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| Uppsala Universty, Sweden |
The operating principles in question are called "public choice theory." Judge Posner assumes familiarity with these principles about the intervention of government in various industries from transportation to communication to farming. One effect is to create cartels that can either produce profit, or to have those profits turned into costs. Somewhere in all that activity of lobbying and litigating, the public interest is achieved by privately funded organizations representing various interests. To the consumer it is a matter of indifference which it is. When Sprigman and Grimmelmann refer to the "cost without benefit" of perpetual copyright, they allude to the principle of government regulation that stagnates or closes markets by imposing costs (regulation); I surmise this is a chapter out of the "public choice theory" textbook.
Let me return to the cleaned up talk. [http://www.aei.org/docLib/20040608_Landes.pdf]
The piece is divided in three parts. The first contains the part about the growth in the field of IP and the associated statistics. The second part introduces "PCT." The third part tries to bring PCT into the examination of IP.
Judge P&L spend several pages in explaining public choice with the understanding that it does not really explain the numbers in the three illustrations. In the final part of the cleaned up piece, some 14 pages out of 27, we get more specifics on "public choice" and intellectual property. What this means, initially, I have gathered, is that gaping holes in the law have to be plugged.
PCT keeps track of whether copyright statutes, for example, expand rights or contract rights.
For example, before '92, unpublished materials languished in a perpetual limbo with fair use, even of archive material in libraries, prohibited. [p. 13-14] By the same token, in trademark, after '92 real sales had to be demonstrated before a trademark could be registered removing the practice of banking trademarks by parasites. [p. 14] It is nice to have a theory for things like that; I tend to think of it as walking behind the congressional elephant with a bucket and a shovel.
P&L, however see this as an asymmetry in the development. Fair use of archive material for scholarly purposes is a restriction of copyright, not an expansion. A similar restriction is the requirement to have an actual product before at trademark can be registered. In judicial world this is a counterweight to "life plus 50." A thousand scholars working in archives on the hand written letters of historical figures even the scales of justice with Mickey and Donald and Alice and Pocahontas on the other side.
The fact that forbidding all use including citations of the correspondence of important and deceased figures of historical importance would make biographies hard to write does not enter the equation. Such a law, uncorrected, would bring forth Mr. Bumble Esq. from the pages of Dickens resting securely in the public domain. We have to stop pretending there are balancing politico-economic forces determining the events. We are simply talking about very narrow interests of the low-end entertainment industry taking the education / research / scholarly interests down. Disneyland vs. a electronic library of 12 million books delivered around the world. Disney by a knock out. I mean who needs out of print electronic books?
Of course the ultimate expansion of copyright would be to forbid reading. Books could be bought, but as long as they were not read, the sentences contained therein would be safe. With the exception of romance novels and detective stories, we may already be part way down this path anyway. Judge Posner writes tirelessly and publishes several books every year. His interests in political economy do not seem to allow interests in the methodologies of digital humanities. Yet his view of political economy presents a triangle of high stakes economic gambling with the US Code as the hypotenuse and the active participation of Congress and the courts as the remaining sides.
Yet libraries and the humanistic tradition of scholarship going back to the classics and the dawn of civilization are unaware - to their detriment - that fake Beanie Babies are shaping a set of opinions of a sitting judge that will eventually cost them access to contemporary texts. There may have been a time when piling books in libraries and building a fair-use fence around them was sufficient. I read the 1909 act in that light. Books represented 4% of federal copyrights - fair use citation had established itself in the second half of the 19 c. in the positivist methodologies in the humanities. Economic dislocation in musical compositions, popular journals of serials and photographs justified the doubling of federal copyright, perhaps.
The insufficiency of the original conception of copyright to protect a very few valuable properties have taken copyright far from the promotion "of Science and the useful Arts." Science and the useful arts may well shift for themselves.
Useful arts (also called technics) are concerned with the skills and methods of practical subjects such as manufacture and craftsmanship. The word has now gone out of fashion, but it was used during the Victorian era and earlier as an antonym to the performing arts and the fine arts. [wiki: useful arts]
I am sure that the founding parents had an idea that a certain class of books dealing with history, philosophy and literature was included under science (knowledge) in the most general sense. The boundaries of fields of knowledge were not so well defined in 18c. If the "useful arts" are an antonym for performing arts I wonder how and where intellectual property lost its way. No doubt the statutes have language to justify the expansion into the performing arts and into the fine and not so fine arts.
The Republic does lose things great and small. It may seem that an electronic library of 12 million books and a budget of 100 million for five years is not a small thing. Yet compared to the investment and operating costs of a single Disney theme park, 100 million is small indeed. A 100 million could be lost at the food court between Goofy's dog house and the house of the Three Little Pigs. Will there arise a legal champion who can restore the primacy of science and the useful arts over derivative trinkets based on popular entertainment? Will someone keep the ship of state from trying to dock permanently at Disney harbor?
Donors can be found to build new libraries, spectacular libraries. But why should money be wasted in lobbying Congress. Google and the world-wide interest in indexing text may well rock Judge Posner's world. Suddenly there are internet and indexing interests worth billions more than Disney in yearly net income with an interest to set copyright to life minus 70. If the money is there how long will Congress maintain its present course. Time to jiggle PCT.
Alas, the third section, shows the complete failure of public choice theory to explain the digitization of library book a few years after this work was published. P&L theorize the exclusivity of copyright "showers rents on copyright holders." [p. 14] Copiers, however, working in the same market as authors and publishers, "can hope to gain only a competitive return." This is the hypothetical to explain why copyright holders could organize to lobby Congress while copiers could not - under PCT.
P&L are not finished with this thought. The "...extension of the term of the intellectual property right is made applicable to existing works as well as to those created after the extension." [p. 15] We have a clue that here P&L are still talking about copyright because it is the only part of IP where the terms are extended. It would be more effective if P&L stayed away from the generic IP and just said copyright if that is what they meant. P&L continue: "Since the cost of creating the existing works have already been borne, the additional revenue generated by the extension is almost entirely profit..." In the language of PCT that means economic rent. If one can imagine a 5 year gestation period for some cartoon figure and film. a long time will have to pass before "additional revenue will be realized." Thus it is disingenuous not to say simply that very old properties want their protection continued for another half a century.
In a puzzling non-sequitur we read in the next sentence: "...those opposing the extension do so on behalf of intellectual property they have yet to create and that can be expected to yield them only a competitive return." From the two sentences quoted, the first describing a situation with a created windfall for holders, hence proponents of extension, and the second, describing a situation without windfall for holders-to-be cast as opponents by P&L, the authors conclude, opponents have less to gain than supporters. Hidden behind the term windfall, of course, we have valuable low-end entertainment property about to mature into the public domain.
Here we have a theory wagging the logic. First, on what basis is there a general windfall to be reaped by the extension of copyright from life plus 50 to life plus 70. This new windfall would kick in 50 years after the death of the author for most items of IP. This time frame would make sense only for corporations who plan ahead for their investments in decades. Second, on what basis would authors who have yet to create works be opposed to an extension of copyright. OK, let us suppose I am 50, I love my children, but I do not like my grand-children; thus, I oppose the life plus 70 extension because I want to cut off revenue to the children of my grand-children, which I do not like - which may just happen if the term stays life plus 50. P&L's explanation is that an extension of copyright would restrict the choice of existing expression for new and by definition necessarily derivative expression. Some serious nonsense.
While all that might be true for trinkets based on blockbusters, theoretically, the absence of opponents to extension has to be explained by the theory in some fashion to keep erect the fiction that some sort of balance of interests underlies the legislative process. Disney and the music industry and the movie industry flooded Congress with money in the low five figures per sponsoring member vote that needed to be secured to box through the legislation, and they prevailed - while the copiers were absent, perhaps due to their lack of interest in a competitive return. True, the industry essentially drafted the legislation earning the gratitude of the congressional staff no doubt. Yet all that has nothing to do with a "competitive return" for copiers.
The theory is questionable on two counts, the first has been clearly illustrated by music pirates and electronic media pirates. I can make as much money as Sony if I can sell their products with merely the negligible media production costs, i.e. without having to pay the CEO, the VP's, the artists or the recording infrastructure and the marketing. Villas in Shanghai attest to that fact. In fact, I can undersell them significantly and still make money, proven by renovated Dachas outside Moscow. So where were all the domestic music copiers? They should be there showering Congress with contributions in hopes of a cartel of Disneyland facsimile reproductions - instead they are out on bail waiting for their court dates for infringement.
The international market for infringing product is thriving with out the infringers having spent a Fen or a Kopeck lobbying Congress. Why is that?
Clearly this argument is non-sense in the realm of copyright and books. There is no market force here other than the muscle of media corporations to protect the rights, specifically the rights to valuable properties with staying power - books and the publisher doing heavy lifting play only a very minor role in that arena. Copiers have no chance to reduce the copyright term to null; if they had, they might have formed an interest group. Reducing the copyright term by 10, 20 or 30 years would still mean that the majority of items to be copied would be too old to make any profits. Neither the authors nor the copiers could make any return of the life plus 50 stuff. Merely keeping the term from being extended to life plus 70 would not be worth the effort; the realm of the absurd had already been exceeded in 1976. As a bulwark against the absurd we depend on the common sense of Congress, obviously a bad bet.
To flog this tired horse some more P&L posit that since "most creators of intellectual property use intellectual property of others as inputs into the creation of their own intellectual property," [p. 15] according to P&L, this is a force to counter expansion of rights. This counter-force, and I am quoting verbatim with complete and thorough attribution: "...may retard efforts ... to press for expanding legal protection ... and might even align the industry's interests with that of society as a whole." [ibid.]
Do we have an admission that the effort to extend copyright goes counter to the interests of society as a whole? Of course it goes counter to the public interest. It is not a matter of "choice" it is simply a matter of reflexive protection of assets - to call it greed would be to mis-characterize the situation. We expect Congress to balance public and corporate [read: private] interests. It is nice to have a theory that posits that lobbying with millions of dollars achieves that - as a matter of course. However, when the results do not achieve that - then the theory is flawed, the work of Congress is flawed, the application of millions of dollars to purchase legislative outcomes is merely bribery, and the perpetual protection of assets that should have been in the public domain long ago has to stop and be dialed back.
Where to start making sense of this language? Let us assume we are back in 1909 and the copyright term were 28 years with a one-time renewal of another 28 years. Let us say that this represents a reasonable inflation of value from the original 14/14. If I were born in 1947, which I was, and I had wanted to create a derivative work as sketched above in 1977 at age thirty, I could pick from anything published before 1921 around the date of birth of my parents. However, if we remember that a large percentage of copyrights are never renewed, the date is more likely still 1949, the model year of the car I learned to drive on.
I have tried to digress [above] on the nature of derivative work in the humanities. We all stand on the shoulders of great persons. Learning from great persons is the purpose of reading and writing. To understand Aristotle's view of categories is not stealing, it is homage to a teacher of humanity. To pretend that soneone not Aristotle originated that idea is laughable but no crime. The effort to rephrase the theory of categories in terms of a modern view of typologies is a legitimate academic task.
The idea that "most creators" use other people's IP as input without use of the citation rules of academic fair use is absurd in the field of books, libraries and the propagation of knowledge. Such ideas, as stated are a gross distortion of real world as opposed to legal world realities.
I have no doubt that lawyers, smart copyright lawyers would read the sentences and nod: "Yep, that's the way it is and let me put some of these infringing perps behind bars." Since judicial opinions are not copyrighted the legal profession is getting a free derive to the max and get out of plagiarism card.
The fact is that only a minute percentage of copyright items attain classic status and make money decade after decade. This is not to say that "bestsellers" do not have the potential to make millions in a short period of time. The only argument that makes sense is that the few items of copyright materials that make yearly profit in the millions determine the law. Everything else is collateral damage and economic yada yada to justify the "contributions" flowing to Congress. The assumptions crafted by theorists that go into the making the law do not apply to most of the artifacts controlled by the law. Copyright must be extended perpetually because Mickey Mouse is too big to fall into the public domain - end of analysis. Several million in lobbying costs is nothing if it keeps the rents from Mickey going for another couple of decades. Copyright is keeping Disney in a rut. Let economic theorists come up with the theory of re-engineering and renewal of creativity rather than turning a approving eye of obscene lobbying. We still have some time till Walt Disney will have been dead for 70 years, 2036. I will have just passed my 90th birthday. The Beatles are still alive for the most part.
The second problem with the argument here is that "copiers" like Google, copiers in great style, are not trying to compete with the rights holders in seeking out slim margins, right holders are not making any money, Google makes its money elsewhere. Rather, they are trying to index commercially dead textual artifacts that play an important part in education and research, in index development and in knowledge representation. Rather than counting words in statutes, university researchers would like to count words in books about Shakespeare written in the 50's and 60's and even in 2011, books that may never have had a commercial life except to meet the cost of printing with funds from some foundation.
Basically we have a separate reality problem. I suspect judges have a feeling of power. They are charged by "We the people" to make judgements on a regular basis. Judges have a normal brain, normal intellectual functions, but when they sit in their chambers they worry about what call to make that will drop like a bomb is some people's lives and how to justify the call. Non-judges sit in their rooms and also wonder about things, generally, however, the thoughts they come up with do not have the same consequences. Over the years judges have to build a consistent intellectual construct that can be used over and over. It may just be possible that over time a wobble creeps into the system, a slight shimmy that continues after the judge leaves the bench.
The analysis of the CTEA legislative history show such a wobble. P&L take us through some sort of Socratic experience. The issues are in the tension between copyright owners and public domain publishers. OK, I understand copyright owners. Disney is a copyright owner, Sony is a copyright owner, I am a copyright owner. I have not heard of public domain publishers as a group, although the classics through the ages are published. Project Gutenberg is a public domain publishers. Are P&L suggesting that project Gutenberg should send lobbyists to defeat the CTEA? What kind of argument is that? It depends on a phantom entity - public domain publishers, people that make money printing Bibles and paperbacks of Hamlet. The money in public domain publishing is made on textual artifacts created before 1923. For most of the important text of humanity, CTEA is irrelevant. So sorry.
P&L lock down the fact that recognizing intellectual property rights increases private benefits. Since there is no "on the other hand" i.e. there is no real world example of denying intellectual property; the issues seem to clear up. Disney died in 1966. 1966 plus 50 is 2016. Steamboat Willie first showed in 1928 - the 120 year for anonymous work for a company should protect Mickey till 2048, life plus 70 till 2036.
After some more mumbling about asymmetries, P&L get to the real issues. 1.5 million in donations from TV, movies and music went to six of the eight sponsors in Congress. Numbers on the other two - not available, not necessary. Other "interests" donated even more. Senator Leahy seems to have gotten $34,500 from Disney. [p. 16]
Yet P&L cannot really let go of the fiction that there is a puzzle here that requires theories of democracy in action in concert with economic forces. But there is also a tug on the heart strings: How could Disney, who had benefited so much from the public domain (Bros. Grimm and A. Dumas et al.) carve another sizable chunk out of its beloved public domain? I am hurt, bewildered, confused and ever so much disappointed.
At the end of their peripethesis, P&L have arrived at the conclusions. The conclusions are not really a steel trap clamping shut. It is merely a legalistic meander.
1. the public domain is not worth much except to media companies who can copyright figures derived from it e.g. Mike Tyson's tattooist.
2. The notion that authors depend on previously created works is not applicable (please ignore our pages 13, 14 and half of 15)
3. pardon our assertion that the public domain is not worth very much. What we meant to say that is has no private value compared to the protected works of an author like Scott Turow. Socially, culturally, historically, intellectually, however, detective novels are not worth very much when compared with Dickens or Shakespeare.
4. after all, all that CTEA did was extend copyright be a measly 20 years and 120 for some other things we won't get into here.
There is one more bit of theory wagging: "In effect, all the act did, so far as increasing costs of future creators of intellectual property is concerned, was to reduce the rate at which the public domain would expand." Do you see the wobble? After admitting that authors do not depend on previously created work as a rule and thereby invalidating three pages of their analysis that may be quoted by some unsuspecting reader, here, just as we are about to come home to Jesus, there is the discredited saw: "the costs to future creators" is negligible. [p. 17] As though this were an excuse for locking away all recent writings.
The next sentence is a peach; I will paraphrase before quoting it. Had the public domain been left at 1976, life plus 50, "private benefit" would be small, i.e. authors who had died in 1961 would be in the public domain. Let us not forget that 85% of the books covered by that period would be in the public domain anyway since they did not pass the renewal filter. That thought is absurd. The private benefit of not loosing Mickey to the public domain would be huge.
"The expected private benefits of such expansion [of the public domain] were likely to be smaller than the expected private benefits of retaining copyright to certain highly valuable properties." [Ibid.]
P&L, as economists speak of generic "private benefits." They do not say "Disney's benefits" - although that is what the sentence implies. Yet Mickey has value irrespective of Disney's ownership. If Disney were to loose the rights, they would still have Disneylands all over the world. They would still have the Mickey Mouse cartoon library. But others now could get private benefits in the same manner as theaters in London have garnered private benefits, economic rents if you will, from performances of Shakespeare. By letting Mickey go public domain, the private benefits, generically speaking, would experience a dramatic gross increase as long as the public will not tire of Mickey as they have not tired of Shakespeare.
There is a bit more economics here, another turn around the pool and through the olive grove. What if CTEA had applied only to works registered after it passage, 1998. What if the public domain would not have been shrunk by twenty years, merely, that it would have expanded only in 70 years, 50 years actually, doing the arithmetic. You laugh. P&L go through Disney's options. On one hand Mickey is gone - on the other hand, Son of Mickey - should there be one, Son of Lion King, Daughter of Pocahontas, the Litters of the Lemur of Madagascar, whatever, would get an extra 20 years in 50 years. Would that loosen the purses of lobbyists?
The prose on this wrinkle is hard to parse: "Had the act been limited to expressive works dated after its date of passage, producers of intellectual property, such as Disney, would have to balance the higher input costs resulting from the shrinkage of the public domain against the increased revenue stream from a longer period of copyright protection..." [p. 17] So where is the wobble here? What are the "higher input costs resulting from the shrinkage of the public domain"? The act passes in 1998, it specifies life plus 70 for everything registered after 1998. Had I written a novel in 1990 and one in 2000 and died in 2010, the first novel would be public domain in 2060, the second in 2080. According to the actual act, both novels would be public domain in 2080. My heirs would have gained 20 years on one novel. Had my grandfather written an evergreen in 1950 and died in 1960 I would be very interested in post-dating so my heirs get revenue till 2030 (+70) and not till 2010 (+50) and be already high and dry. Is that such a difficult balancing act? Is this a logical wobble? Or is it just a legal herring, a hypothetical so absurd that anybody who has followed the discussion would say please lets not go there.
I may be misunderstanding the sentence. If Disney lobbied against CTEA post-dating, Walts's clock would expire at 66 plus 50, 2016. Anything done by post '98 Disney would get the full 70 years (20 extra). The shrinkage of the public domain would happen in 50 years since protection was extended by 20. The public domain would expand dramatically since pre-1998 items would mature 20 years earlier. Thus, according to the "everything is derived" theory, Disney could add "Mighty Mouse" to its stable of rodents 20 years earlier.
The notion that Disney would lobby against pre-dating is absurd. The only thing that interests Disney is extending the existing 50 by 20. Forget "Mighty Mouse." End of story.
P&L add that something called "discounting to present value" would not have made it worth plying Congress with money [my words]. Senator Leahy would have to get his 35 large somewhere else.
The descriptive analysis and the various puzzles surrounding CTEA and Disney come to an abrupt end 10 pages before the end of the chapter.
"Because the act applied to all existing IP as well, it conferred a windfall on owners of existing intellectual property that distorted the balance." [ibid.]
The balance, no doubt would be the one found wanting by the discounting to present value e.g. "higher input costs vs. increased revenue stream." The balance, had it been maintained, would have given no incentive to lobby for legislative action. While the theory of public choice describes parameters leading to legislative activity and the involvement of interests, one wonders if the theory of thermodynamics were not more effective. Want to get something to boil? Add heat. Money equals heat. Got no heat? Get no boil.
So what are the options here. One options is outrage. For all the pretty language, Disney bought themselves another twenty years, probably more when the anonymous creation language kicks in. They used the principle of copyright rather than plead for some exemption due to their special status as a billion dollar industry, whatever. All our current textual creation has been locked away because campaign contributions are legal and we have Judge Posner and Professor Landes to engage in economic analyses that make the process seem a rational process of political evolution operating in the ebb and flow of government regulation (rather than buying favor). And we have Scott Turow gladly accepting another 20 years on behalf of his children, grand-children and great-grand-children. And why should he not?
The wobble that creeps into legal reasoning is that large amounts of money are dispensed routinely in these disputes. It is a from of gambling. You spend millions developing public access television infrastructure, if transmission on that system were to have been judged infringement, the industry would have collapsed. Had Congress reduced copyright to life plus 20, we might have more interesting theme parks. The logic that decides to keep the industry alive or kill it is not conventional logic, but a political logic. Logic means authority or power here, something that can be imposed on others which they have to accept. When people want to convince with logic, it means that they want to have it their way and they want you to go along.
P&L abruptly change to subject. That is really the only thing to do other than to write a scathing indictment of a system that they have served for a long time. Several pages about costs and balances, a final short sentence mentioning a windfall. Exeunt. To be fair, I have concentrated on work by P&L that is almost 10 years old. However, my purpose here is to critique widely used and cited (re-used) arguments about the development of IP law. I have no interest in whether there may have been some modulation of thought since then when the 2003 book still serves as the standard in the field.
There follows something about incentives for bankruptcy, something about the Betamax, something about music piracy, something about fees for musac in restaurants, something about the US mercantilism with intellectual property.
Every once in a while P&L come out with a paragraph that makes me think I have not understood a thing so far.
"The Political Economy of Intellectual Property Law," Page 21: "As the system becomes more sophisticated in the sense of better able to resolve disputes that involve difficult issues (such as whether two expressive works are substantially similar or whether a new invention duplicates an old one), as the cost of copying falls and its speed increases as a consequence of technological developments, as moreover technological progress becomes more highly valued and originality in general more highly prized, the costs of intellectual property rights fall and the benefits rise, leading us to expect intellectual property rights to expand even in a political regime oriented toward promoting the public interest."
OK, I have a involved problem with the paragraph above.
1. There is the equivalence of patents and copyright. "(such as whether two expressive works are substantially similar or whether a new invention duplicates an old one)" P&L say that the system for resolving disputes is becoming more sophisticated. No doubt is is possible to index two texts and arrive at a degree of similarity. It is possible to do the same thing with the words of patents. So we are still in the range of the plausible.
2. Here comes the change of pace: "the cost of copying falls and its speed increases as a consequence of technological developments." The implication is that copying has become faster and easier." Also plausible. Yet it is not acceptable to speak of testing for "substantial similarity" which involves writing text similar but not identical in the same breath as speaking of high-speed duplicating. True, I could probably come up with 500 copies of a novel of Scott Turow if I were left alone at a Staples for three hours. But that has nothing to do with any attempt to write a detective story deceptively similar to one of Turow.
3. The third argument of this logical proposition: " ... technological progress becomes more highly valued and originality in general more highly prized ..." again mixes patents and books. The advent of cell phones and wireless communications has caused an explosion of patents. Billions are spent for companies that have botched their products on the way to the market because they have concentrated on patents that would allow the new owner [who bought their patents] to do the actual implementation. This is an "and pair" that couples telcom patents with literary fashion that has moved away from classical models. While this may be true for the trendy fashionable literature of the day - the tradition of working through our textual heritage will continue. To the lawyer, the equivalence is plausible - completely lacking in substance, but plausible. No sweat, I can argue the chrome off this trail hitch.
4. Here come the "Public Choice" theory conclusion: "... the costs of intellectual property rights fall and the benefits rise ..." The "cost of IP" refers to the diminished need for derivative works through the new emphasis on originality. As I have explained before, I have no use for this assumption. It is being used as a pillar supporting legal interpretations; this is bedrock in legal world. Someone should make a fresh pot of coffee: not adequate, not valid, not reasonable, leading to junk logic. OK, I am speaking about the notion of originality in the history of writing; but let us look at the cost of IP in the telcom area. Of course P&L could not have anticipated technological developments ten years after their writing. Fair enough, but let us put these ideas into a bag and take them to the incinerator. Google is paying 12 billion for a basket of patents worth half a million each. Think of the time and effort expended to register and defend these patents over the years. The reason Google - and others in the field - are buying these sinking ships is that their bet all along was to sell their patents not to actually make something other than a few Potemkin villages. If the effort to defend the patents had been put into R&D of engineering or whatever, they might have built something. Since the effort yielded 12 billion in this one case - I suppose congratulations are in order. But I don't want to hear about the costs of IP falling and the benefits rising. It might be that technology companies not burdened by the patent chase could gain a significant advantage over jokers in Palo Alto hamstering patents on every line of code to run a smart phone.
5. The QED is unfortunately true: "... leading us to expect intellectual property rights to expand even in a political regime oriented toward promoting the public interest." Were these propositions really reflected positions rather than loose lawyer talk, it might be appropriate to be really outraged. But these conflations of disparate things merely have to sound plausible to fly in legal-world. One has to respect that. True, intellectual property rights will probably expand, but why keep alive the fiction that this will happen in a climate of promoting the public interest. These interests will expand because manufacturers of plastic trinkets and shallow entertainment can generate profits.
Serious publishing not involved in licensing entertainment spin-offs has nothing to put in its way. Perhaps only Google, which has found the global demand for information to be almost as profitable as the global marketing of schlock can play on this level. In any case, I think we can put "Public Choice Theory" down and go back to good old "Greed Theory" to explain the expansion of intellectual property rights.
In summary: P&L offer a theory to explain the watershed expansion of IP in 1976. They seem to sense a current of free-market ideology at the time that favored commodification, including commodification of intellectual property. Gold is a commodity, ownership of Gold does not expire 50 years after the death of the owner, absurd. Intellectual property should no more expire than ownership of gold or pork bellies - actually, agricultural commodities do expire, maybe there could be an angle here.
Perpetual value is true for a small percentage of copyrights. Significant value within the early printings is true for a somewhat lager percentage of copyrights; any value of a copyright turns out to be a fantasy in the time frame of life plus 50. P&L should really come up with some way to keep Mickey going for Disney without dragging the rest of written materials down the same burrow. Perhaps their expensive short term renewal in perpetuity they mention in passing - legally unlikely - politically unlikely - would actually be the solution.
Doubtless the underlying perniciously ridiculous thought is that books are given value through the granting of protection from copying. Books are given value through citation. Were I an important legal celebrity instead of an unimportant advocate for electronic text research, my essay with 20 somewhat academically attributed quotes from P&L would raise the value of their work.
Granted, I don't think much off their perspective, but nevertheless, the unlikely readers of my analysis would also have to read P&L. It may well be that the reader will go with them and not with me; one could expect some sort of divide based on preexisting ideologies. Posner thinks people who write him to inquire of licensing his articles are just wasting time. He is comfortable with consigning his minor works to the public domain. He realizes that increasing the quotation increases the power of his ideas. While he feels comfortable sharing his own ideas for free - there is a lawyer trapped in there who wants to protect the others. The notion that 90% of books would benefit from early entry into the public domain would set the law on its ear.
Further examination of Posner's short works will show that aside from legal meandering he has a good grasp of the problems with our textual heritage written in academic settings and stored in libraries. But that is just "common person" stuff, that would draw no blood in the legal arena.
