Copyright Woes

If I am not, strictly speaking, a libertarian, like James Delingpole, I have a libertarian streak — which helps explain why I, too, dislike SOPA and PIPA. I would, in fact, be inclined to go even further than the opponents of these two bills and challenge the copyright law that provides their underpinning.

Do not get me wrong. I think that there should be a copyright law. One sign that the Founding Fathers intended that the United States be a commercial republic is the fact that the Framers embedded within the country’s constitution a clause stipulating that Congress provide for copyrights and patents — which is to say, that they endorsed the notion of intellectual property.

But here is the kicker. They did so for only a limited term. Their purpose was to encourage innovation, to reward inventors and authors, and ease their inventions and writings into the public domain with reasonable alacrity — so that they could be of benefit to all.

The aim of the entertainment industry is to maximize profits, and they have pushed again and again for the extension of copyright. That they have succeeded time and again in the last few decades is a sign of their power. But the truth is that, in repeatedly extending copyright, Congress is denying to the rest of us what is rightly ours: works that, until recently, would have found their way into the public domain. So, if we produce a play at a college, sing a song, post a video, upload a photograph, or quote a snatch of T. S. Eliot’s poetry in the process of producing something of our own, we find ourselves in deep trouble.

Consider what it would mean if the pharmaceutical industry were to succeed in getting Congress to extend the patents they own in the same fashion. The principle at stake is the same. Intellectual property was created with an eye to the public good. What does the public gain from extending copyright? And what does it lose? These are the appropriate questions to ask.

If our copyright laws were not already a disgrace, we would not be discussing enormities like SOPA and PIPA.

  1. DrewInWisconsin

    Professor Rahe, I am curious how long you think this “limited time” should be.

  2. Nobody

    Property is property, whether tangible or intellectual.

    Suppose I was in real estate and I spent my life building apartments, but the laws said that after 17 years, I no longer had the exclusive right to those properties – squatters could come and claim them.

    How many apartment buildings do you think I would construct?

    Just because authors and film makers don’t use lumber and drywall and hammers and nails to construct their property doesn’t mean they shouldn’t have the same legal protections to the fruits of their labors as a real estate developer.

    I don’t believe rights to intellectual property should ever expire.  If Herman Melville has descendants, they should enjoy the same right to profit from his inheritance as the Toll Brothers’ descendants will enjoy. 

  3. Paul A. Rahe
    C
    DrewInWisconsin: Professor Rahe, I am curious how long you think this “limited time” should be. · 3 minutes ago

    In the case of an author, his lifetime — but a minimum of thirty years.

  4. The King Prawn

    What ideal wins in the clash between capitalism, which seeks to maximize profits, and the common good of access to innovations?

  5. Paul A. Rahe
    C
    Nobody’s Perfect: Property is property, whether tangible or intellectual.

    Suppose I was in real estate and I spent my life building apartments, but the laws said that after 17 years, I no longer had the exclusive right to those properties – squatters could come and claim them.

    How many apartment buildings do you think I would construct?

    Just because authors and film makers don’t use lumber and drywall and hammers and nails to construct their property doesn’t mean they shouldn’t have the same legal protections to the fruits of their labors as a real estate developer.

    I don’t believe rights to intellectual property should ever expire.  If Herman Melville has descendants, they should enjoy the same right to profit from his inheritance as the Toll Brothers’ descendants will enjoy.  · 2 minutes ago

    Nonsense. Intellectual property is purely a creature of the law. Real estate is not. Furthermore, if I occupy your home, I deny you its use. If I sing your song, I do nothing of the sort.

  6. DrewInWisconsin
    Paul A. Rahe: But the truth is that, in repeatedly extending copyright, Congress is denying to the rest of us what is rightly ours: works that, until recently, would have found their way into the public domain.

    I’m having a very difficult time with the notion that my creative output could ever be considered rightly yours — or anyone’s. It is mine. I built it. I will give it to whomever I wish, and this will mostly likely be my children and their children. But I didn’t build it for Congress to distribute for general consumption.

  7. Paul A. Rahe
    C
    The King Prawn: What ideal wins in the clash between capitalism, which seeks to maximize profits, and the common good of access to innovations? · 4 minutes ago

    The aim of the Framers was to enlist the desire to maximize profits in service to the common good. That is why they specified in the Constitution that patents and copyrights be issued for a limited term. Hollywood wants an exemption from the rules applied to inventors, and Congress has more or less acquiesced.

  8. Nobody

    Nonsense. Intellectual property is purely a creature of the law. Real estate is not. Furthermore, if I occupy your home, I deny you its use. If I sing your song, I do nothing of the sort.

    Of course real estate is a creature of the law.  Since time immemorial, it has been a function of the state to determine who owns title to land.  For heaven’s sake, dig into your personal files, where you will find documents called deeds and titles.  Without those, you would have no legal defense against squatters or land-grabbers.

    And no, by singing my song, you don’t deny me my use of it.  But if you perform it for a paying audience, you deny me my right to share in the proceeds.  

  9. DrewInWisconsin
    Paul A. Rahe

    Nobody’s Perfect: Property is property, whether tangible or intellectual.

    Suppose I was in real estate and I spent my life building apartments, but the laws said that after 17 years, I no longer had the exclusive right to those properties – squatters could come and claim them.

    How many apartment buildings do you think I would construct?

    Just because authors and film makers don’t use lumber and drywall and hammers and nails to construct their property doesn’t mean they shouldn’t have the same legal protections to the fruits of their labors as a real estate developer.

    I don’t believe rights to intellectual property should ever expire.  If Herman Melville has descendants, they should enjoy the same right to profit from his inheritance as the Toll Brothers’ descendants will enjoy.  · 2 minutes ago

    Nonsense. Intellectual property is purely a creature of the law. Real estate is not. Furthermore, if I occupy your home, I deny you its use. If I sing your song, I do nothing of the sort.

    You deny my ability to make a living from my creative output by essentially “squatting” on it.

  10. Paul A. Rahe
    C
    DrewInWisconsin

    Paul A. Rahe: But the truth is that, in repeatedly extending copyright, Congress is denying to the rest of us what is rightly ours: works that, until recently, would have found their way into the public domain.

    I’m having a very difficult time with the notion that my creative output could ever be considered rightly yours — or anyone’s. It is mine. I built it. I will give it to whomever I wish, and this will mostly likely be my children and their children. But I didn’t build it for Congress to distribute for general consumption. · 1 minute ago

    If you applied that principle to the descendants of Homer, Aeschylus, Sophocles, Dante, Shakespeare, and Milton, where would we be? Are you willing to apply it to pharmaceutical companies? Consider the consequences.

    Keep in mind that your right to your creative output is strictly a function of law. Shakespeare had none. Anyone could appropriate it. No law, no right.

  11. genferei

    It is useful to distinguish between the rationalisations for patent and copyright.

    Patents are a bargain between the state and the ‘inventor’: if you agree to disclose your invention to the public now (rather than keep it as a trade secret), you will get a time-limited monopoly against all-comers.

    Copyright was originally a way of controlling the dissemination of religious works by concentrating power in the hands of the Company of Stationers, who would abide by the Crown’s strictures. Later a justification based on an analogy to the creation of processed physical goods from the brute bounty of nature was retrofitted, which in the late 18th and 19th centuries became a story about providing an income for the widow and children of the artist starving in his garret.

    Copyright law is a relatively recent addition to the set of concepts governing the relationships between humans. Easy come, easy go.

  12. DrewInWisconsin

    We probably don’t need 47 threads on this today. Professor Rahe, many arguments against your position, including from the great James Lileks, a fellow worker in the creative fields, have been put forth in this thread.

  13. Hang On
    Nobody’s Perfect:

    Just because authors and film makers don’t use lumber and drywall and hammers and nails to construct their property doesn’t mean they shouldn’t have the same legal protections to the fruits of their labors as a real estate developer.

    I don’t believe rights to intellectual property should ever expire.  If Herman Melville has descendants, they should enjoy the same right to profit from his inheritance as the Toll Brothers’ descendants will enjoy.  · 6 minutes ago

    Apartment buildings don’t last forever. So exactly why should intellectual property?

    In scientific publishing, the author does not own the rights to what has been published and receives no royalties, the publisher does. Exactly why should that have perpetual protection?

    If you try to steal somebody else’s work and say that it is your own, it is professional suicide. That is plenty of incentive not to. One of the first things you do when receiving a student paper or if you are refereeing a paper is to pick out some phrases, type them into google and see if anything pops up.

  14. Paul A. Rahe
    C
    DrewInWisconsin

    Paul A. Rahe

    Nonsense. Intellectual property is purely a creature of the law. Real estate is not. Furthermore, if I occupy your home, I deny you its use. If I sing your song, I do nothing of the sort.

    You deny my ability to make a living from my creative output by essentially “squatting” on it. · 2 minutes ago

    Not if copyright ceases when you die. Then, you no longer make a living from it.

  15. Pseudodionysius
    Paul A. Rahe

    The King Prawn: What ideal wins in the clash between capitalism, which seeks to maximize profits, and the common good of access to innovations? · 4 minutes ago

    The aim of the Framers was to enlist the desire to maximize profits in service to the common good. That is why they specified in the Constitution that patents and copyrights be issued for a limited term. Hollywood wants an exemption from the rules applied to inventors, and Congress has more or less acquiesced. · 1 minute ago

    Paul – I take it then that you disagree with Mark Helprin’s views on copyright?

  16. St. Salieri

    Dr. Rahe, I can’t believe I’m daring to write to you, be gentle…I see your point and agree with it to a point.

    I am very protective of copyright for the reason’s Nobody mentions, if someone performs my work for a paying audience, and I have chosen to publish it under copyright laws, and they do not pay the royalty, they are stealing the money that is rightfully mine.  I have the choice to not copyright it, as I have with some of my work, or copyright it and not publish, or to publish and copyright; but they do not have the right to take my work and make use of it outside of the established parameters of the law.

    I agree however, that corporations (esp. Hollywood) have sought to protect works of art they did not create (having belonged to previous firms that are now defunct), that some works that had been public domain suddenly were copyrighted again, and that by extending copyright to infinity they are sealing off works of value behind a legal firewall, and yet they will not release or distribute them because of their tiny market value – risking destruction from neglect.

  17. Nobody

    If you applied that principle to the descendants of Homer, Aeschylus, Sophocles, Dante, Shakespeare, and Milton, where would we be? Are you willing to apply it to pharmaceutical companies? Consider the consequences.

    I would be happy as a clam if identifiable descendants of Homer or Dante were, today, benefiting from their ancestors’ works.  They wouldn’t deny you the use of those works, they’d simply extract a fee for that use.

    Pharmaceuticals are slightly different: you seem to think that the pharma companies would be given license to eternal price-gouging.  I think that competitors would come up with new products.  Sorry to see you’re not as sanguine about the power of markets.

  18. DrewInWisconsin
    Paul A. Rahe

    DrewInWisconsin

    Paul A. Rahe: But the truth is that, in repeatedly extending copyright, Congress is denying to the rest of us what is rightly ours: works that, until recently, would have found their way into the public domain.

    I’m having a very difficult time with the notion that my creative output could ever be considered rightly yours — or anyone’s. It is mine. I built it. I will give it to whomever I wish, and this will mostly likely be my children and their children. But I didn’t build it for Congress to distribute for general consumption. · 1 minute ago
    If you applied that principle to the descendants of Homer, Aeschylus, Sophocles, Dante, Shakespeare, and Milton, where would we be? Are you willing to apply it to pharmaceutical companies? Consider the consequences.

    I think you’ve just mingled copyright and patent.

  19. C. U. Douglas

    I actually first began to question copyright laws thanks to Mystery Science Theater 3000.  For those who don’t know the show, the basic premise was that three guys (or rather, one guy and two puppets) would sit in front of old movies and riff on them.  Brilliant, funny, and for a while unable to release episodes of their show on DVD.

    This was mostly due to a change in copyright law in the 90′s, one mostly pushed by Disney as the copyrights on some of the original renditions of some of classic Disney characters were going to run down.  Thus, with help from similarly minded companies, they lobbied to change the law in their favor and extended those deadlines.  As a result, MST3K found that many of the rights they had to the movies they riffed were snatched away.

    To think, I’d never know a thing about this if it weren’t for a tangential relationship to one of my favorite TV shows in the nineties.

  20. Paul A. Rahe
    C
    Nobody’s Perfect: Nonsense. Intellectual property is purely a creature of the law. Real estate is not. Furthermore, if I occupy your home, I deny you its use. If I sing your song, I do nothing of the sort.

    Of course real estate is a creature of the law.  Since time immemorial, it has been a function of the state to determine who owns title to land.  For heaven’s sake, dig into your personal files, where you will find documents called deeds and titles.  Without those, you would have no legal defense against squatters or land-grabbers.

    And no, by singing my song, you don’t deny me my use of it.  But if you perform it for a paying audience, you deny me my right to share in the proceeds.   · 6 minutes ago

    You are wrong about real estate. Our possession is no doubt more secure because of the state, but there was acquisition long before there were states. You might want to look at John Locke’s Two Treatises of Government. We have a natural right to real estate; to property in ideas, we have only a legal right. Read the Constitution.

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