Sunday, March 01, 2015

On Copyright Again

Last summer I wrote about the need to reform copyright.

The points I made then are still relevant and valid, but I wanted to add a bit to it based on some comments in my last blog post.

I talked about how fun it would be to write a comic where Superman, Hulk, and Spawn fight, but how that isn't ever going to happen.

DC owns Superman. Marvel owns Hulk. Image owns Spawn.

Since none of these characters are in the pubic domain, the only way to use them is with a license. But that's only one level of restriction. Even with an approved license, licencors will have rules. The few existing Marvel-DC/Hulk-Superman fights have been lackluster at best. That's because the rules imposed by the licencor override any creative freedom on the part of the author/artist.

Writers who work for a specific comic company have rule sheets and bibles for what is allowed and what isn't. Unless special exceptions are given, there are boundaries. It's stifling creatively.

I'd love to write a comic with Hulk, Superman, and Spawn, and have them beat the hell out of each other for 64 pages, instead of throw each other around for six panels and say stupid stuff. And I'd like to decide who wins, not be restricted or constrained by what the licencors' agree on.

I went into this Kindle World giving writers almost total freedom, with the exception of the guidelines that Amazon imposed (no ads, no porn, no racism). I allow any kind of sexual relationship. I allow writers to kill my characters. I allow writers to bring in their own characters.

Marvel and DC aren't doing this with their IPs, and during the rare times they had crossovers, there were either rules, or they let the fans decide.

Ultimately, my point is that Hulk would tear off the Man of Steel's arms and beat him to death with them. But that story won't ever be written by me, because of copyright.

How interesting it would be if fair use allowed writers to use the IPs of others. Let's say it was a limited use; maybe 15% of the completed protect. It would still be a game-changer.

But as we saw in the music sampling lawsuits through the ages, it ain't gonna happen.

Which is a shame.

I liked He's So Fine, but preferred My Sweet Lord. I like Bittersweet Symphony over the exceedingly rare orchestral version of Time is On My Side. Super Freak, and You Can't Touch, this can exists side-by-side. So can Under Pressure and Ice Ice Baby.

I can see paying a reasonable fee for fair use, but turning over full copyright and all royalties for a riff seems wrong. These songs weren't covers, or even re-imaginings. They were new art, based in part on old art.

Which is what Shakespeare did with many of his plays. Retell old tales in a new way. Which we're still doing with Shakespeare (West Side Story, Haider, Forbidden Planet, Gnomeo & Juliet.)

In 1936, Carl Orff took some poems written hundreds of years earlier and composed the Carmina Burana. Fifty years later, Orff's estate successfully sued the band Apotheosis for doing a techno version of O Fortuna.

Should Apotheosis have gotten permission to use a song written by a dead guy? Perhaps, but I'd argue for some sort of fair compensation. Maybe a one-time fee. Maybe percentage-based. But it shouldn't be up to the dead guy's estate. Once a creator dies, why not let that work spawn other works? Let the estate get a cut, but don't allow the estate to make any decisions on how the license is used. If I wanted my heirs to decide how to use my characters, I'd let them make the rules while I was still alive. Orff's estate killed a song (it's no longer available new) that introduced many, including me, to Orff's music. Orff may have even liked the version, had he been alive to hear it.

But art lost out to copyright. You can still download illegal versions of the Apotheosis remix, buy used versions, hear it for free on YouTube and all over the Internet, but neither Orff's estate nor Apotheosis earn a dime from it.

Pretty stupid. Especially stupid because the hit Apotheosis version is probably the catalyst that made O Fortuna so popular in modern society. They recorded their techno remix in 1991, and many people, like me, heard Orff's music for the first time. Prior to 1991, according to Wikipedia, there were a handful of popular culture uses of O Fortuna. Since 1991, there have been four dozen.

I wonder how much of that song's modern popularity is because it was a Top 10 hit, on Billboard for 11 weeks, thanks to Apotheosis. I wonder how much the Orff estate knows that. I can guess how much they've benefited monetarily.

We can argue who rightfully deserves the money--some heirs who did nothing to create the song, or a group that modernized something 55 years old and made it a big hit. That's an argument I want to have.

We live in a world where artists are regularly screwed by publishers, producers, and record labels, but it's okay because they signed on the dotted line, even though the contract sucked. But then we have a ridiculous double standard, where heirs and companies can hold onto the rights to Mickey Mouse and Sherlock Holmes and Carmina Burana for long after the original artists died.

I know I'm bringing up a lot of ideas here, some of them possibly conflicting, so let me highlight a few points:

  • When an artist dies, any IP they created should revert to heirs.
  • If that IP is currently being exploited by a company (producer, label, publisher) it should still revert. Artist dies, contract is over.
  • Once reverted, heirs are allowed to hold that copyright for a minimal amount of time. Say 40 years. But they don't have a say in how that copyright is used. 
  • Once reverted, any other artist or producer can use that IP in a commercial version of fair-use. I'll propose that if a certain percentage of the IP is used in a certain percentage of a new work, the heirs get a certain percentage of profits associated with that work, or certain set fees if that work is for advertising purposes.
  • If the artist is still alive, there should still be commercial fair use laws. Perhaps stricter than what the heirs have, but other people should still be able to use what the artist has done. I point to my Jack Daniels & Associates Kindle World as an example of that. Go ahead and use what I created, however you'd like, but pay me some set percentage.
These are ideas that I feel should be discussed, not laws I want to put into effect. I see problems with some of my points.

An IP creator, or their heir, might not want these IPs used in association with certain things. Advertising. Religious, political, or sexual issues. Morals antithetical to the original artist's intent. 

But if the artist is dead, isn't the artist is past the ability to care? And if the artist is alive and popular, fans are writing slash fiction anyway, where Luke nails Leia and Harry nails Hermione and Hulk nails Superman. I've even heard some unsubstantiated rumors that someone took Edward and Bella from Twilight, threw in some S&M, and then had a minor hit. And Stephanie Meyer was okay with it.

There is the possibility that public oversaturation of an IP can cause it to lose value. But I'd call that speculation. I bet if Stephen King or James Patterson did a Kindle World following my example, they'd increase their income and popularity. Patterson outsells King because he already allows other artists to create works under his brand. Patterson makes sure he keeps control over the works produced, but is that being a shrewd and smart businessman, or ultimately leaving money on the table? Amazon reviews show a lot of fans don't like Patterson's books when they're written by others. But many do. And the books keep selling. Wouldn't loosening up restrictions allow for even greater sales?

At what point does an IP become oversaturated? Or killed by bad reviews? Has that ever happened? Hasn't it been shown that bad publicity is better than no publicity, and being obscure is worse for your career than being mediocre?

I know this all seems the opposite of everything we've been taught. It's certainly much different than the current laws.

But is it wrong?

People cosplay, and the IP holder doesn't get a dime (unless that holder is smart and sells their own costumes). No one knows how many YouTube videos are put up and taken down on an hourly basis that involve other peoples' intellectual property. (You down with O.P.I.P? Yeah, you know me. And that's parody, so it's fair use you see.)

DJs makes mixes. Musicians sample. Fan fic abounds. People upload their covers and remixes of popular songs. 

Information wants to be free. That doesn't mean artists don't have a right to make money, or that someone who patents a pill to cure a disease shouldn't be allowed to make a fortune, or that a successful business shouldn't be able to trademark their logo. But there is a line somewhere. I'm not charging you to read this. When I speak to my friends, they don't have to pay me. Every original sentence I write and original word I utter does not mean the world owes me $$$, just like if I'm busking on Michigan Avenue with my C-harp, belting out the techno version of O Fortuna for tips, I shouldn't have to give Orff or Apotheosis a dime.

There is a line. And I don't think the current line meets the needs of the current population. Not the artists. Not the fans. Not the consumers.

It probably meets the needs of the big businesses who exploit artists and fans and consumers, which is reason enough for it to be re-evaluated.

I write for a character named Jack Daniels. When the whiskey makers heard about this back in 2003, they sent me a very kind letter wishing me success, but asking if I wouldn't mind putting a disclaimer in the beginning of my book.

Though the Lt. Jack Daniels mysteries are no way sponsored by, endorsed by, or related to Jack Daniel's Tennessee Whiskey, when I tell people my main character is a female cop named Jack Daniels, they get the joke.

Had Jack Daniel's Properties, Inc been litigious, they could have scared my publisher into not releasing Whiskey Sour. But they were polite and generous, and didn't sue me to prevent the start of my career. Hopefully my little series has sold a few bottles of whiskey for them, and though I am in no way sponsored, endorsed, or related to Jack Daniels Tennessee Whiskey, I will admit to having enjoyed more than a few bottles over the decades, including some special bottlings like the 1991 Barrelhouse No 1 which has been one of the most pleasant liquor experiences of my life.

Imitation is the sincerest form of flattery, and I love me some Jack Daniel's. I love that I can write about a character named Jack Daniels. And I love allowing other writers to write about that character.

And I'd love to write sequels to Salem's Lot, and the Exorcist, and Silence of the Lambs, and love to bring Cheers back and make Kramer and Al Bundy regulars, and while I'm at it I want to do a screenplay where Han and Starbuck are in the Millennium Falcon, being chased by Klingon Birds of Prey, and are forced to land on LV-426 where they run into a new Alien hive.

Also, Han nails Starbuck.

The Dirk Benedict Starbuck.

Kara Thrace it's awesome, but it's my slash fic and I can do what I want.

Except I can't.

I like the post-YouTube world. The post-YouTube world is the world where Rorschach and Deadpool can get a million hits (a dozen of them all mine). Where I can download a music torrent because the album was never released on CD or mp3, and I don't have a turntable to spin the used LP because I'm not a hipster. Where people share free thoughts on Twitter, and free pics on Pinterest, and book quotes on Goodreads. Where user-generated-content-based Wikipedia is the go-to place for facts. Where Amazon can release a book that collects some of its Funniest Customer Reviews. That book has a review by me in it. I didn't get paid. I didn't care. I wrote it to amuse others.

Just like I'm writing this blog to inform others. And I'm not charging anyone.

Maybe I'm wrong, but in an age of net neutrality and free information and the unprecedented ability of the World Wide Web to enable and encourage open exchanges of opinion, ideas, and art, current copyright law seems overly restrictive, archaic, and broken. It seems set up to protect the rich at the expense of society. Protect big business and screw the artist. Limit artistic freedom and expression.

We're not having this conversation in court because those with the money want to keep their money.

I like capitalism. I like money.

But I think there's something wrong with the idea that if I work a 40 hour week at Name Any Business, I get a salary or an hourly wage, and the money that I earn is a set, agreed-upon amount. But if I work 40 hours on a story--which is something I love doing and a helluva lot easier than working in a factory (done that), a restaurant (done that), construction (done that), an office, (done that)--I get to earn money for my lifetime, and my heirs can keep earning for 70 years after I die.

Lemme steal a few quotes from Wikipedia to further support my position.

Benjamin Tucker, opposing intellectual property, writes, "...the patent monopoly...consists in protecting inventors...against competition for a period long enough to extort from the people a reward enormously in excess of the labor measure of their services, – in other words, in giving certain people a right of property for a term of years in laws and facts of Nature, and the power to exact tribute from others for the use of this natural wealth, which should be open to all.

Petra Moser: Overall, the weight of the existing historical evidence suggests that patent policies, which grant strong intellectual property rights to early generations of inventors, may discourage innovation. On the contrary, policies that encourage the diffusion of ideas and modify patent laws to facilitate entry and encourage competition may be an effective mechanism to encourage innovation.

Stephen Kinsella: [I]magine the time when men lived in caves. One bright guy—let's call him Galt-Magnon—decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent a house, according to IP advocates, would have a right to prevent others from building houses on their own land, with their own logs, or to charge them a fee if they do build houses.

Thomas Jefferson: If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

I haven't done much linking in this blog post, even though I've mentioned a lot and read a lot that could defend my position. I'm not trying to prove my ideas are correct. I'm not even sure they are. But I think they are provocative enough to start a discussion.

Philosopher John Locke said there were three natural rights that all people had.
  1. Life: everyone is entitled to live once they are created.
  2. Liberty: everyone is entitled to do anything they want to so long as it doesn't conflict with the first right.
  3. Estate: everyone is entitled to own all they create or gain through gift or trade so long as it doesn't conflict with the first two rights.
Yet once Locke wrote that, he no longer owned it. In fact, Jefferson's taper was lit from Locke's, and I don't think Locke got any royalties for helping found the principles that the USA were based upon. 

I don't know if Locke meant Ideas when he pondered on the concept of Estate. If I paint a picture, there is one of them. It is my right to do with it as I please. But neither Locke, nor Jefferson, had ever conceived of the Internet, where unlimited copies of a jpg can be made, for free, forever. 

Art, and media, are forms of communication. As a species, communication has helped up thrive. It doesn't seem to me that laws that prohibit communication are good laws. I can draw Mickey Mouse for my personal use. I can buy Mickey Mouse cartoons on DVD, used. I can name my dog, or my child, Mickey Mouse. I can write a story that features Mickey Mouse, and put it on the Internet. Gte Mickey Mouse tattoos over my whole body. But I can't write a Mickey Mouse story and sell it without permission.

I've read, and enjoyed, Malcolm Gladwell's book Outliers. I've used the term "outlier" on my blog many times over the years, but haven't paid Gladwell any more royalties than Jefferson paid Locke. 

Why can I write about someone becoming an expert at something by spending 10,000 hours doing it, and I don't have to pay Gladwell (who cited a 1993 paper written by Anders Ericsson, and I don't believe Gladwell paid him either), but I can't have a single picture of Mickey Mouse in my novel--even with citation to Walt Disney and Ub Iwerks--without permission and licensing fees? Why do novels and non-fiction have different rules? Can't we learn as much from Catcher in the Rye as we can from Principia Mathematica? And didn't Whitehead and Russell get most of those equations from others?

Salinger sued Fredrik Colting for writing a sequel to Catcher sixty years later. Salinger won. Could Cantor's estate have sued Russell and Whitehead for including ordinals in the PM without paying royalties? Any reasonably smart empiricist could successfully argue that math is an invention rather than a discovery, and thereby should be protected under copyright law.

But that would be silly, wouldn't it?

We are in a world where a monkey can take a selfie, and it is debated in court who owns the copyright.

Isn't that sort of extreme?

At what point does an idea, a group of words, an image, a concept, character, a story, cease to belong to one and can be considered part of the collective human experience? The creator's life plus 70 years? The moment it pops into existence?

Again, I'm not sure of the answer. But I don't think current copyright law effectively answers the question.

Search for "Star Wars Fan Film" on YouTube. Count how many you find.

You'll be counting for a while.

I'd guess that many of those films--and there are thousands--took time, talent, and money to make. I'd argue they strengthen the Star Wars brand. I also know, from experience, that some of those filmmakers will go on to create their own IPs. Many not as successful as Star Wars, but Star Wars may have given them the inspiration to eke out their own living someday.

Just like I'm not able to eke out a living writing about serial killers, though I'll never be allowed to write that sequel to Silence of the Lambs where Clarice Starling and Will Graham hunt down Hannibal Lector. With the help of Lt. Jack Daniels.

And while that may not be a loss for the literary world and a tragedy for Art with a capital A, I can't help but wonder if in some parallel universe I'm doing just that, and having a damn good time.

126 comments:

Gary Myers said...

Australian law doesn't have the same 'derivative work' provisions as US copyright law. For a "literary work" the copyright holder has the rights for direct translation, but not sequels and similar staples of fanfic.
Trademarks are a bigger obstacle, but if you wanted to start a business turning fan fiction into published novels without needing an army of lawyers, Australia would be a good place to house it. [Oh, wait, didn't someone already do that for 50SoG...]

If you wanted to read some of the legal bits, try
http://www.academia.edu/4083752/Property_in_literary_characters_protection_under_Australian_copyright_law

Broken Yogi said...

I love this, Joe.

One simple way to rectify most of this is to do what somehow got done in music. There's a good story that I forget now, but they slipped into the law when no one was looking: the right to cover any song you want, any way you want, as long as you pay a set fee. Which means anyone can record and sell a Beatles song, or a Michael Jackson song, as long as they pay a fee to the copyright holder. And it's a pretty reasonable fee that still allows people to make money.

The important thing is no restrictions. There are certainly issues about sampling and so on, but that's for artists who don't want to pay that fee, and get credited for creating an original work. But anyone can record their version of an original work.

So if a similar law were created for written works of art, or cinematic/video art, then anyone could make use of the characters and story, without any limitations, as long as they paid that basic fee. So you could write your own Star Wars novels, or Hulk stories and comics, and just pay up that fee.

Which is as it should be. The creator of those things should get paid. Just not a prohibitive amount. But they shouldn't get to tell you what you can write, any more than Rogers and Hammerstein can tell Coltrane they don't want a jazz version of "My Favorite Things". It's open source, so to speak.

There's a sound cultural reason for this, which is evident in music. It's that when something becomes so popular that it's a part of the culture, it needs to be redone many time, in many ways, by that culture, to work through whatever it is about it that makes it popular. That's what the Greeks did with their myths. They wrote drama after drama about many of the same characters and stories, all with their own variations. And that create a really rich and deep culture.

And here we have our own mythic stories, our Star Wars and comic books and so on, that have entered the popular imagination. Our culture would benefit from adding more and more creativity to that. And that, remember, is the purpose of the copyright laws in the first place. Not to "protect intellectual property", but to foster great cultural growth. The IP rationale simply doesn't make sense, and it has utterly overshadowed the culture. It's the cultural rationale for copyright that should carry the day, and this would be a good start on making that right.

Anonymous said...

You want a way around copyright? Write your own version of these characters. It's easy. It's what fiction is. We read, we get our own ideas from what we read, mixed in with our own experiences and imaginations. Here, I'll help you out...

Superman. New name: Javier, because it rhymes with Saviour and that's the only thing he knows about why he was sent to Earth to fight his nemesis...

Sonny (Spawn) Satan's son. Doer of evil. Bringer of destruction that's in his heart, until he finds his own soul once separated from his anger...

Murk (Hulk) An entity created as pure muscle and rage. When he fights his foes, he fights his own existence at the same time.

Turns out, after all the fighting, they're each created from one being's three parts that make a whole. Yet they're allowed to go on as individuals who eventually end up balancing the fight for the greater good. Whatever that is, which is the best part of using your imagination.

You're welcome.

This comment brought to you by the fact that hello? Fifty Shades of Grey skipped copyright by altering fan fiction. Win!

Alan Spade said...

I agree with Anonymous 11:20PM. The copyright laws have forced people to use their imagination and creativity in order to bypass copyright laws.

I think that the best works of art are created once the compost composed of many works of art, and of life, has macerated long enough to spawn new creations.

I acknowledge that a great part of the urge to creating has come for me as a drive to pay tribute to past works of art that I greatly enjoyed.

But if it had been too easy, I think that it wouldn't have been so much fun, and my writing would have turned out as lazy (or more lazy than it already is).

The arguments in this blog are provocative and do have many merits, though.

But here's a new provocative thought: is individual greed any better than corporate greed?

I mean, if there are only a few words and the title to be changed in order to claim the copyright of any work, many people will be attracted by the prospect of such easy money. It would certainly help in spreading culture, but the price might be too high to pay.

In Europe, there are discussions about reducing the length of author rights.

I have mixed feelings about all this. I, too, think that the copyright laws are too restrictive. I think, for instance, that extensions of existing novels or stories should be more broadly allowed, provided the original author receives a percentage.

However, the original author, if still living, should have to agree with that: you don't want to dissuade authors from writing new pieces of art because they would think their work isn't protected at all.

And what about the dead guy's estate? I don't think the estate should have so much power over the creator's work. It definitely hinders culture.

adan said...

Something I didn't know (among many things :-) ) via Broken Yogi above :

"One simple way to rectify most of this is to do what somehow got done in music. There's a good story that I forget now, but they slipped into the law when no one was looking: the right to cover any song you want, any way you want, as long as you pay a set fee. Which means anyone can record and sell a Beatles song, or a Michael Jackson song, as long as they pay a fee to the copyright holder. And it's a pretty reasonable fee that still allows people to make money." -

Thanks!

Marcel said...

I guess that's why the copyright owners don't like pubic domain: it sounds so... dirty :)

Joe Konrath said...

Write your own version of these characters.

I know you're only half kidding, but I've never been interested in writing my own versions. While my work has certainly been influenced by books I've enjoyed, I've never patterned one of my characters on someone else's. I don't find that rewarding.

But playing in another writer's sandbox is a different kind of animal. Like playing in a cover band instead of doing your own material.

I'm not interested in writing fan fic and changing names. I want the fan fic to have the original names.

Joe Konrath said...

you don't want to dissuade authors from writing new pieces of art because they would think their work isn't protected at all

I've encountered many versions of that argument, Alan. From Turow himself, who thinks authors would stop writing if X happens. Losing copyright, or legacy publishing, or Amazon taking over, or whatever.

The problem is, most fiction authors write their first book on spec, with no guaranteed sale. And there are 30,000 Star Wars fans on YouTube who man fan files without any real hope of monetary compensation.

Money is a motivator, but people create art even in its absence.

Joe Konrath said...

The creator of those things should get paid. Just not a prohibitive amount. But they shouldn't get to tell you what you can write, any more than Rogers and Hammerstein can tell Coltrane they don't want a jazz version of "My Favorite Things". It's open source, so to speak.

This is news to me. Do you have a link to this?

Sounds similar to licensing a play. Depending on how big the performance, you pay a certain fee to perform the book and music. Amateur productions pay much less than Broadway.

Adam Netherlund said...

I think I would agree with pretty much all of this.

If I'm alive, give me some kind of percentage.

If I'm dead, give my heirs some kind of percentage. Maybe even a smaller amount.

After that? Eh... I highly doubt anyone would care. I'm not that special. ;)

Daniel Knight said...

I don't often disagree with you Joe, but you definitely got one thing wrong here.

Superman would kick Hulk's ass. :)

Sean said...

One issue that comes to mind with changes to how rights revert/ giving lesser rights than the author enjoys to an estate is estate planning.

For the most part, I totally agree that interests are fairer when awarded to a creator than an heir. But what if that heir is your spouse/ dependent (of any ilk - child, sibling, cousin, parent) where those individuals are reliant on your income as an author? If they enjoy fewer rights it stands to reason that income may drop. That drop could be fairly substantial as it will probably be compounded by a cessation of any new publications (barring a pipeline of WIPs for a small few).

In short - if I die unexpectedly, giving anything less than my full IP to my family could be seriously detrimental to their well being. Of course we can mitigate that with insurance but that could be expensive and be problematic if such changes were applied retrospectively.

It also disincentives companies from buying rights (whether that is in a traditional publishing set up or merely for derivative rights) as those rights could die with the author which creates uncertainty.

A system which applies irrespective of whether the author is alive or not would be far fairer.

Steven M. Moore said...

Hi Joe,
I'm coming out of the lurking shadows to throw in two thoughts: (1) Although it's been a lot of fun, I've worked hard to create my parallel universes and characters. I'd feel a bit weird having others touch my creations. I can see co-authoring, for example (although the one time I made the suggestion, my plot idea was co-opted and the fellow went solo). Larry Niven did this long ago with the Man-Kzin Wars, but the roller coaster ride readers have experienced in the short stories and novellas in this series isn't a good ad for Amazon Worlds.
(2) With Whiskey Sour, you did touch on a slightly orthogonal theme, product placement. Is it a good thing? Does it add to our storytelling? Is it fraught with legal dangers? I have my opinions, but you seemed to do well with Jack Daniels.
r/Steve

Joe Konrath said...

Superman would kick Hulk's ass

Superman would fly around, using heat vision and cold breath, getting Hulk angrier and angrier. When Hulk finally caught him, he'd rip his head off.

Anonymous said...

Joe,

There isn't much we can do about other people's IP arrangements, but we're certainly able to dictate some of the aspects of how our own are used. See:

http://creativecommons.org

Cheers,

Curtis Manges

Joe Konrath said...

But what if that heir is your spouse/ dependent (of any ilk - child, sibling, cousin, parent) where those individuals are reliant on your income as an author?

I inherited nothing.

Warren Buffet has an interesting take on his children inheriting his billions. He isn't allowing it. From what I understand, they have jobs.

I'm happy to take care of my family while I'm alive. And I have ample life insurance, which should take care of them after I die. But does my estate really need to support my great grandchildren? When money is handed to a person, unearned, I don't see how it can be valued or appreciated. The opposite, in fact. That which comes freely has little value.

It also disincentives companies from buying rights (whether that is in a traditional publishing set up or merely for derivative rights) as those rights could die with the author which creates uncertainty.

I have mi earned biases, and anything that disincentives a parasite is a good thing. :)

But seriously, publishing is risk. The publisher has clauses that say, if acts of nature occur, the contract is null. That protects them. No such clauses protect the author. Why not? Because the author has no power.

If not death then, how about five years after death the contract dissolves? That's enough time for the publisher to recoup their investment.

Joe Konrath said...

I'd feel a bit weird having others touch my creations.

That's understandable. It's weird to have authors writing in my Kindle World.

But I feel that, in this conversation about culture, rights, creativity, and freedom, less restriction is better for everyone.

A thought cannot be protected as intellectual property. If it is shared, it goes directly into the public domain.

Why should the expression of thoughts in the form of art be protected for the artist's life plus 70 years? Is the difference between me speaking a sentence and writing it down so different?

Not saying I'm right. But I don't think the current system works.

With Whiskey Sour, you did touch on a slightly orthogonal theme, product placement. Is it a good thing? Does it add to our storytelling? Is it fraught with legal dangers?

If you're a paleolithic man who lives in the woods by his own means, products have nothing to do with life.

For the rest of us, we're consumers. We buy certain brands. Sometimes we love certain brands. Storytelling, since its beginning, has echoed real life, and we live in a world of products that we purchase on a daily basis. Product placement infiltrates every aspect of our lives. In some cases products define us. (Like a guy who only wears Nikes, Ray Bans, a Cub's cap, and will never drink Pepsi, only Coke.)

We don't have to like it. But I think acknowledging it helps us as storytellers.

As for legal dangers, well, that's partially what this blog is about. I believe our litigious society is particularly overzealous when it comes to IP.

I'm okay with piracy. I'm okay with cosplay. I'm on board with Kindle Worlds. I'd love to be able to write in IPs that aren't mine, even if I have to pay a licensing fee.

I put my money where my mouth is. As someone who has been fairly successful in self-publishing, current copyright law has served me well. But I still don't like it, and I think it needs to be reformed.

Broken Yogi said...

Joe,

Here's the wiki entry on the topic:

"Since the Copyright Act of 1909, United States musicians have had the right to record a version of someone else's previously recorded and released tune, whether its music alone or music with lyrics.[7] A license can be negotiated between representatives of the interpreting artist and the copyright holder, or recording published tunes can fall under a mechanical license whereby the recording artist pays a standard royalty to the original author/copyright holder through an organization such as the Harry Fox Agency, and is safe under copyright law even if they do not have any permission from the original author. A similar service was provided by Limelight by RightsFlow, until January, 2015 when they announced they will be closing their service. The U.S. Congress introduced the mechanical license to head off an attempt by the Aeolian Company to monopolize the piano roll market.[8]
Although a composer cannot deny anyone a mechanical license for a new recorded version, the composer has the right to decide who will release the first recording of a song. Bob Dylan took advantage of this right when he refused his own record company the right to release a live recording of "Mr. Tambourine Man."[7]

So yeah, it's the law of the land that anyone can record and sell a cover of any song out there, and do it any way they like, even without permission or a license, as long as they pay that set royalty fee.

http://en.wikipedia.org/wiki/Cover_version#U.S._copyright_law

Broken Yogi said...

The technical term for it seems to be "compulsory mechanical licensing". In other words, the copyright holder is compelled to allow the licensing of their work to another artist's recording interpretation of the original, as long as they notify the copyright holder and pay a licensing royalty.

http://en.wikipedia.org/wiki/Compulsory_license

"There are several different compulsory license provisions in United States copyright law, including for non-dramatic musical compositions,[7] public broadcasting,[8] retransmission by cable systems,[9] subscription digital audio transmission,[10] and non-subscription digital audio transmission such as Internet radio.[11] The compulsory license for non-dramatic musical compositions under Section 115 of the Copyright Act of 1976[12] allows a person to distribute a new sound recording of a musical work, if that has been previously distributed to the public, by or under the authority of the copyright owner.[13] There is no requirement that the new recording be identical to the previous work, as the compulsory license includes the privilege of rearranging the work to conform it to the recording artist's interpretation. This does not allow the artist to change the basic melody or fundamental character of the work.[14] In order to take advantage of this compulsory license the recording artist must provide notice and pay a royalty. The notice must be sent to the copyright owner, or if unable to determine the copyright owner, to the Copyright Office, within thirty days of making the recording, but before distributing physical copies. Failure to provide this notice would constitute copyright infringement.[15] In addition to the notice to the copyright owner, the recording artist must pay a royalty to the copyright owner. This royalty is set by three copyright royalty judges.[16] Though the compulsory license allows one to make and distribute physical copies of a song for a set royalty, the owner of the copyright in the underlying musical composition can still control public performance of the work or transmission over the radio.[17] If the underlying musical work is well known, the work can be licensed for public performance through a performance rights organization such as ASCAP, BMI, or SESAC."

This could be expanded to include written works of art as well, that use characters and setting from original works. The long traditional of using these provisions to allow the creation of cover songs is a strong precedent for doing the same for literary works, and has shown that it enriches the culture, and even enriches the original artist.

After all, some cover songs have become more popular than the original artist's recordings, and made them a lot more money from it. The same could be true for literary works.

For example, as popular as the Twilight books have been, 50 Shades, which was originally Twilight fanfic, has made even more money, and if James had to pay a royalty for that right, it could have brought the original author even more money than the original series did. But because of the copyright laws, James changed the names and settings, and so the original author missed out on that money. So much for the idea that this sort of change to copyright law would hurt authors. The present system is what hurts authors.

Alan Spade said...

"James changed the names and settings, and so the original author missed out on that money."

James not only changed the names and settings, but also the concept.

As we know, concept is the key.

What works for music may not work so well for books. If you are J.A. Konrath, writing a Jack Daniel Series (book 3, for example) and another author writes the book 4 and scores a major hit by killing Jack Daniels and leading the series in a way you would not have imagined pursuing at all, effectively depriving you of your drive as an author, maybe that J.A. would make tons of money as the original author, but his impetus would have been cut-down once and for all for this series.

As an author, I want to be able to license my work if I decide to, but I also don't want to compete for readers and legitimacy over my own work if I have not decided to.

This kind of stuff were other people would be able to create and profit from original works against the will of the artist would only foster competition, not cooperation.

Call me an idealist, but I believe that as a species, we have more benefit to earn with cooperation than with competition.

Joe Konrath said...

As we know, concept is the key.

You mean the concept Stephanie Meyer took from Anne Rice, every romance ever written, and Bram Stoker?

FSoG was derivative of Twilight, which was derivative of 1000 other books.

This isn't a new issue. Stoker didn't invent vampires, but he's responsible for the most famous one. And that producer of a bonafide classic of early expressionist cinema, Nosferatu, was sued by the Stoker estate, lost, and all copies ordered to be destroyed.

The world was lucky they weren't. Because it is a masterpiece (and a lot better than the book, IMHO).

Right now we're having a world a zombie renaissance thanks to the efforts of George Romero in 1968. A copyright glitch allows everyone to write about the living dead, which has spawned how much entertainment for the masses, and cash for artists?

Neither vampires nor zombies "fostered competition" as you put it, anymore than the adoption of privates eyes as protagonists by Hammett and Chandler fostered competition.

Instead, they created genres that the original creators all benefited from.

As an idealist, shouldn't you recognize that as a powerful form of cooperation?

Alan Spade said...

Yes I do. But zombies are an idea. It would be very dangerous indeed to attach copyrights to ideas. Imagine for example the word "hyperspace" copyrighted. Tons of writers of Science-Fiction would have to use synonyms if it had been copyrighted. It would be feasable, but awkward. The same for zombies: you can bypass it with undead, for instance, or wit a new word yet to be invented.

The society usually knows when to abandon copyright for the sake of practicality.

What I was talking about was something very personal and intimate, something that is more than a concept: a story in the making told in several books that cannot be finished because it has been hijacked by other, more successful authors than the first creator.

It can happen. Fortunately, concepts, ideas can't be copyrighted. Story are another... story. ;)

Alan Spade said...

Stories, I meant.

Joe Konrath said...

Fortunately, concepts, ideas can't be copyrighted.

Back when I was a kid reading Writer's Digest, brands used to take out ads such as:

"Xerox TM is a trademark. It's isn't synonymous with making paper copies"

and

"Kleenex TM is a brand, and not every tissue is a Kleenex TM"

What these companies failed to understand is that when a brand becomes so dominant in the public mind that the public calls every tissue a kleenex and every copy a xerox, that's a good place to be.

If your brand was so strong you have 30,000 fanboys posting videos on YouTube, I think your biggest concern wuld be finding the best tax shelter you can, not worrying if someone kills off one of your characters in an unauthorized sequel.

My 2 cents.

Alan Spade said...

You have to remember the revulsion J.K. Rowling had when they were fans doing fan fictions of her Harry Potter series and she hadn't finished the series.

Once she had finished the series, she relaxed a bit and even encouraged fan fictions on her Pottermore website. I think she was too itchy, too protective about her work as long as the fans didn't intend to make money but just wanted to express their love.

But in my opinion, her reflex to protect her creation during the course of her finishing it was a most legitimate one.

I bet that there are more than one fan writing fan fictions of George R.R. Martin's work, and they are certainly many readers wanting to pay to read the ending of his Song of Fire and Ice books, even by another author than George. Maybe his fate will be the same as Robert Jordan's, who had his work finished by Brandon Sanderson.

I'm not sure if Jordan would have allowed it, though: his spouse allowed it. I think she was right, and I think that the law is good in that it allows the heirs to handle the estate of the dead writer.

But I agree that the law is too generous with the heirs. A time limit of 40 years after the author's death should be enough before the work falls into public domain.

Randall J. Morris said...

Actually when a trademark becomes so dominant that it becomes the name for the generic, the company loses the trademark. That's why companies fight against it. It actually happened to Kleenex, Xerox, Aspirin, and now Google is in danger of having it happen to them. We just learned about that a couple weeks back in property law. Wikipedia has an article on it as well: http://en.wikipedia.org/wiki/Generic_trademark

Joe Konrath said...

But in my opinion, her reflex to protect her creation during the course of her finishing it was a most legitimate one.

My revulsion towards intolerance is a legitimate one. But I also value free speech, and recognize the need to protect the idiotic ideologies of the morons I disagree with.

I'm pretty sure copyright law wasn't instituted to spare artists from negative feelings. The Wiki explanation is that copyright is a justifiable way to allow creators of intellectual wealth to profit from it.

But that explanation lacks in so many ways. I've pointed out many on this blog over the years. Search for "copyright" and "piracy".

Broken Yogi said...

Alan, I don't think you are grasping the concept that copyright doesn't exist to protect author's property and privileges, it exists to enhance the culture. That's what is says in the Constitution itself.

So it isn't enough that you or J.K Rowling might not like the fact that other people could write Harry Potter books and even be successful at it. You have to make the case that this would be bad for the culture. Can you make that case? Because if you can't, then you just don't have a good argument.

The fact is, if someone can actually write a better Harry Potter book than J.K Rowling, or a better version of your own series than you can, that's pretty laudable and you guys shouldn't be protected against that. Perhaps the original author should be able to take and use any ideas other authors create around his original world and characters, without paying royalties. Or maybe give a 5,7, or 10 year head start for the original author, before mechanical licenses are compelled. But all in all, it's pretty obviously much better for the culture to let people proliferate and expand on original literature. Unless you are so insecure as to worry that you can't actually write a better book than the fanfics. Which would be pretty sad indeed.

Let's recall that in the music world, covers of songs don't stop songwriters from writing more songs. Even if someone's cover turns out to be more popular than the original recording (which happens all the time).

Listen to Johnny Cash's version of "Hurt", compared to Trent Reznor, who actually wrote and recorded it first. Is our culture really poorer for Cash's version being more popular (and better, I think)? Is Reznor's career hurt by that? I don't think so. It's good money and great advertizing for a song-writer.

https://www.youtube.com/watch?v=3aF9AJm0RFc

Broken Yogi said...

"The Congress shall have Power ... 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."

United States Constitution, Article I, Section 8

Terrence OBrien said...

Information wants to be free.

Information doesn't want anything.

People want money for themselves.

Terrence OBrien said...

What these companies failed to understand is that when a brand becomes so dominant in the public mind that the public calls every tissue a kleenex and every copy a xerox, that's a good place to be.

They didn't fail to understand anything. They understood the law and the fact that they had to demonstrate efforts to safeguard their trademarks if they wanted to keep them. They were delighted people xeroxed copies.

Anonymous said...

@Alan Spade,

Maybe his fate will be the same as Robert Jordan's, who had his work finished by Brandon Sanderson.

I'm not sure if Jordan would have allowed it, though: his spouse allowed it. I think she was right, and I think that the law is good in that it allows the heirs to handle the estate of the dead writer.


Jordan took very specific steps for someone else to be able to finish the series after he passed: http://en.wikipedia.org/wiki/The_Wheel_of_Time#Author.27s_death_and_final_books

His widow was the one to choose Sanderson as a replacement author, but she was following her husband's wishes.

Eden Sharp said...

Actually the creation of copyright was not about cultural enrichment it was about prohibiting the distribution of revolutionary ideas.

Alan Spade said...

@Anonymous 1:39. I stand corrected. But he was reluctant to do so, according to Brandon Sanderson.

"You have to make the case that this would be bad for the culture."

Broken Yogi: that is a case very hard to make if you estimate that all that is written is just a matter of opinion and as such, subjective.

Let's just assume that James Patterson is a better writer than Lee Child because he makes more money than Lee Child. Money being not subjective, it's an argument some people may adopt.

Let's suppose an author breaks the top 100 on Amazon.com with a very high new concept, book one of a new series. So you'll find it perfectly normal that James Patterson, knowing that he can finish book two of the series before the original writer with the help of two of his co-writers, decides to beat the original writer to it?

With a new high concept and his name, Patterson would be able, without many efforts, to make this new series a n°1. He would also be able to do the same with every new series that break through.

But these would be better books than the original ones, because they would make more money than the new authors could have made on their own, according to the theory of money = better. ;)

What I mean, is, every author is not equally skilled as far as business is concerned. Every author has not made his name a brand.

Concepts, ideas belong to everyone. But writing a novel, or a series of novels, is akin to building a house. If you build the first layer of a house in a Victorian style, you don't want a famous character to build a second layer in a modern style, even if the second layer is an international hotel that brings you more money than you would have made on your own.

If you ask me if it would have been detrimental for our culture to have books two and three of the Lord of the Rings written by others, more famous authors of that time, my response is a resounding yes.

That kind of drastic change in the copyright would be opposite to the American dream: only the most famous would prevail, and the authors with the better ideas and characters would be relegated to the ghost-writer status.

Broken Yogi said...

Alan,

First, given that James Patterson sells humungous amounts of books, if he paid authors a royalty for latching onto their ideas and writing sequels of his own, they would end up making much more money that way. Not only that, but by attaching Patterson's name to the series, the sequels written by the original author would likely also sell hugely.

Win-win. I'm really not seeing how this hurts the original author, other than perhaps his pride. But certainly not his pocketbook or his reputation for building great ideas into novels that the "best" writers of the day would rather copy from than do original work of their own.

So, yeah, what's the problem there?

I don't think you understand that a good idea can be written many, many ways. There's not just one way to do it. And a good series, and good characters, can be written many ways also. And the more other writers add to that, the more money the originator makes, but on royalties from their books, and more royalties for his own, because now it is becoming a real cultural phenomena.

There's really no problem with different writers having different takes on the same story or characters. It just adds to the power and value of the whole ediface. I'm sure readers can differentiate between different writer's takes on the same general material. They will not only read the first author's book, but the other authors books also. And then go back to the first author. If the series is that compelling, it's a gold mine for everyone. And the more promiscuous the writing, the more it adds value.

Again, what's the problem? The biggest problem I can see is that Patterson might not want to give his fame away so easily and attach it to another writer's work, having to pay a royalty instead of collecting one. Or that other writers won't care to add onto your series.

Nothing is going to stop writers from writing and profiting from their own ideas. Readers are not going to only read Patterson's version of a series. But if you are that concerned about it, how about a short grace period for the original writer, say 5-10 years. If they want it, that is. Most will not. They are more than happy I think to license their ideas to Patterson. But if Patterson really wanted to do this, he already would be doing so. Tons of writers would be happy to license their ideas to him and sit back and collect those royalties while Patterson and his team do all the work. Wouldn't you?

Broken Yogi said...

Also, what makes you think that anyone would have wanted to write sequels to LOR back when Tolkien was publishing them?

And if they had found it so intriguing that others had done so, do you really think Tolkien would have abandoned the series, and not written books two and three? Or that someone else's LOR books would have proven more popular?

I mean seriously?

And do you think Tolkien would have resented all these writers who so loved his work that they would write popular books in imitation of his world? And paid him good money for the privilege of doing so?

So yes, that would definitely enrich the culture, and not take away anything from it. Tolkien would still have written his series, and others would have added to it, and the books would have become even more popular sooner rather than later.

HStanbrough said...

Hmmm... the only beef I have with your take is that an IP is more like a long-term investment than the simple, one-use product of the forty-hour week you spent creating it. I like that my heirs get to own my IPs for 70 years after I'm gone. Chances are it's all I'll be able to leave them. No rich guys here.

adan said...

Interesting, I should say even necessary discussion.

My take is, and I've read some really good ideas going various directions here, is :

Unless or until the means of production and wealth of the nation are distributed to everyone equally: health, money, education, time -

Asking, or worse, demanding, that the creative portion of society relinquish all gain from advancing work in art, writing, the sciences, dance, etc -

- while corporations and governments continue to gain from those creative efforts unabated -

- is creating a social slave caste of those who contribute most in terms of new ideas, new ways of looking at things, new ways of living better.

The constitution says copyright for artists and inventors is to help promote the social welfare, not only because that is creativity's best use, but because protecting the right to benefit from inventions and creations for the creating person is also the best incentive for doing so.

Adjustments to that protection are to be expected, discussed, and argued as people's views of what life should be changes.

What remains constant is: society needs those creative efforts, and the creative efforts from people should be rewarded.

Alan Spade said...

"I don't think you understand that a good idea can be written many, many ways."

I agree and understand. It has been said that all the stories have already been written since Antiquity, and that the other only derive from these concepts.

"I'm really not seeing how this hurts the original author, other than perhaps his pride." As I've said, it can block his impetus and his creativity. He can feel he's not anymore in command, especially if he's a young author and lacks self-confidence.

But this is not just about feelings: this is about hours and hours of work, and this is about his career as an author.

"There's really no problem with different writers having different takes on the same story or characters. It just adds to the power and value of the whole ediface." I agree, provided the main edifice is built. Otherwise, it could very much ruin it. It could also makes an overall plot very messy in the minds of readers.

"They are more than happy I think to license their ideas to Patterson. But if Patterson really wanted to do this, he already would be doing so." He is already doing that, sort of. Authors are already licensing their craft to Patterson.

These authors are very happy to do so. Patterson is happy. I don't have a problem with that.

What cause the problem is the ability for authors to put their names behind other creations and characters without the agreement of the original author. There's a name to this. Predation. Or parasitism.

I have absolutely no problem with Kindle Worlds as Joe presented it on his previous post, as long as it's on the initiative of a given author.

But in my humble opinion, draining the copyright of its essence, in a capitalist world, would be highly detrimental to the whole community of authors. Because, if you think about it, it's the only thing of value authors do possess. It's an intangible value, even if most of the time, it's only translating in a few dollars for the authors.

If you introduce too much loopholes, I can guarantee that the authors who will benefit won't be the poor and unknown.

Alan Spade said...

"I mean seriously?"

Tolkien pretty much created its genre (along with Robert Howard), so I don't think it could have happened.

"And do you think Tolkien would have resented all these writers who so loved his work that they would write popular books in imitation of his world? And paid him good money for the privilege of doing so?"

He wouldn't have resented it, if he had signed for it. If not, maybe you are right and he would have be very glad, or maybe he would have felt raped or betrayed, depending on his personality.

"Tolkien would still have written his series, and others would have added to it, and the books would have become even more popular sooner rather than later."

You cannot know. You and I can only guess what was Tolkien's personality.

We can only make up our minds by asking current authors if, during the process of a creation (which a series is), their work would be continued by others without their agreement in exchange of a royalty, they would agree with that.

Alan Spade said...

Oops. His genre.

Joe Konrath said...

Actually when a trademark becomes so dominant that it becomes the name for the generic, the company loses the trademark.

But do they lose market share as a result? Isn't Bayer aspirin, who owned the Aspirin trademark, still the #1 seller of aspirin?

I can see problems. Generics using similar names and labels for inferior products to outsell the companies that invented and popularized them. Brand confusion if copycats were legal, amplified by quality control differences. If I want to buy a box of Band-Aids because I trust their product, and pick up a box that says "band-aids" but turns out to be a cheap knockoff that imitated the brand, I'd be angry as a consumer.

That scenario sounds problematic. But the current scenario seems to go against human nature. If society is determined to call all tissues "Kleenex" perhaps the Kleenex Company might be spending too much money to protect its trademark, and would earn more if it became genericized.

The amount of money spent to combat media piracy is staggering. I've yet to see a conclusive study that proves piracy harms sales, but I do know that anti-piracy companies are making fat bank at the expensive of the media companies (who are making fat bank at the expense of the original artists).

Something is wrong here.

Spending considerable time, energy, and money, to protect intellectual property, may be an artificial construct that runs counter to how society consumes goods and media.

With Kindle Worlds, I'm basically giving up control of my brand to see what the world does with it.

I'd be curious to see what would happen if everyone had that same approach.

Joe Konrath said...

They understood the law and the fact that they had to demonstrate efforts to safeguard their trademarks if they wanted to keep them.

True. But there have been, and still are, many bad laws. Bad in that they're not beneficial to the majority.

Information doesn't want anything.

I'm in the camp of Richard Stallman, who said, "I believe that all generally useful information should be free. By 'free' I am not referring to price, but rather to the freedom to copy the information and to adapt it to one's own uses... When information is generally useful, redistributing it makes humanity wealthier no matter who is distributing and no matter who is receiving."

Giving information a will of its own is hyberbole, but it correctly describes the widespread practice we're witnessing on the Internet. It describes human behavior and how we seek information.

Once upon a time, only a privileged few had access to books and the information they contained. Books were expensive, rare, coveted, and becoming educated was only within the means of royalty and the wealthy.

Now, on the World Wide Web, the masses can access damn near mankind's entire output, for free. And they can add to it, for free. No barriers to entry on either side.

As a species, we evolved communication, and as a result we evolved TO communicate. This essential human trait allows us to be successful, and IP protection runs counter to this idea.

Joe Konrath said...

society needs those creative efforts, and the creative efforts from people should be rewarded.

I don't think anyone disagrees. But can the creator be rewarded by other people building upon his creation?

If I can pay a license fee and release a cover version of any song, why not pay a license fee so I can write the next Spenser novel? How does that harm anyone?

Joe Konrath said...

But in my humble opinion, draining the copyright of its essence, in a capitalist world, would be highly detrimental to the whole community of authors. Because, if you think about it, it's the only thing of value authors do possess.

I'll disagree on three levels.

First, allowing anyone to license my worlds brings me income. And if I could license the work of others, that would mean more income for me. I haven't said I want to abolish copyright. I want to make it less restrictive.

Second, authors are already getting fucked out of their rights by publishers and their unconscionable contracts. Hachette authors during the dispute with Amazon had ZERO control, because they truly didn't possess their own copyrights; their corporate master, Hachette, did. And Hachette squandered that value to protect its own bottom line.

Third, the most valuable thing I possess is my mind. That allows me to create endless IPs. I should be so lucky that one becomes so well known that others want to use my characters. But if, someday, that IP runs its course, I'll create another.

There was a study done that showed when Italy adopted strong copyright laws for composers, fewer compositions were produced. Don't diminish the creative power of staying ahead of your competition/copycats. I believe there is a difference between allowing a creator to make money off an idea, and allowing a creator's heirs to maintain full control over it and milk it for 70 years after the creator dies.

Joe Konrath said...

I just got an email from Best Buy five seconds ago, with the header "The Latest Dyson Technology".

I find Dyson fascinating because he didn't rest on his laurels. He came up with a cyclone technology that could be used for bagless vacuums. Great idea, and he made some money off of it, but he didn't rest on the laurels. No matter how many patents he filed, it was inevitable that other bagless vacuums would be created by competitors.

Dyson began producing heating and cooling fans, and hand dryers for public washrooms. Was this simply to find more uses for his tech? Was it to stay ahead of competition? Maybe a bit of both?

My point is that Dyson doesn't seem to be following the concept of: "I invented it, it's mine, no one else can use it, I alone deserve all the money this idea generates."

Instead, Dyson continues to innovate, even as an entire industry of bagless vacuum cleaners sprung up around his idea. And Dyson still seems to be doing well, even though he's widely copied.

I find this interesting on many levels.

Alan Spade said...

"First, allowing anyone to license my worlds brings me income. And if I could license the work of others, that would mean more income for me.

I haven't said I want to abolish copyright. I want to make it less restrictive."

With the consent of each original author, Joe.

Generally speaking, I agree with you. I don't think we don't have to touch copyright. It can and probably should be amended.

But we have to proceed with caution.

Yes Hachette and other big companies screwed authors: but a fantastic power the indie authors have is the power to say no.

They are midlist indie authors who say "no" to big publishing, because they know they already earn enough on their own, and they don't want to depend on a giant company, even if it would mean more money for some time.

That is an essential freedom I want to se preserved.

Joe Konrath said...

That is an essential freedom I want to see preserved.

Is it truly an essential freedom?

I agree with life, liberty, estate, and the pursuit of happiness. But I'm not ready to group IP under "estate". There were too many problems.

On Twitter, I see people quoting things I've said. While those quotes are attributable to me, I don't make a royalty from attributions. Those are my thoughts expressed as words. But once I uttered them, they ceased to be mine. They became free of me, as in the phrase "information wants to be free".

If I write something that can be repeated/copied/built upon by someone else, I think attribution is fair. And if something I wrote encourages a demand that can be compensated for monetarily, I think I should get a few bucks.

But I believe this ingrained feeling that the art we create cannot be used by anyone without a license is more a product of copyright law than common sense. Human behavior simply doesn't bear it out. Communication is sharing. We're born with the need to communicate. Applying restrictions to communication always fails.

Again, I'm not sure of the answer. Maybe because I'm not asking the right questions. But my feeling is that the reproduction and re-purposing of IP is beneficial to society as a whole, and that the creator can still benefit greatly from it.

Alan Spade said...

"But I believe this ingrained feeling that the art we create cannot be used by anyone without a license is more a product of copyright law than common sense. Human behavior simply doesn't bear it out. Communication is sharing. We're born with the need to communicate. Applying restrictions to communication always fails."

There's communication, Joe, and there's building worlds with words. Two different things that are not to be confused.

I agree that copyright isn't a natural thing. Capitalism isn't either. Both are human constructions.

Copyright goes hand in hand with capitalism. If we invent something better than capitalism, then perhaps we'll be able to get rid of copyright.

Until then, we have to use the tools our elders created for us.

Alan Spade said...

And if you argue that nowadays, technology progresses much more rapidly than the tools our elders invented, I agree.

Joe Konrath said...

There's communication, Joe, and there's building worlds with words. Two different things that are not to be confused.

I don't think there's as clear a delineation between the two as perhaps you do.

I'm take time to blog, and respond, but I don't get paid for my words here. Yet they are just as considered by me, and take as much time, as the words in the fiction I sell.

When does communication become art? When do words become a commodity? If someone were to base a non-fiction book on copyright reform based on things that were said in these comments, should we get paid?

I agree that copyright isn't a natural thing. Capitalism isn't either. Both are human constructions.

I don't agree. Capitalism is a form of trade, and trade is universal to any civilization. So is art.

Copyright is a fabrication, created by lawyers. That it is universally agreed upon doesn't mean it isn't faulty.

And if you argue that nowadays, technology progresses much more rapidly than the tools our elders invented, I agree.

We're on the same page here.

Alan Spade said...

Copyright has been invented to delimit an intangible thing, intellectual property.

Is it less real than trade?

Are mathematics less real because they delimit intangible things?

I agree that those have not the same degree of materiality than, for example, barter.

Are there, for that very reason, inferior things? I don't believe so.

Broken Yogi said...

Alan,

What cause the problem is the ability for authors to put their names behind other creations and characters without the agreement of the original author. There's a name to this. Predation. Or parasitism.

So when Jimmy Hendrix did a cover of Bob Dylan's "All Along The Watchtower", he was a parasitic predator?

You do understand that a whole lot of the music industry is covers done by people without the permission of the original songwriter? They have a simple system in place, since 1909, that allows anyone to record any previously released song, as long as they pay a set fee. A lot of the most famous versions of popular songs are actually by a cover artist, not the original. And yet, this all works out just find. Maybe some songwriters don't like they way their songs get covered, but they still get paid. Maybe some don't like the fact that the cover sold more records or was even better than their original version. They still get paid. The system works.

That's pretty much what we're talking about here. Except, with writing I think it's a lot less likely that "famous writers" will want to use someone else's story world and steal their whole storyline. Because, for one, famous writers got that way by writing their own stuff, their own way. Some guys like Joe may want to play around with popular characters like Hulk and Superman and so on, but I don't see that hurts the originators, since they still get paid a royalty and it promotes their brand.

Your scenario where James Patterson starts writing sequels to other people's fictional worlds after one book comes out seems completely unrealistic. It's not how he works. He doesn't license other people's book ideas. He comes up with his own, writes out a detailed plotline and character description, then hires writers to write the actual book under his guidelines and control, then edits it to fit his own sense of what he wants. I've never heard of him optioning anyone's else's series and doing his version of that. It just doesn't fit the way he does stuff. And it doesn't seem like a very good way for an established author to operate.

You think real writers lack good ideas for novels and novel series? I mean it again, seriously? Guys who already write bestsellers, are going to want to hitch their fame wagon to someone unknown's fictional universe and pay them a big royalty for the privilege? I think your arguments only could survive in a fictional universe of your own making that I have no interest in writing a sequel to.

Now, you can claim anything is possible in regard to Tolkien in a "what if?" manner, but it still makes no historical sense. Tolkien's books weren't like anything else out there, and it was a long, long time before anyone wanted to try to duplicate it. But even if someone had done just that, right after the first book came out, so what? No one but Tolkien could actually write like Tolkien, and come up with the elaborate plots and ideas that he came up with. And back then, no one wanted to. Now, they do, and I think it's just fine if fans want to do that. Or even if other fantasy writers do. But most of the fantasy writers out there create their own world. They don't even need Tolkien's world, because the general ideas aren't copyrightable in the first place. Only the very specific characters and names and places that Tolkien created. You can't copyright a whole genre anyway.

Broken Yogi said...

cont.

So it doesn't matter how the authors feel about stuff. That's not what I was referring to. I'm referring to the general increase in value of an authors creation because other people find it so inspiring they want to build upon. Mostly that would just be fanfic, but you never know, it could include some more interesting things. It would be fun to see what Joe could do with Superman and Hulk and others, for example. But because of the investment required, most serious authors aren't going to want to spend much energy building up other writer's worlds. It's just not how writing works, generally. It's not what even Patterson does. And if a thousand fans of Game of Thrones write new stories, it's not going to detract from George R.R. Martin's sales. It's going to add to them. And if Diana Gabaldon decides to write her own version of the Fire and Ice stories, how is that really going to hurt Martin? Seems like it's only going to help him. I have a very hard time imagining a realistic scenario in which the original author is actually harmed and his artistic creation diminished by allowing authors to "cover" other author's literary creations.

But I do see a whole lot of harm being done by the fact that most can't do this. There's a lot of books and movies and TV that have by now entered the popular imagination like the myths of old were the mainstay of previous cultures. The difference is that in Greece, for example, anyone could write a play about Oedipus, or Ajax, or the many myths of Gods and men, and the fact that there were so many variants on the same story added to the culture, and made it more interesting, rather than "confusing" people.

Broken Yogi said...

Copyright goes hand in hand with capitalism. If we invent something better than capitalism, then perhaps we'll be able to get rid of copyright.

The purpose of copyright is to give enough protection to creators, whether in science or in art, to encourage them to create more and thus enhance the culture and the nation. If those protections become so rigorous as to discourage creativity, then the copyright laws are not fulfilling their purpose, and should be so amended.

There are many, many ways in which copyright laws now discourage creativity, rather than encourage it. And that applies not just to the arts, but the sciences as well. Copyright trolls now make a living in Silicone Valley trying to blackmail companies with copyright lawsuits, preying on the ignorance of the legal system to settle complex technological issues.

The music industry also has its problems, but thankfully it at least allows covers to be made by any artist who wants to, at any time, in any style they choose, with full creative license. That has proven to be a very good, even great thing, that has enhanced the industry, the culture, and music lovers the world over.

It's not any attempt to subvert capitalism, but to use the power of capitalism to drive greater creativity within the artistic and scientific community. Even most scientific and medical copyrights only last for seventeen years, after which they become public domain. Artistic copyrights used to be for only sixteen years. I'd be happy to compromise and say that the original work itself could be copyright protected for the current lifetime plus what, 75-125 years, as long as the "creative cover" copyright was rolled back to that original 16 years. Which would mean that the original artist would have 16 years to write all their sequels and establish their brand, but after that point, anyone could build on it. Which would be just awesome.

What do you say?

Joe Konrath said...

Are there, for that very reason, inferior things? I don't believe so.

We're reaching the point in the discussion where we're going to have to start defining words. Which, in my book, makes it a really fascinating discussion. When discourse is deep enough for semantics to become involved, I've historically found it to be an exchange worth having.

I believe math is an invention, and a language. I've been an empiricist for a while, and haven't found a philosophy capable of changing my mind yet, though I've tried out many.

As such, I believe math is real in the sense that it is a construct of human logic, but cannot exist without sensory observation.

Copyright seems less a construct of logic and more one of emotion/class warfare. I don't find "I thought of it so I own it for my life plus 70 years" to be comparable to "2 + 2 = 4" on the logic scale. In that sense, I do find copyright to be inferior to math.

When I speak of class warfare, I speak of copyright being a tool of big business to hold onto rights, rather than the original creator. Historically, copyright protected the person who bought the copyright from the creator. Now, because of self-publishing, copyright finally protects the creator. But even though I'm benefiting substantially from current copyright laws, I still find them flawed.

Alan Spade said...

"Guys who already write bestsellers, are going to want to hitch their fame wagon to someone unknown's fictional universe and pay them a big royalty for the privilege?"

It depends on the size of the royalty.

Perhaps that you're right and Patterson is a bad example. But publishers could hire authors to write on a high potential series, if the author don't want to be published. Why not if it's allowed, and there is profit to be made?

"So when Jimmy Hendrix did a cover of Bob Dylan's "All Along The Watchtower", he was a parasitic predator?

I would have to ask Dylan how he felt about this, but unfortunately, I can't speak with the dead.

More seriously, a song and a novel are not the same beast. But I know for a sure thing that even music artists are rather pissed off when their music is copied by other artists. Especially if they don't receive money from it, which already happens often.

"Which would mean that the original artist would have 16 years to write all their sequels and establish their brand, but after that point, anyone could build on it. Which would be just awesome.

What do you say?"

I'd say a 16 years period would sure suits George Martin's fans who wait four or five years between each of his books. ;)

A 16 years period would be reasonable for me, but not for every author.

I would prefer that the artist have 16 years after the release of the "creative cover" to write all sequels, unless he chooses to extend that period.

But he may opt to extend that period only in the sixteenth year, so that it would have to be a voluntary act on his part.

Unless he does that, anyone can automatically build on his work after 16 years.

If some authors prefer to protect their work all along their lives, they should be allowed to do just that, but it shouldn't be as easy as it is today.

Authors have to be conscious that when they release something in the nature, it becomes more and more a public thing with each passing year.

Broken Yogi said...

First, rumors of Bob Dylan's death have been greatly exaggerated.

Second, I don't care what Bob Dylan thinks of Hendrix's cover. I care what the ability to make covers does for the culture. It does great things, and it sure hasn't hurt Dylan's reputation or pocketbook or his ability or motivation to make more records. Hell, he's even performing posthumously, which is quite an accomplishment.

The reason to bring up the record industry's whole experience with covers is that it gives us a hundred years of experience in a creative artistic field covered by copyright laws very similar to those in the literary world, that demonstrates that the ability of artists to creatively use other artists' original work without having to get permissions is entirely fair and workable and actually enriches the industry rather than detracting from it. It encourages creativity, and increases monetary rewards for all involved. So we don't really have to speculate about Tolkien and what-if situations and so on. We already have a long track record to look at for this sort of thing.

As for royalties, that is a bit complicated. There's actually a panel of judges that sets royalty fees, and it varies depending on the type of work, length, and so on. I'm sure a fair number could be reached at in a similar way by an independent panel.

As for sixteen years, I think that's a little long, and I don't at all like the idea of extending that at the copyright holder's whim. Because, anything worth covering would probably be extended anyway, and thus we're talking 32 years, which in our fast-paced culture is just way too long.

One provision I think worth including is that the original author has the right to use any "cover" material at his own discretion in his own works without having to pay any royalty fees. So if the original author actually likes some of the cover stories made from his work, he can make use of them for free, and build on them.

And no, I don't think authors should be able to protect their work all their lives, or that would simply become the automatic default, and destroy the purpose of this sort of thing. They can already offer licensing to people at their discretion, and it hardly ever happens. The whole point of this sort of change is to make it an easy and commonly done thing that anyone can make use of, particularly the kind of fanfic writer who doesn't know the first thing about negotiating licenses with major publishing houses and movie studios, who wouldn't give them the time of day in any case. So that would make it basically pointless. The idea here is to open up the literary industry the same way the music industry has been open for the last century. I don't think that's asking too much. There are some differences to take into account, but the basic principle is a good one that would help, rather than hurt, the industry. How an author's personal feelings about this come down are the least of my concerns.

Alan Spade said...

Oups, I was sure about Bob Dylan's death. My mistake.

"The whole point of this sort of change is to make it an easy and commonly done thing": as far as the author is concerned, it would be very easy and common: if the author doesn't do anything, any other author can build up on his work after the first 16 years. It would just be needed to reinforce the administration of copyright: the administration would have to track the release date of new works, and ensure to give the possibility of extension only in the sixteenth year, and only if the original author makes the move at the right time.

"How an author's personal feelings about this come down are the least of my concerns."

Negociation, Broken Yogi. What you ask for is an entirely new thing in the literary world.

You cannot impose something that is a big restriction over a previous right without doing any concession: it would be the surest thing to keep the status quo.

We have to remember that creativity is not so much hindered in the literary word: if anybody wants to create a fanfic of Hulk smashing Superman, it's perfectly possible as long as there's no money made. An author could create such a story and send the link to the free story on his newsletter, reaching 10,000 people. One could even argue that the world of free on the Internet is far bigger than the world of paid things.

What is hindered is the possibility of making money with the work of other artists. That's a very different thing.

Alan Spade said...

Now I know. I made a confusion with Bob Marley (who would be younger than Bob Dylan if he was still alive).

Joe Konrath said...

Holy shit, Bob Marley is dead?!?!

Alan Spade said...

Lol:) Not in our hearts Joe, not in our hearts.

Terrence OBrien said...

As such, I believe math is real in the sense that it is a construct of human logic, but cannot exist without sensory observation.

Math is a construct. It was developed by humans.

The relationships it describes exist even if humans don't.

Terrence OBrien said...

I don't find "I thought of it so I own it for my life plus 70 years" to be comparable to "2 + 2 = 4" on the logic scale.

That is misleading and mischaracterizes the situation. Copyright demands far more than thinking of something. Thoughts cannot be covered by copyright.

I agree copyright is not on the same level as math. Copyright governs human relations and is a tool deployed depending on the situation humans wish to prevail.

Math describes relationships that exist regardless of what humans prefer to prevail.

Terrence OBrien said...

When I speak of class warfare, I speak of copyright being a tool of big business to hold onto rights, rather than the original creator.

That doesn't hold up anymore. We can easily observe thousands of independent authors are today using copyright to hold onto rights rather than surrendering them to big business. What class have they declared war on?

Copyright was a necessary condition for the success of the independent authors.

Without copyright, those big businesses would say they just want to play in someone else's sandbox, and based on their wishes and emotions, they want to deploy resources necessary to divert the revenue stream from the creator to themselves.

Alan Spade said...

I agree with Terrence. Copyright is now on the side of many independant authors.

Big businesses have been able to divert copyright for their own profit, because they claimed to be essential to discoverability, and as such to the authors who wanted to make a living.

Things have changed since then.

If I would like the copyright to become more supple, it's for the sake of creativity, and because more and more readers are authors who may rejuvenate old brands with new thinking.

I don't really think that by reducing copyright duration, we are striking a real blow to big publishing: the best blow to big publishing is if authors begin to really value their rights, and their copyrights.

Alan Spade said...

Regarding maths: copyright is less universal than maths, but is very useful. The two things are not on the same scale.

If you think that the concept of property to be inferior to the concept of maths, I can agree on some level, but the concept of property (and copyright is an extension of that concept) has spawn many things, like trade, capitalism...

I think the humans need to be structured in some ways for them to progress, and I would file the copyright in the structure stuff.

So I would say it's an improvement for our civilization, even if I do aknowledge that creativity doesn't care very much for structure. We have to find the right balance, as in so much things.

And I don't think copyright to be properly balanced for the time being. It has to be adjusted, but at all cost preserved.

Joe Konrath said...

Math describes relationships that exist regardless of what humans prefer to prevail.

That's like saying the color green exists without our sensory knowledge of it.

Which it doesn't. There is nothing inherent in anything. There is only subjectivity and labels. Math is a language that we use to label things. It exists because we do. And, strangely, the universe exists because we do, which was the takeaway I had from Trespassing on Einstein's Lawn by Amanda Gefter.

Kant's a priori was a logical construct he tried to use to prove the existence of god, but he never proved it to my satisfaction. Things simply can't be proven to exist without sensory experience, which implies something to process that experience.

So math only describes things that we apply it to. It doesn't do anything without us, and doesn't exist without us. Therefore, both math and copyright prevail only due to humans.

I see your point, but it's rare I get to discuss this stuff with anyone.

Joe Konrath said...

Copyright is now on the side of many independant authors.

Which I said upthread. Now, because of self-publishing, copyright finally protects the creator. But even though I'm benefiting substantially from current copyright laws, I still find them flawed.

If you think that the concept of property to be inferior to the concept of maths,

I don't. I find intellectual property to be inferior. Let's go back for a moment. You said:

Are mathematics less real because they delimit intangible things?

I said: Copyright seems less a construct of logic and more one of emotion/class warfare. I don't find "I thought of it so I own it for my life plus 70 years" to be comparable to "2 + 2 = 4" on the logic scale. In that sense, I do find copyright to be inferior to math.

So I don't find math or the concept of property to be superior or inferior to one another. Upthread I said I believe we have a right to estate.

Where things get wonky for me is how IP factors into estate. If I own a painting, it's mine. If I upload a jpg of that painting to my blog, what's "mine" becomes increasingly harder to define.

I'm not necessarily disagreeing with anyone. I just find this topic worthy of deeper probing.

Broken Yogi said...

Negociation, Broken Yogi. What you ask for is an entirely new thing in the literary world.

Negotiation with whom? We are talking about passing new laws, not negotiating a business deal. So it's politicians and ultimately voters who will do the deciding on what's best here. Or do you want business lobbyists to decide everything? That's the biggest problem with current copyright laws. Lobbyists for giant corporate entities are writing the laws to maximize their own bottom lines, not to do what's best for the people and artists in a democracy. And then bribing the politicians with large campaign contributions to get them passed.

Let's remember: this is not anything new to the artistic world. As I keep pointing out and you keep ignoring, it's been around in the music industry for a century. It has a proven track record. It doesn't hinder creativity, but it helps it. And yes, not having the ability to do "covers" doesn't stop people from creating covers for free, but it does hinder it. For the same reason that having no copyright at all would hinder it.

Also, this is not a restriction over a previous right. Copyright is not a "human right". Intellectual property ownership is not inherent. In fact, copying other people is the thing that's a human right, that people have always done, that copyright laws seek to restrict. Our free expression is being restricted when we are unable to copy others. I'm not saying that's always a bad thing, but let's be honest about what's going on here. We wouldn't even have language if we weren't free to copy others. Children wouldn't be able to speak without copying. Culture and customs wouldn't exist without the innate human tendency to imitate. The notion that someone can own such things is what is new and novel and represents a restriction on free human expression.

That's why those restrictions should be limited to the minimum of what is necessary to create a thriving artistic and technological culture. Human freedoms of expression are literally at stake here. Let's not err on the side of too much restriction.

Broken Yogi said...

As a concept, copyright laws are about as inherent as zoning restrictions. In other words, not at all. They are human constructs to create a human political/economic rulebook to play a game called democratic capitalism by. I don't have any objection to that, unless you try to reify those rules as some sort of inherent human right. Copyright simply isn't an inherent human right. It's an economic privilege granted to people by the state, and enforced by the state, to restrict our rights, not to expand them.

As for self-publishers, yes, copyright is finally working in their favor, but the industry itself is still heavily weighted towards giant corporate entities who benefit far more heavily from copyright laws. And let's be clear: no one is suggesting that all copyright laws be abolished. We are merely stating what seems to us to be the obvious fact that copyright laws have become overly restrictive of free human expression in this democratic capitalist culture of ours, and should be modified accordingly to maximize the cultural and individual benefits of our all having our inherent right to imitate and copy one another respected and not ignored by overly restrictive copyright laws.

Is that clear?

Alan Spade said...

"Negotiation with whom?"

It depends. If you have political connections, than use them. Otherwise, I would say that you does a poor job convincing authors by saying you don't care about their feelings or what they think.

Maybe you don't need to convince authors. But if that's the case, what's the point of debating here?

"As I keep pointing out and you keep ignoring, it's been around in the music industry for a century."

As you keep ignoring, music is not the same field than literature. Things have to be adapted at least. Acting otherwise would be totally disrespectful of the community of authors.

Copyright has the word "right" in it, no? It's something that currently is good for many authors.

I'm with you when you say "let's not err on the side of too much restriction." But something like copyright that currently enable authors to say "no" to big publishing should be treated with caution.

Alan Spade said...

"It's an economic privilege granted to people by the state, and enforced by the state, to restrict our rights, not to expand them".

If you go in that way, individual property is also an economic privilege granted to people by the state. The no-have may deem that property of other people restrict their rights of owning the same properties.

"We are merely stating what seems to us to be the obvious fact that copyright laws have become overly restrictive of free human expression in this democratic capitalist culture of ours, and should be modified accordingly to maximize the cultural and individual benefits of our all having our inherent right to imitate and copy one another respected and not ignored by overly restrictive copyright laws."

It's clear and if you read my messages here, you'll see that I'm not so far from this assessment.

Broken Yogi said...

Alan,

Not all authors are selfish egotists who only care about themselves. Some of them are really great people who actually care about society, the arts, the world outside their little shell, and who see the freer exchange of creative expression to be a good thing, because it helps create the kind of world that artists and writers want to live in. Those are the writers I'm addressing. The others can really just go fuck themselves.

Broken Yogi said...

If you go in that way, individual property is also an economic privilege granted to people by the state. The no-have may deem that property of other people restrict their rights of owning the same properties.

Quite so. Private property is also a human concept created to serve a purpose, not an inherent right of nature. To the degree that it serves a useful purpose, the state should honor it. To the degree that it does not, the state does not. As we see all around us, the state imposes all sorts of restrictions on personal property. Zoning laws are just one example of that. The state also taxes personal property and income. That too is a major restriction on the concept of personal property. I see no contradiction in the idea that the state should restrict copyright and intellectual property use in a manner that suits its own interests, which ideally are the interests of the polity that elects its lawmakers.

Broken Yogi said...

It's clear and if you read my messages here, you'll see that I'm not so far from this assessment.

That's what I was hoping you'd see.

Broken Yogi said...

As you keep ignoring, music is not the same field than literature. Things have to be adapted at least. Acting otherwise would be totally disrespectful of the community of authors.

I've acknowledged those differences. The thing is, those differences actually make it much less likely that other serious, commercial authors will want to tag along on someone else's literary world and pay them a royalty for that privilege. Nor will corporate publishers find it easy to co-opt anyone's world with their own teams of sharp-tongued ghostwriters. The literary cover just won't be as popular as the musical cover, except among fanfic types. So that's not really much of a threat. The differences you cite make it much less of a change than you claim it will be. It's a sidelight, not a main attraction.

Copyright has the word "right" in it, no? It's something that currently is good for many authors.

Copyright isn't an inherent right, and that's not the meaning of the word. Even the dictionary definitions explain that it's an exclusive right to make copies, granted by the state. It's a restriction on free trade and free expression, in other words, given for a limited period of time to certain individuals in regard to certain works.

If it were an inherent right, there would be no time limit on it. Our right to free speech, for example, doesn't have a time limit on it. Copyright is a temporary restriction of free speech, granted by the state to certain people, to encourage the arts and sciences to produce new and creative works and inventions. And when copyright expires, free speech reverts to its inherent state.

I'm with you when you say "let's not err on the side of too much restriction." But something like copyright that currently enables authors to say "no" to big publishing should be treated with caution.

Covers of music or literature don't represent a takeover by big corporate interests of the little guys. Songwriters, for example, love it when big labels use their songs as covers. It makes them more money. In fact, the real money in the music industry comes from two sources - songwriting royalties, and live performances by big acts. That's where the big labels make the cash -grabbing those copyrights and encouraging people to use them and give them money in return. Not by stingily restricting the use of those copyrights. It's only recently that songwriters have learned to protect their rights.

Allowing open covering of literary works in a similar manner as the music industry would likewise result in most writers actually wanting and encouraging the practice. Because it makes them free money without having to lift a finger. Imitation isn't just the highest form of flattery, it's also a cash cow.

Joe Konrath said...

If you go in that way, individual property is also an economic privilege granted to people by the state.

Well, maybe. Maybe not.

When our species stopped hunter-gathering and settled into permanent dwelling, the start of civilization and modern society (thank you beer and dogs for the part you played), ownership of physical things became enlarged. Where we might have had the clothes on our backs, some weapons, and a few baubles, now we had, as Carlin notes, a place for our stuff.

I built my home so it's mine. The things in it are mine. I protect my home and my things with force and threats of force. The government hadn't stepped in yet, because it didn't exists.

When we began to govern ourselves, one of the first rules was probably the right to estate. Taxes swiftly followed.

So I get a deed for land, build a home on it, it's mine. But I paint a few gazelle on the walls of a cave, it isn't mine, because I don't own the cave.

I write a story in a journal, it's mine. I read the story to a group, it's not mine anymore; it belongs to the collective.

Information was once hoarded. With the printing press, the ability to copy necessitated the need for a copyright. That was odd, but the Internet makes it even stranger.

If you haven't watched Steal This Film, check it out.

https://www.youtube.com/watch?v=YJ2Fh3tAD-I

Terrence OBrien said...

That's like saying the color green exists without our sensory knowledge of it.

Green is the name we give to the electromagnetic wavelength of 495–570 nm. That frequency of EM predates humans.

The EM of that frequency exists without humans. The name "green" exists because of humans. The human name describes what existed prior to humans.

Things simply can't be proven to exist without sensory experience, which implies something to process that experience.

OK. And lack of proof does not imply lack of existence.

Which I said upthread. Now, because of self-publishing, copyright finally protects the creator. But even though I'm benefiting substantially from current copyright laws, I still find them flawed.

Most things we create are flawed. I don't judge them against someone's idea of perfection, but against the viable alternatives, and in the context of history.

Playing in someone else's sandbox might just invites the neighborhood to pee in it.

It's an economic privilege granted to people by the state, and enforced by the state, to restrict our rights, not to expand them.

Correct. Property rights restrict everyone but the rights holder.

Socially recognized property rights were a marked improvement over killing the other guy and taking his stuff.

There has been mention of trade up thread. Property rights enhance trade since they define who can trade a given item. Uncertainty inhibits trade. Note the reaction from Amazon and Google when copyright is in question. They pull the book.

Has anyone noticed the information that wants to be free usually is the stuff that puts a buck in someone's pocket? Most information is not free, and never enters the public domain. Anyone have the information on how many paper cups Starbucks used yesterday? That's information. Does it want to be free? Would it enhance humanity if we freed that information?

Joe Konrath said...

The EM of that frequency exists without humans.

Good luck proving that. :)

Name something that exists without humans. Then try to prove it.

And lack of proof does not imply lack of existence.

Sure it does. Anything can exist. But things aren't shown to exist without human sensory experience. That our senses are limited belies that the nature of the universe may be a lot different than we think. But we can't know that until we know that.

Playing in someone else's sandbox might just invites the neighborhood to pee in it

How so?

A reporter asked Dutch Leonard if he was angry that Hollywood ruined his latest book. Dutch pointed to his book on the shelf ans said, "It's not ruined. It's right there."

I agree. A derivative arts doesn't effect the original. If someone writes a sequel to Whiskey Sour, they aren't peeing on my book.

Property rights enhance trade since they define who can trade a given item.

It seems to me that property rights restrict both trade and societal access to IP. Once you start limiting who can trade, you limit trade.

Has anyone noticed the information that wants to be free usually is the stuff that puts a buck in someone's pocket?

Wikipedia is free. None of its authors make money. Yet, every year, I donate because I value it.

I'm not the only one, because Wikipedia continues to exist.

w. adam mandelbaum esq. said...

Authors spend considerable time-- hopefully--in their EXPRESSION of ideas. They create unique characters which at some point might have economic value in ancillary products. Do you really want to weaken laws that protect the creator's rights to revenues from his creation? Including the rights to encumber, transfer and bequeath in a will to heirs or beneficiaries? Too many hold IP out as something different than property because they can't park it in the garage. Hey, I like your hood ornament, so I put on my car. Is that OK? Hey, I like your character, so I put him in my book which I then sell. Is that OK? Yes if you obtain a license to do so from the owner. If you don't, it is theft. And yes, I am a lawyer, but I am also an author both indie and grad published.

w. adam mandelbaum esq. said...

Oops! That would read trad published. Blame it on the tablet.

Alan Spade said...

"Name something that exists without humans. Then try to prove it."

That's a very egocentric, or human-centric way to see things.

When a cat sits on a chair, it acts on its own purpose. Even if what we name "chair" exists only in black & white for it, we cannot deny the chair exists for the cat.

Similarly, when technology emulates the optic nerve so that a blind person can see, we can infer that the scientists have correctly interpreted general and particular laws of the physic.

"It seems to me that property rights restrict both trade and societal access to IP. Once you start limiting who can trade, you limit trade."

Sorry, but that's quite a sophism. We humans need structure and laws. Property is regulated by laws, as is IP.

The real question is how we limit those things, because as we all know, the freedom of some ends where someone else's begins.

So, I think you and Broken Yogi are right when questioning the extent of IP. But it seem useless to me to question directly the very existence of IP.

But if you really want to start a crusade in order to end IP, I wish you very good luck.

Terrence OBrien said...

Good luck proving that. :)
Name something that exists without humans. Then try to prove it.


I have no intention of proving it. Few of us live by a standard of proof, and anyone who does won't last long. I accept you exist, and I accept the world exists. I accept it from observation, and find denial leads to disaster and early death.

Sure it does. Anything can exist. But things aren't shown to exist without human sensory experience.

There is a difference between exiting and being shown to exist.

How so?

Changing copyright law to benefit authors who want to play in someone else's sandbox does not consider the economic history of the past 1,000 years.

The development of individual property rights was a huge impetus to economic progress and the material will being of the population. It encouraged trade, and volume of trade has been observed to leads to social well being.

Removing property rights when we have hundreds of years of evidence that they enhance the human condition is unwarranted without a far greater benefit than an author's emotional well being.

It seems to me that property rights restrict both trade and societal access to IP. Once you start limiting who can trade, you limit trade.

We don't have to reason to that. We can observe history. We do not limit who can trade. We limit the specific goods anyone can trade to those for which they have property rights.



Correct. That is their choice. I support their choice. And nobody is agitating to make it free.

Terrence OBrien said...

That dangling sentence above was in answer to Joe's observation that Wiki ifs free.

Broken Yogi said...

Joe,

Interesting discussion of the principles here. But I'm not so sure of this:

When our species stopped hunter-gathering and settled into permanent dwelling, the start of civilization and modern society (thank you beer and dogs for the part you played), ownership of physical things became enlarged.

We don't have records of life back in the neolithic, but we do have hunter gatherer societies in the modern era that have been studied. The concept of individual property doesn't seem to exist very strongly among them, if at all. Not that they have much that could even be considered property, but what does exist, tends to be "borrowed" endlessly and often never returned. So people would just take things they needed from other people in the tribe. The concept of theft didn't seem to exist, except perhaps in the context of war between tribes. And then it was usually just women who were stolen. So maybe that's how the concept of property began? With women and children?

I think we also know that these tribes didn't have a sense of individualized land as property, often because they moved about a lot. Tribes might stake out a territory, but even that could change frequently as they migrated around in search of better hunting grounds.

The concept of property is actually rather foreign to human beings, and took thousands of years to cultivate until it began to seem natural. But it's worth remembering that civilization itself isn't natural either. Even beer doesn't sprout from springs in the ground. The very concept of an individual "owning" the beer they made is fairly unnatural. For a long time, it was a communal event, both in the making and the drinking. And the whole idea that a particular name and brand and method for making a beer could be "owned" by someone, and violators would be punished for copying it, would have been laughed out of the tribe, and maybe the people too would have been thrown out as being dangerous to the community.

Broken Yogi said...

Changing copyright law to benefit authors who want to play in someone else's sandbox does not consider the economic history of the past 1,000 years.

http://en.wikipedia.org/wiki/History_of_copyright_law

Copyright didn't exist 1,000 years ago. Capitalism didn't exist until about 1350 in Venice, and spread and developed very slowly from there.

Also, as I mentioned before, we have a century of allowing people to play in other people's copyright sandbox in the music industry. Anyone can cover someone else's previously published song. With no time limits or the need to negotiate licenses. There's a standard rather generous compensation system in place to handle the royalties, so no one is getting cheated. So this is not some new and revolutionary change being suggested. It's pretty ordinary, commonplace, and not an assault on either capitalism or property rights. It's actually a way of expanding capitalism and free markets, and at the same time expanding creativity and free expression while still compensating and encouraging original artists. Win-win.

Broken Yogi said...

So, I think you and Broken Yogi are right when questioning the extent of IP. But it seem useless to me to question directly the very existence of IP.

I'm not questioning the existence of IP, I'm merely pointing out that it isn't some inherently existing thing. It's a form of law created by men. Laws do exist. Copyright laws do exist. They are made by men, and can be changed by men without violating any laws of nature. They can even be made to not exist by the stroke of a pen. Interesting how that works.

Broken Yogi said...

Hey, I like your character, so I put him in my book which I then sell. Is that OK? Yes if you obtain a license to do so from the owner. If you don't, it is theft. And yes, I am a lawyer, but I am also an author both indie and grad published.

If you change the name of the character, and write your own descriptions and your dialog, it's pretty much okay. I mean literally, you don't have to do much more than that. Which just goes to show how flimsy the whole concept is. I mean, every writer out there steals from every other writer out there. They steal characters, plots, places, events, ideas, etc., without any license or acknowledgment. It's how the whole literary world works. 50 Shades was Twilight fanfic, and when James realized it was sellable, she just changed a few basic things to make it her own "creation". Otherwise, it's basically all stolen from Twilight. But Shakespeare did the same thing, so it isn't an issue of quality. It might be fun to allow the stealing to occur in broad daylight with at least some compensation going to the original author. Because the way it works now, when someone steals your work, unless they are literally so stupid as to use the same names and plagiarize text, the original author gets nothing.

On the other hand, if James had published 50 Shades in its original form, as Twilight fanfic, it wouldn't have sold 100,000,000 copies. So maybe the copyright laws did her a favor. But that didn't much help the author of the Twilight series. I can't even remember her name. And she didn't make a cent off it.

Joe Konrath said...

That's a very egocentric, or human-centric way to see things.

It's the only way to see things. All ways of seeing things are based on sensory observation (which is limited) and the abilities of our minds to parse, organize, interpret, categorize, and differentiate among that input.

But the freaky part is; our sensory awareness maybe the thing that causes everything to exist.

we cannot deny the chair exists for the cat.

We can, and should, deny existence of both the chair and the cat until we have sensory proof they exist.

There's a word for believing things without proof. That word is "faith". While faith is indeed endemic to the human genome, there is nothing logic based or science based about it.

Sorry, but that's quite a sophism. We humans need structure and laws. Property is regulated by laws, as is IP.

That's a logical fallacy. We breathe gas. Radon is a gas. Therefore, we need radon to survive.

Just because we breathe gas doesn't mean we breath all of them. Just because we need laws doesn't mean we need all of them. And you've yet to establish that tangible property equates with the intangibility of art, ideas, or bits and bytes.

But it seem useless to me to question directly the very existence of IP.

I don't think I'm trying to question the existence of IP. I'm trying to assess what it's value is, and how the laws governing it aren't sufficient.

Joe Konrath said...

Do you really want to weaken laws that protect the creator's rights to revenues from his creation?

Can you prove to me that the things I'm proposing weaken the laws and harm the creator?

Right now I'm running an experiment. I'm allowing authors to use my IP. I don't think that will harm me. I think it will help me, and them.

I find the term "weaken" interesting. I think were have a lot of really bad laws in this country. The Espionage Act is being used to target whistleblowers. The war on drugs has cost countless billions and done ziltch. All science and statistics point to the legalization of marijuana. Were the countless laws that supported the discrimination of other races, women, and gays "weakened" when law changed?

If you don't, it is theft.

We both agree that stealing a person's bicycle is theft. I'm not convinced that me writing a Sherlock Holmes story is theft. Especially if I paid the Doyle estate a royalty.

Terrence OBrien said...

And the whole idea that a particular name and brand and method for making a beer could be "owned" by someone, and violators would be punished for copying it, would have been laughed out of the tribe, and maybe the people too would have been thrown out as being dangerous to the community.

And that's why they spent thousands of years at the same level of development.

Copyright didn't exist 1,000 years ago. Capitalism didn't exist until about 1350 in Venice, and spread and developed very slowly from there.

I agree copyright didn't exist 1,000 years ago. My reference was to the development of property rights that led to our own system. Copyright is a subset of property rights.

That makes a larger issue of property rights relevant to the question of changing some of them.

Capitalism is separate from property rights. Property rights are necessary for capitalism, but capitalism is not necessary for property rights.

So this is not some new and revolutionary change being suggested.

Books lack the performance aspect that music has. So, yes it is new.

It's actually a way of expanding capitalism and free markets, and at the same time expanding creativity and free expression while still compensating and encouraging original artists. Win-win.

Capitalism expands with expanding trade. Lack of property rights inhibits trade since parties lack standing to trade. They don't own anything to exchange. Lose/lose.

This is what we observed with the development of property rights that led to our own system. It goes back to the problem the Church had with holding onto its property when bishops were fathering children. (It also led to the Church's celibacy rules.) It's a pretty interesting story.

And free expression? We have never in history had so much free expression available to the rest of the world. And we have never had so much available for trade. All under property rights that include copyright.




Broken Yogi said...

Joe,

I built my home so it's mine. The things in it are mine. I protect my home and my things with force and threats of force. The government hadn't stepped in yet, because it didn't exists.

You only think this way because you live in modern times in the West, with a long history of laws and property rights, mostly derived from English common law. So it seems perfectly natural to think this is just "the way things are". But it isn't. It's something human culture created. It's something you were born into. But if you were born in a different time and place, you'd have an entirely different sense of "the way things are", and you might not believe for even a second that you owned anything. Most people through most of the history of the human species did not.

Were they wrong? Did people always own things? Do chimpanzees own things? At what point in the development of our species does the concept of owning anything come into play? I'd suggest very, very, very late in the game.

I'm not saying it's not a valuable or important concept. I'm just saying it's a concept, not a fact. The truth is, none of us actually own anything. We just have cultural agreements that keep up the pretense of ownership because it helps promote various things we like. But it's just as fictitious as Hamlet's play within the play, or Yorick's skull.

I'm not even sure if it's reduced human violence overall. Maybe it's increased it, but given us compensating benefits. The point is, these things change over time, based on human needs and benefits. Our current concept of private property is just as malleable as our beliefs in God, or yesterday's sexual mores. Here today, gone tomorrow. And IP is the very mechanism by which many of these things change, and create new sets of values and new concepts of property. So it's quite ironic that we want to reify IP as an immutable and unchanging human right, rather than a human conceptual creation. Because that's exactly what IP means - a humanly created set of symbols and concepts, that somehow we then attach the concept of "property" to. All very, very odd.

Terrence OBrien said...

Can you prove to me that the things I'm proposing weaken the laws and harm the creator?

Thanks for the discussion. But I drop out when people insist on proof. Proof is boring. The only challenging decisions are when we have no proof.

Joe Konrath said...

There is a difference between existing and being shown to exist.

We can assume that. We can't prove it. Because to prove it we'd have to show it exists.

What we know is all based on what we can observe. We can come up with ways to communicate to others what we observe, like language and math. But nothing can exist that wasn't first observed.

We can observe history. We do not limit who can trade.

Of course we do. Taxes and tariffs and licenses and permissions and bans and embargoes and sanctions all impede trade. The American Revolution started with a trade disagreement. Remember that tea party? How about the Amazon/Hachette dispute? The uproar was about limiting trade.

Copyright limits the ability of others to build off of someone else's IP. It might be just another bad law that seemed to make sense at the time.

Broken Yogi said...

It's the only way to see things. All ways of seeing things are based on sensory observation (which is limited) and the abilities of our minds to parse, organize, interpret, categorize, and differentiate among that input.

But the freaky part is; our sensory awareness maybe the thing that causes everything to exist.


This may be egocentric and solipsistic, but I agree with Joe that it also happens to be true. We only know the world exists because we perceive it. If there's some portion of the world that we don't perceive, how can anyone possibly claim that it exists? It can only be said to exist if it is somehow observed. And then, humans have entered the picture. So there's no universe except our perception of it.

This is also an esoteric spiritual concept about the world that you will find in eastern literature. It's called "simultaneous creation" in Hinduism - the idea that the mind and the universe come into being at the same time, simultaneously, and that events occur not because they have any independent existence, but because they coincide with the consciousness of the perceiver. So it works both ways, we create the world as the world creates us, in a constant loop.

Broken Yogi said...

I agree copyright didn't exist 1,000 years ago.

But copyright is a much more recent phenomena than general property rights. The first widespread copyright laws were not enacted until 1710 in England. They didn't exist anywhere else in the world. And yet, great world literature and scientific knowledge was produced without the existence of such laws. Most copyright laws around the world are very recent, coming in the last century. So it's hardly some immutable feature of human life and culture.

That makes a larger issue of property rights relevant to the question of changing some of them.

Property rights are changed all the time. Every set of government regulations changes property rights in important ways. Changes in taxation changes property rights. Changes in local zoning ordinances changes property rights. So the notion that we can't change these very recent copyright laws in any way at all without risking disaster is just silly.

And over the last thousand years, property rights have changed dramatically in every respect. It used to be that only the nobility could own property. Everyone else was a serf living on land owned by the nobility, serving at his leisure, and subject to his law and judgment. People themselves were owned as property, and forbidden from owning property of their own. Are you saying it was wrong to change those laws, because, you know, bad things could happen? Maybe we should wait a thousand years before freeing the serfs and the slaves?

So this is not some new and revolutionary change being suggested.

It's not revolutionary. It's a modification of existing copyright law to allow for compulsory mechanical licenses with set fees adjudicated by a panel of judges, just as they do it in the music industry.

Books lack the performance aspect that music has. So, yes it is new.

Yes, that's true, because no one reads music for pleasure. So the performance aspect is in the writing itself. Someone writing a cover of the Twilight series is "performing" a new version of that basic world of stories. I don't see how that makes it any more or less threatening to the original author than covering a song is to the original songwriter. In what way? You assert it as if just asserting it is enough.

Broken Yogi said...

cont.

Capitalism expands with expanding trade. Lack of property rights inhibits trade since parties lack standing to trade. They don't own anything to exchange. Lose/lose.

I agree. You are making my own arguments for me. The lack of a right to "cover" existing stories (while paying fees for that privilege) inhibits trade. It inhibits writers from trading in their words and ideas for money. It inhibits most authors from making money off fanfic, because it's too onerous to negotiate separate licenses from all the people out there who might want to do that, because of all the lawyers who would have to get involved each time. So much easier to have a legal standard by which all this is done, making it an open market. That would increase trade, not diminish it.

And lets be clear, the author would not lose their property rights. They would retain the rights to their original books entirely. They would also retain the right to profit from any creative "covers" of their books. They only right they would lose, is the right to refuse anyone their ability to write covers of their works. But they are compensated for the loss of that right, so it's a fair deal as far as I can see.

And free expression? We have never in history had so much free expression available to the rest of the world. And we have never had so much available for trade. All under property rights that include copyright.

Yes, but the recent expansion of copyright is threatening that. Corporate grabs at all possible copyrights is actually inhibiting free expression. I think it's great that the limited copyrights of the past protected comic book makers and their creativity. But now that those creations are part of the general popular culture, it is inhibiting free expression that someone like Joe can't use those characters, for a standard fee, and create his own versions of those stories. They don't really belong exclusively to the corporations who now own the copyright. As Joe says, they belong to the public. So the public should be able to use them, for a set fee, at their own discretion and put as much creativity into them as they want. No one actually loses anything from that, other than control. And often the corporation and its owners that control that copyright had little or nothing to do with the creation of the original works and characters to begin with. In fact, a lot of those original authors got screwed royally by these people. So it's hard to have any sympathy for them at all.

w. adam mandelbaum esq. said...

Joe, your decision is your right because you have voluntarily allowed others to use your characters. To remain your right, strong protection of IP rights are needed. Yes, there is an abundance of lousy legislation, but copyright protections are not among them. You have created assets in IP that should remain yours, unless otherwise directed by Y O U. Nobody else--without your consent should have the right to your IP. Royalty sharing is fine, but that falls under licensing, not pirating.

Joe Konrath said...

The only challenging decisions are when we have no proof.

Faith based discussions aren't challenging it all. They always devolve to "I believe this" or "I feel this".

I prefer facts and logic. So does science. And there are challenging scientific discussions all the time as we try to understand proofs.

I find wave-partical duality, Schrodinger's Cat, supersymmetry, imploded dimensions, the Higgs boson, quantum entanglement, and dark energy to be challenging discussions.

Discussing the possibility of life on other planets is interesting, but it's more interesting if it's fact based. Stating a belief in something without trying to defend your belief is a good definition of ignorance.

Joe Konrath said...

You have created assets in IP that should remain yours, unless otherwise directed by Y O U.

I understand the law. I don't agree with it any more than I agree gays shouldn't be allowed to marry, or weed should be illegal.

Marriage is a social construct, but being able to spend your life with whomever you want to is a right. Being able to put whatever substance into your body that you want to is a right.

Drawing on a cave wall and saying "I own this because I created it" doesn't have the same weight as doing what you want with your body, or even owning tangible things.

Everyone involved in this discussion has spent time and energy giving their words away freely. No one is being paid for their ideas here. But there is a legal implication that you are licensing your comments to me by commenting here. I'm pretty sure I could, legally, publish your comments in a book that I sell, and pay you nothing. Just as Amazon was able to publish a book of funny Amazon reviews without compensating the authors.

How big a leap is it from blog comments to a posted short story?

Again, I know the law. What interests me is how increasingly silly the law is becoming in the modern world.

Alan Spade said...

"It's the only way to see things. All ways of seeing things are based on sensory observation (which is limited) and the abilities of our minds to parse, organize, interpret, categorize, and differentiate among that input."

Prove it, Joe. Otherwise, it would be a good definition of ignorance.

Seriously. Sensory observation is not all. "The abilities of our minds to parse, organize, interpret, categorize, and differentiate among that input" doesn't tell the whole story. We also have a capacity of deduction. Reasoning. Intuition. Sensibility. Emotion.

If we have a capacity of deduction, of discovering laws of physics, is that those laws are existing by themselves, waiting to be discovered and to help us redefine the universe, or refine our views about the universe.

As Broken Yogi said, "we create the world as the world creates us, in a constant loop."

But if the world creates us, it means the world exist.

What I want to say, Joe, is that you approach towards life isn't the only way to see things ("it's the only way to see things" is much too dogmatic to my taste, by the way).

If you think that all the things exist only because of the humans, there's a high risk to infer that we shouldn't have to respect anything but the human.

It's your approach towards life, Joe. It's definitely not mine. Maybe I'm wrong. Maybe I'm ignorant.

Also, you alluded to piracy in this discussion. I had the impression that intellectual property was somewhat devealued in your mind because of piracy.

Recently, hackers have stolen $300 millions via malware (http://www.nytimes.com/2015/02/15/world/bank-hackers-steal-millions-via-malware.html?_r=1).

You said that "information wants to be free". Does electronic money wants to be free too? Do you think all electronic money should be free because, yeah, it's possible to hack electronic money?

Isn't that akin to the law of the strongest? Would you think it would be an improvement for our society, if we bowed to the law of the strongest?

Yourself Joe, you admirably proved with your "Steal this ebook" experience that the law of the strongest wasn't the only thing to exist. There's also love. Gratefulness.

Unfortunately, for the time being, we can't economically thrive only with love. There has to be laws, in the same ways you have to set some barriers if you want to educate properly your children.

Perhaps our society is in its infancy. We may regret it. But we have to be realistic.

And if you want to be an idealist and change things, I would suggest, not to begin by changing intellectual property because it's so easy to hack intellectual property, but to begin by changing property laws.

For instance, who owns the machines and robots? Machines and robots have been developed both by private initiative and by public funds (that's to say, your money and my money). Is it fair that most of the riches produced by robots and machines belongs only to a few? Do this few deserve to be rich? Do they deserve to be rich because they have played the law of the strongest (or the law of the slickest) the most efficiently? Or because they have inherited great amounts of wealth?

These are real questions, as is tax evasion, or governement bribery for instance.

I agree with Broken Yogi when he says that laws are only conventions and as such, are not immutable. I partly agree with his suggestions, and I know IP is far from perfect and has to be changed. But it has to be done with respect towards the creators and their works.

w. adam mandelbaum esq. said...

OK I will compromise...weed smoking married gays shall be exempt from copyright protections for their lives and seventy years after the death of Liberace.

Joe Konrath said...

Prove it, Joe. Otherwise, it would be a good definition of ignorance.

That's like asking me to prove I can see.

We both agree sensory input is how we absorb information. If you believe there is another way to prove information exists without sensory input, that burden of proof is on you.

That's what Kant was trying to do with the a priori. To show things exists outside of our senses. If you want to debate empiricism vs. rationalism, I'm up for it, but you need to present the rationalist side.

We also have a capacity of deduction. Reasoning. Intuition. Sensibility. Emotion.

Show me how this aren't connected to sensory input. Would a child, born with complete sensory deprivation--think a brain in a jar without senses or a physical body--be capable of learning anything about reality? Of learning anything at all?

If you think that all the things exist only because of the humans, there's a high risk to infer that we shouldn't have to respect anything but the human

And yet I respect many things. Me, a godless heathen. The majority of those who act badly have some religion, so idea that there is more out there.

I had the impression that intellectual property was somewhat devealued in your mind because of piracy.

It's devalued because it can be copied, for free, at no proven loss to the creator.

More soon---gotta go do some work stuff.

Alan Spade said...

"I had the impression that intellectual property was somewhat devealued in your mind because of piracy.

It's devalued because it can be copied, for free, at no proven loss to the creator"

Then imagine a surgeon on the verge of dying. He doesn't have time to use the official channels, so before dying he directly self-publishes his last researches in an ebook, The Ultimate Cure against Cancer.

It turns out that the book really contains a cure for many forms of cancer.

Would you say that the book is devalued because it has been released as an ebook?

You seem to value Wikipedia, yet it's free.

It's necessary to understand that books, either fiction or non fiction, are the results of the life experiences of the author, of all the education he received, in short, of all the investment society and his parents have made on himself, and of his personal investments on himself.

It's invisible, but books represents in fact a lot more money than we may think.

To think that books are invaluable and that they shouldn't be valued, or priced, but only shared is a point of view that I respect. In a perfect world where all the economic problems would be settled, I would certainly agree.

But to address these problems, we should act in a cooperative way and not in a competitive way, by sharing resources and work. That is not the case, and that's why in my opinion the solution must be a global one, encompassing both property and intellectual property.

Intellectual property is easy to hack? All the more proof that it needs to be protected and cared for (and when I say "protected", the best way is by education, not using DRM).

Craig Hansen said...

Joe,

I am going to expose myself to a lot of ridicule, I suppose, but I'm not quite on the same page as you on this one. And that's despite being a person who generally likes and agrees with a lot of what you post.

Not that we're that far apart, but I do differ.

This is a topic I have mixed and conflicting emotions about. But I'll try to get the gist across.

Generally, I want copyright laws to favor the artists and their heirs. Not companies. I suspect we agree to a degree on that point.

I get passionate at times on that point because of how companies have treated creators over the years.

I think of all the income generated by DC Comics over the decades, and how much four men, Jerry Seigel, Joe Schuster, Bob Kane, and especially Bill Finger (who even today isn't mentioned as a co-creator of Batman, thanks to Bob Kane's selfishness) and while I'm not saying they should be getting a lion's share of sub-products they never directly touched themselves, the fact that all four of them pretty much died in poverty while DC and Warner Brothers and now AOL-TimeWarner or whatever it's all called, have raked in billions without any recompense to the guys who thought up Superman and Batman, well... that just seems wrong.

That's not even getting into how Marvel messed over Jack Kirby and Steve Ditko over the years. At one point, I had about 100 shares of Marvel stock in the early 2000s when their stock was cheaper than most of their comic books. Had I held onto it for another 10 years, I'd have been a millionaire due to stock splits and ultimately the Disney takeover, but I sold the shares too soon... shortly after the first Spiderman movie was released.

(I also had WWE stock at the time, and had I done the smart thing and dumped it at $15 a share and reinvested it all in Marvel, the short term loss of 2/5ths of my WWE investment would have turned that 100 shares into at least 250 shares, and then I would have been a millionaire even after capital gains taxes...)

But had I held on to that 100 shares, I'd have ended up with more money than Jack Kirby, Steve Ditko, Bob Kane, Jerry Seigel, Joe Shuster, and Bill Finger all died with. Sort of insane when you think about it.

I kinda suspect you'd more or less agree, to some degree, on that.

Craig Hansen said...

However, I don't agree with your solution, which is a watered-down version of some of the more extremist voices in this discussion. (Those who advocate that because "information wants to be free," copyright should basically not exist at all.)

Those voices (not yours) hate content-creators as much as they hate big-business. And I'm sorry, but if the only way you can write is by playing in someone else's sandbox, then I call that mimicry, not authorship.

Not that I don't understand the fan-fiction inclination. In the 1990s, I wrote some Twin Peaks stuff on a message board just because I wanted to know what happened AFTER the series ended... I didn't want "the good Dale" to be trapped in the Black Lodge forever.

(Fortunately, he won't be come 2016. And I'm sure Mark Frost and David Lynch's version will be better than my old stuff.)

I have a wonderful take on the Daredevil character that I've carted around for years, involving the more lawyerly side of the character, that I've always thought of as "Nelson vs. Murdock" and is kind of a take on The Practice set in the Marvel Universe.

But to do it, I'd need to work for Marvel Comics and I don't really have the inclination (or connections) to make that happen.

That's fine with me. I have plenty of my own ideas.

But complicating all that is this:

I'm not comfortable with the reality you suggest where ANYONE could license ANY take on someone else's world and do whatever they wanted to with it.

Example: I grew up watching Peanuts. Loved it. As an adult, I now watch Family Guy and South Park and love that.

But... I don't want Matt and Trey, brilliant as they are, taking over Peanuts and creating a movie where Charlie Brown beats the snot out of Lucy for pulling that football away at the last second one too many times. I don't want to see Schroeder finally go berserk and re-enact a Buffalo Bill scenario with Sally Brown as his victim.

Would it entertain some folks? Sure. But it's antithetical to everything Peanuts was and should be, as created by Charles Schulz.

A lot of this "derivative of derivative of derivative" stuff you mention gets worse and worse with each iteration.

Craig Hansen said...

I mean, I understand how significant A Christmas Carol is, but did we really need to see the tale retold on Happy Days, WKRP In Cincinnati, Cheers, and (probably) even Caroline In the City? I'd suggest not. I'd suggest it's drug-addled screenwriters being lazy.

Also, citing what a billionaire like Warren Buffett does, does nothing for me. How he handles his heirs is his business, but his choices mean jack-all to me. Like you, I come from virtually nothing when it comes to money. But if I ever get fortunate enough to build up enough IP or a passel of money to pass on to any heirs I have? What I do with that, or who benefits, should be MY call, not Warren Buffett's. So that point is, to me, pointless.

I know a lot of this is scatter-shot and not organized. I'm just trying to make sure I get all the things I want said out.

I'm with you on the idea of contracts between the creator and his licencors ending upon the death of the creator. I'm fine with that, at least to a degree.

Although that would have given Rick Rubin an awfully abbreviated window to benefit from his work with Johnny Cash late in Cash's life, and Rubin, I think, is just about the only producer Cash ever worked with who did right by Cash.

But just because I'm not comfortable with a company benefiting for 70 years after an artist croaks, doesn't mean I want to shortchange the heirs or have a free-for-all.

After all, Steve Ditko may be dead and Stan Lee may be alive, but even in the world of Big Entertainment, it's pretty messed up that Marvel had to beg Sony to use Spiderman in Captain America: Civil War. The very idea that Spiderman can't be an Avenger (which he's been of late in the comics) because he's "not part of the Marvel Cinematic Universe" is just ugly... same goes for Marvel's own lack of direct control over the Fantastic Four and the X-Men, or even the word "mutant."

Craig Hansen said...

All that corporate BS aside, here's what it comes to, for me:

If a character I've created ever become popular enough to be valuable, I'd want my heirs to benefit if I'm no longer around.

Here's why: my heirs are MY heirs. It's pretty much that simple. Why wouldn't I want them to prosper in my absence?

I sure have a lot more interest in the well-being of my heirs than the well-being of some fellow who wants to write something or film something and not have to be responsible or even respectful of the source material I created that he or she is doing a derivative work off?

I mean, sure, right now no one's dropping me emails, begging for the movie rights to The Woodsman.

But it might happen someday, and if it happens after I'm gone, I'd want my wife or kids (if we ever have any) to benefit, even if I'm not around to benefit.

Now, is there a big difference between Life plus 70 or the Life plus 40 you suggest? Not a big enough difference for me to get worked up over.

But I do take exception to the idea that my heirs should have "no say, only financial benefit."

I'm sorry, but my wife knows me a lot better than some filmmaker or aspiring novelist who decides the best way to make a name for themselves is to set pen to paper for The Woodsman 2: Steve Returns. I'd want my heirs to have some level of veto power.

Craig Hansen said...

I think one of the unforeseen consequences of the world you propose, Joe, is that it would benefit corporate greed even more than the current system.

Spider-Man is considered a hot property, even though the first two Raimi films are generally agreed to be the best and it's been downhill ever since.

Hollywood hot-sheets whine and moan that the new Spider-man who will appear in Captain America: Civil War will be "the third reboot in less than 15 years."

But as broken as that system is, heck, consider a world where any studio that wanted to could chuck a Spider-Man movie out onto the market, and you could have two, three, even four or more actors playing the character simultaneously.

The free market argument is "the best version would thrive and the other versions would fail," but that's a lot of fail.

(I don't know why, BTW, movie critics can tolerate James Bond being re-cast every 10 years or so, but cannot handle Spider-Man being treated likewise. Doctor Who gets recast every 3-4 years and folks can handle that just fine!)

I guess what I'm saying is, if all anyone had to do after a creator's death is pay a license fee and do whatever the heck they wanted and no one could say boo about it? That has its own downsides, too.

Hollywood is already plenty bankrupt of ideas, but if we lived in a world such as you envision, we'd see five Iron Man movies being made every year, instead of RD Jr. knocking it out of the stadium every time he suits up every couple years or so.

With most of Sherlock Holmes in the public domain, we already see some of the downsides of the world you suggest.

BBC's Sherlock is a masterful re-imagining, done brilliantly by a great cast and awesome writers.

But the two movies with Robert Downey Jr? Pretty good, but a bit more Hollywood-y.

Then there's CBS's godawful Elementary, in which Holmes comes across as a faint, not-that-smart rip-off of Patrick Jane from The Mentalist, or a dim-witted CSI clone show.

And now I hear they want to launch another film franchise, starring Magneto--- err, Ian McClellen, as the same character under the banner "Mr. Holmes." Holmes at 80-something? I doubt the opium/coke-addicted Holmes would have lived as long as Sir McClellan.

It's all gonna lead to Holmes-exhaustion and I fear even the best version (the BBC drama) will suffer for it.

All that said...

I like the KindleWorlds idea. I especially like your version of it, since it protects original characters created by the contributor, as well as your characters created by you.

I have a KW project I'm doing for someone else, mostly as an act of friendship for a friend who'll soon be granted their own KW world.

But mostly I'm interested in doing my own stuff.

The world won't be robbed of anything significant, if I never write NELSON VS. MURDOCK. Daredevil fans will never know the difference. ;) If Marvel ever invited me to, I'd consider it. But that's the only way it'd happen under the current copyright law... and I'm cool with that.

But I guess, yeah, my overall point is that I think there are some "corporate greed" reasons why your vision of copyright reform wouldn't be much better than what we have now, and in some ways would be worse.

Joe Konrath said...

Would you say that the book is devalued because it has been released as an ebook?

We're using different definitions for the word 'value'.

Intangible things have less monetary value than tangible ones. They cost nothing to reproduce and distribute. Certainly some intangible things have entertainment value, or scholarly value, or societal value, but I'm talking monetary.

A CD or vinyl is worth more than mp3s, because besides the music, the owner also gets a physical object.

If something can be copied for free and the creator doesn't lose anything, the laws of supply and demand don't apply. There is no scarcity. So there is less value.

Intellectual property is easy to hack?

If it is being hacked on a widespread scale, this is what society wants.

All the more proof that it needs to be protected and cared for (and when I say "protected", the best way is by education

LOL. Like the war on drugs educated us not to smoke pot?

It has been proven, time and again, that education can't change a person's desire to do otherwise. Pre marital sex, masturbation, alcohol, homosexuality--these have all been prohibited by societies at one time or another. Prohibition doesn't work. People do it anyway.

I keep thinking of those stupid MPAA commercials that say piracy is a crime, comparing stealing a movie to stealing a car. It isn't. Even the dimmest person knows that. And a good number of movies I've downloaded had the scare ads included in the download.

Joe Konrath said...

I don't want to see Schroeder finally go berserk and re-enact a Buffalo Bill scenario with Sally Brown as his victim.

So because you don't want to see it, it should never be allowed to exists?

You see how that's wrong, don't you?

If it were up to me, I'd abolish all deity-based religions, racism, sexism, and homophobia. But it's not my right to tell others what they can and can't do, no matter how harmful I think those things are.

You're free to not watch South Park do a Peanuts takeover. But don't restrict the freedom to make it, or allow guys like me to enjoy it.

Joe Konrath said...

What I do with that, or who benefits, should be MY call, not Warren Buffett's

I point to Warren Buffet not because he's a billionaire, but because he understands the value of hard work, and how money becomes valueless when it is just handed to you (something echoed in the many stories of lottery winners who kill themselves or go bankrupt).

A sense of entitlement isn't a healthy thing. A child who grows up thinking they'll never have to work is a Dr. Seuss or Roald Dahl cautionary tale.

Sorry, my children and grandchildren should learn the value of work, not coast because they inherited my IP estate.

Joe Konrath said...

The free market argument is "the best version would thrive and the other versions would fail," but that's a lot of fail.

99% of everything fails. There's always a whole lot of fail.

Yet we still find media worth our time to enjoy.

It's simple math. The more media available, the more their is to enjoy. That's how the Internet works. But Big Publishing and Hollywood have limited what has been available. So has copyright.

I've seen Dünyayi Kurtaran Adam at least five times. I love it. I'm happy it exists. I got my pirated copy on Demonoid. As far as I know, a legal copy has never been released.

I'd like to see more of this, not less.

w. adam mandelbaum esq. said...

Joe, no matter where you stand on copyright, you might not want to admit to possession of pirated material in a public forum. It is not in one's best interest to do so. Respectfully offered.:-)

Alan Spade said...

"but I'm talking monetary".

I get your point, Joe. We both knows that monetary value doesn't equate real value, and that the discrepancy has exploded with the Internet. That's the point I wanted to make.

I'm not so sure that society wants IP to be free. People have limited wallets, but they don't want a limited access to culture.

Hence the success of offers like Kindle Unlimited.

If people are willing to pay sometimes for culture, it's because they are educated. Otherwise, why would they continue to pay?

People, fortunately have a sense of responsibility and doesn't always act like a child in front of a cooking-pot of chocolate.

Prohibition leads nowhere. Education can also be self-education: when a reader becomes an author and realize how hard it is to make money, his awareness is raised.

But I think that the authors who are also bloggers have a responsibility to help people become aware that a book is a lot of work and should be paid if possible.

Maybe it makes more business sense in the short term to flatter the readers who download illegally by saying that information "wants" to be free. But in the long term, it's a business nonsense.

Joe Konrath said...

you might not want to admit to possession of pirated material in a public forum.

Adam, I openly encourage people to pirate my work. I'm pro piracy, and that's pretty well known.

That said, I like stuff. Tangible stuff. Everything I've pirated, I get legal copies of. I like having a hard copy on the shelf.

I also believe artists should be compensated for their work. That isn't antithetical to anything I've said here.

Joe Konrath said...

But in the long term, it's a business nonsense.

Certainly it seems like common sense that it is business nonsense.

But is common sense right?

I've yet to see a single convincing study that piracy harms artists, when billions have been spent combatting piracy. It's the war on drugs all over again; overwhelming evidence that pot isn't as harmful as alcholo or cigarettes, but billions (trillions?) spent to prohibit it.

I've pirated media that I wouldn't have bought otherwise. Then I go and buy that media. I'm not alone.

I've done experiments where people have pirated me, and saw my income rise. I'm not alone.

I'm not convinced that current copyright law helps IP creators. My gut tells me we'd all be making more money if it was changed according to some of the points I've made here, and that society would be better off.

Whether I'm right or not remains to be seen. Copyright laws certainly help protect big business. Will they protect indie authors the same way? Or will indie authors lead the way in copyright reform by doing things like Kindle Worlds?

We've seen how many free ebooks indies give away compared to legacy publishers. We've seen how indies charge less than legacy publishers. There are no legacy pubbed worlds in Kindle Worlds--the authors own those rights.

Society seems to want laxer copyright restrictions. Tough to fight against what the majority wants...

W. ADAM MANDELBAUM said...

Check out YouTube for Harlan Ellison on creative piracy folks. For true believers in author rights it articulates the position rather well. For those who side with Joe's point of view, there is no better spokesman than Joe. In law, I was involved with a case where piracy DID increase the sales of an artist's work, but that didn't justify the breach of copyright itself, not in theory anyway. The dynamic of differing viewpoints on this issue, the intelligent dialogue, is valuable--there is no definite right or wrong, although there may be write and wrong.

Broken Yogi said...

But as broken as that system is, heck, consider a world where any studio that wanted to could chuck a Spider-Man movie out onto the market, and you could have two, three, even four or more actors playing the character simultaneously.

Why is having more creativity and more choices a bad thing? I think it would be great if characters like Spiderman that have entered the popular culture could be endlessly used as the grounds for creative expression by others. That's how most of human culture for most of human history worked. Let the whims of the popular marketplace decide what works and what doesn't. And the creators of those characters still get paid. They just don't get to control everyone out there. I think that's a much better way of doing things.

Joshua Simcox said...

"I have a wonderful take on the Daredevil character that I've carted around for years, involving the more lawyerly side of the character, that I've always thought of as "Nelson vs. Murdock" and is kind of a take on The Practice set in the Marvel Universe.

But to do it, I'd need to work for Marvel Comics and I don't really have the inclination (or connections) to make that happen."

Craig, you'll never meet a bigger Daredevil fan than me, and your idea is one I'd love to see executed--IF you could write it as well as a Frank Miller, or a Kevin Smith, or a Brian Michael Bendis.

Because copywrite law prohibits anyone and everyone from publishing their own Daredevil stories, we've been given so many amazing Daredevil stories because Marvel has the power to pick who they want to write for the character. And obviously those decisions are made carefully. There's something to be said for that.

Do I really want to live in a world where godawful Daredevil fan fic can occupy the same shelf space as the Miller and Bendis runs? The easy answer is absolutely not. But NELSON vs. MURDOCK is something I'd love to read, and I'd kill to be able to take my own crack at the character. And those are two things that will probably never happen because getting a green light from the right people would be virtually impossible.

No easy answers here.

- Joshua

Craig Hansen said...

Josh,

Daredevil is one of the staple characters of my youth. When I first tried Frank Miller's Daredevil, I hated it. It seemed too dark for me.

A few months later, I tried it again because I liked one of the covers and was blown away, and did everything I could to go back and get what I'd missed and initially dismissed from Miller's run on the title. I became a full-on fan of Miller's work by my sophomore year of high school. By the time he moved over to Batman and did Ronin and Dark Knight, then went back to Marvel with David Mazzuchelli on art for Born Again, I was already well on board.

There are only a few runs on the title I really respect.

Miller. Bendis. Smith, though somewhat reluctantly.

I'd never claim to be them. As an adult, I'm a different kind of storyteller. But I think I'd have a few good storylines in me, and one "big event" tale that, paired with the right artist, would make for something close to a memorable run. Maybe. Who knows?

Of course, a lot of comic book geeks would dismiss the entire concept of Nelson vs. Murdock as ret-conned BS. That's fine. It IS a prequel story and concept.

But it's a tale I'll never tell, I imagine, and that's fine. It's Marvel's playground, not mine, and I seriously down the entire MU is gonna play KindleWorlds any time soon. ;)

I have plenty of my own characters and tales. I don't think the world is missing anything vital to life, just because I'll never write Nelson vs. Murdock with David Mazzuchelli on art. ;)

Fun Fact; At about the age of 15, I heard Doug Moench was leaving Moon Knight. I sent Jim Shooter a query with an outline for 25 issues and two annuals. The storyline used five established Moon Knight foes, introduced two new ones, and featured a story arc antagonist that was not super-powered at all: an incorruptible IRS auditor checking into Steven Grant's finances. The finale of the run would have had MK facing a threat from two of his greatest foes, with a resolution that resulted in the IRS auditor discovering his suspicions about the Grant-MK connection were true, but had him falling in the crossfire between a costumed MK and the two foes he was battling.

So it would have been a victory/defeat sort of ending... the threat of the IRS auditor, which was actually the biggest threat to MK, is eliminated by his foes. The accidental death is what spurs MK on to victory, and not having the auditor around to spill his secret ID is a type of victory, but it comes at a cost, a defeat of sorts.

Had I been commissioned by Shooter to do that run and he'd been interested in a further storyline, I would have begun with Grant/MK in an asylum, suffering another break and introducing a fifth personality to his MP disorder as a result as the natural result of the previous storyline, and rebuilt him from there.

Shooter (who got his own break writing in comics a couple years younger than I was at the time) obviously went another direction.

Probably in part because that was all before the internet so if you wanted to work in comics, you almost had to live in New York and work in the Marvel Bullpen. I lived in Minnesota at the time.

But out of all the Marvel queries I ever sent, that was the one Jim Shooter actually responded to personally, with the four-word reply:

"Close, but no cigar."

Closest I ever came to working for Marvel.

Craig Hansen said...

Joe wrote: "You're free to not watch South Park do a Peanuts takeover. But don't restrict the freedom to make it, or allow guys like me to enjoy it."

Me: Hmm.

First, I said I'm a fan of South Park as an adult.

Second, last I checked I have exactly zero influence over the Schulz estate or Matt-n-Trey, so responding with "don't restrict freedom" to me is seriously off-target.

As I recall, I said there are some benefits to the current restrictions, and I simply used that as an example.

Oh, and the episode of South Park that hooked me was Mr. Hankey, the Christmas Poo, in season one.

The whole episode was a send-up of the Charlie Brown Christmas Special. I didn't mind and it's hilarious.

All I said was, the world as you envision it would not have South Park paying tribute to Peanuts: it would have Matt and Trey turning Peanuts INTO South Park.

And for my mileage, that's why I see some benefit to copyright protections, and it's an area where we differ respectfully.

But no, Joe, rest easy: I'm not the Montgomery Burns clipping the wings of Matt and Joe from turning Linus into Cartman. Not one of your better fisks.

;)

Craig Hansen said...

Joe,

I know it's not exactly the Hulk-Superman throwdown you envisioned, but I think you'd like this:

http://www.amazon.com/dp/B00AAJR34M/?tag=craighansenco-20

Ultimate Wolverine vs Hulk

Script by Damon Lindelhoff

Art by Leniel Francis Yu.

144 pages of awesome. :)

Misty said...

I don't know that I agree with everything you've said, but it's an interesting debate.

My question is... What about creators who genuinely don't care about the money? People who care about what they have to /say/, and want control over their creations for that reason?

Yeah, people are going to do what they're going to do, but I don't think it's unfair for an author to say, for example, "I understand you want to write about a version of Harry Potter who grows up to be a furry and boinks the hell out of a grown leather-glad Ron while a drunk Hermione watches, but.... That's not what my world is about. You're shitting in my sandbox, so stop it. If I catch you publishing stuff like that again, I'll sue you." :P

Not something I would probably /do/ as an author, because fans will turn on you pretty quickly, but I think we could stand to grow up as a society and start enforcing the wishes of creators. At least while they're still alive.

Anonymous said...

@alan spade:
1) Not only is Dylan far from dead, he is far from invisible. He has been in the news for new musical work, publications of original poetry, an autobiography, accusations of plagiarism perpetrated by him, accusations of plagiarism in works about him, new critical assessments of him, and retrospective compiled releases of his work, literally hundreds of times over the last decade. Not to mention that he is still actively touring, and hosted, until very recently, a quite popular satellite radio show. He is not in hiding, nor has he slipped from the cultural map-- we are in the midst of a Dylan renaissance that it would take truly active effort to remain unaware of.

2) You don't need to ask him anything (even without a medium). Dylan quite famously said that Hendrix's version of All Along the Watchtower was not only better, but was the "true" version of the song, regardless of being a cover.