The Fabled Past

Library Competes With Animated Characters

Once upon a time, there was a wall, just like in medieval times, it was high, with ramparts, protecting a magnificent town. Today the town is called the city of contemporary arts. The height of its wall varies from section to section, and it is measured in years - some parts are 120 years high, some parts are 90 years high but most of it has a height of "life plus 70." The wall is called copyright.

Across the river from that city is the land of literature and history and philosophy, the natives call it the LOAK, the Land Of All Knowledge: the trivium and the quadrivium, the land of knowing about and the land of knowing that, the land of the internalists and the externalists, the land of Dewey and Bliss, the swamp of Richardson (Ray, Tiger Sis, Boom, ah!), and the Library of Congress. It is the land of information architecture, the  land of knowledge representation. There are no walls here; yet that does not mean access is easy. Many may look, and some will see and few will be able to internalize some fraction of the vastness. Yet we are working on increasing that fraction and decreasing the number of the few to less few, i.e. to more. Our electronic minds are far ahead of the grey matter between the ears, at least in recall, and even in juxtaposition, if not in whimsical association, caprice and self-serving rhetoric - there the human mind still reigns supreme.

Looking toward the walled city on the island and looking down the narrow causeway, one wonders why someone would build a wall that high around all contemporary expression. Is there a market for this stuff? Is the a market for most of it? Will a poem still make money in a hundred years? This wall has a secret; this wall is really an unintended consequence having nothing to do with actual contemporary arts.

Life plus 70 can be justified for big hit blockbusters; it seems excessive to include all contemporary arts. Any expression completed in the last year of an artists life will be protected for 3 score and ten - any expression earlier in an artists life will be protected for well over a hundred years. Even if a best selling author should die young, the time that the author's "expressions" spends behind the wall will outlive all contemporary readers, except the most precocious babies. Contemporary expressions have been excluded from the public domain. Congress has declared the public domain to be a realm of history; temporally remote history.

The copyright wall surrounds a city of things created after 1923. Nothing created before 1923 may live in this city. The new gigantic wall was built in 1976; before that the citizens had let the fortifications protecting contemporary expressions crumble. They had let their wares, the written expressions of contemporary art, thought and ideas, i.e. written expression in general, pass over the causeway into the land of knowledge with no thought of guarding their ideas for the market. Through an accident of "legislative oversight" [define: unintentional failure to notice] 85% of copyrights registered before 1964 slipped into the public domain before Congress was able the stanch the hemorrhage. It seems not many cared to renew "protection." Easy enough to fix this embarrassing problem; abolish renewal. But that was still before animation. Animation changed all that.

Early WWWrestling

We fell in love with moving pictures, especially with pictures drawn by hand. At first they were clumsy and cute in a herky-jerky way. Gertie, the Dinosaur and Felix the Cat were the first. They were descendants of the Egyptian sequence murals carved in stone and Chinese moving picture lanterns. But the shadow started descending in 1923 - with Felix - the creatures became an obsession. Who could have anticipated the absolute tyranny of drawn images over all manner of publications. Oh how we grew to love the animated characters. We laughed and we cried; we experienced terror and joy. We could not get enough of them. We taught our children to love them and they taught their children. It became a blind and absolute love translating into a market of billion dollars.

Toward the beginning of the third generation, the sense (at that time) of "limited time" had been reached; the measure was full. The law of the land read that enough money had been made; limited time had expired. Donald and Mikey were invited into the city of knowledge as had all beloved figures before - Ulysses and Penelope, and Aeneas and Dido, and Parsifal, Arthur and the Green Knight, and Faust and Gretchen and the Dashwood girls, and Dorothea and Ladislaw, and, of course, Captains Bligh and Ahab, but not Captain Queeg. Yet the characters would not go. The Big Bad Wolf and the Three Little Pigs had had experience in building fortifications of various kinds and recommended the wall (of brick and stone). The garrison of Disney Castle concurred, Congress was activated for paltry fraction of the net, the rubber stamp was stamped and the wall was built. The Black Robes of the USDC were stationed on the ramparts. The wall to protect Disney animations enclosed all of contemporary expression. The big stars of the trivial genres of expression were pleased.

Each day, bags of money are hauled across the causeway and each day images and music and text are in the back haul. Will we ever tire of the Magic Kingdom and the trivial arts?

Meanwhile, in the Public Domain

In Information Architecture Land, meanwhile, the builders are busy. At uchicago they have built a web site that takes the articles of the US Constitution and links each Article with the writings of the "founders" that could be considered a commentary on the relevant Clause - all men and only men, I am afraid - hence the "Founding Fathers" and not the founding single-moms.

The "Copyright Clause" reads: "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."

There are 15 commentaries or background to Article 1, Section 8, Clause 8, aka the "Copyright Clause," going back to when the Crown was calling the shots in the 13 Colonies.

For a list of the 15 commentaries see:
http://press-pubs.uchicago.edu/founders/tocs/toc.html

ITEM: Perhaps it would be good to start the peripatetic meander through historical comment on intellectual property with Blackstone. William Blackstone (1723–1780), jurist, law professor and MP,  was a British theoretician and proponent of common law and a great influence on the development of law in the 13 Colonies to the time of Lincoln. First his view of intellectual property in Roman Law:

The Roman law adjudged, that if one man wrote any thing, though never [sic] so elegantly, on the paper or parchment of another, the writing should belong to the original owner of the materials on which it was written: meaning certainly nothing more thereby, than the mere mechanical operation of writing, for which it directed the scribe to receive a satisfaction; [Blackstone, 1776 - Blackstone, William. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765--1769. Chicago: University of Chicago Press, 1979.]

see:
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s3.html

The guidance for Roman Law was whoever owned the vellum owned the ideas written thereon. Much was written by slaves, Greek slaves, who could be considered employees with rights to anything produced going to the owners of the slave. Given that copies were propagated from copies and that the act of copying was the main expense, it made sense that the physical copy held the value. [Aside: The rights to much I produced personally in my working life belongs to the Trustees of the institutions that paid my rent, furnished the tools of my trade and filled my lunch pail.] The Roman attitude towards written expression also explains why there were no bestseller lists of Roman blockbusters that survived the Vandals; blank paper was more valuable.

 1771 American Printing 

Yet Blackstone does see a precedent for IP in Rome if I read the text correctly:

"... in works of genius and invention, such as a picture painted on another man's canvas, the same law gave the canvas to the painter." [ibid.]

Written ideas are not mentioned but pictures are. Did the Romans prize interior decoration over literature? It is possible that copying text was thought of a mechanical task with a low skill level. Painting, however, be it a copy or not, would require advanced skills worth paying for.

Perhaps we can call it a tie, the Romans seemed interested in projecting power - the thought that knowledge could be power eluded them. They seemed to have resisted innovative Greek ideas especially. That explains among other things their amazingly simple minded road maps of the Empire. Merely crude and merely effective, no big picture. [Google: Peutinger Map]. Moving on.

It is ironic that the development printing press in the 15c. really mimics the development of high speed scanning in the 21c. In each case copying became dramatically easier. Before printing copies had to be fashioned by hand. This meant that the cost of making the copy was the primary consideration. Verbatim copies were practically impossible. The copy, whatever its defects, was the object of value. Any thought of the original was impossible. The limited distribution of hand-written copies made payments to authors unrealistic. Printing allowed much wider distribution of books and opened the prospect of paying authors.

As easy as printing is compared to scribal copies, so are electronic copies compared to printed copies. In the 15c. the task was to control the rampant spread of printed material - censorship was a chief priority. Creating a monopoly for the printer's guild was an administrative strategy. The rights of authors evolved out of this mechanism for censorship, production and distribution. Today, both legacy printings and new expression are finding their way to a virtual market no longer dependent on physical artifacts. As the "copiers" of the 15c. saw their industry evaporate - so electronic publication may make some specific kinds of printing evaporate. Clearly copying by hand did not disappear in the 15c. - so printing will not disappear in the 21c.

By the 18c. Blackstone seems to have felt that the exclusive privileges that the crown had traditionally reserved for the Stationers Guild should open the door for exclusive privileges for the subjects of the crown, for the authors. This is a tentative reading.

The argument given is that any "expression," oral or written has the unmistakable mark of the author's style and thus: "... it is always the identical work of the author which is so conveyed; and no other man can have a right to convey or transfer it without his consent, either tacitly or expressly given." [ibid.]

Should an author give up this right - or [my thought: should this right expire] - then: "...  it is then a present to the public, like the building of a church, or the laying out a new highway." [ibid]

Blackstone thus lays a theoretical foundation for both copyright, the transfer of copyright, as well as the public domain - the present of the author for the common weal.

ITEM: In the Massachusetts Constitution, of 1780, there is one of those unbearably long 18th c. sentences that mentions everything in long lists of disparate items at whose center is the phrase: "... it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences ..." followed by a pitch for raising funds for Harvard. The Commonwealth seems to have proposed a generous regimen of public subsidy.

see:
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s4.html

ITEM: James Madison's statute for copyright for Virginia grants a 21 year period of exclusive publications rights. It covers all the bases they could imagine back then - 1785. These bases are: fee, 3 Shilling, books (or pamphlet) already printed, or yet to be printed, exclusive rights to author, heirs, or whoever might have bought the right to copy or a piece of the action, nix on having someone else copy it, nix on importing copies from England - term 21 years - penalty, double the value of the books.

see: http://press-pubs.uchicago.edu/founders/documents/a1_8_8s5.html

It is comical to consider how many more wrinkles future generations will find, for a random example: copyright for a single page instructions to a seamstress to guide the work on a dress pattern - a concern of the garment district, late 19c.

ITEM: Snippets from the Federal Convention of 1787 show the final language of clause 1,8,8:

"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;" [US Const., 1,8,8]

see: http://press-pubs.uchicago.edu/founders/documents/a1_8_8s6.html

Federal Convention of 1787

 It is instructive to note some of the items that did not make it into the clause - in the form of a top 8 list:

8. To secure to literary authors their copy rights for a limited time
7. To establish an University
6. To encourage, by proper premiums and provisions, the advancement of useful knowledge and discoveries
5. To establish seminaries for the promotion of literature and the arts and sciences
4. To grant charters of incorporation
3. To grant patents for useful inventions
2. To secure to authors exclusive rights for a certain time

And the top language that did not make it into Clause 1,8,8 - number 1.: "To establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades, and manufactures." [Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937.]

Some items were combined some items were rejected for the Federal Govt. and reserved for the States should they care to do such things. The goal seems to have been a lean, clean government machine in DC.

ITEM: Madison's notes on 1,8,8 in the Federalist seems to be just an avowal of the uncontroversial nature of the clause.

see:
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s7.html

ITEM: The letter of the boiler inventor James Rumsey to Jefferson illustrates some of the complexities of the patent process as handled by the states. First, I am glad the letter was published as part of the Jefferson Papers and not held hostage in a document box somewhere by a literal interpretation of the statutes on unpublished materials. Second, the letter is the first peek into an amazing can of worms that the warriors in the current patent wars have brought to ever more amazing levels.

see:
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s8.html

A thorough discussion must wait for a later time.

ITEM: Hamilton's suggestions in the area of the useful arts go along the lines of public investment.

see:
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s9.html

The Ideas of Jefferson on IP.

As I understand it, to approach Jefferson's position on Intellectual Property (IP), one first must deal with his antipathy to Blackwell and English common law. It may be that English law stimulated his dialectic reflexes. Yet IP is hard to argue out of existence. Jefferson's arguments do not seem as apodictic or incontrovertible as one might wish, should one want to build on his ideas.  Questioning the concept of intellectual property can be done from the perspective of a rich man, from the perspective of an aristocrat who may not understand the aspirations of the lower orders; it cannot be done if concern for someone attempting to earn a living through writing is part of the equation. Intellectual property may be one area where Jefferson's ever present elevated view of "MAN" cannot be transferred easily to the ordinary person.

The occasion is a letter from Thomas Jefferson to Isaac McPherson 13 Aug. 1813. See:
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html

The rhetorical construct is clearly Jeffersonian, had I more experience with his work I could give similar examples. First comes a swipe at the English precedent. He disdains the idea that there is a "natural right," hence "exclusive right" of inventors and heirs to the inventor's inventions. He does not want to grant the implications of arguments based on "natural right" however much he might actually embody it in practice. His own chosen term is "Universal Right."

Then comes a Jeffersonian thought - property does not derive from "nature" to a person, property is granted by social law within the community of all men (and the women managing their households). One must remember that the "natural" rights of property (and IP) according to Blackstone was derived from the natural right of the Crown to do whatever it pleased with any property as long as a piece of parchment could be filled with words and a seal affixed and a troupe of men with spears sent to deliver it.

Hence Jefferson's hostility to the beguiling and rather inescapable logic of an author's exclusive [read: natural] rights to creations and his counter attempt to assert a kind of groovy communal collective perspective. Jefferson saw himself as a temporary steward of property. He saw the claims of natural right as being used to oppress generation after generation. It may be that the great families of Virginia in Colonial times still had form of paternalistic communal spirit, effective stewardship of agricultural resources, and a sense of extended family in which rebellion might have been punished, severely even, yet the fabric of community had not begun to fray.

There are some attempt in the late 19c. to foster ideas of benevolent, liberal authority to counter nationalism  in the multi-national Hapsburg Empire. While the Emperor and his class saw themselves as benevolent stewards, nationalism swept any soothing attempts to placate and maintain the old order into the dust-bin of history.

In Virginia, after the Civil War, a more precise notion of property was promulgated, and privileges were distributed according to new schemes.

In Jefferson's time, oppression had gotten so bad in France, that the notion of "natural right" or the permutation "divine right," effectively yielding a cruel "perpetual right" with no attendant benevolent stewardship, finally exploded into an orgy of blood and retribution emerging as "liberty, fraternity and equality" - whatever they might have meant by that in the decades of war that followed. Perhaps this explosion did not reach his awareness fully since he had participated in an explosion of his own and had cast off unwelcome masters. Yet the idea that property "belongs to all men equally and in common" did get a life of its own that played out in the urban setting of European cities for many many decades to come.

With a clear conscience the American landowner, lord of all he sees can honestly say: "By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it." [op. cit.] Perhaps history has proven him right: his own palace and most of the palaces of the aristocrats in Europe are now a public trust eking out a precarious existence on the income from tickets purchased by tourists and public grants to fix the roof. Yet, many bodies floated down the rivers before the palaces reverted to the public.

But let me return to IP. Jefferson values ideas greatly, but he fails to grasp the role ideas will have in the society for which he is laying the foundation. He believes that he is in a period "late in the progress of society" which I read to mean that his society was mature. Yet it would grow from agrarian roots to industrial growth, runaway growth, to post-industrial globalism. "Late" was still to come; these were "early" ideas; our ideas may be early still.

"It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property." [ibid.]

The author in a garret in London, Paris or New York did indeed work for a meager income from exclusive rights if they were not appropriated by the publisher or circumvented by the printer. No doubt the class of landowner  in the late 19c. might still believe with Jefferson:

"That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation." [ibid.]

My own view and my expectations for my ideas echo Jefferson's. Only through free, untrammeled use will ideas grow. My move from literature to computing was prompted in part by the desire to escape the secretive, suspicious world of scholarship where it was thought important to hide one's work till it was finished, to the open, unrestricted exchange of ideas and mutual assistance I experienced when the computer age dawned on me in the 70's. The climate may be different now in both fields.

That said, the idealism having been given voice and echo, Jefferson did assert the right of the collective to grant rights; not rights that are claimed with sword and gun as the agents of nature, or innate superiority conferred by God, but rights that are given by an advanced society.

 "Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody." [ibid.]

They key is to strike a balance between the exclusive right to prosper from written expression and the eventual release of the ideas from exclusive appropriation to the public for instruction. When I try to lean on Jefferson it is to argue for a balance between the right to exclusivity and the right to copy.

Perhaps Jefferson is drawing lessons from the European experience, perhaps he is anticipating industrialization. The argument is more formal than substantive. Jefferson still governed; yet he did not want to base the legitimization for government on the ideas that had been used in the past for that task. The French Revolution, for all the havoc it created could yield only a new Emperor and a new dynasty and new institutions that reek of elitism and exclusivity to this day. The Founders had the room and the leisure to let aristocratic conceptions mature into a system of adaptable rule of law. In any case, for whatever reason, Jefferson mediated between his own ideas and the political reality, Clause 1,8,8 stands and he testifies in the last paragraph [op. cit.] that he is working toward mature rules.

ITEM: The question of orphans came up in 1823 in Willam Rawle's commentary on the Constitution.

See:
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s13.html

The argument is legal, what else from a Philadelphia lawyer, somewhat lacking in substance and elaboration, but still indicative of what the Founders were thinking. The question is: what to do should a living author not renew the copyright for another 14 years. In common law one could presume the renewal would be automatic, no formalism could abridge a right. Yet if the right were granted by the collective, I speculate, rules requiring formal application can be enforced. Hence the irrevocable reversion of 85% of pre-1964 copyrights to the public domain. Of course in 1992, Congress put an end to this question.

To sum up - the wall was built. Despite Jefferson's effusions on ideas lighting up the globe, his notion that the collective can make the rules prevailed. Well into the 19c., there were voices claiming that common law superseded the constitution and vice versa. To the superficial meander through wiki, the question has become moot because much of the impetus for the distinction has been lost. Congress has piled act upon act and there are now statues for anything and everything. My apologies to the experts.

The inflation of the wall of copyright from 14 years and maybe 14 more to life plus 70 cannot be accepted as a reasonable evolution of the statutory rule of law. Something went wrong. That Information Architecture should come in conflict with animation characters is a sign of wonky-wonky logic with a major shimmy. No doubt lawyers can make it work for them, but it is becoming an embarrassment to thinking with integrity about electronic representation of knowledge.

Of course, I once had a professor of literature who assured me that there was nothing worth reading (of primary texts) after 1832, the death of Goethe. I believed him and still do even though I wrote my dissertation in the 20th c. Congress may temporarily force us into the manicured hands of dead white men.

Public Choice Theory

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.

Building Blocks of Economic Analysis

Sterling Memorial, Yale

Intellectual property is one area of expertise for Posner and Landes. Their further expertise is to place intellectual property in a general economic analysis of that area of the law and of judicial activity and of legislative activity. Their arguments have become so widely accepted that they are used as were they established fact, without attribution. They have become commonplaces in legal arguments in the field. At my entry level below dilettante, I have only a vague inkling on the actual reception of their ideas. There are echoes as well as actual citations in the work of Grimmelmann and Sprigman.

To start the discussion: Of initial interest here is the candid Posner. In his talk at the AEI November 2002, transcribed from tape, Posner measures the growth of intellectual property: 1. patents doubled 1985-2001 from 111,000 to 269,000; 2. federal cases in the area doubled, same period; 3. Journals in the area increased 13 fold, same period; 4. Membership in the intellectual property section of the ABA grew from 5,500 to 22,000, same period. I guess the last numbers are the scariest. And that was nine years ago.

In his oral presentation, immediately after citing the growth numbers (above) he gives a brief legislative history of copyright from '29 [He says 28 years and a 47 year renewal, which may refer to the 20 year extension that had been added in the '76 law, but then who am I to contradict here?] to '76 "life pus 50" to 2000, "life plus 70." The implication is that here is another expansion of his field to be celebrated, extending copyright beyond the boundaries of the universe.

This is enough to bring tears to the librarian-researcher. The proud judge glories in the growth of his field - more than a thousand lawyers added per year - and he glories in the triumph of his "Beanie Baby" insights - and he marks this as his area of most expertise - and then proposes to talk about copyright and books in the same breath. Active judges are listening.

Curiously, in an expanded version of the talk which has become chapter a of the book (op. cit.) the growth rate in this area of the law is measured in terms of the number of words of the copyright statutes, not in the number of lawyers at the ready. The numbers of lawyers has been moved to the introduction. There are 11,550 words in 1946 statutes and 124,320 in 2000. Similar figures are given for the trademark and patent statutes. I plan to draw some conclusions from this switch in examples.

The fact is - upon closer examination - that Judge Posner's economic analysis does not really draw lines between copyright, patent and trademark as separate, distinct areas with completely different underpinnings. He and Landes switch routinely between the three areas of law with examples in quick succession. Of course it is understandable when judges and law professors associate pointedly (not randomly) in all areas of the law.

In the expanded version, the candor is gone, one can suspect the influence of an editor at Harvard UP. Two graphs and a table have been added to gloss over the muddling of the differences of the three areas in the oral presentation. Yet no amount of editorial smoothing can blot out the impressions given by the candid oral presentation.

In fact, I propose to apply the skepticism gathered from the oral presentation to the cleaned up version.

The Expansion of Protection of Intellectual Property

The first graphic, Figure 1. of the cleaned up version, (a graph), shows the growth in "number of words" of statutes on copyright, patent and trademark compared to a general increase in words in the US Code.

The figures show that the Federal Code grew modestly but regularly, doubling from 1947 to 1970 and doubling again by 1985 and adding another 50% of the words extant in '85 by 2000 [a rough summary].

Patent statues also doubled by 1970 and doubled again by 2000. Trademark statutes remained steady from 1947 on and had barely doubled by year 2000.

In contrast, the copyright statutes doubled and redoubled from the 100 point baseline in 1947, to 1200 points by year 2000.

Although there is an attempt to drop the names of statistical procedures, it is hard for the normal reader to gain additional insight from all this razzle dazzle. Only one thing is clear, Judge Posner (Prof. Landes) is on record on the difference between the three kinds of statutes - with emphasis - a table and a couple of graphs to prove it. Someone at Harvard UP has left a finger in the dike.

The following graphic, Table 1. shows the different costs to the government of registration in copyright, patent and trademark for the years 2000, 2001 and 2002.

Per registration: copyright $70, patent $2,500, trademark $438. Total costs: copyright 40 million, patent a billion, trademark 138 million give or take a million.

Application fees: Copyright $30, patent $600, trademark $400. Here we have good numbers.

This has the feel of economic analysis, the question is: "What do these numbers tell us about copyright?"

The chief insight from this table is that we have apples, automobile tires and paper-clips together. Apples and oranges would not render the situations since they are both round and edible and thus have something in common, neither would oranges and potatoes and radishes, all edible plants.

Posner explains the differences, but does not really clear up why the three things are in one table. Copyright is asserted which means there is no application process hence one wonders what the federal government is doing with its 70 bucks per registration. Chances are it costs that much to catalog a deposited book in the LOC, find a place for deposited materials or to make an entry in a database.

With patents the application fee is 600 followed by a fee of 1,300 per granted patent and a maintenance fees every couple of years scaling up to 3,150 at 11.5 years. Opponents to the patent may rise and contend the grant of a patent thus requiring counsel. For families of patents in the hundreds with active opposition, one can imagine that attaining and maintaining a series of patents is a major investment not to be compared to copyright. True, both copyright and patent have "creation" time but clearly, those who seek patents are willing to invest big bucks in protection. Clearly the intent of patent legislation is that patents that do not produce are dropped. Recent trends in copyright have moved toward the perpetual for all, whether they produce or not. Trademark terms seems to approximate a term of economic viability with some safeguard that something is actually being traded.

The first table is designed to differentiate clearly between copyright, patent and trademark. Point taken, intellectual property is a loose term with little actual meaning.

The last graphic, Figure 2. of the cleaned up version present a grandiose bit of statistical nonsense, it is just the kind of statistical text analysis that gives statistical text analysis a bad name. There is, however, the good chance that I simply lack familiarity with the issues. P&L correlate the number of word in the statutes with the number of registrations in each of the three fields. Nothing surprises, nothing meaningful unearthed.

Obviously in 1947, the number of words in the copyright statutes was small compared to the repeated linguistic splits (doubling) by year 2000. The tripling of the statutes in the 1950's followed by a flat word expansion curve for the next 20 years explain the first dip in the graph. The gradual rise of the ratio to 1976 despite the flat word expansion means that registrations doubled. The generous verbiage from Congress in the 1976 Copyright Act explains the second dip. The consolidation of state copyright under federal copyright does not register in the dip, it may be a non-issue. The subsequent meandering of the correlation to 2000 can no doubt be explained by new technology in the Government Printing Office which made adding a few more appendices at 10,000 words per, to legislation easy to do. The fact that renewals were counted as registrations could explain a bump after '92 when renewals were discontinued.

I find it shocking, that such figures should be given significance by the experts in the field. I hope it was merely a bad idea by an editor trying to shore up the original talk. The two graphs could also be a meeting of economist speak and lawyer speak. Hail fellows, well met.

Judge Posner plays at being puzzled by the numbers. He is puzzled that the number of words in patent statues did not increase at the same level as the number of words in copyright statues. In his world there is a correlation between the "rents" potentially to be gotten from a body of law and the number of words in the statutes promising the "rents." A Posnerian idea is that legislative activity is stimulated by lobbying for the promise of "rents." It is a investment to coax smiles from the cartel builders. I don't think I am exaggerating when I read Posner to suggest that people go to Congress to have cartels fashioned for them.

The puzzling over the statistics also allows Judge Posner to do unintended judicial comedy routines. He imagines what it would be like to have the copyright office operate like the patent office. Let us suppose that there were readers at the copyright office that could spend a billion dollars a year deciding if a submitted text were actually original enough to warrant a copyright - roughly half a million registrations of which 10% may be books in some form. The idea of training such a cadre is fascinatingly comical - it would require the concentrated around the clock effort over decades of every humanities department of all our universities if existing copyrights were included and originality vis a vis the public domain were checked. I would love to design such a system or at least to speculate what such a system would look like. I find this a hoot, but am concerned that this train of thought comes from leaders in the field - with no hint of irony.

The hypothesis is that "statutory activity" [the growth in the number of words in the statutes] is positively correlated to the "activity regulated by the statute" [the number of patent applications or the number of copyright applications]. I find such a hypothesis shocking. The implication is that Congress fills the trough with words, and the petitioners line up in great numbers to benefit from the words while they are still fresh.

In Judge Posner's world interest groups curry favor with Congress; when the interest groups get whatever benefits Congress grants, that can be measured in the number of words and taken to the bank. Then it is then up to the judges to make sure that these benefits are delivered to the right interest group as a reward for its lobbying, e.g. that cartels are enforced. Free riders, those in the field that benefit without having paid a congressperson are perceived as a problem. The law, after all, is the law; one should only get what one has paid for.

Judge Posner solves the puzzle for himself. Despite the low numbers of copyright applications, despite the high rents from patents, "patentees have less need for legislative favor" than copyrightees since patentees have their own court "hospitable to patents." Clearly, the copyrightees have received their legislative favors; would they had received a court.

This searching for meaning in the two figures and the table is a rhetorical device which has several functions. First it increases the importance of the potential correlation. Secondly, it reinforces the idea that something like "market forces of the public will" are at work here. This may also be called "political economy."

More on Posner & Landes

Library, Riksmuseum, Amsterdam

I shall examine two shorter works of Judge Posner (and his co-author Prof. Landes, Chicago Law) in detail and make reference to a third. The first is a transcribed lecture given at the AEI in 2002, called, "The Economic Structure of Intellectual Property Law." The second is a reworked version under the title, "The Political Economy of Intellectual Property Law" (co-author Richard Landes) which has become chapter 15 of the third from which I have already derived extensively, "The Economic Structure of Intellectual Property Law" (co-author Richard Landes) published by Harvard UP, 2003. The first can be located with a Google search. The last can be inspected and purchased on Amazon.

For those of us concerned with books, research libraries, electronic research materials and the "intellectual property" issues pertaining thereunto, the temptation may arise to consider the uses of the word "intellectual" in this case metaphorical, inappropriately metaphorical. I can live with the understanding that it is a technical term. Yet, I cannot imagine Beanie Babies being copyrighted, or patented. So this must have been a trademark dispute. It seems to have been about fake collectibles, in the book world we call them facsimile reproductions.

Yet, the pride of Judge Posner in his career, substantiated by many awards is clearly justified. He settles disputes and is not to be judged himself by the triviality of the disputes he settles. Nor are the disputes economically trivial, but trivial in every other sense of the word. He has no control over whatever unworthies approach his bench. His work is as important as that of an elementary school teacher breaking up a fight on the playground; it may seem trivial, the disputes among the small children may not require detailed analysis, but we need people who will do that, tirelessly.

In the case of Judge Posner it is not enough to dispense some minor cuffs (of course, clearly falling outside the zero-tolerance threshold of corporal punishment regulations for elementary schools) to the unruly, some intellectual structure must be established to set guidelines for judging in this area of the law. Again I must commend the Judge for providing insight into the actual workings of the law and the intellectual constructs supporting legal theories. That I cannot share his view of literature may be due to the small number of pages I have seen where he addresses literature. Yet I also feel there is a handle here that could be used to lay the law on its back, especially as far a books, especially out of print library books are concerned.

Beanie Babies and Tele-Tubbies and Cabbage Patches or whatever may be the fad of the year can generate millions in a season. Part of the strategy in marketing is to create some sense of scarcity, raising the attractiveness of the toys. It is clear that toy manufacturers can enter the market and exploit the scarcity. Books are different from toys or industrial processes or labels on hand-bags in that they represent human thought in written form, going back a few thousand years. They represent a descriptive analysis originating in a human mind that contributes, however modestly or grandly, to the understanding of the human condition. The Babylonians doubtless had their version of Beanie Babies as did the Persians, the Greeks and the Romans. However, it is their texts that still interest us, not the toys of their children - although there are specialist on that as well.

For that reason books have been collected in libraries at not inconsiderable expense to be studied by successive generations. The relations of private commercial market value, secondary market value and cultural value are quite intertwined. The laws of the United States really concern themselves only with texts written after 1923 or with text of authors who died after 1941; that are the rough temporal parameters of copyright.

Things that are grown in soil - fruits and vegetables - are sold on the market by green-grocers. Things that are grow in human minds are sold on the market for intellectual property. There are regulations governing that market. It seems, in its wisdom, the republic has evolved a market for three kinds of intellectual property - 1. expressions in word, sound and picture that are protected from copying, 2. patents that are judged for originality and protected from generating profit for others 3. trademarks. Clearly, the commercial value of a popular novel can be fixed as easily as the value of a ripe tomato in March. The commercial value of a study of Shakespeare subsidized by a 12-month writing grant and a subsidy for publication cannot be set as easily, neither can an industrial process for turning raw sewage into gourmet mineral water.

Part of the problem is that the expectations of the creator (author) originates in the same space of the imagination as his or her creation. The writer of a book has to let words flow onto the pages to be published. This is difficult without conviction of the worth of the word hitting the pages - readers are imagined, a dialog is started with imaginary readers and more words flow onto the pages. This is a natural process in writing. Having written to some small degree, I can attest that even the most hopelessly inexperienced self-publishing author engages in fantasies of sitting next to Opra and having his (in my case) creation be ordered by ten thousand mouse-clicks the second. My advantage is that I realize this is a fantasy - some do not. No doubt similar fantasies exist in the world of patents when the inventor of some whirly-gig imagines one in every household. The fantasies may also infect feverish minds awaiting the second coming of their out of print treatise.

As a writer I am automatically protected by copyright. Even if I do not register and only xerox 18 copies, some notion of common-law copyright protects my work from copying. Why someone should want to copy my work and why Congress has chosen to protect me from it as a matter of course is another puzzle. They should protect Scott Turow and not waste time on me. Of course, they are protecting Scott Turow, I and thousands are merely along for the ride.

In the world of the invention of whirly-gigs, patent protection is neither automatic nor cheap. First, I would have to prove that my thing-a-ma-jig is not derivative and not merely obvious. That costs me $600 at present; a further fee is collected to register the approved patent and fees totaling over $5,000 are collected in the first dozen years of the patent.

The question arises, why are patents expensive and limited while copyright is cheap and forever. There are many potential answers but the most obvious is that patents are meant to make money, hence it is worth funding a process to evaluate them closely. The minimum investment to get and keep a patent is $5,000. If a patent does not make more money then it is not a patent but a useless waste of time and money.

If a book does not make money, it may still be a great or at least a significant book. Even a terrible book about wooden fortifications north of the polar circle in the 13th c. may be important for all its awfulness since it is the only one on the subject. It may not ever have made a dime; the author may have paid $4,000 to get it published and $300 per b/w illustration; yet, every historian of Scandinavia will have to have thumbed through it at the least. That is really the pity about the thoughtless extension of copyright; it inhibits the exchange of ideas that has been going on for centuries by mixing in trivial artifacts of entertainment.

There is a good bit of theory about intellectual property. Since I know only about books - and some about music and art - I always find the theory ill-fitting. For example, there is the whole thing about re-use of existing "expression" - presumably copyrighted - in new creations. Doubtless the legal foundations to this set of ideas originated in the patent evaluation process and not in the study of ancient literature. The model is when an inventor takes a whirly from here, a thinga form there, added a gig and had a new patentable invention. The patent office then decides if this is a valid claim. Copyright litigants have picked this up and are touting it as something that copyright prevents. Strangely this idea is not treated with any skepticism. Preventing derivative products is seen as a "social cost" of copyright in the "public choice" paradigm.

The assumption is that any "original expression" is derived from some already copyrighted expression. There is no denying that derivative expressions are a big deal in contemporary copyright. A novel spawns a movie; the movie spans mugs and T-shirts of the main characters; the characters become stars in a spin-off TV production. Thus the original novel has spawned many licenses including, DVD's, International Rights, possibly a comic book, whatever. Yet while derivative products may be central to milking the revenue stream of successful writing; it is not an issue in "writing" itself - at least not in writing the books that have found their way into the collections of the great research libraries scanned by Google. It may be possible that someone paid for a license to write more Tarzan stories, or more James Bond stories, but these are out of the ordinary artifacts of popular culture. The Steinbeck Foundation is not licensing the plot of "Grapes of Wrath" so some contemporary author can adapt the characters to the Irish potato famine of the 1840's with a hand-drawn cart instead of a rickety old truck. No author has licensed "The Sun Also Rises" or the "Old Man and the Sea." Spin offs are one thing; to automatically subsume all of literature as necessarily derivative is an awful misreading of the history of literature, a misreading of the judgements of scholars, and a complete misunderstanding of the nature of "literary" influences.

There is a good reason why "ideas" are not protected and only the verbatim copying is forbidden. One may recognize the ideas or the style of Hemingway in the fiction of the last decades of the 20th c. but this is not a matter for copyright lawyers. It is a matter of bringing forth a robust masculinity or a characteristic use of language or a certain way of rendering landscape. Hemingway represents a chapter in the development of American prose - an important chapter - the artists after him had to confront his way of handling dialogue, of concise, vivid description and much more. Yet it is a mistake to mix in the notion that prose after Hemingway has to be taken to the court to check for infringement.

The fact is that it is not. Judge Posner knows that it is not. Yet the plethora of derivative products, movies and posters and the Lego model of the old man, the boat and the sharks (just kidding), somehow make the derivative nature of all of literature seem plausible in a legal sense. For a legal argument, a thin veneer of plausibility is all that is required. The "influence studies" in literature certainly provided that plausibility to Judge Posner - he was not able to resist mixing what he learned at Yale as an undergraduate with his later profession, intellectual property law. We can be fortunate that Judge Posner did not get his BA in Philosophy or God forbid a double major, English and Philosophy. The list of infringing perps would twelvetuple. It is sad, but understandable since a legal education does terrible violence to a mind in the early stages of humanistic training.

On second thought, this notion of derivative expression may be central to legal writing. Although there is no copyright involved, opinions are based on extant case law other opinions and briefs or transcribed testimony - hence the automatic assumption on re-use. Originality in legal opinions is not desired, it may not even be possible.

With books we have a tradition of citations that cover this area. We do not call it re-use but rather the evolution of ideas, and we have marginalized the notion of a blue book, formerly a strictly enforced set of rules of citation codified in style manuals. In the international world of scholarship wide divergence in citation rules have exploded the idea of a uniform style for all. The formal aspect of citation is very much in motion.

It is obvious that in the area of thought, written thought, ideas are picked up from reading. The work of a scholar, by definition also a writer, is involved in citing passages of any number of works and weaving a new argument around these quotations. The author may attack some of the passages as non-sense or may grant others that they provided great insight. In any case, this is done wholly without the active involvement of the federal government, copyright statutes not withstanding. There is an international academic common law.

There are any number of tricks around delivering a quote and then loosely paraphrasing the work quoted as though the analysis were one's own. Such techniques qualify as plagiarism and would be exposed quickly were the work widely read. Much of the problem in the fields of scholarship - humanistic or social or political science - is that the research is not published as a basis of further research but as an academic gold star for someone making hay with academic credentials in other fields. This has lead to an explosion of academic writing hard to police even with the latest computer techniques.

In the first few months of 2011, several ministers of the German Federal Republic and the European Parliament have had to resign because it was found that they had copied substantial parts of their dissertations without the attribution of sources. One of them actually sued her university for negligence in granting her the degree - a cheeky blame shifting tactic. It seems that it has become fashionable for politicians to acquire speedy doctorates from German universities where residency requirements are minimal. There is a substantial cottage industry today in taking publications of the famous or near famous or of political opponents and checking for verbatim phrases on the web. Programs that do that are easy to write and widely available.

It is OK to be influenced by great artists and by great thinkers. It is OK to write in the style of someone; in fact, often the style is so overwhelming or the thought is so convincing that style and thought are internalized and one become a disciple. Early stages of education often involve discipleship, even abject discipleship. There are followers of any number of thinkers or critics who continue on with their thought. They may even be students or assistants or collaborators or close colleagues. Each discipline will have it own annotated bibliography that will identify the degrees of derivation or originality. Some epochs are characterized by originality some as fated to be epigonal. The law knows nothing about any of that.

It is OK to cite other texts as long as the citations are in quotation marks. This has a clear purpose. If the quotation (in quotation marks and indented) extends over several pages, the dissertation adviser will reach for the red pen and suggest a footnote thus foiling any attempt to pad the text. It is generally agreed that advisers cannot be expected recognize plagiarism even if they themselves are plagiarized by their students. They simply think their students are brilliant. Nor can they be expected to read dissertations too closely.

In our humanistic past, often it was acceptable to quote running pages since part of the task was to transmit handwritten sources into printed form. Readers were grateful for access to extended quotes from rare sources. As late as the first half of the 19th century, historians did not differentiate too strictly between description of sources and verbatim quoting often not attributed, a real mess to untangle. Yet these questions were regulated in academic jurisdictions. In the 19th c., institutes and journals were funded to established the rules of citation and to create editions of hand written materials that allowed easy reference. Part of advancement in that world revolves around learning the rules. Wide access to electronic text does not only make plagiarism easier to spot, many other practices also will become more streamlined.

Today it is not methodologically sound to quote pages, for this we have footnotes referring e.g. to pages 20-43, of some book. The reader has the obligation to find that book and read those pages, preferably seamlessly contiguous to the reading of the text with the reference. Shorter quotes are copied into the text for convenience not for restraint of trade or infringement. Incidentally, in the new electronic world of texts which the courts would just as soon went away, those 23 pages will be a hot link obviating a couple of hours spent locating the actual quoted physical book somewhere. Despite the efforts of Congress, the USDC and author's associations, the future is clearly in linked webs of information. To subsume everything under property rights and to pretend there is profit in locking texts out of the web and indexing engines as a matter of routine just because Mickey cannot go public domain is very much yesterday thinking.

I do not know what the legal consequences of plagiarism are - it surely must be some sort of fraud; however, in the academic world, plagiarism is punished by loss of teaching and research privileges, and of course by public ridicule. Some prestigious historians have been caught copying pages and have blamed careless research assistants - the ridicule stuck as did the approbation of the plagiarisees and their colleagues. Of course the offending books are still read since sloppy citation is not intellectually fatal, but they are read with a superior smirk.

This digression on academic practices is intended to bend the discussion away from the strictly commercial view of library books as intellectual property just waiting for infringers to infringe. In scientific publications citations indexes determine academic advancement; if a publication is not cited it has failed. That is the only measure of success. Copyright plays no role. Judges also have a citation index to establish rank I am told. For every legitimate Beanie Baby fad, one can be sure there will be 18 concurrent imitators that have to be put in jail. New technologies give new opportunities for infringement requiring new laws. Agreed.

Yet it is a mistake to see everyone as a potential infringer. The extension of copyright into the perpetual has activated automatic legal mechanisms in force for many decades after publication and even after the death of the author that function without a "derelict property" safeguard. While everyone, including Posner and Landes know that, Judge Chin still feels that his hands are tied by the orphan problem. The blame for this lies the myopia of the discussion. Judge Posner and Professor Landes can talk for hours about their insight into intellectual property and their experience with various disputes and regale endlessly on infringers and hypothetical infringers. Inevitably their arguments pick two from column a and two from column b and an egg roll and a hot and sour soup. Arguments rendered in 2003 are put in question by actions in 2004, yet we see these same arguments again in 2011 to deny a settlement for a major piece of public good.