24 January 2004

As Usual, Missing the Point
In an even-handed article to be published in tomorrow's New York Times Magazine, Robert Boynton tries to explain the controversy between the "strong copyright" and the "copyleft" movements. However, he—and the proponents of the two positions—have missed the boat, because they have not looked at the behavior of the actual actors. Boynton describes the controversy this way:

Once a dry and seemingly mechanical area of the American legal system, intellectual property law can now be found at the center of major disputes in the arts, sciences and—as in the Diebold case—politics. Recent cases have involved everything from attempts to force the Girl Scouts to pay royalties for singing songs around campfires to the infringement suit brought by the estate of Margaret Mitchell against the publishers of Alice Randall's book The Wind Done Gone (which tells the story of Mitchell's Gone With the Wind from a slave's perspective) to corporations like Celera Genomics filing for patents for human genes. The most publicized development came in September, when the Recording Industry Association of America began suing music downloaders for copyright infringement, reaching out-of-court settlements for thousands of dollars with defendants as young as 12. And in November, a group of independent film producers went to court to fight a ban, imposed this year by the Motion Picture Association of America, on sending DVD's to those who vote for annual film awards.

"The Tyranny of Copyright? (25 Jan. 04). As usual, this misses the point almost entirely; but the point is buried in the specific examples.

Note that every single example of questionable or surprising copyright enforcement efforts cited by Boynton in this passage (and, indeed, in the rest of the article) involves either a transferee or work-for-hire proprietor. That strongly hints that the problem is not with providing authors with the exclusive rights to their respective rights for a limited time, the constitutional imperative. Instead, it hints that the problem is with nonauthors who acquire all (or almost all, see 17 U.S.C. §§ 203, 304(c)) of the author's rights. This is a distinct behavioral difference that indicates that perhaps we need to treat the two classes of copyright holders differently, not identically.

As a modest proposal (but more serious than was Swift's), I suggest the following reforms:

  • Reform work for hire so that it treats the commissioning party as a transferee, not the original author (§ 201(b)).
  • Shorten the revocation period under §§ 203 and 304(c) to twenty years, and reverse the burden of operation—that is, make revocation automatic unless the holder agrees otherwise, instead of requiring the holder to take action. (Note that an author who is satisfied with the way his/her book, or music, or sculpture, or whatever is being handled need merely extend the transfer for another twenty years.)
  • Explicitly define the controlling holder of a collaborative, multimedia piece (such as a film) instead of relying upon rapacious industry practices to define everything as a work for hire.
  • Require the joinder of the actual (natural person) author or his/heir heirs in every lawsuit in which a transferee seeks to sue under the Copyright Act to enforce the rights it has received.

I do not pretend that these and similar changes will completely eliminate problems; they would not, for example, have prevented Margaret Mitchell's greedy heirs from attempting censorship. However, they would isolate those problems so that they could be seen for what they are, and managed without harming the rights of the vast majority of the actual authors (and, in modern use, artists, filmmakers, and musicians) whose creativity is supposed to be encouraged by copyright. However, the "bad actors" are almost entirely middlemen; the way to cut down on "bad actions" is to control the middlemen, not the original suppliers.