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Lessig's Arguments Are ''Overwrought''
Posted by Steven Wu on Sunday, January 19 @ 13:33:03 EST Copyright
In the New York Times, Edward Rothstein writes that "the recurring argument that culture is now 'owned' and must be freed and that creativity is being stifled as a result is overwrought." It concludes, in part,
"As it turns out, the extension of 20 years means that copyright law has held off for a while what will be a large-scale entrance of television and movies into the public domain. In the meantime, the absence of a public domain has not hampered creativity in either medium."

Criticisms and commentary if you read more.

Rothsein writes, "Courts have tended to allow this kind of enterprise (witness the publication of 'The Wind Done Gone,' Alice Randall's African-American version of 'Gone With the Wind')."

Except, of course, that the Mitchell estate fought Randall for over a year before finally settling. What's less important than courts eventually deciding to allow this kind of work is copyright holders being deterred from beginning works that they're afraid may be "derivative." The question shouldn't be, Do the courts allow "innovative parody"? Instead, it should be, How many people choose not to create socially beneficial work due to copyright law (thereby keeping such cases out of the courts)? (Not to mention that there are surely examples of courts unfriendly to the mere hint of copyright infringement.)

Then, "In fact the 1998 law Mr. Lessig challenged was intended to match the kinds of copyright protections already offered by the European Union."

Of course, one of the big points of the petitioner's opening brief [PDF] in Eldred was that the 1998 law in question actually did not increase harmonization--and, in certain cases, hurt it. Plus, Rothstein doesn't seem to recognize that "harmonization" as a justification for copyright extension becomes an endless cycle, as each country uses the others' higher copyright terms to justify increasing its own copyright terms.

"Even Disney had to purchase rights to 'Winnie the Pooh.'"

Of course, they didn't exactly play nice.

"[I]f cultural health were really affected by whether Mickey and his contemporaries were in the public domain, there may be other, more serious problems to consider first--like why a truly creative culture can't find other ideas to work with." (emphasis added)

Whoa! A jab at the artists here--you're only complaining because you're just not original enough so you have to steal other people's ideas. The problem with this argument: people will come up with truly original ideas no matter what copyright law is. The question is whether copyright protection prevents people from coming up with additional ideas or works that may be derivative. (There is some overlap, of course--it is possible that some artists would rather create derivative works than original ones, so allowing derivative works would suppress some original content. But that's still saying that artists are really lazy--even lazier than corporations, which, my goodness, rely on their past creations rather than finding "other ideas to work with"!)

And finally: "What innovations, for example, are being thwarted by corporate control over Mickey Mouse?"

Well, I don't know specifically about Mickey Mouse. But there are at least two broad reasons why innovation is being stifled. First, because copyright holders have exclusive control over their material, sometimes mere neglect by copyright holders will in fact prevent people from accessing other people's creations, so that others are kept away from the (uncopyrightable) ideas that may spark even truly original creative talent. (Artists, after all, can be inspired by another's work even if their eventual work has nothing to do with the orginal.) Second, sometimes the ability to use another person's creative content is a wonderful spur to your own creations. This is what Disney's works (and Randall's) exemplify. Now, of course, you can always license somebody else's intellectual property--but what's important is that, because it's property, the price is set by the copyright holder, so it is entirely possible that the copyright holder may simply refuse to grant permission, for whatever reason. And, of course, nothing has been said so far about the artists who have great ideas that use (rather than "rip, mix, and burn") Mickey Mouse--but who decide not to pursue those ideas because of fear of Disney.

This doesn't even address all the other harms of the Bono Act--see the Library Associations' brief and the Project Gutenberg brief here, for instance. But the article is already problematic enough, without getting to these larger omissions.

 
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· Edward Rothstein writes
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· finally settling
· petitioner's opening brief
· didn't exactly play nice.
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"User's Login" | Login/Create an Account | 9 comments | Search Discussion
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Re: Lessig's Arguments Are ''Overwrought'' (Score: 1)
by tompoe on Sunday, January 19 @ 22:10:28 EST
(User Info | Send a Message) http://www.studioforrecording.org/
Thanks for posting this for those few of us unwilling to tolerate NYT's linking nonsense.

Eddy apparently is seeking a career in Hollywood, if one judges the theme of his article correctly. Nothing like using a mainstream media distributor to broadcast propaganda that borders on mistruths.

The question is, why would he not be willing to demonstrate just a minimum of ethical consideration. There are few that believe we come up with original ideas out of the blue, with no experience, education, communication background to build on. Maybe he likes standing on the shoulders of slugs! and dishing out dribble.
Thanks,
Tom Poe
Open Studios
http://www.studioforrecording.org/
"There's no Public Domain unless we do it ourselves"
January 15, 2003


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Re: Lessig's Arguments Are ''Overwrought'' (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Monday, January 20 @ 08:51:55 EST
There's a slight point here, which is that creativity is still permitted to exist under perpetual copyright as long as it doesn't take the form of Mickey Mouse and friends and the other zillion and a half copyrighted things that are out there.

It also means, a la Wind Done Gone, that you've got to pay hefty legal fees to parody something and you effectively lose your right to participate in your culture by losing the ability to cite to Mickey Mouse as a referent.

Arguably, all that is creative is derivative -- (e.g. everything written is derivative because language only has meaning because it is derivative, see Poststructuralism)... But, anyway, I think this is preaching to the choir in this forum.

I'm sure the NYT article will resonate with some folks. Authorship rights are culturally real -- many people don't see the problem with telling artists to go out and make their own mouse. Its something copylefters should bear in mind.


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Re: Lessig's Arguments Are ''Overwrought'' (Score: 1)
by JohnKelvie on Monday, January 20 @ 09:47:40 EST
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I'm surprised to see the commentary so focused on the merits of copyright. I think many folks, at least those with a sympathy that lies with artists as opposed to corporations, perceive the extensions of these rights as having a negative effect. But to my understanding, and IANAL, the arguments Lessig presented in this case were less than compelling from a _constitutional_ perspective.

Congress has the power to pass limited copyright laws as it sees fit(to protect and further creativity or something along those lines is how it is worded I believe). I think the most reasonable analysis I have seen of this was on theregister, where the always insightful Thomas C Greene suggested that having the power to further creativity does not mean that congress is bound to find the optimum point of balance, but rather has a wide leeway to basically do whatever it wants with respect to copyright, as long as there is some limit. So we may not like the copyright law, but the supreme court is not the correct venue to address this. Rather, it is congress.

So to get back to the point I was trying to develop, I'd like to hear some more about the legal and constitutional merits of the case, especially with respect to the understanding I have of it as laid out above. After all, if I'm looking for trolls, I can just go to slashdot.




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Re: Lessig's Arguments Are ''Overwrought'' (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Monday, January 20 @ 12:24:06 EST
Accord with Wu here [home.telepath.com] and, for the time being here [home.telepath.com]


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Not getting it... (Score: 1)
by goneaway on Tuesday, January 21 @ 08:57:23 EST
(User Info | Send a Message) http://www.teammurder.com
Per usual the trolls-for-Big-Media are not getting it and associating fair use with plagarism. There is a huge difference between appropriating an idea and simply referring to it to give context to another idea. Being able to simply enjoy freedoms already granted by copyright law is more what Lessig's suit is all about. It's more than a little scary that private people are having their pockets stuffed and churning out stuff like this.


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Re: Lessig's Arguments Are ''Overwrought'' (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Tuesday, January 21 @ 12:10:59 EST
Another discussion of Rothstein's article is currently at Nerdlaw: http://www.nerdlaw.org/ [www.nerdlaw.org]


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Re: Lessig's Arguments Are ''Overwrought'' (Score: 1)
by TomWiles on Tuesday, January 21 @ 13:24:33 EST
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I do not think so. When Newton was asked if he was a Giant in the area of Math and Science he answered "I am not a Giant, I stand on the sholders of a Giant".

Ben Franklin said much the same thing (check his writings on the subject).

I am firmly of the opinion that all patents applied for in the last fifty years have been based (to some extent) on prior art.

All copyrighted material is based (to some extent) on the authors education and experience! If you take the MPAA''s view, everything that they do not own is a derivative work.



TOM


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Re: Lessig's Arguments Are ''Overwrought'' (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Tuesday, January 21 @ 15:27:33 EST
The Franklin statement that an earlier post refers to is probably this one from Autobiography:

Governor Thomas was so pleased with the construction of this stove [i.e. the Franklin stove]...that he offered to give me a patent for the sole vending of them for a term of years; but I declined it from a principle which has ever weighed with me on such occasions, viz.: That, as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously


A citation is at footnote 16 of This essay [www.law.asu.edu]


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Re: Lessig's Arguments Are ''Overwrought'' (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Thursday, January 23 @ 11:52:25 EST
A brief critique is available at teleread.org: http://www.teleread.org/blog/2003_01_01_archive.html#90205333 [www.teleread.org]


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