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We Were Smarter About Copyright Law 100 Years Ago 152

Posted by kdawson
from the intelligent-debate dept.
An anonymous reader writes "James Boyle has a blog post comparing the recording industry's arguments in 1909 to those of 2009, with some lovely Google book links to the originals. Favorite quote: 'Many and numerous classes of public benefactors continue ceaselessly to pour forth their flood of useful ideas, adding to the common stock of knowledge. No one regards it as immoral or unethical to use these ideas and their authors do not suffer themselves to be paraded by sordid interests before legislative committees uttering bombastic speeches about their rights and representing themselves as the objects of "theft" and "piracy."' Industry flaks were more impressive 100 years ago. In that debate the recording industry was the upstart, battling the entrenched power of the publishers of musical scores. Also check out the cameo appearance by John Philip Sousa, comparing sound recordings to slavery. Ironically, among the subjects mentioned as clearly not the subject of property rights were business methods and seed varieties." Boyle concludes: "...one looks back at these transcripts and compares them to today's hearings — with vacuous rantings from celebrities and the bloviation of bad economics and worse legal theory from one industry representative after another — it is hard not to feel a sense of nostalgia. In 1900, it appears, we were better at understanding that copyright was a law that regulated technology, a law with constitutional restraints, that property rights were not absolute and that the public would not automatically be served by extending rights out to infinity."
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We Were Smarter About Copyright Law 100 Years Ago

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  • by symbolset (646467) on Saturday July 18, 2009 @02:43PM (#28742491) Homepage Journal

    I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot. On which side indeed should the public sympathy be when the question is whether some book as popular as Robinson Crusoe, or the Pilgrim's Progress, shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great-grandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the author when in great distress? Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.

    - Thomas McCauley on copyright, 1841 [baens-universe.com].

    • Re: (Score:2, Insightful)

      by eldavojohn (898314) *
      I thought the same thing. Check out 1852 copyright law [usdoj.gov] where it was not only fines but also jail time. We may have been smarter about enforcing it but the penalty was still life stunting. You violating copyright shouldn't be the end of your financial life or freedom. A fine, certainly but the magnitudes that have always been in place are ridiculous. It just speaks to me that with little if any methods for enforcing it, the US DoJ has settled for a penalty so harsh you are scared into observing the law.
      • by cpt kangarooski (3773) on Saturday July 18, 2009 @03:06PM (#28742665) Homepage

        That's not copyright law from the year 1852, that's just the sequentially numbered page on that website. If you want to read up on 19th century US copyright law, try this pdf file [ipmall.info]. It covers 1790 through 1905. It really wasn't until the end of the 19th century that any sort of infringement was criminalized. It made certain infringing public performances a misdemeanor, so infringers faced up to 1 year.

      • You violating copyright shouldn't be the end of your financial life or freedom. A fine, certainly but the magnitudes that have always been in place are ridiculous.

        You were not able to break copyright rules around 1900 by accident. You don't copy a book without being pretty deliberate about it, and you certainly don't give copies of a book away for free.

        So in 1900 it was a fair assumption that copyright breach of any scale to speak of was commercial by nature. Today, that argument is no longer true. So stiff legal punishment was way more in place in 1900 than it is today.

        • Re: (Score:1, Interesting)

          by clarkkent09 (1104833) *
          True, but because it is so much easier to copy books today it is also easy to cause far greater harm to the copyright holders. Today any idiot can easily and anonymously copy and distribute a book by the millions, so it can be argued that actually today there is a greater need for stiff fines as deterrence, or alternatively, a new workable model of protecting the rights of the author and incentive to create, without the need for such strict enforcement of copyright but unfortunately there is no such model y
          • Your presumption that the violation of copyright in some way guarantees harm done to the holder of the copyright is an interesting and novel economic theory. Have you got a citation you would like to share?

            • You can argue about the proportion of piracy that involves lost sales. But if even one person downloading a free copy would have bought one instead then yes, the holder has lost some money.

              That's common sense, I don't think a citation exists for it. Then again, some of us don't need one.

          • by hedwards (940851) on Saturday July 18, 2009 @04:32PM (#28743199)
            That's not true, the penalty should be going down as the ease of distribution of copyrighted work goes down since the amount of harm that's being caused is reduced. What you're suggesting goes against the grain of modern capitalist theory. The price for any good or service in a competitive market should always approach the marginal cost of production. What you're suggesting would change that in a rather radical and significant fashion.

            While the number of copies that might be ripped off is far greater today than it was decades ago, the cost per copy that would theoretically be lost is much lower now than at any time. And appears to still be going down further. Pretty much any time when there was significant development in IP there was a significant amount of borrowing, stealing and such going on. It's difficult to find periods where it wasn't happening.

            We live in a society, at least in the US, where corporations are none to shy to go to legislators to demand that they not be required to compete because it's bad for the economy/jobs/consumers and tend to get there way because people like you don't understand the issue. We're getting to the point, if we haven't already gotten there where IP rights are harming the ability to innovate far more than what they were ever meant to help. Things like blocking patents, patents on unpatentable things and outright fraudulent patent trolling do very real damage to the purpose of advancing society. Same largely goes for other forms of IP as well.
            • by MinutiaeMan (681498) on Saturday July 18, 2009 @10:17PM (#28744983) Homepage

              But here's the problem: the very concept of "marginal cost of production" is nearly made obsolete by computers and the Internet. It used to be that the effort to produce the copies was proportional to the number of copies being made. Not any more. (Why else would we have spam?)

              Maybe the real measure of value is the total cost of production. It used to be that total cost and marginal cost were pretty closely related. But in today's world, the amount of effort to create a work has stayed the same (apparent quality of said work should be ignored for the sake of this discussion), while the effort to duplicate or distribute said work has gone way down.

              This is the same situation created by the printing press in the 1500s: it used to be that monks had to transcribe documents by hand in order to distribute them thus making scrolls and so on highly prized. Suddenly people could make many, many more copies quite easily. However, it still required individual effort to make each copy, so marginal cost of production still applied.

              Radio and television upset the balance even further. Someone could broadcast a work just once, and it didn't matter how many people were watching or listening. But the market managed to twist a way to apply the idea of "marginal cost" by figuring out about how many people were tuning in, thus deriving an apparent value. Hence, advertising and the Nielsen ratings.

              There's not going to be an easy answer to the problem.

            • the cost per copy that would theoretically be lost is much lower now than at any time.

              I don't see how you come to that conclusion, since it was never the physical reproduction cost that the author/composer was losing. I doubt the amount of work needed to write a novel or symphony has changed by the same order of magnitude. Creativity doesn't auotomate well.

          • by grcumb (781340)

            True, but because it is so much easier to copy books today it is also easy to cause far greater harm to the copyright holders. Today any idiot can easily and anonymously copy and distribute a book by the millions, so it can be argued that actually today there is a greater need for stiff fines as deterrence, or alternatively, a new workable model of protecting the rights of the author and incentive to create, without the need for such strict enforcement of copyright but unfortunately there is no such model yet.

            I'm sympathetic to the latter argument, that a 'new, workable model' of managing creative works be considered. But you've made a mistake by assuming a priori that it will be envisioned and enacted as including a concept of 'rights of the author'. Authors' rights as a definable concept have been nebulous at best since they were first posited.

            A fundamental conflict exists between the creator's benefit and society's. It's a natural desire for all creators to want recognition (and ideally, validation) for their

            • ""The moral rights regime differs greatly between countries, but typically includes the right to be identified as the author of the work and the right to object to any distortion or mutilation of the work which would be prejudicial to his or her honour or reputation"

              In short, societies don't recognise author's rights."

              Quite on the contrary! Look at the very definition you pasted: When has been the time when any society hasn't recognized authorship and the moral right of the author to any modification of hi

    • by Anonymous Coward on Saturday July 18, 2009 @02:58PM (#28742601)
      (+6, Thread over)

      It took 160 years, but everything he said came true.

      • Really? How do you figure that? From the fact that in the last 160 years there was an explosion of copyrighted information that is far more widely available, to more people, at a lower price, with more choice than ever before in history? From the fact that the authors are able to make a living, and in some cases get rich, while their works are still available (in paperback format at least) to the average person for the price of 2-3 cups of coffee, not to mention for free in libraries? From the fact that th
        • No, by the fact that there is a rising Pirate Party in a few countries. I don't dispute that it is currently very disorganized and ill-defined, but it exists.
          It is by the fact that more and more people are obtaining copyrighted content from the internet illegally.
          It is by the fact that more and more people think that this is okay.

          Right now, many governments of the world and the recording industry are trying to fight it. Whether they are winning or not, only time will tell. In that respect, not everything he said has come true, but what hasn't come true still has the potential to.

          The main point the GP was trying to make is that he predicted that in the future it would become extremely easy to copy something; so easy, in fact, that anybody could do it. That did come true, and that did take 160 years.

          • No, by the fact that there is a rising Pirate Party in a few countries. I don't dispute that it is currently very disorganized and ill-defined, but it exists.

            So does the Monster Raving Loony Party and it's equally far away from the political mainstream. What's your point?

            It is by the fact that more and more people are obtaining copyrighted content from the internet illegally.

            That's not really clear. It's getting less and less easy technically to copy things due to better copyright protection technolog
            • Perhaps.

            • by shiftless (410350)

              That's not really clear. It's getting less and less easy technically to copy things due to better copyright protection technology, and the more aggressive legal action. Technically skilled people will probably always find a way to copy content but most people are not technically skilled.

              Are you wilfully blind? The younger generation which knows it way around computers is perpetrating copyright infringement on a widespread scale. Nobody has to cite facts and figures to prove this, because it's obvious to ANY

          • by brit74 (831798)
            None of your points show anything about people disrespecting copyright. The fact of the matter is that whether copyright was a 42-year copyright (as Macaulay advocated) or 100+ years doesn't make any difference to pirates' actual behavior. In many cases, I see pirates complaining about the existence of Intellectual Property in any form - i.e. they want free filesharing, with a copyright length of 0 minutes.
            • To an extent, this was what he was warning against (though he set no time constraints) -- that eventually people would complain about the existence of copyright regardless of length of time. He argued that making the law too broad and absurd (arguable - I'm not debating whether he was right on this issue) would cause people to view the entire thing as an unnecessary evil.

              What we see in the past is copyright being extended and broadened continually over time, and people eventually arguing against it as a who

        • by BZ (40346)

          > From the fact that in the last 160 years there was an explosion of copyrighted information
          > that is far more widely available, to more people, at a lower price, with more choice than
          > ever before in history?

          This might have something to do with the fact that McCauley _won_ the debate and his position was adopted...

          We've only been in the regime he was talking about for less than a decade, and the things he talked about are in fact coming true. Give it a few more decades....

    • by girlintraining (1395911) on Saturday July 18, 2009 @03:20PM (#28742761)

      That's a lot of words to say this: Go too far and the public will stop respecting the law(s).

    • Re: (Score:1, Interesting)

      by Anonymous Coward

      Even more radical, Victor Hugo wrote in 1878 (yeah, a bit later; but the'yre from the same generation: Hugo was born just 2 years later than Macaulay):

      Before the publication, the author has an unquestionable and unlimited right. But once the work has been published, the author is not its master anymore. It is then the other one who seizes it. Call him the name you want: human mind, public domain, society. This character is the one who says: "I'm here, I take this work, I do what I believe I have to do with it, I, human mind ; I own it, it is now mine".

      • Victor Hugo was also instrumental in getting the Berne Convention [wikipedia.org] enacted.

        Something tells me that the context of that quote is very important. I don't read it as being contrary to the idea of copyrights, merely an informed view of their nature.

    • A truly remarkable (and, as it turned out, prophetic) analysis.
    • by brit74 (831798)
      Let's not forget other things he wrote:

      You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are n
      • You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research.

        It's like he foresaw the blogosphere.

        If he'd posted that on ye slashdotte, he'd have been modded a troll and called an elitist.

      • Given though the change in things from copying being a natural barrier to being an unnatural barrier, do you really believe he would still think copyright the best way of doing things? The guy was very smart, I do not doubt that if he lived today he would see more opportunities than were available when he made that speech. The other aspect is given hindsight, would he lament the negative effect copyright has had to be more harmful than the positive effect he envisioned?

        I would argue that given the history o

    • So he's basically saying that before copyright was well-defined in law, it was enforced in the social space by almost everyone, particularly buyers, but that turning it into law would cause the social-sphere version to disappear and for common people to stop caring about its enforcement?
      • Re: (Score:2, Interesting)

        by symbolset (646467)

        No. You should read the article I linked. It's very long, but it's a good read.

        There already was a copyright law, and it allowed 14 years [wikipedia.org] - a term which was considered reasonable and which has been determined to be optimal [arstechnica.com]. The law he was arguing against proposed the life of the author plus 25 years. It was modified to conform to his recommendation of a longer than 14 but finite and predictable length of 42 years from publication, no extensions, no consideration for the longevity of the author. It was m

  • After reading some of those excerpts, I agree that it was handled better in those days. I wonder though, was the degradation of understanding on the side of the copyright law or on the side of the technology that enshrouds copyright law. I think judges and jurors understand the law quite well, it's the technology that implicates people that has increased in complexity and allowed lawyers to play with to exacerbate the situation. Music, Movies, works of art are all a very complex business today thanks to
    • by Anonymous Coward

      Another explanation might be the failure of practicing fully communal societies like the U.S.S.R. Back then it could have been construed as possible for art to flourish with everything in the public domain. After watching the few movies that came out of communist countries, I think it definitely inhibits the production of quality art.

      I don't think that the problem is in the "public domain" thing but it's in the "dictatorship" thing that went on. Practically all the artists - especially those with any skill - were recruited to work for the propagandamachine.

      In addition, horrible bureucratic machine added to that. Not only did it mean that many were assigned to jobs that didn't suit them best (IE: Someone with very hight artistic skill assigned to work long days at a factory) but emphasis was on numbers. Producing 10 average quality works

    • by nbauman (624611) on Saturday July 18, 2009 @04:15PM (#28743083) Homepage Journal

      Another explanation might be the failure of practicing fully communal societies like the U.S.S.R. Back then it could have been construed as possible for art to flourish with everything in the public domain. After watching the few movies that came out of communist countries, I think it definitely inhibits the production of quality art.

      Are you saying that the Soviet Union didn't produce good movies? There are a lot of big-name American and foreign filmmakers who would disagree with you.

      When I studied filmmaking, they divided the world into before and after Eisenstein's Battleship Potemkin http://en.wikipedia.org/wiki/Sergei_Eisenstein [wikipedia.org] (although by now Eisenstein has become a cliche). Eisenstein was invited to Hollywood (there's a famous picture of Eisenstein shaking hands with Micky Mouse at the Walt Disney studio), and Hollywood filmmakers deliberately set out to learn as much as they could from Eisenstein. The Soviet filmmakers were universally admired. I saw a lot of Soviet movies at the Museum of Modern Art. Don't forget, this is the land of Chekov.

      Eisenstein's fortune was that (1) Lenin thought that film was a new and powerful medium that could be used to convince the masses to join in their collective struggle, and the Soviet Union put a lot of resources into it and (2) he was a favorite of Stalin, who also gave him pretty much a free hand. If you found favor with the dictator, you could be pretty creative in the USSR.

      The Soviets were pretty good in all the visual arts. Do a Google Image search for http://en.wikipedia.org/wiki/Suprematism [wikipedia.org] Malevich or http://en.wikipedia.org/wiki/El_Lissitzky [wikipedia.org] Lissitsky. And of course they were brilliant musicians.

      The great creative flourishing of Soviet art came to an unfortunate end with Stalin, but the Soviet cinema was still pretty good at least until the end of the war.

      Nobody knows how Communism would have turned out if it had a more benevolent dictator than Stalin.

      The great thing about the Soviet Union was that they didn't believe in copyrights or patents for most of their existence. They flooded the world with books and phonograph records cheap enough to be affordable in the third world, which an army of translators converted into every language of the world. They had good science books. There were physics courses at Columbia University that used Soviet textbooks.

      If the Soviet Union were still around, and continued those patent policies, we would have the entire classical music canon in great performances in the public domain.

      But the one thing the Soviets did brilliantly was make good movies.

      • by meringuoid (568297) on Saturday July 18, 2009 @07:16PM (#28744183)
        Nobody knows how Communism would have turned out if it had a more benevolent dictator than Stalin.

        If Stalin had been replaced by some humane Communist who wasn't prepared to liquidate millions of kulaks in the cause of collectivising Soviet agriculture and freeing up labour for industrial work in the cities building tanks, well... I have a funny feeling that quite a lot of us would be speaking German today.

        Mind you, if he'd been replaced by some moderate Communist who wasn't monumentally gullible and who actually read Mein Kampf before signing treaties with Hitler, then the Soviets might have been better prepared for a fight in the first place.

        • by mjwx (966435)

          Mind you, if he'd been replaced by some moderate Communist who wasn't monumentally gullible and who actually read Mein Kampf before signing treaties with Hitler, then the Soviets might have been better prepared for a fight in the first place.

          If the western allies hadn't forced Imperial Germany to sign the treaty of Versailles, or at least reduced the war debts payable by Germany to the point where it didn't completely bankrupt the German people, forcing the price of a loaf of bread to 5 Deutschmarks (in 1

      • by ShakaUVM (157947)

        >>The great creative flourishing of Soviet art came to an unfortunate end with Stalin

        You say that like it was an accident.

        All communist regimes end up being dictatorial by nature (if people do what they want, it's called capitalism). Look at Mao and his blossoming of a thousand flowers for another great example of this.

        • by nbauman (624611)

          if people do what they want, it's called capitalism.

          People in the Scandinavian countries did what they want, and they got mixed capitalism/socialism. (No health insurance premiums, no college loans.)

          Capitalism doesn't inherently prevent dictatorships.

          Look at Chile, Argentina, Guatemala, Haiti.

          We've had dictatorships in the U.S. all the time. Look at the Alien and Sedition Acts, the McCarthy days, or the late Bush Administration. The only thing that stopped the Bush Administration from arresting anyone he pleased for any reason, including law-abiding po

          • by ShakaUVM (157947)

            You misunderstand communism, then, or at least are confusing it with socialism. Communism, at its heart, is a centrally controlled economy where the government determines where you work, how much you earn, etc. The bits about egalitarianism, holding properties in common, and the doing away with money are essentially window dressing, and do not actually happen in any communist societies.

            Someone ends up owning the farms, making decisions about what to grow, and who can or cannot leave the farm, and it's certa

            • by nbauman (624611)

              You misunderstand communism, then, or at least are confusing it with socialism. Communism, at its heart, is a centrally controlled economy where the government determines where you work, how much you earn, etc.

              I don't know. It was difficult in the U.S. to get objective information about the USSR. You could go to jail in the U.S. for advocating Communism http://en.wikipedia.org/wiki/Dennis_v._United_States [wikipedia.org] and teachers were fired. So I never knew who to believe.

              I once read (actually copy-edited) a business school book on management accounting, and they gave case histories from the Soviet Union. Apparently the Soviet Union had internal markets, and the factories were run by managers who had a lot of autonomy. The

    • by Patch86 (1465427)

      The reason, one could argue, that art in the Soviet Union ended up in the doldrums is not that there was too much freedom, but not enough.

      If "everything is in the public domain", that by itself implies that there are no copyright or IP laws to constrain creativity. It is intellectual freedom.

      What killed creativity in the USSR was, instead,the censorship. They had great artists (in all media), but the only ones to ever be allowed to flourish were those that towed the party line. Plenty of great artists undou

    • by sjames (1099)

      The USSR's big problem was that people with a flair for the arts didn't necessarily become artists, only people with a flair for ideologically correct art did. Meanwhile, decidedly non-creative bureaucrats decided what art was ideologically correct and appropriately reflected the ideals of society. The artist could agree or go do something besides art.

      They not only eliminated capitol markets in the USSR, the market for ideas was also closed. What the people wanted or what the art world would praise was irr

  • 100 years ago... (Score:5, Insightful)

    by Techmeology (1426095) on Saturday July 18, 2009 @02:50PM (#28742539) Homepage
    100 years ago, we did not have the technology to replicate information as we do now. Hence there was little public demand to be able to do so. Today it is different. A law so rejected by the people is doomed to failure (Prohibition in America in the 1920s anyone?). Copyright law if far too draconian - so much so that many people violate it without realizing it, and many others deliberately do so out of apathy.
  • Anyone who thinks this is about anything other than a bunch of rich bastards exploiting a segment of the population is deluding themselves. They're simply upset that they got their hand caught in the cookie jar and now pay people smarter and more eloquent than them lots and lots of money to explain why the establishment owes them that cookie. Damn, I love America. Those few of us who are compelled from silence and apathy quickly settle on endless argumentation and debate, rather than activism. We weren't sm

    • Your sig is the start of a solution.
    • by russotto (537200)

      Anyone who thinks this is about anything other than a bunch of rich bastards exploiting a segment of the population is deluding themselves.

      That was quite a rant, but you failed to mention which side you were on.... either side would make the same claim. (on the pro-copyright side, the "rich bastards" would be well-off computer owners and their offspring, and the exploited segment would be those poor performers and songwriters)

  • by nurb432 (527695) on Saturday July 18, 2009 @03:18PM (#28742745) Homepage Journal

    However we have been fed misinformation and lies by the 'industries' and a lot of the general population is beginning to believe it.

    I don't call that smarter.

    • by nurb432 (527695)

      Ok, i missed a word in the subject and thought it said ARE, not WERE.. just ignore the comment :)

  • by bonze (1578437) on Saturday July 18, 2009 @03:22PM (#28742779)
    Decades ago, when reading Jerome Tuccile's "It Usually Begins with Ayn Rand," I thought that Galambosianism--founded on the principle that rights in ideas should be private property in perpetuity, and subject to royalties for all uses--was just another of Tuccile's hilarious inventions.

    No, the reason you never heard of the all-too-real Andrew Galambos' [wikipedia.org] absolutarian IP concepts is because he had his lecture attendees sign an NDA! Would Galambos compromise his principles by giving away his startling revelations or permitting the great unwashed unrecompensed access to his revolutionary concepts? NAY!

  • There are complexities inherent in these issues that make an immediate set of solutions highly unlikely. Philosophically it should be argued we're social creatures and all have a share in the universe of ideas we've engendered. Even the most creative people are subject to a sort of ideological horizon in place during their creative lifetime that delimits the content and reception of their output. Given ideas as universally shared social artifacts there is still the question of reimbursing creative people fo
    • The same section of the Constitution that delegates to Congress the power to grant copyrights and patents also grants to Congress the authority to declare war. In both cases it does not compel Congress to do so.
    • by Halo1 (136547)

      I recall it's in the works of Locke that property rights and property owners are seen as fundamental to defining entitlement to democratic rights and privileges.

      You're recalling only a third of Locke's theory. The other two thirds are that after you have reserved your property rights, there has to be "enough" and "good enough" of the same left for everyone else, and that you should never appropriate more than you can use. And arguably, patents fail in those aspects (ppt) [universita...ichting.be].

  • I've studied patent and copyright law professionally, and still haven't seen a clear and compelling argument for how it ought to work. As the articles note, one of the main questions is, "Do/should we recognize a creator as having a property right to his creations because there's a moral right to control them, or only because we think it's convenient for society? Ie., is this a 'fundamental right' or a government-granted privilege?" We've largely abandoned the notion of fundamental rights in the US, to our
    • Re: (Score:3, Insightful)

      by kanweg (771128)

      If you studied both copyright law and patent law then
      - You must have noticed that with patents, once an item covered by the patent is sold, it is out of control of the patent proprietor.
      - You also must have noticed that there are very stringent requirements before a patent is granted (and if they were not met, you can do something about it), not to mention the cost involved, and comes with a territorial restriction.
      - You must have noticed that patents have a limit of 20 years (and maintenance fees have to b

      • Well... Yes, patent is much more limited in that there's a far shorter time limit and far stricter requirements. This very comment is automatically copyrighted under US law until at least 2079, hopefully much longer -- which is absurd. (A cure for cancer would be protected for a lot less than life + 70 years, despite being infinitely more useful than this comment!) What I was getting at, though, is that both patent and copyright have that underlying question -- whether we're issuing this protection because
      • by Wildclaw (15718)

        - You must have noticed that with patents, once an item covered by the patent is sold, it is out of control of the patent proprietor.

        When a book is sold it is out of the control of the book owner in the exact same manner. With neither patents nor copyrighted items are you are allowed to duplicate the effort. But you are allowed to apply the first sale doctrine.

        (and if they were not met, you can do something about it)

        As long as the patent isn't owned by a coorporation who can play the mutually assured destruction card (a.k.a. the defensive patent doctrine). Oh, and you would have to afford to spend a huge amount of money on litigation, praying that you win.

        You must have noticed that patents have a limit of 20 years (and maintenance fees have to be paid).

        While the time limit is indeed shorter

    • The Constitution's wording is ambiguous on this point, but seems to treat "intellectual property" as a privilege rather than a fundamental right. The theory echoes Jefferson's argument that ideas are like a candle-flame, such that "he that lights his taper from mine" doesn't diminish my supply of light ... We've lately been treating IP as more like a right.

      That we've been treating IP like a right is hardly surprising if you pay attention to the conversations of those who have power (politicians, business le

      • Not just $5 billion but $5 trillion if you are referring to the quoted piece. I find it hilarious that politicians are prone to accept these figures without a hint of substance or peer review. Even if the figure is accurate (and I've no reason to suppose they couldn't count up $5 trillion from transactions in IP), the equation is not complete without all information being considered equally. Some ones they likely missed are:

        • Diversity of wealth (how this money was spread around, how much of that $5 trillion
    • There was a great deal of progress made before the invention of IP law. Humans are compelled by their natures to create and learn the creations of others and improve upon them. This is called progress.

      Some time ago it was commonly agreed (with some dissent) that to reward creation with a monopoly on the use of that creation might accellerate progress, which is a social good.

      I've seen some research to suggest that the optimal term for this monopoly is around 12-14 years. Any longer than that and the mon

      • One thing that came up in my classes was data showing that most copyrights are nearly worthless within a few years. For instance, right now there's probably a sudden rush of books about Michael Jackson, but in ten years those new books will probably be forgotten. Why bother protecting them for 60+ years beyond that?
        • by mpe (36238)
          One thing that came up in my classes was data showing that most copyrights are nearly worthless within a few years.

          In some cases considerably less than that.

          For instance, right now there's probably a sudden rush of books about Michael Jackson, but in ten years those new books will probably be forgotten. Why bother protecting them for 60+ years beyond that?

          Because the industry is interested in milking the exceptions, which include Mr Jackson's music, for as long as possible. They can still make money,
      • by mpe (36238) on Saturday July 18, 2009 @06:26PM (#28743933)
        I've seen some research to suggest that the optimal term for this monopoly is around 12-14 years. Any longer than that and the monopoly's benefit decreases until eventually it even prevents the natural flow of progress.

        There's a point at which "too much" worst than none at all as well as a point where the damage is more or less total.
        An analogy would be that copyright works like a nutrient, a dificency is bad, an excess is toxic, more than a lethal overdose can't make anything any more dead.
    • "Do/should we recognize a creator as having a property right to his creations because there's a moral right to control them, or only because we think it's convenient for society? Ie., is this a 'fundamental right' or a government-granted privilege?"

      You are confusing philosophy, with motive, and with what works in reality. Philosophically speaking, we are free to argue over the "fundamentality of the right," but there will be no direct consequences from that argument. The real consequences (reality), if we so desire them (motive), can only come in the form of government privilege, because that is how we enforce order, and shape our behavior. Only when it is a granted privilege, can we rely on that privilege, legally.

      The real question should always be a

      • by mpe (36238)
        Left in the hands of the copyright lobby, we know their motive, and they make it quite clear: money.

        Money for them, which may or may not be good for the entire economy. They may not even be right themselves. Considering that in the past technologies which were going to "kill the industry" have instead made them lots of money.
    • We've largely abandoned the notion of fundamental rights in the US, to our great peril. Because of that abandonment it's harder to think clearly about the question.

      How so? The US has long settled on a utilitarian model of copyrights and patents, and it has served us well. It's only been in the last century or so that we've allowed authors and inventors too great a voice in setting policy that things have gotten out of hand.

      while a song or story is created from a person's mind and so is at least as legitimat

  • by tylersoze (789256) on Saturday July 18, 2009 @04:07PM (#28743029)
    Wow, I didn't realize there were that many 100+ year old Slashdot readers pining for the early 1900s.
  • The problem with today's copyright is something that as deep connections with the past and with our own society. There was a breaking point somewhere on the past that decided to use the technology, not for the good of mankind, but for the profit of some. I don't know were we could be if it wasn't for this breaking point somewhere on the past.

    The problem is that copyright, patents, etc, have no moral stand besides not letting others to profit with someone's work. That problem only exist because of copyrig
  • What the presented material shows, is that our attitude was different from today's. Whether that was smarter or stupider, depends on one's opinions. The article provides nothing to add to the debate...

  • The phonograph of 1910 would set you back $50-$250 good-as-gold dollars.

    Why else do you think public performance rights -
    the coin-in-the-slot nickelodeon - became the real sticking point for musicians and composers?

    The phonograph record or cylinder of those days was for all practical purposes a rental.

    Only the most expensive players would have had separate - acoustically linked - tonearms and horns ["speakers'] and a diamond or perhaps carbide-tipped stylus.

    Edison used custom pressings and a set up like t

  • by syousef (465911) on Saturday July 18, 2009 @05:25PM (#28743555) Journal

    I like living in an era of computing and modern medicine. I don't feel nostaligic for a time when you were likely to die before you hit 40. I think we should probably abolish copyright altogether, but we could at least start by limiting it to 5 years. If the "artist" or creator can't perform their work sufficiently well to compete with others performing it (ie much better) they don't deserve the revenue. The argument that nothing new would be created is pure fud.

    Most people can own and operate a camera but will still hire a professional photographer (and mosti will not the cheapest one) to shoot their wedding. Professional photography isn't dead. We haven't had to artificially regulate it. There will always be room for people to be paid to do something well, or at least well as judged by the populace.

    • by Aladrin (926209)

      Copyright isn't to stop amateur photographers from taking pictures. It's to stop crooks from selling someone else's pictures. In fact, it has nothing at all to do with the actual taking of the pictures. It's the end product that is covered.

      While I think Copyright is way too strong, and should be something that ends within the author's lifetime, and not a century afterward, I think dropping it altogether is too far to the extreme, too.

    • Ironically most professional photographers wanted to charge me an arm and a leg for our wedding photos *and* keep the negatives and copyrights! Then charge an arm and a leg for any prints! So in the end I got a retired photographer in the family to do the job.
  • "any and numerous classes of public benefactors continue ceaselessly to pour forth their flood of useful ideas, adding to the common stock of knowledge. No one regards it as immoral or unethical to use these ideas..."

    Ideas are NOT copyrighted and have never been. If you think this is a decent argument against copyright, then you've already lost the argument. The only people who conflate "ideas" with "copyright" are people trying to drag you to a predefined conclusion.

    • In the US, any idea fixed in a tangible medium, say, scribbled on the back of a cocktail napkin, or posted to an online forum, is in fact, without any further action, copyright of the person who did the fixing.
      • Well, not an idea, but an expression of an idea. Other people are free to examine that expression, determine the idea, and create their own expression of it.

    • by russotto (537200)

      Ideas are NOT copyrighted and have never been.

      Yeah, right, that's why you can enforce a copyright on characters and settings, even when you do not copy the work those characters and settings appear in. The idea/expression dichotomy is not particularly strong.

    • by rawler (1005089)

      Ideas is not subject to copyright but definitely protected by intellectual property laws in many countries. The famous double-click patent, or patent on streaming media, downloading, or blinking text-marker comes to mind.

    • Ideas are NOT copyrighted and have never been

      Copyright law draws a distinction between idea and expression. Expressions, according to the law, are copyrightable. Ideas are not. This is important because it preserves freedom of speech: you can express the same idea with a different expression. That's the theory.

      Please, then, tell me, is Mickey Mouse an idea, or an expression? If it is an expression, what idea is it expressing?

      A court actually ruled on this one. Its conclusion? The "idea" of Mick

  • Subject (Score:3, Interesting)

    by Legion303 (97901) on Saturday July 18, 2009 @06:02PM (#28743813) Homepage

    Whatever happened to Winnie the Pooh in Canada? I remember a big deal was made of the fact that Canadian copyright expires 50 years after the death of the author, which would put Winnie in the Canadian PD sometime in 2006, but I never heard anything after the fact.

    I ask because even 50 years seems like an insane amount of time to cling to a copyright, but here in America (land of the free corporate overlords) we're looking at upwards of 120 years on some things. If I want to find PD samples to use in songs I have to scrape together what I can find from what few recordings even existed at the time. The original intent of copyright has been so thoroughly corrupted that there's little or no resemblance to what it was supposed to represent.

    • by Sir_Lewk (967686)

      I believe Disney owns Winnie the Pooh IP, at least in America.

      Knowing that, regardless of whether it actually is PD in Canada or not, I'd expect one hell of a legal fight if you tried to use it. Disney's lawyers are about as ruthless as they come.

      • "Are you aware that I have not broken any laws?"

        "But people in the USA can download your copy. We're taking you down, pirate."

        "So you're saying that Canadian citizens living in Canada are subject to USA law?"

        "Oh, yes, we'd like that very much."

        Careful what you do here--Disney could pretty much order the invasion of Canada.

        Speaking of which, do private security companies operate across borders? Could Disney Security invade Canada? I'm sure that logistically they could... but would they? I'd rat

    • Re: (Score:3, Insightful)

      by meringuoid (568297)
      Whatever happened to Winnie the Pooh in Canada? I remember a big deal was made of the fact that Canadian copyright expires 50 years after the death of the author, which would put Winnie in the Canadian PD sometime in 2006, but I never heard anything after the fact.

      Not a clue. If you're in Canada, take the initiative: go fish out your copy of Winnie-the-Pooh from the big box of relics of your childhood you have in the attic, transcribe it, and upload it to gutenberg.ca. Then do The House at Pooh Corner, Wh

    • Whatever happened to Winnie the Pooh in Canada? I remember a big deal was made of the fact that Canadian copyright expires 50 years after the death of the author, which would put Winnie in the Canadian PD sometime in 2006, but I never heard anything after the fact.

      Disney made Pooh movies, remember? It's a pretty safe bet that even if canadian copyright laws enable you to use him, the House of Mouse will sick its flying monkeys to tear you to pieces in court.

  • 14:3 International Journal of Law and Information Technology 257 [tinyurl.com]

    BTW, Stallman (RMS pour les initiés) just had some interesting things to say about these and a DRM "Swindle":
    http://www.linux-magazin.de/NEWS/Video-Stallman-ueber-DRM-Patente-und-C [linux-magazin.de]
    (interview on video in English of course - free from a famous Spanish holiday resort, beats rainy Redmond/WA ;-))

I don't want to achieve immortality through my work. I want to achieve immortality through not dying. -- Woody Allen

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