Re: copyright under stress

On Thu, Jun 08, 2000, Jeremy G. Byrne <jeremy[_at_]iz.org> wrote:
>
> On 05/31/2000, David Hale <dhale[_at_]aggt.com> wrote:
> >
> > This is a really incredible post. Incredibly offensive, that is.
>
> That was, of course, why I begged indulgence to reply to Kevin G.
> in kind.
>
> > If I create something, it is mine, not yours, and not the public's.
>
> I simply do not accept that, nor do I feel US Law (and ianal,
> obviously) supports that contention. Copyright creates a bundle
> of licensing rights to control use of the "creation", but does
> not assign ownership of that creation, except in "the original".

Obviously, then, we have a source of disagreement that can not be reconciled.

> > I do not have to give you access to it; I can take it to my grave
> > my secret.
>
> Certainly; and by that mechanism whatever it was you created would
> not be art, and would be no greater loss than the work of potential
> artists who remain unborn because their parents have never met.

Okay, here's your first problem. Copyright does not only relate to "art," as Justice Holmes pointed out a hundred years ago.

> > If I don't have copyright to back me up, I will either
> > not give you access without a contract in which you explicitly
> > promise me your first born if you reproduce it, or I will not
> > create it in the first place if such a contract is found to be
> > not enforceable.
>
> Given that I believe your cost (exclusive right to control your
> "creation") is too high, the fact that you refuse to sell is
> irrelevant.

Even if you believe the cost is too high, someone else might not. Thus, it is relevant whether such a contract is found to be enforcable or not. If my price were a little lower or my conditions a little less strict, maybe you would be willing to enter into the contract. It would be a shame if the govenment prohibited us from doing so.

> > Copyright is not evil. It is simply a step (and money) saving
> > device which allows me to distribute my works without having to
> > go to the effort of drafting and having signed a contract limiting
> > rights to redistribution.
>
> The hypothetical situation where all creativity is governed by
> contract is absurd, and impossible. Culture does not function
> in the way you seem to be implying.

Yes, actually, it does. The contracts may be oral, or even implied, but they are there. You are correct though that society can not function if every contract term must be negotiated for each contract -- that is why we have copyright laws. I can guarantee to you, however, that there are people right this very moment entering into contracts which provide protections similar to copyright in situations where copyright does not apply. There are also contracts which are being entered into which provide the discloser of information with greater protections than copyright law by itself would provide.

> > those who violate the law with full knowledge [...]
> > are not honest.
>
> Unless you are simply claiming definitional equivalence, I disagree
> entirely. Unlawfulness does not equate to dishonesty; the social
> contract is only implied, after all.

Your clever use of an elipse is not honest, but does not violate the law, so I guess the two are not by definition equivilent. Seriously, though, the segment of my post you snipped recognized that there are situations where breaking the law is not dishonest (good faith efforts, honest mistakes, and legitimate social protest, for example). I still stand by my statement however, that with the above mentioned exceptions, those who violate the law are not honest. I will leave it to you to concoct a believable counter-example.

> > With no copyright, how does a performer create a revenue stream?
>
> A large body of writing exists on this subject, which I do not
> propose to precis here. There are many alternatives to the
> exploitation of copyright as a source of income.

Yes. Some of which I listed, but which you again snipped. What I was pointing out is that some of the most effective means of creating a revenue stream for a performer far outweigh the evils of copyright.

> > the author of the next great American novel decides not to bother
> > and spends his time day trading instead. THAT is a crime against
> > civilization.
>
> Arguments about "potential art" have no more validity than arguments
> about the "potential sale" lost when I hand a copy of my MS Office
> 2003 CD to a poor friend. (The only potential at stake is her
> ability to open and work with the industry-standard Word file
> format.)

I have a hard time accepting this. Equating the distruction of an entire system of compensation to a method of measuring damages is disengenuous. It may (or may not) be a valid measure of damages to ask a court to assume that but for an infringement, a person would have paid a licence. It is quite different to say that eliminating compensation will have no effect on the creative output of society. I see no parallels here

> > The founding fathers were not insane when they gave Congress the
> > authority to establish copyrights (and patents) to promote science
> > and the useful arts. They do.
>
> I don't believe that is proved, and I'm not sure how you could claim
> to know this.

Let's call it a empirical draw then. I still have a hard time believing that some works (I won't call them art so as to not distract the real issue) would be created if there was a free-for-all on reproduction. More specifically, would society be able to conglomerate the necessary capital to spend even the couple of million dollars required for the simplest of commercial quality movies if that capital could not be reasonably expected to be returned.

I know that lots of people willingly work for free, including, apparently, you. That doesn't mean that everyone should have to.

On 06/05/2000, Bill Lovell <wsl[_at_]cerebalaw.com> wrote:
>

<<snip>>

I'll let Bill respond to the second half of your post.

Thanks for the compliment, Bill!

-David

David Hale
<dhale[_at_]aggt.com> Received on Fri Jun 09 2000 - 14:03:05 GMT