The Cycle Of Copyright: Originally A Tool For Censorship, Attempted As A Tool For Incentives... Back To A Tool For Censorship
from the the-inevitable-return dept
If you want to understand copyright law, its history, and how it's been abused, you really ought to read this excellent overview by law professor and practicing intellectual property attorney, Lydia Pallas Loren, called The Purpose of Copyright (found via Teleread). The article kicks off with a point that we've made over and over again here, that many people incorrectly believe the purpose of copyright law is to protect creators. Unfortunately, this false belief permeates many in society -- including copyright lawyers:Copyright permeates our lives and yet, despite its impact on our lives, relatively few people, including lawyers, have sufficient knowledge or understanding of what copyright is. And far too many people, including lawyers, have major misconceptions concerning copyright. These misconceptions are causing a dangerous shift in copyright protection, a shift that threatens the advancement of knowledge and learning in this country. This shift that we are experiencing in copyright law reflects a move away from viewing copyright as a monopoly that the public is willing to tolerate in order to encourage innovation and creation of new works to viewing copyright as a significant asset to this country's economy. The most recent example of this shift is the new Digital Millennium Copyright Act, sign by the President on October 28, 1998.From there, the article digs deep into the history of copyright, from well before The Statute of Anne, back to a time when copyright was a private agreement among publishers, designed to retain monopolies, act as censors and generally control the publishing market. It certainly wasn't about protecting creators, who had nothing to do with it. From the beginning it was about middlemen and monopolies. What's unfortunate is that our founding fathers, who were so well versed in the problems of monopolies and the harm they cause, still seemed to believe that a limited version of such monopolies might encourage greater learning and education in the field of science. In fact, they specifically added the clause "to promote the progress," to make it clear to Congress that these monopolies were only to be used if they met that goal:
Understanding the root cause and the dangers of this shift requires exposing the most fundamental and most common misconception concerning the underlying purpose of the monopoly granted by our copyright law. The primary purpose of copyright is not, as many people believe, to protect authors against those who would steal the fruits of their labor. However, this misconception, repeated so often that it has become accepted among the public as true, poses serious dangers to the core purpose that copyright law is designed to serve.
The framers of the United States Constitution, suspicious of all monopolies to begin with, knew the history of the copyright as a tool of censorship and press control. They wanted to assure that copyright was not used as a means of oppression and censorship in the United States. They therefore expressly provided for the purpose of copyright: to promote the progress of knowledge and learning.While the courts and Congress initially took safeguarding that point of copyright law seriously, it eventually changed. Early on, however, Congress and the courts actually did focus on whether or not the overall public benefited or was harmed by aspects of copyright law. However, before too long, the whole concept of copyright law was bastardized into having nothing to do with the public benefiting, and only being about copyright holders (once again, often the middlemen) benefiting at the expense of the greater public. In other words, it's come full circle back to what it once was: a tool for middlemen to limit and censor expression.
Modern-day copyright harbors a dark side. The misunderstanding held by many who believe that the primary purpose of copyright law is to protect authors against those who would pilfer the author's work threatens to upset the delicate equilibrium in copyright law. This misunderstanding obviously works to the benefit of the content owning industries, such as the publishing industry, the music and motion picture industries, and the computer software industry. This fundamental misunderstanding is perpetuated by the stern FBI warnings at the beginning of video tapes, by overly broad assertions of the rights in the copyright notices, and by the general lack of public discourse about the balance required in copyright law if copyright is to fulfill its constitutionally mandated goal of promoting knowledge and learning.These are only a few small snippets, but it's an excellent read. Many of you may already be up on these points, but whether you've read similar things before or not, I highly recommend this article.
This dark side, this pervasive misconception, is turning copyright into what our founding fathers tried to guard against - a tool for censorship and monopolistic oppression. This may sound extreme to some, but consider the beginnings of copyright in this country. The first Copyright Act in the United States granted only the exclusive right only to print, publish, and vend a copyrighted work, and it lasted for only fourteen years, with the possibility of a second fourteen-year term. No exclusive rights to perform the work or to create an adaptation of the work were granted, only the right to print, publish, and vend for, at most, twenty-eight years.
Under current copyright law, not only do copyright owners have the right to publish and distribute the work, but copyright owners also have the right to control the public performance of a work, to control the making of adaptations of the work, and to control the reproduction of the work independent of what is done with that new copy. And, as a result of the Copyright Term Extension Act passed in October, 1998, now the basic term of copyright lasts for the life of the author plus seventy years. This new term is a far cry from the original maximum term of twenty-eight years, and results in a much larger monopoly and a much longer time that the public must wait for any given work to enter the public domain.
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Every time I read something along these lines, I have to wonder: how can one diffuse the "copyright is for the artists" lie? Sure, we can go into long-winded discourse about the history of copyright, or we can point to examples of artists making money despite a lack of government-granted monopolies, but most people don't have the patience or intelligence to listen to such things.
There *must* be a shorter, easier to grasp argument that even brain-dead politicians can understand, right?
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It's called campaign contributions and votes. That's all they grasp.
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Unfortunately for him, property has a legal construct, and it is this construct against which he rails. His views notwithstanding, historical and contemporary judicial precedent largely reject his position.
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It's only the granted monopolies that are unnatural.
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Censorship
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Re: Censorship
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Because it's all about protecting the rights of the artists. Or something.
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Re: Censorship
During your employment your employer gains the benefit and ownership of materials you develop while in their employ, unless you have a work contract that states otherwise (i.e. you are not developing software for them, you are doing it for yourself and licensing its use to them). So, they paid you for work and they own your products when you leave.
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Another confusion of copyright with progress
The Framers had qualms about granting copyright certainly, but this grant was wholly independent of the progress clause.
The Statute of Anne also had nothing to do with encouraging learning except as a pretext.
The endlessly re-iterated argument that copyright was enacted to promote progress or benefit the public misses the fundamental issue. It is not the motive behind copyright people should be concerned about (the regulation and enrichment of the press), but the ethics of granting the privilege at all - and consequently the ethics of leaving the privilege on the statute books.
Suing kids for sharing music is unethical whether it's less than 14 years after publication or 140.
Lydia Pallas Loren, you're just consolidating the canon, and doing humanity a disservice.
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Re: Another confusion of copyright with progress
Though I agree with the sentiment, on what grounds do you base your unethical comment? Those who feel their ''rights'' have been infringed will likely not agree, so what is your justification for that?
If you deny the historical purpose of copyright or say it isn't relevant, than you've already dismissed out of hand your detractors. This doesn't give your stand much weight amongst those who you need to sway (since they currently hold the powers).
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Re: Re: Another confusion of copyright with progress
Bear in mind that copyright is not a right, but a privilege - the grant of a reproduction monopoly for the benefit of the press. The right to copy is annulled in the majority (from their liberty) in order to reserve it to the few (holder & assigns).
One cannot compromise one's argument to help sway detractors, just as one cannot temper an argument that the Earth orbits the Sun to avoid offending the church.
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Re: Re: Another confusion of copyright with progress
In 1800 it didn't matter than much who could copy (print) and who couldn't, as it was rarely something private individuals could do. With the advent of the internet and insane performance laws, it has become quite noticeable that these laws limit our freedom to use our computers/mp3 players/DVDRs or to even sing in public, so people are questioning whether these laws are worth the tradeoff.
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Re: Re: Another confusion of copyright with progress
We have fundamental rights to autonomy of our minds and bodies, and we have fundamental rights to freedom of expression. These are very standard principles of liberty from Mill, and a fundamental notion of liberal democracies.
Copyright directly violates those basic rights of liberty.
And the 'right's of copyright have no necessity, and are not grounded in any 'brute facts' of reality. It is entirely possible to pay someone for their work without paying for copying. And abstract objects are infinite.
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Re: Another confusion of copyright with progress
Could you provide some information that supports this statement? To me, the "promote the progress" seems very clear and unambiguous. You're saying that they didn't add this clause in to ensure that people understood the fundamental purpose of copyright wasn't to protect artists? Why?
but the ethics of granting the privilege at all - and consequently the ethics of leaving the privilege on the statute books.
Also, just to clarify, you think that Loren is a "misguided soul" not because she is critical of what copyright has become, but that she doesn't go far enough i.e. propose the elimination of copyright? It just seems weird that you start off with an attack of her, but you actually agree with her on what the problem is, but disagree on what the solution is.
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Re: Re: Another confusion of copyright with progress
The clause is about securing the individual's natural exclusive right to their intellectual work, not about the grant of any monopoly.
People who believe copyright is Constitutional are misguided - by a publishing industry extremely interested in people remaining so misguided.
To transfer the stated purpose of the progress clause to the purpose of copyright transforms it into a pretext, just as much as Queen Anne's intent to encourage learning was a pretext (to enrich a consequently beholden and obedient Stationers' Guild).
If publishing corporations' lawyers keep on stating that the purpose of copyright is to progress science and the useful arts, they engender the inference in the populace that copyright is the 'exclusive right' mentioned in the Constitution. This is further compounded when the same lawyers refer to copyright as "a legally granted right to exclude others from making copies" and contract it to "exclusive right" for short.
The solution to copyright is its abolition. Being a derogation of individual liberty it should have been abolished along with slavery.
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Are we building a false economy?
Seems like it is time we learn to quite beating the IP drum and figure out how to add value to "free".
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Reprint?
"This fundamental misunderstanding is perpetuated by the stern FBI warnings at the beginning of video tapes"
"The most recent example of this shift is the new Digital Millennium Copyright Act, sign by the President on October 28, 1998."
This makes me wonder if the article is a reprint or something she's had laying around for years. The copyright notice says 2011, but come on...video tapes? And "the President"? You mean the president as of 12 years ago? After a quick skim of her article, I don't see any reference after 1998. Not a huge deal, but it just struck me as kind of odd.
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Re: Reprint?
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Old article
Nice to see it's getting attention, but why now?
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Re: Old article
Have you read it?
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It does, however, sort of cannonball your claim that the Constitution's "copyright clause" was about natural rights.
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"is the emergence of two parallel streams of creative work: the proprietary stream, and the free stream. Every day, more people join the free stream, of their own volition, for all sorts of reasons"
1) Slowly the profits behind being a distributor-middle man will tank. We are already seeing this in Newspapers, Music, and to some extent Video.
2) The average person will walk away from the legal, levels of ownership and rights, and financials burdens associated with copyright. Historically simple, hastle free, and free always win.
3) Free and will win out making the current copyright owners gate keepers of the "old stuff" making them more and more irrelevant as time passes.
4) When the copyright holders run out of money, copyright will finally return to something that will benefit and not burden humanity.
In order to maintain profits, you will see the content owners trying to charge for everything in an ever expanding rats nest of rules, rights, payments, and entitlements. Eventually this system they are heading towards will collapse in on itself. I give it 15 years total.
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Nah. Copyright!=censorship
If anything, the crazy, P2P-network-grade ideal of making all information free is closer to censorship. If you don't like the idea that making free copies is "theft", how about the idea that free copies censor the artists by putting them out of business? If a film maker can't recover the production costs, the film maker can't make a film. Sounds like a cute way to shut down someone from making a future. Sure, sharing helps the artist get plenty of eyeballs for film A, but it effectively prevents the artist from making films B, C, D etc. Pretty ironic, heh.
But you guys are just grasping for any sophistic argument to justify taking without paying, for gaining all of the advantages of someone else's work without contributing to the development costs. You're all just a bunch of leeches. I'm looking forward to your brilliant sophistry about how this isn't censorship.
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Re: Nah. Copyright!=censorship
It's not censorship when I stop you from repeating my work verbatim.
Well, actually it is. TechDirt has provided examples in the past of people who were critiquing a something (books, movies, songs) and included a snippet of that something, only to be sent a nastygram by a lawyer. Preventing people from copying your entire work verbatim isn't cencorship. Preventing people from excerpting your work using copyright as a pretense because you don't like what they say is most definatelly censorship.
If a film maker can't recover the production costs, the film maker can't make a film.
As has been pointed out many times on TechDirt, just because an artist can't make money in one business model, doesn't mean there aren't other models where they can make money.
But you guys are just grasping for any sophistic argument to justify taking without paying, for gaining all of the advantages of someone else's work without contributing to the development costs.
Please cite one instance where a TechDirt author promotes illegal copyright infringement. You won't find it. What you will find is an acknowledgement that in spite of copyright infringement being illegal, it's a reality that has to be dealt with if you wish to continue to make money as an artist today. No sophistry or justification; just an acknowledgement of reality.
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Re: Re: Nah. Copyright!=censorship
Offering tacit approval is the same thing as supporting it. Imagine if I said, "Look girls, rape is a reality. It happens. We don't like it, but we have to live with it. So we're not going to prosecute it or do anything to in any way make those rapists feel bad about themselves. You've got to find alternate strategies for protecting your goods if you want to continue to be a woman today."
Sheesh.
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What it's really like is saying: "In an ideal world, there would be no rape or mugging - and we have police to help reduce this. Since we can't stop it altogether though, please be sensible and take care in how you display money or goods, or where you walk late at night."
In other words, take into consideration the unfortunate realities of life.
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I would actually like to build a better world, not retreat into a fortress. But your plan is to force the content producers into walled gardens. Good job. Way to kill the web.
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Hi BOB!! ... everybody drink!
"If you don't like the idea that making free copies is "theft""
Legally the correct word is not "theft" but "infringement".
"If a film maker can't recover the production costs, the film maker can't make a film."
Technology is reducing the cost to make Films. You can buy a 1080p hd camera for around 100 dollars. Video editting is a laptop and some "Free" software. CGI is getting to the point where it costs nothing but your time and some processing power. Virtual sets are easy to do.
The solution here is to become more efficient. To not pad budgets or allow people to use accounting to remove any chance of profitability. It actually sound like you have been on the shitty end of some style hollywood accounting.
"Sounds like a cute way to shut down someone from making a future."
Only the movie studios with their 200 million dollar movies. ;)
"But you guys are just grasping for any sophistic argument to justify taking without paying, for gaining all of the advantages of someone else's work without contributing to the development costs."
Wrong blog, try one discussing bit torrent and downloading.
Here we discuss copyright, efficiencies, the internet, the law, and on rare occasions feed Trolls some leftovers.
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Re: Nah. Copyright!=censorship
You sound like someone who thinks that "artists" have the "right to profit" from their work. Actually, "artists", and anyone else for that matter, have the "right to *attempt* to profit". If what you are doing isn't making the profit you wish, try it a different way, or try another line of work. Over half of new businesses go bankrupt in the first couple of years, why should "artists" be any different?
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As for the article, it is by no means a scholarly treatment of the subject simply because of the nature of the publication in which it appears. Thus, to elevate it to a status of almost being a definitive work is an oversimplification. Moreover, some of the statements made in the article are just plain wrong.
Merely by way of example, the article states that the original purpose underlying US copyright solely for the benefit of the public and not for the benefit of the author. I submit the correct answer is both. One need only look at the original copyright act and the subject matter to which copyright pertained to quickly realize that the reward for one's labors applied to at least the first two classes of work that were eligible for protection.
I do not agree that copyright has strayed from its roots in a very general sense. I do agree, however, that the extension of subject matter eligible for protection and the extension of copyright terms does point the law in a direction that would give the drafters of the Constitution great pause for concern.
As for all the talk about monopolies, yes, they were a matter of great concern. However, through it all even Jefferson continued to defer the the limited exception pertaining to works of authorship and inventions. While I do not have a citation from whence it emanates, following the dabate concerning the Bill of Rights Jefferson was quoted as saying he was disappointed that the BoR was not all that he had hoped for. One of the provisions he lamented that was not included was to the effect "Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding -- years, but for no longer term, and no other purpose." While he certainly did have in mind a constitutional term limit, it cannot be said that he was categorically opposed to all monopolies.
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It was in so much that by incentivizing artists with copyrights the public was benefited with new works. The intended end was the latter. The former was the means.
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The correct answer is neither. Copyright is a method to enable a business model where the publishers, not the authors, can dictate how works are copied and distributed (and cited by reviewers as well). Authors don't need copyright and they never did. Mr. Fitch is correct, copyright is censorship.
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Pirate Party (Sweden)
http://www.youtube.com/watch?v=OPEO-u_c0t0
This will also mention the history of copyright.
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WOw
www.privacy.shop.tc
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Copyright now stifles progress.
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Throughout history, as civilizations have been built and eventually collapse and/ or go through periods of war and conflict, libraries tend to get destroyed: some examples are the Library of Alexandria in Egypt over 2000 years ago, the burning of Mayan books during the Spanish conquest, and more recently the destruction of the Iraq National Library and Archive in the Iraq War to name a few. Because it is now viable to convert everything to digital, and because searching for, copying, and storing files virtually costs nothing, we have a supreme opportunity to make our academic/artistic/educational/cultural heritage extremely resilient and available to potentially everyone.
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