Would Shakespeare Have Survived Today's Copyright Laws?

from the seems-like-a-better-question dept

Tue, Feb 15th 2011 12:42pm — Mike Masnick

Last year, when author Scott Turow (whose books I actually liked very much) took over as head of the Authors Guild, we noted that his obsession with "piracy" was misplaced, and probably not in the best interests of the authors he represented. We also posted a compelling response to Turow. Rather than take the time to understand the arguments and the data on this subject, it appears that Turow and the Authors Guild are doubling down on the "but... but... piracy!" argument, along with a good heaping of "the government must do something!"

Turow, along with Authors Guild executive director Paul Aiken and Authors Guild board member (and apparent Shakespeare expert) James Shapiro, have an op-ed piece in the NY Times that a whole bunch of you have been sending in, in which they assert that Shakespeare might not have been able to survive the web era, because of all of this "piracy." The argument is quite a bit stretched, but see if you can follow me: because playwrights had physical scarcity, in that they could keep people out of the playhouses unless people paid to enter, it allowed playwrighting to flourish. They call this a "cultural paywall." Then there's some sort of bizarre leap about how copyright is really the same thing. It's not. And, then it leaps to something about how stricter copyright laws are, ipso facto, better. The evidence for this? Shhhh, don't bother the Authors Guild bosses with logic! And, of course, the inevitable punchline is the idea that Shakespeare wouldn't have survived in this online era with all this piracy and stuff.

Of course, it's difficult to think of a worse example than Shakespeare for this argument (and sort of bizarre that Shapiro would sign off on an op-ed that so thoroughly misrepresents Shakespeare). Of course, as most of you know, an awful lot of Shakespeare's works are copies (sometimes directly) of earlier works. Sometimes they're derivative, but other times, he copied wholesale from others. So the bigger question might not be if Shakespeare could survive all the file sharing going on today, but whether or not he'd be able to produce any of his classic works, since they'd all be tied up in lawsuits over copyright infringement.

Furthermore, the reason Shakespeare was able to make money by selling tickets was because seats in a theater are a real scarcity, and selling real -- not artificial -- scarcities is still a damn good business model today. Shakespeare could still make a killing on Broadway. Or he could go into the movie business and sell tickets to seats in theaters. There are plenty of real scarcities he could focus on. Jumping from real scarcities to artificial scarcities such as copyright, suggests that Turow and the others at the Authors Guild still don't even quite understand what they're arguing for.

Separately, it's disheartening to see Turow -- who really should be seeking out actual evidence -- dismiss anyone who has that evidence by writing them off as "a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress." First of all, it's not just "a handful," and these folks aren't just coming up with "counterintuitive theories," they're often looking at what the actual data says -- something Turow apparently refuses to do.

Paul Friedman, who isn't just a law professor, but also has a long history practicing law, has a nice response to Turow in which he cites the always entertaining Judge Alex Kozinski in warning folks of the dangers of overly fetishizing stronger intellectual property laws as something that must be good. What makes it even more amusing is that Kozinski uses Turow's most famous book to make his point.

That said, a growing percentage of the population is realizing that this obsession with "stronger copyrights must be good" makes less and less sense. And as the Authors Guild continues to have out-of-touch, fact-challenged people lead it, it's only going to serve to drive younger authors away from the Guild. Smart authors today recognize the maxim that obscurity is a much bigger threat than piracy, and many have come to figure out that piracy is nothing to fear if you have a smart business model.

If Turow and the Authors Guild really wanted to help authors, they'd focus on helping them understand new business models, rather than supporting ever more draconian laws that will do nothing to help and plenty to hurt.

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Filed Under: copyright, internet, james shapiro, paul aiken, paywalls, scott turow, shakespeare
Companies: authors guild

61 Comments

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Anonymous Coward, 15 Feb 2011 @ 12:53pm

Here is the problem: Shakespeare lived in a different time and operated under difference circumstances. Being the smart man he was, he would likely change his methods based on the time he was living in.

More than likely, he would be a Hollywood script writer pulling in 7 figures and living it up.

Even trying to make a comparison is weak, smacking mostly of desperation to try to prove copyright is bad. More Masnick Effect, ignoring very basic things that make your data and concepts fairly irrelevant in this case.
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Anonymous Coward, 15 Feb 2011 @ 12:58pm

Re:
He would still be a playwright. He would write plays. He's far too creative for Hollywood.
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Anonymous Coward, 15 Feb 2011 @ 12:58pm

Counterinutitive?
Exactly how is the assertion that restricting free expression impedes creativity counterintuitive?

What colour is the sky in this guy's world, in which restricting creativity doesn't result in less creativity?
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Thomas Jones, 15 Feb 2011 @ 1:05pm

Would Johannes Brahms have survived?
Would Johannes Brahms have survived today�s copyright laws as it pertains to music sampling? Evidence:
Variations on a theme by Handel
Variations on a theme by Haydn
etc...

He took other composers work and built off of it. By sampling their melodies he stole from them. This sort of activity should be frowned upon!
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cc (profile), 15 Feb 2011 @ 1:05pm

Re:
TAM, I think you're so desperate find something to accuse Mike of that you're forgetting to actually read TFA. Mike didn't make the comparison, the NY Times did.
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:Lobo Santo (profile), 15 Feb 2011 @ 1:11pm

Re: Re:
Sssh!! Maybe if we give him enough rope...
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Anonymous Coward, 15 Feb 2011 @ 1:15pm

Why do they blather on about making stricter law, when the one we have is pretty harsh yet ineffective, like it won't ever apply to them?

I mean the second Turow or another author gets caught up in the teeth of an infringement case, how long will it take for them to cry about how their rights have been impinged upon?

The extensions to copyright, that were begged and bought, are already a burden to them with all this policing and costs of filing suits and IP tripwires laid everywhere and it's all soooo overwhelming...

They broke the deal with society to release works into the public domain after a LIMITED stretch of exclusive rights. What goes on today is merely resetting the scale in a very organic and human way - people share culture, artificially bestowed rights notwithstanding. No one can stop that, nor should they try. Nor should they WANT to.

Careful what you wish for, you might get it and wish you'd wished more wisely.
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Josh in CharlotteNC (profile), 15 Feb 2011 @ 1:16pm

Re:
Here is the problem: Shakespeare lived in a different time and operated under difference circumstances. Being the smart man he was, he would likely change his methods based on the time he was living in.

So, you're saying that those who don't adapt to different circumstances and change their business models are not smart?

I can think of a few organizations (RIAA, MPAA) who haven't yet adapted to new circumstances (the Internet).
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Rob Bodine (profile), 15 Feb 2011 @ 1:17pm

Bad Comparisons
In light of the Eldred decision, commentators like the author here have cried "Uncle!" regarding the term of copyright. (Really, what else can they do?) So now they're trying to dilute copyright in order to counter the negative effect of excessive copyright terms. If successful (and to an extent it has been), the result will be a tangled web of stupidity rather than a properly balanced copyright system. It's hard for me to criticize the author when this is the only choice the legal system has given us. Hopefully, one day other countries will readjust the way they handle copyright, and practical considerations will force us to go along with treaties containing those readjustments. I'd rather we make the fixes ourselves, but we have a stubborn political system, and special interests are all over this issue. I don't expect the fixes to be initiated internally in the USA.
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Rich, 15 Feb 2011 @ 1:20pm

Re: Would Johannes Brahms have survived?
I think that is how all art works. New artists copy and imitate other artists that they like, and then start to form their own style that is fused with all their influences. Copyright gets in the way of that. NO ONE creates anything that is wholly original. Everything created today is inspired by the past.
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Rich, 15 Feb 2011 @ 1:25pm

Re:
That was very well said!
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:Lobo Santo (profile), 15 Feb 2011 @ 1:31pm

Re: Re: Would Johannes Brahms have survived?
I think, at the moment, there's no copyright on nature. Thus, if all of your formative influences are from nature you're at least not copying anything which is copyrighted.

;-P
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Rich, 15 Feb 2011 @ 1:33pm

Re: Re: Re: Would Johannes Brahms have survived?
Sure, for those living in a vacuum. :)
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Tom (profile), 15 Feb 2011 @ 1:49pm

Not the best example
When I read the headline for this post, I immediately wondered if it would be about whether Shakespeare would have been able to thrive in a world with today's copyright laws because he so prolifically "borrowed" from other writers. Imagine my surprise that he was actually being used as an example to support copyright.

If today's copyright laws had been in place during his day, he would have been sued by the copyright holders for works by Chaucer, Boccaccio and plenty of other prior writers (many of whom would themselves have been sued for borrowing from other prior works).

I am all for healthy debate on the merits of copyright, but then you would need to look at an example like Shakespeare and examine how he might have benefited from copyright and also how he would have been harmed, not just cherry-pick one aspect that fits your argument and call it a day.
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Anonymous Coward, 15 Feb 2011 @ 1:50pm

Re: Re:
Oooo! Nice slam. Meaningless, but a nice slam.

No, the only point is that you cannot go back 500 years and try to find some little point in history to use as a re-write for modern times. It smacks of desperation by the authors and the commentator (TD) trying to drum up the troops. It looks like it worked with Lobo Santo.
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Steve, 15 Feb 2011 @ 1:53pm

Is that what happened to Broadway? As I walked down that dark deserted street, I wondered what could have happened that forced all of the theaters to close.

But now I know. It was the Internet Pirates! Internet Piracy killed Broadway!

Plays can't compete with Pirates. They can only be about Pirates (of Penzance).

But, they can't even be about the Pirates of Penzance anymore, because the Pirates of the Internet killed theater, and Shakespeare!
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Anonymous Coward, 15 Feb 2011 @ 1:58pm

Re: Re: Re:
What about 50 years? 5 years? 5 months? 5 minutes?

Being the smart man he was, he would likely change his methods based on the time he was living in.

Shakespeare would probably be considered a pirate today, you know, because most everyone is.
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Anonymous Coward, 15 Feb 2011 @ 1:58pm

Heh, yeah, Shakespeare is a brilliant example of why not copyright.

As others have mentioned, he copied and stole other people's work. But of course, if he was stealing other peoples work, how come his works survived, and theirs didn't?

Because the execution is many times more important than the idea.
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Anonymous Coward, 15 Feb 2011 @ 2:01pm

Re: Re: Re: Re:
Complete with the eye patch and the parrot, or do you think he would try to blend?
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CarlWeathersForPres (profile), 15 Feb 2011 @ 2:06pm

Re: Re: Would Johannes Brahms have survived?
Imitation is not infringement. You can't copyright a style.
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Mike Masnick (profile), 15 Feb 2011 @ 2:08pm

Re: Not the best example
When I read the headline for this post, I immediately wondered if it would be about whether Shakespeare would have been able to thrive in a world with today's copyright laws because he so prolifically "borrowed" from other writers.

That *is* what this post is about. But it's making fun of the NY Times post that argues the opposite.

If today's copyright laws had been in place during his day, he would have been sued by the copyright holders for works by Chaucer, Boccaccio and plenty of other prior writers (many of whom would themselves have been sued for borrowing from other prior works).

Yeah, as mentioned in the post...
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Mike Masnick (profile), 15 Feb 2011 @ 2:09pm

Re:
Even trying to make a comparison is weak, smacking mostly of desperation to try to prove copyright is bad.

I didn't make the comparison. Scot Turow did in the NYT.

I realize that you're in a rush to attack, but if you wish to attack even halfway credibly, it helps to actually read what you're attacking.
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Richard (profile), 15 Feb 2011 @ 2:10pm

Re: Re: Re: Would Johannes Brahms have survived?
I think, at the moment, there's no copyright on nature. Thus, if all of your formative influences are from nature you're at least not copying anything which is copyrighted.

except by Monsanto...
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Dan Zee (profile), 15 Feb 2011 @ 2:13pm

RIAA makes the same bad analogy
The RIAA makes the same bad analogy when they say Internet piracy hurts the musical artists. That's funny, considering most musicians never see their promised royalties every materialize from their record company. Musicians make their money from playing live and touring, and a lot of them are figuring out they can make a lot more money by giving away their music online for free. More fans turn out for their concerts.

Likewise, Shakespeare might have profited from the Internet. If more people were reading his plays, they might just want to see them performed on stage.

Book authors should adopt a similar strategy. Give their books away for free on the Internet and charge people for autographed copies of books they self-publish. That way, they could keep all $20 of the cover price rather than the measly $1 a copy the publisher "might" give them in royalties.
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CarlWeathersForPres (profile), 15 Feb 2011 @ 2:18pm

As far as Turow's hatred, read "1L," that should give you a reason why he hates law professors and doesn't care about the counter-intuitive academic arguments.
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Mike Masnick (profile), 15 Feb 2011 @ 2:32pm

Re:
doesn't care about the counter-intuitive academic arguments.

The problem is they're not counter-intuitive.
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Tom Wozniak (profile), 15 Feb 2011 @ 2:34pm

Re: Re: Not the best example
Hey Mike - Sorry, my post wasn't very clear. My surprise wasn't actually about the topic of your post, but rather that the NY Times article didn't seem to be aware of the fact (or conveniently left out) that Shakespeare borrowed/copied from other writers (echoing your point) and would not have thrived under today's copyright laws. Basically, I thought the NYT article's argument was very one-sided and ignored a hugely negative impact that today's copyright rules would have had on Shakespeare.
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The Infamous Joe (profile), 15 Feb 2011 @ 2:56pm

Re: Re: Re: Would Johannes Brahms have survived?
Really?
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Pickle Monger (profile), 15 Feb 2011 @ 3:05pm

Uhmmm... logical much?..
So Turow's et al "problem" is that because of piracy they don't sell enough book... And that is why their allegory about Shakespeare is particularly ASININE! Back in the day, people didn't buy a lot of books because most people were ILLITERATE. That means they couldn't read. Which means that buying books WOULDN'T BE AT THE TOP OF THEIR FREAKIN' "TO DO" LIST!
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anothermike, 15 Feb 2011 @ 3:10pm

Re:
"The Masnick Effect" is already defined and it refers to contradictory comments about business models; not your ad hominem attacks.
TAM, we've both been around this site long enough to remember the thread where "Masnick Effect" was coined but here's a refresher for the new readers. Masnick noticed that when he pointed out new business models from large music acts, commenters insisted that it would never work with small acts because the large groups have a dedicated audience that would follow them anywhere. Then when Masnick pointed out similar new business models from small acts, the same commenters insisted it couldn't work with large acts because the small acts don't have a legacy to risk with experiments. That hypocracy is "The Masnick Effect".
Maybe we should coin "The TAM Effect": Ignoring definitions, evidence, and everything else to post attacks.
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Anonymous Coward, 15 Feb 2011 @ 3:41pm

"That said, a growing percentage of the population is realizing that this obsession with "stronger copyrights must be good" makes less and less sense."

Citation required
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Anonymous Coward, 15 Feb 2011 @ 3:43pm

Re: Re:
It's good to see you're distancing yourself from such a paltry claim.
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Anonymous Coward, 15 Feb 2011 @ 3:46pm

Re: Re: Re:
Another TD classic. I didn't write it, I just put it out there with my full support except that I don't support it if you ask me, but I don't think it is wrong just don't try to pin me to it.
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Steve R. (profile), 15 Feb 2011 @ 3:56pm

Where is the "Balance"?
Not surprisingly, I didn't see any reference by Turow, Aiken, and Shapiro concerning "balance" in copyright. Recently we had a post concerning that issue on TechDirt. Smashing The Scales: Not Everything Needs 'Balance'. Not much point in entertaining a concept such as "balance" when it seems to be beyond the comprehension of the IP maximalist.
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Anonymous Coward, 15 Feb 2011 @ 4:00pm

I have great idea
Word processors have spellcheckers and grammar checkers. I'll write a plug-in for Microsoft Word that does a copyright checker. Then I'll patent it and sue Microsoft when they make it a standard feature.
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The Infamous Joe (profile), 15 Feb 2011 @ 4:07pm

Re: Re: Re: Re:
Whiskey Tango Foxtrot, Delta Bravo. The NYT says Shakespeare couldn't survive because piracy would have killed him.

Mike says that not only is that not true, but because of how blatantly Shakespeare "derived" his works, that copyright would have killed his livelihood, not piracy. Please note that this is in direct conflict with the original post.

You burst forth saying that it's a silly comparison. Now, please show me a) Who made the comparison and b) Where you get "full support" from what Mike wrote.

I swear, it's rookies like you that make me thankful we have people like Average Joe around here, who can at least *read*.

Sheesh.
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Jay (profile), 15 Feb 2011 @ 4:59pm

Re: Re: Re:
But it's not Friday...
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Anonymous Coward, 15 Feb 2011 @ 5:57pm

Re:
"Shakespeare....Because the execution is many times more important than the idea."
+1
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Anonymous Coward, 15 Feb 2011 @ 6:01pm

Re:
Um... Do you ever get out of your 'IAA office much and talk to real people?
Most people think that what's going on with IP in this country is asinine.
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Devonavar (profile), 15 Feb 2011 @ 6:13pm

Scarcities in Theatre
Funny, I thought Shakespeare's business model had a lot more to do with royal patronage than selling tickets. Scarcity or not, making a living off theatre tickets alone is pretty tough to do, and that's one thing I *don't* think has changed in the last 400 years.

I'd say Shapiro's assumption about Shakespeare's revenue model is specious even before all the BS about "cultural paywalls".
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OC, 15 Feb 2011 @ 6:24pm

Authors Guild?
The Authors Guild? Which server are they on?
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The Infamous Joe (profile), 15 Feb 2011 @ 6:31pm

Re: Authors Guild?
Blackrock, of course.
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Jay (profile), 15 Feb 2011 @ 7:17pm

Huge favor?
Where are the arguments about the "ethics of piracy?"

I understand that some people make this argument but if Shakespeare was a copier, what does that say about any other created art?
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Anonymous Coward, 15 Feb 2011 @ 7:49pm

Re: Uhmmm... logical much?..
Yeah, I thought that's why they were written to be performed.
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Miles Barnett (profile), 15 Feb 2011 @ 7:50pm

Time for the obligatory out of context quote (from the Turow article): copyright is a relic, suited only to the needs of out-of-step corporate behemoths.

Please note the first word is not capitalized because it's not the start of the sentence. But who cares, he actually said it!
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Pickle Monger (profile), 15 Feb 2011 @ 9:45pm

Re: Re: Uhmmm... logical much?..
Plus, ya know, if it's written down then poor olde Willie doesn't need to memorize all the stuff that he wrote... ever...
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Chris, 15 Feb 2011 @ 11:41pm

Re: Re: Authors Guild?
I just laughed out loud on a train :(
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Michael, 16 Feb 2011 @ 3:53am

Re: Re: Re:
Umm...

This started with the morons from the author's guild (who's position you support) saying some guy from 500 years ago did something that he probably could not have done today.

So - good point. The original idea that Shakespeare could not have survived today is probably just a bunch of garbage.
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average_joe (profile), 16 Feb 2011 @ 6:56am

Re: Re: Re: Re:
Another TD classic. I didn't write it, I just put it out there with my full support except that I don't support it if you ask me, but I don't think it is wrong just don't try to pin me to it.

LOL! Classic techdirt dodge and waffle. LMAO!
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DH's Love Child (profile), 16 Feb 2011 @ 7:22am

Re:
Wow! A well spoken AC, how refreshing.
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vivaelamor (profile), 16 Feb 2011 @ 10:00am

Re: Re:
"Wow! A well spoken AC, how refreshing."

They seem to be a regular for now.
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Anonymous Coward, 16 Feb 2011 @ 10:11am

Mr. Friedman's critique boils down to two points.

First, intellectual property is not property. He defines property as tangibles, so if something is not tangible it is not property.

Second, If copyright law (and likely patent law as well) does not "promote progress", but rather hinders it, then the law is unconstitutional.

For whatever it may be worth, our federal judiciary disagrees with his two points.

Property is a social construct embodied in our laws. Apparently Mr. Friedman does not agree with this social construct.

"Promote progress" he views as a substantive limitation on Congressional power under Article 1, Section 8, Clause 8 of the US Constitution. Quite frankly, I am aware of no caselaw at any level of the federal judiciary that has so held. Quite the opposite, though in the interest of full disclosure this is an issue that has been repeatedly been made in dicta, and not as a specific holding determining the outcome of a case before our federal courts.

Of passing interest is that I have never seen an article published by Mr. Friedman addressing trade secrets and if he believes they constitute property. By his definition it seems logical he would not view them as such, which, of course, would represent a departure from rulings by the Supreme Court in cases including, inter alia, Ruckelshaus v. Monsanto. This is one area of the law where I am in the distinct minority because I happen to believe they are not property for reasons totally unrelated to the tangible versus intangible distinction.
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ou tis, 17 Feb 2011 @ 10:46am

This example of sometimes-verbatim copying by Shakespeare from an earlier source might be useful here.
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James, 19 Feb 2011 @ 9:17am

Music and books
The argument being made here, at least if one traces the links back to their origin, is that somehow pirating of music doesn't directly lead to decreased sales. To make this argument a lot of logical hoop jumping is required to explain the statistics which show a concomitant drop in cd sales to the increased number of connections to sites like bit torrent.

It reminds me of those who tried for decades to make excuses for the connection between cigarette smoking and the incidence of cancer. It just had to be something other than the fags.

Maintain your illusion as long as you can if it gets you through the day. Piracy hurts sales. Yes it can have the upside of getting you noticed, but until authors find a way of filling stadiums with paying customers, that notoriety won't pay the heating bill.
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Tony, 19 Feb 2011 @ 3:48pm

Re: Re: Would Johannes Brahms have survived?
"I think that is how all art works. New artists copy and imitate other artists that they like, and then start to form their own style that is fused with all their influences. Copyright gets in the way of that."
Except not all art is copyrightable. Fine art certainly doesn't operate like this. You can't copyright a painting or a sculpture or a photograph which means you can 'copy' and get away with it (unless of course you are trying to pass it off as the original).
Also, parody is exempt from copyright, which could include film and music.
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Myth Buster, 19 Feb 2011 @ 4:02pm

Re: I have great idea
Good luck trying to patent an obvious software solution. You may be able to copyright the idea and end result, but getting a software patent is another kettle of fish.
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Black Power, 19 Feb 2011 @ 4:12pm

Similarly, black cotton picking slaves wouldn't survive in today's climate what with copyright law and all. I mean, having the likes of Eric Clapton, The Rolling Stones, Muddy Waters, Jimi Hendrix and Led Zeppelin all ripping-off your art like that...just shocking. How could they make a living?
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Nezumini, 21 Feb 2011 @ 7:38am

J.k Rowling has managed to survive even though she has ripped off quite a few things from the tv show 'the worst witch' I used to watch when I was younger.
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Somebody, 22 Feb 2011 @ 7:55am

Anyway, no one knows who wrote the works of Shakespeare. It is more than likely that they were written by an aristocrat with a huge private income, so ticket sales would have been the last thing on his mind. Practically all notable pre-copyright art/literature is either written by people who didn't need to make a living or who had wealthy patrons who didn't need to make a living. Today we have a different social structure - not just rich people with lots of time and education and poor people with no time and no education, but lots of middle-class people with education but not much time - just enough to produce a lot of amateur stuff (a.k.a. the Internet).
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Somebody, 22 Feb 2011 @ 7:55am

Anyway, no one knows who wrote the works of Shakespeare. It is more than likely that they were written by an aristocrat with a huge private income, so ticket sales would have been the last thing on his mind. Practically all notable pre-copyright art/literature is either written by people who didn't need to make a living or who had wealthy patrons who didn't need to make a living. Today we have a different social structure - not just rich people with lots of time and education and poor people with no time and no education, but lots of middle-class people with education but not much time - just enough to produce a lot of amateur stuff (a.k.a. the Internet).
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Idobek (profile), 24 Feb 2011 @ 5:53am

Re: Not the best example
Chaucer?

You would have to hope that Chaucer would have been in the public domain by Shakespeare's time.
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