Intellectual property
I guess to start this rant, I should quote the Constitution: Congress is authorized to create legislation "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Art. I, Sect. 8, Cl. 8). I start with this because too many persons seem to have forgotten that the purpose of copyrights and patents is to "promote the Progress of Science and the useful Arts," that the "exclusive Right" is granted only to the "Authors and Inventors", and that the right last only "for a limited Time".
To be sure, the purpose is fulfilled by allowing the creator of an idea to reap profit through a monopoly on the idea, so let it not be inferred that I don't think creators should profit from creation. I just think that the monopoly must be temporary and, preferably, non-transferrable, because long-term monopoly over an idea does not advance science or art, but stifles it. This applies not just to, for example, scripts and songsheets, but the information that makes up the recording of a film or compact disc.
The most irritating abuses of legal protection of use of a word or phrase is the trademark. It's infuriating because it embodies something that I really hate: calling things by the wrong name, or by a name that distorts the reality of what it is. (For more on that, see my piece on the "Death Tax".) It's the attempt to create reality that is not there, an effort that lies at the heart of marketing. For example, have y'all seen how many different ways there are to say "blizzard (tm Dairy Queen)"? It verges on the absurd -- nay, it plunges right in. To extend the idea, what if one of these marketing types had been around in 1938, when the word "cheeseburger" came into existence: we might have to buy "hamburgers with cheese" everywhere else, because "cheeseburger" would still be trademarked. And what about pizza, which dates back only to the 1930s? It's one thing to protect the name or emblem of a company -- faking that is identiity theft. And a name-brand is also worth protecting: I saw my share of shady products in Bishkek's kioski, like "Karlboro" cigarettes, complete with the red and white labelling. So I could see "Dairy Queen Blizzard" protected, or "Ford Mustang", but not "Blizzard" or "Mustang", even if they referred to a blended ice cream confection and car respectively. This is all a matter, I guess, for court judges, because they're the ones that decide whether "Victor's Secret" is a violation of "Victoria's Secret"'s trademark (incidentally, I agree with the 6th Circuit Court). Still, I would like to see protection of anything but the actual source or identity of a product or company shot to hell.
The consequences of rulings that consistently limited trademark protection? The activity that would no longer be rewarded economically would be the creation of names. To differentiate products among companies, more effort would go into qualitative descriptions, and real differences, than in coming up with a snappy name. I don't see that production or creative effort would otherwise be hampered.
A little less irritating, but of much greater impact, is the copyright, the Constitutional purpose of which has been almost completely abandoned. For example, in 1998 Congress passed and Clinton signed the Copyright Term Extension Act, which extended to 95 years the copyrights on all works created before 1978. Ninety-five years. Does that not boggle the mind? To preserve somebody's right to restrict use or derive income from use of data for a period of time greater than the expected lifespan of the creator is to stifle expansions on that idea and channel income into an inherently uncreative pursuit. One heavy contributor and equally heavy beneficiary of CTEA was Disney, whose copyright on, say, images of Mickey Mouse, now stretches to 2023 -- 95 years after his appearance in Steamboat Willy. Remember that Walt Disney has been dead since 1966 (that bit about his body having been frozen is an urban legend), and Ub Iwerks has been dead since 1971. Neither of them is being encouraged to create more art by the extension of this copyright, and nobody else can do it either, unless they get agreement from (and, presumably, pay a portion of the profit to) Disney. And Disney gets to stay in business doing nothing else but trotting out the work of dead artists from "the Disney vault".
It's much more far-reaching than that. Suppose I were to write a novel, and as part of the dialogue I had characters quote a song, as sometimes happens, I'm told, in conversations. If that song was written after 1910, I have to find out who wrote the song, who owns the rights, and get their permission to use the lyrics. If a high school wants to put on a play, or, heaven forbid, a musical, and defray the costs of the production by charging admission, they have to get authorization. And Michael Jackson gets a buck everytime somebody prints or performs one of the Beatles' tunes he owns. I remember when John Fogarty was sued by Fantasy Records for copyright infringement for creating "The Old Man Down the Road", which the label said too closely resembled "Run Through the Jungle" (which, incidentally, Fogarty had also written). Fogarty beat the case, but the audacity of Fantasy was simply . . . fantastic.
I recall also efforts by the Recording Industry Association of America (RIAA) in the 1970s to get legislation to prevent individuals from using tape recorders to copy the albums they'd bought. The arguments the RIAA used at the time should sound familiar to anyone living in the age of mp3 file-sharing, and those arguments today are no less full of shit than the ones leveled against the humble cassette recorder. I am also greatly annoyed by my inability to skip the FBI warnings and production company opening sequences in the DVDs I purchase. I bought the damned things, after all. I've got the box to tell me who produced the thing, and a label there reminding me of copyright laws. Why do I have to sit through that crap everytime I want to watch a Buffy episode?
Of course, creation should be rewarded in a manner commensurate with the effort reasonably expected to produce it. For example, in the late nineteenth and early twentieth century, authors of dime-novels got no royalties, only money of the sale of the books to the publishing companies. To survive, therefore, the authors had to produce continually. This system encouraged creation, but not quality, as dime-novels tend to be repetitive, derivative, and in most important respects indistinguishable from each other.
So my solution is to dispense with the 95-year CTEA, and even the life-plus-50 and life-plus-20 standards. Copyrights should last for a generation, or the life of the creator, whichever is less (the creators of many complex works being companies, the former criterion would probably be met first). I would say no more than 20 years, the same length as the term of a U.S. patent. After that period expired, the data, whether a visual image, a poem, a musical recording or a motion picture, would be part of the public domain, freely tranferrable and usable in other works.
This is the most drastic, seemingly, of my solutions, so it's fair to look at the likely effects. The biggest one is that the movie studios and the recording companies would lose a crap-load of income. But so what? They'd still have exclusive right to use the material until that time, and they could reap whatever profit was available in that way. Twenty years is long enough for a first run and release on video/DVD, and I doubt most audiences would wait around that long to view the piece for free. Companies would have to continue to produce works, and they would still be rewarded, as would artists, but that reward would be tied to the act of creating, not the non-action of owning. There would be a general wage deflation in the entertainment industry, but, again, so what? On the other side, local musicians could appeal to nostalgia-buffs with live performances of tunes that were only a generation old. Local actors could put on Annie without paying somebody else for the privelege. Remember, the purpose of the copyright is to encourage art, to increase its variety, quantity, and quality -- not to make sure a bunch of folks can acquire power through the generation of wealth from non-productive ownership of ideas.
It bears mentioning, by the way, that artists don't create only for financial reward. Artists have to survive, but they produce art because they can, desire, and, often, need to. Copyrights enable them to make careers of that ability, desire, and need, but art, music, theater, and literature all predate copyright protection.
Finally, there are patents, about which I don't have much to say. I am mightily annoyed that some individuals and companies file patents on a technology which they have not themselves created, or made feasible, and file applications that are sufficiently vague to cover any similar technology -- but that is a matter for judges. Also vaguely irksome is the practice of extending patents on drug formulae by changing the intended use of the drug. I also dislike the idea of companies and universities attempting to force employees to sign over any patents they might qualify for during their employment by the institution. I would not expect that an employer could get away with that, but, at the same time, an employer can opt not to hire somebody who won't turn over his patents. I, for example, would not surrender any patents, but I've known individuals in the computer software industry who have. I would prefer that an annually renewable exclusive use lease be required of the employee: that is, for one year the company must have exclusive use of the idea, although the patent remains the employee's. This would represent the investment in salary made by the employer, but it would also respect the ownership of the employee. Each year, the employee (or ex-employee, given that the terms of the lease might allow the employee to take early retirement) could renew or cancel the lease, in the latter case leasing use of the patent to another agent. But courts and the US Patents & Trademarks Office should always fall on the side of the ownership by the creator, and not the employer. Hell, the employer still gets the employee's work for the agreed salary, so it's not like they don't get anything out of it.
I welcome posts from patent lawyers and others interested in patents et al., to correct or expand upon anything I've said above. But no part of this post may be reproduced without my written consent, and the payment of a fee which I may arbitrarily set.
To be sure, the purpose is fulfilled by allowing the creator of an idea to reap profit through a monopoly on the idea, so let it not be inferred that I don't think creators should profit from creation. I just think that the monopoly must be temporary and, preferably, non-transferrable, because long-term monopoly over an idea does not advance science or art, but stifles it. This applies not just to, for example, scripts and songsheets, but the information that makes up the recording of a film or compact disc.
The most irritating abuses of legal protection of use of a word or phrase is the trademark. It's infuriating because it embodies something that I really hate: calling things by the wrong name, or by a name that distorts the reality of what it is. (For more on that, see my piece on the "Death Tax".) It's the attempt to create reality that is not there, an effort that lies at the heart of marketing. For example, have y'all seen how many different ways there are to say "blizzard (tm Dairy Queen)"? It verges on the absurd -- nay, it plunges right in. To extend the idea, what if one of these marketing types had been around in 1938, when the word "cheeseburger" came into existence: we might have to buy "hamburgers with cheese" everywhere else, because "cheeseburger" would still be trademarked. And what about pizza, which dates back only to the 1930s? It's one thing to protect the name or emblem of a company -- faking that is identiity theft. And a name-brand is also worth protecting: I saw my share of shady products in Bishkek's kioski, like "Karlboro" cigarettes, complete with the red and white labelling. So I could see "Dairy Queen Blizzard" protected, or "Ford Mustang", but not "Blizzard" or "Mustang", even if they referred to a blended ice cream confection and car respectively. This is all a matter, I guess, for court judges, because they're the ones that decide whether "Victor's Secret" is a violation of "Victoria's Secret"'s trademark (incidentally, I agree with the 6th Circuit Court). Still, I would like to see protection of anything but the actual source or identity of a product or company shot to hell.
The consequences of rulings that consistently limited trademark protection? The activity that would no longer be rewarded economically would be the creation of names. To differentiate products among companies, more effort would go into qualitative descriptions, and real differences, than in coming up with a snappy name. I don't see that production or creative effort would otherwise be hampered.
A little less irritating, but of much greater impact, is the copyright, the Constitutional purpose of which has been almost completely abandoned. For example, in 1998 Congress passed and Clinton signed the Copyright Term Extension Act, which extended to 95 years the copyrights on all works created before 1978. Ninety-five years. Does that not boggle the mind? To preserve somebody's right to restrict use or derive income from use of data for a period of time greater than the expected lifespan of the creator is to stifle expansions on that idea and channel income into an inherently uncreative pursuit. One heavy contributor and equally heavy beneficiary of CTEA was Disney, whose copyright on, say, images of Mickey Mouse, now stretches to 2023 -- 95 years after his appearance in Steamboat Willy. Remember that Walt Disney has been dead since 1966 (that bit about his body having been frozen is an urban legend), and Ub Iwerks has been dead since 1971. Neither of them is being encouraged to create more art by the extension of this copyright, and nobody else can do it either, unless they get agreement from (and, presumably, pay a portion of the profit to) Disney. And Disney gets to stay in business doing nothing else but trotting out the work of dead artists from "the Disney vault".
It's much more far-reaching than that. Suppose I were to write a novel, and as part of the dialogue I had characters quote a song, as sometimes happens, I'm told, in conversations. If that song was written after 1910, I have to find out who wrote the song, who owns the rights, and get their permission to use the lyrics. If a high school wants to put on a play, or, heaven forbid, a musical, and defray the costs of the production by charging admission, they have to get authorization. And Michael Jackson gets a buck everytime somebody prints or performs one of the Beatles' tunes he owns. I remember when John Fogarty was sued by Fantasy Records for copyright infringement for creating "The Old Man Down the Road", which the label said too closely resembled "Run Through the Jungle" (which, incidentally, Fogarty had also written). Fogarty beat the case, but the audacity of Fantasy was simply . . . fantastic.
I recall also efforts by the Recording Industry Association of America (RIAA) in the 1970s to get legislation to prevent individuals from using tape recorders to copy the albums they'd bought. The arguments the RIAA used at the time should sound familiar to anyone living in the age of mp3 file-sharing, and those arguments today are no less full of shit than the ones leveled against the humble cassette recorder. I am also greatly annoyed by my inability to skip the FBI warnings and production company opening sequences in the DVDs I purchase. I bought the damned things, after all. I've got the box to tell me who produced the thing, and a label there reminding me of copyright laws. Why do I have to sit through that crap everytime I want to watch a Buffy episode?
Of course, creation should be rewarded in a manner commensurate with the effort reasonably expected to produce it. For example, in the late nineteenth and early twentieth century, authors of dime-novels got no royalties, only money of the sale of the books to the publishing companies. To survive, therefore, the authors had to produce continually. This system encouraged creation, but not quality, as dime-novels tend to be repetitive, derivative, and in most important respects indistinguishable from each other.
So my solution is to dispense with the 95-year CTEA, and even the life-plus-50 and life-plus-20 standards. Copyrights should last for a generation, or the life of the creator, whichever is less (the creators of many complex works being companies, the former criterion would probably be met first). I would say no more than 20 years, the same length as the term of a U.S. patent. After that period expired, the data, whether a visual image, a poem, a musical recording or a motion picture, would be part of the public domain, freely tranferrable and usable in other works.
This is the most drastic, seemingly, of my solutions, so it's fair to look at the likely effects. The biggest one is that the movie studios and the recording companies would lose a crap-load of income. But so what? They'd still have exclusive right to use the material until that time, and they could reap whatever profit was available in that way. Twenty years is long enough for a first run and release on video/DVD, and I doubt most audiences would wait around that long to view the piece for free. Companies would have to continue to produce works, and they would still be rewarded, as would artists, but that reward would be tied to the act of creating, not the non-action of owning. There would be a general wage deflation in the entertainment industry, but, again, so what? On the other side, local musicians could appeal to nostalgia-buffs with live performances of tunes that were only a generation old. Local actors could put on Annie without paying somebody else for the privelege. Remember, the purpose of the copyright is to encourage art, to increase its variety, quantity, and quality -- not to make sure a bunch of folks can acquire power through the generation of wealth from non-productive ownership of ideas.
It bears mentioning, by the way, that artists don't create only for financial reward. Artists have to survive, but they produce art because they can, desire, and, often, need to. Copyrights enable them to make careers of that ability, desire, and need, but art, music, theater, and literature all predate copyright protection.
Finally, there are patents, about which I don't have much to say. I am mightily annoyed that some individuals and companies file patents on a technology which they have not themselves created, or made feasible, and file applications that are sufficiently vague to cover any similar technology -- but that is a matter for judges. Also vaguely irksome is the practice of extending patents on drug formulae by changing the intended use of the drug. I also dislike the idea of companies and universities attempting to force employees to sign over any patents they might qualify for during their employment by the institution. I would not expect that an employer could get away with that, but, at the same time, an employer can opt not to hire somebody who won't turn over his patents. I, for example, would not surrender any patents, but I've known individuals in the computer software industry who have. I would prefer that an annually renewable exclusive use lease be required of the employee: that is, for one year the company must have exclusive use of the idea, although the patent remains the employee's. This would represent the investment in salary made by the employer, but it would also respect the ownership of the employee. Each year, the employee (or ex-employee, given that the terms of the lease might allow the employee to take early retirement) could renew or cancel the lease, in the latter case leasing use of the patent to another agent. But courts and the US Patents & Trademarks Office should always fall on the side of the ownership by the creator, and not the employer. Hell, the employer still gets the employee's work for the agreed salary, so it's not like they don't get anything out of it.
I welcome posts from patent lawyers and others interested in patents et al., to correct or expand upon anything I've said above. But no part of this post may be reproduced without my written consent, and the payment of a fee which I may arbitrarily set.
posted by heavynettle at 09:40
2 Comments:
One of the more insidious trends you mention is the push to make it illegal, or at least damn difficult, to control media that you have bought and paid for yourself. You shouldn't have to watch ads everytime you watch a movie; you shouldn't have to buy a song and then buy it again to use as a ringtone.
The move toward "licensing" products as opposed to "selling" them is just ridiculous and people shouldn't accept it in the media or any other industry. Technology exists already to monitor the use of any product to the point where anything could be licensed and subject to user fees. Consider if your insurance company fitted your car with an RFID and "licensed" protection only within certain geographic areas, with extra costs incurred for traveling out of town or to a high-risk city. Or maybe they'd just bill you each time you exceeded the speed limit. Imagine a license on your microwave that made you prepay for 100 uses at a time. Imagine having to purchase an extra "license" each time a guest came over to sit on the couch. Perhaps these examples aren't the best, but point is that the relationship between companies and customers is dramatically changed by these so-called licensing agreements, which as services are nothing more than semantic manipulations.
The result of the change, as you note, is to weaken consumer control of their own duly-purchased property, to stiffle competition by locking customers into unbreakable agreements for the continued use of their property, and to destroy fair use. Welcome to the electronic equivalent of company-owned housing; it's what you're living in!
Thanks for the additional depth on that dimension, Sage Thrasher.
I wanted to add something else, regarding computer software patents. In the August 2005 issue of IEEE Spectrum, Ben Klemens has a piece on replacing software patents with copyrights. The difference is that copyright infringement is defensible on grounds of independent invention, whereas patent violation is not. What's interesting about his essay is that it takes the same tack as I tried to take: making patent law meet the intended purpose of furthering scientific development. His point is that software development takes place in so may places, and software patents cover such general solutions, that countless individuals are unknowingly violating patents every day by producing in code what somebody already has patented. The reality is near-constant reinvention of the wheel, and the result is virtual non-enforcement of the law. I agree with Klemens, but I think the solution might also be found in refinement of the standards of patentability, or in the courts. His solution is more elegant, and suitable.
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