Mockingbird's Imitations (Blogger edition)

Some of the ACTA's problems

2012-02-11T07:33:00.000-08:00

In a post from a few months ago, Mike Masnick discusses one of the problems with the ACTA: It would require parties to punish "commercial scale" copyright infringement, which it then proceeds to define in an extremely vague and broad way. But the biggest problem is one he mentions here: It isn't that it would immediately change any U.S. laws or policies, but it would lock in the odious changes of 1998. Reducing the duration of copyright, or modifying the device and circumvention provisions of the DMCA, can be dismissed as "inconsistent with our international obligations" as long as we are a party to the ACTA.

Bill Patry: Right, as usual.

2012-02-03T19:50:00.001-08:00

In all the swirl about SOPA, PIPA, ACTA, TPP, and C-11 and the technical issues these proposals raise, it is refreshing to see Bill Patry remind us that one of the most important things about copyrights is that they expire. (I have written about the same thing in a number of places, for example here and here). From the article:

When I was in private practice at a large law firm, a partner asked me to approach the estate of a famous playwright. My colleague was hoping to get permission to produce an abridged version of a play at his son's special education school.

The school was willing to pay the licensing fee, but the children were capable of only performing one act, not three. The production would be only before parents, not for any profit. After all this was explained to the estate, they subsequently refused permission and the money, insisting the children had to produce the play as written, or not at all.

I think that for published books, the 42-year term of copyright we enjoyed from the 1830s until 1909 was about right, but as noted in an earlier post, as a first step I would probably support a proposal to roll back the term of copyright in published books to a mere 75 years from publication, or 50 years from the death of the author, whichever is shorter.

Why I won't sign that petition

2012-01-30T21:11:00.000-08:00

A petition has been submitted to the White House requesting that copyright duration be rolled back to a maximum of 56 years. I have long called for a shorter term of copyright, but I won't be signing this petition. That is because too much has happened since 1976 for it to be reasonable to ask for a single 28+28 year copyright term as we had for all published works under the 1909 act.

An important feature of the 1976 Act was the suppression of the common-law right of first publication in unpublished works. Careless writers called this old common-law right a "common-law copyright," and some insisted that it was perpetual, but this was an exaggeration. It was more accurate to state that it was a right of first publication, not a copyright, and that it was of indefinite duration. It could, indeed, last generations if carefully preserved. The 1976 Act abolished this right and replaced it with a statutory copyright in unpublished works, based on the life of the author. This is one feature of the 1976 Act that I consider worth preserving rather than rolling back. The petition submitted to the White House makes no mention of the distinction between published and unpublished works, and the difficulties of defining a term for unregistered unpublished works.

Also, it makes more sense now to have different copyright terms for different classes of works. Computer software source code, in particular, should have a much shorter term than books or songs.

Finally, as Mike Masnick points out, it is Congress that makes the law. A petition to the President should recognize this.

I might support a petition worded something like this:

The undersigned respectfully request that the President consider the following proposals for the amendment of the U.S. copyright law, and if he deem any of them "necessary and expedient", that he recommend them to the Congress in accordance with Article II, section 3 of the constitution; or, if he find any of them not to be necessary or expedient, that he reply to this petition in writing giving his reasons.

1. We request that the duration of copyright in published works by known authors (except for computer software source code, treated separately below) be reduced to a term of the lifetime of the author plus fifty years, but in no case to exceed seventy-five years from first publication; and that the duration of copyright in published works-for-hire and anonymous and pseudonymous published works be reduced to a term of seventy-five years from first publication. This change would be made without regard for the duration of copyright in the law of any other country, and without regard for any "rule of the shorter term" in any foreign law. Any international agreements that conflict with the proposal, to which the U.S. is a party, would be re-negotiated to conform to the new shorter term.

2. We request that the duration of copyright in computer software source-code to be reduced to a term of 25 years from creation. The Patent and Trademark office, or the Copyright Office, would be empowered to issue rules for computing a presumed date of creation when it cannot be determined from the text of the source code itself.

3. We request that the law be amended explicitly to state that the author's exclusive rights, once they have expired by operation of the law, become rights that are vested in the general public. An explicit statement is necessary due to the contemptuous and scornful tone toward the concept of publici juris works that was used by the U.S. supreme court in its Eldred and Golan decisions.

4. We request that the United States withdraw from the Berne Union.

Yochai Benkler: Next steps after tactical victory on SOPA/PIPA.

2012-01-28T12:23:00.000-08:00

Yochai Benkler has a good discussion of recent developments. He includes four proposals:

Legislatively re-instate the Sony doctrine and reverse Grokster. Technology developers should only be liable for copyright infringements by users if there are no substantial non-infringing uses of the technology.

Decriminalize copyright to pre-1998 levels: put the Golem to sleep. Return the definition of criminal copyright to require large scale copying for commercial gain; reduce the funding to criminal enforcement and reduce the presence of federal functionaries whose role is to hype and then combating the piracy threat. In particular, as calls to shrink the federal government abound, it is critical to include in every legislation downsizing the federal budget provisions that would defund and eliminate most of the burgeoning apparatus of multi-agency criminal enforcement of copyright. The most direct pathway to this will be in appropriation bills, to defund implementation of PRO-IP until a more balanced substantive approach can be worked out.

Create a fair use defense to the anticircumvention and antidevice provisions of the DMCA. Users should be exempt from DMCA liability if they propose, in good faith, to make a fair use of the encrypted materials. Decryption and circumvention providers should be exempt from liability on the model of the Sony doctrine, if there are “substantial non-infringing uses” for the circumvention technology or device they offer. This would fix a much older overreach by the industry, from 1998, that has been very slowly and imperfectly loosened by the Librarian of Congress under powers to exempt certain uses from liability.

Rein in the international trade pathway for copyright extension. Another pathway, similar to criminalization in the sense that it harnesses federal functionaries to help the industry, distinct in the set of functionaries it harnesses, has been international trade. Through a set of trade agreements, both bilateral and multilateral, the U.S. government has pursued the passage of requirements more stringent than it could itself pass in the U.S. The recent adoption of SOPA-like laws in Spain is one example, as is the notorious Anti Counterfeiting Trade Agreement (ACTA). We need a law that would prohibit secret negotiation of IP-related provisions in international agreements, and a law that prohibits the U.S. from entering agreements that require of ourselves or our trading partners more restrictions on the public domain than then-current U.S. law permits.

I would add, as always, reduce the duration of copyright in published works.

"When Adam dalf and Eve span..." 2

2012-01-26T17:42:00.000-08:00

Here was another version of the Adam and Eve picture that I made for last year's anniversary of the uprising of 1381.

Updating the tiger

2012-01-18T18:53:00.000-08:00

I've updated the tiger to indicate the threat posed by SOPA/PIPA. If a version of the bills should pass, I'll change the color of the letters on the tiger's right-front paw to be the same color as the letters on the other paws.

Whose hands? Another possible case of cumulative authorship

2011-11-07T17:23:00.000-08:00

A prose poem meditation beginning "Christ has no body now but yours" is frequently attributed to St. Teresa of Ávila, though sometimes instead to St. Catherine of Siena. You can hear a version of the text here, set to music by David Ogden:

Link:
http://www.youtube.com/watch?v=uJfmuVWMVnQ

However, as noted here:

http://anunslife.org/2006/09/20/saint-teresa-of-avila-prayer/#comment-260

the attribution to St. Teresa seems mistaken. I have yet to find anything like them in scholarly editions of St. Teresa's works. I have yet to meet anyone who can give a citation to any attested words of St. Teresa that can be the source of this poem.

So I tried tracing the words themselves. For now, at least, I believe the poem to be a work of cumulative authorship, like the text of "Hark the Herald Angels Sing" that is found in the Episcopal Church's Hymnal 1982. In the case of "Christ has no body now but yours", the work is principally by two authors: Methodist minister Mark Guy Pearse (1842-1930), and Quaker medical missionary Sarah Elizabeth Rowntree (dates unknown.) But the poem circulates in various versions which also show minor adjustments by others.

In my present reconstruction (which may change as I gain additional information) the Rev. Mr. Pearse is responsible for the second half of the poem. He spoke as follows in a sermon delivered on January 3rd, 1888, in Steinway Hall, Portman Square, London:

Now you, my brothers and sisters, are the eyes through which Christ's compassion is to look out upon this world, and yours are the lips through which His love is to speak; yours are the hands with which He is to bless men, and yours the feet with which He is to go about doing good--through His Church, which is His body.
--Evangelical Christendom, v. 42, February 1st, 1888, p. 46

Pearse cites no sources for his words other than, of course, the Bible.

A few years later Sarah Elizabeth Rowntree used Mr. Pearse's words, which she acknowledged to be his, and to which she added the first half of the poem. Here is the report from the Quaker periodical The British Friend

Sarah Eliza Rowntree gave an interesting account of the recent establishment of the "Home" in Pearl Street, and the progress of the Mission there. She appealed for more workers to assist its further usefulness, concluding with some words of Mark Guy Pearse, "Remember Christ has no human body now upon the earth but yours; no hands but yours; no feet but yours. Yours, my brothers and sisters, are the eyes through which Christ's compassion has to look upon the world, and yours are the lips with which His love has to speak. Yours are the hands with which He is to bless men now, and yours the feet with which He is to go about doing good through His Church which is His body."
--The British Friend, volume 1, number 1, 1892, p. 15

Around the same time John Wilhelm Rowntree (1868-1905) (I suspect a cousin of Sarah Elizabeth's though I cannot yet confirm it) used the words in a sermon on "The Place of Religion in Modern Life". In the outline for this sermon that was published posthumously in 1906, the piece stood as follows:

Remember Christ has now no human body upon earth but yours; no hands but yours, no feet but yours. Yours are the eyes through which His compassion is to look upon the world, yours are the lips through which His love is to speak, yours are the hands with which He is to bless, and yours the feet with which He is to go about doing good--through the church which is His body.
--from "The Place of Religion in Modern Life" (notes for a sermon), in Joshua Rowntree, ed., Palestine Notes and Other Papers by John Wilhelm Rowntree, Hadley Brothers, London, 1906, p. 106.

John Wilhelm's notes contain no attribution, either to Pearse or to Sarah Elizabeth, or to anyone else. John Wilhelm's words also differ in a few details from Sarah Elizabeth's, making him possibly the first of many who have adapted the text over the decades.

Update:It is of course possible that it was John Wilhelm (or even someone else) who added the first part to Mr. Pearse's words. But Sarah Elizabeth remains the first one on record to have spoken the whole poem in something like the form it now has.

I might as well end with something that St. Teresa did write. Or at least, she is said to have had it on a bookmark in her breviary, and the scholars seem to have accepted it has her work.

Letrilla
Nada te turbe,
nada te espante;
todo se pasa.
Dios no se muda.
La paciencia
todo lo alcanza.
Quien a Dios tiene,
nada le falta;
solo Dios basta.

"When Adam dalf and Eve span..."

2011-10-21T15:47:00.000-07:00

This year, 2011, has been the 630th anniversary of the uprising of 1381.

Contradictions

2011-04-22T10:11:00.000-07:00

In discussions of the computus, that is, the method for determining the date of Easter, one often encounters the erroneous statement that the Eastern Orthodox churches use precise astronomical computations to determine the date of Easter. For example, at this URL

http://www.saveandread.com/blog/?p=847

as recently as today I found the following:

The Orthodox church uses the same formula to calculate Easter, but bases the date on a slightly different calendar—the Julian calendar instead of the more contemporary Gregorian one, the calendar that is most widely used today. Consequently, both churches only occasionally celebrate Easter on the same day. Unlike the Western Church, the Eastern Church sets the date of Easter according to the actual, astronomical full moon and the actual equinox as observed along the meridian of Jerusalem.

This can be broken into two statements: (1) The Orthodox churches use the Julian computus, and (2) the Orthodox churches use precise astronomical computations.

These two statements contradict one another. One who sets the date using the Julian computus cannot at the same time set it using precise astronomical computations. And only occasionally do the two methods give the same result.

The statement that the eastern churches use precise astronomical computations derives from an agreement reached at a 1923 synod of eastern Orthodox bishops. Here is the report as it appeared in a standard reference work, the Explanatory Supplement to the Astronomical Ephemeris and the American Ephemeris and Nautical Almanac.

At a meeting of a Congress of the Orthodox Oriental Churches held in Constantinole in May, 1923, the Julian calendar was replaced by a modified Gregorian calendar...[in which] Easter is determined by the astronomical Moon for the meridian of Jerusalem.

This statement from the Explanatory Supplement is literally true. The Julian calendar, including its computus (also called a "paschalion") was replaced at the meeting in 1923. But it was never permanently replaced in practice anywhere else. Only the solar part of the 1923 calendar agreement has been put into effect, and even that has been controversial. Presumably the bishops, when they got home, found that the Julian computus (which was to be replaced by the lunar part of the 1923 proposal) was too old and traditional to change easily. Amost all the eastern Orthodox churches still use the old Julian paschalion. The reported exceptions are small dioceses such as Finland, which use the Gregorian computus.

However, some folk reading the report in the Explanatory Supplement with no knowledge of eastern Orthodox cultural politics appear to have naively assumed that what the eastern bishops decided had but put into effect. Hence was born the statement that the eastern churches use precise astronomical computations to set the date of their Easter, a statement that has taken on a life of its own and continues to be repeated, even though a simple check against astronomical facts could show that it is false.

In 2003, for example, the vernal full moon occurred at 16 April 19:36 Universal Time. The following Sunday was April 20th. This was Easter according to astronomical reckoning. The Gregorian Paschal Full Moon for 2003 (the 9th year of the 19-year cycle) was also April 16th, the same day, at least for some time zones, as the astronomical full moon. The Julian Paschal Full Moon that year was, however, on April 20th (Gregorian). Hence eastern Orthodox Easter that year was on the following Sunday, April 27th.

In 2006 (the 12th year of the 19-year cycle), the vernal full moon was at 13 April 16:40 Universal Time. The Gregorian Paschal Full Moon for year 12 is also April 13th. The following Sunday in 2006 was April 16th. However, the Julian Paschal Full Moon that year was not until April 17th Gregorian, so that eastern Orthodox Easter was the following Sunday, April 23rd Gregorian.

Some who try to explain these dates away might fall back on another canard, the Zonaras Proviso. They might try to claim that this proviso requires eastern Orthodox Easter to fall entirely outside the seven scriptural days of Unleavened Bread as computed in the present-day Rabbinic calendar. But a simple check will show that this year, 2011, the Hebrew calendar's week of unleavened bread runs from April 19th through April 25th. (Some in the diaspora will add an extra day, April 26th). Eastern and western Easter, however, are both on April 24th, 2011, within the Rabbinic calendar's days of Unleavened Bread. Hence the Zonaras proviso, even if it existed (in fact it does not except in the minds of canon lawyers) could not have this precise form.

Rufus Pollock et al. on the value of the public domain

2010-10-12T13:39:00.000-07:00

Rufus Pollack has posted a draft (for it seems to be unfinished still) of his paper, co-written with Paul Stepan and Mikko Välmäkki, on the value of the public domain (PDF). The abstract can be found at

http://rufuspollock.org/2010/10/11/papers-on-the-size-and-value-of-eu-public-domain/

This is a study in a European context similar to Paul J. Heald's survey of American best-selling novels, which can be found at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=955954

Professor Heald surveyed works of fiction. Pollock surveys both books and sound recordings. For books he surveys a much larger sample than Professor Heald surveyed.

Back in 1998 I did a cursory survey of paperback song books, and found that incorporation of public domain content lowered the average price per book and the average price per song. As I surveyed these books, I quickly encountered problems of definition. What is a "pubic domain" song? What was a "public domain" book? My solution was to limit the survey to paperback books with piano-vocal arrangements. If more than 90% of the melodies in a book were public domain melodies (though the accompaniments might be copyrighted) then that book counted as "public domain" for the purposes of the survey, though obviously the book-as-a-whole and many of its components were under copyright. If more than 90% of the melodies in a book were under copyright, then that book counted as "copyrighted" for the purposes of the survey.

Pollock et al. deal with similar questions of classification. Is a book "public domain" if it is a public-domain novel but with copyrighted introduction and notes? The authors very reasonably say yes in this case as long as it contains the full PD text and the PD text is most of the book. A book that is more notes than underlying text is classified in a separate "YN" (Yes PD, but Notes) category. Altogether, the authors develop seven categories of classification of about sixty-four thousand books according to public domain content. Unsurprisingly, when a book is promoted from copyright to public domain, publishers bring to market competing editions in all price categories, from low-priced budget editions to high-priced luxury editions. This wide range of prices, as well as the value that might be added to some of the new editions by additional matter such as notes, complicates average-price computations. Limiting the comparison of prices to the low-price and middle-price editions (i.e. excluding the highest-priced editions, a technique called "right truncation") shows that publishers are offering public domain works to the public at average selling prices that are four to six percent lower than the prices at which they are offering copyrighted works. This is consistent with the results of Professor Heald's earlier, smaller study of best-selling American fiction.

The authors' survey of sound recordings draws fewer distinctions than the survey of books. A recording is considered "public domain" if the copyright in the sound recording has expired, regardless of the copyright status of the music that has been recorded. While a more sophisticated survey would also examine the importance of public domain music to the price and availability of musical works on copyrighted recordings, the authors' focus on the recording copyright alone is reasonable in light of the ongoing debate in Europe over extending the term of the phonogram copyright. Pollock et al. found that pop-music recordings were on the average roughly seven percent cheaper one year after expiration of their phonogram copyright than they had been one year before expiration.

Besides the analysis of the data, the authors transmit some anecdotal information gathered in the course of the study. According to them

one organization, involved in providing recordings for soundtracks to films and televesion, indicated that out-of-copyright recordings would be 70% cheaper than in copyright ones (£20 thousand to £6 thousand fee).

At the foot of the page (at the time of this writing) is the following, rather chilling, footnote number 11:

The organization explicitly requested to remain anonymous due to fears that an attributed statement could jeopardize his relationship with the large music labels.

This very anonymity makes it difficult to evaluate the ancecdote. What were the "recordings" the organization "provided"? What is the "copyright" referred to in the anecdote: a copyright in the music or a copyright in a recording? And so we know less than we might, apparently because the major labels have given one worker in the music business the impression that they are afraid of the truth, and will retaliate against those who speak it.

I like her already

2010-05-10T17:44:00.000-07:00

Why Hollywood Should be very Nervous about Elena Kagan.
--Because she believes in fair use.

Update 4/22/2011: The link has moved to : http://www.hollywoodreporter.com/blogs/thr-esq/hollywood-nervous-elena-kagan-63877

Mr. Justice Stevens

2010-04-10T06:31:00.001-07:00

Mr. Justice Stevens, in his long service on the Supreme Court, has written many opinions and dissents. But it is his dissent in Eldred v. Ashcroft that is my favorite. Stevens' starting point was that Congress's power to grant "exclusive rights" for "limited times" to "authors and inventors" for "their" writings and discoveries arises from the a single clause in the constitution, so that many of the principles that the court has developed in its patent-law jurisprudence to protect the public from excessive monopoly must apply to copyright law as well.

The court majority in that case had nothing but scorn and contempt for Stevens' dissent, expressed in Footnote 18 of the Court's opinion:

Justice Stevens' characterization of reward to the author as "a secondary consideration" of copyright law...understates the relationship between such rewards and the "Progresss of Science". As we have explained, [t]he economic philosophy behind the [Copyright [C]lause...is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventers." Mazer v. Stein, 347 U.S. 201, 219 (1954). Accordingly, "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge...The profit motive is the engine that ensures the progress of science." American Geophysical Union v. Texaco Inc. 802 F. Supp. 1, 27 (SDNY 1992), aff'd, 60 F. 3d 913 (CA2 1994). Rewarding authors for their creative labor and "promot[ing]...Progress" are thus complementary; as James Madison observed, in copyright "[t]he public good fully coincides...with the claims of individuals." The Federalist No. 43...Justice Breyer's assertion that "copyright statutes must serve public, not private ends"...similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with incentive to pursue private ones.

But as I wrote at the time, it was the majority, not the dissenters, who "understated" important aspects of copyright theory, and "missed the mark" in its analysis:

In Madison's day it might have been possible to assert that the public good "fully coincid[ed] with the claims of individuals", because the scope of copyright did not then include derivative works; did not then include public displays and performances; and only lasted for 28 years at most. Everything else Madison wrote about copyrights and patents shows that he is fully aware that copyright places burdens on the public, and that these burdens can, if they become heavy enough, destroy the coincidence between "the public good" and "the claims of individuals." Justice Stevens's and Justice Breyer's statements are entirely consistent with the cases they site. It is the court majority that "misses the mark", disregarding the clear spirit of the court's earlier copyright dicta and cynically citing Madison in a tendentious way. Justice Stevens does not "understate the relationship between [the] rewards [conferred in the copyright monopoly] and the 'Progress of Science'". It is the court majority that understates --indeed, all but ignores -- the relationship between the public domain and the "Progress of Science."

For completeness' sake, here is a link to Mr. Justice Breyer's dissent in the same case.

The new health-care law

2010-03-23T10:21:00.000-07:00

The infant mortality rate in some of the rural counties of Oklahoma is shockingly high. If there is anything in the new law that, properly implemented, will bring these rates down, then that provision of the new law is to be welcomed.

Public Knowledge's 5-point plan for copyright reform

2010-02-21T07:19:00.000-08:00

Public Knowledge has released a five-point plan for copyright reform that they intend to be the basis of a legislative proposal. The pillars of this plan are:

1) strengthen fair use, including reforming outrageously high statutory damages, which deter innovation and creativity;

2) reform the DMCA to permit circumvention of digital locks for lawful purposes;

3) update the limitations and exceptions to copyright protection to better conform with how digital technologies work;

4) provide recourse for people and companies who are recklessly accused of copyright infringement and who are recklessly sent improper DMCA take-down notices; and

5) streamline arcane music licensing laws to encourage new and better business models for selling music.

Before anything, though, else we need a shorter copyright term. I would consider duration to be implicit in point 3, limitations on copyright. But it is not clear that the folks at Public Knowledge think so. In this article, for example, under "What are the limits of copyright?", they mention only limitations on copyright's scope-- fair use and first sale. Duration is mentioned under the heading "why do we have copyright?" So it seems that the folks at public knowledge don't consider a shorter term of copyright to be part of their 5-point plan, even implicitly. What a disappointment.

Ice storm!

2010-01-30T06:53:00.000-08:00

While not quite as heavy as the ice storm of December 2007, the sleet that fell on central Oklahoma this past Thursday was heavy enough. It was followed by several inches of snow.

Merry Christmas, everyone!

2009-12-27T13:26:00.001-08:00

Happy Thanksgiving, everyone!

2009-11-26T09:12:00.000-08:00

Connecticut, 1665:

[A] solemne day of Thanksgiving to be kept throwout this Colony on the last Wednesday of November, to returne praise to God for his great mercy to us in the continuation of our liberties and priviledges both Civill and Ecclesiastick; and for our peace and preventing those troubles that we feard by forreigne enemies; and for the blessings in the fruits of the earth and the generall health in the plantations.
--J. Hammond Trumbull, Ed., The Public Records of the Colony of Connecticut from 1665 to 1678, P.A. Brown, Hartford, 1852, page 26.

Oklahoma, 2009: The blessings continue.

The Queen's Government proves itself utterly clueless

2009-11-21T16:36:00.000-08:00

The Government of the U.K. has released details of the proposal known as the Digital Economy Bill. The bill contains a number of proposals involving the maintenance and upgrade of the UK's national digital computer network. Lurking among other proposals that might be reasonable is, however, is the following clunker:

creating a robust legal and regulatory framework to combat illegal file sharing and other forms of online copyright infringement and give Ofcom a specific new responsibility to significantly reduce this practice, including two specific obligations on Internet Service Providers: the notification of unlawful activity and, for alleged serial-infringers, collation of data to allow rights holders to obtain court orders to force the release of personal details, enabling legal action to be taken against them;

As discussed here, this will require internet service providers to serve as the entertainment syndicates' private copyright cops. Lousy public policy all around.

Ph34r t3h cute ones (fear the cute ones)

2009-11-07T12:13:00.000-08:00

Don't these dancers look dangerous as they wade through water and rain in warriors' weeds?

In praise of creative freedom 5--Steal this country dance

2009-09-19T10:24:00.000-07:00

It is sometimes said that copyright is an incentive to creation, meaning that the possibility of reward to the author creates an incentive to the author to produce and circulate his (for "author" is a grammatically masculine word, just as "artist" is grammatically feminine) work. This may be true, but it is not the whole story. In order to demonstrate why I think this copyright-as-incentive notion is incomplete, I will describe how I recently created an arrangement of an 18th-century English country dance, Nottingham Castle.

I start with the melody. This melody was first published in the 11th edition of The Dancing Master in 1702, and it is now publici juris. Here is the version of the melody from the 12th edition of 1703. Because the melody is publici juris, anyone may copy it, from here or from anywhere else it occurs:
Next I add backing chords. I use basic chords, I, IV, V and their relative minors (since this is a major melody). My chord-underlay is so simple that it might not even be copyrightable. The United States Court of Appeals for the Second Circuit has held (upholding the Federal District Court for the Southern District of New York) that "cocktail pianist variations" on a musical work do not rise to the level of originality to qualify the variations as a derivative work of the underlying work. (Woods v. Bourne,60 F. 3d 978 (2d Cir. 1995)). The Court of Appeals's opinion in Woods v. Bourne, though, refers to minor variations in the harmonization of an already-harmonized work, so it might not apply to harmonization of a melody ab initio. So I regard it as possible, but not certain, that a simple backing-chord underlay for a publici juris melody is sub-copyrighable under U.S. law.

After adding the backing-chords, I devise a counter-melody consistent with them, though in the course of development I might modify the backing-chords to match the countermelody, rather than writing the countermelody strictly to the chords. The counter-melody is probably copyrightable, since (if it follows the rules of counterpoint) it is an independent melody, which if original (which in this case it is, since I wrote it) would be copyrightable on its own.

Next, if I wish, I can attempt to market my arrangement. If I do so in a way that relies on the exclusive rights provided by copyright, then copyright can be said to have "promoted the progress of science" by encouraging me to bring my setting of the dance-tune to market. What seems to be far less appreciated, but what is far more important, is that even if I do not choose to exploit my work commercially, the copyright law has still promoted the progress of science in this case. It did this by placing the underlying melody, Nottingham Castle, in the public domain where I could draw on it freely. So copyrights promote progress both by existing, and also (and perhaps even more than by their existence) by expiring. The holes (as Professor Boyle so memorably put it) are as important as the cheese.

Now suppose I wish to attempt a somewhat different project. Here is another delightful English country dance-tune called Black and Gray:

I think I could take this melody and splice into it some musical motifs from John Lennon and Paul McCartney's "Elenor Rigby" to create a new composite dance-tune. But though I may have sufficient musical ability to do this, I haven't the right. This is because the air "Elenor Rigby" is copyrighted, and under my country's copyright laws, the copyright holder's bundle of rights includes the right "to prepare derivative works based upon the copyrighted work." Note that the derivation right is not a right "to prepare derivative works for public performance, dissemination, or display." It is an unqualified right "to prepare" derivative works. Any creation of a derivation of a copyrighted work, however private, is prima facie an infringement of the copyright. Working strictly in private might count as fair use. Maybe. Or maybe construing the right "to prepare" derivative works to reach even to purely private acts would be considered unreasonable statutory construction. Maybe. But even if I don't infringe by preparing the new melody privately, I will certainly infringe if I try to post it to the web or circulate it in sheet music. Here, by contrast to the case of my setting of Nottingham Castle, is a case in which copyright law has prevented the progress of science by including a very broad derivation-right in the bundle of rights granted to the rightsholder.

The U.S. copyright law did not always include a derivation-right. The first U.S. federal copyright statute of 1790 applied only to "maps, charts, and books" as they were published. A competing publisher could not enter the primary market for the book until the copyright expired. But derivations, such as translations, abridgements, and musical arrangements, were free, and the public continued to have this freedom for much of the 19th century.

In theory, (as I noted some years ago here) the public has consented, through its representatives, to derogate to copyright holders the freedom it previously had to make derivations of copyrighted works. In theory we did this because the copyright would become more robust and more potentially valuable with this addition, giving an incentive for the production of still more expression, thereby giving us in the end an even larger public domain than we would otherwise have had. In theory, that is, we voluntarily forego our full rights in more recent works in order to have more works than otherwise to exercise our full rights in after a "limited" time.

In practice, as I noted back in 2005, "the public's representatives have not represented the public so much as private interests". We cannot be said to have gotten a good bargain from U.S. copyright law in its present form. The great breadth of copyright's present scope, whatever might be said on its behalf otherwise, is made intolerable by copyright's extremely long duration. The first step toward making the bargain better for the public would be to reduce the duration of copyright from 70 years after the author's death back down to 50 years after the author's death. This would still be too long, especially for such things as computer software. But we should refuse to allow any further expansions to copyright's scope, however arguably reasonable they might otherwise be, until we first get this concession on its duration.

=======

Prior installments in this series:
In praise of creative freedom 4--"He took a straight walk up to Washington city"
In praise of creative freedom 3--"Joined to the heavenly company"
In praise of creative freedom 2--"That song of the Gypsy Davy..."
In praise of creative freedom

James Boyle on the Black Hole of California

2009-09-07T07:39:00.000-07:00

James Boyle has a column (also here) in the Financial Times in which he discusses "the 20th century black hole" of super-long copyright terms, and the possibility that the Google Books settlement might ameliorate some of the Black Hole's effects by allowing orphan works to be available in a snippet-view, so that a researcher can at least get a sense of whether an orphan book would be useful to his research.

Boyle goes on to discuss some of the objections to the settlement. He finds that some of the objections have merit, in particular those brought by other digital libraries (who object that Google will have in effect a monopoly on the digitisation of the orphan works) and by those concerned with privacy (who object that Google will have a record of everyone's access to copyrighted books).

I agree with a lot of the criticisms. Privacy protections could be improved, the monopoly point is a real one and the rights of libraries should be expanded. Some of those points might be fixed before the agreement is ratified. Others may need subsequent scrutiny by privacy and antitrust regulators. Google has responded, persuasively, that many of the problems could be resolved if only we had a rational copyright law in the first place with a safe harbor for the use of orphan works.

Or if we had a shorter term of copyright, there would be fewer orphan works to begin with.

Michael Geist on the principles of copyright reform

2009-09-05T09:03:00.000-07:00

Michael Geist has an article (also here) in the Windsor Star in which he lays out four principles that should guide copyright reform:

(1) balance
(2) technological neutrality
(3) clarity
(4) flexibility

Geist's analysis of how these principles should apply in the drafting of a new copyright statute for Canada are for the most part thoughtful and sensible. But his article doesn't explore the implications of these principles as deeply as it might.

The principle of "balance" for example, if properly applied, would call for a reduction in the term of copyright in books from life+50 years to life+35 years or to an even shorter term. Canada's membership in the Berne Union means that it cannot unilaterally reduce the copyright term for books below life+50 years. But if international copyright agreements allow for shorter terms than Canada currently provides in works other than traditional books, Canada should consider reducing its term of copyright in such works. And nothing prevents the Canadian government from introducing proposals for a duration for traditional writings shorter than life+50 years in meetings of the international copyright councils of which it is a part.

Nor does Geist seem to appreciate that the third and fourth principles are to some extent incompatible with each other, flexibility sometimes coming at the expense of clarity. In the U.S. the law of fair use in copyright is very flexible. But precisely because it is flexible, it is hard to predict in advance whether any use, other than in the simplest cases, will be considered fair. The more the flexibility, the less is the clarity.

Technological neutrality might be a worthy goal, but it is not certain whether it can be achieved. When I read the discussions and debates over the U.S. Copyright Act of 1976, a statute that its drafters intended to be technologically neutral, I am struck by how limited the discussions are to the technological horizon of the time. Perhaps better adaptability would be achieved by planning for frequent revisions of the statute, rather than by attempting for an unachievable technological neutrality.

Hey for Davy Jones

2009-09-01T16:58:00.000-07:00

Andrew Robinson, leader of the Pirate Party UK, has a description of his party's principles in The Guardian. Also in the last two days, news has come that the German Pirate Party may have had some of its candidates seated on municipal councils. If it is asked, why is a party whose main platform consists of proposals for copyright and patent reform have an interest in municipal councils, I think the answer would be: The Pirate Party's platform also contains proposals for communications and privacy policy, which can have local implications; but also, by fielding candidates in local elections, the party is demonstrating its bona fides by showing itself willing to undertake the responsibilities that come with a seat at the policy-making table. They aren't just rich kids who take it for granted that someone else will take care of hauling the trash.

I think I'll go have some rum.

The interview the American Federation of Musicians doesn't like

2009-08-29T08:26:00.000-07:00

Michael Geist reports: At a recent Town Hall Meeting on copyright reform held in Toronto, Olivia Chow, a Member of the Canadian Parliament and a participant at the meeting, attempted to distribute flyers containing an interview with Charlie Angus, another Member of Parliament. In the interview, Angus discusses his views on copyright reform. MP Chow reported that security at the meeting venue attempted to stop her from distributing the flyer. She doesn't say whether they succeeded. She must have distributed a few of the leaflets at least, though, since one fell into the hands of Alan Willaert, the Canadian representative of the American Federation of Musicians. Willaert then sent an email "to representatives of virtually every major Canadian creator group" in which he stated

I am shocked that both Chow and Charlie Angus are allowed to openly depart from party policy and directive, obviously just to shamelessly buy votes among young people and academics. We intend on taking the NDP [the political party of which Chow and Angus are members] to task over this, and will accept nothing less than a retraction of Ms Chow’s statements and an apology.

A quick glance at Angus's interview shows that it is quite moderate. To my great disappointment, Angus doesn't even call for a reduction in the copyright term! He merely states that the previously introduced copyright reform bill, C-61, was ill-drafted, that musical performers need to find new business models, that there needs to be a debate on private file-sharing, and that the U.S. DMCA is not a model to be followed helter-skelter by Canada. Yet the American Federation of Musicians thinks that Angus's moderate statements are inappropriate for a member of a political party that pledged support for "appropriate copyright protection." I think this confirms what I wrote in a previous post: those who have brought U.S. copyright law to its present state (and who wish to bring Canadian copyright law to a similar state) are not all reasonable people with whom one can reasonably disagree. They are, in the realm of the intellect, extremists. Reformers need to keep this in mind.

As a bonus, here is my wish-list for U.S. copyright reform. One wonders what the American Federation of Musicians would make of it:

1) Withdraw from the Berne Convention
2) Reduce the duration of copyright to 60 years maximum for published works. Shorter still would be even better.
3) If the term of copyright in published works is greater than 50 years, require formalities for the copyright to be fully effective beyond the 50th year. If the formalities are not complied with, the copyright would subsist for the full term, but remedies would be much reduced.
4) Repeal the DMCA's "device" and "circumvention" provisions.
5) Automatic termination of all assignments at fixed intervals.
6) Author's successors to be specified by statute. Possibly not even the author would be allowed to will the copyright to anyone else. This, together with the automatic termination, will prevent excessive fragmentation of rights and provide for easy identification of the rightsholder.
7) Provide for more generous margin of fair use. For example: (a) peer-to-peer computer file exchanges to be free, and (b) the judges' distinction between "satire" and "parody" is unworkable: both should be fair uses.
8) Scrap copyright in architectural works themselves. Blueprints will of course remain copyrightable.
9) Amend the law of trademark to focus more narrowly on graphical marks (no sounds.) Burden to be chiefly on mark-holders to inform the public to look for its mark and beware of imitations. Any publisher, for example, should be permitted to publish Beatrix Potter's Peter Rabbit in an edition of the same dimensions as the Warne editions. The public would need to take care to look for the Warne mark if it wanted Warne editions.

But they are evil monopolists

2009-08-27T17:28:00.000-07:00

An anonymous commentator, posting to William Patry's new blog wrote:

Quite frankly, it does seem a bit silly and unproductive all the constant bickering, to wit: "It's property!", "It's monopoly!", etc., etc.

Why not call a truce and simply agree to disagree about an issue as to which there is no clear answer? Treat the issue for what it really is, a political question over which reasonable minds can differ, and then in lieu of argument direct one's energy to participation within the political process?

To which Bill Patry replied:

Anonymous, I agree with you wholeheartedly: in the book (page xviii), I point out that those who oppose copyright owners' recent efforts use their own rhetorical devices, "The purported folk devils employ their own rhetorical devices, describing copyright owners as dinosaurs, Luddites, and evil monopolists out to squelch freedom of expression, and out to force corporate culture down the public’s throats. "

I, however, find Patry's response here to be naive. The Copyright Term Extension Act (CTEA), and the "device" and "circumvention" provisions of the Digital Millennium Copyright Act (DMCA) are in and of themselves acts of copyright extremism. They are acts of force and violence against human intellectual freedom. Anyone who does not call for the repeal of these legal provisions becomes, by that very silence, in the realm of the intellect a violent extremist. Any such who then calls for a reduction in the rhetorical temperature of the debate is merely a hypocrite, since they have already consented to acts that are far more extreme than any words.

Goodbye, Ted

2009-08-26T07:37:00.000-07:00

However favorably I remember Edward Kennedy, the late Senator from Massachusetts, on other grounds, my opinion will always be qualified by the memory that Kennedy could have opposed the Copyright Term Extension Act of 1998. He could have, and he didn't.

Mike Masnick inverviews Bill Patry

2009-08-25T16:33:00.000-07:00

There is an interesting interview with Bill Patry over at Techdirt. The former professor, now a corporate lawyer for Google, states that he began in copyright holding a position close to copyright maximalism, but his views began to evolve when, as a member of Congressional Committee staff, he began to reflect more deeply on copyright's public purposes.

1998 was a watershed year for me, with term extension and the anti-circumvention parts of the DMCA, which, in tandem represent the Rubicon for me, the point at which copyright became unmoored from its fundamental purposes.

Indeed, back in "the days of '98" I found then Professor Patry's 1997 journal article "The Failure of the American Copyright System: Protecting the Idle Rich" (72 Notre Dame Law Review 907, May 1997) to be helpful and inspiring as I was trying to develop and articulate my own copyright philosophy.

Mike asks, "For many of us who are concerned about what copyright law has become, what do you think is the most effective way to change things?" Patry's answer is

I would talk to Michael Geist in Canada. He is, to me, the single most effective advocate for the public voice in copyright debates. He is also respected by many Canadian government officials. We do not have anyone remotely like him. It's not enough to rail about things you don't like, or have a following of people who idolize you. And that, unfortunately, is the rut we are in here.

This is perhaps one of the most important statements in this important interview. American conditions are very different from Canadian, of course. What would it take to develop a voice on behalf of the public domain that politicians would hear? If it can't be done nationally at first, can it be done in one state, so that the Senators of at least one state, before they cast their votes on copyright matters, have the decency to consult those who speak for the public domain? If it can't be done in one state, can it be done in one congressional district, so that there is at least one Congressman who is willing at least to listen to those who would challenge the maximalists' lies?

Copyright scorecard--what have we gotten in exchange for giving up our freedom?

2009-08-23T15:32:00.000-07:00

Over the past 50 years, the copyright monopolists have gotten almost everything they asked for in expansions of copyright:

1) The copyright act of 1976, which greatly expanded U.S. copyright's scope and duration both.
2) The elimination of the renewal requirement in the early 1990s.
3) A levy on all blank digital audio tapes.
4) An open-ended anti-bootlegging provision forbidding trade in unauthorized recordings of public musical and dramatic performances.
5) The Copyright Term Extension Act of 1998, which extended pre-1978 copyright from 75 years to a whopping 95 years from publication.
6) The Digital Millennium Copyright Act of 1998, which added additional barriers, in the form of its "device" and "circumvention" provisions, to the public's use of digital works.

For this great give-away to the robber-barons, the public has gotten very little in exchange:

1) The Audio Home Recording Act, with its extremely stingy wording. It does not state that the public has freedom to make home recordings, only that "no action shall be brought" against someone who does.
2) The narrow "homestyle exemption" to public performance licensing requirements.
3) As part of the Copyright Term Extension Act, some additional narrow leeway in the exemptions from public performance licensing requirements for small clubs and restaurants. The enemies of this provision, who were supporters of the term extension, have obtained, or at least rooted for, a World Trade Organization ruling against the expanded licensing exemptions, possibly as part of a back-door strategy for their repeal.
4) As part of the Digital Millennium Copyright Act, some safe-harbor provisions for internet service providers and a few technical provisions applying to software copyright.
5) Replacement of the state and common-law right of first publication (RFP) and anti-bootlegging right in phonograms with a uniform federal copyright in unpublished works. Note that there is less here than meets the eye. In particular, those who claim that this is a replacement of a "perpetual common-law copyright" with a limited copyright are not telling the truth. The common-law right was only a right of first publication, not a "common law copyright". And it was not "perpetual", merely indefinite.

Nor can it be said that we have gotten more creative works in exchange for what we have sacrificed. The duration of copyright was increased by 27% by the Copyright Term Extension Act. We should, then, have gotten 27% more new music, films, and books entirely due to the term extension alone. If the major labels and major film studios are producing a quarter again more than they were in 1997, it is not obvious. Even if they are producing more, it is not self-evident that the increase in production is due to the term extension, and the term extension alone.

Lord Kames's opinion in the case of Hinton v. Donaldson (1773)

2009-08-22T09:40:00.000-07:00

I have finally acquired the full text of Lord Kames's opinion in the important Scots Session case of Hinton v. Donaldson (Scots Court of Session, 1773). Previously I have had only extracts available to me.

This was the Scottish counterpart to the well-known English case of Donaldson v. Beckett (House of Lords, 1774) and the American case of Wheaton v. Peters (33 U.S. 591, 1834), all of which held that copyright is entirely a creature of statute. Hinton v. Donaldson was the first of these three important cases to be decided.

The first edition of Thomas Stackhouse's New History of the Holy Bible had been published folio in 1737, though it may have been published in a smaller format earlier. The second edition was published in 1742. Since Stackhouse died in 1752, the copyright in the first edition lasted for 28 years, expiring no later than 1765. (The copyright in the matter new to the second edition would have expired after 14 years, in 1756. Since Stackhouse was no longer alive at the end of this term, under the provisions of the Statute of Anne, the copyright was not renewed. But the matter in the second edition that had been in the first edition was still under the original copyright.) After the expiration of the copyright, Alexander Donaldson, of Edinburgh, brought out a new edition of the work. Hinton filed suit under the theory of "common-law copyright", that is, that copyrights were perpetual under the common law, the Statute of Queen Anne merely reinforcing them. The case was decided by the Scots Court of Session which held 11-1 for Donaldson, rejecting the theory of common-law copyright. The judges delivered their opinions on July 27th, 1773, and judgement was formally entered on July 28.

Voting for Hinton was Lord Monboddo.
Voting for Donaldson were Lord Justice Clerk, Lord Alva, Lord Auchinleck, Lord Coalston, Lord Elliock, Lord Gardenston, Lord Hailes, Lord Kames, Lord Kennet, Lord Pitfour, and Lord Stonefield.

Hinton's complaint, the Judges' opinions, and the court order were published by James Boswell (who was one of Donaldson's counsel) in early 1774 under the title The Decision of the Court of Session upon the Question of Literary Property in the Cause of John Hinton of London, Bookseller, Pursuer; against Alexander Donaldson and John Wood, Booksellers in Edinburgh, and James Meurose, Bookseller in Kilmarnock, Defenders. This pamphlet may have been available to the English Lords at the time they were hearing the case of Donaldson v. Beckett.

Though in one place Kames expresses what may be deemed an aristocratic disdain of those who write for money, this does not impeach even the part of his opinion in which it occurs, though those who hate the public domain might wish to claim that it does. Kames plausibly holds that if every book ever written were under copyright, the market for books would contract and there would be less work for writers.

Kames's "Goths and Vandals" remark may be said to exaggerate the deadweight losses that copyright imposes on the book trade. But that these deadweight losses exist is beyond doubt. Kames rightly sees that a competitive market for editions of a book is better than a monopolistic one.

Lord Kames's opinion follows here.
======
LORD KAMES. What may be the law of England, with respect to the question at present under deliberation, I pretend not to know. Nor is it necessary that I should know; because an alleged trespass committed in Scotland against the pursuer, and prosecuted for damages in the court of Session, must be determined by the law of Scotland.

I know no foundation for damages, but a breach of contract, which is not pretended in this case; or an injury to one's person or character, which is as little pretended; or a hurt to his property; and this last is the ground upon which damages are claimed.

Let us enquire into the nature of the property here insisted on. The meaning of property, in the laws of all nations, is a right to some corporeal subject, that can be possessed, that can be transferred from hand to hand, that goes to heirs, that may be stolen or robbed, and that may be demanded by a real action, termed rei vindicatio. The pursuer's right is not of that nature. When a man composes a book, the manuscript is his property: if it be stolen from him, he may demand it by a rei vindicatio: it may be gifted by him, or sold. But by such gift, or sale, the property is transferred to the purchaser: he has now the same right over it that the composer had originally: he may suppress it, or he may publish it to the world.

What is then the nature of the pursuer's right? He does not pretend to say, that it is a right to any corpus, to any subject that can be possessed, or that can be stolen from him. Ergo, it is not property. Taking it in all views, no more can be made of it than to be a privilege or monopoly, which entitles the claimant to the commerce of a certain book, and excludes all others from making money by it. The important question then is, from what source is this monopoly derived, a monopoly that endures for ever, and is effectual against all the world? The act of Queen Anne bestows this monopoly upon authors for a limited time upon certain conditions. But our legislature, far from acknowledging a perpetual monopoly at common law, declares that it shall last no longer than a limited time.

But to follow out the common law. The composer of a valuable book has great merit with respect to the public: his proper reward is approbation and praise, and he seldom fails of that reward. But what is it that entitles him to a pecuniary reward? If he be entitled, the composer of a picture, of a machine, and the inventor of every useful art, is equally entitled. Such a monopoly, so far from being founded on common law, is contradictory to the first principles of society. Why was man made a social being, but to benefit by society, and to partake of all the improvements of society in its progress toward perfection? At the same time, he was made an imitative being, in order to follow what he sees done by others. But to bestow on inventors the monopoly of their productions, would in effect counteract the designs of Providence, in making man a social and imitative being: it would be a miserable cramp upon improvements, and prevent the general use of them. Consider the plough, the loom, the spinning wheel. Would it not sound oddly, that it would be rank injustice for any man to employ these useful machines, without consent of the original inventors and those deriving right from them? At that rate, it would be in the power of the inventors to deprive mankind both of food and raiment. The gelding of cattle for food, was not known at the siege of Troy. Was the inventor entitled to a monopoly so as to bar others from gelding their cattle? What shall be said of the art of printing? If the monopoly of this useful art was to be perpetual, it would be a sad case for learned men, and for the interest of learning in general: it would enhance the price of books far beyond the reach of ordinary readers. Such a monopoly would raise a fund sufficient to purchase a great kingdom. The works alone of Shakespeare, or of Milton, would be a vast estate. Te art of making salt water fresh is a very late invention. Was it ever dreamed to be a transgression against property, to use that art without consent of the inventor?

I observe, in the next place, that this claim, far from being founded on property, is inconsistent with it. The privilege an author has by statute, is known to all the world. But I purchase a book not entered in Stationer's hall; does it not become my property? I see a curious machine, the fire engine, for example. I carry it away in my memory, and construct another by it. Is not that machine, the work of my own hand, my property? I buy a curious picture, is there any thing to bar me from giving copies without end? It is a rule in all laws, that the commerce of moveables ought to be free; and yet, according to the pursuer's doctrine, the property of moveables may be subjected to endless limitations and restrictions that hitherto have not been thought of, and would render the commerce of moveables extremely hazardous. At any rate, the author of avery wise or witty saying, uttered even in conversation, has a monopoly of it; and no man is at liberty to repeat it.

Lastly, I shall consider a perpetual monopoly in a commercial view. The act of Queen Anne is contrived with great judgement, not only for the benefit of authors, but for the benefit of learning in general. It excites men of genius to exert their talents for composition; and it multiplies books both of instruction and amusement. And when, upon expiration of the monopoly, the commerce of these books is laid open to all, their cheapness, from a concurrence of many editors, is singularly beneficial to the public. Attend, on the other hand, to the consequences of a perpetual monopoly. Like all other monopolies, it will unavoidably raise the price of good books beyond the reach of ordinary readers. They will be sold like so many valuable pictures. The sale will be confined to a few learned men who have money to spare, and to a few rich men who buy out of vanity as they buy a diamond or a fine coat. The commerce of books will be in a worse state than before printing was invented: at that time, manuscript copies might be multiplied at pleasure; but even manuscript copies would be unlawful if there were a perpetual monopoly. Fashions at the same time, are variable; and books, even the most splendid, would wear out of fashion with men of opulence, and be despised as antiquated furniture. The commerce of books would of course be at an end; for even with respect to men of taste, their number is so small, as of themselves not to afford encouragement for the most frugal edition. Thus booksellers, by grasping too much, would lose their trade altogether; and men of genius would be quite discouraged from writing, as no price can be afforded for an unfashionable commodity. In a word, I have no difficulty to maintain that a perpetual monopoly of books would prove more destructive to learning, and even to authors, than a second irruption of Goths and Vandals. And hence with assurance I infer, that a perpetual monopoly is not a branch of the common law or of the law of nature. God planted that law in our hearts for the good of society; and it is too wisely contrived to be in any case productive of mischief.

Our booksellers, it is true, aiming at present profit, may not think themselves much concerned about futurity. But it belongs to judges to look forward; and it deserves to be duly pondered whether the interest of literature in general ought to be sacrificed to the pecuniary interest of a few individuals. The greatest profit to them ought to be rejected, unless the monopoly be founded in common law beyond all objection: the most sanguine partisan of the booksellers will not pretend this to be the case. At the same time, it will be founded upon the strictest examination, that the profit of such a monopoly would not rise much above what is afforded by the statute. There are not many books that have so long a run as fourteen years; and the success of books upon the first publication is so uncertain, that a bookseller will give very little more for a perpetuity, than for the temporary privilege bestowed by the statute. This was foreseen by the legislature; and the privilege was wisely confined to fourteen years; a sufficient encouragement to men of genius without hurting the public interest. The best authors write for fame: the more diffused their works are, the more joy they have. The monopoly then is useful only to those who write for money or for bread, who are not always of the most dignified sort. Such writers will gain very little by the monopoly; and whatever they may gain a present, the profits will not be of long endurance; a monopoly would put a final end to the commerce of books in a few generations. And therefore, I am for dismissing this process as contrary to law, as ruinous to the public interest, and as prohibited by the statute.

Bill Patry hits hard

2009-08-17T06:27:00.000-07:00

In the ongoing debate at Bill Patry's new blog, Bill Patry is giving a good overview of the robber-barons' contempt of the public interest:

when a few years ago my wife got me a video iPod, I discovered I couldn't upload my DVDs to it, even though I can upload my CDs, thanks to the movie industry's insistence that I not be able to. This has nothing to do with piracy (a term I will use here for massive, non-transformative copying). The Betamax case had nothing to do with piracy, nor did the industry's decision to prevent hardware manufacturers, via DRM, from including a record button on DVD players, thereby effectively repealing the Betamax decision through DRM. The Cablevision RS-DVR case had nothing to do with piracy. The suit against Redbox and the licensing issues with Redbox have nothing to do with piracy, anymore than the industry's earlier attempt to control the video rental market in the mid-1980s. The term of copyright protection has nothing to do with piracy. Then there is the music industry side, where I previous gave examples of MP3.com and Launchcast, but there are many, many more. Even book authors embarrassed themselves this year by complaining about the text-to-speech feature on the Kindle 2.

Read the whole thing here.

Would The Beggars' Opera be possible today?

2009-08-08T10:49:00.001-07:00

If John Gay (1685-1732) had had to produce The Beggars' Opera under today's copyright rules, would he have found it possible? Gay, and his musical editor Johann Christoph Pepusch (1667-1752), did not write a single one of the 69 melodies that were used in the play. Here is a back-of-the-envelope computation of what it might cost in clearance fees to licence the melodies if today's copyright rules had been in force in 1728.

Of the 69 airs in John Gay's The Beggars' Opera, 18 have been attributed by the musicologist W.H. Grattan Flood ("The Beggars' Opera and its composers, Music and Letters, 3(4), 402-406, October 1922.) to nine known composers. Of these nine, 7 were still alive in 1728 when The Beggars Opera was first performed. The two who were already dead, Henry Purcell (died 1695) and Jeremiah Clarke (died 1707) had been dead for less than 50 years. Under a life-plus-50 or life-plus-70 rule, then all 18 of the airs by known composers would have been under copyright in 1728.

Here are the composers with the airs attributed to them by W. H. Grattan Flood

Composer	Year of death	Airs in The Beggars' Opera
John Barrett	1735	#30, #55, #58
Giovanni Batista Bononcini	1747	#4
Henry Carey	1743	#34, #59
Jeremiah Clarke	1707	#2, #51, #66
John Eccles	1735	#11
G. F. Handel	1759	#20, #28
Richard Leveridge	1758	#15
Jean Joseph Mouret	1738	#22
Henry Purcell	1695	#6, #31, #41, #60

What would it have cost to license these songs today? Licensing the dramatic performance of a melody comes under the heading of so-called "dramatic performance rights" in the music business. I was unable to find quotes of typical licensing fees for dramatic performances of music. (Leave a message in the comments if you know of an appropriate figure.) However, to license a melody for background music in a medium-budget television soap opera costs around a thousand dollars. [1][2], though it can be lower or higher. This is for background music not for use as a song-tune. One of the web-sites linked above points out that

Due to the more extensive production aspects and higher aesthetic value placed on songs compared to instrumental music, special licensing rates apply. Song licensing is determined on a per project basis according to production budgets and venues of distribution.

In the case of The Beggars' Opera Gay would need to license each melody as a song-tune for which new words were to be written. These fees might run much higher than the 1000.00 figure we have found.

Proceeding anyhow with the $1000.00 figure since it is the only one we have, we get a clearance fee of $18,000.00 for the 18 melodies.

The computation so far assumes that only the 18 airs attributed to known composers would need to be licensed. Yet it is possible that most of the 69 melodies used in the Beggars' Opera were recent enough to have been under copyright by today's rules. Only a few, such as Packington's Pound (Air #43)and Greensleeves (Air #67) can be traced to the late 16th or early 17th century. And even in the case of these two airs, the version used by Gay was not necessarily the oldest version of the air. Hence the $18000.00 figure may be, if anything, an under-estimate.

By any computation under today's rules, then, John Gay would have had to spend a tidy sum in clearance fees before a single actor or musician was hired or a single costume was sewn. While the $18,000.00 sum computed above is small compared to the multimillion-dollar budget of a major broadway production, it is equal to "the average total production budged for an Off-Off Broadway show" [3], and would not be a trivial line-item in the budget of a half-million dollar Off-Broadway show [4]. Were Gay working under today's rules, he might well have found the creation of The Beggars' Opera cost-prohibitive due to copyright clearance fees alone.

The new tiger of corruption

2009-08-02T16:27:00.000-07:00

For many years I have been hoping that an artist or cartoonist would update Thomas Nast's famous 1871 Tammany Tiger to portray the developments of copyright law in our time. The sketch below shows the sort of thing I have in mind, what a tiger for our times might look like. Clearly it is nothing more than a mock-up or plausibility argument: All I did was clip Nast's picture from an out-of-copyright book and add some labels. A real draftsman or cartoonist could do far better, giving the tiger a more contemporary look and feel, and making the members of the Tammany Ring in the stands look like our modern robber-barons. And Congresswoman Bono should be up there next to Senator Hatch.

Click on the picture for a bigger view.

Lammas Day Post--Mockingbirds must be free to sing!

2009-08-02T11:04:00.000-07:00

This note was first posted to the original edition of this blog on Lammas Day (August 1st) 2005, as an entry in the Electronic Frontier Foundation's Blog-a-thon. I am re-entering it here because I think the issues are as important as ever.

I was one of the "men of '98" who opposed the 1998 Copyright Term Extension Act. Our opposition failed; the bill became law. Now, in 2009, we are about half-way through the extra 20 years that Congress gave to the copyright barons. If they are not extended again, copyright in works published in the U.S. before 1978 will again begin expiring on January 1st, 2019. We men of '98 predicted in 1998 that we would begin to hear calls for another extension beginning around 2015. In fact we were off be several years, for those calls have already begun.

Here follows the original 2005 post:
-------------------------------------

In late 1997 I found Professor Dennis Karjala's web site, Opposing Copyright Extension. I was dismayed to learn that Congress was considering extending an already generously long copyright term, seventy-five years, to a ridiculously long term of ninety-five years. What dismayed me even more was the tone taken by some of the extension's supporters: Some were going so far as to express a desire to destroy the public domain. Mary Rodgers, daughter of songwriter Richard Rodgers, was quoted in 1995 as saying "I wish, in a way, the public domain did not exist at all." (Robert Kolker, "Theatres on alert as Congress looks at copyright law", Back Stage volume 36 number 9, March 3, 1995, page 3.) Perhaps the clearest expression of this spiteful attitude was this statement, submitted to the U.S. Supreme Court in 2002, of the Nashville Songwriters Association International:

[C]opyright never removes any existing knowledge from the public domain. It merely postpones the legal piracy of a particular way of expressing that knowledge. (Brief Amici Curiae of the Nashville Songwriters Association International in support of Respondent, in the case of Eldred v. Ashcroft , August, 2002, page 10, footnote 7.)

By calling the public's use of the public domain "piracy", these writers are implicitly claiming that copyrights should never expire, and that publici juris literature should not exist. For Orthodox Jews to copy the Hebrew Pentateuch onto vellum scrolls without first securing permission from whoever should be the owner of copyright in every single passage of every single book, must be "piracy" according to the Nashville Songwriters Association International. To reprint the metrical psalms of Isaac Watts in a hymnal, without permission of whoever should be the owner of copyright in the lyrics of Isaac Watts, must be "piracy" in their view. To change the words of Isaac Watts in accordance with developments in theological understanding, and to print the altered words, must be double "piracy" according to the NSAI, since not only the right to reprint but also the right to prepare derivations has been infringed.

Fortunately I was not the only one to notice this rhetorical onslaught made by greed's legions against the very idea of human intellectual freedom. Professor Karjala had noticed; it was through his web site that I had been alerted to the matter. And another law professor, Paul Heald, had contributed an article to the Duke Law Jounal titled "Reviving the Rhetoric of the Public Interest: Choir Directors, Copy Machines, and New Arrangements of Public Domain Music" (Duke Law Journal, 46(2),241-290:1996), in which he discussed the tendency of some music publishers to claim copyright on almost everything they published regardless of the merits of the claims, and made some commonsense suggestions for weighing such claims in the case of church music.

Indeed, church music and church writings provide cases that make the inherently shared nature of music and letters especially clear. Even considered apart from their claims concerning transcendant numinous reality, Christian churches are human cultural enterprises that span multiple generations. Each generation recieves the tradition from the previous one, modifies it, and passes it on to the next. This process operates not just on tradition considered as an undivided collective enterprise, but to individual components of the tradition as well. In the particular case of church music, for example, a melody that is introduced by one generation for use as a church-tune might continue to be used in this way for generations, either unchanged (as in the case of the Old Hundredth Psalm Tune) or modified (as in the case of the American tune "Nettleton") or both (as in the case of some German Chorale melodies which exist in variant versions with different rhythms). Other melodies are added to the common pool as age succeeds age, some are discarded, and some are discarded for a time only to be recovered later. The same processes also operate in the field of the lyrics to congregational hymns and choral anthems. Scriptural and other traditional poetry is sometimes sung or recited in its original languages, but often it is translated into the local idiom, and this process is repeated by successive generations due to changes in language and literary taste, or simply because a new translator wishes to try his hand at the task. New translations and new lyrics in turn become part of the common pool, to be modified, revised, or translated into new languages in their own turn. The words to the familiar Christmas hymn "Hark the Herald Angels Sing", for example, as they are now printed in one American Hymnal, are the end-result of a long accumulation of such revisions over many generations.

These examples are drawn from the music and devotional poetry cultivated within the Christian traditions of northwstern Europe, since I know those traditions' music and letters best. But I suspect that one can find equally good examples illustrating the shared nature of human music and letters in other Christian traditions, in the traditions of non-Christian religions, and indeed in the music, letters, and other activities of many societies.

There are ancient cathedrals which, apart from their consecrated purpose, inspire solemnity and awe....The labor of generations of architects and artisans has been forgotten, the scaffolding erected for their toil has long since been removed, their mistakes have been erased...[and] we are impressed as by some superhuman agency. But sometimes we enter such an edifice that is still partly under construction; then the sound of hammers, the reek of tobacco, the trivial jests bandied from workman to workman, enable us to realize that these great structures are but the result of giving to ordinary human effort a direction and a purpose.

These words are not from a book about architecture, religion, or literature, but from the preface to Thermodynamics by G. N. Lewis and Merle Randall. In their preface, Lewis and Randall compared some aspects of the scientific enterprise to the building of cathedrals. Perhaps such a comparison can be extended to still more areas of human life. Perhaps the ability to draw freely on the past in order to create in the present could be used as part of a definition of civilization itself.

But regardless of how far the cathedral-building metaphor can be generalized, the examples given above make it clear that one's ability to work well in at least some fields of music and letters depends on the extent of one's freedom to use the works of the past without hindrance. The formation, maintenance, and development of literary and musical tradition flourishes in freedom. Each generation has the inherent human right to be free to make its own additions and modifications to the shared pool of music and letters.

All copyright law infringes on this basic human freedom. When copyright laws are carefully limited, it is at least arguable that in the end we gain more than we lose: through the law of copyright we restrain ourselves from using the most recent literary and musical expression as if it were fully part of the common pool, but in exchange we get a stable market for such works, and, we hope, more such works. When copyright monopolies are decently limited, recent but not-too-recent works are added to the common pool as the monopoly restrictions on their use expire, and so in the end the common pool will be larger than it might otherwise have been. But copyright laws in the United States and many other places have now exceeded reasonable limits in their durational provisions. In this situation, we lose freedom and gain nothing. The loss of freedom is made sadder because the freedom we lose has its utility doubted by many who rely on it without even realizing that they do so. They simply fail to realize the worth of what they have lost. Moreover, an army of cultured despisers, aiding and abetting the corporate interest and the forces of avarice, adds insult to the injury when, as in the case of the Nashville Songwriters Association International, it heaps contempt on this worthwhile freedom to use the literary and musical expression of the past without restriction in the present.

So the "copyfight", as it has been called, continues. For me, that means continuing to assert, even if none will listen, that the freedom to draw from the shared fountain of musical and literary expression of the past -- known to lawyers as the public domain, or the works that are publici juris -- is a freedom that exists, and ought to exist as a matter of right, and that needs no justification. It is the monopoly restrictions that the law builds by taking away parts of this freedom from us--the so-called copyright laws--that need to justify themselves over and over again, and to be kept within reasonable limits by a watchful public.

Blog-a-thon tag: EFF15

Eric Felten weighs in on the NPG/Wikimedia spat

2009-07-31T05:08:00.000-07:00

Eric Felten has an article in the Wall Street Journal about the dispute between the U.K.'s National Portrait Gallery and Wikimedia Commons over high-resolution images of portraits that were uploaded to the latter. Felten concludes

Copyright law exists for a purpose: to make creativity pay. Making accurate photographic copies of paintings is no doubt valuable and involves painstaking work. But it isn’t—and isn’t meant to be—creative. With all the digital assaults on the old copyright verities, the champions of intellectual property can’t afford to waste their energies trying to monopolize images that already properly belong to us all.

Felten seems to think that the Bridgeman case was correctly decided. Even if he does not, I think so. If faithful reproductions of public-domain artworks turn out to be under-produced as a result of the Bridgeman rule, Congress can create special, short-duration, narrow-in-scope sui-generis protection for such reproductions.

Artistic fossilization?

2009-07-29T19:14:00.000-07:00

Carol Strickland has an article in the Christian Science Monitor about the Cunningham Dance Foundation, now beginnings its work of managing the posthumous licensing of Merce Cunningham's dances. The article, however, places the Foundation's work in the wider context of ongoing debate about copyright. Strickland's discussion is fairly well informed, though it contains this clunker:

Copyright, which extends for 70 years after an artist's death, exists to protect a creator's property rights and income.

Wrong. Copyright does not "exist to protect a creator's property rights and income". It exists to enlarge the public domain. But Strickland's main purpose here is to introduce the topic of debate with the immediately following sentence: "Many argue cultural content should be in the public domain sooner, available to future generations to build upon and freshen."

Indeed, it is the long posthumous period (now 70 years in the U.S.) that can be destructive of an artist's legacy. Simon Hattenstone noted in 1991 that

Britain's most notorious instance of artistic suppression surrounded the comic operas of Gilbert and Sullivan. Until the copyright [in Gilbert's librettos] lapsed in 1961, 50 years after Gilbert's death, the D'Oyly Carte Opera Company held a monopoly on all professional performances of the G&S repertoire. The result was a total mummification of the works: not a note of music could be sung differently...."
--Simon Hattenstone, "Keep open the routes to the past", The Times (London), November 5, 1991, Arts p. 14.

Hattenstone went on to note that The New Grove held that the expiration of copyright in Gilbert's work "proved Salutary, leading to...an all-round improvement in standards and a reawakening of imaginative interest." (Entry "Sullivan, Arthur", in The New Grove Dictionary of Music and Musicians Vol. 18, at p. 359. The re-written article on Sullivan in The New Grove Second Edition, however, does not contain this statement.)

Since copyright now lasts so long, a foundation like the Cunningham Dance Foundation will be active for several generations. The second generation might have a different outlook from the first. The third, different from the second. And these successive boards will not always be wise and appreciative of the creative process. In the end, the only way to make sure that Cunningham's dances do not fossilize as Gilbert and Sullivan's operettas are said to have done, is for the copyrights in them to expire.

Air on 4 chords

2009-07-23T20:01:00.000-07:00

I saw an article about the copyright dispute between singer/songwriter Joe Satriani and the band Coldplay. Satriani, according to the reports, thinks that Coldplay's song "Viva la vida" copies from Satriani's song "If I could fly."

I decided to test my skill at creating a musical air on the 4-chord underlay that Coldplay use. These chords, transposed into the key of G, are C, D, G, E-minor. (Analysis on YouTube here). So I laid out four repetitions of these chord changes and wrote a melody, and, wouldn't you know it? Parts of my melody sound superficially like parts of Satriani's "If I could fly" and Coldplay's "Viva la vida".

Here is my "Air on 4 chords:"

Before I began writing I had heard parts of both songs a couple of times, but I could not have sung them back. So unconscious copying is not likely unless my memory for popular airs is better than I thought!

Maybe Coldplay copied from Satriani. But I think Satriani might need to consider the possibility that two independently-created airs on similar chord progressions can often have points of fortuitous resemblance to each other.

And again...

2009-07-22T05:20:00.000-07:00

Recently Amazon sold copies of George Orwell's Animal Farm and Ninteen Eighty-Four to customers. When it discovered that the supplier it had bought the books from didn't have a license for U.S. distribution of these works (where they are still under copyright), Amazon deleted the two e-books from customers' accounts. When the customers re-synced their kindles, Amazon's software re-configured the Kindles to agree with the content of the accounts on Amazon's computers--which meant that the two ebooks were deleted from those customers' Kindles.

Much is being written about the incident. The point I want to stress is this: If Nineteen Eighty-Four was first published in the U.S. in 1949 (the year of its publication in the U.K.,) and if the term of U.S. copyright had stayed at 56 years as it was in 1949, then Nineteen Eighty-Four would have been promoted to the public domain on January 1st, 2006, and the unlicensed copies Amazon had acquired would have been legal for distribution in the U.S. Likewise Animal Farm, if the year of its U.S. publication was 1945, would have entered the U.S. public domain on January 1st, 2002. It too would then have needed no special license for U.S. distribution.

Pissed at Sotomayor

2009-07-13T05:21:00.000-07:00

Of course Judge Sotomayor should be confirmed in the post to which President Obama has appointed her. But that doesn't mean our Senators shouldn't ask her some sharp questions first.

In 2001, the United States Court of Appeals for the Second Circuit ruled on an appeal from an award of $813,724.25 in attorney's fees to HyperLaw in the case of Hyperlaw v. West. The 2nd circuit vacated the district court's award of attorney's fees and remanded the case. The 3-judge panel reaching this decision consisted of judges, Straub, Sotomayor, and Spatt. The opinion, by Judge Straub, included the following statement as footnote 8:

The District Court noted that, in light of West's "violation" of 17 U.S.C. § 403, "HyperLaw's action vindicated the public interest in wide dissemination of federal judicial opinions." We differ with this statement. The public interest that copyright law is designed to promote is the wide availability of creative works. See Fogerty, 510 U.S. at 527 ("[C]opyright law ultimately serves the purpose of enriching the general public through access to creative works . . . ."); id. at 534 n.19 (goal in awarding fees is to be "faithful to the purposes of the Copyright Act"). Judicial opinions are decidedly not creative works.

But as I noted at the time in a post to the cni-copyright forum,

The Court of Appeals is wrong in this statement. The district court was right. The Court of Appeals fails to distinguish the purpose of copyright law from the purpose of the copyright monopoly (which is only one part of copyright law.) Copyright's purpose is to enlarge the public domain in useful writings. "Useful" here means that they can be productively "used" for learning, entertainment, further production of new works, or other purposes. The purpose of the copyright monopoly (a prominent feature of copyright law, but not its only feature) is to encourage authors to release original writings to the world so that they will enlarge the public domain. Hence the monopoly is in theory awarded only to those works that would not be released but for the benefits of the monopoly. Since judicial opinions must be written and released in any case, it makes no sense to burden the public by granting anyone a monpoly in them. Hence the copyright LAW explicitly withholds the copyright MONOPOLY from these works, and injects them into the public domain at once. But this witholding of the monopoly still works the law's purpose of enlarging the public domain. Hence the district court was right that Hyperlaw was defending the public's interest by defending the public domain. This is true regardless of whether the circumstances warrant an award of attorneys' fees or not. Hyperlaw defended the public domain by not allowing the ways of the law-publishing trade to expand by stealth the subject matter of copyright beyond its statutory limits.

The Hyperlaw decision defended the public domain in more than judicial opinions. My understanding of West's position is that it claimed that its editing cast a pall of creativity over its reports. If that is true, then if West had prevailed, slight editing would have been used by others as an excuse to monopolize other government documents and copyright-expired expression: This is precisely the outcome that the 2nd Circuit, in its Batlin decision, stated was unacceptable. Indeed it's hard to see how the Batlin decision and footnote 8 in the Hyperlaw attorneys'-fee reversal issued from the same court.

Judge Sotomayor voted to deny HyperLaw attorney's fees. Twice. She sided with the Big Money against the little guy. And the grounds for it, expressed in footnote 8 of the first opinion, were clearly erroneous. Though footnote 8 in the first opinion was written by Judge Straub, not by Judge Sotomayor, Judge Sotomayor put her name to it. I hope the Senators ask her why.

"We want to drink your blues"

2009-07-10T19:44:00.000-07:00

James Boyle discusses the production process for the new Tales from the Public Domain comic book he is working on with Jennifer Jenkins and Kieth Aoki. This one will be called Theft: A History of Music, and it will present an overview of musical borrowing.

This is a topic I have written about on and off for a number of years. (Several posts, together with others', from back in 2000 here, and, much more recently, I discussed contrafacta here, and unconscious musical borrowing here. Nor was I idle in the years between, mentioning musical borrowing at least in passing in a number of essays and blog comments, for example here, here, here, and here.) In recent years, beginning around 2002 with a brief mention in Chris Sprigman's essay "The Mouse that Ate the Public Domain" and a brief discussion in Eric Shimanoff's "The Odd Couple: Postmodern Culture and Copyright Law" (Media Law & Policy, vol. 11, p. 12, Fall 2002, footnotes 62-79 and accompanying text), followed in 2004 by J. Michael Keyes's "Musical Musings: The Case for Rethinking Music Copyright Protection" (Michigan Telecommunications and Technology Law Review, vol. 10, p. 407, Spring 2004) and in 2006 (though drafts began circulating earlier) by Olufunmilayo Arewa's "From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context", (North Carolina Law Review, Vol. 84, p. 547, 2006 ) the subject has has attracted the attention of the official legal scholars as well. Arewa, in particular, has discussed the topic in several subsequent publications.

And now we will get a comic book as well!

"Free, from the various blossoms that he meets/to pick and cull, and carry home the sweets"

2009-07-07T18:18:00.000-07:00

I've just finished reading James Boyle's book The Public Domain: Enclosing the Commons of the Mind, which I borrowed from a nearby library. In this book, Boyle discusses the recent evolution of copyright and patent law toward far greater scope (patents) and duration (copyrights) than in the past, why these developments are not beneficial, and how those who are of a mind to oppose these trends might do so. He begins with U.S. Patent #6,004,596 for a "sealed crustless sandwich", and ends with the reaction of the editorial pages of The New York Times and The Washington Post to the Supreme Court's decision in Eldred. v. Ashcroft. In chapter 2 of his book, Boyle introduces the Jefferson Warning, a set of five theses that he advises should be read like a Miranda warning to anyone attempting to influence intellectual property policy. These can be paraphrased as follows

(1) Copyrights and patents reach to intangibles, which are different from tangibles. Because of the nature of intangibles, the rights in them are state-granted monopolies, not natural rights.

(2) There is no entitlement to have one of these monopolies. They are granted merely as matters of public policy.

(3) These monopolies have, and ought to have, time limits, and these limits ought to be moderate, lasting no longer than necessary to achieve the policy objectives for which the monopolies are created.

(4) These monopolies impose costs on society as well as benefits, and it is possible in some cases for the costs to outweigh the benefits.

(5) The optimum limits of these monopolies' scope and duration require careful thought and analysis, during the course of which the four prior theses must be kept constantly in mind. In particular, "more" scope or duration is not always "better" for society.

I think this could just as well be called the Madison warning, or the Madison-Jefferson warning, since both Madison and Jefferson reflected, in their writings, on the importance of limits in state-granted monopolies.

Chapter 3 of Boyle's book is captioned by this delightful poem, which Boyle has been able to trace back (in a variant version) at least to 1821, though he thinks it may be older:

The law locks up the man or woman
who steals the goose from off the common
but leaves the greater villain loose
who steals the common from off the goose.

The law demands that we atone
when we take things we do not own
but leaves the lords and ladies fine
who take things that are yours and mine.

The poor and wretched don't escape
if they conspire the law to break;
this must be so but they endure
those who conspire to make the law.

The law locks up the man or woman
who steals the goose from off the common.
And geese will still a common lack
till they go and steal it back.

The poem seems to presuppose that "law" will be pronounced "lore."

The goose-poem reminds me of some other poems, by John Byrom (1692-1763), which, though less exalted in subject matter than the goose-poem above, are applicable to debates about copyright and patent. At the time these verses were written (1748), the long-dead poet John Milton (1608-1674) had been accused of copying from other poets, accusations later proved false. Byrom's answer, written during the time the accusations were still considered plausible, is a humorous "so what if he did?", to be spoken by a series of schoolboys at their school's commencement ceremony:

THE SECOND BOY:
When Milton's ghost into Elysium came
to mix with claimants for poetic fame,
some rose the celebrated bard to meet,
welcom'd and laid their laurels at his feet.

"Immortal Shades," said he, "if aught be due
to my attempts, 'tis owing all to you;"
Then took the laurels fresh'ning from his hand,
and crown'd the temples of the sacred band.

Others in crowds stood muttering behind--
"Who is the guest? He looks as he were blind."--
"Oh! this is Milton, to be sure, the man
who stole from others all his rhymeless plan;

from those conceited gentlemen, perchance,
who rush to hail him with such complaisance.
Ay, that's the reason of this fawning fuss.
I like him not--HE NEVER STOLE FROM US."

THE THIRD BOY:
Crime in a poet, sirs, to steal a thought?
No, that 'tis not. If it be good for ought,
'tis lawful theft. 'Tis laudable to boot.
'Tis want of genius if he does not do't:
The fool admires--the man of sense alone
Lights on a Happy Thought--and makes it all his own,

flies like a bee along the muse's field,
peeps in and tastes what ev'ry flow'r can yield,
free, from the various blossoms that he meets,
to pick and cull, and carry home the sweets;
while midst a thousand sweets the stingless drone,
sluggishly saunt'ring forth, makes none of them his own.

How old does the old gum tree need to be?

2009-07-05T17:01:00.000-07:00

The music publisher Larrikin has sued Sony and EMI, claiming that a flute motif from the 1981 hit song "Land Down Under," by the band Men at Work, was copied from Marion Sinclair's 1934 children's song "Kookaburra sits in the old gum tree." Marion Sinclair died in 1988. Australian copyright lasts for 70 years after the death of the author for authors dying in or after 1955. If the copyright in Sinclair's song is computed in this way, it will expire on January 1st, 2059. Larrikin claims that it purchased this copyright from Larrikin's estate after her death. The Sony and BMI response is that, since Marion Sinclair wrote the song for a contest sponsored by the Girl Guides, it is the Girl Guides who are the owners of the copyright, and they have moved that the case be dismissed on this basis. The New South Wales Federal Court is expected to rule on this question soon.

Story in the Brisbane Times here.

The accused song can be heard here:

Note that, if the duration of Australian copyright had been 50 years from publication (the norm of the Universal Copyright Convention) "Kookaburra" would have entered the public domain on January 1st, 1985. Had it been a generous 56 years from publication (the U.S. term prior to 1978) "Kookaburra" would have entered the public domain on January 1st, 1991. The Men at Work could have copied from it freely (if that is what they did) without a need to license any quoted passage, and released their song without worry not long after they actually did. But because the duration of copyright has now been extended to absurd lengths, and its scope is taken to reach even to short musical motifs, we now have an example of a song deeply embedded in popular culture that cannot freely be quoted by other musicians until a hundred and twenty-five years after its first appearance. This is, quite frankly, too long.

Here we go again

2009-06-12T16:46:00.000-07:00

Someone (not J.D. Salinger) has written a sequel, or perhaps a re-evaluation, of J.D. Salinger's famous novel The Catcher in the Rye. J.D. Salinger is suing to suppress the new book.

Possibly the new book will manage to find a safe harbor from actions for copyright infringement by claiming to be a "parody." Possibly not.

But, just as in the case of The Wind Done Gone, so in this case the question should not have arisen at all. If Congress had kept faith with the reading public, and kept the duration of copyright in pre-1978 works at 56 years, the term that applied when The Catcher in the Rye was first published, the novel would now be in the public domain. Authors of sequels and other derivations would not need to be trying to navigate the complexities of fair use. Salinger's novel would instead be "free as the air to common use."

Lunar calendars and "Qualifications"

2009-04-11T07:02:00.000-07:00

Over at Multiple Musings I left a comment in response to the post on Easter. The blogger had written

Because first century Jews used a lunar calendar, every month was twenty-eight days long, beginning with the new moon and having the full moon on the 14th of the month.

I wrote in response

Not quite. A month of the moon's phases is twenty-nine and a half days long, so a lunar calendar--such as the Hebrew Calendar--that tracks the moon's phases will have 30-day and 29-day months, not 28-day months. If the first day is defined by the visibility of the new waxing crescent, as the ancient Babylonian (and probably the 1st century Jewish) calendar defined it, then the full moon will, as you say, occur around the 14th day. The Gregorian lunar calendar, used to determine Easter, attempts to approximate this scheme at the present day, though it is based on averages, not on the actual visibility of the new crescent.

In a calendar that begins its lunar months on the day of the lunar conjunction, however, as the present-day Chinese lunar calendar does, and, with some qualifications, the present-day Hebrew calendar does, the full moon will tend to be closer to the 15th of the month. So, for example, today, Thursday, April 9th, 2009, was the 13th day of the moon by the Gregorian lunar calendar, but the 15th day of Nisan (the 1st day of Unleavened Bread, popularly called "Passover") by the modern Hebrew calendar. This situation often occurs, when the Gregorian lunar calendar is a day or two behind the Hebrew calendar.

In this post, I thought I might elaborate on the "qualifications" mentioned there, and the agreement between the Hebrew and Gregorian lunar calendars.

The Gregorian lunar calendar, that is, the cycle used to compute Easter, was indeed devised (or, at least, Christoph Clavius claimed it was so devised) in such a way that its new moons would fall no earlier than the day after the mean lunar conjunction. This was deliberately done (Clavius wrote) in order to keep the full moon close to the 14th day of the lunar month, which Christian tradition associated with the full moon.

The present-day Hebrew calendar, to a first approximation, sets the first day of its lunar months to the day of the molad, an event which recurs at intervals of 29 days, 12 hours, and 793 "divisions", where a division is the 1080th part of an hour, or three and one-third seconds. In other words, the molad recurs at intervals of a synodic lunar month, a month of the moon's phases. Hence the molad can be, and sometimes is, identified with the mean lunar conjunction at some reference meridian. In the first part of the computation of when the first day of the Jewish numbered year, Tishri 1, should fall, the day is tentatively assigned to the day of the molad.

But now we come to the "qualifications". The year's starting day is moved to the day after the molad if the molad occurs at noon or later. So the start of the day is not permitted to occur 18 hours or more prior to the molad. If the molad is interpreted as a mean conjunction at some longitude in central Asia, then the rule that the start of the year must not precede the molad by 18 hours or more will have the effect of sometimes moving the start of the year to the day after the molad.

Furthermore, the year is not permitted to start on Sunday, Wednesday, or Friday. (This is equivalent to a rule that Nisan 15, the first Day of Unleavened Bread, can never fall on Monday, Wednesday, or Friday.) If the molad falls on one of these days, the 1st of Tishri is pushed back by a day. If the molad fell at noon or later on a Saturday, Tuesday, or Thursday, then it was pushed back onto Sunday, Wednesday, or Friday because of the late molad. But since the year cannot begin on one of these days, the start of the year is pushed back a second day in these cases. This will create a further tendency for the Hebrew Calendar's lunar months to begin later than otherwise. Hence we should expect to see the Hebrew Calendar to agree with the Gregorian lunar calendar some of the time due to these postponements, even though the Hebrew calendar initially fixes the year's start to the day of the molad, which can be interpreted as a mean conjunction, while the Gregorian lunar calendar was devised so that the new moons would always follow "the mean new moon of the astronomers." That this in fact occurs is shown by the following table, which compares Hebrew calendar and Gregorian calendar new moons to the true lunar conjunction at zero degrees longitude. The conjunction times are referred to a day starting at midnight.

Conjunction                                 Tishri 1                  Gregorian new moon

1995 Sept 24 16:55   Sept 25         Sept 25
1996 Sept 12 23:07   Sept 14         Sept 14
1997 Oct   1 16:51   Oct   2         Oct   2
1998 Sept 20 17:01   Sept 21         Sept 22
1999 Sept 9 22:02   Sept 11         Sept 11
2000 Sept 27 19:53   Sept 30         Sept 29
2001 Sept 17 10:27   Sept 18         Sept 19
2002 Sept 7 03:10   Sept 7         Sept 8
2003 Sept 26 03:09   Sept 27         Sept 27
2004 Sept 14 14:29   Sept 16         Sept 16
2005 Oct   3 10:28   Oct   4         Oct   4
2006 Sept 22 11:45   Sept 23         Sept 24
2007 Sept 11 12:44   Sept 13         Sept 13
2008 Sept 29 8:12   Sept 30         Oct   1
2009 Sept 18 18:44   Sept 19         Sept 21
2010 Sept 8 10:30   Sept 9         Sept 10
2011 Sept 27 11:09   Sept 29         Sept 28
2012 Sept 16 02:11   Sept 17         Sept 18
2013 Sept 5 11:36   Sept 5         Sept 7

2014 Sept 24 06:14   Sept 25         Sept 25
2015 Sept 13 06:41   Sept 14         Sept 14
2016 Oct   1 00:11   Oct   3         Oct   2
2017 Sept 20 05:30   Sept 21         Sept 22
2018 Sept 9 18:01   Sept 10         Sept 11
2019 Sept 28 18:26   Sept 30         Sept 29
2020 Sept 17 11:00   Sept 19         Sept 19
2021 Sept 7 00:52   Sept 7         Sept 8
2022 Sept 25 21:54   Sept 26         Sept 27
2023 Sept 15 01:40   Sept 16         Sept 16
2024 Oct   2 18:49   Oct   3         Oct   4
2025 Sept 21 19:54   Sept 23         Sept 24
2026 Sept 11 03:27   Sept 12         Sept 13
2027 Sept 30 02:36   Oct   2         Oct   1
2028 Sept 18 18:24   Sept 21         Sept 21
2029 Sept 8 10:44   Sept 10         Sept 10
2030 Sept 27 09:54   Sept 28         Sept 28
2031 Sept 16 18:47   Sept 18         Sept 18
2032 Sept 4 20:56   Sept 6         Sept 7

It can be seen that for the Hebrew month of Tishri to begin earlier than the corresponding Gregorian lunar month is fairly common in this sample, occurring seventeen times in thirty-eight years. For Tishri to begin on the same day as the corresponding Gregorian month is almost as common, occuring sixteen times. In the remaining five of the thirty-eight years, the Gregorian lunar month begins a day earlier than Tishri. It is possible for the Gregorian month to begin two days prior to Tishri 1, though no cases occur in the years listed here.

This is not quite the whole story, though. Under the rules currently in force for the Gregorian lunar calendar, a lunar month beginning in September, on September 27th or earlier, has 29 days. The Hebrew month of Tishri always has 30 days. This means that at the beginning of the next lunar month, the Hebrew calendar will be one day behind the Gregorian lunar calendar in every year in which the month of Tishri begins on the same day as the Gregorian new moon, if this day is September 27th or earlier. If the table showed a comparison for the month of Heshvan instead of for the month of Tishri, it would show the Hebrew month starting on the same day as the Gregorian month in sixteen years out of thirty-eight, starting a day later than the Gregorian in eighteen years out of thirty-eight, and starting earlier than the Gregorian in four years of the thirty-eight. So occasions when a Hebrew month begins earlier than the corresponding Gregorian lunar month are sometimes balanced by occasions in other years when some other Hebrew month begins later than the corresponding Gregorian lunar month.

In both lunar calendars, the day starts at 18:00 on the day prior to the one listed in the table. Comparison of the new moon dates to the times of the true conjunctions listed in the first column shows that the Hebrew month begins before the conjunction in seven years out of the thirty-eight (2002, 2009, 2013, 2018, 2021, 2022, and 2024), while the Gregorian lunar month begins before the true conjunction only once, in 2019. In the month following that shown in the table, the Hebrew month begins before the true conjunction in two years out of the thirty-eight , while the Gregorian begins before the true conjunction in four years. This may indicate that the Hebrew month begins before the true conjunction at 0 degrees longitude slightly more often than the Gregorian month does. But if so, the effect is slight.

Clearly the "postponements" in the Hebrew calendar are working to push the new moon past the conjunction. Hence my comment over at Multiple Musings exaggerated somewhat the tendency of the Hebrew new moon to occur closer to the lunar conjunction than the Gregorian new moon. This tendency is there, but it is often overridden by the Hebrew calendar's "postponements", as scholars from Maimonides on have noted. In particular, the two-day difference in the current month--Saturday, April 11th, 2009 is the 15th day of the moon by the Gregorian lunar calendar but the 17th of Nisan by the Jewish calendar--is probably due more to the vicissitudes of these postponements, and the different scheduling of 30-day and 29-day months in the two calendars, than to any underlying bias of the Jewish calendar toward the day of the mean conjunction.

Reconstructing the Last Supper

2009-04-07T06:30:00.000-07:00

Here are my speculations about the Last Supper:

The meal would have been preceded by a blessing over the bread and followed by a grace-after-meal. The first I assert on the basis of Acts 27.35 and 1 Corinthians 11.24, the second on the basis of 1 Corinthians 11.25 ("after supper") Sirach 33.13, and Jubilees 22.6. These two elements would have been present whether the Last Supper was a Passover meal or not. The precise words of these prayers are not known, though one can make guesses about the subject-matter based on the texts just cited and later witnesses, such as the Didache.

If one accepts that the Last Supper was a Passover meal, then it is possible that there were two additional elements: First, the Egyptian Hallel, Psalms 113-118. Philo (Special Laws 2.148) tells us that the Passover meal included "prayers and hymns". The grace provides the prayers. The psalms are good candidates for the hymns. Another element that might have been present is the blessing over the wine before the meal, in later times called kiddush. This is suggested by Luke 22.17, which also suggests one kiddush by the symposiarchos, rather than each banqueter saying his own blessing.

It is not certain where the Hallel would have been in relation to the other elements. Matthew 26.30 suggest the hymn came after the grace-after-meal, and the standard procedures of a hellenistic symposium, as I understand them, would suggest the same.

My hunch is that the matzoth eaten at a Passover meal in those days were not the stiff, dry crackers now used, but flexible, like a flour tortilla. The Passover lamb would have been roasted on a spit (Exodus 12.8, reflecting early posexilic practice). The banqueters would hold out the unleavened bread with one hand and would cut off chunks of lamb into it using a knife held in the other, at some point adding the bitter herbs--I would guess green onions or leeks for these--wrapping the whole, and eating it in the manner of a Greek gyro. The notion of eating no cheese with meat was (so I understand) just beginning to get traction in those days, and there is no evidence that Jesus followed it, so cheese could be available also.

Rich people, of course, would get their slaves to prepare the food for them. This could have been seen as technically against the law of the festival, (Leviticus 23.7), but was this law so interpreted, and if so, was it effectively enforced?

Whether the Last Supper was a Passover meal or not, the procedure might have been for the banqueters to begin in a lower room or courtyard (atrium) with bread and wine, then when everyone had arrived, move to another, possibly upper room (triclinium) where they would recline on couches for the main meal.

In Praise of Creative Freedom 4: "He took a straight walk up to Washington city"

2009-01-24T09:36:00.000-08:00

This humorous popular song by The Corrigan Brothers discusses President Barack Obama's Irish ancestry. (The genealogical facts are discussed in some detail here.) One important aspect of the song is the melody, which is clearly derived from (though not identical to) a traditional tune, Sweet Betsy from Pike (also known as Villikins and his Dinah). The traditional air can be heard here at the Digital Tradition.

The Corrigan Brothers are not the first to re-use this traditional tune. Many popular songs were sung to it in the 19th century. One such song, found in the 1896 book Lincoln's Campaign was a political song from 1860 about then President-elect Abraham Lincoln:

One Abr'am there was who lived out in the West,
Esteemed by his neighbors the wisest and best;
And you'll see, on a time, if you follow my ditty,
How he took a straight walk up to Washington city.

Others are available on-line at the Library of Congress's American Memory web site. The song titled "A new song for Sherman & Sheriden", begins

To SHERIDAN and SHERMAN, great merit is due,
They routed the Rebels each place they went to.
In the Shenandoah Valley they struck a home blow,
Where SHERIDAN whipped EARLY, who was a great foe.

Writing words "to the tune of" a popular air is always possible, even if the air is under copyright. But performing the air publicly is an exclusive right of the holder of copyright in the air. It is because the air Sweet Betsy from Pike is publici juris that The Corrigan Brothers were able not only to write words for it, but to perform it publicly as well, and post a recording of it to You-tube, all without being impeded by the frictional force of copyright clearance. Had Sweet Betsy from Pike been under copyright, The Corrigan Brothers might have been compelled to use a different tune, possibly with less success, since it is at partly due to its catchy melody that their song has become popular.

So here is another example of what Professor Lessig calls "Remix culture." The creative freedom allowed by the public domain has led to "progress of Science", in this case, the sciences of music and political humor.

Video: How copyright extension in sound recordings actually works

2009-01-22T18:06:00.000-08:00

This video from the Open Rights Group does a quick survey of the issues involved in the European proposal to extend the term of exclusive rights in phonograms by 45 years.

This batch of articles in the Independent implies that the two just-released box sets of Buddy Holly recordings only became possible this year due to expiration of the exclusive rights in Europe over phonograms made in 1958.

Are online used-book sales killing the publishing industry?

2009-01-01T08:35:00.000-08:00

In an article in the "Week in Review" section of the Sunday, 28 December 2008 New York Times, David Streitfeld examines the question of whether on-line resale of used books is hurting the publishing industry. Streitfeld seems certain that "traditional bookstores will continue to fade" in this new environment.

I prefer to think that publishers and traditional bookstores will continue to adapt to this new environment. Mr. Streitfeld seems only peripherally aware of an important part of this equation: if a copy of a recently-published book is available used on-line, then that copy was already bought from its publisher. If a book is in high demand, the used copies available on-line will disappear from the market quickly. Those who wish to have a copy immediately will purchase new copies. Mr. Streitfeld seems to think (I say "seems to" because he doesn't work this out explicitly) that a small number of copies will flow from reader to reader through on-line channels; that most people will be willing to wait their turn for one of these few circulating copies. I think that for many books there will be readers who don't want to wait, or who want a new copy. If the publisher can issue a moderate initial print run and then, if demand proves to be strong, bring new copies to market quickly, it may still have a window in which to make a profit before the market for used copies saturates. Surely this calculus is little different from the hardback/paperback computation that publishers already do? Libraries and some readers will want a more durable hardback copy. Some readers will be willing to borrow the book from the library while waiting six months to a year to buy the paperback edition. The publishing industry has been pleading incompetence since the late 17th century. Yet it adapted to the existence of libraries and paperbacks. It will adapt to the existence of an on-line market for used books.

"The natural place of creative expression is in the public domain"

2008-09-13T18:24:00.000-07:00

The Canadian Broadcasting Corporation's "Who Owns Ideas" is available at

http://www.cbc.ca/ideas/features/who-owns-ideas/index.html

The MP3 is narrated by Paul Kennedy, and includes interviews with James Boyle, science-fiction author Eric Flint, (author of 1632, Mother of Demons, and other works,) Cory Doctorow, and Michael Geist. The article devotes considerable time to discussing U.S. copyright law. Why the interest in U.S. law from Canadians? A bill has been proposed in the Canadian Parilament, bill C-61, which would introduce provisions into Canadian law similar to some provisions of the DMCA. And Canada has so far resisted extending the duration of Canadian copyright from life+50 to life+70. But the content industry will surely want to change that.

"Everything has to fall into the public domain sometime"

2008-08-22T17:51:00.000-07:00

An article by Los Angeles Times staff writer Joseph Menn

Disney's rights to young Mickey Mouse may be wrong

contains little fresh information, but it draws useful connecting lines along the history of the development of the theory that the copyright in the early versions of Mickey Mouse is possibly defective. It begins with Gregory S. Brown, a former Disney researcher who first discovered that the copyright notice on the 1928 cartoon Steamboat Willie might have been defective. It then moves to Dennis Karjala, who, Menn says, was an acquaintance of Brown's, and whose student, Lauren Vanpelt, wrote a paper titled "Mickey Mouse--A Truly Public Character," which developed the idea of flaws in early representations of the mouse. The theory was further developed by Georgetown Law student Douglas A. Hedenkamp, who in 2003 published a paper in the Virginia Sports and Entertainment Law Journal titled "Free Mickey Mouse: Copyright Notice, Derivative Works, and the Copyright Act of 1909." But when Hedenkamp wrote to Disney's lawyers asking for more information, the response from Disney General Counsel Louis Meisinger was "please be advised that slander of title remains actionable under California law for both compensatory and punitive damages." Hedenkamp wasn't intimidated, and published the article.

Another article, also by Menn,

Mickey's Many Roles

mentions, but does not name, the case of Eldred v. Ashcroft, which challenged the 1998 Copyright Term Extension Act (CTEA) on constitutional grounds. In the summer of 1998, when the CTEA seemed to be stalled in the Senate, Disney Chairman Michael Eisner was seen at Mississippi Senator Trent Lott's office. Lott signed on as a co-sponsor of the CTEA a week later. The Senate passed the bill in October of that year, and President Bill Clinton signed it, without any comment or announcement, on the last day before it would have died in a pocket veto.

Menn quotes Louis Meisinger, the former Disney lawyer, who is now a California judge, as stating that "everything has to fall into the public domain sometime." The question is, however, would he have been able to say so if he still worked for Disney? Would he have been capable even of thinking such a thought?

Don't count on it.

Federal Circuit: Open-source licenses have teeth

2008-08-13T19:24:00.001-07:00

In a very important ruling, the U.S. Court of Appeals for the Federal Circuit, finding that the terms of an Artistic License (a form of open source license) are "enforceably copyright conditions" has vacated a denial of a preliminary injunction and remanded the case for re-consideration consistent with its finding. This means that, where there is an underlying copyright, the terms of an open-source license are governed by copyright law. Exceeding the terms of such a license can constitute copyright infringement.

Jeffrey Lewis on unconscious musical borrowing

2008-08-11T19:41:00.000-07:00

Songwriter Jeffrey Lewis has a fascinating 'blog post on the exstasy of influence:

Rip-Off Artist

Lewis writes:

Perhaps we would like to think that the thoughts that go into creating a new song are purely impressions from “real life,” but a melody does not suggest itself as much from the impression of the 6 train ride you took this morning as it does from a melody from another song. The same for chord progressions, song concepts, lyric sounds and patterns, song structures and everything else. Folk music is supposed to be a shared continuum after all, and as Louie Armstrong said, “All music is folk music, I ain’t never heard no horse sing a song.”

Despite knowing all this, as a supposedly “creative” artist I am often shocked to discover that a song I’ve written has been a blatant unconscious rip-off of somebody else’s song, either in its structure, or lyrics, etc; if I’m lucky the other person’s song is not particularly popular or recognizable!

What Lewis describes is the compositional process. It was described in very similar terms by German baroque composer Johann Mattheson, in his book Das Vollkommene Capellmeister (1739) Part 2, Chapter 4. Mattheson wrote that a composer, through study and listening to good works, should build up an internal kit of progressions and musical phrases which could be drawn on to create melodies. For a discussion, and a translation of the passage from Mattheson, see George J. Buelow, "Mattheseon's Concept of 'Moduli' as a Clue to Handel's Compositional Process", Gottinger Handel-Beitrage III, Bareinter-Verlag, Kassel, 1989, pp. 272-278.

As Lewis notes, however, the process he describes can sometimes reach the status of unconscious copyright infringement. Copyright, in other words, applies the legal analog of a frictional force against the natural working of the creative process. Copyright is supposed to be an incentive to creativity, yet here we find it working against the creative process.

The solution is simple: copyright should be moderate in duration and moderate in scope. In particular, the duration of U.S. copyright as it now is should be reduced by 20 years or more. And the margins of fair use should be broadened.

Julie Hilden says users of copyrighted works may be constitutionally second-rate.

2008-08-10T21:17:00.000-07:00

In an opinion piece posted in October of 2007 Julie Hilden, discussing the case of Golan v. Gonzales, has suggested that users of copyrighted works might be considered constitutionally to be second-class citizens compared to copyright holders:

It isn't clear that the class of creators who...draw on copyright-expired works deserves consideration equal to that given to the class of creators of utterly original works that do not depend on exploitation of copyright-expired works...Indeed, one could see the Copyright Clause as creating an author/derivative-user hierarchy where authors come first - with the right not only to force those who use works without the authors' permission to pay damages, but also the right to get an injunction against use by the derivative user. "Fair use" is a carve-out to copyright, not vice-versa - and that suggests that original creators rights may take precedence over derivative users' rights....Derivative users' First Amendment rights may well be lower in the constitutional hierarchy than those of original creators - whose work the Copyright Clause was written to protect, and whom First Amendment doctrine has kept most centrally in mind.

This is a very strange use of copyright terminology. To begin with, the word "derivative" is used in the Copyright Act to refer to the creation of new works, not to performances or displays. The clause 17 USC §106 (2) refers to "the right to prepare derivative works based upon the copyrighted work". Hilden seems to start with derivative authors, who "draw on copyright expired works", but quickly shifts to performers and exhibitors, whom she calls "derivative users". Yet performances and displays are mentioned in clauses (4) and (6) clauses of section 106, and the word "derivative" is not used in those clauses. This quirky use of the word "derivative," together with Hilden's use of loaded phrases like "the class of creators", "authors come first", "lower in the constitutional hierarchy" suggests that she is trying to bait her readers into thinking that she holds performers and exhibitors in contempt, and that she believes that this contempt has the warrant of the Copyright Act and the Constitution.

One wonders why this should be. The simplest explanation is that Julie Hilden does indeed hold performers and exhibitors in contempt. But if she does, she cannot rely on the Copyright Act to support her view. The current copyright law certainly reserves "the right to prepare derivative works based upon the copyrighted work", the right of public performance, and the right of public display. But this reflects the value that these exclusive privileges can have to the rightsholder. It is an economic judgement concerning potential value, not a moral judgement holding performance, display, or derivative authorship in contempt.

But let us suppose that Hilden does not scorn performers, exhibitors, or derivative authors, and the use of loaded language is mere gratuitous tweaking of her readers' noses. In what way might "original creators" as Ms. Hilden calls them, be considered favored by the First Amendment and the Progress of Science clause, while "derivative users", as she calls them, must be considered spurned or denigrated?

Note that, besides her quirky use of the word "derivative", Hilden's position seems to suppose that the bundle of rights currently provided to copyright holders by the Copyright Act is somehow Constitutionally inevitable, as if the framers assumed from the beginning that "the exclusive right" would have the exacty scope that it now has. And, though she doesn't say it explicitly, she nowhere recognizes that the rights granted to copyright holders were, at least in theory, granted by the public, and that the raw material from which they were made was the public's own rights. This consideration can be the start of an analysis that agrees in some respects with Hilden's but goes beyond it.

Copyright is a monopoly in derogation of public right. At least in theory, the public, when granting the copyright, agrees for a limited time to refrain from exercising its full rights in the copyrighted work. Since the public's First Amendment freedoms at their core are not alienable at all, the rights that are temporarily surrendered are presumably on the margins of the public's First Amendment rights: rights the public feels it can afford to forego for the time being in order to have more freely-usable literary expression down the line.

This theory distinguishes "core" First-Amendment freedoms (which cannot be alienated even with the public's consent) and "peripheral" First-Amendment freedoms, which can be derogated to a copyright holder temporarily. Under this theory, a pamphleteer who writes his own opinion in his own words, quoting no one, can be said to be exercising his core First Amendment rights. Someone who reads the pamphleteer's pamphlet aloud in public, letting the pamphleteer's words speak for him, is exercising one of the peripheral rights that is reserved to the copyright holder. This seems to be the distinction that Madame Justice Ginsberg was trying to make in her opinion in Eldred v. Ashcroft:

The First Amendment securely protects the freedom to make--or decline to make--one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them. Eric Eldred, et. al., v. John D. Ashcroft 537 U.S. 186, III.

So this theory allows us to make a distinction, between "core" and "peripheral" freedoms, similar to the distinction between first-class and second-class Constitutional rights made by Julie Hilden or to the distinction between making one's own speeches and making other peoples' speeches made by Madame Justice Ginsberg. It remains to examine how workable this theory is. To what extent can "making other peoples' speeches" be considered a "peripheral" rather than a "core" First Amendment freedom? Have we come to an agreement with Julie Hilden by an alternative route?

Freedom of worship is a central First Amendment freedom. Yet worship, as widely practiced in the United States, is all about "the right to make other people's speeches"--to read the words of the Scriptures and to sing the words and melodies of poets and singers of past generations. So already we have found a right to make other people's speeches on which the First Amendment bears very heavily indeed, something that Justice Ginsberg's offhand dismissal of making other people's speeches seems completely unaware of. Still, the Copyright Act includes an exemption (17 USC §110 (3)) for performances and displays "in the course of services at a place of worship." (The exemption only covers "performance" and "display". Reprinting a copyrighted text in the leaflet or booklet requires permission.)

Worship has a special exception; the Act would not have passed Congress without it. But what of our hypothetical example of a pamphleteer and his reader? Someone who reads a newspaper editorial on a street corner without permission is prima facie in violation of the copyright holder's exclusive right "to perform the copyrighted work publicly." But isn't this why we have newspapers and pamphleteers in the first place? To give voice to the voiceless? So we must wonder whether the 1976 copyright act, which changed a prior right of public performance for profit into an unqualified right of public performance did not unlawfully derogate some of what our theoretical scheme designates a "core" First Amendment freedom. So our theory does not necessarily support Julie Hilden's apparent assumption that the right of public performance as it now exists is Constitutionally perfect simply because it favors rightsholders over performers. Our theory holds that the public hands over some of its rights temporarily to the rightsholder, but it doesn't prescribe how broad or narrow those rights should be.

Continuing with the theory: Perhaps section 107 ("fair use") of the Copyright Act would excuse our street-corner crier. We finally come to the chief difficulty. Our theory, distinguishing between "core" First Amendment freedoms, which are unalienable, and "peripheral" First Amendment freedoms, which the public can forego temporarily, assumes that the public truly and freely consented to the identification and derogation of its "peripheral" freedoms: that the lawmaking process was not corrupted in any way by money or special interest. Yet this is not self-evidently the case. Furthermore, the theory assumes that the derogation of the "peripheral" freedoms is temporary; that all copyrights will expire after a reasonable time, allowing the pubic to enjoy its full rights in every work. Yet it remains to be seen whether the powerful interests who lobbied for the Copyright Term Extension Act (CTEA) and the Uruguay Round Agreements Act (URAA) will ever permit their valuable copyrights to expire if it is in their power to prevent this from happening.

The purpose of copyright is to enlarge the public domain in expression. The CTEA delayed the expansion of this public domain. The URAA actually reduced its size. The political process ought to be sufficient to defend the public's freedoms and its interest in an expanding public domain in expression. Yet it is not clear that the political process can truly account for the public interest in these matters, and the courts, except on one point in the case of Golan v. Gonzales, have washed their hands of the matter. Julie Hilden's theory, that performers, exhibitors, and derivative authors somehow deserve to be deprived of their rights leaves no room for the political process, (other than to speculate that is might lead to "an assault upon, not a defense of, the traditional contours of copyright law") and hence no room to take account of how the political process might be corrupt.

Bill Patry's archives are back!

2008-08-09T09:35:00.000-07:00

William Patry has agreed to allow some of the archives of his now-closed weblog to remain on the web for the time being. Parts of the archives for 2008 and 2007 are available now.

Almost all of the Professor's posts are interesting. (He is no longer a professor, but I still think of him that way.) Here is just one example: Neil Netanel's "Why Has Copyright Expanded?"