On 06/06/2000, John Lederer <johnl[_at_]ibm.net> wrote:
>
> 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.
John,
I think you have a good point (several, actually), but I believe your terminology may confuse the issue even further. "Moral rights" *do* exist in the United States for works of visual art, and are considered separate from the Copyright rights, but I don't think that's really the kind of moral rights you're talking about.
Copyright exists independent of moral rights, as a form of encouragement to authors to expose their works to the public. The idea that such public exposure would come without such protection is, quite frankly, wildly overoptimistic. Artists have made works for centuries that went to their patrons and were not displayed publically. Even if that were not the case, if someone is truly talented at music, or writing, or some other creative endeavor, society should allow some kind of remuneration so that person can pursue his or her talents full time, rather than being forced to take a paying job unrelated to their creative endeavors in order to put food on the table.
I respectfully disagree with your thesis that copyright and the first amendment are at odds. Courts have historically acknowledged that the government may lawfully regulate the time, place and manner of freedom of expression (e.g. bans on incitement to riot, public noise ordinances banning "speech" over a certain number of decibels, etc.). Copyright restricts a person's ability to copy someone else's particular expression of an idea, but does not prohibit the expression of that idea. "Fair use" of copyrighted material is generally accorded less deference as the use becomes more and more commercial, and this dovetails nicely, IMO, with the lesser protections accorded to commercial speech.
So maybe we agree to disagree. Nice to see a level head on this listserv, though.
Kevin Grierson
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