Re: copyright expiration as a spur to creativity

On 14 Aug 1998, Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
>
> On 8/13/98, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
> >
> > On 11 Aug 1998, Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
> > >
> > > On 8/10/98, Albert Henderson <NobleStation[_at_]compuserve.com> wrote:
> > > >
> > > > You are a prisoner of "congestible" terminology. Property rights
> > > > in terms of "what's mine" and "what's yours" are very clear. In
> > > > short, you can't squat on my turf and you can't publish my prose
> > > > without my permission.
> > >
> > > You are making unwarranted assumptions about what *should* be
> > > yours and what *should* be mine. I can squat on your turf and
> > > publish your prose if we write the law to say that I can (and, in
> > > fact, we have so written it, under conditions like adverse
> > > posession or fair use).
> >
> > It seems to me that you have been making assumptions what the
> > copyright law "should" allow.
>
> Yes. They just don't happen to be question-begging assumptions.
>
> > The expansion of unauthorized copying was precipitated by the
> > photocopier and photo-offset lithography, not any intrinsic economic
> > value.
>
> The "expansion of unauthorized copying" was precipitated by the
> printing press. I have no idea what you mean by "intrinsic economic
> value" or how it is relevant to the subject under discussion.

I will explain. Technology made possible piracy as well as exploitation. Photocopier and photo-offset technology contributed to piracy more than to lowering the cost of exploitation. With piracy increased, copyright owners deserve greater support from the law, f.e. extended terms.

> > > Publication and copying generate as much of the creative work as
> > > we wish. We can't publish or copy land. You have a tendency to
> > > forget that.
> >
> > You can use land in various ways without consuming it.
>
> No, in fact, you can't, at least insofar as economic consumption is
> concerened. However, if you have discovered a way for two users to
> occupy the same space at the same time, I understand that the Nobel
> Physics Committee is actively soliciting nominations. You'll be a
> shoe-in.

You are wrong. Many people can physically share use of of land, particuarly if it is a large tract. They do so every day in public places without the benefit of physicists. Some uses (f.e. landfill) do consume the land, but so do some uses of copyrightable works (remember Penn Station?).

Ownership, as with copyrighted work, is something else entirely and can occur without reference to use.

What I am asking is, Why protect ownership of land more than ownership of creative work?

> > Land ownership includes a bundle of rights that can be transferred,
> > licensed, shared, or sold.
>
> Yes -- and your point is... ? (We were talking about public goods,
> remember? The issue is what the optimal bundle of rights should be,
> not whether they exist in some cases.)
>
> > The value of land depends on legal protection of ownership. Without
> > such protections, no one would invest.
>
> In fact this is not universally true, but is more efficient in many
> cases.
>
> > It's not so different.
>
> It is completely different. In the case of real property, we are
> attempting to allocate usage of a scarce resource that already
> exists. In the case of intellectual property, we are attempting to
> encourage creation of a resource that will NOT be scarce once it
> comes into existence.

There is your confusion again. In the case of real property we allocate OWNERSHIP ... It is the OWNER who allocates use. In the case of intellectual property we should follow the same path and let the OWNER allocate use.

> > Speaking of forgetting, don't forget the conversion of open range
> > by the Homestead Act. Defining and securing property ownership
> > was clearly preferable to unfettered sharing.
>
> In fact, there is a rather large literature on land usage in which
> sharing, not necessarily unfettered, is preferable to private
> ownership. But even assuming that private ownership was preferable
> in the case of North American "open" lands (which were actually
> claimed and/or in use by native Americans) what has that to do with
> public goods?

What does the large literature have do to with historic policy?

> > > We cannot both engage in those activities at the same time. We
> > > can, of course, both tell tales around the neighborhood at the
> > > same time, making it the only example of a public good that you
> > > have offered.
>
> > You have such a small yard. When it gets too congested, we could
> > just take turns.
>
> Please see my suggestion above about the Nobel prize in physics.

See my reply.

> > > > Epstein apparently does not realize that someone can certainly
> > > > steal some crops far below the cost of producing them.
> > >
> > > Yes, but in that case, the person who grew them has less. No one
> > > can "steal" your intellectual property, because you still have it.
> > > They can only infringe you exclusive rights to it.
> >
> > Are you saying that artists and authors do not lose income from
> > infringements of copyrighted property?
>
> You have such a astonishing talent for misinterpretation -- have you
> considered going into comedy?

Do you think this is a joking matter?

> I think if you will read the exchange above carefully, you will find
> that 1) I indicated that farmers would have fewer crops if somone did
> as you suggested and stole part of them, and 2) that this condition
> does not apply to creative works. I made no statement as to whether
> artists and authors lose income from infringement of copyrighted
> works.
>
> Were I to make such a statement, it would be that artists and
> authors may or may not lose revenue due to infringment of intellectual
> property, and that the question of lost revenue is quite different from
> the question of lost income, which artists and authors also may or may
> not lose due to infringement of intellectual property.
>
> And that in either event, any revenue or income which artists and
> authors gain due to the existence of copyright comes at public
> expense, which is sometimes a worthwhile trade and sometimes not.

How is gain from copyright at public expense any more than gain from real estate, food, tangible goods, or services of (for instance) a plumber?

> > > > Stealing "only what I can eat" makes no impact on the market
> > >
> > > That statement is obviously false (and I cannot resist the
> > > obligatory cite to Wickard v. Filburn)
> >
> > Just so. You have made my point. Thank you.
>
> I am suprised to learn that your point was that private goods are
> easily distinguishable from public goods, since you have shown a
> complete disregard for the distinction up to now. However, your
> conclusion...

I never mentioned "private goods" or "public goods." These distinctions are irrelevant. Value is diluted by unauthorized use.

The most nefarious infringement of copyright is called counterfeiting. It dilutes the value of authorized copies.

Counterfeit copies of a privately owned book, picture, song, etc. also dilute the value of authorized copies.

Albert Henderson, Editor, PUBLISHING RESEARCH QUARTERLY 70244.1532[_at_]compuserve.com Received on Tue Aug 18 1998 - 18:34:37 GMT