Copyright — for or against?
p2pnet news view Freedom | P2P If you have views on copyright, head over to The Economist site where you’ll find a debate on the subject with the proposition, ‘The House believes that existing copyright laws do more harm than good’.
Defending is professor William Fisher, Wilmer Hale Professor of Intellectual Property Law, Harvard Law School, who believes the copyright system has, “several important functions”.
Against is professor Justin Hughes, professor of Law, Cardozo Law School, New York, who says, “Intellectual property, like much public policy, is a matter of educated guesswork.”
Not surprisingly, Crosbie Fitch is among those contributing his views, saying »»»
The moment of our times is the cultural repression and persecution of the people. This arises from the venal surrender of the people`s liberty through its derogation by 18th century privileges of monopoly such as copyright and patent. The exploitation of these anachronistic privileges by merchants so favoured by the state, especially publishing and industrial corporations, now have them enforcing and prosecuting them against the public to preclude even individual acts of cultural expression competing with them in their mass production of copies and devices.
Monopolies are and have always been a mistake (see Boldrin & Levine). They favour one merchant at the expense of the many (mercantile privilege at the expense of individual liberty), and so are diametrically in opposition to a fair and free market a market in which people are free to exchange their labour and property without unnatural constraint.
The misguided apologists for such monopolies claim them to be socially beneficial in encouraging the creation and distribution of art and knowledge (to promote the progress of science and useful arts). So, at least the aspirations are agreed. However, the key difference in principle is whether the people`s liberty should be sacrificed to this end (despite scant evidence it provides the means). The modern pirate agrees that his liberty should not be so sacrificed, that his natural right to liberty is inalienable. It can neither be surrendered by himself as citizen, nor his government he empowers to protect it. There is no contract, nor law that can take it away, and nothing so offensive as the allegation that the people voluntarily and democratically surrendered their liberty in a social contract.
Cultural and technological liberty is the civil rights issue of the 21st century. It is preceded by 19th and 20th century natural rights issues of equality (racial, religious and sexual discrimination), life (genocide, execution, torture) and liberty (slavery, segregation, temperance). Today, in our age of information technology and instantaneous diffusion, individuals are struggling for the liberty to share and build upon our cultural and technological heritage. The public as pirate is struggling against the anachronistic monopolies of copyright and patent, against the yoke of corporations who have amassed these privileges into effective subjugation of the people.
We must therefore restore law to respect and protect the individual`s natural rights. This was the mission and intention of Thomas Paine and other founding fathers of the United States, and directed the writing of the US constitution.
Not being natural rights, and so neither recognised nor sanctioned by the constitution, both copyright and patent should be abolished, to be replaced by law that properly secures authors` and inventors` exclusive right to their writings and discoveries. The government should be strictly limited in this and should not use it as an excuse to assume unconstitutional power to grant transferable monopolies such that these may benefit the corporations that covet them (and the legislators who enjoy the latter`s lobbying). Other nations/jurisdictions should also confine their legislation to the protection of natural rights rather than the granting of monopolies.
It should, he adds, “also be noted that the loss of monopoly, whether through being rendered ineffective by piracy or legislation, does not warrant compensation, so there is no justification for any levy or tax to that end, nor even as a separate means of bypassing the marketplace for the government to procure art and knowledge on the people`s behalf. A free market, as should have existed for the last three centuries, is sufficient and proper.”
Says Jonathan S. Fox »»»
As we have often seen, there is more agreement than disagreement in this issue. Both Professor Fisher and Professor Hughes agree that copyright plays a critical role in maintaining the economic incentive for creative expression that we expect for our society and culture today, and both agree that it can be damaging and distorting if miscalibrated such that it places excessive limits on the ability of artists to create derivative works or distributers to provide access to information.
As a video game developer, I am aware of the degree to which modern copyright law is distorted in our industry. Within twenty years, most games are no longer even compatible with the latest technology, and their widespread preservation is only maintained by the efforts of determined pirates with a passion for old games. Many video game programmers and designers secretly or even publicly acknowledge that video game pirates that specialize in older games provide a valuable public service in preserving access to these games for the public.
This is not limited to video games, however. Every year, vast amounts of information and creative expression cease to become easily available as book publishers cease printing of marginal works. While efforts to preserve older books in digital format exist, these are limited by modern copyright law to very old books that were published over a lifetime ago.
Copyright law was radically miscalibrated even before computer technology reduced the cost of reproduction and preservation of works dramatically. Now the distortions it creates in our economy seem criminal.
Professor Hughes makes important points that must be taken into account. Indeed, we must remember in this debate that copyright in some form plays an important, even critical role in maintaining the creative industries and culture we value and expect in our modern society. While holding these principles in mind, we must nonetheless admit that the existing copyright laws are broken before we can begin the process of repairing them.
Pablo, descendant of William writes »»»
Professor Hughes argues that “no one really thinks that uncompensated, collaborative, networked creativity can replace the richness of expressive works produced by a creative class, individuals and groups who earn their livelihood from selling their works”.
Not too long ago, hip-hop was little more than the uncompensated creativity of a network; a network, it might be added, that was a far cry from the “landed gentry” of old.
Hip-hop, so reliant on sampling and remixing, came into existence not because of copyright law, but in spite of it. As KRS-One, one of Brooklyn’s finest rhymers, put it,
“A dope MC is a dope MC, with or without a record deal, all can see.”
“I respectfully take issue with Professor Hughes generalizations,” he adds
May, 2009
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May 6th, 2009 at 9:27 pm
The Hip-Hop thing is extremely illustrative in itself, because Dr. Dre used to sell mixtapes at the Roadium Swap-meets back in the 1980s (before he made it big).
Now, when “his” stuff becomes available on p2p networks because it leaked, he gets all mad. But I’m pretty sure the “mixtape” people never actually asked the “rights-holders” for permission to incorporate their stuff into the tapes (much less do all that stuff with effects and such, that makes “mixtapes” so cool.)
http://www.google.ca/search?q=rodium+swap+meet+mix
Metallica was “taper-friendly” UNTIL they made it big and decided to sue Napster into oblivion.
” A similar irony is that Metallica became popular in the early ’80s largely on the basis of their “No Life ’till Leather” demo tape which they encouraged fans to freely copy and distribute, but that was 100 million dollars ago, so the band might not remember.”
http://www.shreddingradio.com/metallica.html
Arctic Monkeys is just too obvious of an example for me not to pass up, here.:
http://en.wikipedia.org/wiki/Arctic_Monkeys
(They built their fanbase via p2p — or rather, their fanbase BUILT ITSELF via p2p).
Now they complain about p2p and try to sue it out of existence as well.
Most of US aren’t that much less ironic on this issue, either, in that all the “information wants to be free” stuff goes RIGHT out the window when a company like Phorm gathers info about us via spidering. Then suddenly it’s “our” data, and we want government to “do” something. (Yeah, Jon — I’ll leave it alone now.)
My take on it — and why I probably won’t head over to the debate — is that Crosbie has pretty much addressed anything I would have said, in his usual, much-more-eloquent fashion. The only point I’d be able to raise is the fact that people — including some of us — become much more “okay” with copyright, and the ideas behind it — when it’s to their advantage to do so.
Perfect example of this:
“Fairey has come under criticism for appropriating others’ artwork into his own while failing to provide attribution for the work used.[36][37] However, he has threatened to sue artists for the same technique. Austin, Texas graphic designer Baxter Orr did his own take on Fairey’s work in a piece called Protect, with the iconic Obey Giant face covered by a SARS respiratory mask.[38] He started selling prints through his website marketed as his own work. On April 23, 2008 Orr received a signed cease-and-desist order from Fairey’s attorneys, telling him to pull Protect from sale because they alleged it violated Fairey’s trademark. Fairey threatened to sue, calling the designer a “parasite”.[39]
In 2009, it was revealed that the HOPE poster was based on a copyrighted photograph taken in April 2006 by Mannie Garcia while on assignment for the Associated Press (AP), which wants credit and compensation for the work.[40] However, Garcia believes that he personally owns the copyright for the photo, and has said, “If you put all the legal stuff away, Iâm so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.”[41] Fairey feels his use of it falls within the legal definition of fair use.[42] Lawyers for both sides were discussing an amicable agreement.[43] Fairey, however, ultimately filed a federal lawsuit against the Associated Press, seeking a declaratory judgment that his use of the AP photograph was protected by the fair use doctrine and so did not infringe their copyright.[44]”
http://en.wikipedia.org/wiki/Shepard_Fairey#Legal_issues_with_appropriation_and_fair_use
Fairey “appropriates” stuff, and then bitches when OTHER people do it to him.
(Any halfway-principled copyfighter would probably say that the guy is “breaking the chain”, but for some reason lessig seems to dig the guy.)
Really, I dunno if “copyright: for or against”, is the right question, so much as:
“Copyright: against it (now), but for it (when you hit it big)?”
(IF that even makes sense.)
(That type of double-standard is also why I’m beginning to think that, despite all the sound-and-fury from p2p advocates/copyfighters/remix artists, we’re unlikely to see substantive changes to copyright law any time soon. Bluntly: the tendency to “sell out” is just too obvious.
May 7th, 2009 at 9:56 pm
I remember back when Napster was a p2p (free) and the hearings were happening over the case of file sharing. The day Don Henley showed up at the hearings wearing a suit and looking like a lawyer wining about his music being stolen, was the day I stopped listening to his music, the truth is, Musicians do not own “Mechanical Rights” the record Industry does!! That issue has always been about Mechanical Rights and this is the bottom line. When people talk about Copyrights there are many levels of this issue. As a musican I have no problem with people sharing my music, if one person bought a CD and decided to share it with friends OH well I lose some money but I gain recognition. The so called p2p problem only harms those who have a lot to lose. Just like the economic state of our country, people who have invested in a major corporate state find that there is a deep dark hole created from all the lofty economy. Buy a mercedes your payments are great, buy a used car it’s a one time payment. Much like a CD, if I pay the internet providers for time on the internet and another peson does the same then if that person decides to share a CD they bought with me, then there should be no problem. Why don’t we arrest kids who go out and buy comic books and decide to trade them or kids who buy “trading cards” and trade them. Please tell me when the copyright laws actually protect the artist from real theft and I’ll copyright all my songs, until them I just as soon give them away.
May 7th, 2009 at 11:53 pm
Durango:
You got it.
My only quibble: how exactly do you figure that you’d “lose some money” from the guy sharing his CD with his friends?
Barring radio airplay (which can be expensive, tricky, and — no matter what the bullshit spin says — has to be bought for you buy the label), they’d probably never have HEARD of you, barring the guy sharing his CD with them.
That’s the essential issue, and that’s what makes the Metallica thing so outright galling; they RECOGNIZED the value of “sharing” during their demo-phase, and were even taper-friendly. Then, suddenly, when they’d made it to the stage of being their labels pampered little pets, all that goes out the window, and these supposedly “anti-establishment rebels” go WHINING TO THE GOVERNMENT.
That’s the problem: either you really DO believe the stuff you say, or you don’t. Personally, I recognize copyright and patents to be the monopolies they are, but I also recognize that they might actually be useful within some very strict limits (the original seven years) — PROVIDED they don’t break THEIR side of the deal by asking for term-extension etc.
It’s the same issue as “affirmative action”: yes, it’s basically a form of tokenism and quotas, and yes, it gets us nowhere nearer a “colorblind” society, but given the history of systematic abuse preceding it, there’s something to be said for preferences under some circumstances.