Arguing For Infinite Copyright... Using Copied Ideas And A Near Total Misunderstanding Of Property

from the copyright-this dept

Well, well, well. I don't think we've ever had a single story submitted to us more often than Mark Helprin's opinion piece in the NY Times over the weekend, trying (and failing) to support the idea that copyright deserves to last forever and be passed on from descendant to descendant. Before getting into the details of why he's wrong (and confused), I should note that it certainly is interesting that just as a new "copyright alliance" has formed to push for stronger copyright laws, we start seeing articles like this one and others pushing the argument for stronger copyright and patent laws to extreme positions. A conspiracy-minded person might suggest that this is no coincidence, and that the best way to get stronger copyright and patent laws passed is to first get people arguing about ridiculously strong laws, and then get them to agree to "lesser" changes that are still much stronger than what we have today.

On to Helprin's confused piece. Helprin makes the same mistake that many make of thinking that just because the linguistic convention is to call such things "intellectual property," it really is the same thing as property. His entire argument is based on this simple point -- and it's why he's wrong. It is amusing to note that some are already pointing out that Helprin's argument is a blatant copy of Mark Twain's -- and yet we doubt he paid the descendants of Mark Twain for it. However, the key to Helprin's problem is his total and complete misunderstanding of the purpose of property as well as the purpose of copyright law.

The purpose of property is to better manage the allocation of scarce resources. Since the resource is limited and not everyone can have it, property rights and property law make complete sense for a civilized society, allowing those with rights to the property to buy, sell and exchange their property. This allows for resources to be efficiently allocated through commerce and the laws of supply and demand. It's a sensible system for the best allocation of scarce resources. However, when it comes to infinite resources, there's simply no need to worry about efficient allocation -- since anyone can have a copy. The purpose of copyright (and of patent law), then, wasn't the same as the purpose of property law. It has nothing to do with more efficient allocation of scarce resources. Instead, it's a government-granted incentive -- a subsidy -- to encourage the creation of new works. In other words, it was a case where the government believed there was a market failure. That is, they believed that without this incentive, certain intellectual works wouldn't be created -- and the tradeoff between locking up that idea and creating more content was one that was worthwhile. However, they always knew that it was a tradeoff -- which is not at all true for real property. And, as an incentive, many would say it's been plenty of incentive for many authors who have written books -- including Helprin. As an author of 11 books, clearly the incentive was enough for him at the time. In effect, by arguing for extended copyright, Helprin is going back and asking the government to change the bargain it gave him and retroactively promise him more. It's as if you could go back to your boss for the work you did in 1975 and say you now want to be paid again for it. Or, more realistically, it's Helprin asking for welfare. He is asking the government to give him a greater subsidy. But, of course, copyright is not a welfare system.

The key point here is that in pretending (or simply ignorantly claiming) that intellectual property is the same as tangible property, Helprin completely misunderstands what rights copyright law gives him. It is not the same right as he has over his own property -- which, after he sells it, he no longer has control over it. Instead of "property rights," copyright gives him a monopoly right (which is what Jefferson preferred to call it) to control how his output is used even after it's sold. That's completely different than a property right -- and, again, the reasoning is simply as an incentive for creation, not to guarantee control. Apparently, Helprin needs quite a history and economics lesson -- but if he had his way, that would be much more difficult since such ideas would be locked up forever.


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  1.  
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    Mark Twain's Ghost, May 21st, 2007 @ 7:43am

    Statute of Limitations for Copyright

    [There's a number of key points made in the discussion section of Lessigs blog.

    http://wiki.lessig.org/index.php/Talk:Against_perpetual_copyright#Statute_of_Limitations_fo r_Copyright

    I'm quoting the comparison of Copyright and other civil contracts, here, but all of those are interesting real world problems. It might be worth copying a selection of the better ones here.]


    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 Shakespears 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?

    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. Yet 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.

     

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    Steve R. (profile), May 21st, 2007 @ 7:46am

    The absurdity of an infinite copyright, after many generations we would all be paying ourselves a royalty. Just think of the legal and accounting complexity (nightmare) of each heir trying to determine/fight the %%%%% of "ownership". This is a full employment plan for lawyers and accountants and does nothing to promote further innovation.

    What was distressing with the new "copyright alliance" is their red herring of "protecting" copyright by making it "stronger". What they do not say is that the are aggrandizing the rights of the content holder by stealing the existing rights of the content users.

     

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    giff, May 21st, 2007 @ 7:51am

    See Melancholy Elephants by Spider Robinson
    http://www.baen.com/chapters/W200011/0671319744___1.htm

     

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    Susheel M. Daswani, May 21st, 2007 @ 7:54am

    So many mistakes....

    Helprin makes so many mistakes in his piece, but the biggest, and most crucial, is not distinguishing ideas from expression. Copyright can NEVER attach to an idea, but only to the expression of the idea. If copyright did attach to ideas, science (E=mc^2), math, the arts, etc., would suffer unimaginably as there would be a tollhouse that needed to be visited anytime someone wished to expand upon a preexisting idea. Helprin needs some education....

     

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    Patrick B, May 21st, 2007 @ 8:11am

    Copyright in Constitution

    I am always irritated with the whole extention of copyrights issue. The US Constitution states

    "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries"

    the key here is "limited times" the way it is now I don't even feel limited time applies to it at all. I think it is lifetime plus 90 or 70 years. 2 lifetimes hardly seems to be "limited"

     

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    Stephen, May 21st, 2007 @ 8:13am

    Jefferson

    It's worth remembering that in Jefferson's draft of the Declaration of Independence, he wrote "life, liberty and the pursuit of property," which was changed by others later to "pursuit of happiness." As the link at the end of the post shows, Jefferson didn't go quietly, but he lost the argument nonetheless: intellectual property and physical property were considered different by the founders.

    It's interesting, however, to note where Jefferson was coming from, that is, how he was, in fact, copping the intellectual property of John Locke. Cribbing from here: http://www.philosophypages.com/hy/4n.htm

    From the outset, Locke openly declared the remarkable theme of his political theory: in order to preserve the public good, the central function of government must be the protection of private property. (2nd Treatise §3) Consider how human social life begins, in a hypothetical state of nature: Each individual is perfectly equal with every other, and all have the absolute liberty to act as they will, without interference from any other. (2nd Treatise §4)

    ...Everything changes with the gradual introduction of private property. Originally, Locke supposed, the earth and everything on it belongs to all of us in common; among perfectly equal inhabitants, all have the same right to make use of whatever they find and can use. The only exception to this rule is that each of us has an exclusive right to her/his own body and its actions. But applying these actions to natural objects by mixing our labor with them, Locke argued, provides a clear means for appropriating them as an extension of our own personal property. (2nd Treatise §27) Since our bodies and their movements are our own, whenever we use our own effort to improve the natural world—the resulting products belong to us as well.

    The same principle of appropriation by the investment of labor can be extended to control over the surface of the earth as well, on Locke's view. Individuals who pour themselves into the land—improving its productivity by spending their own time and effort on its cultivation—acquire a property interest in the result. (2nd Treatise §32) The plowed field is worth more than the virgin prairie precisely because I have invested my labor in plowing it; so even if the prairie was held in common by all, the plowed field is mine. This personal appropriation of natural resources can continue indefinitely, Locke held, so long as there is "enough, and as good" left for others with the gumption to do the same. (2nd Treatise §33)

    Within reasonable limits, then, individuals are free to pursue their own "life, health, liberty, and possessions." Of course the story gets more complicated with the introduction of a monetary system that makes it possible to store up value in excess of what the individual can responsibly enjoy. (2nd Treatise §37) The fundamental principle still applies: labor is the ultimate source of all economic value. (2nd Treatise §42) But the creation of a monetary system requires an agreement among distinct individuals on the artificial "value" frozen in what is, in itself, nothing more than a bit of "colored metal." This need for agreement, in turn, gives rise to the social order.

     

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    Aaron Ortiz, May 21st, 2007 @ 8:17am

    Congratulations on your article

    Your article is the clearest explanation of copyright law that I have found on the net, after almost daily bombardment of people flaming RIAA and MPAA on Slashdot and Techdirt.

    Good work!

     

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    Don, May 21st, 2007 @ 8:40am

    I'll agree to this idea under one condition. That it be made retroactive to 1776. Let's see if Mr. Helprin (who could then be sued by Twain's descendants) and Disney (who could be sued completely out of existence for all the content they've "borrowed") would still be for it then.

     

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    bshock, May 21st, 2007 @ 8:48am

    Good job

    A succinct, accurate, intelligent explanation of this issue. Thank you, Mike. It was a pleasure to read.

     

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    Mike C., May 21st, 2007 @ 8:59am

    Helprin only partially compares

    The thing I've started to notice in all the FUD when comparing copyright on ideas to real property is that (as expected) they only compare the points that help them and not all of the points. The biggest hole from my point of view is property taxes.

    In Connecticut, we pay approximately 2% of the current market value on our houses each and every year. If Mr. Helprin wants to compare a book idea to a house and receive royalties forever, he also should be required to pay property taxes on those items as well... forever.

    Additionally, perhaps he should have to make sure his ideas don't discrimanate according to age, sex, race, etc. according to the Fair Housing Act. No more books geared to a target audience as that would be perceived as discriminatory.

    If he wants to follow this analogy, he needs to follow it all the way through to the end, not just stop where he wants. Of course, since it appears as if he's just being a mouthpiece for the corporate copyright machines, we know that'll never happen.

     

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    Vincent Clement (profile), May 21st, 2007 @ 9:33am

    Re:

    Disney exists largely because it was able to create new works based on content in the public domain - exactly what the Constitution calls for. Now it wants to have it's cake and eat it too: Disney initially benefited from limited copyright and wants to benefit from 'as long as possible' copyright.

    But that school of thought has been a disaster for Disney. It admitted as much when it bought Pixar - a company that has been much better at innovating than Disney over the past 15 years.

    When you increase the length of copyright, you reduce the incentive to innovate and you shrink the public domain.

     

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    Anonymous Coward, May 21st, 2007 @ 9:57am

    That's Absurd!

    I always hear the argument that the owner of a building gets to keep getting their royalty payments (rent) indefinitely, while a published work's royalties eventually stop.

    The fallacy of this argument is that that building owner had to put money into the project before ever receiving any return, and they have to continue to maintain the building.

    If they want to indefinitely receive an income, why don't they build that building when their work is making money, so that they can receive the royalty after the copyright expires.

    The worst area is in academic research. The researcher does the work, writes the paper, then pays to get it published, and then no longer holds the copyright. Other researchers have to pay to get reprints, and it is often at an excessive price.

     

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    Anonymous Coward, May 21st, 2007 @ 10:14am

    Who is Mark Halprin?

    Pardon me, but who is Mark Halprin?



    I'm not entirely illiterate... For instance, I've read Huckleberry Finn, The Adventure's of Tom Sawyer, A Connecticut Yankee In King Arthur's Court, Life On The Mississippi, and other books. Why, I've even read "The Celebrated Jumping Frog of Calveras County."



    But who is Mark Helpren?



    I know "The Grey Lady". That's the rag what brung us George's Excellent Adventure In Iraq.



    But who is Mark Hilpron compared to even Sonny Bono's widow—the Congresswoman whasshername?




    But what

     

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    Andrew Clarke, May 21st, 2007 @ 10:57am

    Mike (Masnick) - you're my hero

    Really, I mean it. I hate to be such a fanboy, but you're just plain awesome.

     

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    Mark, May 21st, 2007 @ 11:06am

    If copyright were made permanent, what happens to works currently in copyright but the holder of the copyright is unknown? (e.g., the creator died without descendants, or is unable to be located.) Do these works become forever untouchable, neither in the public domain nor able to be redistributed?

     

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    Tad Davis, May 21st, 2007 @ 11:18am

    Shakespeare's copyrights

    Fortunately Shakespeare has no direct heirs. His grandchildren all died, as they used to say in olden times, "without issue." (On the other hand, what happens then? If an author's descendants die out, does the work then become public domain?)

     

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    Brandon, May 21st, 2007 @ 11:37am

    I know this continues the incorrect equality of non-scarce property and scarce property, but it should be noted that our society doesn't allow completely inheritance either.

    That's the point of the inheritance tax, after all, to prevent people from hoarding things based strictly on who they were born to.

    So, if the current limit is 90 years for copyright, and the person wrote it near death, then that's 1-3 generations... at 50% tax per generation, leaving the heirs with ~12% of the copyright at 90 years.

    Eh, but things don't work that way anyways.

     

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    reed, May 21st, 2007 @ 12:07pm

    Imagine a world!

    Imagine a world where all of the great minds locked up and guarded their works for all time. Where would we be now?

    Is there really anyone who buys the economic argument that IP laws encourage innovation? Considering all economist are usually white males who are likely to protect their own interests can you really trust anything they say?

    Unlimited length for IP rights will likely be passed regardless of what the public thinks (remember the 1913 Federal Reserve vote?)

    After all, we would be fooling ourselves if we just believed that just talking about it would stop the fat cats of industry from getting something like this passed.

    Can you imagine a legal person (corporations are according to law) owning thousands of peoples works for time and eternity? I know they want it and since they have most the power I wonder how this game will be played out...

     

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    Magananimous Cutwad, May 21st, 2007 @ 12:47pm

    Mark Helprin is an author.

    In the NYTimes article, double click on his name, it lists his books but he hasn't written since 1995.

    A quick search says Mr. Helprin is "a novelist, a contributing editor of The Wall Street Journal and a senior fellow at the Claremont Institute."

    Claremont Institute:
    http://en.wikipedia.org/wiki/Claremont_Institute

    Mark Helprin:
    http://www.claremont.org/scholars/id.36/scholar.asp

    I think Helprins likely to be at odds with Claremont on this, the idea that creators need to make and sell *new* IP is core capitalism. He's basically a right wing, free market, writer, but with the exception where it benefits himself, his views are more flexible.

    His blog:
    http://www.markhelprin.com/index.cfm?page=biography

     

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    Anonymous Coward, May 21st, 2007 @ 1:04pm

    Thanks

    So then Halpron's the guy who did the "West Side Story" job for Shakespeare's The Winter's Tale?

    Was it any good? Have they made a movie out of it yet, or was it only on Broadway?

     

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    Anonymous Coward, May 21st, 2007 @ 1:14pm

    Re:

    If copyright were made permanent, what happens to works currently in copyright but the holder of the copyright is unknown? (e.g., the creator died without descendants, or is unable to be located.) Do these works become forever untouchable, neither in the public domain nor able to be redistributed?
    I suspect abandoned works would be treated as other abandoned property, such as real estate where the state gets it.

     

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    Anonymous Cowbell, May 21st, 2007 @ 1:45pm

    This copyright violation goes out to Mark H....

    "Could you imagine a bank letting somebody rob its vaults and then allowing the thief to thank his girlfriend Tricia and the whole gang down at Bumpy's?"

    RIAA Sues
    http://www.theonion.com/content/node/27696

     

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    Joe Smith, May 21st, 2007 @ 2:37pm

    Sleeping Beauty

    So who did Disney pay for the rights to Sleeping Beauty - a story which has been around in various forms since at least 1634 - or Cinderella - a story which apparently exists in recognizable form back to the first Century BC. How much have they paid to the heirs of Hans Christian Andersen for the Little Mermaid.

     

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    Anonymous Coward, May 21st, 2007 @ 9:33pm

    Re: Shakespeare's copyrights

    If that is what it takes to change works to public domain, then let's take out a contract on descendants of the creators of these works...

    /evil laugh/

     

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    Jerry in Detroit, May 22nd, 2007 @ 3:33am

    Taxing Intellectual Property

    One thing that proponents of ‘intellectual property’ have not considered. If this is property as they claim, then it has a value and, more importantly, it can be taxed.

    I’d vote for extending copyrights indefinitely with the proviso that the copyright holder pays an annual ‘intellectual property’ tax after 10 years of tax abatement. The initial tax needn’t be onerous and a progressively increasing schedule would gently encourage copyright holders to give their work to the public domain when it’s no longer profitable. The new law might even grant a small tax deduction for turning over a copyrighted work into public domain.

    Copyright holders like Disney will go for this because they can keep their copyrights for as long as they are profitable and they wish to pay the ‘intellectual property’ tax.

    Congress will love this because it generates tax revenue.

    We, the people, will love this because failure to pay the ‘intellectual property’ tax results in the work becoming public domain. I expect a flood of public domain when the tax abatement period ends.

     

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    Andy, May 22nd, 2007 @ 4:36am

    I just copied this article wholesale and put it on my website. I also printed it out on flyers, and I'm selling them for $1 each.

    Hope you don't mind. I'm sure you won't be at all pissed at someone else making money off of your own hard work ? I mean, they would be hypocritical...

    You see - there's a very good reason to have copyright. It creates an economy of ideas. Without protection, where is the incentive for someone to put time and effort into an intellectual endeavour ? People have a RIGHT to earn from their work, and without that protection there would be a lot fewer writers, artists and musicians - and the world would be a much poorer place.

    As for the tax idea - surely if you earn income from copyrighted work, that income is taxable just like any other ?

     

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    Idiot, May 22nd, 2007 @ 4:52am

    Re:

    If you sell it, its no longer art. Copy everything!

     

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    Dan, May 22nd, 2007 @ 5:16am

    Re: by Andy on May 22nd, 2007 @ 4:36am

    I disagree with Andy.

    We don't make income from our houses, which are subject to property tax as mentioned in a previous post, so why wouldn't a permanent copyright holder also be subject to tax regardless of whether it makes them any income?

    The limited copyright we have today is kind of like a patent and encourages people to inovate. Making it permanent, just like a 'permanent patent' would make it impossible to inovate because all ideas (which in and of themselves were not original and just extensions of existing ideas) would already be locked up.

     

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    Steve R. (profile), May 22nd, 2007 @ 5:20am

    Re: Andy: Too simplistic an arguement

    The assertion that copyright protection is necessary is too simplistic and obscures what this debate is really about. First, I think that the majority of people acknowledge that a limited copyright is acceptable. What is unacceptable is the aggrandizement of content producer "rights" through the "stealing" of consumer rights. The consumer has rights too.

    Other shortcomings include: 1) the concept that content producers need "protection" or they won't produce. Many people produce content based simply on personnel desire, 2) content producers seem to believe that content has some sort of intrinsic value. This is hogwash, content only has value if a demand exists for that content.

     

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    James, May 22nd, 2007 @ 5:25am

    Your missing the point

    They are not advocating the abolishment of copyright, they are saying that permanent copyright is a bad thing.

    Do you realize that nothing has truely entered the public domain since about 1920. Many corporations who have these copyrights are not using them in any form, but refuse to release them becasue the released works could be brought back by someone else then and would then compete with their existing newer works. I think our existing copyright laws are way to long.

    Lets look at it a diffrent way, should patents be made permanent? Should a drug company be allowed to to charge a high price for a drug for the next 150 years becasue they discovered it? The basis is to give the holder time to recover their invesment in the creation of the work, with some reasonable profit, not to grant someone an eternal monopoly.

     

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    Matteo, May 22nd, 2007 @ 5:31am

    Property, but "whose" property?

    First let me say that this article is really interesting and well written.

    I have some thoughts about this whole intellectual property issue.

    First: in my opinion there is an important difference to be made. Is the intellectual property owned by a phisical person or a juridical person (might not be correct in english, what I mean is: a person or a company)?

    In case it is owned by a single person, such as an writer, singer, composer, sculptor, scientist etc. I really see no point in stretching the intellectual property rights beyond the lifetime of this person. Person passes away: end of intellectual property. I see no reason why the heirs should profit of something they didn't contribute to build or to create in any way.

    In case it is owned by a company, I the limit of the intellectual property has to be determined in such a way that it lasts for "a normal life span". I completely agree that stretching the intellectual property life span would undermine innovation. A company would "sit" on what it has created (or, better said, on what some individuals working for it have created) undefinitely, preventing elaboration of the idea, ameliorations, further developments. Our society would turn, very soon, into a non-innovating society.
    Why?
    Because, before publishing a new idea, the author would have to overcome a series of legal challenges to demonstrate his idea is completely new...
    Our world is an interconneted one, so somebody could always find a connection between an idea and another which pre-existed.

    As usual, the main hidden argument of the intellectual properties discussion is how to grant to the owners their income...

    As limit for intellectual properties I suggest: the life of the author, in case it is an individual (or group of individuals), 20 years for companies (10 years with right on royalties, 10 years without!).

    The 10 years without royalties would provide the protection of intellectual property but not the "monetization" of it.

    But I am very interested in hearing other thoughts on this.

     

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    Brian, May 22nd, 2007 @ 6:14am

    forgotten nuance?

    I think that there's at least one distinction that hasn't been mentioned and is ignored by current copyright law: concept vs performance.

    For example, I think that copyrights (i.e., "intellectual properties rights") should eventually expire, freeing some young film student to legally remake Raiders of the Lost Ark with as much (or as little) originality as they choose, but without fear of Hollywood suing him into oblivion. That's the "concept" aspect.

    But should that same person also have the right to duplicate the Raiders of the Lost Ark DVD and sell it? That specific content, be it DVD, WMV file, or whatever, is a tangible performance (even if just 1's and 0's) that might be deserving of different treatment as compared to less tangible things like scripts. Given my own enjoyment of "mashups", I'm not sure this is a particularly good approach, but I think it's worth discussing.

    An alternative analogy would be music. Anyone can rearrange, perform, and/or publish a Bach symphony. At some point (perhaps overdue), I should have the same rights to a Beatles song, for instance. What I think should be discussed is whether that right must also mean I can republish a Beatles recording. Or should the two be separated to some extent?

    Perhaps a "performance right" distinct from the current "Intellectual Property right"?

     

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    Peter, May 22nd, 2007 @ 6:30am

    Inventing is tougher than writing

    Why is there such a difference in the length of Copyright and Patent protections? Drug companies apparently have an incentive to invest large sums with just the hope of success, any yet Patents expire in our lifetimes. Copyright terms should be at least as short as Pantent terms.

    Imagine Patents were as easy to get as Copyrights, and lasted as long. How many new drugs would we get? Do you see a boost in innovation coming from that? Sure there would be some innovation still, but mostly from large companies that have the resources to defend against claims of infringement of prior art. Can you visualize the relative stagnation of the inventive culture? Just think how liberating it would be to any inventor if after living under such rules, Patent terms were shortened to 21 years. I submit that shortening Copyright terms would be just as liberating.

     

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    Anonymous, May 22nd, 2007 @ 6:36am

    Um, no

    I haven't read Helprin's original piece, but it's hard to imagine it was more "wrong (and confused)" than Masnick's. Masnick has made the argument that, because it can be copied ad infinitum, intellectual property isn't scarce. What he utterly fails to understand is that the value attributed to that intellectual property - in dollars - is scarce.

    Money isn't free. We all have finite amounts of it and that's why it's valuable. So money is a scarce resource. And retaining a copyright is the way the creator of intellectual property gains more of that scarce resource (money). The very same freemarket mechanism Masnick applauds for physical resources applies to intellectual property.

    On a more basic level: What right does Joe Blow have to someone else's intellectual property? Far from intellectual property owners asking government for a subsidy when they request an extension of copyright, the reverse is the case: having a limit, in years, to copyright actually creates a gift to the public at the expense of heirs. I'm not saying it's necessarily wrong that the system works that way, but it's the height of ignorance to throw this gift back in the faces of intellectual property creators and claim that it's society's "right" to take the property after a set number of decades. It's not - it's theft at the expense of the individual but significantly benefiting society.

     

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  35.  
    identicon
    Sunsneezer, May 22nd, 2007 @ 6:56am

    Re: forgotten nuance?

    You have a point here: Is building upon an existing public domain work the same thing as simply distributing it verbatim and profiting from it?

    Re-publishing public domain works is justifiable, and since everybody have the possibility to distribute the same content, it is not very interesting from a commercial point of view. If you want to republish a Beatles song, you'll have to compete with whoever does the same thing. Such a situation will encourage redistributors to do research, add value and make the offer otherwise interesting. Also, if a liberated work is not widely available, re-distribution is actually benefiting its exposure.

    I bought a DVD print of Fritz Lang's Metropolis in a bargain bin. Although a third party who probably has nothing to do with the original author printed it, they still have the merit of making a very reasonably priced transfer available. You could argue a masterpiece is worth more than a cheap sleeve and questionable soundtrack choice, and that the control of the right holders would secure the quality of future releases, but history has shown that heirs often makes pretty bad decicisions about those things too.

    I believe it is better to trust the re-distribution of a work to the public. So that the fans can distribute free copies on P2P networks and companies can try their best to compete by enhancing the value of the work with extra material, re-mastering or a wide catalog. That's pretty much the situation right now regarding public domain movies (as far as I know, anyway) and it should stay that way.

     

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  36.  
    identicon
    Paul, May 22nd, 2007 @ 6:59am

    The problem is, he gets to publish this in the NY Times. He gets far more exposure for his ideas - of the political kind, to give politicians backing for their initiatives that lobbyists pay them for - than you do.

     

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  37.  
    identicon
    Bas Horneman, May 22nd, 2007 @ 7:06am

    Seems to me that theft at the expense of the indiv

    will in the long run cause the decline of society.

     

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  38.  
    identicon
    GregS, May 22nd, 2007 @ 7:28am

    Another argument

    Interesting article. Your arguments for limiting the term of copyrights are coming at the issue from the social point of view. I think there's an additional argument from the individual's point of view. I would argue that the purpose of copyrights is to allow the creator of a work to profit from his effort. But once the creator is dead, this no longer applies. Of course, for practical reasons, copyrights do need to continue to apply for some time after the creator's death, because the copyright holder is not working in a vacuum and there are others (publishers for instance) whose investment in the copyrighted work needs to be rewarded too. But I can't see any justification for the position that an author's great-great-great-grandson, who never knew the author and who had nothing to do with the creation of the work, somehow deserves to still collect royalties on it.

     

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  39.  
    icon
    Steve R. (profile), May 22nd, 2007 @ 8:12am

    Re: Another argument -Rewarding Publishers

    Clearly you agree that copyright should be restricted to a limited period of time. While, I can agree that publishers who have invested in bringing a work to market may be entitled to a royalty, the purpose of copyright is not to provide a welfare payment to the creators/investors. The purpose of copyright is to provide a limited monopoly to promote the progress of science and the arts.

    Promoting the progress of science and the arts means that copyright must only be for a limited period of time. We live in a free market system were the producers must produce to make money, not a royalty (welfare) system that obstructs future innovation through legal gymnastics.

    If you can't recover your "investment" by the time the copyright expires, too bad. You simply made an incorrect business decision. Time to move on.

     

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  40.  
    identicon
    Used Car Man, May 22nd, 2007 @ 8:28am

    It is My Land

    seems we need to lay off on copyright laws as it is starting to slow growth in the us.

     

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  41.  
    identicon
    Anonymous, May 22nd, 2007 @ 9:02am

    Nonsensical

    I'm utterly baffled by these comments, particularly Steve R's. In what sense does a rigorously-defended and long copyright constitute a "welfare payment"? I have to think that people who are opposed to long copyrights simply don't expect to ever produce something valuable and unique, so they hope to benefit from the state's ability to seize proprietary information as quickly as possible. It's not legal gymnastics for an author to say that the book he wrote is his, and that the work he put into it should benefit his great-great-grandchildren: the intellectual property is the product of his mind, and no one else's; he should be the sole decider of the fate of his work, and the profits reaped from it.

    How would all of you feel if, after 20 years, I showed up at your front doorstep and said that I wanted to live in your house; that your proprietary use" of the property had expired? Or mayb you've passed along a cottage to your grandchildren: when you die, should I be able to go to the cottage and tell your gandchildren I want to use it for July and August because it's now in the public domain?

    What the heck is the difference?

     

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  42.  
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    Willow reed, May 22nd, 2007 @ 9:28am

    Re: So many mistakes....

    I agree with the tollbooth analogy (Susheel's post). I think most ideas ARE expansions of previous ideas. Look at the advertising world. They recycle the same ideas every couple of years!

     

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  43.  
    identicon
    divyansh sharma, May 22nd, 2007 @ 9:50am

    so i can just copy ur post and put it on my website ?

     

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  44.  
    identicon
    zz, May 22nd, 2007 @ 10:06am

    Re: Inventing is tougher than writing

    I think you're spot on. I'd be happy if we revert to the original Copyright duration: 17 years once renewable.

    What makes authorship inherently more valuable that my inventions? The purpose of Patents and Copyrights are to create an incentive for people to innovate and author creative works by giving a limited-term monopoly on the "IP". Then the invention or creative work reverts to public domain for the enrichment of society.

     

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  45.  
    identicon
    Scott Westfall, May 22nd, 2007 @ 10:16am

    Whether the property is physical or intellectual, a person should be able to benefit from their efforts. Any argument against allowing a person to own and control intellectual property suggests that people should be able to sell manufactured goods only for the cost of production. We don't. We allow them to generate profit that accounts for their time and frequently a great deal more.

    If I create something of worth, whether it is tangible or not, why should I not have the ability to profit from it for the rest of my life? Why shouldn't my heirs profit from it just the same as if they inherited a factory or a farm. If copyrights should expire, why not have all property become public when a person dies?

    The truth of it is, people are just looking for something for nothing. They wrap in idealistic crap, but they are just too cheap to pay a reasonable price for a book, a movie, or CD.

    My pirate friends tell me they aren't hurting anyone because they wouldn't pay for it even if they couldn't download it. That's like me saying that I don't really need to eat. I just eat because I can. The only way to prove either contention is to truly go without. If you truly are a music lover, you will find that you need to address your passion by buying music.

    The argument is a simple one: I should own and control what I create.

    --Scott

     

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  46.  
    icon
    Mike (profile), May 22nd, 2007 @ 11:12am

    Re:

    I just copied this article wholesale and put it on my website. I also printed it out on flyers, and I'm selling them for $1 each.

    Cool. Let me know how it goes.

    Hope you don't mind. I'm sure you won't be at all pissed at someone else making money off of your own hard work ? I mean, they would be hypocritical...

    I don't mind. I make that point all the time. If you can do a better job getting our content to the people who want it, more power to you.

    Without protection, where is the incentive for someone to put time and effort into an intellectual endeavour ?

    You are apparently new around here. We've gone into great detail about non-monopoly right incentives that work just great. In many cases, they work better.

    People have a RIGHT to earn from their work, and without that protection there would be a lot fewer writers, artists and musicians - and the world would be a much poorer place.

    Yes, they have a right to earn from their work. We're not denying that. However, you're wrong to suggest there would be fewer writers, artists and musicians. There's plenty of research on this that we talk about all the time.

     

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  47.  
    icon
    Mike (profile), May 22nd, 2007 @ 11:19am

    Re: Um, no

    Masnick has made the argument that, because it can be copied ad infinitum, intellectual property isn't scarce. What he utterly fails to understand is that the value attributed to that intellectual property - in dollars - is scarce.

    Heh. You seem to be confused. The idea itself isn't scarce at all. You're right that money is scarce, but that's different than the idea and doesn't change the argument at all. What you're saying is like if I said "that car is blue" and you respond "well, you're wrong, because that other car is red." We can talk about the scarcity of money all you want -- and it is scarce -- but ideas, once created, are no longer scarce.

    And retaining a copyright is the way the creator of intellectual property gains more of that scarce resource (money)

    Yes, it is one way. But is the most optimal way? That's the issue we're discussing.

    On a more basic level: What right does Joe Blow have to someone else's intellectual property?

    Every right in the world, if he can then take that idea and make it better. That's called progress.

    It's not - it's theft at the expense of the individual but significantly benefiting society.

    And here you are tremendously and, in fact, dangerously, confused. It is not theft. For it to be theft, someone would have had to have lost something. That's not the case at all.

     

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  48.  
    icon
    Mike (profile), May 22nd, 2007 @ 11:25am

    Re: Nonsensical

    In what sense does a rigorously-defended and long copyright constitute a "welfare payment"?

    Because it's granting them a gov't backed right that the market hasn't provided. That is welfare.

    I have to think that people who are opposed to long copyrights simply don't expect to ever produce something valuable and unique, so they hope to benefit from the state's ability to seize proprietary information as quickly as possible.

    I produce a ton of valuable content every day, and I get paid well for it... and I am opposed to long copyrights. Why? Because I can make more money without them.

    It's not legal gymnastics for an author to say that the book he wrote is his, and that the work he put into it should benefit his great-great-grandchildren: the intellectual property is the product of his mind, and no one else's; he should be the sole decider of the fate of his work, and the profits reaped from it.

    This shows a total misunderstanding of property and ideas. It's hard to know where to start... but, considering you've just copied your argument from someone else, are you willing to pay royalties on it? No? Why not?

    How would all of you feel if, after 20 years, I showed up at your front doorstep and said that I wanted to live in your house; that your proprietary use" of the property had expired?

    I'm guessing you didn't even read the post above. I make a clear distinction between scarce and non-scarce goods. To go back to scarce goods doesn't help your point. It helps prove mine.

    What the heck is the difference?

    All the difference in the world: scarcity and infinite goods. Learn the difference.

     

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  49.  
    icon
    Mike (profile), May 22nd, 2007 @ 11:30am

    Re:

    Whether the property is physical or intellectual, a person should be able to benefit from their efforts.

    I have never argued that a person cannot benefit from their effort. I am only arguing that the gov't shouldn't set up false monopolies for that purpose. There are many other ways that they can benefit, which we've written about extensively. So your argument here is a non-starter.


    Any argument against allowing a person to own and control intellectual property suggests that people should be able to sell manufactured goods only for the cost of production. We don't. We allow them to generate profit that accounts for their time and frequently a great deal more.

    No. You are making an assumption that is simply incorrect. There are many ways to profit from ideas that have nothing to do with selling manufactured goods for the cost of production. Again, I suggest you read some of our earlier posts.

    If I create something of worth, whether it is tangible or not, why should I not have the ability to profit from it for the rest of my life?

    You do have that ability. But it doesn't require a copyright. Stop thinking that it does.

    Why shouldn't my heirs profit from it just the same as if they inherited a factory or a farm. If copyrights should expire, why not have all property become public when a person dies?

    Because of the key difference between scarce and infinite goods. I thought I made this point in the post. Why do you ignore it?

    The truth of it is, people are just looking for something for nothing. They wrap in idealistic crap, but they are just too cheap to pay a reasonable price for a book, a movie, or CD.

    No. This is false. Again, I've pointed out why people can make much more money by ignoring copyright. So it's not about being cheap at all. It's about expanding markets.

    My pirate friends tell me they aren't hurting anyone because they wouldn't pay for it even if they couldn't download it. That's like me saying that I don't really need to eat. I just eat because I can. The only way to prove either contention is to truly go without. If you truly are a music lover, you will find that you need to address your passion by buying music.

    As I've said, this has nothing to do with piracy. My argument stands even without piracy.

    The argument is a simple one: I should own and control what I create.

    And you do. What you DON'T get to control is what you've sent out into the world. Just like you don't get to control what happens to a chair after you've sold it, you don't get to control your content after you've sold it to someone else. If you want to have IP and real property play by the same rules, then why won't you accept this rule?

     

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  50.  
    identicon
    mullingitover, May 22nd, 2007 @ 11:41am

    The real tragedy

    The vast majority of copyrighted works aren't even in distribution anymore. That's the real shame of these ridiculously long copyright terms, we're locking up massive amounts of work to benefit a relatively tiny number of people.

    It's representative of the fallacy that many share here in the United States. We rig the rules to give inordinate benefits to a tiny number of people with the assumption that we have a good chance of being one of those people.

    We should institute a copyright renewal fee which increases exponentially each year after the first 17 years.

     

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  51.  
    icon
    Steve R. (profile), May 22nd, 2007 @ 12:20pm

    Re: Nonsensical - Bad Analogies

    "state's ability to seize proprietary information"
    When a copyright or patent expires it goes into the public domain where anyone has the freedom to benefit by it. The state is not seizing anything.

    "that your proprietary use" of the property had expired?"
    There are many types of property. Land is one of those types of property that has a long life. However, other forms of property such as cars and computers have a short life. In fact their value tends to depreciate as newer and better cars and computers are introduced. In the end the monetary value of old cars and computers can actually be negative since you have to pay the garbage guy to pick the junk up and haul it away.

    I would advocate that the "value" of copyrighted material is also subject to economic factors such as depreciation (not in the physical sense) and competition. What has value today for the consumer may be valueless tomorrow. An author may believe his work is worth $1 Million. However, if no consumer is willing to pay, it sits on the shelf and benefits no one.

     

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  52.  
    identicon
    Anonymous Coward, May 22nd, 2007 @ 12:59pm

    Re:

    so i can just copy ur post and put it on my website ?
    Why not? Would that be against your religion or something?

     

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  53.  
    identicon
    Anonymous Coward, May 22nd, 2007 @ 1:01pm

    No justification.

    I am to the point that I simply see no justification for copyright anymore.

     

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  54.  
    identicon
    Jay, May 22nd, 2007 @ 1:36pm

    Quantity vs. quality

    Another aspect of this debate that I only see hinted at here is the fact that the "innovation" of our society is mostly in the realm of quantity not quality.

    For example, in pre-industrial societies with no copyright law, one would only produce music, literature or art if one truly believed that one's work would enrich society. One could not count on a large individual benefit. For this reason Mozart wrote music that people today still listen to, Davinci created art that people still look at, shakespeare wrote plays that are still performed. I am convinced that Da Vinci would have worked just as meticulously even if he had known his name would be obliterated from all historical records 20 years after his death.

    Counter this with today's America where any honest, intelligent person must concede that the art, literature and music of our society is pure crap. But people keep producing it because copyright law gives them incentive to keep regurgitating out the same formulaic movies, the same shitty art, the same mind-numbing music and the same pretentious novels.

    The "inovation" of copyright law has in many cases resulted in lower quality work rather than higher quality. The IP defenders are thinking only of profit, even if this creates a mediocre society.

     

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  55.  
    identicon
    Brook Monroe, May 22nd, 2007 @ 4:34pm

    Re: Melancholy Elephants

    No better argument was ever made against the tyranny of indefinite copyright. I was going to mention it--thanks for beating me to the punch, Giff. Helprin needs to read that story for sure.

     

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  56.  
    identicon
    William Wilgus, May 22nd, 2007 @ 4:41pm

    I stopped reading this article when I ran into this sentence:

    "The purpose of property is to better manage the allocation of scarce resources."

    Sorry, but `property' doesn't have a purpose, it just exists. The sentence did have the `property' of telling me that at best, it's a poorly written article---the reason I stopped reading it.

     

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  57.  
    identicon
    Humbug, May 22nd, 2007 @ 4:49pm

    Excellent work!

     

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  58.  
    identicon
    Michael, May 22nd, 2007 @ 9:47pm

    Re: propert

    "Sorry, but `property' doesn't have a purpose, it just exists. The sentence did have the `property' of telling me that at best, it's a poorly written article---the reason I stopped reading it."

    Obviously you've never thought of property from a social perspective. Quite simply I'd ask what the underlying motives might be to people staking a claim to a particular piece of land might be. It might be becuase you think there is gold underneath, or that it's close to a river or in a good neighborhood, but all of these elements make a limited resource such as land more or less valuable and hence worth protecting as "property." Now in the case where property doesn't exist you probably end up with what is termed "the tragedy of the commons" (phrasing may vary), which in turn creates an incentive for people to establish their own turf which they themselves can take care of and keep others that they don't trust away from it. Or to simplify consider the difference between renters vs. owners.

    Another way I can refute you is simply buy saying that the idea that property doesn't have a purpose is like saying that law doesn't have a purpose (property being nine tenths).

     

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  59.  
    identicon
    vafer, May 22nd, 2007 @ 10:47pm

    I copyright the letter "e"

    There, copyright for eterenity, the letter "e". As a matter of fact, I'm going for the whole alphabet and the numbers 0-9. ;-P Think of the royalties! buahhhahahahaha!

     

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  60.  
    identicon
    Anonymous Coward, May 23rd, 2007 @ 6:14pm

    Re:

    "People have a RIGHT to earn from their work,"

    No. They have a right to TRY to earn from their work, there is absolutely no guarantees that every business idea or model is profitable, nor should there be.

    "and without that protection there would be a lot fewer writers, artists and musicians - and the world would be a much poorer place."

    You mean there would be a lot less shit out there? Good. Would be nice if the only things out there would be those for which there was some other motivation to create than just money. Perhaps I wouldn't have to delete 90% of the stuff I download right off because it's such utter garbage.

     

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  61.  
    identicon
    Anonymous Coward, May 23rd, 2007 @ 6:26pm

    Re: Nonsensical

    "How would all of you feel if, after 20 years, I showed up at your front doorstep and said that I wanted to live in your house; that your proprietary use" of the property had expired?"

    I'm afraid there wouldn't be room for you. But if you wanted to build a new copy of my house for yourself, I say go ahead.

     

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  62.  
    identicon
    John Bickerton, May 24th, 2007 @ 7:22am

    Limited Copyright is good - just ask the public do

    Limited copyright protects the creator's idea for his/her lifetime and somewhat beyond. But legislators have realized that there has to be a limit to the inheritance's claim on the idea. At some point the idea enters a greater world beyond the individual called "the public domain". Once there, the idea is free to all. Once there, you're in pretty good company too. The works of Shakespeare are there, so is Beethoven, Mozart, Mark Twain.

    A permanent copyright isn't good for a free society. Having works or "thought" enter the public domain promotes new works, promotes artistic freedom - it basically grows society.

    The limited copyright law that is now in place offers a lot of protection.

     

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  63.  
    identicon
    AndyInOz, May 25th, 2007 @ 6:40am

    Re: Um, no

    What a crock. I'm an academic, and have published plenty of scholarly articles which (I hope) others read, learn from, and extend. Is there money to be made in these ideas? Probably. Do I want that money, maybe a little bit. Will I sue to get it? Never. If copyright (or patents for that matter) become indefinite, then there will be NO innovation, for all invention is based on the work of others. Every 'new' invention would be forced to pay about 5,000 royalties for other existing ideas they use, and this exponential spiral would continue ad infinitum. The ridiculous software patent industry has shown this very clearly in the last decade, where an entire industry has sprung up with a business plan that consists of (a) patent trivial idea, (b) write letters to every large company claiming infringement and hope for a quick and large settlement. Rewarding innovation indeed. Oh, by the way, I'm claiming copyright on the note 'C', since I used it in a composition a while back. If anybody wants to use it, I'll gladly let you for 1c per occurrence.

     

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  64.  
    identicon
    Ian, May 28th, 2007 @ 1:38pm

    It is welfare

    That this is welfare is something I have had to point out to people who cannot understand why copyright should be limited. Very limited in fact. I see children of artists whining that they should be able to profit from their dead parents' work. I say get a job you lazy slobs. In no other area of endeavour do people expect to be paid over and over for the same work. My clients would throw me out the door if I demanded they pay me in perpetuity for the same work. Those in the entertainment industry have developed a sense of entitlement and laziness.

     

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  65.  
    identicon
    Mr. anti-copyright, Apr 16th, 2008 @ 8:45am

    I believe that if you cant stop someone from using your work that you dont have the right to copyright it at all... but you should have a short term copyright... 1 year maby... so you get the initial money

     

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  66.  
    identicon
    muthu, Nov 10th, 2008 @ 3:33pm

    Nice article

    I saw your article page. very nice about copyright rules. its quietly good for me. all the points are very nice informative.its a well secure system. my heart full thanks for you......
    -------------
    Muthu

    MLS

     

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  67.  
    identicon
    Kristen, Jan 31st, 2009 @ 5:45pm

    It wouldn't work

    I agree with the majority here that having a permanent copyright would really cause massive problems. More people would be taking advantage of diseased family members, and you would at some point probably be stepping on your own toes as you continue to copyright new things.

    ---------
    Kristen
    real estate license

     

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  68.  
    identicon
    Andrew D. Todd, Feb 26th, 2012 @ 12:19pm

    Shakespeare Never Owned the Copyrights.

    Shakespeare's plays were "works for hire," transferred to the Globe Players (The Lord Chamberlain's Men, Lord Hunsdon's Men, The King's Men) before being put into production. The company owned the plays, and arranged for their printing at its own convenience, not that of the author. This was the customary arrangement. The actors were not going to go to the trouble of producing a play they didn't own. There were only three to eight theaters in London in Shakespeare's time, and rather more authors, so one can imagine how that turned out. In due course, the plays were sold to a printer, a member of the Stationer's Company. The Stationer's Company had a legal monopoly of printing, and of course this meant that the chosen printers within it could drive a hard bargain as an ordinary matter of course. They didn't do royalties. The Globe Players got a fixed sum of money for the plays, again, as was the normal custom. Finally, the Globe Players adopted the eminently practical custom of buying out retiring partners. Shakespeare got everything he was entitled to, in the form of money, which he used to buy real estate.

    Large corporate entities always like to preserve their freedom of action by owning everything outright, and they use their economic leverage to do so at a reasonable price, eg. by enforcing "work for hire" employment. Large items of capital, such as printing presses and stages tended to count for more than the author's "thought-stuff." It was inevitable that perpetual copyright eventually worked out to a big corporation owning everything. That is just as true of Microsoft and of the movie studios as it was of the Globe Players and the Stationer's Company.

     

    reply to this | link to this | view in thread ]


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