Karl Fogel’s Techdirt Profile


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  • Dec 22nd, 2011 @ 9:13am

    The "Integrity of the Work" is solved by digital distribution.

    Various comments talk about how one of the purposes of copyright was to protect the "integrity" of the work. This word can mean a lot of things, but in this context it means something like "not having poor-quality or otherwise unreliable copies being distributed in such a way that people think they are what the original author(s) intended".

    This concern was entirely appropriate at the time, because printers were notoriously unreliable and, unless watched carefully, would often make erroneous copies: leave out entire chapters, add material of their own or from some other source, lower the quality of illustrative engravings or leave them out entirely, etc.

    In the age of digital distribution, this concern doesn't really exist anymore. First, because making perfect copies every time is the default -- you have to work *harder* to make an imperfect copy, not the other way around. And second, because the same devices that allow us to copy also allow us to do automated comparisons, thus swiftly detecting when copies differ and how.

    Thus in modern times, the only droit moral that remains is that of attribution, which, of course, we anti-monopolists have been wholly in favor of all along. The most clarifying thing a legislature could do for copyright today would be to pass a law covering attribution separately from copying.

    So if such laws are necessary, by all means let's have them. However, note that crowd enforcement of attribution works pretty well in practice, so any new laws that cover attribution separately from copying should only fill in wherever common practice does not suffice by itself.

  • Dec 21st, 2011 @ 11:41pm

    Disingenuous on Apple's part.

    Amen, Mike. I still remember the first time I saw a phone number in a text file on the screen of my Nexus One, and I thought "I'll bet if I touch the number, it does the Right Thing." It did, of course, and I spent another 1.5 seconds thinking about how one would implement it, which was all it took because it's pretty obvious to any programmer who has heard of "regular expressions".

    So: non-obvious? Clearly not. Novel? No, programmers have been finding the boundaries of numbers in text for ages.

    How on earth did Apple get this ruling?

  • Dec 21st, 2011 @ 11:13am

    Re: Moral Rights

    Plenty of academics would like to publish without restrictions, but their tenure review and other professional committees reward them for publishing with established academic presses -- which in turn tend to be very conservative about restricting access to the materials.

    The comparison with car insurance doesn't work. I can't opt out of copyright, and neither can you -- because when someone accepts the state's offer of a monopoly on a work they created, we *all* are opted in to that monopoly. This is just as true when that acceptance happens under pressure, as is the case with academic presses.

    I'm not sure what kind of evidence would satify you that open distribution prevents plagiarism; I have to admit, this seems self-evidently obvious to me. Do you find it interesting that in the area where open distribution is most prevalant and consistent -- open source software -- there is virtually no plagiarism problem, even though there is plenty of motivation to plagiarize?

    Anyway, if you accept that there is a lack of evidence either way, then shouldn't we default to non-restriction instead of restriction?

    Finally, get civil. No, seriously. There's no need to conduct conversation in this manner: "You've clearly never heard of moral rights / droit moral..." Really? The poster has "clearly" never heard of it? I suspect the contrary, and that the more likely explanation is he considered it irrelevant to his point, which it is, since most of the so-called droits morals have little to do with copying and are really about attribution. Getting them attached to publisher-driven copyright law was one of the great triumphs of intellectual obfuscation on the part of the publishing industry.

    Don't assume your interlocutors are idiots, please. They just disagree with you. So far, I find them more convincing.

  • Sep 15th, 2011 @ 4:37pm

    See also "Breaking the Bargain" -- it's a unilateral contract extension.

    For comparison, see:


    Heck, it's short -- I'll just quote it here:

    When the copyright industry lobbies for extensions to already-long copyright terms, they always present it as a way of giving the artists of the past their due — as a further protection of the "moral rights" that artists have in their creations.

    But consider this: many artists of the past were forced to sign over their copyrights in order to work at all. They may have taken comfort in the fact that copyright would expire after a set time, and in knowing that people would eventually be able to share their work freely. Today, when copyright terms are continually extended, we should stop and wonder if these extensions go against the wishes of the works' dead creators. Few artists of the 1920's or 30's had the option of saying, "I want people to share my work", but they at least knew that copyrights would expire after 28 years — if the terms had been left alone, that is — and this may have made a temporary lockup more acceptable to them.

    How many of those artists are rolling over in their graves now, as copyright is continually extended? Just because the Disney Corporation thinks copyright should be forever doesn't mean the thousands of artists whose works are now locked up thought so, or would think so now. The fact that so many artists are adopting Creative Commons licenses today indicates that many artists believe otherwise. If artists have "moral rights" to their works, surely extending copyright terms without their consent violates those rights.

  • Aug 14th, 2010 @ 2:33pm

    You can see the gambler-to-cobbler conversion happening in real life.

    You can actually see the gambler->cobbler conversion happening even in the most industrialized parts of the copyright system. For example, in the (now somewhat famous) New Yorker article on Haim Saban, who made millions by licensing the rights to television cartoon music, he basically takes the "gambling" winnings when they come and pays the musicians a steady "cobbler" income. An uncharitable way to see it is that they do the work and he gets the lion's share of the rewards; a charitable way is that he absorbs risk for them, but takes the payoff in return:


    Passages to search for:

    "In 1983, Saban moved to Los Angeles, and made the same offer to many production companies that he had to Heyward: free music in exchange for publishing rights. Levy and Kaniel joined up with him there and began composing, but there was so much work that Saban had to hire more composers and arrangers. They were paid salaries, and signed contracts in which they relinquished their rights to royalties. Kobi Oshrat, an Israeli musician who has been a friend of Sabanâs since 1972, said the deals made sense for artists in their position."


    "Kaniel worked for Saban until 1995, when he moved to Paris. For a number of years, Saban continued to pay Kaniel a salary, while Kaniel worked on his own projects. Still, Kaniel had composed music for cartoons for sixteen years. When he was asked if he had received royalties for any of the music, Kaniel said, reluctantly, 'Basically, no.'"

    The point is not that Haim Saban has done a bad thing (it's an interesting article; read it and draw your own conclusions). The point is just that the cobbler model is what artists naturally gravitate towards anyway. Only now they have the infrastructure -- both technical and licensing -- to do it without needing Haim Sabans.

  • Mar 29th, 2010 @ 7:05am

    The counter-campaign...

    This sort of campaign is exactly why we started the Minute Memes project — so there would be material available for those who want to teach kids that sharing culture is a good thing, and that you shouldn't have to pay monopolists for the privilege of sharing. Hopefully that will be a much more welcome message :-).

  • Feb 23rd, 2010 @ 9:51pm

    Re: Costs.

    Well, copyrights and patents have important differences too. For example, part of the original purpose of patents was to prevent inventions from being kept secret by their inventors -- the patent office was supposed to be a clearinghouse for research results. (These days the only reason people go looking through patents is to figure out if they're on one side or the other of a potential infringement suit; the "claims language" in which patents are now written is a lesson in high obscurantism, since its purpose is not to elucidate scientific facts but to defend legal territory.)

    It's true that trademarks really are a wholly different beast from the other two. Copyrights and patents at least have in common that they make artificially scarce that which would be more valuable to society if shared. Trademarks are the opposite: the monopolies they grant are necessary for trademarks to have any value at all, to the public as well as to the holder of a given trademark. Trademarks are about identity (attribution) rather than about content, and identity means nothing if it's not reliable.

    So I'm not sure we need a new word. We already have three perfectly good words for three distinct things, one of which — trademark law — stands out as especially different. The real problem is that rhetorical accuracy is not in the interests of those lobbying for (say) stronger copyright restrictions. That's why they constantly confuse copyright issues with attribution (trademark) issues. For a good example — I've linked to this before, so forgive me if you've already encountered it — see http://questioncopyright.org/promise#plagiarism-vs-copying.

  • Feb 23rd, 2010 @ 9:14pm


    I wonder if they'll also take "written submissions from the public regarding the costs to the U.S. economy resulting from intellectual property enforcement" :-).

    In this context, I really just mean copyrights and patents, of course. It's a pity that those two and trademarks are all lumped together in one incoherent catgeory by convention and now by government policy. We don't have a Department of Agriculture and High-Energy Physics, after all. For similar reasons, we shouldn't have an Intellectual Property Enforcement Coordinator.

  • Jan 27th, 2010 @ 8:14am

    inflammatory language

    You wouldn't know it from reading the original article, but they're not stamping the front of the artwork. The photo clearly shows the "DENIED" marker on the *back* of the canvas. (I'm not sure whether that's a standard way to do this in the art world or not, but in any case, it's much less severe than what the wording "deface" implies, since the "face" is usually taken to be the front.)

  • Jul 3rd, 2009 @ 1:28pm

    Darn straight originality is constructed.

    ...what we've been saying for a long time now at QuestionCopyright.org.