Re: "Against Intellectual Property"

On Fri, 4 Aug 2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
>
> I don't know what this fanciful scenario has to do with copyright.

Hi Eric,

My fable addressed your comments to Pat Sloan above. I attempted to answer your questions by showing what the result could be if you strip a selected group of their rights and don't allow them to retain an asset to pass on to their offspring. When you further deny copyright holders the right to regain some of their rights through term extension, it becomes a no win situation for the copyright holders. They are being ripped off right and left. There is no protection from the thieves. Then, in the end, they are still deprived of the right to keep and pass along their assets. How creative can one be while being treated with such disrespect? Better to quit and go flip burgers. There's more money in it.

> 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.

That's exactly why I was drawing an analogy to something that most people commonly own and would not expect to give over to the public domain. The only reason anyone got the idea that they could take the labor of authors and artists is because the government decided to call it something other than private property. In my analogy, automobiles were called 'transportation' instead of admitting that they were property. That's how the government could suddenly treat them differently and single out one segment of society to give up their private property to benefit the public.

If I labor to build a car instead of a piece of art, the government would not take it from me or my heirs according to some arbitrary term limit. Why isn't everything I create from my own imagination and skill my property? It should be mine forever unless I choose to sell it. However, the government chose to take my creations for the public good and pay my heirs zip for the fair market value of the licensing fees that are lost forever upon the forced expiration of the private property rights. They don't do that to others.

Your side complains that WE stole from the public domain by fighting to get a longer term. That seems ridiculous to me. Having a term at all is ridiculous to me. It would seem ridiculous to you too, if you were the one singled out to give up your private property. My fable was about an automobile because I thought maybe non creators could relate to the way they would feel if they had to give up something they believed they had every right to own.

> 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.

I have seen very little proactive help from the government in supporting copyrights. It's an expensive proposition to protect one's own rights. I have 19 infringers to email and bill for infringed usage right now and that is just from last week. You can bet that each of those emails will generate about 5 more as they will most certainly argue with me. I don't see how policing my rights myself is a protection which allows me to produce more work.

Does the copyright law give creators special additional rights and protections other than recognizing the authors right to own and control his own property and rent it out if he likes? It DOES specify the rights. It DOES take rights from us through fair use. It DOES limit the term of our rights, and it ultimately DOES give our rights to the public. The government didn't negotiate a contract with creators to do this. There was no meeting of the minds. They just did it the same way they took the land from Native Americans.

> 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.

No, in my fable, the government takes cars just as it takes creators' rights to keep the assets they create and ought to be allowed to pass on to their heirs.

> 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.

I am a strong supporter of copyrights since that is the law, but I believe that we should be able to change the law to react to the times and protect creators against infringement as the Constitution gave Congress the power to do. However, I am a free thinker. I don't know if my views are easily pigeonholed. My views are logical from the perspective of an original creator, but that usually means that those who don't stand in my shoes can't see the logic. That's why I have learned to tell fables.

> > 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.

I was talking about the government action of limiting the term of copyrights. So it IS through government action that my property is taken without compensation for fair market value as it would be had they taken it under eminent domain. The licensing fees are an asset that will always be exploitable by someone. Why should my heirs not be the ones to benefit?

> 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.

Original works do not originate in the public domain. While a non original creator could think that copyrighted works are only derivatives of the public domain, most of my inspiration and the inspiration of most professional creators is original. As I have said before, my main source of inspiration comes from staring at the light and shadows in my bathroom carpet. That's definitely not in the public domain.  

> 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.

This sounds something like my idea (see below) of how the government should allow the heirs to continue to receive a licensing fee. However, by then, the fees would usually be minimal, if this setup is applied during the copyright term the fees would have to be high for authors to make a living. Fees would have to allow for the various cost of living factors for authors, differences in work styles, time, supplies, and overhead costs.

> 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.

The problem is that if the government is charged with protecting our copyrights, the government needs to proactively support copyright holders and back up the copyright law with an educational ad campaign and actions like requiring the browser makers to provide a process that recognizes a mark encrypted in copyrighted digital work. Browsers should garble downloaded digital works unless that mark matches the certificate in the user's browser.

> 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.

Since we are stuck with a term limit, there could be a fee set for specified uses after the term limit. The copyright holder may not prevent the license from being issued after the term expires unless it affects their moral rights, but neither are they deprived of the asset's value. They should always receive the fees based on the fair market value unless they donate the work as a tax trade off to avoid the paperwork hassle for collecting minimal sporadic fees. Most probably would donate, but some would have works that still have a vigorous licensing life.  

> 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.

Saying it mainly benefits publishers lets those who covet the works of original creators feel that they are Davids fighting corporate Goliaths. The reason those corporate giants are the only ones lobbying is because we independents can't. We live hand to mouth. They have the money, and we are grateful that they fight the battles for us all.

> > 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.

It's easy for you to feel that way. It is not easy to listen to your perspective when one creates original work, spends years and thousands of dollars trying to get a freelance career going, then fights an uphill battle against rampant infringement, rights grabbing publishers, clip art, and stock houses. On top of all that struggle, you think we creators should not lobby to change the terms of a so called contract we never agreed to in the first place.

Linda G.

Linda Gruber

-- 
Novel Art: Images of Fantasy and Reality
http://www.novelart.com/
<linda[_at_]novelart.com>