Patterico's Pontifications

2/5/2007

Captain Copyright Is Dead!

Filed under: Education,General,Miscellaneous — Justin Levine @ 2:44 pm



[posted by Justin Levine]

Thank goodness! I previously railed against this propagandist crock here. A more notable critic sounded off here.

Interesting to note that Captain Copyright people now admit that even legal “experts” can’t seem to agree about the basic parameters of fair use and other issues surrounding copyright law. Congress, the courts, world organizations and the copyright lobby have created an awful mess regarding a crucial aspect of free speech in modern society. Shame.

[posted by Justin Levine]

12 Responses to “Captain Copyright Is Dead!”

  1. Justin Levine:

    I certainly agree that the proper length of copyright can be debated. It used to be 27 years, plus an additional 27 years if you remembered to renew it. Then it was author’s lifetime plus 50 years; I don’t even know what it is right now.

    But many people also err on the other side, chanting “information wants to be free” as they download bootlegs of two-day-old CDs and DVDs.

    Just to know where you’re coming from, can you please answer one hypothetical? (If you already answered this the last time I asked, I never saw the answer.)

    Suppose Mr. X manages to hack my system and copy the text file of my current novel; suppose that he puts the complete formatted text up on his website without my permission or knowledge, writing “Dafydd ab Hugh’s new novel, the Pandora Point, is now available free… just click and read!”

    Do you believe I have a legal case against Mr. X?

    Do you believe I should have a legal case against him?

    Thanks,

    Dafydd

    Dafydd (445647)

  2. There used to be a good website on the first copyright law (circa 1790, England). It described the problems the law solved, which was basically that the publisher of a new work couldn’t be sure of recovering the up front investment costs that a follow on publisher avoids by simply duplicating the book. A chunk of that is developing a readership (ie., advertising). It has never been about the authors, which is good, because the authors never really made much anyhow. It has always been about the publishers. People will write because they have a story to tell, a point to make, weather they can bake money on it or not. J. K. Rowling didn’t start writing Harry Potter stories for the money, the stories “just bubbled up”. And no one could have predicted that her stories would become so popular.

    But all the copyright law needs to ensure, is that the first publisher will have a reasonable chance to recover their costs. Since a bestseller has a sales life of about five years, that is all the time a copyright needs to last. Of course, that was back before the invention of the series, and movies, etc, so the rules have to be less cut and dried now. But current durations are just silly, a lot of it is driven the the Disney Co. not wanting to lose the copyright on Micky Mouse (which I can understand, but the solution is terrible).

    I’ll point out that bookstores can and do still sell old classics, where the original copyright expired generations ago. Known demand, no advertising campaign needed, so they’re cheap, but the stores and publishers still make a profit. Copyright is needed for works to be published, it’s needed for unknown works to be published. Baen books has an electronic library, where (at the author’s discretion) books can be downloaded for free. Their experience is that it increases sales.

    larry (feb78b)

  3. Larry:

    So the Tolkien situation really doesn’t bother you at all, because it resulted in the books being published here… and the author getting no royalties for them.

    What the heck — at least the criminal publisher made some money!

    Dafydd

    Dafydd (445647)

  4. Justin Levine:

    Well, evidently “the moving finger writes, and having writ, moves on.”

    (Now that I think about it, this is what happened the last time I asked this question, too.)

    Dafydd

    Dafydd (445647)

  5. Dafyyd,

    I don’t know much about copyright but I think you would have an action against Mr. X for conversion and/or theft.

    DRJ (605076)

  6. Dafydd –

    Relax dude. I try to get to questions by posters in due time. Sometimes I don’t have the time.

    So to answer your question(s) – Absolutely you have a legal case against X. No question.

    Should you have a legal case against X? Under your scenario – absolutely yes. Ok??

    Here is where I supect we may disagee (and the point I am about to make requires changing your scenario). AFTER you have already published your work which allows people to freely access it without hacking into your computer, people should ideally have the ability to copy portions of it for the purposes of comment and criticism in far greater chunks than the current state of the law would seemingly allow – even if it used to help comment on something other than your work itself. Fair use protections need to be greatly expanded compared to how most courts currently interpret them.

    I also think that the length of copyright in your work should be far shorter than what current law allows (and certainly no longer than your own lifetime). Copyright protections should be set at the absolute minimum required to inspire creativity and should be geared entirely towards maximalizing the creation AND distribution of such works to consumers. In other words, it needs to geared entirely towards the consumers of such works. Right now, it is geared primarily towards the benefits of producers.

    But the issue of copyright protections is entirely different than the issue of hacking into somebody’s computer in order to access a work. I would have thought that would be obvious – and I know of nothing in my previous views on this subject that would suggest I feel otherwise, so your extreme hypothetical is somewhat curious in that aspect.

    But in any event, there ya go. Surely you are now satisfied since I know that you were geuninely interested in my responses all along…

    Justin Levine (b2f85e)

  7. As to the Tolkein situation –

    J.R.R. Tolkein waived royalties on Lord of the Rings in exchnage for the risk of profit sharing after the book broke even. That was entirely up to him and his publisher.

    But where current copyright law does prove to be insufferable in this instance is that the Lord of the Rings “trilogy” was originally conceived and created as only ONE complete work in the mind of the author. The publisher artificially chopped it up into 3 separate books due to the percived limitations of commercially publishing a 1000+ page book at the time. As a result, people have to unfairly license 3 separate works for Lord of the Rings. This became a problem when the original animated films of the non-trilogy “trilogy” were created since the original film producers could only afford to license the first 2 books and not the 3rd (Return of the King).

    I feel this gives far too much flexibility and discretion to an aspect of copyright law that should be more concrete. If fair use turns on part on how much of a complete work is used, then it becomes necessary to have some objective concrete rules for determining what constitutes a single work. Is a novel with 10 chapters ONE work? Or is each chapter a separate creative work (with the novel then really being a compilation of 10 copyrighted works – demanding 10 different licensing payments. Which also brings to mind Stephen Kings attempt to sell one of his novels on-line one chapter at a time.)? Why not then simply decalre each paragraph to be a separate work covered by copyright? Why not each sentence? There are no objective rules here. And this allows for mischief on the part of publishers and copyright holders.

    Justin Levine (b2f85e)

  8. Dafydd –

    One other important point to the hyporthetical response that I forgot to include. Although the current state of the law doesn’t seem to allow it, I absolutely think that others ought to be able to take the ideas and characters you create and make derivative works from them without your consent (provided that the derivate work doesn’t include an actual hard copy of the underlying work itself). You in turn should be able to do the same with others’ works in order to help sustain your own creative process. Theoretically, copyright only covers fixed works, and not “ideas”. But in practical reality, that is a crock since characters divorced from a specific text are nothing but ideas. Some ideas are more concrete than others, but they are still only ideas and not fixed works. And yet, the courts seem intent on protecting “characters” and whole host of other abstractions. I think you should be free to write your Star Trek novels withou getting permission from Paramount, the Gene Roddenberry estate, etc. Same with a James Bond novel, Star Wars, etc. You are not “copying” anyones work in this instance. You are simply using others past creativity as a springboard – which happens at some level of abstraction in EVERY creative work.

    There is no doubt in my mind that, overall, this would result in many more creative works of higher quality than what we are currently getting. Once again, I believe in a CONSUMER oriented approach to copyright (the opposite of what we have now). I understand that you disagee. And perhaps your disagreement stems primarily from your profession. So be it. To use an old analogy, buggymakers no doubt felt that the car was a bad idea. We both know where we stand, and I’m happy to have others read the debate and decide for themselves.

    Justin Levine (b2f85e)

  9. Dafydd,

    I don’t know about you, but I’m voting to California to vote for Justin when he runs for Congress. Because: “others ought to be able to take the ideas and characters you create and make derivative works from them without your consent (provided that the derivate work doesn’t include an actual hard copy of the underlying work itself).”

    My goodness, that dog-in-the-manger copyright protectionist George Lucas having the sole right to make all those sequels to the first “Star Wars”!!!

    That’s not a “consumer oriented” approach, Justin, it’s a parasite oriented approach. And if you think characters are not an author’s most worthwhile and valuable creation as opposed to plot … well, you may know copyright law but are otherwise unread.

    nk (5a2f98)

  10. P.S. Actually, Justin’s ideas of intellectual property redistribution mesh very well with my creative writing professor’s assertion, way back when I took his class, that all writers should be subsidized by the government. Would you call it socialism or communism?

    nk (5e5670)

  11. Justin:

    First, anent Tolkien, I did not mean the royalty/profit-sharing arrangement you cited; I was referring to this:

    In the early 1960s, Donald A. Wollheim, science fiction editor of the paperback publisher Ace Books, theorized that The Lord of the Rings was not protected in the United States under American copyright law because the U.S. hardcover edition had been bound from pages printed in the United Kingdom, with the original intention being for them to be printed in the British edition. Ace Books proceeded to publish an edition, unauthorized by Tolkien and without royalties to him.

    Commenter “Larry” suggested that, so long as the work was available to readers, all’s right with the world. I wondered if he thought the Tolkien/Wollheim scenario was acceptable.

    As to the substance, I am reassured that you do, at least, support copyright as a general concept. But as you suspected, I find it disturbing that you pooh-pooh the author’s right to exclusive commercial exploitation of the property he created in favor of some amorpous, free-floating, collectivist “right” of readers — who had nothing to do with the creation of the property — to enjoy its use… even to the point of writing and publishing further adventures of those same characters.

    To paraphrase a legal thinker on the subject, perhaps your disagreement stems primarily from your desire to read a bunch more stories about your favorite characters — free or very cheaply — without the tedious waiting around for the original author to write them. To use an old analogy, pirates no doubt feel that the police are a bad idea.

    Several points:

    Honestly, you have a truly bizarre idea of how markets work. After suggesting that anyone should be able to publish stories using anyone else’s “ideas and characters,” you flatly state:

    There is no doubt in my mind that, overall, this would result in many more creative works of higher quality than what we are currently getting.

    This would come as a terrible shock to anyone who has ever had to wade through fan-fiction for series like Star Trek, Star Wars, Pern, LotR, Harry Potter, or any other popular fiction franchise.

    I don’t even think authors should license their characters and universes to other, less experienced authors to play in… but the copyright holder has the right to make incredibly stupid decisions that destroy a franchise, if he wants.

    But, while it’s foolish for an author to authorize such derivative works, it’s moral thuggery for the State to seize control of an author’s creations and redistribute them to “the people” in the name of a collectivist right to be entertained.

    The more likely outcome of such promiscuous, forced publication of fan-fic would be to flood with market with hundreds or thousands of derivative, putrescent, puerile, infantile, and catastrophically dull knock-offs of the original… thus making it virtually impossible for the original author himself to write more books in that universe or with those characters.

    Since few readers actually look at author bylines, they will not distinguish between Harry Potter books written by JKR and those written by some girl who legally changed her name to Hermione Garfinkle and cranks out a new “tribute novel” every 48 days… particularly as self-publication becomes cheaper with the march of technology.

    All the readers will know is that they “picked up a couple of those Harry Potter books, but they were really bad, so I’m not going to waste my time.” Too bad, Joanne; well, just come up with something different, and you can exploit it — for one book.

    We already see this happening (sorry to inject a note of market reality) with the Star Trek lines: the publisher decided to pay so small an advance that, except for special cases (books supposedly by actors who played characters in the series), most Trek books are now written by fans just dying to see their words in print, and who cares about the money? As a result, there are too many books by authors with too little talent. Predictably, sales of each individual book in the franchise have plummeted — along with the quality.

    But, I suppose if one’s yardstick is quantity, not quality, then this may be a good thing.

    Characters are identified with the authors who created them; there is an intimate relationship between Jack Ryan and Tom Clancy, between Frodo and JRRT, between Hermione Granger and J.K. Rowling. To suggest that any old person should be able to write a book about them — knowing that most readers will simply assume it’s by the same author — is like allowing anyone to open up a chicken restaurant and call it Col. Sanders Kentucky Fried Chicken.

    It is profoundly anti-capitalist and certainly smells rather strongly of the idea that “the people” really own everything… and they have a collective right to be entertained that supercedes any individual creator’s right to exploit his own creation.

    (For consistency, I suppose you also oppose exclusive patents — and you believe that if there were no patents, and the inventor had to fight against instant knock-offs by sleazebag corporations who specialize in piracy, the natural result would be many more creative inventions of higher quality than what we are currently getting.)

    Your idea that courts should allow a more expansive “fair use” of copyrighted material than they currently do is not, on its face, unreasonable.

    So long as this is not used as license to, say, reprint an entire novel — then add, at the end, in a different typeface, “Poppycock!”… then claim quoting the entire novel up front of a single word of “commentary” constituted fair use.

    If the supposedly fair use is actually reasonable — rather than just piggybacking on someone else’s copyright — and the original contribution is vastly larger than the quoted material, then I can see an argument for setting the allotment somewhat higher.

    Dafydd

    Dafydd (445647)

  12. “It has never been about the authors, which is good, because the authors never really made much anyhow…People will write…weather [sic] they can bake money on it or not.”

    I’ve known quite a few writers, larry, and they would strongly disagree–strongly enough that if you were in the same room you would feel the need to leave.

    pst314 (20d3ed)


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