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.

Like this post? Want to comment? Join Ricochet’s growing community of conservatives and be part of the conversation. Get your first month free.

Members have made 80 comments.

  1. 1
  2. 2
  3. 3
  1. Profile photo of DrewInWisconsin Member

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

    • #1
    • January 20, 2012 at 4:19 am
  2. Profile photo of Nobody's Perfect Inactive

    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
    • January 20, 2012 at 4:22 am
  3. Profile photo of Paul A. Rahe Contributor
    Paul A. Rahe Post author
    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.

    • #3
    • January 20, 2012 at 4:24 am
  4. Profile photo of The King Prawn Member

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

    • #4
    • January 20, 2012 at 4:26 am
  5. Profile photo of Paul A. Rahe Contributor
    Paul A. Rahe Post author
    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.

    • #5
    • January 20, 2012 at 4:27 am
  6. Profile photo of DrewInWisconsin Member
    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.

    • #6
    • January 20, 2012 at 4:32 am
  7. Profile photo of Paul A. Rahe Contributor
    Paul A. Rahe Post author
    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.

    • #7
    • January 20, 2012 at 4:32 am
  8. Profile photo of Nobody's Perfect Inactive

    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.  

    • #8
    • January 20, 2012 at 4:33 am
  9. Profile photo of DrewInWisconsin Member
    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.

    • #9
    • January 20, 2012 at 4:35 am
  10. Profile photo of Paul A. Rahe Contributor
    Paul A. Rahe Post author
    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.

    • #10
    • January 20, 2012 at 4:37 am
  11. Profile photo of genferei Member

    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.

    • #11
    • January 20, 2012 at 4:37 am
  12. Profile photo of DrewInWisconsin Member

    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.

    • #12
    • January 20, 2012 at 4:38 am
  13. Profile photo of Hang On Member
    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.

    • #13
    • January 20, 2012 at 4:38 am
  14. Profile photo of Paul A. Rahe Contributor
    Paul A. Rahe Post author
    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.

    • #14
    • January 20, 2012 at 4:38 am
  15. Profile photo of Pseudodionysius Inactive
    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?

    • #15
    • January 20, 2012 at 4:40 am
  16. Profile photo of St. Salieri / Eric Cook Member

    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.

    • #16
    • January 20, 2012 at 4:40 am
  17. Profile photo of Nobody's Perfect Inactive

    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.

    • #17
    • January 20, 2012 at 4:41 am
  18. Profile photo of DrewInWisconsin Member
    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.

    • #18
    • January 20, 2012 at 4:41 am
  19. Profile photo of C. U. Douglas Thatcher

    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.

    • #19
    • January 20, 2012 at 4:41 am
  20. Profile photo of Paul A. Rahe Contributor
    Paul A. Rahe Post author
    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.

    • #20
    • January 20, 2012 at 4:42 am
  21. Profile photo of Nobody's Perfect Inactive

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

    And to hell with his children and grandchildren, right?  

    • #21
    • January 20, 2012 at 4:43 am
  22. Profile photo of Paul A. Rahe Contributor
    Paul A. Rahe Post author
    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. · 1 minute ago

    In precisely the same way that the Constitution does.

    • #22
    • January 20, 2012 at 4:43 am
  23. Profile photo of DrewInWisconsin Member
    Paul A. Rahe

    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.

    You didn’t say “If I sing your song after you die.” You seemed to be speaking about the present.

    • #23
    • January 20, 2012 at 4:44 am
  24. Profile photo of St. Salieri / Eric Cook Member

    So how do you propose they balance these concerns – 30 years, I could easily live that long, and also what about the right to my widow or children if I should die, and they rely on the legacy of my work for their income, as they do when I am alive?

    In the fine arts, I’m not convinced as others are that copyright in any way stifles creativity, in fact, I might argue the opposite.

    I know that all art is to some extent derivative, but I think that is a seperate issue that muddies the water.  

    If I may sum up, isn’t this largely the result of a clash of “greed” from corporations(in your argument – greed which you believe stifles innovation), and innovation.  I wonder though if the ease of “theft” due to modern technology isn’t what is driving this, I can copy it so why can’t I?  Or do I have it wrong?

    • #24
    • January 20, 2012 at 4:44 am
  25. Profile photo of Paul A. Rahe Contributor
    Paul A. Rahe Post author
    Nobody’s Perfect: Not if copyright ceases when you die. Then, you no longer make a living from it.

    And to hell with his children and grandchildren, right?   · 0 minutes ago

    The privilege of copyright exists solely to serve the public good. In the absence of the law — and until quite recently in human history, there were no such laws — there is no such right.

    You are notably silent about patents. Do you think that those privileges should last into perpetuity? If not, you should explain why not.

    • #25
    • January 20, 2012 at 4:45 am
  26. Profile photo of DrewInWisconsin Member

    Did anyone see any pods lying around? I’m starting to worry.

    • #26
    • January 20, 2012 at 4:47 am
  27. Profile photo of Paul A. Rahe Contributor
    Paul A. Rahe Post author
    St. Salieri: So how do you propose they balance these concerns – 30 years, I could easily live that long, and also what about the right to my widow or children if I should die, and they rely on the legacy of my work for their income, as they do when I am alive?. . .  I wonder though if the ease of “theft” due to modern technology isn’t what is driving this, I can copy it so why can’t I?  Or do I have it wrong? · 1 minute ago

    It has always been easy (easy as pie) to steal ideas. That is why copyright and patent laws were a radical innovation. Your widow no doubt deserves something; your grown children should earn their own keep.

    • #27
    • January 20, 2012 at 4:49 am
  28. Profile photo of Nobody's Perfect Inactive

    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. 

    Yes, there was acquisition by sword, spear, stone club and bloodshed. One of the key reasons why monarchies flourished was because they defined and protected rights to land.  

    Take away the state’s protection of real property rights and I can simply march over to my neighbor’s lovely home and seize it at gunpoint.  

    • #28
    • January 20, 2012 at 4:50 am
  29. Profile photo of Paul A. Rahe Contributor
    Paul A. Rahe Post author
    DrewInWisconsin

    Paul A. Rahe

    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.
    You didn’t say “If I sing your song after you die.” You seemed to be speaking about the present. · 6 minutes ago

    You have misread me. I endorsed the concept of copyright and, in response to your first comment (#1), I suggested a term (#2). See above.

    • #29
    • January 20, 2012 at 4:51 am
  30. Profile photo of Nobody's Perfect Inactive

    Your widow no doubt deserves something; your grown children should earn their own keep.

    What an astonishing statement.  By that reasoning, we should confiscate all of Bill Gates’ wealth upon his death, in order to assure that his grown children are left to their own devices.  

    Never expected to see such a statement here. 

    • #30
    • January 20, 2012 at 4:53 am
  1. 1
  2. 2
  3. 3