As an author, I like making money as much as the next person, writing to make money is a bit like buying lotto tickets. We can tell how silly a law is by how easy it is to subvert it. Copyright law is right up there at the top rung of silly. Paywalls keep me from reading authors. I buy books, but I don't buy subscriptions because they are typically overpriced.
Yeah, I've bought one subscription here on Substack, but it's mostly to support the author.
And I buy books too, but I borrow a lot more books from the library. If I needed to buy them to read, I'd be asking a lot more questions about whether they're worth the cost.
Sort of tells you where the Overton Window has moved since the Sonny Bono Copyright Extension Act that the bulk of this post is a defense of the very idea of preserving copyright in any form whatsoever.
You didn't ask for proposals, but I'm curious what you think of the policy I would pursue were I in Congress:
* Shorten copyright to life-of-the-author OR 20 years (whichever is longer) with loss of copyright if not manually renewed every 14 years. (I would happily go shorter, but this addresses the typical, "But authors need to be able to feed their families! Even if they die young!" argument.)
* Renewal should involve some non-trivial fee to cover the cost to the national welfare of keeping works out of the public domain. This would incentivize authors to release works into the public domain if they are no longer making money.
* I'd like corporate copyrights to last 20 years, too, but would be okay with 40 if they have to renew, at least if renewal costs are higher for corporate copyrights.
* End the ban on derivative works. IOW: legalize fan fiction (incl. professional fan fiction).
That last, I think, is the main thing. Most of the good-faith complaints about copyright would be addressed and most of the benefits of public domain would be achieved by making derivative works legal.
That's a lot of what I worry about, but I also worry about pure copyrot: when a work is held under copyright by negligent owners, resulting in the destruction of all extant copies. (I don't know whether "copyrot" is the name for it, but it should be.) This is surprisingly common with films, television shows, and (perhaps especially) video games (since video games are always tied to particular systems / architectures that become obsolete over time). Already today, a large portion of the library of 80s and 90s games has survived *solely* thanks to clearly illegal piracy -- but piracy aimed at preservation, rather than sales. Some games (or pieces of games) have been entirely lost anyway.
I do think copyright inflicts most of its costs on our culture through the derivative-works ban, but copyrot is significant enough that I would want to address it as well.
I was actually thinking of mentioning that in my post! I ended up cutting it for length and to emphasize my main points, but it's a problem I totally feel - it, and the closely related problem of "orphan works" where (thanks to mergers, unclear inheritance, or whatever) nobody knows who the copyright holder is.
Requiring periodic renewal, with paying a fee, would go a long way toward solving both problems. But, it wouldn't go all the way - sometimes someone wants to keep the copyright without publishing. (Maybe it's to try to memory-hole the past, like a politician trying to cover up an old book where he said things he'd rather not say anymore, or a media franchise with an old show that'd get them pilloried in the present.)
So, I'd like to ideally say that the copyright-owner has the responsibility to provide a copy of the work to anyone asking, in exchange for a reasonable fee; or else lose the copyright. Of course, the wrinkle is to provide some way to define "reasonable fee" so they can't just charge a million dollars.
Well, half of the reason I wrote about that is that's the actually interesting question... but you're right, the other half is it's the question I actually see people talking about!
I'm with you on shortening copyright terms to ~20 years, and with you on being willing to compromise on periodic renewals up to life of the author.
My ideal situation for derivative works would be a mandatory licensing system sort of like the one for broadcast music. Set it so people can post fanfiction free online without paying anything, but if they sell it they need to pay some of the proceeds to the author. Ideally, this could replace "selling the movie rights" so we get to see several different interpretations of a book.
There does need to be some bar on whether a derivative work is too derivative. I shouldn't be able to change around a few words in the latest bestseller, post it online, and say it's technically a derivative work. Still, it should be easy to draw a bar better than the current situation.
Side note: Hines might not be the best example for "copyright doesn't work." The guy's barely written anything for the past few years thanks to his wife's health issues, and he's still bringing in some income from his writing that he probably wouldn't have if copyright didn't exist.
I'm ambivalent about copyright, and indeed perhaps multiply ambivalent.
As a preface, I don't buy the argument that copyright isn't a property right. There's a libertarian tendency to reduce all forms of ownership to ownership of chattels, and to derive other sorts of ownership from ownership of chattels. But I think that's oversimple. There is ownership of spectrum (I'm in favor of having it be true ownership, not use licensed by the state); there are easements, such as the right to walk on a path across my neighbor's land; there are presumably other sorts of things that are legally classed as property that are nothing like chattels.
I'm somewhat attracted by Murray Rothbard's argument that copyright ought to be perpetual: Other sorts of ownership don't terminate over time, so why should copyright. (Note that Rothbard argued that patents were not legitimate, because independent creation did not entitle you to your own patent if you got to the patent office second.)
On another hand, I can see some argument for abolishing copyright entirely. If I buy a book, why shouldn't I be able to copy it? I'm not interfering with the author's property; the book is my property, not his.
On another hand, I think that it's plausible that copyright should extend at least a few years past the death of the author. If it terminates with author death, then publishers have less reason to invest in acquiring a new book, because of the risk that it will lapse into the public domain.
Two things I particularly dislike about the current system, though:
I ought to be able to copy out a single work, such as a poem, and give it to another person. It's not comparable to setting type and running off a hundred or a million copies. (Admittedly this is less compelling now that everyone has Internet access; lots and lots of "single copies" could be distributed that way.)
I see a problem with copying and selling The Hobbit, even if you just change the names. But if someone other than Tolkien had written a sequel about what happened to Bilbo and the Shire after The Hobbit, using Tolkien's characters and setting to tell a new story, in the style of fanfic, would that have impaired Tolkien's rights? Maybe there should be a right to tell stories about fictional characters and places.
I have to say I don't have an analysis of these issues that strikes me as fully persuasive.
I'm not satisfied with any complete analysis either, and I think that's because there're multiple legitimate interests here that need to be balanced.
That's my first response to Rothbard too: even granting that the author has a legitimate interest in his work a hundred years in the future, it's attenuated enough that it should be counterbalanced by the interest of the would-be readers. As you say, why shouldn't they be able to copy it? Why shouldn't they be able to fully interact with its message in the marketplace of ideas? True, copyright only protects the expression not the ideas - but the two are often interwoven at least in terms of rhetoric.
As an author, I like making money as much as the next person, writing to make money is a bit like buying lotto tickets. We can tell how silly a law is by how easy it is to subvert it. Copyright law is right up there at the top rung of silly. Paywalls keep me from reading authors. I buy books, but I don't buy subscriptions because they are typically overpriced.
Yeah, I've bought one subscription here on Substack, but it's mostly to support the author.
And I buy books too, but I borrow a lot more books from the library. If I needed to buy them to read, I'd be asking a lot more questions about whether they're worth the cost.
Sort of tells you where the Overton Window has moved since the Sonny Bono Copyright Extension Act that the bulk of this post is a defense of the very idea of preserving copyright in any form whatsoever.
You didn't ask for proposals, but I'm curious what you think of the policy I would pursue were I in Congress:
* Shorten copyright to life-of-the-author OR 20 years (whichever is longer) with loss of copyright if not manually renewed every 14 years. (I would happily go shorter, but this addresses the typical, "But authors need to be able to feed their families! Even if they die young!" argument.)
* Renewal should involve some non-trivial fee to cover the cost to the national welfare of keeping works out of the public domain. This would incentivize authors to release works into the public domain if they are no longer making money.
* I'd like corporate copyrights to last 20 years, too, but would be okay with 40 if they have to renew, at least if renewal costs are higher for corporate copyrights.
* End the ban on derivative works. IOW: legalize fan fiction (incl. professional fan fiction).
That last, I think, is the main thing. Most of the good-faith complaints about copyright would be addressed and most of the benefits of public domain would be achieved by making derivative works legal.
That's a lot of what I worry about, but I also worry about pure copyrot: when a work is held under copyright by negligent owners, resulting in the destruction of all extant copies. (I don't know whether "copyrot" is the name for it, but it should be.) This is surprisingly common with films, television shows, and (perhaps especially) video games (since video games are always tied to particular systems / architectures that become obsolete over time). Already today, a large portion of the library of 80s and 90s games has survived *solely* thanks to clearly illegal piracy -- but piracy aimed at preservation, rather than sales. Some games (or pieces of games) have been entirely lost anyway.
I do think copyright inflicts most of its costs on our culture through the derivative-works ban, but copyrot is significant enough that I would want to address it as well.
I was actually thinking of mentioning that in my post! I ended up cutting it for length and to emphasize my main points, but it's a problem I totally feel - it, and the closely related problem of "orphan works" where (thanks to mergers, unclear inheritance, or whatever) nobody knows who the copyright holder is.
Requiring periodic renewal, with paying a fee, would go a long way toward solving both problems. But, it wouldn't go all the way - sometimes someone wants to keep the copyright without publishing. (Maybe it's to try to memory-hole the past, like a politician trying to cover up an old book where he said things he'd rather not say anymore, or a media franchise with an old show that'd get them pilloried in the present.)
So, I'd like to ideally say that the copyright-owner has the responsibility to provide a copy of the work to anyone asking, in exchange for a reasonable fee; or else lose the copyright. Of course, the wrinkle is to provide some way to define "reasonable fee" so they can't just charge a million dollars.
Well, half of the reason I wrote about that is that's the actually interesting question... but you're right, the other half is it's the question I actually see people talking about!
I'm with you on shortening copyright terms to ~20 years, and with you on being willing to compromise on periodic renewals up to life of the author.
My ideal situation for derivative works would be a mandatory licensing system sort of like the one for broadcast music. Set it so people can post fanfiction free online without paying anything, but if they sell it they need to pay some of the proceeds to the author. Ideally, this could replace "selling the movie rights" so we get to see several different interpretations of a book.
There does need to be some bar on whether a derivative work is too derivative. I shouldn't be able to change around a few words in the latest bestseller, post it online, and say it's technically a derivative work. Still, it should be easy to draw a bar better than the current situation.
Side note: Hines might not be the best example for "copyright doesn't work." The guy's barely written anything for the past few years thanks to his wife's health issues, and he's still bringing in some income from his writing that he probably wouldn't have if copyright didn't exist.
Yeah, fair enough - dealing with her health issues, and then single-parenting his kid after she died.
Copyright is working for him in that it's giving him some income, but then it's not working great in that it was never fully supporting him.
I'm ambivalent about copyright, and indeed perhaps multiply ambivalent.
As a preface, I don't buy the argument that copyright isn't a property right. There's a libertarian tendency to reduce all forms of ownership to ownership of chattels, and to derive other sorts of ownership from ownership of chattels. But I think that's oversimple. There is ownership of spectrum (I'm in favor of having it be true ownership, not use licensed by the state); there are easements, such as the right to walk on a path across my neighbor's land; there are presumably other sorts of things that are legally classed as property that are nothing like chattels.
I'm somewhat attracted by Murray Rothbard's argument that copyright ought to be perpetual: Other sorts of ownership don't terminate over time, so why should copyright. (Note that Rothbard argued that patents were not legitimate, because independent creation did not entitle you to your own patent if you got to the patent office second.)
On another hand, I can see some argument for abolishing copyright entirely. If I buy a book, why shouldn't I be able to copy it? I'm not interfering with the author's property; the book is my property, not his.
On another hand, I think that it's plausible that copyright should extend at least a few years past the death of the author. If it terminates with author death, then publishers have less reason to invest in acquiring a new book, because of the risk that it will lapse into the public domain.
Two things I particularly dislike about the current system, though:
I ought to be able to copy out a single work, such as a poem, and give it to another person. It's not comparable to setting type and running off a hundred or a million copies. (Admittedly this is less compelling now that everyone has Internet access; lots and lots of "single copies" could be distributed that way.)
I see a problem with copying and selling The Hobbit, even if you just change the names. But if someone other than Tolkien had written a sequel about what happened to Bilbo and the Shire after The Hobbit, using Tolkien's characters and setting to tell a new story, in the style of fanfic, would that have impaired Tolkien's rights? Maybe there should be a right to tell stories about fictional characters and places.
I have to say I don't have an analysis of these issues that strikes me as fully persuasive.
I'm not satisfied with any complete analysis either, and I think that's because there're multiple legitimate interests here that need to be balanced.
That's my first response to Rothbard too: even granting that the author has a legitimate interest in his work a hundred years in the future, it's attenuated enough that it should be counterbalanced by the interest of the would-be readers. As you say, why shouldn't they be able to copy it? Why shouldn't they be able to fully interact with its message in the marketplace of ideas? True, copyright only protects the expression not the ideas - but the two are often interwoven at least in terms of rhetoric.