Re: copyright under stress

On Mon, 05 Jun 2000, William S. Lovell <wsl[_at_]cerebalaw.com> wrote:
>
> All of Mr. Hale's post is perfectly correct, and it is only those
> who seek a free ride from the creative who would argue otherwise.
> Not to reiterate fundamental copyright law, but "information" is
> not subject to copyright protection, while "expression" is, and
> without the latter there would be no "Great American Novels" and
> we would all be worse off.

It seems to me that this discussion has a divergence that ought be recognized:

(1) Moral right. This was expressed as "If I create something it

    is mine, not yours, and not the public's"

(2) Legal right. Copyright laws grant monopolies for public policy

    reasons (to expand knowledge).

The moral right, so far as I can see, really has no justification for a split between "information" and "expression". If creation is what creates ownership, then surely the creation of an idea is important and not the matter in which it is expressed, nor should someone be able to appropiate by merely rewording.

The problem with the moral right is that all thought (and expression for that matter) consists of borrowing. There is a historical first novel -- and all succeeding novels borrowed the concept of a "novel". We all build off of others -- hubris, ate, nemesis remains a staple of fiction from Homer to Hollywood. Music is almost always a development on prior works.

In any event the moral right is not recognized in this country, save in the arguments of lobbyists.

The legal right recognizes what we are after with copyright in this country -- expanding the public domain. As soons as one recognizes that what we are after is more knowledge for all of us, then the mechanics -- term, free use, notice, etc. should be determined with reference to the purpose. Each should be calculated to yield the maximum benefit to the public, not to the author.

When we mix the two ideas, things become confused and muddy. For instance, under the moral right I can see no justification for terms at all. Similarly when we confuse a monopoly created for a public purpose with concepts such as "theft" we lose sight of what we are after.

The principal problem with the legal right to my mind is that it is in direct conflict with the First Amendment. To avoid that conflict courts have engaged in all sorts of logical shenanigans. As a practical matter that has been tolerable till recently. I suggest that the broad expansion for copyright has made the conflict more intense, and the logical shenanigans increasingly outrageous.

In this context, I think the major expansion is the removal of notice requirements. If we could somehow measure the total output of "fixed' communications in say 1950, I would guess that only a small fraction was intended to be or was covered by copyright. Today, that has changed. The vast majority are covered by copyright regardless of intent. Moreover no one can easily determine what is intended and what is not, or even whom to ask permission of. That is, I submit, a huge difference, and an intolerable one.

Other expansions include the expansion in subject matter -- software copyright without the disclosure of the software code is a particularly egregious one. Why should Microsoft obtain a monopoly in its code when that code is kept secret and does not go to expand our base of knowledge?

Terms, of course, approach the ridiculous. The increasingly long terms, retroactively applied, apparently under the impression that with sufficient incentive the dead will rise from the grave and start writing again, are difficult to square with the legal theory.

Something, I think, is going to have to give between copyright and the First Amendment. I think we, as a society, would best be served if it is the former. Under the "legal right" that makes perfect sense -- in a abstract way of thinking copyright and the First Amendment are intended to serve the same purpose and the balance between them ought to be what best serves the purpose.

In any event arguments that mix " moral right" and the "legal right" are likely to confuse rather than clarify the issues.

Regards,
John Lederer

John Lederer
<johnl[_at_]ibm.net> Received on Tue Jun 06 2000 - 14:31:04 GMT