The Bizarro, Fact-free World Of Copyright Policymaking
from the would-be-nice-to-have-some-fact-based-policy dept
If you’re a regular visitor to this website, you’re likely used to the never–ending parade of horribles detailing how copyright has been used to censor documents, stifle innovation and generally wreak all kinds of unintended havoc.
Even with this constant attention, it’s sometimes easy to lose sight of exactly how world-champion strange copyright policy is. Only when it’s placed alongside other government policies does it become clear exactly how it has evolved into a bizarro-world version of rational policymaking.
That something does what it’s supposed to is usually the baseline for evaluating public policy. It’s certainly what I expected to find as I researched my (shameless self-promotion alert) just-published book, Copyfight: The global politics of digital copyright reform. I’m an economist and political scientist by training, and also spent six years as an economist with the Parliamentary Information and Research Service, the Canadian equivalent of the Congressional Research Service. Coming cold to the wonderful, wooly world of copyright, I expected that such a long-lived institution would be grounded at least partly in empirical evidence that it, you know, actually promotes the creation and dissemination of music, books and so on.
Silly me. Here’s how Ruth Towse and Rudi Holzhauer conclude their introduction to their 2002 edited volume, The Economics of Intellectual Property:
“For all the sophisticated analysis by economics, economic historians, law-and-economists and lawyers, we still cannot say with any conviction that in general IP law stimulates creativity or promotes innovation, though it may contribute to the process of communication between producers and consumers.”
That’s not exactly a ringing endorsement. (Towse and two co-authors reach a similar conclusion in a 2008 article reviewing the economics literature on copyright.)
In a 2009 study, “Does Copyright Law Promote Creativity? An Empirical Analysis of Copyright’s Bounty,” Raymond Shih Ray Ku, Jiayang Sun and Yiyang Fan remark that “even though copyright has existed and continuously expanded for hundreds of years, there has been little research done to test the theoretical basis for copyright’s expansion. In fact, so little has been done that one author [in 2006] specifically pled for more empirical research.”
Being good researchers, they did just that, looking at whether the number of works created in the United States from 1870 to 2006 increased as the government strengthened copyright law. They found that stronger copyright indeed led to more works being created.
Kidding! They actually found “that when lawmakers consider whether to expand copyright law, there is little empirical or theoretical support for the position that increasing copyright protection will increase the number of new works created.”
Despite a lack of evidence that would spur calls for a fundamental rethink in almost any other area of public policy, copyright continues to spread and strengthen, from books to computer programs to online works, from a renewable 14 year term to life of the author plus 100 years in Mexico.
And of course there’s Ian Hargreaves’ 2011 report, which called for UK copyright policy to be “evidence based.” Imagine that.
While none of this will surprise readers of this website, to any non-copyright policy wonk this state of affairs is insane.
It’s not that all (or even most) public policy is purely evidence based (see: Drugs, War on). Power, self-interest and morality shape all policy debates. But copyright is unique in that it is driven almost purely by these factors. Even morality-based arguments for the War on Drugs have to contend with the actual, measurable effects of government anti-drug policy.
Copyright reforms should be evaluated based on how they would affect the production and dissemination of creative works. How much is being produced? How many people are able to access these works?
That doesn’t happen. Instead, policy is driven by morality-based arguments about how copying is theft, and by its effects on specific industries and business models (often citing industry-supplied data). Not good.
We’ll never eliminate power and self-interest from copyright politics. However, it could be made a bit more sane by adopting an evidence-based focus on how well it fulfills its dual objectives in the interests of society as a whole. In doing so, analysts could help ground a debate that, in the absence of evidence, is polarized by self-interested arguments and irreconcilable questions of morality and “rights.” This should’ve happened 300 years ago, but better late than never.
Blayne Haggart (@bhaggart) is an assistant professor of political science at Brock University in St. Catharines, Ontario. His first book, Copyfight: The global politics of digital copyright reform was just published by University of Toronto Press.
Filed Under: copyright, facts, faith based, policy making
Comments on “The Bizarro, Fact-free World Of Copyright Policymaking”
It will only happen when the middlemen are taken out of the discussion table and the discussion is carried among the public and the artists who are the true interested and set to benefit from it. Too bad it won’t happen since the money is with the middlemen which means they are the ones that lobby.
It’s not bizarro, it’s predictable. Copyright is morphing to be what the middlemen want.
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Copyright since the Statue of Anne has always been about what the middlemen want. The US copyright did originally attempt to strike a better balance with public interest, but that’s been largely eroded and stripped away by said middlemen for their own self-interest. Unfortunately, our policy makers have bought into the lie that the self-interest of middlemen is aligned with, and even a necessity of, the interest of creators and the general public.
That’s hardly surprising though, as the same could be said about financial middlemen, such as investment bankers, and the entire economy.
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— Preamble to the Statute of Anne
Copyright, up until fairly recently (in historical terms) has always been about reining in abusive middlemen. There are a few revisionist historians trying to make a different argument these days, but their argument is not supported by the facts, and frankly they really should stop because it’s not only false, it weakens our case too.
There’s a reason why copyright policy is so strongly based on moral arguments: moral arguments work. For most people (not everyone, certainly, but for the majority of people) a strong, clear moral argument is more persuasive than an appeal to evidence or even to self-interest. People want to believe that they are good people. People want to believe that, where they have faults, they are improving. So of course people listen to moral arguments.
The right way to fight a flawed moral argument is not to dismiss moral arguments, but to counter with a better moral argument. And the morality here is clear: copyright was designed with the explicit aim of preventing publishers from abusing people. Today, it has been corrupted by those same publishers it was supposed to keep in line, to the point where the DMCA and similar legislation has the explicit aim of enabling publishers to abuse people and giving them legal protection for doing so. Therefore, the current copyright system is immoral and needs to be rolled back to earlier standards.
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Because a printer had to commit to a number of copies at the start of a print run, they were always liable to be left with unsold books if someone else brought the same title to market. Therefore the be all and end all of copyright was to regulate who could print a title, and authors were only brought in as political spin to get a bill passed, as several prior attempts which did not mention authors failed. A transferable right, granted to authors gave the printers what they wanted, control over who could print a title. As for authors, they had been producing manuscripts since the dawn of writing without the benefit of copyright, and even been selling them to printers for the first couple of hundred years of printing.
Like many bills, the preamble is more political spin than a description of the real reason for the bill. After all the publishers keep saying longer copyright is needed to benefit creators, while they rob them blind with one sided contracts, and limit their earning potential by taking works off of the market.
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[citation needed]
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Traditional printing is a batch process, and for Gutenberg level hot metal technology, the printer cannot have the whole book in type at the same time, it required too many tons of type. Printers therefore have to print enough sheets, which fold into 2,4,8 etc. leaves, (double that for pages), for the desired number of books every time they set up to print`, a side of a sheet at a time for Gutenberg technology. The pages that make up each side were disassembled into cases of characters after printing, so that they could be used for latter sheets. Because of this they have printed all the books that they think that they can sell before they can sell the first one.
As to the spin claim a quote from the wikipedia article
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on one level, that’s all interesting stuff, on another, i don’t give a rat’s (or mouse’s) ass what queen anne or anny one else did in this regard…
what i WANT, are contemporary laws which respond to contemporary mores and conditions, NOT favor extortionist gatekeepers to the exclusion of THE PEOPLE WHO MADE IT VALUABLE…
i can not stress this enough, and it is a common enough theme here: OBSCURITY is the enemy of ‘success’, not pirating…
it is THE COLLECTIVE judgment of us all which makes a widget sell like hotcakes; it is OUR COLLECTIVE DECISIONS to watch a show, listen to a song, read a book, play a video game, etc, etc, etc, that make Big Media zillions…
WE make it popular, by the very definition: in fact, it is THE GATEKEEPERS who are stealing (and i DO mean STEALING) OUR CULTURE (such as it is), OUR popular means of expression, OUR art and music and words and EVERYTHING…
OURS…
give it back…
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An Act for Preventing Abuses in Printing Seditious, Treasonable, and Unlicensed Books and Pamphlets, and for Regulating of Printing and Printing Presses
Whereas the well-government and regulating of Printers and Printing Presses is matter of Publique care and of great concernment especially considering that by the general licentiousnes of the late times many evil disposed persons have been encouraged to print and sell heretical schismatical blasphemous seditious and treasonable Bookes Pamphlets and Papers and still doe continue such theire unlawfull and exorbitant practice to the high dishonour of Almighity God the endangering the peace of these Kingdomes and raising a disaffection to His most Excellent Majesty and His Government For prevention whereof no surer meanes can be advised then by reducing and limiting the number of Printing Presses and by ordering and setling the said Art or Mystery of Printing by Act of Parliament in manner as herein after is expressed.
????? ????? ??Full title and preamble to the Licensing Act 1662, 13 & 14 Car.II, c.33
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…and what does a completely different bill from nearly 50 years earlier have to do with anything?
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As Ronan Deazley points out in his Commentary on the Licensing Act 1662
If you want to claim that 8 Anne c.19 was about ?reining in abusive middlemen?, then you kinda have to explain why the bookseller’s lobby pressed for passage of that latter act.
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Try reading his article on the Statute of Anne, which you linked to in an earlier comment. As he explains clearly, the act they pushed for didn’t look much like what ended up getting passed.
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Which perfectly explains the 1769 result in Millar v Taylor, where the judges decided that the statute 8 Anne did not extinguish the pre-existing common law right.
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As you’ve remained mute on the point of Millar v Taylor, let me put the matter to you more clearly.
For brevity’s sake, I shall reduce it to two questions:
How stand you on the questions?
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Care to expound upon who these revisionist historians are?
Ronan Deazley, for instance, I’ve got his Commentary on the Statute of Anne 1710 handy, right now. Is he a revisionist?
In that commentary, he criticizes some contentions made by both Feather and Patterson. Are they revisionists?
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I just looked at that, and it looks like Deazley got things right. The Stationers, as tone-deaf as today’s mega-publishing cartels, introduced an act that would have forwarded their interests (after having had their monopoly powers smacked down a few years previous, the author does not mention) but both houses of Parliament introduced revisions that limited the power of the publishers and improved the rights of authors.
He sums it up rather well in the last paragraph: And yet the Statute of Anne was markedly different from that which had gone before – the world of the seventeenth century stationer was fast disappearing. It’s rather annoying to see people today try to say that the Statute of Anne was a continuation of the corrupt Stationers’ censorship regime, when it was in fact exactly the opposite.
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So your beef is with L. Ray Patterson?
I once heard Patry say? aw, never mind about that. Anyhow, I still want to know who these ?revisionists? are.
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Why does who they are matter? What matters is what they say, and how much damage they do because people end up listening to them.
My “beef,” as you put it, is with false, harmful ideas that legitimize the abusive system we have today rather than expose it as corrupt. Not with any specific person.
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People don’t hold ideas — IDEAS HOLD PEOPLE!
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— Cobb, Inception
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Copyright law has always been aligned with the interest of publishers. The Statue of Anne has to be taken in context of the time. Before for that, the publishers–via their guilds–already had control over those sanctioned by themselves and the crown. The only way an author could legally publish a work was through a sanctioned printer. The Statue of Anne didn’t really change this situation much. Even though it gave a copyright to the author, it was always under the understanding that he would still require publisher, and that other publishers would still be barred from reprinting the authors’ works to “protect” them. However, what was there to protect the author from being abused by the publisher he sign on to?
the current copyright system is immoral and needs to be rolled back to earlier standards.
In someways, I agree. The current term “limits” are beyond sane. However, none of the originating copyright laws have any standing in the modern digital age, where authors can publish their own works without the direct intervention of a middleman–and so can the other billions of people with a computer. Any law based on the prohibition of coping, under moral reasons or otherwise, is just no longer tenable. That genie has been uncorked decades ago. Short of mandatory registration and regulation of every digital device capable of making copies, or a full ban on such, there’s just is no going back. We need to just start over with a new paradigm that actually makes sense in today’s reality rather than merely rehashing laws from three centuries ago.
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And what would that paradigm be? The laborer is worthy of his hire. What would you propose, to ensure that a person who creates something of intrinsic value to a large population is able to make it their livelihood if they so choose, even if it’s something that is easily copied?
It’s easy to say “this thing that exists is bad and should be replaced with something better,” but unless you can propose a workable plan for “something better,” don’t be surprised if no one listens.
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Ahem.
“We don’t trust markets, so Congress should extend a government-granted monopoly to copyright owners indefinitely so that they can continue to extract monopoly rents long after any conceivable social benefit justifies it.”
… some people may need that translated.
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How can you possibly get that out of what I said?
You really need to read up on the difference between exegesis and eisegesis.
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…please don’t meddle in things you don’t understand.
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We don’t trust markets that are not free or open.
FIFY
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Seriously? You don’t seem to be new here, so you should have noticed by now that Mike as already proposed alternative funding models. I agree that creators need to be paid, but digital media can’t be treated like a widget. There’s no value in merely making copies when billions of others can do the same thing at almost no cost.
It doesn’t take an auto mechanic to tell when a car isn’t running well, but it takes one to fix it. Just because I don’t have the perfect solution doesn’t mean I can’t tell that the current system doesn’t work. And you can’t even begin to find a solution if you don’t bother to look, or delude yourself into thinking that there’s no problem at all.
If by “process of communication” they mean “nastygrams” and “three strikes, etc.,” then yes, I’d say it does. We consumers have little say in the matter.
Mind you, the smartest thing they did was get us at each others’ throats by using the (false) moral argument in which copying and infringing was equated with theft. That, and the delusion that the little guy can benefit from copyright and IPR has got me into more arguments than I care to try to count.
The trouble is, the maximalists own the narrative. We need to push back harder till it becomes “common sense” that the maximalists are the thieves and they are robbing us.
Stupid moral people, they just don't get it!
“Copyright reforms should be evaluated based on how they would affect the production and dissemination of creative works.” Really? And then there’s this: “policy is driven by morality-based arguments … Not good.” Um… okay. I mean, don’t get me wrong, I agree with both of those statements. It’s just that claiming that non-economic rationales for copyright policy are beside the point, or fundamentally “not good,” is just dumb. Any analysis of copyright policy that fails to take into account the significance of so-called moral rights, and the intuitive appeal of romantic notions of authorship, is doomed to fail. At least it should be apparent that many people — including, yes, the self-interested — don’t find arguments to the contrary particularly compelling.
It’s not simply that copyright policy-makers are getting it wrong, it’s that they fundamentally disagree with you about the purpose of, and justification for, copyright law. Yes, the Constitutional grant of the power to legislate copyright and patent protection says (well, implies) that’s the purpose, but we live in a post-constitutional world. The obvious failings of sentencing policy, tough-on-crime measures, and the hazily-conceived and ill-named “war on drugs” are an interesting parallel example of experts pointing out catastrophic failures and legislators and the public not particularly caring. One reason is that, for many, punishing crime and drug possession or use is simply not an economic issue; rather, it *is* a moral issue. We should simply recognize that, and figure out out to deal with it on its own terms. Identifying something as a moral issue, and dismissing it on that basis — because only outcomes matter, and only economists can measure outcomes — isn’t much of an argument.
Re: Stupid moral people, they just don't get it!
The problem, to me, is that so much of society has blindly accepted that there is a “moral right” to copyright. If the morals guiding decision making are based in a feeling of righteous entitlement, that is definitely not good.
Re: Re: Stupid moral people, they just don't get it!
I disagree that people have “blindly accepted that there is a ‘moral right’ to copyright.” It fits well with their intuitions about the relationship of authors to their works, and the place of both in society, that’s all. That’s not blind acceptance, that’s a reflection of societal norms that would-be copyright reformers and proponents of economics-based copyright law ignore at their peril, and to the detriment of their cause. More to the point — and I would expect even an economist to agree — who cares if it’s “not good”? It is what it is. Calling your opponents irrational doesn’t seem to have been a winning strategy for copyright reformers so far. Would it kill them to have a principled, non-dismissive discussion about moral and dignitary rights? Since they’re a thing?
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Would it kill them to have a principled, non-dismissive discussion about moral and dignitary rights? Since they’re a thing?
That discussion has happened again and again and again. The outcome is always the same:
1. The pro-IP side asserts that artistic works should be treated as property.
2. The anti-IP side points out how thoroughly flawed that idea is.
3. The pro-IP side responds with (entirely hypothetical) sob stories and accuses the anti-IP side of just being selfish pirates.
4. The anti-IP side points out that all this is irrelevant.
5. Go to step 1.
Re: Re: Re:2 Stupid moral people, they just don't get it!
Weird. I notice there are usually only two sides to this debate, no matter which side you’re on…
Also, way to start a non-dismissive discussion.
Re: Re: Re:3 Stupid moral people, they just don't get it!
That would require people willing to debate instead of repeating talking points at each other. It would require a willingness to accept that you might be wrong, whichever side you’re on. And it would require the use of empirical evidence instead of emotive arguments.
At that point, the non-dismissive discussion will take place.
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I find in dealing with local people that their intuitions are to the contrary: that copying others works is an acceptable thing to do.
it’s. generally only people who’ve been “educated” by industry who believe differently
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That’s my experience too. I’ve never met an anti-downloader offline, so far as I’m aware: even people of my parents’ and grandparents’ generations, who it’s tempting to stereotype as being more tied to the 20th century, have always been fine with it.
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I’m’a call bullshit. Copyright isn’t all [even mostly] about sharing music files for personal use.
Copying music is okay? What if Warner/BMI does it? What if they do it to an indie band and don’t pay royalties? What if they do it to an indie band, credit an already-established Warner/BMI artist, license the tracks to a network television show, and pocket the receipts? Copying movies is okay? What if Fox does it to Universal? Are you sure all the “local people” believe that camcording movies and releasing them on the internet is okay? An independent producer making a Harry Potter feature film without permission or payment is okay? Putting your name on a poem that someone else wrote and submitting it to a magazine is okay? Republishing As I Lay Dying and selling it in stores is okay? How about Catch-22? How about The Red Tent? How about the entire McSweeney’s catalogue?
I think you’ll find plenty of local people whose intuitions will rebel.
Re: Re: Re:3 Stupid moral people, they just don't get it!
” Putting your name on a poem that someone else wrote and submitting it to a magazine is okay?”
copying is not the same thing as plagiarism. Also, by claiming credit you claim to be the original copyright holder since that goes to the creator by default
Re: Re: Re:4 Stupid moral people, they just don't get it!
In this case, copying is exactly the same thing as plagiarism.
And why do you say that credit goes to the creator by default? There is no “default.” Isn’t attribution a moral right? If not… what is it?
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” In this case, copying is exactly the same thing as plagiarism.”
no, that’s a case of copying in order to commit plagiarism. By your logic a knife is chopped onions because it was used to chop them.
” Isn’t attribution a moral right? “
moral right independent of copyright. you can have an attribution right without copyright and by falsely claiming credit for another’s work you also are making a claim that their copyright on the work is illegitimate
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If I recall correctly, plagiarizing a public domain work, claiming it as your own, is still illegal even when the work itself is no longer under copyright.
Re: Re: Re:7 Stupid moral people, they just don't get it!
You do not recall correctly; quite the opposite. See Dastar Corp. v. Twentieth Century Fox Film Corporation, 539 U.S. 23 (2003) (“The rights of a patentee or copyright holder are part of a ‘carefully crafted bargain,’ under which, once the patent or copyright monopoly has expired, the public may use the invention or work at will and without attribution”) (citation omitted).
Interesting that you seem to have a moral intuition about this, though.
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That is the case in European law, where there is a separate category of moral rights which, if asserted, last forever. These give a right to attribution, which is good, but also a right to non-mutilation, which IMO goes too far – not only does it prohibit falsely attributing a work to an author (desirable for the sake of future historians and critics), it restricts the creation of derivative works independently of copyright.
The attribution right is a little messed up in that it applies to anonymous works as well, in some cases, but that is a relatively minor bug.
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Oh, okay. I guess if it’s “independent of copyright” that makes it different….
On second thought, no: I’m going to say it’s still a pile of chopped onions.
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“What if Warner/BMI does it?”
To paraphrase John Lennon, “Imagine there’s no copyrights… it’s easy if you try.”
So what? Without copyright, they couldn’t stop the indie band from continuing to distribute their music. Warner would not know about them if they didn’t have some popularity. Their fans would know. Heck, that would be a promotion point–“Warner copied our song!!!!” To thank them for the publicity, the indie band might play a bunch of Warner tunes at their paid gig that night.
Will Warner make some money? Sure. Maybe more than the indie band did. So what? It doesn’t stop the indie band from doing anything.
I admit, it’s a hard concept to grasp, growing up in the society that we have all grown up in. But seriously, imagine it.
Re: Re: Re:4 Stupid moral people, they just don't get it!
To paraphrase John Lennon, “Imagine there’s no copyrights… it’s easy if you try.”
Good answer! But I was hypothesizing about the world we live in, responding to what I thought was the rather silly notion that, because lots of people copy music under certain circumstances, that means they don’t have nuanced views on the moral justification for copyright under any circumstances.
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When there is no rational basis for extortion tactics, and yet those tactics happen (which they DO under current US and UK law), then I would argue that thee morality is also wrong.
Morality should not apply, otherwise, we should be calling out the major copyright proponents for that actual theft and defraudings, which are equally reprehensible; as are the enabling of immoral acts (such as those committed by Roman Polanski, Marshall Mathers and Mel Gibson).
So, if you want an argument about morality, go ahead, But you might not like the end of that discussion.
Re: Re: Re:2 Stupid moral people, they just don't get it!
I heave a loud sigh.
Listen up: THERE IS A SUBSTANTIAL NON-ECONOMIC BASIS FOR PEOPLE’S INTUITIONS ABOUT COPYRIGHT LAW. IT’S A THING. It’s often short-handed in these discussions as “moral rights.”
Arguing that moral arguments categorically fail, because corporations leverage the public’s moral intuitions to pass bad laws that fill their own coffers, isn’t very persuasive.
Arguing that because lots of people think copying is okay, therefore they don’t have any moral intuitions about copyright law, isn’t very persuasive.
Arguing that moral intuitions are “wrong” because they don’t result in desirable economic outcomes — or even because they affirmatively result in bad economic outcomes — isn’t very persuasive.
I hold no brief for the corporatist, expansionist, protectionist monstrosity that copyright law has become. But pretending that “moral rights” style intuitions are “bad” and shouldn’t inform the debate is simply foolish. They exist, they are persistent, they are incredibly effective in driving policy choices. Want to reform copyright? There’s something in the way. Making fun of it, deploring it, calling it “bad”, doesn’t help you understand it. You need to understand it.
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I hold no brief for the corporatist, expansionist, protectionist monstrosity that copyright law has become.
My apologies, we actually are in agreement about that at least. Nonetheless, I still argue that any common belief in a “moral right” of creators doesn’t really extend beyond their own works, that it doesn’t extend to infringing upon the property rights of others. It’s the corporatist, expansionist, protectionist who are constantly arguing otherwise.
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My premise is simple: moral rights are a bad basis for law, in my estimation.
Morality has been so abused, buth is its moral rights aspect and its capacity for feigned outrage, that it is a useless arbiter of behaviours everywhere. Now, i appreciate that this isn’t down to you, but my opinion is that, given those circumstances above, the best way forward for IP law is to streamline it down to its most basic aspects – a non-transferable right to produce a particular work for a short space of time that is reasonable, and allows the work to pass into the public domain after the grand majority of its base profits have occurred.
For me, a ‘reasonable, short space of time,’ is a mere three years, with an extension of two years available in certain circumstances. Upon the death of the content’s creator, the work passes into the public domain. The key exception is Trademark law, which would have a 20-year guarantee.
The reason I have chosen these numbers is that the vast majority of the profitability of most works occurs in 5-10 years (in some cases, as much as 99%). For trademarks, the situation is murkier, as there’s relatively little research into the length of trademarks.
What is definitely true is that the current system for IP law is 100% unworkable and unsustainable.
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Even if the US could change or withdraw from all of the IP laced “trade agreements” to shorten the term, whether the public would really get on board with this is debatable. However, if there is to be any sort of term limits, the MUST be a fixed length. Staking it on the author’s life is a bad idea for many reasons.
Re: Re: Re:2 Stupid moral people, they just don't get it!
When is there ever not a rational basis for extortion tactics? Don’t try to saddle me with your tired morality, man.
Re: Re: Re: Stupid moral people, they just don't get it!
It’s largely the publishers who invented the “moral right” argument in the first place to further extend copyright from the limits of necessity well into the realms of absurdity, and almost exclusively for own their benefit.
No, what people understand are physical property rights. Their intuition is that they should be able to do with their physical property as they wish, whether it be a car, a house, or a book. The general public sees little difference between their property rights in each instance. The “moral right” of creators in protecting their works and their personal investment also only extends to the original copies and the materials involved their creation. Once a copy of the work is sold, people believe their right to that copy is just the same as any other property in their possession.
The idea that they not only understand but agree copyright should override and revoke their rights to their own personal property is total false. People mostly have no idea what the actual copyright law is and have had no say in drafting it. They have been led to believe that copyright “infringement” is “theft”, that somehow harms the original work in someway. In fact, when they do find out the truth about copyright, the vast majority are pissed! The mass protest in Europe and US against the further expansion of copyright and its overbearing intrusion upon their personal rights further proves that you are just simply wrong.
The only ones who believe a creator’s “moral right” extends beyond their personal property to the property of others are those who have been indoctrinated into the modern dogma of “intellectual property”–where the public surrenders the rights of their real property to the copyright holder for the “privilege” of getting any works at all, and the original creators surrender the rights to their real property to the publishers for the “privilege” of getting any money at all. The problem is that few ever put together that the publisher and the copyright holder are often the one in the same, and it’s the publishers who have been pushing for the expansion of IP under the guise of “moral rights” for their own self-interest. The benefits of copyright are rarely seen by the original creators at all.
If you truly believed in the “moral right” of creators, you should be appalled by this. Somehow, doubt that is the case at all.
Re: Re: Re:2 Stupid moral people, they just don't get it!
I would be appalled, but isn’t that a moral response? I’m so confused!
Re: Re: Re:3 Stupid moral people, they just don't get it!
Yes, I suppose you would be. The point is that most people don’t really buy the “moral right” argument as you have framed it. Their beliefs in a “moral right” is tied to property rights, which obviously would include their own. They don’t really believe that any “moral right” of a creator should actually infringe upon the rights to their own personal property.
Modern copyright doesn’t server the public or the creators, especially since the distinguishment between them is increasingly blurry. I truly think we need to scrap copyright and go back to the drawing board to draft something that is more aligned with reality.
Re: Re: Re:4 Stupid moral people, they just don't get it!
To which all I can say is: [CITATION NEEDED].
Which was the AC’s original point, in case you missed it. Moral intuitions are a thing. They are routinely dismissed, trivialized, mischaracterized, based on little more than anecdote and intuition. Wouldn’t it be swell if someone actually did some research instead?
Re: Re: Re:5 Stupid moral people, they just don't get it!
To which all I can say is: [CITATION NEEDED].
You first. I’ve pointed out a few facts. Here’s another, even staunch proponents of copyright have repeatedly been caught illegally copying. Also, professionals make private, but still illegal, copies of others works all of the time. They’re passed around between movie and music industry insiders, even works NOT owned by their company, more than a joint at a commune. Why, because people intrinsically feel they should be free to do what they want with their personal possessions, even if the law says otherwise.
You so far have made nothing but assertions. Do you have anything substantive to back them up?
Re: Re: Re:5 Stupid moral people, they just don't get it!
And what exactly are “moral intuitions” based on if not “little more than anecdote and intuition”? Anything that can be based on anecdote and intuition can be similarity dismissed just the same. Even if there was anything more to them than that, the fact that they are “routinely dismissed, trivialized, mischaracterized” clearly shows why they are an untenable basis for law.
Given that you’ve basically unpinned your entire argument, there’s nothing else I care to add.
Re: Re: Re:6 Stupid moral people, they just don't get it!
So long, and thanks for all the fish.
Re: Re: Stupid moral people, they just don't get it!
Of course there’s a moral right to copyright: the right of an author to not have his livelihood stolen by publishers.
The problem is that publishers have distorted copyright so much that most people don’t realize what it’s supposed to be about, which is why the morality is all twisted up now.
Re: Stupid moral people, they just don't get it!
“It’s not simply that copyright policy-makers are getting it wrong, it’s that they fundamentally disagree with you about the purpose of, and justification for, copyright law”
Yes, and they’re wrong. So it really is that policy-makers are simply getting it wrong.
Re: Re: Stupid moral people, they just don't get it!
So glad you cleared that up for us. Our opponents are wrong! Copyright reform is now inevitable.
Re: Re: Re: Stupid moral people, they just don't get it!
Glad I could help!
Re: Re: Re:2 Stupid moral people, they just don't get it!
Don’t you at least think it’d be interesting to know why they believe something that you think is so clearly wrong? What do they think they’re doing?
No fair arguing that everyone who likes copyright is greedy or brainwashed. (Cause that’s simply wrong.)
Re: Re: Re:3 Stupid moral people, they just don't get it!
No fair arguing that everyone who likes copyright is greedy or brainwashed.
No, most of them are just ignorant about the actual copyright law, that their belief of what copyright is and its current manifestation don’t align much at all. I’ve argued with many creators myself, they’ll argue for their “rights” to no end without really understanding the real point of copyright.
I wouldn’t call the average creator greedy, “entitled” would be more accurate. Wouldn’t call them “brainwashed” either. I’m not sure what you would consider the bricking of their right to the public domain and collectively straitjacketing themselves with copyright that last 90 years after they die, or even into perpetuity.
Re: Re: Re:4 Stupid moral people, they just don't get it!
Are you saying that “the actual copyright law”, “what copyright is,” and copyright law’s “current manifestation” are different things? Are they ignorant of copyright law, or just its “real point”?
Re: Re: Re:5 Stupid moral people, they just don't get it!
Are you saying that “the actual copyright law”, “what copyright is,” and copyright law’s “current manifestation” are different things?
Copyright generally refers the “current manifestation” of copyright law. The historical concept of “copyright” may differ somewhat from the current body of law as it changes over time. Whether you regard the first US copyright law or the Statue of Anne as the original, its purpose is largely still the same. The “right” given to a creator was intended to be sold to a publisher (unless the creator could also afford to print his own works). Copyright was really more about stopping rival publishers, or unsanctioned publishers by the older statue, from reprinting works.
Re: Re: Re:6 Stupid moral people, they just don't get it!
If you regard the statute 8th Anne, then in his commentary Ronan Deazley quotes John Feather:
Re: Re: Re:7 Stupid moral people, they just don't get it!
The leading members of the book trade who had led the support both for a law and for a particular form of law had no real interest in precise definitions.
A time honored tradition.
Re: Re: Re:6 Stupid moral people, they just don't get it!
Hence the language in the US Constitution:
Okay, now it all makes sense.
Re: Re: Re:7 Stupid moral people, they just don't get it!
If you don’t know the difference between the copyright clause of the Constitution and the original copyright law from 1790, then you’re done.
Re: Re: Re:3 Stupid moral people, they just don't get it!
I didn’t reply more fully to your comment because you didn’t say anything that required a reply at all.
“Don’t you at least think it’d be interesting to know why they believe something that you think is so clearly wrong?”
I believe I do know why they believe what they believe, as they’ve stated the reasons ad nauseum.
“No fair arguing that everyone who likes copyright is greedy or brainwashed.”
As someone who is in favor of the principle behind copyright, I would never make that argument as you stated it. What I don’t like is current copyright law, because it not only harms the general public but is also detrimental to the entire purpose of copyright.
Re: Re: Re:4 Stupid moral people, they just don't get it!
And I believe that you believe that you know why they believe what they believe.
Now that we have that out of the way (unless you’d like to start another round), what exactly would be the problem with admitting that some people think in non-economic terms about copyright law, conceding that maybe we don’t intuitively understand everything about those viewpoints (regardless of our personal views of right and wrong, or the extent of our personal experience and exposure to anecdotal evidence), and doing some empirical research about it?
Anybody?
Re: Re: Re:5 Stupid moral people, they just don't get it!
I’m happy to admit that some people think in non-economic terms about copyright law. Everyone is entitled to their own opinion and should be allowed to freely express it and have it heard. That being said, I’m not completely sure I understand the reason behind your request to have empirical research done to show that people have opinions. Maybe I’m missing your point in all of this…
I think we all agree that the original purpose of copyright was to stop unauthorized publishers from copying and profiting from works they were not granted the privilege to publish and profit from. The constitution’s stated definition of the purpose of copyright is quite clear as well, in that it is to promote the progress of the arts by granting a limited monopoly to the copyright holder to be the sole authorized entity to profit from the creative work in order to provide incentive to create new works.
My question to you is where do these moral rights come into play with this stated purpose? To what end will performing this empirical research be valuable to the discussion of how long this limited monopoly should last and whether or not the extension of this limited monopoly has ever provided additional incentive towards the creation of new works?
Re: Re: Re:6 Stupid moral people, they just don't get it!
To learn more about their opinions. If you do empirical research, then you actually know what you’re talking about. If you study something, you know more about it. And anyone interested in copyright law — and especially copyright reform — should want to know more about this, because it’s important. People care deeply about things other than economics, and they’re the ones who lobby for the laws, pass the laws, ignore or follow the laws.
Those aren’t necessarily the only purposes society wants its copyright law to acknowledge. By dismissing, marginalizing, or mischaracterizing non-economic intuitions about the purpose and the goals of copyright that are likely to be very widely held, would-be reformers ensure that their proposed reforms are less likely to successfully address such concerns, less likely to appeal to lawmakers and the public, and more likely to fail.
Re: Re: Re:7 Stupid moral people, they just don't get it!
Thank you for the response, but I honestly still don’t see what the end game is once these studies have been done or what value they will provide in the decision making process of re-evaluating the current copyright system. The authority granted to Congress to enable the copyright monopoly was solely for the benefit of the public in that granting the limited monopoly would provide incentive to the creator to keep creating, and thus keep contributing to the progress of the arts, and by extension, the public. I can’t really see what the public opinion on the morality of copyright has to do with determining what length of monopoly grant provides the greatest incentive to enable new creation.
People care deeply about things other than economics, and they’re the ones who lobby for the laws, pass the laws, ignore or follow the laws.
I have to disagree with this statement to an extent. In an ideal world where laws are based on the benefit of the majority this may very well be true, but it is quite evident that we don’t live in an ideal world. You identify 3 groups whose opinions should be studied: The lobbyists, the lawmakers, and the public subject to the laws. Those who lobby don’t have an opinion relevant to this discussion because their lobbying is a paid service where they are expected to push the opinion of their paymasters. Those who make laws also don’t have an opinion relevant to this discussion because while they are technically only supposed to represent the opinion of those they represent, they much more frequently represent the opinion of the paymasters who fund the lobbyists who push their agenda to these lawmakers in the form of financial incentives. Those who choose to “ignore or follow the laws” are really the ones who “care deeply about things other than economics”, but they still have to make a decision based off of economics in the form of a cost/benefit analysis.
Once the laws have been passed, they now have to decide whether A) they agree with the law, which may be done subjectively in the instance of morality or objectively as is done through empirical analysis, and B) if they disagree with the law, whether breaking it is worth the consequence. Whether the decision is based on morality or objectivity, it is still an economic decision even if they don’t know it, but I digress…
Those aren’t necessarily the only purposes society wants its copyright law to acknowledge. By dismissing, marginalizing, or mischaracterizing non-economic intuitions about the purpose and the goals of copyright that are likely to be very widely held, would-be reformers ensure that their proposed reforms are less likely to successfully address such concerns, less likely to appeal to lawmakers and the public, and more likely to fail.
While you may have a valid point here, I believe it is rendered moot without changing the constitution. Because the authority granted to Congress allows them to grant the limited copyright monopoly solely to provide incentive towards the creation of new works, the public opinion as to it’s morality doesn’t factor into the decision making process. Whether this is morally right or wrong also doesn’t factor in as it is what it is until it isn’t. Under the guidance provided by the constitution, Congress should be basing copyright monopoly policy based on hard facts that empirically show that a specific term of monopoly length provides the greatest cost/benefit balance to maximize the greatest output of new creative material to the benefit of the public. Until their authority to grant this monopoly privilege is changed, I don’t see how the plain language in the constitution can be interpreted any differently.
It is possible that the research you request could very well be the driving force behind changing the portion of the constitution granting this authority, but as it stands now it simply doesn’t have a place in determining what is very much an economic policy decision.
Re: Re: Re:5 Stupid moral people, they just don't get it!
“what exactly would be the problem with admitting that some people think in non-economic terms about copyright law”
There is no problem with that. It’s patently obvious. In fact, the essential stated purpose of copyright is non-economic. The economic portion is the means by which the purpose is to be achieved.
The fundamental issue is that it doesn’t matter what people’s opinion about the purpose of copyright law is. The purpose is plainly stated in the Constitution, and until the Constitution is amended otherwise, that’s the only thing that actually counts.
Re: Re: Re:6 Stupid moral people, they just don't get it!
Good point… if only you were right.
Re: Stupid moral people, they just don't get it!
If you want to bring morality into it then the first thing you have to discuss is the morality of copyright extending for decades after the death of the author, or the handing over a century of our culture to private corporations. Let’s discuss the morality of destroying the public domain by retro-actively applying copyright terms that extend far beyond what was expected when a work was created.
We also have to understand that copyright extensions have largely been driven by the motion picture industry by companies wanting to control their entire output since their creation, and they intend to retain copyright for as long as they exists (and how many more decades or centuries will Disney exist?) Yet in order to protect their industry, the copyrights for books, photos, poems, magazines, plays, music, art, and everything else creative had to be extended for decades as well, even though most of those things no longer have any economic value at all.
Not to mention that most of those media companies don’t even have American owners. We let Sony and Vivendi own our culture.
Re: Re: Stupid moral people, they just don't get it!
So, wait, if I want to discuss moral intuitions as a thing, I first have to justify the bad acts of everybody?
Re: Re: Re: Stupid moral people, they just don't get it!
Absolutely.
Nobody in 1930 expected their work to still be under copyright today, and yet they created it anyway. Copyright law has stolen those works from us – much of it not even available to us because the copyright holder can’t justify the expense of publishing it.
Re: Re: Re:2 Stupid moral people, they just don't get it!
… so nobody can legitimately hold moral intuitions about copyright?
And — to get back to the original point — if they persist in having moral intuitions about copyright, we should refuse to investigate the underpinnings of those intuitions, because copyright law lasts too long?
You lost me.
Re: Re: Re:3 Stupid moral people, they just don't get it!
I think I lost you…
Research can possibly show what the best copyright law should be economically, but not all laws are determined that way. Certainly morality and ethics plays into it as well, but a lot of the moral issues with copyright are also economic issues (or moral issues conflated to negate economic issues to retain control).
In short, copyright law has destroyed the concept of public domain, and now the global internet has destroyed the concept of copyright. The balance these laws are supposed to provide between artist and the public has been lost (primarily due to the greed of the middleman between the public and artist – the publisher).
Re: Re: Re: Stupid moral people, they just don't get it!
No. Just the bad acts of the people we’re discussing.
Re: Re: Re:2 Stupid moral people, they just don't get it!
Fine, then you don’t get to talk about the Constitution without explaining why blacks only count for a fraction of a person, discussing the genocide of Native American populations, and reviewing the Supreme Court’s decision upholding the government’s use of internment camps for US citizens of Japanese descent during World War II.
Fair play.
Re: Re: Re:3 Stupid moral people, they just don't get it!
Dude, you almost shut it down — but Godwin’s law doesn’t cover Native American genocide. Care to try again?
Re: Re: Re:3 Stupid moral people, they just don't get it!
The constitution doesn’t advocate or deny any of those things.
Discussing the morality of copyright applies directly to copyright law.
Maybe I missed your point?
Re: Stupid moral people, they just don't get it!
Governments aren’t obliged to prioritise economics over moral concerns, sure, but what about the corporations? They aren’t moral actors: their duty is to maximise their shareholder value, a duty they’re surely neglecting by supporting irrational policy.
Shouldn’t ALL legislation be fact based ?
If we want to be completely ridiculous, make all legislation fact based and allow the challenging of those facts to be a basis for challenging the legislation.
Re: Re:
Not so ridiculous. Make every new law subject to a rigorous cost-benefit analysis, with every step of all the relevant reasoning carefully set out and (of course) freely available to the public, with a clearly stated goal that would open it to repeal if it’s not met. I’d be for that 100%.
Re: Re: Re:
“Not so ridiculous. Make every new law subject to a rigorous cost-benefit analysis, with every step of all the relevant reasoning carefully set out and (of course) freely available to the public, with a clearly stated goal that would open it to repeal if it’s not met. I’d be for that 100%.”
Repeal? AhhhHaHaHaHaHa! No law that grants power over others gets repealed. Where on earth did you ever get such an outlandish idea?
Re: Re: Re: Re:
True. The best we can usually hope for is that it stays around but isn’t enforced, like the laws about such things as doing archery on Sundays and so forth.
Shakedowns, grifts, and rackets are generally not based upon evidence.
Re: Re:
Wait, what? Do you also believe that cheaters never prosper?
Ah, it is evidence based. The industry provides all the evidence needed to advance and justify their needs and wants. Since no one else gets to the table with an opposing view their money speaks the loudest about the facts. /s
Drug policy
I wish this were true, but the general insanity of the War on Drugs seems to disprove this. Consider the number of non-violent people raided and jailed (or, if unlucky, murdered by the raiding officers) over possession of substances (or, worse, incorrectly alleged possession) that pose no danger to anyone other than the user, and sometimes not even to the user. If the War on Drugs policy had to contend with measurable effects, drug laws would have long ago been scaled back to target only individuals who are a demonstrable danger to the public (e.g. armed aggressive traffickers).
Re: Drug policy
Anyone who says this knows nothing whatsoever about drugs. I’m sorry to be so blunt, but that is an entirely false argument. If you want to know just how bad it is, do what I did sometime: go work in rehab for a while and get to know some of the patients. Learn their stories, see what “non-dangerous” drugs have done to their lives, (and invariably to the lives of their friends and families as well,) and then just try to say it’s a “victimless crime.”
The only problem with the War on Drugs is that there isn’t one and never has been. If we treated it as an actual war, things would be very different.
And yes, I’m completely serious. Think of it this way. If I murder you with a knife, or a gun, and you die within a few seconds or minutes and then it’s all over, people would rightfully say I’m a horrible person that deserves everything the justice system throws at me.
But if I murder you with an addiction, if I reduce you to perpetual poverty, cripple your free will, fill the life of your family and friends with grief and heartache for years and decades, send your health into a downward spiral from which it will never fully recover, (even if you do somehow escape and “get clean,”) possibly cause you to turn to violent crime yourself as a means of feeding the habit, and only let you die after everything that gives meaning and value and happiness to your life has been sucked from you, somehow I would be treated less badly as a drug dealer than as a murderer, even though what I have done is so much worse.
When you can explain why that makes any sense whatsoever, then your arguments about scaling back drug policy might be worth listening to. Until then, please don’t meddle in things you don’t understand.
Re: Re: Drug policy
“But if I murder you with an addiction…”
I’m sorry, but that is the stupidest thing I’ve heard since, “I wrote those words, so I own them”.
Re: Re: Drug policy
So… what you say is: We should get back to prohibition? That has shown to be a good way to solve the problems caused by the innocuous substance known as “alcohol”, hasn’t it?
And according to you anyone selling alcohol must be worse than a murderer, because of the fact that probably they might have killed someone with an addiction…
The “war on drugs” is nothing but a business, no matter on which side of this so-called war you’re “fighting”.
And people on both sides make money with it.
And people on both sides do not want this business model to change…
Re: Re: Re: Drug policy
By “innocuous,” do you mean “responsible for more death and misery than every war in the history of the world put together,” or do you mean “I don’t know what I’m talking about so I’m going to claim alcohol isn’t all that harmful”?
Just wondering.
Re: Re: Drug policy
I used to believe as you do, Mason Wheeler, but then I learned this: http://www.newyorker.com/reporting/2011/10/17/111017fa_fact_specter and this: http://www.spiegel.de/international/europe/evaluating-drug-decriminalization-in-portugal-12-years-later-a-891060.html
You’re forgetting that the CIA dumped Acid and Crack on our society,
http://www.salon.com/2013/12/14/timothy_learys_liberation_and_the_cias_experiments_lsds_amazing_psychedelic_history/
http://www.pbs.org/wgbh/pages/frontline/shows/drugs/special/cia.html says it’s a conspiracy theory, but they can’t seem to shake the accusations.
Basically, the War on Drugs is one of the main reasons the police has become so militarized. The Portuguese solution works. Let’s do that instead.
Careful what you write
I can’t believe you used that sentence (emphasized) in an article. Now, just sit back and watch as 90,000 copyright lobbyists use that paragraph out of context as proof that copyright is desirable; as they demand more copyright restrictions. Believe me, they won’t mention that you were kidding (the next paragraph) in their quote.
Please take care what you write; you are an authority.
And it is precisely this “process of communication” that has had its technological costs practically eliminated over the last quarter century or so. In other words, the contribution being made by IP law has been diminished to near zero levels, despite the law being expanded to ridiculous levels.
The problem goes even deeper than that. Means are themselves outcomes. Using torture to achieve a goal of disincentivizing crime also creates the outcome of an increase in torture. You might have a goal of limiting the amount of torture in the world and now you’re goals are in conflict. Copyright inherently conflicts with free speech, for example, because if only one person is permitted to say something that means I’m no longer permitted to say it and that is, by definition, a limit on my speech. The question becomes how much do you value free speech and how bad of a limitation on my speech do you believe this to be versus the value you place on copyright.
And value judgments are totally subjective. There is no way to logically prove the statement “x is more important than y” and certainly no way to empirically verify it. And economics only tells you what the economic outcome is, not whether or not that outcome is desirable. Only subjective value judgments tell you that.
Copyright should be non transferrabe.
Works for hire, works for sale..
There is no evidence that actual creators will create more; In fact, in cases where the income from existing copyright covers the artist’s needs for the rest of his life and then some, why would they feel the need to be creative outside of a desire to do so? (and in such circumstances, they would be creative regardless of incentives)
Re: Works for hire, works for sale..
Yeah. Our incentive policy at my workplace is work or get fired. It’s very effective. Why should authors or creators be treated any differently? Anyone would think they were delicate blooms in need of special handling, or something.