[wordup] an incentive to create? (good stuff)

[Adam Shand]

  "Congress shall have power to ... promote the progress of science
  and USEFUL arts, by securing for LIMITED TIMES to AUTHORS and
  INVENTORS the exclsive right to their respective writings and
  discoveries."
    -- US Constitution (Article 1, Section 8)

This is an issue pretty close to me.  Ties in nicely with all my
anti-corporation stuff.  I think the idea of IP or "Intellectual Property"
is the current idea that is fueling a lot of this.  IP drives corporations
to patent any and everything to increase their value on the stock market
by being able to show that their company has exclusive use over some
ideas.

.com's seem particularly prone to this as they have (had?) little actual
worth and so anything which would keep their stock over $0.15 or make
their IPO just that little bit better ...

From: Brett Shand <brett at earthlight.co.nz>
URL: http://www.msnbc.com/news/594462.asp?cp1=1

Copyrights and copywrongs
or
Why Thomas Jefferson would love Napster

By Siva Vaidhyanathan

NEW YORK, July 3 The dawn of the 21st century has illuminated an array of
conflicts over the regulation of information in America: Napster,
DVD-hacking, the right to create a parody, the rewards for freelance
writers in a digital world, and the future of the Microsoft monopoly. Each
of these cases rests on several distinct pedestals of ideals. As a nation,
we would like to reward enterprise and creativity, allow free and open
access to ideas, and benefit from a rich trove of music, literature,
journalism, and art. Often these goals conflict, and courts must choose
among them.

BECAUSE SO MANY recent cases involve digital technology, we might assume
that these are new issues, that copyright in an analog world was
relatively stable and non-controversial. But in fact, copyright was not
only one of the most lively subjects of debate among our Founding Fathers.
The values that copyright reflects echo with the very principles of the
American Revolution and Constitutional Convention.

At its birth in England, copyright was an instrument of censorship. In
1557, the Catholic Queen Mary Tudor capped off a 120-year monarchal
struggle to censor printing presses in England by issuing a charter to the
Stationers Company, a guild of printers. Only members of the company could
legally produce books. The only books they would print were approved by
the Crown.

COPYRIGHTS AND THE CONSTITUTION

In contrast, the American copyright system since 1791 has reflected
American republican values. While it granted a limited, temporary monopoly
to a specific publisher, American copyright grew to embody four democratic
safeguards:

 * A guarantee that all works would enter the public domain once the
   copyright term expired.
 * A collection of purposes that consumers could consider fair use, such
   as limited copying for education or research.
 * The principle that after the first sale of a copyrighted item, the
   buyer could do whatever he or she wants with the item, save distribute
   unauthorized copies for profit.
 * The concept that copyright protects specific expression of ideas, but
   not the ideas themselves.

OUT OF BALANCE

Copyright, when well balanced, encourages the production and distribution
of the raw material of democracy. But after more than 200 years of legal
evolution and technological revolution, American copyright no longer
offers strong democratic safeguards. It is out of balance. And our
founders especially Thomas Jefferson would not be pleased.

Copyright was created as a policy that balanced the interests of authors,
publishers, and readers. It was not intended to be a restrictive property
right. But it has evolved over recent decades into one part of a matrix of
commercial legal protections now unfortunately called intellectual
property.

GOOD DEAL FOR DEMOCRACY

Copyright is a deal that the American people made with the writers and
publishers of books. Authors and publishers get a limited monopoly for a
short period of time, and the public gets access to those protected works
and free use of the facts, data, and ideas within them.

Without a legal guarantee that they would profit from their labors and
creations, the framers feared too few would embark on creative endeavors.
If there were no copyright laws, unscrupulous publishers would simply copy
popular works and sell them at a low price, paying no royalties to the
author.

But just as importantly, the framers and later jurists concluded that
creativity depends on the use, criticism, supplementation, and
consideration of previous works. Therefore, they argued, authors should
enjoy this monopoly just long enough to provide an incentive to create
more, but the work should live afterward in the public domain, as common
property of the reading public.

AN INCENTIVE TO CREATE

This principle of copyright as an incentive to create has been challenged
in recent decades by the idea of copyright as a property right. Therefore,
many recent statutes, treaties, and copyright cases have seemed to favor
the interests of established authors and producers over those of readers,
researchers, and future creators. These trends run counter to the original
purpose of American copyright.

James Madison, who introduced the copyright and patent clause to the
Constitution, argued in The Federalist papers that copyright was one of
those few acts of government in which the public good fully coincides with
the claims of individuals. Madison did not engage in property talk about
copyright. Instead, Madison argued for copyright in terms of progress,
learning and other such classic republican virtues as literacy and an
informed citizenry.

Copyright fulfilled its role for Madison because it looked forward as an
encouragement, not backward as a reward. This fit with the overall
Madisonian project for the Constitution. If the federal government were to
operate as the nexus of competing interests, each interest would need to
approach the public sphere with reliable information.  Copyright would be
an engine for democratic culture.

When President George Washington declared his support for the Copyright
Act of 1790, he proclaimed that copyright would enrich political culture
by convincing those who are entrusted with public administration that
every valuable end of government is best answered by the enlightened
confidence of the public; and by teaching the people themselves to know
and value their own rights; to discern and provide against invasions of
them; to distinguish between oppression and the necessary exercise of
lawful authority.

JEFFERSONS DOUBTS

Thomas Jefferson author, architect, slave owner, land owner had no
misgivings about protecting private property. Yet he expressed some
serious doubts about the wisdom of copyright. These concerns were based on
Jeffersons suspicion of concentrations of power and artificial monopolies.

While in Paris in 1788, Jefferson wrote to Madison that he rejoiced at the
news that nine states had ratified the new Constitution. It is a good
canvass, Jefferson wrote of Madisons work, on which some strokes only want
retouching. Primarily, Jefferson wanted a Bill of Rights attached to the
document. But he also desired an explicit prohibition against monopolies,
including those limited and granted by the Constitution: patents and
copyright.

While Jefferson acknowledged that a limited copyright could potentially
encourage creativity, it had not been demonstrated. Therefore, Jefferson
wrote, the benefit of even limited monopolies is too doubtful, to be
opposed to that of their general suppression.

The following summer, as Congress was debating the Bill of Rights,
Jefferson again wrote to Madison from Paris. This time Jefferson proposed
specific language for an amendment that would have allowed copyrights and
patents, despite his doubts, but forbidden any other type of commercial
monopoly. For instance, Jefferson wrote, the following alterations and
additions would have pleased me: Article 9.  Monopolies may be allowed to
persons for their own productions in literature, and their own inventions
in the arts, for a term not exceeding _____ years, but for no longer term,
and no other purpose.

IDEAS, NOT PROPERTY

Significantly, the founders did not argue for copyrights or patents as
property. Jefferson even explicitly dismissed a property model for
copyright, and maintained his skepticism about the costs and benefits of
copyright for many years.

Fearing, justifiably, that copyright might eventually expand to encompass
idea protection, not just expression protection, Jefferson wrote in 1813,
If nature has made any one thing less susceptible than all others of
exclusive property, it is the action of the thinking power called an idea,
which an individual may exclusively possess as long as he keeps it to
himself; but the moment it is divulged, it forces itself into the
possession of everyone, and the receiver cannot dispose himself of it.

Jefferson then declared the flaw in the notion of copyright as property.
Unlike tangible property, ideas and expressions are not susceptible to
natural scarcity. As Jefferson wrote of copyright, Its peculiar character,
too, is that no one possesses the less, because every other possesses the
whole of it. He who receives an idea from me, receives instruction himself
without lessening mine; as he who lights his taper at mine, receives light
without darkening me.

Therefore, Jefferson feared, the monopolists could use their state-granted
power to strengthen their control over the flow of ideas and the use of
expressions.

Monopolies have the power to enrich themselves by evading the limitations
of the competitive marketplace. Prices need not fall when demand slackens,
and demand need not slacken if the monopoly makes itself essential to the
economy (like electrical power or computer operating systems).

To accomplish the task of bolstering the value of these monopolies, those
who control copyrights would have to create artificial scarcity by
limiting access, fixing prices, restricting licensing, litigating, and
intimidating potential competitors, misrepresenting the principles of the
law and claiming a measure of authenticity or romantic originality. But
when Jefferson warned of these potential abuses, they were more than a
century away. Even in the early 20th century, jurists considered
Jeffersons warnings, and skepticism about idea protection kept monopolists
at bay.

As Justice Louis Brandeis wrote in a dissenting opinion in 1918, The
general rule of law is, that noblest of human productions-knowledge,
truths ascertained, conceptions and ideas become, after voluntary
communication to others, free as the air to common use. Both Jefferson and
Brandeis dissented from the conventional wisdom of their times, but
nevertheless influenced the philosophy of copyright. So in the early
republic and the first century of American legal history, copyright was a
Madisonian compromise, a necessary evil, a limited, artificial monopoly,
not to be granted or expanded lightly.

DIGITAL DAMAGE

In the 1990s the Clinton administration championed efforts to undermine
the democratic safeguards that used to be built into the copyright system.
In addition to signing a 20-year term extension and pushing for sui
generis database protection law, the administration and Congress acted on
behalf of global media companies by enacting the most egregious example of
recent copyright recklessness: the Digital Millennium Copyright Act of
1998.

This law has one major provision that upends more than 200 years of
democratic copyright law. It forbids the cracking of electronic gates that
protect works even those portions of works that might be in the public
domain or subject to fair use. It puts the power to regulate copying in
the hands of engineers and the companies that employ them.

Because the DMCA allows content providers to regulate access and use they
can set all the terms of use. And much like the database protection
proposal, the de facto duration of protection under the DMCA is
potentially infinite. While copyright law in 2001 protects any work
created today for life of the author plus 70 years or 95 years in the case
of corporate works for hire, electronic gates do not expire. This allows
producers to recapture works already or about to fall in the public
domain. This also violates the Constitutional mandate that Congress
copyright laws that protect for limited times. The DMCA works over and
above copyright law.

DANGEROUS FOR DEMOCRACY

Most dangerously, producers could exercise editorial control over the uses
of their materials. They could extract contractual promises that the use
would not parody or criticize the work in exchange for access. Many web
sites already do this. Just as dangerously, the DMCA allows producers to
contractually bind users from reusing facts or ideas contained in the
work.

For most of American history, copyright has not only reflected democratic
principles. It fueled the engines of democracy by rewarding the efforts of
both producers and consumers of information and cultural products.

Now, as we prepare to celebrate American independence for the 215th time,
copyright is tilted to favor the powerful at the expense of the people.
But with the popularity of Napster and such unregulatable networks as
Gnutella, public is once again engaged in discussions of copyright and its
role in culture and democracy. Jefferson might not have been happy with
the recent trajectory of the law. But he would have gotten a kick out of
Napster.

-- 
Siva Vaidhyanathan, a cultural historian and media scholar, is the author
of Copyrights and Copywrongs: The Rise of Intellectual Property and How it
Threatens Creativity (New York: New York University Press, 2001). He
teaches information studies at the University of Wisconsin at Madison.