Home » Copyright, Uncategorized » The Missing 20th Century: How Copyright Protection Makes Books Vanish

The Missing 20th Century: How Copyright Protection Makes Books Vanish

2 April 2012

From The Atlantic:

Because of the strange distortions of copyright protection, there are twice as many newly published books available on Amazon from 1850 as there are from 1950.

The above chart shows a distribution of 2500 newly printed fiction books selected at random from Amazon’s warehouses. What’s so crazy is that there are just as many from the last decade as from the decade between 1910 and 1920. Why? Because beginning in 1923, most titles are copyrighted. Books from before 1923 tend to be in the public domain, and the result is that Amazon carries them — lots of them. The chart comes from University of Illinois law professor Paul Heald.

Link to the rest at The Atlantic and thanks to Abel for the tip.

Passive Guy speculates that the answer to most of these vanished books is that the rights to those books have fallen into a crack between the original publishers on the one hand and authors and authors’ heirs on the other.

Since the 1930’s publishing has undergone a massive consolidation and most of the publishers that existed from the 30’s-50’s have disappeared or been acquired and re-acquired and re-acquired yet again. Tracking down old publishing contracts may be next to impossible under those circumstances.

Likewise, many of the authors who published during that era are deceased. If royalty payments on their books ceased prior to their death, the heirs may only the vaguest idea that they have inherited copyrights to these works. If you throw pen names into the mix, things become really sticky.

As Google discovered, however, if you decide to make old books available for the general public to read, you walk into a mine field.

Out of 100 books published in 1930, it is likely that 99 could be republished with no objection from anyone. However, the potential consequences of a copyright violation claim on the 100th book would make the entire undertaking too dangerous to pursue on either a commercial or non-profit basis.

PG previously wrote about French legislation designed to remedy this situation, but it had some problems. See also this post.

Copyright, Uncategorized

44 Comments to “The Missing 20th Century: How Copyright Protection Makes Books Vanish”

  1. I honestly think that after the death of the author, rights morally belong in the public domain. However, I can see TWO reasonable ways to extend it:

    1.) because an author could sign a contract, get paid and drop dead, it would be good to have a five year “grace period” in which the publisher can recoup the cost.

    2.) If you really really really really think that the author’s heirs should keep the rights, make ‘em register, and reregister regularly. Every ten years, say.

    That way books which are abandoned would be available to the public domain, but books which have a curator could stay in the hands of someone who would care for them.

    And frankly, I don’t like this “untouchable national treasure” thing that they do in Europe all that much. The reason something like, oh, Peter Pan, is a national treasure is because it’s in the public mind. It’s a part of the culture. It should be in the public domain.

  2. I think the “35 year end of transfer” clause that the recording industry is fighting will come into play here. Starting next year the repetitive transfer of rights via consolidation and acquisition of purchased company’s rights hits that limit.

  3. Two comments:

    1) The vast majority of hand-wringing and crocodile tears about the evils of copyright duration come from anti-copyright jihadists such as Lawrence Lessig and the rest of the “information wants to be free” crowd, who haven’t been able to achieve either in court or in public opinion the diminishing or elimination of copyright protections which they seek. In consequence, the anti-copyright crowd have more than once openly admitted that they are pursuing an incremental strategy to achieve their goals. Give them an “author’s life plus thirty-five years” copyright duration today and tomorrow they will begin pushing for author’s life plus twenty-five years, then fifteen, then ten, then zero, and then they’ll start chipping away on the duration period while authors are still alive. It would be foolish of authors and other copyright holders to do other than draw a line in the sand right here and not give an inch regarding our present hard-won protections. These are sneaky, determined people and given their avowed disdain for all copyright protections, we simply can’t trust them, merely because they’re making a show of acting more-or-less reasonable at any point along the way; and

    2) Any diminishing of copyright protection has a real potential for affecting the price that an author can get right now, while he or she is still alive, for a copyrighted property. Which is the Disney corporation likely to pay me more for, a property which they can potentially generate profits from in perpetuity, or one which they’ll lose the rights to at some point after my death? Beyond the financial aspect, there’s a simple matter of fairness: some guy who spends his time and energy and other resources constructing an apartment building can profit from it in perpetuity, or leave it to his heirs to profit from in perpetuity, or sell it to someone else and receive a price based upon the other party being able to profit from it in perpetuity — and nobody hits the apartment-builder guy with some bogus argument about how it would benefit the community if his property reverted to the public domain at some point after his death. Why should some hypothesized benefit to the community be a compelling argument in regard to limiting the duration of ownership of one type of property — such as an author’s copyrighted manuscript — when it’s not argued that a similar limitation should be applied to other forms of property, such as an apartment building? Properly considered, the defense of copyrights and pushing back against any diminishing of their ownership period is a defense of all property rights.

  4. K. W. Jeter,

    To respond to your second comment, Disney cannot purchase copyrights. It purchases a temporary transfer of the license. That transfer is limited to 35 years. PG brought this to our attention in a March 22 post. I will refrain from the long and involved discussion of balancing public good vs individual gain that is IP law beyond noting the purpose is noted in the US constitution.

    As to the first part, that’s a mighty fat brush you’re tarring me with. Are people like me, who earn from our copyrighted material but who think the current law is of far too long a duration, misguided, willing idiots, or is it possible instead we’ve actually considered the whole and should – perhaps – be heard as well?

    • Kirk —

      Good point regarding the temporary license transfer. However, I don’t think it alters the point that I was making regarding the general diminishing of value that comes from limiting copyright duration. If I or my heirs sell a 35-year license to Disney, I cannot sell them a subsequent transfer if the rights have been sucked into the public domain. Again, the issue of fairness: why should this happen to my property, even after it passes to my heirs, when it doesn’t happen to other properties, such as apartment buildings?

    • Thanks Kirk. You saved me from having to write a long comment. :)

      I will add that the comparison of Intellectual Property to Real Property is a straw man argument. A better comparison would be to other forms of IP, maybe patents. By KW’s logic, a drug company that created a new drug should be the only one to ever be able to produce that drug until the end of time. Inventors shouldn’t try to improve on an existing invention, because the patent on the original lasts forever and would make it impossible to sell the improved version without infringing on the original patent. Public good be damned.

      • BigAl —

        You haven’t addressed the point I raised. If the so-called public good is your over-riding concern, why not apply that consideration to other properties besides copyrights, patents and other intellectual property? Why not claw apartments, real estate, factories, etc., into the public domain thirty-five years after the original creators’ deaths, so the proceeds from them could be devoted to the public good?

        • Actually the public good isn’t my overriding concern. I believe authors or others who create IP should be able to benefit from their work. The difference is, the public good is a concern of mine and doesn’t appear to be of concern to you. I think three should be a balance.

          As the OP shows, books from the 30s to the 80s are largely not available. Surely that isn’t doing either the public or the majority of the people who authored those books any good.

          • Fine — you still haven’t answered as to why you apply your concern, of whatever magnitude it might be, to intellectual property and not to other forms of property. Why one and not the other?

            • Does whether my apartment building is inherited and controlled by my heirs forever (or at least until they decide to sell it) have more than a minimal impact on the public good? Would Pfizer keeping the patent and the exclusive right to produce Lipitor or Merck to produce Singulair for the indefinite future impact the public good?

              But I’ll state it again, comparing real property and IP are apples and oranges. There are fundamental differences between the two. For one thing, you can’t sell that apartment building an infinite number of times. My controlling the apartment building isn’t going to stifle innovation. The law concerning these two completely different kinds of property has evolved over time much differently because of those differences.

    • As to tarring you with any sort of brush, you should notice that my while my original comment followed yours sequentially, it was actually not posted in reply to your comment; it was posted as part of the general discussion raised by PG’s original article. You’re taking offense where obviously none was intended.

      As to whether you “should be heard as well” — who’s stopping you from being heard? Make your arguments as you wish. Whether your position comes from deep consideration of the matter or not, that doesn’t change the issue I raised in regard to Lessig and his crowd, who have openly stated that they’re attempting to follow an incremental strategy to achieve their goals.

  5. “Anti-copyright jihadists?”

    When you start by making personal attacks on anyone who happens to disagree with you, you make it clear you’re not listening, or interested in discussion.

    • Camille —

      You’re taking offense at a comment that was not directed at you. If you’ll take a closer look at my original comment, you’ll see that the phrase “anti-copyright jihadists” was limited by the following phrase “such as Lawrence Lessig and the rest of the ‘information wants to be free’ crowd. I’m not aware of anything you’ve said that places you in that group.

      • Read your first sentence again. While you covered yourself with “the vast majority” you in essence dismissed the entire concern about the duration of copyrights as being mere hand-wringing from kooks.

        Sorry, but why say that? The only purpose it serves is to de-legitimize anyone who disagrees with you before the debate even begins.

        • Sorry, you’re simply incorrect. The words “the vast majority” do not equal “the entire concern,” in “essence” or in any other way. You’re now just attempting to justify the unwarranted offense that you previously took from a comment that was obviously not directed toward you. That’s your choice, not mine.

          • Let me put this another way: how are those of us who feel Lessing is not only reasonable, but fighting the good fight, supposed to respond to a statement like that?

            How are those of us who are wringing our hands about the evils of excessive copyright duration supposed to respond?

            • Maybe by raising our hand and saying, “I’m a jihadist.” Hopefully this isn’t going to get me investigated by Homeland Security. The choice of term appears inflammatory by design.

            • Actual quote from Lessig: “Nobody needs more than 14 years to earn the return back from whatever [copyrights] they produced.” http://www.econlib.org/library/Columns/y2003/Lessigcopyright.html

              That’s Lessig’s actual position, from which he’s never changed; not “life of author plus thirty-five years,” but “fourteen years,” period. Under Lessig’s notion of what copyright duration should be, all Ridley Scott would have had to do is wait a few months and he could have made his film BLADE RUNNER without paying Phil Dick a dime for the underlying rights to his novel DO ANDROIDS DREAM OF ELECTRIC SHEEP?

              Are you saying that you agree with Lessig and you feel that’s “reasonable”? That’s “fighting the good fight”? Interesting; you’re either unaware of what Lessig’s actual positions are, or you don’t feel that living writers, including yourself, deserve to be paid for their work after 14 years. Is that the case?

            • Actually, I find his point very reasonable. I don’t agree with him that it’s the best solution, but I find it reasonable. Here’s why:

              First: copyright is not a natural right. A natural right is to have ownership of what’s in your head, which means as soon as something has been shared, it belongs to those who received it as much as those who shared it. That’s the way ideas work.

              Second: our forefathers rightly realized that it is good for the culture to create an artificial right to encourage invention and creativity. I don’t disagree with this at all, and neither does Lessing.

              The question is “how long?” There have been many many different terms throughout the history of copyright. To me there are three considerations:

              1.) What is the shortest amount of time it takes to do the job of encouraging people to create work for the greater good of society?

              2.) What is the longest amount of time before it starts doing damage to society?

              3.) What’s practical in terms of managing the rights?

              IMHO, 14 years is too short to deal with #1, current copyright has reached the point if negatively impacting our common culture (as is demonstrated in the graph that started this.

              To me, life of author is more manageable than specific terms, because otherwise when do you start the clock? You have to start the clock at creation, and some works take more than 14 years to create.

              So, to me, life of author is the most natural term to use, simply out of practicality. I understand the arguments for additional time to cover other parties when a contracted author has died. But more than 5-10 years seems excessive to me.

              And corporations should not get more than the 14+14 they used to get. Ever.

              Because there is so much money going into lobbying the laws on this, I am willing to compromise with a “use it or lose it” clause: anyone who wishes to keep copyright going after a certain point has to register and keep re-registering it on and on.

              But is Lessing unreasonable? Not at all. Copyright is not a natural right. It’s a construct.

  6. BigAl —

    Quoting you: “Does whether my apartment building is inherited and controlled by my heirs forever (or at least until they decide to sell it) have more than a minimal impact on the public good?”

    Obviously not. And with that being so, you’ve made my case for me. Let’s rephrase your position: “Does whether my novel or other copyrighted property is inherited and controlled by my heirs forever (or at least until they decide to sell it) have more than a minimal impact on the public good?”

    Well, does it?

    • I would say yes. I’ll concede that I don’t don’t feel as strongly about this as the other examples I’ve given (drug patents and inventions), but I think it does. Maybe not your novel or other copyrighted work specifically, but someone’s. Probably a lot of someone’s.

      In his comments PG talks about the issue of finding the copyright holder of something published in the 20s or 30s. If his 99 out of 100 contention is correct then I would say a large number of those who own those copyrights have no idea that they hold those copyrights. The effect of this is that 99 out of 100 of those copyrighted books are in essence lost to the world forever. Surely some of those thousands of books would be of value.

      Let’s imagine that the concept of a copyright had existed since the beginning of time. Could the first printing of the bible have even happened? Gutenberg could have negotiated with the church, but did they really have the rights for monks to be hand copying before that? Did they negotiate the rights with Matthew, Mark, and Luke’s heirs? Could they even find them?

      Let’s assume that is all squared away and the church owns the copyright to the bible, forever. That stifles innovation, forever. Suppose someone wanted to write a plain language version of the bible that anyone could understand and the church said no. Should that be okay? Forever?

      • Again, you make my case for me. You concede that my (or my heirs) retaining ownership of my copyright does not have a great impact on the public good — it’s only my copyright combined with everyone else’s that you’re concerned about. Fine — so why doesn’t that concern apply to my apartment building combined with everyone else’s income-producing property? Why would it be to fair to claw into the public domain the property of all copyright and patent holders, but not that of all other property holders en masse?

        As to stifling innovation — please; pull the other one. What actual empirical evidence do you have that innovation is being stifled by authors holding on to their copyrights longer than the 14 years that the Lessig crowd would prefer? To listen to Lessig et al‘s sob stories, readers are gazing at empty bookstore shelves while would-be writers are moping and saying, “Gee whiz — if only those greedy ol’ writers who got there first weren’t holding on to their copyrights, just think of all the books I could write!” In what fantasy land is that happening? The copyright duration extensions that Lessig and the other anti-copyright jihadists bewail have had no discernible effect on new writers being able to write all the books they wish to.

        • You are asking us to prove a negative. To show you how a limit of more than fourteen years stifles innovation we would have to magically show you what works have been stifled.

          Instead, let me approach it from the other end.

          Had longer and even near-perpetual copyrights existed, Disney would not have been able to produce Snow White or Peter Pan. Lest you quibble over media, John Myers Myers’s “Silverlock” would have been impossible to write.

          Since both examples show that original creations can be made by building on other people’s creativity, creativity which is (for a time) copyrighted, it is up to you to show why what works when copyright ends after long duration will not work if it ends at a shorter duration.

          • LMFAO. Hoist upon your own petard, pal. Longer-duration copyright would not have prevented Disney from making their version of Barrie’s PETER PAN, because the underlying property was actually still under protection at that time. “Peter Pan was one of Walt Disney’s favorite stories and in 1935 he intended for Peter Pan to be his second film after Snow White and the Seven Dwarfs.[3] However he could not get the rights until four years later, after he came to an arrangement with Great Ormond Street Hospital in London, to whom Barrie had bequeathed the rights to the play.” http://en.wikipedia.org/wiki/Peter_Pan_(1953_film) Disney merely had to pay for the rights — which is rather my point. (By the way, Great Ormond Street Hospital is a hospital for sick children, for whom Barrie particularly wished to provide; had the anti-copyright position currently espoused by Lessig et al prevailed back then, those sick children wouldn’t even seen a penny from the Disney production as well as some others. But of course, taking money away from sick children is apparently better for the common good, according to the anti-copyright jihadists.)

            As for “showing” anything to you as evidence for my own position — take a look out the window; it’s called the real world, as opposed to the fantasy land in which the anti-copyright jihadists exist. Where in the real world is there any evidence that there isn’t a tsunami of books and other creative works being produced everyday? That’s what all the marketing discussion here on PV and elsewhere is about — the recognition that so many books are being written and published, writers have to go to heroic efforts to call attention to themselves and their productions. If copyright is stifling creative output, it doesn’t seem to be stifling it very well!

            • I’m amused that you managed to ignore Snow White and Silverlock in that post. However, back to Peter Pan; I was relying on memory when I selected that as one of my examples. Unfortunately, I was recalling the recent (2004) dust-up over the prequel created by Barry and Pearson (published by Disney), over which Disney was sued for copyright.

              As to your argument of the “real world”, it’s a nice diversion. It does not counter the fact that I have shown that there are a number of creations that are derivatives of once-copyrighted materials.

              For that matter I can point to any number of fanfic materials made in violation of copyright.

              You look at the existing quantity of material and say that’s enough. I look at the potential denied and wonder at the stories untold.

              To change the point slightly, my objection to the length of copyright isn’t really about derivatives and such. It is about the books and stories (and films and other materials) unavailable for distribution. They are too small a market for a large publisher to be willing to produce, but because of the aged copyright and difficulty of finding the copyright holder are not available for smaller publishers to produce, either.

              To use your very poor analogy, it is the apartment building built, but to which deed and keys have been lost. That a few are still available and productive does not change the fact of the loss.

        • I’m conceding that some books not being available to the general public will impact the public good more than others. Which of those books matter more than others is impossible to determine in advance.

          To me, one of the keys to the limitation on copyright length goes to Camille’s point made earlier about what period of time is practical for managing rights. If the rights go on forever and the owner of those copyrights can’t be found or determined those works are as good as gone forever. If Phillip K. Dick had written his books 100 years earlier and you were not able to find his heirs some of your books couldn’t have been written. Would that have made the world a better place?

          Regarding your insistence on comparing real property such as an apartment building to intellectual property in the form of copyrights, the “public good” of an intellectual property is unlocked by making it more accessible to the public. However, there are some times where that hypothetical apartment building is taken away from the property holder for the public good. The process of doing so is called eminent domain.

          • Well, of course you’re “conceding that some books not being available to the general public will impact the public good more than others.” That’s exactly why Lessig and his crowd want to claw all books into the public domain.

            As for the books of mine to which you’re apparently referring, you’re speaking from ignorance. I didn’t go looking for Phil Dick’s heirs; they came looking for me, to write those books based upon their father’s original material. And it was copyright that enabled them to do so; if the duration of copyright had been limited to the 14 year period that Lessig believes is appropriate, the underlying material would have already passed into the public domain. The children that Phil Dick loved and wished to provide for wouldn’t have received a penny from any such sequels that unscrupulous publishers would have been free to flood the market with. But of course, “common good,” blah blah blah.

            “However, there are some times [my emphasis] where that hypothetical apartment building is taken away from the property holder for the public good.”

            But of course, Lessig and the other anti-copyright jihadists aren’t talking about “some” books and other intellectual property — they’re talking about all books. So raising the issue of eminent domain is rather pointless here, isn’t it?

            • “So raising the issue of eminent domain is rather pointless here, isn’t it?”

              TBH, yes. Just as comparing two kinds of property with completely different attributes is pointless. Yet you persist, and I continue to take the bait. And here I go again.

              A point you keep ignoring and I continue to try to make is that for the vast majority of copyrighted works, if copyright remains in effect forever, they will be unavailable for most people (the public) to access for all practical purposes in the future. An analogy for your apartment building would be if the owner disappeared from town, left no forwarding address, and died. Under the equivalent of your copyright argument the lot that apartment is on should be left alone as the apartment falls into disrepair and eventually becomes a slightly more modern equivalent of the Anasazi cliff dwellings. Of course this would never happen because at some point the county would auction the property off for property taxes. However, there is no equivalent for copyrighted works.

              My argument is not and never has been against copyrights. It is that the current system is flawed as currently constituted. The suggestion above that for a work to remain copyrighted the copyright should be registered and renewed every 10 years as well as be “in print” (whatever that should mean in current terms), seems reasonable.

              “As for the books of mine to which you’re apparently referring, you’re speaking from ignorance. I didn’t go looking for Phil Dick’s heirs; they came looking for me …”

              Guilty as charged … probably. If this means you would have never thought to write the books based on his books had the heirs not suggested it, you’re right. But since I killed Phillip Dick off 100 years earlier in my hypothetical, can I modify it to include you getting the inspiration for these books on your own and being unable to find the heirs? Would the world survive without these books? Sure. Would there be an abundance of books for readers to choose from? Of course.

              I think one of the hangups is that, unlike inventions, it is harder to point to specifics of innovation being stifled due to copyright. Any example we might point to someone would respond, “but that’s just one book, not all books.” That’s what the copyright fascists who think a copyright should go on forever do. Could the world live without that mashup that came out last year of Jane Austen and some vampire story? Or my bible recast in modern day language? Sure. No one book is going to make or break the world. However, the grand total of all of these things that would have been done and weren’t because of books that are essentially dead to the world would make a big difference, at least IMO.

              Another consideration where innovation or lack there of comes in is the knowledge contained in all those books that are no longer readily available. If all the books that are out of print and the copyright holders are never going to do anything with those rights were available for the Gutenberg Project to make available, wouldn’t the totality of that be invaluable for research and other uses?

  7. Camille —

    You’re defending Lessig on points that no-one here is discussing, or even necessarily disagreeing with. But on the point that is being discussed — which is what should be the duration of copyright — you’ve just indicated that you don’t agree with Lessig’s “nobody needs more than 14 years” position.

    Which is exactly the point I was making. The Lessig crowd’s incremental strategy is a subterfuge designed to obscure what they actually wish to accomplish. (And Lessig and his followers have said as much on his blog forum, when they thought other people weren’t listening in. To paraphrase Lessig himself from that forum, “We’ll start with what seems reasonable to other people, then we’ll go the next step.”) When authors and other copyright holders find out Lessig et al‘s actual positions on copyright, they don’t agree with them — just as you now indicate that you don’t.

    • We’re talking here about the damage that excessive copyright does to society. You made an inflammatory statement which de-legitimizes those who disagree with you.

      Let’s be clear: I agree with Lessing. The fact that we have differences in what we believe the term should be is only a matter of degree.

      When you say you’re only talking about “the majority” of people who are wringing their hands about copyright duration, I gotta say: my opinions are in “The Majority” of that group.

      And what do Lessing’s motives have to do with the price of beans in China? Snarky, ad hominem attacks don’t help anything. Just state the position you are against, and leave the personalities out of it.

      Copyright is not a natural right. It’s what we as a society decide is most useful to us. People with strong opinions are not villains on this. I just happen to agree that copyright is dangerous, because it infringes on freedom of expression, and by implication, freedom of thought.

      • You’ve certainly clarified your position regarding copyright. My deepest apologies; I had been making the charitable assumption that you might have had some difference with Lawrence Lessig’s extremist positions. But as you’ve now made clear, you regard copyright as “dangerous,” something that needs to be reigned in, etc., etc. — so in fact, there apparently isn’t much if any difference between your position and that of anti-copyright jihadists.

        Of course, other writers and creators are free to decide whether copyright is as oh-so-scary as you believe it to be. I have every confidence that more writers are in agreement with my position than yours and Lessig’s.

        • Camille says:

          “We’re talking here about the damage that excessive copyright does to society.”

          “The fact that we have differences in what we believe the term should be is only a matter of degree.”

          And from that you get this?

          “I had been making the charitable assumption that you might have had some difference with Lawrence Lessig’s extremist positions.”

          • What can I say? I’m no saint, but I do make an attempt to think the best about someone, at least until they provide evidence as to why I shouldn’t. At the time I made my “charitable assumption,” the person in question hadn’t yet made it clear how closely she agrees with Lessig and the other anti-copyright jihadists. The quotes you provide are from her latest reply to me, not the earliest one upon which I had made my assumption.

    • Gordon Fridenberg

      K.W.
      That is the kind of argument that leads to “We cannot have any restrictions on any kind of abortion whatsoever because some people want to ban all abortions and this is just a first step,” or “We cannot permit any restrictions on guns of any kind, because some people want to do away will all gun ownership and this is just a first step,”. The slippery slope argument generally leads to extremist positions and poor policy.

      Sure there are some people who want to do away with all copyright, and there are some who want perpetual copyright. A lot of people think the current laws are flawed and could be improved. It’s a discussion worth having.

      You needn’t worry that copyright is going to be gutted. The Entertainment Industry owns far to many Congressmen to allow any serious reform to go anywhere.

      • Actually, I’m not making any sort of “slippery slope” argument. I’m merely pointing out that Lessig and the other anti-copyright jihadists have been open about pursuing an incremental strategy in an attempt to achieve their goals.

        And of course, if anyone is wringing their hands about some sort of “slippery slope,” it’s the anti-copyright jihadists, who attempt to convince others that any maintenance or extension of copyright provisions will somehow result in some apocalyptic situation where nobody will be able to do anything with any intellectual property, including their own. Which of course is nonsense, but it doesn’t stop them from making exactly the sort of argument that you decry.

        As for copyright being gutted — you can rest assured that I’m not worried about it. But it’s not because the oh-so-scary “Entertainment Industry” owns any number of Congressmen; it’s because I’m confident that the vast majority of people value and treasure the creators of intellectual property and feel that they should be fairly recompensed for their labors. If you and Lessig et al feel otherwise, that’s too bad for you. While you’re seething about the “evils” of copyright, other people are writing their original books and songs for others to enjoy. You can join the party whenever you choose to — but I doubt if you will.

  8. KW,

    I can use elements of an intellectual property in potentially unlimited derivatives and expansions. I cannot do that with real property.

    Tolkien’s work can be built upon to produce a parody, and the parody belongs to the parodist. However, if a workman builds an extension to Tolkien’s house, it is not the workman’s property separate from Tolkien’s.

    • “Tolkien’s work can be built upon to produce a parody, and the parody belongs to the parodist.”

      Which is of course a completely separate issue from the duration of copyright. My or my heirs holding my copyright in perpetuity would have no effect on your ability to produce a parody version. Your right to do so would be protected no matter how long my copyright endures.

      You still haven’t produced an argument as to why the ownership of intellectual property should be limited in a way that other property is not.

  9. BigAl —

    A point you keep ignoring and I continue to try to make is that for the vast majority of copyrighted works, if copyright remains in effect forever, they will be unavailable for most people (the public) to access for all practical purposes in the future.

    On the contrary; I haven’t ignored that so-called point. I’ve merely demonstrated that it’s not important in this discussion, or at least does not substantiate anti-copyright jihadists’ claims about the supposed “dangers” of copyright.

    An analogy for your apartment building would be if the owner disappeared from town, left no forwarding address, and died. Under the equivalent of your copyright argument the lot that apartment is on should be left alone as the apartment falls into disrepair and eventually becomes a slightly more modern equivalent of the Anasazi cliff dwellings. Of course this would never happen because at some point the county would auction the property off for property taxes. However, there is no equivalent for copyrighted works.

    Your analogy is fatally flawed and does not make your case. There’s a fundamental difference between real property and intellectual property, specifically creative works. A remedy is required for abandoned pieces of real property because there is only a finite amount of it; an abandoned piece of real property thus represents a real loss to the community. (Though note that even the remedies for abandoned pieces of real property do not require all pieces of real property being clawed into the public domain, based solely on their age.) But intellectual property, specifically creative works, are by their very nature infinite in amount. Tolkien’s and George R. R. Martin’s copyrights could be tied up until Doomsday, and authors would still be able to write all the heroic fantasies they choose. What would be stopping them? Absolutely nothing — they would merely have to refrain from using material that exclusively appears in Tolkien’s and Martin’s books, except for purposes of parody? Want to write a cozy murder mystery? Go ahead — just don’t use Agatha Christie’s Miss Marple, again except for purposes of parody. Nothing is stopping you, except for the limits of your own creativity. So what’s the problem?

    Answer: There is none. Except in the rhetoric of Lessig and the other anti-copyright jihadists who are, for their own purposes, attempting to whip up hysteria about the oh-so-scary “dangers” of copyright — with some success, apparently, given the tremulous nature of some of the comments on this forum.

    Would the world survive without these books? Sure. Would there be an abundance of books for readers to choose from? Of course.

    Exactly. Thanks for conceding my point.

    the grand total of all of these things that would have been done and weren’t because of books that are essentially dead to the world would make a big difference, at least IMO.

    Exactly — in your opinion and nowhere else. Because your claim is hypothetical and incapable of being proved. Whereas my claim, that copyright does not present such “dangers,” can be shown by reference to the real world, in which you yourself concede that copyright hasn’t prevented a flood of books and other creative works from coming into existence.

    If all the books that are out of print and the copyright holders are never going to do anything with those rights were available for the Gutenberg Project to make available, wouldn’t the totality of that be invaluable for research and other uses?

    Certainly. But there are solutions to that problem beside those proposed by Lessig and the other anti-copyright jihadists. (And of course, their hand-wringing about this is pretty transparent when their animosity toward allcopyright is kept in mind.) The ownership of real property is often murky; that’s why we have affordable title insurance for real property purchases. Very few people would risk buying real property otherwise. If the problem of orphaned or abandoned works were really of such concern to Lessig et al, they should set about providing similar affordable title insurance for the Gutenberg Project or anyone else who wishes to make available works, the ownership of which might be obscured. Problem solved in an easy and logical manner — but you won’t hear it from Lessig, since it wouldn’t suit his actual anti-copyright agenda.

    copyright fascists who think a copyright should go on forever

    Bring it on; I’ve got thicker skin than that. I’ve been hoping for years for an opportunity to invoke Godwin’s Law in an online discussion — but I think I’ll refrain here, since your usage is nonsensical. The essential element of fascism is that the supposed “common good” overrides private rights; obviously, anyone who believes in extending copyright duration believes the opposite.

    • “I’ve been hoping for years for an opportunity to invoke Godwin’s Law in an online discussion.”

      I did that on purpose (although not explicitly thinking of Godwin’s Law). In any case, you’re right, it is nonsensical. So is Jihadist. Both are inflammatory terms for something completely different than what they’re being used for here.

      “Certainly. But there are solutions to that problem …”

      Offhand the solution you propose might be a good one, if economical.

      “Copyright hasn’t prevented a flood of books and other creative works from coming into existence.”

      The existence of copyright for some reasonable period (whatever that may be) encourages more books. If Agatha Christie’s books weren’t available there would be plenty to take their place. Isn’t this argument saying that one cozy mystery is the same as the next?

      • “Fascist” is as nonsensical as you concede it to be, but my use of “jihadist” is not. It specifically refers to the irrational “holy war” aspect of Lessig et al‘s campaign against copyright. They ascribe to copyright all manner of evils which are simply non-existent, and as demonstrated elsewhere in this discussion, there’s an emotional component to their positions which frankly borders on the pathological — IMO.

        As to whether my usage of the term is inflammatory or not — let me assure you that it’s actually the mildest term I have for those who have no problem with taking the bread out of the mouths of writers’ children and the roofs from over their heads.

      • Isn’t this argument saying that one cozy mystery is the same as the next?

        Of course not. I greatly admire Agatha Christie’s works, but whatever their quality and difference from other cozy mysteries, the value of keeping them in print doesn’t warrant clawing the copyrights from her heirs, when — as you concede — there are other ways of assuring that without compromising Christie’s property rights. She wrote her books; let others write theirs, encouraged to do so as they are by the copyright law provisions which have led to such a flood of creative works as we presently see.

  10. Kirk —

    As to your argument of the “real world”, it’s a nice diversion.

    I love that — “The real world; it’s a diversion.” You have eloquently managed to sum up the position of the anti-copyright jihadists.

    That being the case — that the real world doesn’t matter to you — I’m not even going to attempt replying to your twaddle, since all my arguments are irredeemably based in reality.

    You just carry on mooning about all these non-existent books which you’re just so sure you’ve been deprived of. (“Wonder at the stories untold” — that one really cracked me up.) In the meantime, thanks to the indie e-publishing revolution, real writers are filling up Amazon’s servers with real books, to be read in the real world. And why’s that? Because in the real world, there’s nothing in copyright law that’s stopping them.

  11. No, your argument is a diversion.

    You have selectively quoted, misdirected, and argued by insult throughout. Your rebuttals have amounted to “I know what reality is, you don’t.” You keep limiting reality to only the part of the world you want considered, and not the whole.

    The simple fact as I’ve stated numerous times is that there are a number of books and stories written that are “illegal”, that violate copyright. They’re known, among other things, as fanfic. As with all, most aren’t that good but there are gems. And except for the cases where the copyright holder has said “go ahead,” every one of them, good or bad, is legally unavailable.

    Reality is that books are being denied because of copyright. Reality is that there are readers who want those books, but cannot have them. I can point to both despite your disbelief.

    Your argument is, essentially, that the readers will have to live with what’s available. It is a large quantity of material. But it isn’t what they want.

    This word you keep using, this “reality”. I do not think it means what you think it means.

    • You don’t seem to understand that the fundamental nature of property rights is that some people — the owners of the property — get to do stuff with the property that other people don’t get to do. There is no way that you can even have property rights without restricting what some people — the non-owners of the property — get to do. There are people right now who want your kidneys — should they be allowed to take them from you, simply because they want them?

      Your argument is, essentially, that the readers will have to live with what’s available. It is a large quantity of material. But it isn’t what they want.

      Tell it to Stephen King. Tell it to James Patterson. Tell it to J. K. Rowling. Tell it to Suzanne Collins. Tell it to the hundreds and thousands of writers, of all levels of sales, who are freely creating their books and finding the readers for them, all under current copyright law. Tell it to Amazon.com, for that matter. For people who aren’t giving readers “what they want,” they all seem to be doing pretty well.

      And that’s reality. Welcome to it!

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