Continued from here, this thread is for discussions on intellectual property (copyright, patent, trademark, trade secret) both from the theoretical perspective and a practical application perspective.
I agree with the pinciples of copyright, but this 120 years of copyright is too much. Trademarks cease when they become part of the public lexicon and become a generic word (Xerox for example). Why don't copyrights end when they have very much become part of our culture? The original time limits were more than enough to give protections to the author and still would become part of the public domain after the time period.
The idea of genericide is a pretty limited application. It's rare that a brand name becomes so ubiquitous that it takes over the product. Aspirin is the most famous example, but brands like Kleenex have been battling the issue for years, and there have been few cases since Aspirin that have actually been genericide as held up by the courts.
Copyrights don't become generic. Disney is the rarest of rare examples: A company that is still making use of copyrights over a period of decades. Moreover, most of Disney's copyrights are also protected by trademark, and thus invalidating the copyright to a particular Mickey Mouse cartoon won't invalidate the trademark protection of the Mouse himself. Citing Disney, one of the most unique situations in the history of intellectual property, to prove a broad-based point about intellectual property is as absurd as basing a judgment on all hamburgers on a Big Mac.
Band-Aid is another good example of this. Wouldn't it be good for a company to become so well known the product IS them? I don't really have a good sense of how trademarks and the like work, I guess.
Don't like that idea? How about a more recent example. The novel The Wind Done Gone is a derivative work of Gone with the Wind. Pretty much the same story, but told from the slave's point of view. Instead of the idealized South from the original novel, we see the harsher realities of life on a plantation. Considering that the original novel is now over 70 years old and very much a part of our American culture, there is no reason this work should still be copyrighted. It should be like Samuel Clemens works which have long been Public Domain; yet are only a few decades older.
England's Statute of Anne (1710) is widely regarded as the first copyright law. The statute's full title was "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned." This statute first accorded exclusive rights to authors (ie, creators) rather than publishers, and it included protections for consumers of printed work ensuring that publishers could not control their use after sale. It also limited the duration of such exclusive rights to 28 years, after which all works would pass into the public domain. Although the Statute of Anne created a system of monopoly rights similar in many ways to the Stationers' Company's private system, it introduced three major changes.
Figured it was ok to use a bit of a thumbnail sketch on the subject for the purposes of this discussion, and to leave things at the beginning of the modern era, rather than firing things all the way back to Gutenberg, when very little was codified past royal fiat and caprice.
Well sorry for not biting on your bait. But your question was pointless and irrelevant. What do you want from me?
Well considering that our working definition of "real" = "material" and considering you have a philosophic background I was wanting some thought into a better definition of real. You know, one that could include all real things maybe?
This is a statement of fact. This is how public goods work. A product goes out there and it's in the commons. We create a fictitious sense of "property" around these to incentivize production, but that doesn't mean they've magically become property, only a legal construct for everyone's convenience
Are you telling me that there is some metaphysical definition of property, some Platonic form of property that exists beyond our definitions? Really? I think that's just a load of shit. Property is what we define and protect as property. You can't distinguish between things that "magically become property" and things that have "always been property." Because those things came to be property through the same "magic" method. IE: They became protected by LAW. Heaven forbid that the law attempts to keep up with technology and as well as protecting physical works it attempts to protect the electronic ones.
And when Bono sings a song he's volunteering it into the commons. He can't stop me from whistling the tune on the way to work. To say he has that right is laughable.
Big ass strawman here. Who is trying to stop you from whistling the song? They are just trying to stop you from stealing it.
And I didn't write the other quotes in your reply. So don't know why you attributed it to me.
It's not uncommon to point out the big absurd cases to illustrate the underlying absurdities in the legal regime. The thread runs through a lot of IP law, but it's easier to point at the big example of abuse to illustrate a point.
This is really one of the problems inherent in looking at corporations as legal persons. Before the advent of the corporation as legal entity, copyrights protected the rights of the author of a work, or maybe the person who bought the rights to publish it, so that they could make a living off their efforts for their entire lives. However, when a corporation takes advantage of those same laws, that lifespan becomes pretty much indefinite, so the laws that were intended to let a person live off their creative work are now turned to allow corporations to maintain indefinite monopoly control over cultural content, to society's detriment.
Again, that's not an accurate comparison as Margaret Mitchell didn't create an ongoing enterprise that is still making use of the original IP as both a copyright and a trademark.
Disney is the most unusual copyright scenario that exists.
You do know what a thumbnail sketch is, right? I'm not writing a paper here, the levels of rigour aren't that high, as evidenced by both of us referring to wiki as a primary source of information. The point was that in the beginning (the modern beginning, not the biblical "In The Beginning", just to be clear), consumer rights were a factor, while today, in large part, they are not. Past that, feel free to nitpick away.
Looking at legal theory, however, laws are generally drafted for the rule, not the exception. Exceptions generally come about in the case law in the US system. Citing Disney as a reason for IP reform is no different than trying to use an anecdote to prove a point.
In conjunction with official figures on copyright renewals, the CRS Report indicates that only about 2% of copyrights between 55 and 75 years old retain commercial value--i.e., still generate royalties after that time.
While you may (will) disagree with his legal arguments in that case, his economic arguments against such an extension are pretty solid. For example;
Using assumptions about the time value of money pro-vided us by a group of economists (including five Nobel prize winners)... it seems fair to say that, for example, a 1% likelihood of earning $100 annually for 20 years, starting 75 years into the future, is worth less than seven cents today.
Having obscenely extended copyright laws for the majority of materials is detrimental to society through the chilling effect on future works (which is the core of Breyers legal argument).
The law should address the majority situation. The exception to the majority situation is generally addressed in case law. Laws aren't set forth to detail every possible permutation of the situation.
Saying that Disney, a noted unusual case and exception to the rule, should be the basis for the law is counterintuitive based on that logic. How many other companies even come close to matching the Disney scenario? The answer would be none. How many other companies are likely to ever reach Disney status? Not many, if any, are likely to ever even come close.
To be honest, most copyright should expire at 70 years. A simple "ongoing legitimate business concern" exception would rectify most of this. Disney is a major exception, not only because of their ongoing business concern but also because of their exceptional level of protection of their IP.
Moreover, it's never been addressed what will happen to those works originally authored by Disney himself but later tweaked and released under the copyright of the Corporation. They may have, in essence, created a never-ending copyright with respect to the derivative.
Likely 70 is excessive, but I still think there should be an ongoing business concern exception that can keep things going indefinitely. The overwhleming majority of rights cease to be enforced within 15-20 years of the death of the author, but it's unfair to the business model of, say, Disney, to allow others unlimited access to their works after some period of time. It's not like they're just a movie clearing house, the Disney works are inseparably intertwined with trademarks, the theme park attractions, etc.
Indefinitely is out. Constitutionally they have to be for limited times. Indefinite renewals would probably violate that.
Trademarks are, to me, a totally separate issue. The protections and regulations are, to my mind, fine. What can be trademarked is maybe up for debate, but I don't know enough there to hold my own.
We seem to be quibbling over the length of time a copyright should exist, which is a fair argument, but for me, the discussion of intellectual property ultimately includes a question of content distribution and profit. It always has. Dark brought up a good point in the original thread about the printing press, and the change it brought with it. The Statute of Anne is another interesting step in a long line of laws and regulations meant to protect both the content owners and the consumers.
Once again, in the "digital age" we face a revolution similar to that of the printing press, in that digitized works are very easy to reproduce and make available. Therefore, the question of how the creators of this work can continue to make a living must be raised. Sure, you can argue that a few at the very top do more than "make a living", and some wild exceptions (like Disney) hold on to their intellectual property for too long. But if piracy is the alternative, then the greed of a few is hardly an excuse to steal from so many.
That said, I do think the argument of content distribution comes down to a few key points. As a consumer of knowledge and entertainment, I just want the ability to do a couple of simple things.
1) easily acquire content 2) enjoy that content without restrictions that mar the experience
We can quibble all day about #2, but so far, I think the industry is doing a bang-up job keeping up with how technology has changed content distribution. It wasn't so long ago that the only way to download a song was illegally. Now, there are dozens of avenues to legally download music, and the vast majority of people do so. And since that tide has shifted, we are starting to see more and more DRM-free music.
As we move ever closer to "cloud computing", we are already seeing a real attempt at changing content distribution methods. I look forward to the day when I can sit down with my TV, computer, or portable device, and choose from a wide variety of music, movies, games, and other content. As long as prices are reasonable and choices are broad, this will always be preferable to piracy for the vast majority of the public.
None of that excuses stealing or makes piracy "okay", mind you. It's fine to call yourself a revolutionary and fight for change, but even Robin Hood knew he was breaking the law and would be punished if he got caught.
I think the industry is doing a bang-up job keeping up with how technology has changed content distribution. It wasn't so long ago that the only way to download a song was illegally. Now, there are dozens of avenues to legally download music, and the vast majority of people do so.
I think someone has done a "bang-up job" here, but it sure wasn't the RIAA or the various industries looking to protect their precious IPRs. It was companies like Apple and others who saw a market opportunity that did the work. Look at how Sony BMG and others have dropped the ball (just look at Sony BMG's profits) and can't keep up with changes.
No, it's not that IPR holders are keeping up. It's that people who see past the traditional distribution methods were able to strategize new ways to deliver content.
Unless, of course, you just mean "every company in existence" by saying "the industry." In that case, sure. Someone has.
I'm not saying indefinitely in all cases. Disney would be about the only point I could figure on that matter, simply because of the inseparable nature of their copyrights and trademarks, and only because the trademarks are all still active and heavily policed. To be able to keep the right going for such a period, it would be an exceptionally high standard of care for the right, coupled with other IP, to the point that few (if any) other companies would be able to follow suit.
About the only other monolith I could see doing this (well into the future) would be Nintendo.
I actually agree with you, so I'm sorry if that wasn't clear. As I said in my post, I do not like to have the enjoyment of content marred by overzealous copy protection. But Apple is not the only one who has taken a step in the right direction with content distribution. By "the industry", I may not mean every company in existence, but anyone who DOES step up to solve a problem deserves to be commended for that.
IPR holders didn't invent the printing press, either. Distribution isn't the sole responsibility of IPR holders, but they still have the right to protect their content and make a profit from their efforts. It has always been up to the distributers to figure out how to do that in a way that makes everyone happy.
Seems a bit of workaround there. If copyright and trademarks can be that intertwined then maybe there does need to be some reforms of trademark law. Again, I don't know enough about that to argue either way, and do have some work to do tonight before I can get stuck in.
Anyway, I did enjoy the recent guest series at Volokh about Happy Birthday and it's place in copyright, which I think is a much more interesting debate point than Disney. Arguably it shouldn't be covered, but it is extremely hard to challenge and is still making a lot of money.
The trademarks exist for most of their characters in most mediums. Those do have to be constantly renewed, and do cost significant amounts of money. Again, though, their situation is highly unusual.
Think about it this way. The Steamboat Willis copyright expires. What changes? Steamboat Willie can be shown without paying royalties. That's pretty much it, though, as any other use (i.e. trying to sell your own DVDs of Steamboat Willie, etc.) likely violate Disney's trademark on Mickey Mouse.
Moreover, many of the earlier Disney works are only copyrighted to the extent that they are Disney's interpretation of a public domain story. Complaining that Disney's Snow White, for example, is copyrighted is a pretty weak argument given that the Snow White story isn't protected. The only way you would be infringing would be to use the actual film or audio from Disney's movie, or to specifically rip off his interpretation of the story.
Likely 70 is excessive, but I still think there should be an ongoing business concern exception that can keep things going indefinitely.
Why? How does society benefit from maintaining an artificial monopoly longer than it has to? How is society better off when we restrict the use of derivative works and allow established producers to profit off their established work instead of releasing new ones?
If Disney gets to re-release Snow White, Cinderella, and the Little Mermaid every 10 years where is their incentive to create more movies? 3 of those re-releases probably net as much as a typical direct-to-video release. How is anybody winning here? This is a Goddamned economic rent that serves no purpose.
If it's tied to a theme-park attraction it going into the public domain won't change that. It will just mean other theme parks can use those names too.
Well considering that our working definition of "real" = "material" and considering you have a philosophic background I was wanting some thought into a better definition of real. You know, one that could include all real things maybe?
My working definition of "real" or "natural" property is any good, the consumption of which, is non-rival. Hence, immaterial things like art, ideas, and music where the value of the good is not tied to the distribution of the good qualifies.
Big ass strawman here. Who is trying to stop you from whistling the song?
If I perform a tune in public that someone else has written they have the right to make me stop. If that's not asinine I don't know what is.
And I didn't write the other quotes in your reply. So don't know why you attributed it to me.
Too much trouble to put everyone's names on there.
If I perform a tune in public that someone else has written they have the right to make me stop. If that's not asinine I don't know what is.
I am a produced, but unpublished, playwright. If someone performs my play in public without paying me a royalty, it does hurt me. I'm not Disney, and I don't have an unlimited income stream from my works. Public performance is the only way I make money from my writing, and it's still not a lot!
Yes, the giants also profit from the laws that protect the little guys. But how do you propose protecting the little guys without the giants benefiting from the same rights?
The majority situation is that corporations hold an awful lot of IP rights, I'd be willing to wager the majority of music, movie and book rights find their way to the hands of some non-human legal entity, and once that happens, it's no longer about people producing art for the benefit of society in exchange for certain legal protections, and it's nothing but money-making for shareholders in exchange for an ever-diminishing amount of utility for society. Add to that obscenely large penalties for infractions, and the net result is society loses.
Disney doesn't even need to be taken into consideration for that to be the case.
