Could Evidence-Based Copyright Law Ever Be Put In Place?

from the perhaps-not dept

Fri, Aug 21st 2009 7:33pm — Mike Masnick

Recently, we were discussing how copyright law seems to only get worse and worse, and it got me thinking how likely it is that "better" copyright laws could ever be put in place. Michael Geist recently put up a post on how to design copyright law that would last, emphasizing "balance" as being essential for durability. I have to admit, I tend to wince when people talk about a "balanced" copyright law, because it usually means a copyright law where everyone is worse off. A balanced copyright sets up the argument as if there's a real give-and-take, where what's good for some is bad for others.

I don't think copyright law needs to be that way. If the real purpose of copyright law is to "promote the progress," then why not make sure it's doing so? In other words, why not have actual evidence-based copyright law? There's a lot of historical evidence that can be looked at, and different ideas around copyright law can be empirically tested. If it doesn't promote the progress, get rid of it. If it does, then shouldn't that make almost everyone better off?

The real problem, though, is that there is a very small group of companies who disproportionately benefit from today's copyright laws -- at the expense of the public. And they have a ridiculously powerful lobby who aren't about to give up their monopoly rights, no matter how much evidence there is that it harms the public and does not promote the progress at all. So we're left with a bad system that continually gets worse. And no evidence-based system will ever be allowed, because it would almost certainly strip that small, but powerful, group of their monopoly rents.

People often assume that I'm in favor of just tossing out all copyright law. I'd argue that I'm more agnostic on the subject than anything else. I don't care about "copyright law" per se. I care about what's going to best promote the progress. If someone can show me that copyright actually can do that, I'm willing to understand how. But if we can't present the evidence of how, or actually defend what good copyright does, the I'm left wondering why it's there at all.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: balance, copyright, evidence, politics

58 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 21 Aug 2009 @ 7:51pm

"The real problem, though, is that there is a very small group of companies who disproportionately benefit from today's copyright laws -- at the expense of the public. And they have a ridiculously powerful lobby who aren't about to give up their monopoly rights, no matter how much evidence there is that it harms the public and does not promote the progress at all."

I'm glad you seem to be waking up to the fact that the Internet is not going to magically fix the existing corruption. Tyrannies have existed throughout history and probably the only thing that eliminates them is a strong enough resistance. The Internet is not our magic solution, people must stand up for what's right or we will succumb to tyranny.
[ link to this | view in thread ]
Anonymous Coward, 21 Aug 2009 @ 8:26pm

Re:
Fear not, there are tyrannies dedicated to controlling the internet, too.

Some parasites only die when the host dies, you know.
[ link to this | view in thread ]
Anonymous Coward, 21 Aug 2009 @ 8:28pm

As far as I understand, evidence points out that the only good copyright law is no copyright at all, as far as progress is concerned. I have yet to find history of copyright promoting progress. The only thing I can find is the reasoning behind it, but the evidence consistently points the other direction. I may be biased by what I read, but what I read is pretty convincing.
[ link to this | view in thread ]
Anonymous Coward, 21 Aug 2009 @ 9:00pm

Re:
I would argue some copyright is a good thing (perhaps a short number of years) to give a reason for making stuff that requires a large investment. Truthfully, this is not solely a pure internet world, and with no copyright, one company could just sell physical media undercutting the company whom created it because the second company had no investment to make up. This is part of the reasoning behind copyright originally, it made it so that those who created works would be able to benefit from it for a limited amount of time. However, this should be greatly limited (perhaps the 14 years with one possible extension) that it originally was, because with a short term, you aren't locking up culture, but at the same time you are giving creators the chance to make a profit on what they made, something that would arguably promote progress.
[ link to this | view in thread ]
Anonymous Coward, 21 Aug 2009 @ 9:26pm

It seems to me that use of the term "agnostic" in the context of this article is as out of place as tennis shoes at a wedding.
[ link to this | view in thread ]
Anonymous Coward, 21 Aug 2009 @ 9:33pm

Evidence based copyright would be a major drag on the system.

The system would still have to grant all the current copyrights, because otherwise developments could be locked up out of the public eye for years as the debate goes on, "is it an advancement of not?" It would add another level of "government" to the whole process, and would create a whole new level of appeals and costs associated for people intending to develop anything.

If the idea is to make a copyright almost impossible to obtain, too expensive to push for, and too slow to obtain, you hit the nail on the head.

As a result, I think this suggestion is just an anti-copyrighter's way of trying to put a stick in the wheels of progress.
[ link to this | view in thread ]
Anonymous Coward, 21 Aug 2009 @ 9:39pm

Re:
The constitution says that intellectual property is to promote the progress but instead you want intellectual property to be granted regardless of whether or not it promotes the progress.
[ link to this | view in thread ]
Anonymous Coward, 21 Aug 2009 @ 10:03pm

Why am I left with the sinking feeling that "progess" as used on this site is limited solely to "economic progress"?

Has anyone seriously considered that "progress" has various synonyms, at least one of which is "encouragement".

It may prove instructive to know that the Copyright Act of 1790 began with the phrase "An Act for the encouragement of learning...".
[ link to this | view in thread ]
Anonymous Coward, 21 Aug 2009 @ 10:26pm

Copyright maximists don't care about advancing the progress, even some of them practically admit to it when they try to argue that copyright is not about advancing the progress in Canada since there is no such clause.
[ link to this | view in thread ]
Anonymous Coward, 21 Aug 2009 @ 10:37pm

Re:
if you're getting at that we need copyrights to encourage people to produce arts, then obviously their just in it to make a living and don't give a damn about the "art" they create as much as a line chef
[ link to this | view in thread ]
Mockingbird (profile), 21 Aug 2009 @ 10:39pm

My proposals for reform of U.S. copyright
1) Withdraw from the Berne Convention
2) Reduce the duration of copyright to 60 years maximum for published works. Shorter still would be even better.
3) If the term of copyright in published works is greater than 50 years, require formalities for the copyright to be fully effective beyond the 50th year. If the formalities are not complied with, the copyright would subsist for the full term, but remedies would be much reduced.
4) Repeal the DMCA's "device" and "circumvention" provisions
5) Automatic termination of all assignments at fixed intervals.
6) Author's successors to be specified by statute. Not even the author can will the copyright to anyone else. This, together with the automatic termination, will prevent excessive fragmentation of rights and provide for easy identification of the rightsholder.
7) Provide for more generous margin of fair use, possibly narrowing the derivative work even so far as to reach only to translations, abridgements, arrangements, and other derivations that remain close to the original.
8) Scrap copyright in architectural works themselves. Blueprints will of course remain copyrightable.
9) Amend the law of trademark to focus more narrowly on graphical marks (no sounds.) Burden to be on mark-holders to inform the public to look for its mark and beware of imitations. Any publisher, for example should be permitted to publish Peter Rabbit in an edition of the same dimensions as the Warne editions. The public would need to take care to look for the Warne mark if it wanted Warne editions.

The statute can be reviewed periodically to see how well it "promotes progress". Further changes should be made cautiously, on the basis of clear evidence of need, with a decent respect for copyright's public purposes as former Congressmen Kastenmeier advised so long ago.
[ link to this | view in thread ]
Anonymous Coward, 21 Aug 2009 @ 10:50pm

Re: My proposals for reform of U.S. copyright
what about out of print work? It should be automatically released to the public domain. Perhaps we can also have limits as to how much one can collect in copyright royalties.
[ link to this | view in thread ]
ASH, 21 Aug 2009 @ 11:41pm

The problem with "evidence-based copyright law" is that it's a form of censorship. You'd have judges deciding "this type of expression is beneficial" and "that type of expression is not", which means the government would be rewarding expression that it approves of and penalizing expression that it doesn't.

Whatever your issues with copyright law, that type of situation is much, much worse.
[ link to this | view in thread ]
Phil, 22 Aug 2009 @ 8:29am

Presumably the evidence would come in the form of research that documents economic outcomes. Someone is going to have to establish reproducable measurement criteria for this however.
Hmm.... of course it will be necessary to copyright those measurement criteria and publish the data in peer-reviewed journals. :)
[ link to this | view in thread ]
Anonymous Coward, 22 Aug 2009 @ 8:32am

Re:
Encouraging, however, I'm curious what perspective your taking. Are you suggesting these items only apply to Art, and/or also to other media?

In your first suggestion, how would your system handle works produced by a multitude of parties that today create works-for-hire such as a motion picture film? I'm genuinely interested in some deep consideration. Don't merely suggest pushing it into the public domain. Put some serious thought into your answer.

Second point makes sense, however, I tend to favor more of a "unwinding period", say 3 but not extending past 5 years after death before release into the public domain.

Thirdly, are you referring to the "assigned party"? I am a little confused why this is an issue. Can you elaborate on what problem/s this attempts to address?
[ link to this | view in thread ]
An Cow, 22 Aug 2009 @ 8:33am

Re: My proposals for reform of U.S. copyright
Great list!
[ link to this | view in thread ]
Lachlan Hunt (profile), 22 Aug 2009 @ 8:40am

On Balance
Whether you like to admit it or not, regardless of how the copyright law is structured, there are going to be tradeoffs that have to be made, and it is in those tradeoffs that the balance needs to be found.

The founders of copyright in the US knew this, and it seems to be the basis of their limited time monopoly rights structure, so that once the author has had sufficient time to to benefit from the work, it's turned over the the public for everyone to benefit more. Unfortunately, with the current perpetually repeated term extension model being pushed by the lobbyists, any sense of balance has been lost long ago.
[ link to this | view in thread ]
BobinBaltimore (profile), 22 Aug 2009 @ 8:46am

Re: My proposals for reform of U.S. copyright
I'm a fan. Good list.
[ link to this | view in thread ]
..., 22 Aug 2009 @ 8:46am

Re:
Why
Words sometimes have more than one meaning
That is one of the interestig things about a dynamic language
[ link to this | view in thread ]
..., 22 Aug 2009 @ 8:46am

Re:
As a result, I think this suggestion is just an anti-copyrighter's way of trying to put a stick in the wheels of PROFIT

There - fixed that for you
[ link to this | view in thread ]
..., 22 Aug 2009 @ 8:47am

Re:
strawman fail
[ link to this | view in thread ]
..., 22 Aug 2009 @ 8:47am

John
sql injection attempt ?
[ link to this | view in thread ]
Reed, 22 Aug 2009 @ 8:52am

IP is the new religion
Evidence based practice is all the rage nowadays. It is at the heart of all helping professions now and continues to spread into other areas. I for one would love to see an evidence based approach applied to IP law.

It would end people's beliefs being thrust upon society at large. IP theory is very much like a religion. There is no proof, only a belief that it is for the best.

It is a belief that has worked its way into our law system much like the religious extremists of our country continue to chip away at our consitution in regards to seperation of church and state.

It is a no-brainer that evidence should be behind all of our practices. I hope that our public education system is next, as they have been going against evidence on how to teach children for years and continuing the same basic education theory that has existed for hundreds of years.

We know better. We know we can use actual scientific studies to back up our practices and get measurable results. I believe that this would lead to the elimination of IP in general though, but change is good and necessary at times when you find you current practices are not resulting in what you believe they should.
[ link to this | view in thread ]
Anon Cow, 22 Aug 2009 @ 8:53am

Re: IP is the new religion
I hope that our public education system is next, as they have been going against evidence on how to teach children for years and continuing the same basic education theory that has existed for hundreds of years.

That is a great topic for another discussion. Could you imagine schools that allow students to learn at their own pace? Instead of testing into, say a whole grade level, they could take grade-level classes at their own discretion and pace.

What an amazing accomplishment if it could be carried thru. However, anything like that would be a paridigm shift away from the current horizontal structure (8->9->10) to a more college-type learning style.

To accomplish this, it would require a complete re-working of education, and I don't believe Obama, nor the DOE has the right people in place to facilitate that.

Great idea.
[ link to this | view in thread ]
Anonymous Coward, 22 Aug 2009 @ 8:54am

Re:
This is pure FUD. Mike isn't anti-copyright, first of all. Secondly, why should copyright be granted automatically? You cannot honestly tell me most of this corporate pop crap furthers the arts. All we're asking for is proof.
[ link to this | view in thread ]
Richard, 22 Aug 2009 @ 8:55am

Copyright law is not enforceable if copying is cheap
The fundamental flaw of copyright in the modern world is the fact that it was designed for a time when copying machines (printing presses and record presses) were:

1. Expensive

2. Had a significant set up (typesetting/record mastering) cost for each new item that was to be copied.

This meant that you would need to be very wealthy to afford one - and even if you could afford the capital cost of the machine it would not be economic to copy individual books or records for personal use/friends etc.

It followed that such machines could only reasonably be used in ways that were commercial and relatively high volume.

To sell your output you would then need publicity and so enforcement of the law:

1. required no detective work

2. Did not involve large numbers of cases/defendants.

The invention of the photocopy machine and the tape recorder changed that situation. The law at that point became strictly unenforceable and the general public basically ignored it. However at that stage the volume of copying was low because blank tapes cost as much as a record anyway and photocopying a book was time consuming and didn't generate a very usable product.

So, after a few bleatings of "home taping is killing music" and crude attempts at ARM (Analogue Rights Management) the industry learned to live with the situation.

In more recent years the cost of media has plummeted and the internet has provided a cheap many to many distribution medium so now the volume of copying has gone up enormously.

To start enforcing the law now against the general public requires either:

1. A police state that would make the old communist regimes look like liberal democracies.

2.The legally enforced crippling of the technology available to ordinary citizens and businesses.

At present the industry has tried to implement both of these options - but with very limited success. 1 would be (I hope ) politically unacceptable and 2 is likely to fail technically.

Some in the industry have realised this and have embarked on an "education" offensive to try to persuade the public of the immorality of copying. However this is undermined by the fact that given modern technology it is almost impossible to avoid breaking the law in a technical sense because of the way that computer systems make multiple working copies of everything -eg dynamic RAM makes a copy every time it refreshed. Consequently it is difficult to work out exactly what is and isn't allowed.

However this approach basically adds up to the "honest" subsidising the "dishonest" for no real return.

The CWF+RTB alternatives proposed on this site don't really change this equation very much since the major value created by the artist/author is still in the work itself rather than the extras.

The root of this problem is the release first fund afterwards model that is fundamental to copyright - but is also shared by many business models that are based on "free".

The solution is to move to a fund first release afterwards system. That way the funders get a real return for their investment - because they get a measure of control over what is created. Those who pay the piper call the tune and nobody minds that everyone else gets to listen for nothing.
[ link to this | view in thread ]
Richard, 22 Aug 2009 @ 8:55am

Re: Re: Re:
"This is censorship only in the casual, layman's definition of the term. Actual censorship in a legal context (which is what we're talking about here) is when the government itself is involved in punishing speech it doesn't approve of."

Historically however copyright originated as a job creation scheme for redundant censors - so the practical similarities are not surprising.
[ link to this | view in thread ]
bradley Stewart, 22 Aug 2009 @ 8:55am

Tough Problem!
I have thought of this problem in terms of medicine but for some reason I never expanded my thinking beyond this. I am glad the author of this article has expanded my thinking. I wish I had the answer. It is a question that needs an answer. Real progress in a timely period depends on it.
[ link to this | view in thread ]
Anonymous Coward, 22 Aug 2009 @ 8:56am

Re: Copyright law is not enforceable if copying is cheap
"The solution is to move to a fund first release afterwards system. That way the funders get a real return for their investment - because they get a measure of control over what is created. Those who pay the piper call the tune and nobody minds that everyone else gets to listen for nothing."

This sounds too much like a government contract. You give someone money first and then they may or may not perform well. What incentive does anyone have to perform well if they already have the money?
[ link to this | view in thread ]
Anonymous Coward, 22 Aug 2009 @ 8:57am

Re: Re: Copyright law is not enforceable if copying is cheap
Pay first fund next has been around for a while, it's nothing new (ie: No cash on deliveries, or COD's). If it's such a solution I'm sure the "problem" would have been solved by now.
[ link to this | view in thread ]
Anonymous Coward, 22 Aug 2009 @ 8:57am

Re: Re: Re: Re:
http://www.youtube.com/watch?v=08gfh_6sbQI talks about the history of copyright
[ link to this | view in thread ]
Anonymous Coward, 22 Aug 2009 @ 8:58am

Re: Copyright law is not enforceable if copying is cheap
How does one resend their citizenship because they don't agree with, nor wish to be held accountable for the tragedy of the 1976 Copyright Act?

Please, a simple URL would suffice. I'm Swede anyway, and everyone hates Swedes. Damn those fucking Swedes and their genius ideas...

Haha. I would be better utilized in Stockholm anyway. Now, if I could trade my Range Rover clunker in to move to Sweden... Hmmm.
[ link to this | view in thread ]
Anonymous Coward, 22 Aug 2009 @ 8:58am

The only "evidence based" anything I see is that techdirt always takes the weekend off. Noon Friday, Mike checks out and there are no new stories until the weekend.

The evidence is that automation and the imfamous Crystal Ball would allow stories to be staggered over the weekend so that more subjects would get discussed. To many lame ass stories this weekend, including this speculative piece of "professor took the blue pill" thinking.
[ link to this | view in thread ]
Gene Cavanaugh, 22 Aug 2009 @ 9:00am

Copyright
Excellent, Mike - right on!

Gene
[ link to this | view in thread ]
Jon B. (profile), 22 Aug 2009 @ 8:40pm

Huh... well, what's really cool about this site is that come Monday, Mike will be really cool about this, put things back together, explain a little about what happened, and move on without throwing a tantrum like a lot of folks would do. The vulnerability may even be something most people can learn and not some random common SQL injection thing.
[ link to this | view in thread ]
Nate, 22 Aug 2009 @ 8:43pm

Hell, the website doesn't even work. haha
[ link to this | view in thread ]
Anonymous Coward, 22 Aug 2009 @ 8:55pm

I guess they spent a lot less than $100,000,000.
[ link to this | view in thread ]
Anonymous Coward, 22 Aug 2009 @ 9:18pm

Doh
[ link to this | view in thread ]
Nobody, 22 Aug 2009 @ 9:19pm

Hmm...Fuck Server. Is that a new sex toy for the interwebs?
[ link to this | view in thread ]
Matt Tate (profile), 22 Aug 2009 @ 9:23pm

Wow...
This is pretty fail for a hack dude, you might have tried something other than just one crappy post filled with you giggling and spitting all over yourself and your PC (because I'm sure that's how you laugh)
[ link to this | view in thread ]
wvhillbilly (profile), 22 Aug 2009 @ 9:25pm

You've been hacked!
See above, please fix.
[ link to this | view in thread ]
Anonymous Coward, 22 Aug 2009 @ 9:25pm

LAWL
Mr smart hacker can't even place a link on the site that works!!

Way to just plain suck.
[ link to this | view in thread ]
wvhillbilly (profile), 22 Aug 2009 @ 9:26pm

You've been hacked!
See above, please fix.
[ link to this | view in thread ]
Anonymous Coward, 22 Aug 2009 @ 9:28pm

lol ya cuz the url was fake is was made to steal your IP dumbshit
[ link to this | view in thread ]
Anonymous Coward, 22 Aug 2009 @ 9:29pm

Re: LAWL
lol ya cuz the link was made to steal you ip adress dumb shit!
[ link to this | view in thread ]
wvhillbilly (profile), 22 Aug 2009 @ 9:29pm

You've been hacked!
See above, please fix.
[ link to this | view in thread ]
Matt Tate (profile), 22 Aug 2009 @ 9:31pm

Re: Wow...
I can't see the hacked page after commenting, it looks normal now. Anyone else not see it?
[ link to this | view in thread ]
JustAnotherScriptKiddie, 22 Aug 2009 @ 9:32pm

What exactly are you going to do with someone IP address anyway? Like you have some remote chance of gaining access to someones LAN based on their ISP IP address provided via a DHCP server in most cases... You can't do anything with IP information stop trying to act like you are pulling something off we all know you are failing miserably.
[ link to this | view in thread ]
Anonymous Coward, 22 Aug 2009 @ 9:40pm

Why have so many comments on other threads been deleted? In fact, tons of comments have been deleted? I don't understand it.
[ link to this | view in thread ]
LostSailor (profile), 24 Aug 2009 @ 10:34am

What Is Promoting Progress?
People often assume that I'm in favor of just tossing out all copyright law. I'd argue that I'm more agnostic on the subject than anything else. I don't care about "copyright law" per se. I care about what's going to best promote the progress. If someone can show me that copyright actually can do that, I'm willing to understand how. But if we can't present the evidence of how, or actually defend what good copyright does, the I'm left wondering why it's there at all.

The Constitution give Congress the power to "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

When this clause is quoted around here, the "why" of copyright (to promote progress) is usually cited, leaving off the "how" (exclusive rights).

In other words, to encourage people to create, whether it be art or science, the law provides incentive: the right to control the creative expression and usually use that creative expression for financial reward.

Would people still create content, processes, inventions in the absence of copyright? Sure. Would they do so to the same extent? Maybe, but maybe not.

Why would someone bother laboring over a film, a novel, an invention if they knew from experience that a large, wealthy, rapacious corporation would sweep in, copy the work and exploit it without recompense to the creator? Some would, but many would be discouraged and some measure of creativity would be lost.

I can hear the counter-argument that creators just need to come up with better business plans to thwart those evil corporations, but this isn't just a matter of competing better.

The progress of art and science is a public benefit, but not an unfettered public benefit. Copyright (and patent) has always been a balance between pure public benefit and protected rights as incentive to create. I'd agree that the balance has gone too far toward protecting exclusive rights, but the public progress of art and science still occurs, and at a rather rapid pace.

There might be marginally more "creativity" and innovation without copyright, but there might also be a loss of creativity and innovation without the financial incentives provided by IP rights. How much of either is speculative, but if you claim one you have to at least acknowledge the other.

Which is why in my comments here I've often urged copyright reform rather than abolition (which is politically unlikely anyway). Balance is indeed important.

Evidence-based copyright law is likely unworkable. How are you going to measure progress or the inhibition of progress? If one can point out a single instance were "progress" was inhibited, do you throw out the law or just rescind copyright protection in that specific instance? "Evidence-based" copyright law would likely promote litigation and eventually would be tantamount to no law at all.
[ link to this | view in thread ]
Richard, 24 Aug 2009 @ 11:48am

Re: Re: Copyright law is not enforceable if copying is cheap
You don't - you have to take the risk - but no-one can continue being funded this way for long if they don't deliver.

Let me list some people/things/organisations that are/were funded this way. Some were/are government contracts others are/were private You can decide whether they are good (in no particular order)

Prof Stephen Hawking
The BBC
NASA
DARPA-> The Internet
CERN->Tim Berners Lee-> the Web
Any live concert/show you ever went to
Your Education
Beethoven

And of course record companies work that way in their negotiations with artists, so do publishers with authors. This is really just about cutting out the middle man.
[ link to this | view in thread ]
Reed, 24 Aug 2009 @ 2:42pm

Re: What Is Promoting Progress?
"Evidence-based copyright law is likely unworkable. "

So we should stick with "faith based" IP law?

Listen, if you can't prove a law is effective then you shouldn't be advocating for it IMHO.
[ link to this | view in thread ]
Andrew D. Todd, 25 Aug 2009 @ 4:24am

So Buy Out the Copyrights.
If you throw a single piece of meat into a pen of hungry dogs, there will be a really splendid dogfight. Very well, let's do something like that, let's try to exploit the divergent interests within the copyright industries. We start from the point that most of the things the copyright industries make their money on are not actually protected by copyright in an effectual way. If we can legally take out most of their market, we can afford to buy up the remaining copyrights when it is all over.

Let's break copyright down into categories. The first category is software. Software copyrights are largely a moot point. Does anyone really care when the copyright of Windows 3.0 expires? The interfaces have long since been cloned by WINE. The fighting is mostly about patents now, not copyrights.

Books are a different proposition. Governments traditionally fund both public libraries and academic research libraries. There are large classes of books whose authors and publishers make most of their money from the library market. You can usually buy a library card at a state university library for fifty dollars, even if you are not enrolled, and of course public library cards are free. As long as you are willing to drive to the books, rather than having the books come to you over the internet, there is still a quite workable system. The problem is that this system has not translated over to the internet.

Very well, governments can perfectly well buy up copyrights and place them in the public domain, or they can buy Creative Commons licenses, which comes to much the same thing. They can do wholesale what they have been doing retail. In the case of an old book, the government might have to pay a thousand dollars per copyright, just to pay for the legal expenses of establishing that the seller actually owns the copyright. Granted, the sums involved would work out to billions of dollars in total, but that would still be small compared to the cost of running the educational system. The universities would play the leading role, of course. They might find the money by temporarily cutting back on library purchases. That will give publishers a sense of urgency about finding things which they can sell the copyrights of. No doubt the publishers will wind up paying people in India to root through their old files, do searches to find next of kin, locate wills, etc. However, that is the publishers' problem. Additional money can be raised by instituting maintenance fees for new copyrights issued after a specified date, similar to those for patents.

One has to speak of textbooks, which constitute a major share of the publishers' revenues. Particular textbooks do not have anything much in the way of unique content which competing textbooks do not have. What guarantees the market for textbooks is their compatibility with other copies of the same edition, as used in courses. Before the internet, someone who merely wanted to study by himself could simply buy an older edition of the textbook in a thrift shop, but of course there were difficulties in assembling enough copies of old editions for an entire class. Now, of course, there are open-source textbooks. As these gain traction, there will be nothing much the commercial publishers can do about it. This will put the publishers under increasing pressure to find something they can sell-- such as old copyrights.

Most copyrights over twenty years old are effectively worthless. If a book is both out-of-print and rare, it generates no revenue at all, obviously. The next step up are books which are out-of-print but common, or in-print and common, but not adopted as textbooks in the schools. In these cases, the internet used book market can supply copies for a lower cost than putting out a new edition. Given an efficient market in used books, only a handful of books are lucrative enough for the copyright to be worth a thousand dollars after twenty years.

The internet used book market can be made more efficient, driving prices down, and diminishing the worth of copyright. For example, E-bay has introduced a feature under which people can sell mixed parcels of books, more or less on the same subject, or more or less by the same author, with only one shipping, handling, and auction charge per parcel, so the effective price can be on the order of fifty cents or a dollar per book, inclusive of shipping. Amazon should be encouraged to copy this feature, possibly in somewhat modified form. E-bay's great weakness is its insistence on auction. Amazon takes the view that the seller is a professional used bookseller; that he is expected to know approximately what goods are worth; and that he takes his occasional losses and averages them out with his profits. Life is generally simpler if you are dealing with professionals. In respect of bundles of books, a professional used bookseller could reasonably be expected to collect a thousand book and sort them out into a hundred parcels of ten books each, and no doubt this will be the standard Amazon enforces.

The result will be that, without any change in the law, the effective incidence of extended copyright in books will decrease. The copyright industries do not consume an undue portion of national income. The problem is that they produce market distortions. We can afford to buy them out for a lump sum, and that will make the market distortions go away. Carrot-and-stick tactics work best on the book-publishing industry, because so much of its income comes from the government-funded educational establishment. However, such tactics can probably be applied to the recording industry as well. At this point, no one listens to Gene Krupa or Tommy Dorsey, the pop favorites of the 1940's. As against that, there are lots of Indie musicians. The actual production of recorded music is no longer concentrated or monopolized. The scarcity is not so much music as celebrity, the latter produced by the studio promotion system. From the recording industry's point of view, the only musicians who matter are the handful whom they actively promote. File sharing, as an economic threat to the recording industry, is mostly about sharing copies of maybe a couple of hundred different albums. Selling off all the other copyrights, which do not have celebrity, might come to seem financially attractive, especially as the record business continues to shrink.

The copyrights would be bought by reverse auction. Within equivalent classes of material, whoever offered to sell for the lowest price, taking account of factors such as previous sales, sales within the last ten years, size of work, age, etc., would turn in his copyright and get the money. No one would be forced to sell, or even to bid. As stated, it would be the burden of the prospective seller to locate evidence of his good title. Once copyrights were bought, the works in question would be posted on a variety of official websites (Library of Congress, various state universities, etc.). Fixed sums would be allocated annually for purchase of copyrights, and as all the cheaper books were bought in, the rates paid would gradually increase.

This leaves only one major copyright industry. The movie industry is different. It still controls its product in a way which none of the other copyright industries do. Making movies is still a form of industry, what with the sound stages and the special effects, and whatnot. Even here, leaks may develop. When one studio sells off its copyrights to the government, it doesn't have to share the money with the other studios, but the downside, the diminution of monopoly, is shared.
[ link to this | view in thread ]
LostSailor (profile), 25 Aug 2009 @ 8:27am

Re: Re: What Is Promoting Progress?
So we should stick with "faith based" IP law?

Listen, if you can't prove a law is effective then you shouldn't be advocating for it IMHO.

There is nothing "faith-based" about copyright law and there is plenty of evidence that it is effective...depending on what you expect it to do. Which is why the defining what is meant by "promoting progress" is important.

Mike's question was whether evidence-based copyright law could ever be put in place. And that depends on what you want the evidence to show.

Ultimately, though, it's kind of a meaningless concept. Laws are judged, though perhaps not frequently enough, on whether they are achieving an intended outcome. For example, laws on sentencing for possession of crack cocaine versus powder cocaine are being "reviewed" in that there is an on-going discussion about whether the harsher penalties for crack should be brought in line with the penalties for powder coke.

I take from Mike's post that he has something more concrete in mind, but I have no idea how that could be implemented.
[ link to this | view in thread ]
Reed, 25 Aug 2009 @ 6:32pm

I have faith your right!
"There is nothing "faith-based" about copyright law and there is plenty of evidence that it is effective...depending on what you expect it to do. Which is why the defining what is meant by "promoting progress" is important."

If you have proof the let's see. I have yet to see a single shred of evidence that copyright law does anything useful for society.

You speak about crack cocaine, but it is not a very good example. A better example would be mandatory minimums that were pushed through on the ticket they would decrease crime in the 80's. The only problem is that longer sentences do not decrease crime. Instead we have imprisoned more people per capita than anywhere else in the world.

IP law is very similar. A few rich claims makers (not prison owners in this instance) claim that somehow society benefits from their new "laws". Without proof or without any sort of independent review we pass these misguided laws to protect the pocket books of industry on the principle that these laws have been seriously reviewed and are just.

I don't know what your definition of faith is but clearly your logic has failed you. If you cannot produce a independent study that can prove any aspect of IP law is actually effective then you must have a great deal of faith that you are right.

As far as what the evidence should show. Well that they actually protected their profits for one. That the laws actually help to promote creativity for two. That the laws are beneficial to society at large which is the general reason we allow laws to be passed in the first place for three.

I would shudder if someone like you were in the medical profession. Without proof you have nothing but your faith. Unfortunately the placebo effect will only carry you only so far :)
[ link to this | view in thread ]
LostSailor (profile), 26 Aug 2009 @ 10:30am

Re: I have faith your right!
The clearest evidence that copyright promotes progress and creativity is that we've had copyright since the founding of the republic, and have also become the most creative and inventive (and innovative) country on the planet.

It's not just the profits of large corporations that are protected, but those of authors, artists, etc. It also protects the jobs of millions who work in industries that produce protected content. Society still benefits hugely from this creativity, even with copyright.

IP utopians seem to think that the benefit to society always trumps a benefit to an individual (or even a corporate) creator, author, or artist. Society doesn't have a right to the fruits of my physical labor, but somehow has a free right to the fruits of my intellectual labor?

Copyright is intended to balance rights of the individual and society.

If you think soulless corporations are bad now, I doubt you'll like them better when they can freely appropriate unprotected content at will.

I would shudder is someone like you were in government. Without regard for individual rights you have nothing but your tyranny. :)
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2009 @ 11:34pm

Re: Re:
Inability to use "reply" correctly fail.
[ link to this | view in thread ]
Renee Marie Jones, 17 Apr 2011 @ 12:43pm

Re: Re: I have faith your right!
"... we've had copyright since the founding of the republic, and have also become the most creative and inventive (and innovative) country on the planet."

Say What?

1)

US copyright law under the constitution only allowed 14 year protection, with an option of one 14 year extension. Furthermore, only books, maps and charts were protected, and only if the author followed correct formalities.

Compare that with the current law which makes copyright effectively eternal (congress always extends before any work enters the public domain) and every napkin doodle is automatically copyrighted.

2)

There is no empirical definition of "creative and inventive (and innovative)" that makes the US the "most creative ..." country on the planet.

We could get a man on the moon without the help of German scientists.

You are so brainwashed that it's useless to go on.
[ link to this | view in thread ]