Re: "Against Intellectual Property"

On Thu, Aug 03, 2000, Linda Gruber <linda[_at_]novelart.com> wrote:
>
> On 7/31/2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
> >
> > [...]
> > copyright is intended to promote a public good that otherwise
> > would not be accomplished. It is not a mechanism for insuring
> > authors enough money to live on, nor a way for authors to hide
> > their works under a barrel because poor people can't pay for
> > their light.
> >
> > [...]
> > If you are saying that my fight to overturn the copyright term
> > extension would deprive authors of the legitimate fruit of their
> > labor please explain how it is going to do that 70 years after
> > their death. But more importantly, please explain how this
> > extension is going to accomplish the real purpose of copyright:
> > to promote the progress of science and the useful arts by
> > encouraging authors to publish new works.
>
> Maybe you don't own a car, or maybe you don't drive, but try to imagine
> this scenario as if you do. This is what I say to those who agree with
> Eric's position:
>
> Would you turn a stranger away who asked to borrow your car? He says
> he doesn't have the money to buy one. If you loan him yours, he won't
> have to buy one. How about it?
> [...]

I don't know what this fanciful scenario has to do with copyright. Nobody on this list (recently) has been advocating seizing intellectual property by eminent domain. What instead has been discussed is the difference between the view of copyright as a statutory right, based on the U.S. Constitution, and another view of copyright, that it is a natural right like a personal property right.

I think you are correct that if you view copyright as the latter, then it is difficult to determine a proper term for copyright. It would be perpetual, and last not only for the lifetime of author. But you have to account then for some rights residual in the author after publication and first sale. For example, in your case of the automobile, it would be like the designer of an automobile selling it to you and then after you bought it telling you that you could use it in only certain ways, and could not resell it. The author would call upon the government to enforce those exclusive rights. So in your scenario, based upon your philosophy of copyright, the government seizing the car would be only a proxy for the author retaining some exclusive rights and preventing use by the customer.

But in earlier discussions, Linda, I believe you adhered to the Constitutional view of copyright, so I am a bit surprised that you put up this straw man for argument.

> -------------------------------------------------------------------------
>
> Why are copyright owners not compensated with fair market value like
> other citizens who are forced to give up their private property due to
> eminent domain? Why are we singled out to have to give over the fruits
> of our labor while others are not? Why shouldn't we have every right
> to fight to hold on to our copyrights for as long as we can manage?

If copyright owners are not compensated with fair market value it cannot be because of government action, it would only be the failure of the market to compensate. The author can choose to publish or not publish. If she publishes, she takes upon herself the risk of not receiving the price she asks. She receives from the government the exclusive rights she asks for in return for publication.

But after a "limited time" the public needs to receive its part of the bargain the author made when she sought government protection. The rights need to return to the public domain, from which the work originated.

I am not in favor (though I can't speak for everybody) of not enforcing author exclusive rights during copyright term. If I ask for one part of the bargain, I am bound to ask for the other. I personally use copyrighted works only with permission or after they enter the public domain.

What I have proposed instead is that government see creative works published as a public good. Since the market has become distorted, and only a scant few ever receive full market value in return for publication, I have suggested that the public simply pay for the rights directly. My idea of an Intellectual Property Conservancy would have authors taking tax deductions for voluntarily donating rights to the public. The value of such deductions could be set as they currently are for other donations, by fair market value or arbitration, or by some act of Congress. Nobody would be forced to donate.

Such a process would try to serve as an answer to your complaint that authors are not rewarded for fair market value. It is not an answer to copyright infringement. I don't support the idea of copying and selling the work of another person. But I am in favor of a liberal view toward creating new works, instead of using copyright law to stifle artists. The public domain has shrunk in recent years and it has become the case that large corporations assert they own all of our popular culture. We need to figure out some way of using copyright law to remedy this situation. I believe that the ideas of the Framers ought to be resurrected and this idea of copyright as some sort of natural property right rejected. It is not good for authors, but mainly publishers.  

> In my view, the government had no right to take our private property
> rights without paying us to begin with. Not unless the government
> required an equitable sacrifice from all of it's citizens. At the
> very least, we should be compensated through lower taxation on earnings
> we make during the course of the copyright term. Then after a lengthy
> term, the government could say it has paid to take our property through
> eminent domain. A risk that all citizens face when the government
> wants something.

Instead of taking private property through public domain, I believe the situation is more like the government taking public property and giving it to private owners without a hearing. (See Larry Lessig's briefs in my case on this very subject), at

     http://eon.law.harvard.edu/eldredvreno/

It would be analogous to your town buying buses to transport people who could not afford cars, then giving the buses away to certain people who support their political campaigns.

-- 
"Eric"  Eric Eldred  Eldritch Press
mailto:Eldred[_at_]EldritchPress.org
http://www.eldritchpress.org/EricEldred.vcf