I’ve been doing a lot of reading about intellectual property law, the concepts behind intellectual property, and public domain of late. I think I have a better handle on it.
One of the arguments against allowing work to enter the public domain is that the creators of a work should be able to profit from it as long as they are able to. Well, okay…except the vast majority of works out there are no longer making anyone a dime. There isn’t a huge clamor out in our multiplexes for moviegoers to see the Great Movies of 1928. (1928 was, until Eldred, pretty much the current date for works to leave copyright protection.) There isn’t a rush on at Barnes and Noble to read the Bestsellers of 1928.
So basically the copyright extension was extended another twenty years to benefit a very few. It’s not called the Mickey Mouse Protection Act for nothing. There are very few beneficiaries of the copyright extension. And I’ve come to believe that society is definitely the loser.
My first glimmerings of what was going on here came from a few comments on the Well, but Matt Stoller definitely helped me along.
Real-world property is rivalrous. If I use your car other can’t use it.
Intellectual property is non-rivalrous. If I listen to a song others can listen to it as well. My use of the song in no way damages the song for others.
The key to remember here is that my building of a car took materials that are rivalrous and cost money. My building of a song did not and took elements from the public domain (ie. the Rolling Stones drew heavily from blues). Therefore, that song is partially owned by the public domain, and partially owned by the author. The author should be able to profit from the song so that she will have incentives to produce new ones, but the public should be able to use the song to create other works of art. Allowing this is critical to a vibrant ‘public domain’.
Intellectual property also differs from real-world property in that, once intellectual property has been aired, the ideas are out there. If I read a novel, I know what it says, I know the story. I can’t un-read it. I can’t go off and write the exact same novel, but neither can I remove the ideas from my head.
Intellectual property also builds on previous intellectual property. It is probably safe to say that few if any ideas spring forth from their creators’ head without influence from somewhere else. The easiest examples of this are the 18 millions variants on Shakespeare’s stories that we’ve seen. And Shakespeare, of course, was famous for “building” on others’ work.
If Shakespeare’s stuff was still under copyright, our artistic landscape would probably look a little different.
Lawrence Lessig, who has his own blog, is the Stanford law professor who argued Eldred before the Supreme Court. In a New York Times editorial he wrote:
Still, missing from the opinion was any justification for perhaps the most damaging part of Congress’s decision to extend existing copyrights for 20 years: the extension unnecessarily stifles freedom of expression by preventing the artistic and educational use even of content that no longer has any commercial value. As one dissenter, Justice Steven G. Breyer, estimated, only 2 percent of the work copyrighted between 1923 and 1942 continues to be commercially exploited (for example, the early Mickey Mouse movies, whose imminent entry into the public domain prompted Congress to act in the first place).
But to protect that tiny proportion, the remaining copyrighted works will stay locked up for another generation. Thus a museum that wants to produce an Internet exhibition about the New Deal will still need to find the copyright holders of any pictures or sound it wants to include. Or archives that want to release out-of-print books will still need to track down copyright holders of works that are almost a century old.
Okay, so now we know how extending the copyright stifles expression: it doesn’t allow current creators to use material that’s been out there for seventy-five years and become part of the intellectual landscape. Why should they be able to use this material?
Because all creators use other material to create new material. We can’t help it; that’s just one of the features of intellectual property. In a long and somewhat rambling speech, Judge Richard Posner talks about how this works:
One possibility is that there is inherent asymmetry between the value that the creators of intellectual property place upon having property rights, and the value that would be copiers place on freedom to copy without having to obtain a license. The, you know, if you get an exclusive right to a piece of intellectual property, whether it is an invention or a book, or a movie, or what have. That may shower economic rents on you. But copiers can only hope to obtain a competitive return. It is a feature of intellectual property. It differs from physical property. Physical property — if property is abandoned or forfeited in some way it is available for appropriation by someone else. So, there is a lively interest in abandoned property, because if you perceive it to have value, you can reclaim it, make it yours, and obtain the value of it. But you can’t do that with abandoned intellectual property. Once intellectual property enters the public domain, with really minute exceptions, it is there forever. Anyone can use it. But, no one can establish rights in it. And that makes it very difficult to make a lot of money from the public domain, the sort of money that would enable the formation of a compact interest group, with a really big stake in knocking out existing copyrights or patents, and contributing to the Congressmen, and so on, and getting their, your law passed.
So, it looks as though it is much easier to organize a coalition of people who want to expand property rights, than to organize a copiers’ interest group. And, on that theory, one might expect continuous inexorable political pressure for expansion of intellectual property rights.
But there is something tugging the other way, and further complicating the analysis. And that is that most creators of intellectual property are actually using existing intellectual property as inputs into their works. You don’t really have creation ex nihilo. You are building. It is a cumulative process, whether technological or artistic. And any law that strengthens rights to intellectual property beyond the level of, beyond some unknown level, may increase the input costs, fouling their own nest, by making it impossible for them to find public domain material on which to build their new work. So this prospect, presumably, retards efforts by producers of intellectual property to press for expanding legal protection.
Or, for a more specific example, a parody points out how the folks over at Disney, the most ardent defenders of extending the copyright, are just a wee bit shameless in their assertions:
Q: Some might say that it’s perfectly legitimate for Disney to own you?not just now, but in perpetuity. After all, they created you.
A: Created me? [An enormous cartoon spit-take follows.]
Did you like that? It’s my Daffy Duck imitation.
Q: Very nice. I didn’t know you were familiar with the Warner Brothers characters.
A: Poor bastards. They’re gonna be locked up even longer than I am. I guess if Chuck Jones were still around to direct their cartoons, they might not mind it on their plantation. Instead, they have to do those stupid commercials with Michael Jordan.
Anyway. Yeah, Walt Disney created me, but he didn’t create me out of nothing. Look at my skin. Look at my face. Look at this glove. I’m straight out of the minstrel show tradition?which makes this whole “ownership” business stick in my craw even more.
I’m also Buster Keaton.
Q: Sorry?
A: My first cartoon short, Steamboat Willie, was a direct parody of Keaton’s movie Steamboat Bill, Jr. On the very first page of the script, it says, “Orchestra starts playing opening verses of Steamboat Bill.” I remember what Eldred’s lawyer Lawrence Lessig said when he read that: “Try doing a cartoon take-off of one of Disney, Inc.’s latest films with an opening that copies the music.”
So yeah, they created me. But they don’t want to let other people build on me when they make their own creations, the way they did when I was born. And now I’m locked up for another stinking 20 years! Do you have any idea what it’s like to have to greet kids at Disneyland every single day, always smiling, never slipping off for a cigarette?
Those pinkos over at the Volokh Conspiracy—that’s sarcasm, folks—agree that copyright extension is a bad idea:
But extension imposes a serious cost, by delaying the entry of a wide range of works (the ones created between 75 and 95 years ago, since the retroactive extension increased old works’ protection from 75 ro 95 years) into the public domain: The extension means people aren’t free to produce new works based on the old ones, to digitize those works and put them on the Web, to make cheaper copies of the works, and so on. The public loses — and only Disney and a few other owners of still-profitable early-20th-century works really benefit.
The most persuasive argument, for me, is that all intellectual property—property created by someone’s creativity—is built on previous creativity. And once the ideas are out there and become part of the total body of knowledge of a society, society should not be endlessly dunned when it comes time to make use of them.
(I’m not a lawyer. I don’t play one on TV. I’ve never even written a spec script for a lawyerly TV show. Anything I’ve gotten wrong here is purely my fault. I recommend Lawrence Lessig’s blog (he’s the lawyer who argued, and lost, Eldred at the Supreme Court) and Copyfight for pointers to more on this topic.)