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Scrivener's Error| null | |
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Scrivener's Error |
Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting. |
15:52 [GMT-6]
Lawrence Solum's thoughtful, and sometimes even persuasive, blawg Legal Theory occasionally touches on matters of intellectual property. Today, for instance, he states the following, which IMNSHO completely misses the point of intellectual property:It is very difficult to generate informal social support for laws that are unjust. The case for copyright is problematic at an abstract theoretical level, but there are virtually no intellectually respectable arguments for the copyright laws in their current form. A copyright term of 5–10 years is (in my opinion) justified; a term of 120 years is rent-seeking, pure and simple—not to mention retroactive extensions. The anti-circumvention provisions of the DMCA might be defended, if technological protections for fair use and use after expiration had been mandate, but in their current form, these provisions provoke a sense of outrage. IP practitioners frequently complain about the academy—the "copyleft" as they are found [sic] of saying. Some of this criticism is justified, but much of it is just plain silly. It is hardly surprising that rent[-]seeking legislation generates criticism.
(emphasis added)
At a policy level, there is certainly some attraction to Professor Solum's argument. The anticircumvention provisions of the DMCA are not, in fact, defensible under any circumstances as they are written, and 120 years is an excessive term for copyright. The problem, however, is his mistaken implication that "rent-seeking legislation"—in this context, long copyright terms—is always unjustified.
The fallacy here is a simple one: Note that seeking a rent from physical property, such as mineral rights in a piece of real property (note that "rent" has a specific economic meaning not related to the so-called "rent" on an apartment), does not receive similar condemnation (and, based on the remainder of his blawg, I would assert that such condemnation would be inconsistent, but that's for another time). Put another way, some properties are more equal than others.
I disagree with the other underlying assumption, too: That the excessive term limits are themselves a (or perhaps, by implication, the) major factor in public disdain for copyright. The problem is not excessive term limits per se, but abuse of those term limits by distributors. The reality is that very, very few actual creators ever engage in the kind of nonsense that corporate owners of intellectual property consider normal business practices. For example, very few people are aware that the real royalty rate on a book that earns out its entire advance (which is less than 20% of trade fiction) averages slightly over 6% of the book's cover price, before taxes. The real royalty rate on a CD full of popular music is actually slightly higher than that.
The rent-seekers are not the creators of intellectual property. The rent-seekers are distributors and other middle-men. Not very many physical items can justify a sixteen-fold increase in the cost of an almost-finished product for the market. An automobile, for example, is probably not even close to that in raw material costs, and a book or piece of music is more comparable to having all of the raw materials machined and put together into large subassemblies than to raw materials.
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