message "extend copyright, and there's more."
Repeat every time Mickey Mouse was about to be public domain... meanwhile Disney RAPED the public domain (little mermaid, snow white, jack and the beanstalk, etc...) of everything they could and started flinging lawsuits when other people produced competing works based on the same PUBLIC DOMAIN works.
Copyright should be for the same length as a patent, period. The purpose of each is the same: to promote progress by letting people have a limited time monopoly on the product of their unique expression/inventiveness.
If I write a semi-popular novel at age 25 and live to the average age of 86, that means that my novel won't hit the public domain until the 22nd century (if ever). I personally find that repulsive, and anyone who gets the purpose of copyright ought to be disgusted by the notion as well.
If I want to keep making money, I should have to (at some point) start working again. The best authors - Stackpole, Niven, Asimov, McCaffrey, Doyle - always have, even if their properties could have let them retire in opulence and never have to lift pen again. Intermediates like Rowling (and sorry, but no she's not as good as people gushing over her like to think) do the opposite: they just cut off and sit back on the eternal "it's copyrighted forever" bandwagon.
Real problem is equal protection (Score:4, Insightful)
These laws like copyright extension would be good, on balance, if it weren't for the fact that large corporations are in improved positions compared to a typical private citizen, when seeking damages, especially in court but also in any negotiation.
If the playing field were level, laws like those protecting copyright would protect you exactly the same as they protect the big players.
Even so, I still think people should already take this status quo as a sign that it is time to stop being a mere consumer of entertainment. Be creative. This stuff should be a powerful whip, provoking and compelling you to make your OWN music or whatever artistic/creative endeavor you choose.
But don't listen to me, I'm crazy. I don't even have a TV in my house. (I need the space for my piano.)
Re:Is it really? (Score:3, Insightful)
Oh please....
You're in fantasy land if you think the people are not going to riot over copyrights. Food, Depression, Water, Crime, etc... sure. Copyrights... not so much.
People wouldn't accept it if shop owners called for the death penalty for shoplifting, nor if copyright holders do the same. Countries not so utterly under the spell of lobbyists as the US won't make large parts of their population into "dangerous criminals". Unlike the US where a riot is the only thing that'd change something in many countries you can actually vote parties out of the parliament for doing stupid shit - two are at risk of doing so next election here. Maybe the US will kill itself under its copyright tzars but the world won't.
Re:No Mention of the Copyright Extension Act? (Score:2, Insightful)
why not change the law such that you have to apply for an extension of copyright? If nothing is filed within, say, 10 years of expiration, then the work goes into the public domain. I'd say 10 years is a long enough time to realize profits on even the most unwanted cartoon character.
Reasonable Solution (Score:3, Insightful)
Where exactly can we find a reasonable solution? One might contend the US produces no finer export that its IP, from music, movies, to books, software and video games.
I believe we should be able to protect IP, but that doesn't mean it should become this draconian institution. Where exactly is the compromise?
Re:Patry to make archived posts (Score:3, Insightful)
Mr. Beckerman, I don't know if you'll have a chance to respond to this, but I'm kind of itching to ask after reading something.
It seems to me that the whole copyright debate has shifted from what was originally an issue of economic incentive to an issue of natural and moral rights. The starving artist is invoked not only to inspire our sympathy, but because we're told to think that it's only fair for someone to be able to control their ideas.
Now, according to the analysis of the copyright clause of the Constitution available here [gpoaccess.gov], there is no natural, moral, initial, or other right of exclusive use. I.e., the only reason the rights exist are because of the copyright clause - it's not that the copyright clause was expressing a natural right that pre-existed:
Wheaton, while denying this assertion of fact, further contended that the statute was only intended to secure him in his pre-existent rights at common law. These at least, he claimed, the Court should protect. A divided Court held in favor of Peters on the legal question. It denied, in the first place, that there was any principle of the common law that protected an author in the sole right to continue to publish a work once published. It denied, in the second place, that there is any principle of law, common or otherwise, which pervades the Union except such as are embodied in the Constitution and the acts of Congress. Nor, in the third place, it held, did the word "securing" in the Constitution recognize the alleged common law principle Wheaton invoked. The exclusive right which Congress is authorized to secure to authors and inventors owes its existence solely to the acts of Congress securing it, 1446 from which it follows that the rights granted by a patent or copyright are subject to such qualifications and limitations as Congress, in its unhampered consultation of the public interest, sees fit to impose.
So my question is, is this Wheaton v. Peters idea still in force? Or has the law evolved since then to find some sort of natural right? If not, doesn't that make so much of the copyright debate ultimately misguided?
Comment removed (Score:2, Insightful)
Vanishing Art (Score:5, Insightful)
I think a lot of people discussing the issue of copyright law in the U.S. are missing out on a big part of the picture. This is not just about greed sucking money from our wallets needlessly. Sure that sicks, but it is just money. The real problem is the irreparable damage. It's the works that are gone completely, or exist only in tiny quantities and may as well not exist as far as the average person is concerned. The U.S. no longer requires reference copies of works to be submitted, so when the last copy of a movie corrodes, the last copy of a book is burned in a fire, the last recording of a song is shattered... that's it. Society will never get those back and we're no longer able to build on those works and progress like we used to.
Have you ever read about how the great works of art, film, and literature were received by the public? Often it is the case that they were not well received and were recognized only by later generations. The film "It's a Wonderful Life" is a good example. It bombed at the box office and sat on a shelf for decades until copyright expired and PBS ran it (because it was free). That story is not one that will be repeated. Our current laws assure that similar works today will sit on those shelves forever. Heck, they've even re-copyrighted "It's a Wonderful Life" through a technicality. The laws have not kept up with technology either, allowing DRM to further make sure it will be very, very difficult for works to be viewed by future generations.
Fourteen years was enough time back when books had to be printed with slow, old fashioned presses and shipped by horse or ship. Now, works can move instantly across the net and fourteen years after a console video game is released (locked by DRM to specific machine) will there be any machines left that can even play it? Huge portions of our artistic heritage are simply being flushed down the toilet... and for what? So companies can continue to make a profit from that tenth of a percent of copyrighted works that are still being sold after ten years? Greed may be the cause of the problem, but it's a lot more than just money that is being taken from us.
Re:How it really worked: (Score:5, Insightful)
Worse yet, the perpetual and endless copyright hinders any kind of development, since we'll one day run into a lack of "free" material to draw from. Everything you could write, no matter how much it was your own creation because you didn't even know anything like it existed, will have been done before and someone will sue you for plagiarism.
There are only so many ideas you can explore that are interesting to read. When are we going to run out of material you may use without causing someone to sue you for plagiarism?
Re:How it really worked: (Score:5, Insightful)
And that there's the problem. There's no incentive to keep creating, which is the entire purpose of copyright. Thanks for making such a great argument against it!
Re:No Mention of the Copyright Extension Act? (Score:5, Insightful)
I shall make my livelihood masturbating into a cup.
What, no one pays me for that? Perhaps I chose the wrong business model.
To make it clearer: No one has a RIGHT to make a livelihood in anything they do. They have a right to pursue it, and that's it. If they can't make money making copies of things (because it costs nothing to do it, and is therefore infinitely available), they should make money getting people to pay them to make it in the first place (their time and skill is the scarce resource, and therefore what's valuable).
Re:No Mention of the Copyright Extension Act? (Score:5, Insightful)
While it is the large corps that have destroyed copyright through overexpansion, I don't think this has ruined the scene for independent creators, but what it means to be successful as an artist is starting to change. Of the last ten CDs I've bought, seven have been purchased directly from the artist (usually while they were playing on a subway platform, usually for $10). I think the modern move away from paying for creative content owned by big corporations frees up those dollars for buying creative content from local artists. Local artists then give places regional flavor and culture (severely missing from the world these days) The changes taking place seems to slowly be smoothing out the income progression for artists, it's not just a bipolar jump between the poverty of the unknown and the riches of the famous. Along with losing that sudden jump comes the loss of the ability for an artist to make one or two great pieces, charge a fortune for them and then be set for life. Artists will have to work every day just like everyone else, always producing new content to sell just like a farmer must always produce new food to sell. I don't think the mainstream stardom is going to vanish quickly, but I think that is going to slowly fad in favor of more regional and local talent.
Re:How it really worked: (Score:3, Insightful)
Indeed no worries, if there was no copyright she'd never have gotten rich!
Of course, she'd probably also never have bothered to keep being creative for so long. You might have gotten a book out of her, maybe a short story. But not as many books.
Sorry, your reality check bounced (Score:5, Insightful)
Infringement cases are increasing because of the continual copyright term extensions.
Sure they are. That's why if you look at the torrents, they're full of people trading Mickey Mouse cartoons that were only yanked away from the public domain by Disney's latest lobbying efforts. P2P is dominated by pop songs from the 1950s, and all those cracked game sites are full of Tetris and Pacman.
Does it even occur to you before you spout the kind of knee-jerk crap quoted above that that overwhelming majority of copyright infringement going on on-line today is ripping off material released so recently that even the original copyright terms would easily have covered it (assuming it has even been released to the public yet at all)? Or that copyright infringement might be increasing because we now have a high-speed communications medium connecting most of the first world that can copy and redistribute copyright material near instantaneously and with negligible cost?
It's tragic that posts like the parent get modded (+5, Insightful). It's obviously not even true, at least on any remotely significant scale. (+5, I Want Everything For Free Groupthink) is more like it.
Re:How it really worked: (Score:5, Insightful)
Also, the argument regarding the length and breadth at this point, especially when referring to JK Rowling, is moot as she has made her entire fortune almost purely off the books and within an extremely short timespan.
If you want to rip someone for that sort of thing, go tear up JRR Tolkein's family. He's been dead decades and they're still raking in cash from his works. Or wait a couple decades and -then- use her.
Re:Sorry, your reality check bounced (Score:5, Insightful)
Does it even occur to you before you spout the kind of knee-jerk crap quoted above that that overwhelming majority of copyright infringement going on on-line today is ripping off material released so recently that even the original copyright terms would easily have covered it (assuming it has even been released to the public yet at all)?
Here's a question - as technology has improved, why on earth are we witnessing increased terms? If anything, the term ought to have been reduced. It's orders of magnitude easier in this day and age to distribute and profit from copyrighted material than it was when they copyright term was originally established as 14 years. Creators need much less time to bring in profits, in great part thanks to the Internet that also enables this infringement. All that popular media you're thinking of only has a shelf-life of a few years at best, anyway. 14 years is way too long for today's movies and music, if you ask me.
Re:Reasonable Solution (Score:3, Insightful)
Where exactly is the compromise?
I'm tempted to say it is a moot point. So long as it is legal for corporations to give large donations to congresscritters' campaign funds, laws will be passed to favor them over the people as a whole.
Still, you asked. My compromise is automatic copyright of two years for any work. That is extended to four years, free of charge, if a reference copy is filed with the Library of Congress. Reference copies must be DRM-free and include everything needed to view/use a work (if it is a XBox game, Congress needs to have at least one free Xbox console). Finally, provided a reference copy is filed, copyright holders should be able to file for extensions on that work in four year increments for up to 100 years, total, with the cost increasing by an order of magnitude every extension. I'd say $1000 is a reasonable fee for the first extension.
The main problem I have with our current copyright laws is 99% of copyrighted works cannot purchased at a regular market price because they are no longer being published and aren't making any money for anyone... but it is still illegal to make copies and distribute them.
Re:Copyright was not originally a moral issue. (Score:1, Insightful)
ummm I think to "promote the progress of science and useful arts" could be seen as an ethical, if not moral issue for a society.
Re:Sorry, your reality check bounced (Score:3, Insightful)
Sure they are. That's why if you look at the torrents, they're full of people trading Mickey Mouse cartoons that were only yanked away from the public domain by Disney's latest lobbying efforts. P2P is dominated by pop songs from the 1950s, and all those cracked game sites are full of Tetris and Pacman.
If you look at just the terms, you are absolutely right. Some people (like myself) may look specifically for those abandonwares, but that's not where the most active warez/p2p scene is.
However, if you look at the scope of the copyright as well, the parent poster is far more in the right than you are. Originally, copyright simply covered "maps, charts, and books", i.e. not music scores (which did exist with the technology of the time), newspaper articles, etc.
But over the last century or so, the scope of the copyright literally exploded, covering basically all aspects of the culture, and with the automatic copyright (no registration required, unless you want to sue for statutory damages), you will be lucky to find something that isn't copyrighted.
Just like you make everyone a tresspasser when you make all lands (including the roads) private, you make everyone a copyright infringer when you make everything copyrighted---and, since you are going to be infringing on copyrights no matter what you do (for example, sing "Happy Birthday" in a public place), why not fully participate and reap the reach rewards? As they say, in for a penny, in for a pound.
Re:sonny Bono, Copyright and Harry Potter (Score:2, Insightful)
Re:Problem with "intellectual property" (Score:2, Insightful)
Intellectual property isn't real property?
Nevermind. I'm done with you. Twitter will be your friend however.