Last weekend Mark Helprin published an op-ed piece in the New York Times that essentially argued that copyrights should exist in perpetuity. The essence of his argument is that if he writes something, his descendants for all time should be able to earn a living off of that. That’s kind of like saying that my current employer should continue paying my children and grandchildren and great grandchildren ad infinitum for the work I do now. This is an absurd argument on the face of it and Helprin comes across as a fool for even putting the idea forward. Today Techdirt has a wonderfully articulate rebuttal of Helprin’s idea starting from an explanation of the difference between physical and intellectual property.

The purpose of property is to better manage the allocation of scarce resources. Since the resource is limited and not everyone can have it, property rights and property law make complete sense for a civilized society, allowing those with rights to the property to buy, sell and exchange their property. This allows for resources to be efficiently allocated through commerce and the laws of supply and demand. It’s a sensible system for the best allocation of scarce resources. However, when it comes to infinite resources, there’s simply no need to worry about efficient allocation — since anyone can have a copy.

Perhaps what we need to do to make some progress in this whole discussion is to change the terminology to words that are more accurately represent what we are talking about. The whole term intellectual property should be discarded immediately in favor of Ideas. Once we are talking about Ideas the tone of the argument changes. When a company like HBO or Disney starts talking about getting a perpetual monopoly (and a copyright or patent is a government granted monopoly) on an Idea, it might start getting average people’s attention so that they stand up and say NO MORE! Check out the rest of Techdirt’s article here.

There was a time not so long ago when if someone produced a creative work such as a book, movie, a piece of music or any number of other types, they were able to register a copyright on that work and have a monopoly on profiting from that work for a limited number of years. This concept was set down in the US Constitution. This was a good idea, because it encouraged creators to produce new works. They could make a living by producing and selling new works without having to find a patron to support them like artists did prior to that time. By limiting the time of the copyright they were also encouraged to produce new works, because they couldn’t live off the old ones forever. Once the copyright expired, the work would become part of the public domain and anyone could copy it and produce derivative works without seeking permission. This is all perfectly reasonable. However, over the last half century more and more of the creative works have come to be owned and controlled by an increasingly small number of increasingly large companies. Because of their size these companies such as Sony, TimeWarner, Disney, NewsCorp and others have the resources to fund political campaigns and lobbyists. In the last three decades this has resulted in the gradual strangulation of the media commons and the public domain.

They have gotten the copyright laws changed from and opt-in regime to an opt-out regime. Previously a work was public domain unless the creator registered a copyright. Now a work is automatically copyrighted unless the creator puts it into the public domain. The terms of copyrights are now extended beyond all reason as well. At one time, a copyright owned by a company would last for 14 years. The most recent extension in the late ninties has brought that up to 95 years. Individual authors have their lifetime plus 70 years. Coincidentally the last two extensions have occured just as the Disney copyright on Mickey Mouse was about to expire and only after intense lobbying by Disney in congress. These extensions mean that few of the works created in the past century are moving into the public domain. Disney has spent enormous sums of money to strangle the public domain while profiting handsomely from it. Animated movies such as the Hunchback of Notre Dame and Treasure planet are based on stories that are in the public domain.

In an attempt to reverse this trend a few years ago Stanford University Law professor Lawrence Lessig came up with the concept of the creative commons license. A copyright holder has the right to license their works to others while they still control the copyright. What Creative Commons does is provide a series of graduated licenses with various restrictions that creators can use and apply to their works. If someone creates a song or short film, they can apply a creative commons license to it and give it away or sell or do whatever they want. For example you can use the non-commercial, share-alike, attribution license. In this case other people can share your work but they can’t sell or use it for commercial purpose without permission, and they have to provide attribution to where it came from. They can also create derivative works without permission but under the same set of restrictions. If you release a song under this license someone else can remix and share it under the same license but they have to provide attribution to the original creator. There is also a no derivative license, or you can skip the share-alike which allows others to re-distribute derivatives under a different license and so on.

There is one common element to all the creative commons licenses though. If you are redistributing someone else’s work, you cannot add any copy restrictions that weren’t originally there without the creators permission. That means you cannot take a band’s creative commons licensed song and add DRM without asking. This is where the Microsoft Zune that I wrote about the other day comes in. The song sharing feature that will be the main selling point of the Zune explicitly violates the creative commons license. When one Zune owner sends a song to another Zune, a new layer of DRM automatically added to the file before it is sent. This is what prevents the recipient from listening to the song more than three times or for more than three days. It doesn’t matter what the source of the original song was, this DRM layer is added. If I send a song from the band Lorenzo’s Music to another Zune player, DRM is added. About a year ago, the band decided to license all of their music under Creative Commons and make MP3s available for download from their site. It is a violation of their license to added DRM before sharing their music. Of course the RIAA doesn’t care if you violate someone else’s license as long as you don’t even think about violating theirs.

A lot of bands have decided give away their music for free under creative commons because they have realized they can get more fans and exposure and ultimately make more money if more people hear their music. I urge you to find creative commons music and other works and support these artists, and don’t give your money to Microsoft.

 

 Lorenzo's Music - I'm doing Fine [3:07m]: Play Now | Play in Popup | Download

For the past couple of years Major League baseball has been fighting a legal battle with a company called CBC Distribution over baseball statistics. MLB has been claiming that the statistics of the players in baseball games has been their intellectual property. This idea is ludicrous on the face of it. MLB did not create anything new with these statistics. Any observer of a ball game can record what they see. They are recording their observations of a public event. For an organization like MLB to lay claim to these observations is like the owner of a beach front hotel claiming copyright on a guests description of a sunset on that beach.

CBC distribution is a company that has been compiling and selling baseball statistics to to people running fantasy baseball leagues. While I have no interest in either baseball or fantasy sports leagues, I think that this whole case has been another case of a big business abusing the intellectual property system. As I have explained before the whole premise of the copyright system is to allow the creators of new or derivative works to have a monopoly on profiting from those works for a limited period of time. This is perfectly reasonable. When someone writes a book or or creates a piece of music, they should have an opportunity to profit from it. When a baseball game is played, and someone records who got hits or made errors, MLB should not have a copyright on that information.

This week U.S. District Court Judge Mary Ann Medler in St. Louis issued a 49-page summary judgment that dealt a blow against abuse of the copyright system. She ruled that “Baseball and its players have no right to prevent the use of names and playing records”. Hopefully other abusers will see this ruling and realize that they cannot control everything. It is good to see that a judge has exhibited some common sense in an important case like this, and ruled accordingly.

The other day I wrote about the Supreme Court dismissing an important patent infringement case without ruling on the merits of the case. This whole case got me thinking. I have been speaking to people for several years about the problems with the intellectual property system. To most people this seems to be an arcane subject that has no real bearing on their lives. After all they’re not inventors getting patents, or writers or film-makers or artists worried about copyright. But as technology advances, and more and more people write blogs, post there photos and videos on the web, and record podcasts these become real issues. My son Max recently started doing a music podcast called MewzikCast. I had to explain to him why he couldn’t play some of his favorite songs on his show. Big record companies pay millions of dollars a year to companies like Clear channel to get songs played on their radio stations. But if someone doing an independent podcast wants to play the same songs, there is no way to do it. And if you do, they will come after you. And the reality is that podcasts are helping to sell music.

However, another very real cost of this system is one that we all (at least in the United States, less so in more enlightened countries) have to pay every day. The vast majority of Americans are familiar with the skyrocketing cost of health insurance. After a brief respite in the the latter part of the 1990’s when HMOs started to catch on, the rate of inflation of health care coverage has been on a very steady climb for last 5-6 years. Probably the single biggest driver of this inflation is the cost of prescription drugs. One of the reasons for these costs is the patent system. When the pharmaceutical companies develop a drug, they patent it. This gives them a monopoly for a limited period of time for that drug. When you have a monopoly on a product you can charge whatever price you want. The premise of patents and copyrights as defined in the constitution is to promote progress by giving inventors and artists a period of limited monopoly in exchange for disclosing their discoveries and works publicly. In this way the creators get make some money from their works while ultimately the works pass into the public domain so that others can build on it. This premise is one of the contributors to the incredible technological and cultural advancement of the last two centuries. However, as these monopolies have helped to create fortunes, the fortunes have led some to do whatever they can to preserve the cash flow, without necessarily creating anything new or useful.

This has been manifested in several ways. In the entertainment industry, copyright holders (and not that these copy right holders are not necessarily the creative people but the holders of the copyright), there has been continued drives to extend the period of copyright, and greater restrictions on what can be done with copyrighted material. In the area of patents, patent holders have tried to tweak their patented products to get new or extended patent protection. They have also tried to get broader less specific patents. An example this would be a drug company developing a new treatment for some medical problem. After getting a patent and getting the drug on the market for some number of years, they develop a new variant with the same drug in a new form. For example, the drug may initially come in a tablet form. Then it is developed in a capsule form. Now having a drug in a capsule form may be an innovation in itself and patentable. However once this has been done, putting other drugs into this form is no longer innovative. Similarly developing extended release versions might also be patented, even though it really shouldn’t be. In this way pharmaceutical companies have manipulated the patent system in order keep drugs under their control. By keeping a patent in force on brand name drugs, they keep generic versions off the market.

If you have ever compared the prices of generic and brand name medications you know how huge this gap is. For example, I take loratadine which is sold under the brand name Claratin for my allergies. The brand name stuff sells in a box of 40 tablets for about $16 I bought a bottle of 120 at Target for $17 for the generic version. It is the exact same drug for 1/3 of the price. This example is available over the counter now, but similar comparisons apply to must prescription drugs. The pharmaceutical companies do everything they can to preserve their patent protection as long as they can. Other examples of abuse of the system are of the type by Metabolite to patent a basic chemical relationship. They get patents on overly broad or general ideas. Health care systems are then forced to pay exorbitant fees to conduct tests, or pay for medicine. This affects each and every one of us. If we can afford health insurance we end up paying much more. More people than ever cannot even afford insurance. For the rest of us we end up paying for all the un-insured either through the taxes we pay to support Medicaid or through the higher fees charged by hospital to cover the costs of the emergency care they have to provide to un-insured patients.

The patent system need to be fundamentally changed with the onus put on the applicants to demonstrate the true innovation of their “invention”. There should also be an open comment period after an application is published so that people can shoot holes in it and demonstrate prior art before a patent is granted. It needs to be easier to show that an idea is not valid for patenting before granting a patent. I will be discussing this last thought more in another post I am working on and will publish shortly.

One of the great things about digital media and the internet in recent years is the remix culture. One of the best I have seen is the 10 Things I Hate About Commandments which I found via Sivacracy.net

Of course if the big media companies had their way, no one could create works like this without paying insane amounts of money for the privilege of using the footage from the film. This kind of creativity is why the current copyright law needs to be rolled back and restricted not expanded. Clips like this clearly demonstrate the need for the public domain.