Technology and the Corruption of Copyright (Joshua Bauchner)

[TankGirl]

I found this recent essay on copyrights both well-written and exceptionally sane so I napsterized it for your reading and commenting pleasure. - tg



Joshua S. Bauchner:
Technology and the Corruption of Copyright

COMMENTARY--In 2010, the concept of copyright will celebrate its 300th anniversary dating back to England's Statute of Anne. Over the past three centuries, copyright laws promoted intellectual freedom and discourse while ensuring a small incentive for the creative author.

Interestingly, with the onslaught of technology and promises of greater opportunity to share and communicate, copyright is now a hindrance to these ideals, serving only the moneyed interests of owners.

Historically, copyright protections were afforded to promote expressive discourse fundamental to a democratic society. Today, the very notion of intellectual property serves to commoditize expressive ideas, rather than fostering their dissemination. Whereas initially the provision of an economic benefit was secondary to the promotion of original works, modern copyright inverts this ideal in a continuing effort to establish a marketplace for ideas.

In doing so, modern-day copyright holders focus solely on financial gain to he detriment of the true purpose of copyright.

The corruption of copyright harms the public interest. As described, the increased restrictions contravene the principles of a democratic society. Second, increased protections extend monopolistic control over original works of expression. Third, the commodization of copyright is not an incentive to creativity.

Copyright holders, often not the creative authors, ensured the massive expansion of their monopoly. The monopoly now extends for seventy-years plus the life of the author from an original twenty-eight year renewable period. The adulterated derivative work right warrants copyright protection for minor editions to the original. Further, the degradation of the originality requirement expands the scope of protection allowing a bare minimum of creativity to justify a monopoly.

More recently, copyright was extended to compilations, often evidencing no degree of originality and serving merely to protect the compiler's ability to sell a compendium even if the component parts manifest no originality of their own to justify protection.

Finally, the monopoly was expanded to protect nonliteral elements of works depriving the public of the benefit of transformative uses and preventing further development. Now the "essence" of the work, in addition to the work itself, is protected by copyright.

Copyrights and limited protection

As the scope of copyright protection has increased, so has its value. Accordingly, copyright holders seek new ways to obtain financial benefit from creative works treating copyright as a commodity. However, copyright only should ensure limited protection for creative works as is necessary in a democratic society. Instead, the rights of the holder may be bought and sold at an unprecedented level. Originally, the copyright holder’s exclusive rights were transferable only as a whole. However, with the shift toward pecuniary exploitation, the value in these rights increased dramatically permitting their license and transfer singly. Thus, a holder can achieve substantial financial gain from the sale of separate, defined rights to multiple parties. Further, the monopolist may set any price for their sale as the alternative to purchase is infringement and severe penalties.

This mistreatment of copyright led to the concept of beneficial ownership in copyrighted works; possession of a mere economic interest without necessarily manifesting any creativity.

Perhaps the most egregious example of the bastardization of the founding principles of copyright is the work for hire doctrine. This scheme treats authorship solely as an economic concept preventing copyright from vesting in the creative author by placing it in the hands of a third-party. The burden then rests with creators to prove they are entitled to the benefits of their efforts. In fact, the work for hire doctrine is so corrupt the WTO sanctioned the U.S. for perpetuating its existence even after the EU has forsaken it.

Ultimately, the commodization of copyright led to consolidation of ownership. Accordingly, monopolistic control as a means of promoting creativity is devoid of purpose. Copyright conglomerates obtain the power to set any price, without fear of competition, and without concern for dissemination among the public in the promotion of democratic ideals.

Fortunately, the egalitarian effects of technology permit civil disobedience in the face of an unjust, adulterated copyright regime. The constant, evolutionary war between advanced protections and circumventions regulates the role of copyright law to irrelevancy.

Copyright protection depends upon the ability of owners to enforce their rights. The Internet prevents successful enforcement ventures by not succumbing to territorial limitations and permitting dissemination from countries with weak protections providing convenient access to users without fear of legal retribution.

Even as legal battles are fought by corporate interests clinging to their outmoded intellectual property paradigm, determined users seek to return copyright to its original function-the promotion and dissemination of original, creative works.

Civil disobedience in the face of copyright laws promotes the democratic ideal that information is a public good thereby sustaining the Internet community’s founding belief that “information wants to be free.”


Bauchner recently completed his degree at Brooklyn Law School where he was Editor in Chief of the Brooklyn Journal of International Law. He previously managed the Internet and Litigation at the Software Publishers Association where he developed the group's Internet Anti-Piracy Program. He may be reached at jbauchne@brooklaw.edu.

[mike4947]

Just got through reading ALL the posts to that article, So much emotion and so little facts At least 20 versions of they make to much, so we should have the ability to limit what they make. Also a few of my favorite, I didn't make a profit so it's not wrong.
One of these days someone will come up with something that's not emotions and opinions.

[Drakonix]

A good essay.

I believe there are a number of indicators that tend to show that the (recording) industry is using copyrights in an anti-competitive manner.

This corrupted use of copyrights violates the original intent of copyright protection.

The industry is getting intrusive and brazen.

The goal of any business is to make money. The objection is not to making money, or making too much money, it's how they are doing this.

The recording industry didn't want Napster to comply with copyright law, they wanted to kill the competition. The legal hoops of fire are doing just that.

There are also signs (like the payola matter) that the US Government is actively investigating the music industry. They just don't sink years of investigation into something unless they believe crime is being committed.

Well entrenched organized crime is very difficult to approach, with the borderline or illegal activities well covered by seemingly lawful business practices. It takes a while to gather enough evidence to close down such operations.

Unfortunately, it will most likely get worse before it gets better.

[thinker]

Another glaring example of hunger for control is the consolidation of images for copyright in recent years. It used to be fairly easy to just pick up a book of photographs and marvel at the contents. There was a mass amount of images in the public domain, or that had copyrights held by people that didn't mind other people actually LOOKING at their work. However, as copyright has been extended and overvalued, ever larger numbers of images fall under corporate copyrights, especially that of Corbis, which controls a substantial percentage of images. Additionally, one sees less and less publications with just plain photographs - by this I mean landscapes, or people no one knows - just any captured moment. Instead there is online hosting, where firms can deface the images for download with a large transparent web address or what-have-you adorning the picture. It matters not what you were going to do with it, just the fact that you want to see it at all. The fights go far beyond music.

Hard to believe that copyright law was once meant to promote the spirit of sharing.

Well anyway, the article was very well written (definitly targeted at napsterites and musicians) but he should have gone one step further and suggested some solutions to the problem.

I think the first thing that needs to happen is to get rid of that nasty Work for Hire act. It completly removes any incentive for publishing anything creative. I didn't know that the WTO and the EU had spoken out against it, it's a pity we went and made it into law.

Next I don't think that people or companies should be allowed to have sole ownership of a copyright unless they wrote, recorded, filmed, or photographed it themselves. If I am under contract when I write a song and it sells then the buyers should be given a share in that copyright (like a share in a company's stock). My record company can start out by buying half of my song. Then if they decide to sell copies each copy would come with a share in the copyright that is equal to every other share, except for my share which would always be half. As copyright shareholders the customers would be allowed to do whatever they want with my song. With each sale the song will become less and less profitable (thougt hopefully it will still have value) until the point that it virtually becomes public domain. I may sell copies too but I will still own half the copyright.

I think that solution will keep the record companies in check so they don't go willy nilly and spend most of their budget promoting just a few artists and ignoring the rest. If they do then they'll eventually lose money. To make money they would have to promote all their artists equally to make sure all their shares are equal in value. Every artist would have incentive to be creative without financial pressure. The songs themselves, not the copyrights, should be valuable.

As for copyrights on compilations, that should not be allowed. If I put together a Best of the 80's CD and decide to sell if I shouldn't be able to copyright it since those songs are already copyrighted. A compilation is just a playlist with pretty packaging, nothing really creative.

And intellectual property, give me a break! No one should be allowed to copyright their thoughts and emotions. If you make your thoughts public then other people will think the same things. If you say certain phrases then others will repeat them. There's nothing wrong with that and there's no way to prevent it. Only a song as a whole, not its individual parts, should be protected by copyright.

People sould be able to make money from their work, but people shouldn't make money from other people's work, and everyone should have access to published material. Democratic is the key term here. I like democratic art because almost everyone can enjoy it and it's easy to get. If it's a good song or book or movie then people should hear or read or view it without being limited by third-party compnies who were not involved in its creation. Any law that allows or promotes that kind of limitation is wrong.

Music stores will still sell CD's (because the're higher quality than MP3's and don't require an internet connection), movie theaters will still sell tickets (because few individuals have 20 foot screens with 1000 watt stereos in their homes, not to mention lots of popcorn), and book stores will still sell books (because no one want's to curl up on the couch with a 17 inch monitor). People who can afford to present the copyrighted material in a pleasing way will make money from their service. Record companies will still make money from distributing the music even if they have no control over it's creation, why should they believe otherwise?

Maybe there's some better solutions I can't think of right now...

After a day's reflection I think maybe my shareholder idea won't work after all. Copyright is not just meant to append the creator's name to a piece of artwork. Mostly it's a device that correlates monetary value of art to its level of public interest. It is used to create scarcity to that it can be sold in a capitalist marketplace. When you buy copyrighted art you are really buying a licence to view, hear, or read it. It's a very abstract idea which is why I tend to reject it. But the I think premise, to pay the artists, is sound.

Next I don't think that people or companies should be allowed to have sole ownership of a copyright unless they wrote, recorded, filmed, or photographed it themselves. If I am under contract when I write a song and it sells then the buyers should be given a share in that copyright (like a share in a company's stock). My record company can start out by buying half of my song. Then if they decide to sell copies each copy would come with a share in the copyright that is equal to every other share, except for my share which would always be half. As copyright shareholders the customers would be allowed to do whatever they want with my song. With each sale the song will become less and less profitable (thougt hopefully it will still have value) until the point that it virtually becomes public domain. I may sell copies too but I will still own half the copyright.

This system system does promote the free exchange of information but it would not appeal to artists who want or need to earn money from their art. What good is half a copyright to someone who want's to make money from it? If you wrote a song wouldn't you want to take full credit for it? Perhaps my above suggestions force people to be altruistic, which is impossible by the definition of altruism.

If copyright law lets corporations take credit for works they didn't create then it doesn't serve its purose. When it is used to prosecute consumers (the very people the law was meant to serve) then the spirit of the law is violated. As such copyright law must be changed to give the rights to the creators and artists, and it must promote the distribution of art and information. That is the balancing game that must be played and is being played right now.

[mike4947]

Originally posted by Mazer

If copyright law lets corporations take credit for works they didn't create then it doesn't serve its purose. When it is used to prosecute consumers (the very people the law was meant to serve) then the spirit of the law is violated. As such copyright law must be changed to give the rights to the creators and artists, and it must promote the distribution of art and information. That is the balancing game that must be played and is being played right now. [/b]

The credit still goes to the artist, I haven't seen a CD with Sony, etc as the artist or composer.
Face it, getting play is what makes sales. People don't buy what they don't know. OK so you do, but how about the other 99.9999999999% of the population? Getting that play costs money. Labels have the bucks and are willing to take the chances that they get one in ten to pay for the other nine they release and generate a profit.
The internet is still to small to take over from MTV,VH1, Broadcast TV and radio for getting exposure; 50% in the US, 25% in Europe, 15% in third world countries.
Also, until they come up with something that won't be hacked the following day or doesn't sound like it was recorded on a tin can and a string to preview the music, Everyone involved except the gargage and club bands is gun shy over losing big sales to piracy.

[Ramona_A_Stone]

The Next Economy of Ideas John Perry Barlow, for Wired Magazine.

The Internet and the Anti-Net Nick Arnett, Verity Inc.

Thanks for those links Romona, I enjoyed them thoroughly. John Perry Barlow didn't seem to understand the true nature of us Napsterites (well maybe these 'Napsteriens' he speaks of are a different sort), we're not the zit-faced losers living in our parent's basements he thinks we are. Despite the article's outdatedness it is very insightful and the author understands how intellectual property should be treated. Nick Arnett's article drew some good comparisions between the last information revolution and this one. I guess we're really the Lutherans of the internet.

Bauchner's article should be required reading for anyone wishing to enter the debate. Good post tankgirl.

[TankGirl]

Mike4947, Drakonix, thinker, Mazer, Ramona_A_Stone, JackSpratts - thank you all for your interesting feedback and input.

I also enjoyed John Perry Barlow's essay a lot ( Ramona!). So many inspiring viewpoints and ideas there...

John Perry Barlow:
Think of the Net as an ecosystem. It is a great rain forest of life-forms called ideas, which, like organisms - those patterns of self-reproducing, evolving, adaptive information that express themselves in skeins of carbon - require other organisms to exist. Imagine the challenge of trying to write a song if you'd never heard one.

As in biology, what has lived before becomes the compost for what will live next. Moreover, when you buy - or, for that matter, "steal" - an idea that first took form in my head, it remains where it grew and you in no way lessen its value by sharing it. On the contrary, my idea becomes more valuable, since in the informational space between your interpretation of it and mine, new species can grow. The more such spaces exist, the more fertile is the larger ecology of mind.

I can also imagine the great electronic nervous system producing entirely new models of creative worth where value resides not in the artifact, which is static and dead, but in the real art - the living process that brought it to life. I would have given a lot to be present as, say, the Beatles grew their songs. I'd have given even more to have participated. Part of the reason Deadheads were so obsessed with live concerts was that they did participate in some weird, mysterious way. They were allowed the intimacy of seeing the larval beginnings of a song flop out onstage, wet and ugly, and they could help nurture its growth.

In the future, instead of bottles of dead "content," I imagine electronically defined venues, where minds residing in bodies scattered all over the planet are admitted, either by subscription or a ticket at a time, into the real-time presence of the creative act.

John Perry Barlow:
It's captivating to think about how much more freedom there will be for the truly creative when the truly cynical have been dealt out of the game. Once we have all given up regarding our ideas as a form of property, the entertainment industry will no longer have anything to steal from us. Meet the new boss: no boss.

We can enter into a convenient and interactive relationship with audiences, who, being human, will be far more ethically inclined to pay us than the moguls ever were. What could be a stronger incentive to create than that?

We've won the revolution. It's all over but the litigation. While that drags on, it's time to start building the new economic models that will replace what came before. We don't know exactly what they'll look like, but we do know that we have a profound responsibility to be better ancestors: What we do now will likely determine the productivity and freedom of 20 generations of artists yet unborn. So it's time to stop speculating about when the new economy of ideas will arrive. It's here. Now comes the hard part, which also happens to be the fun part: making it work.

I haven't yet read Nick Arnett's essay but I trust it will be interesting as well... thanks again to you all!

- tg