Jerry Brito

This one’s not an urban legend

For a long while I’ve been bemused by the running rivalry over intellectual property issues between some of the writers on this blog and the folks at PFF. While sometimes entertaining, I often shake my head when Tim takes the time to painstakingly refute an argument from Jim DeLong that on the surface was already patently erroneous. Now, as I prepare to take the bait myself, I think I understand the feeling of exasperation that prompts such replies.

Yesterday DeLong posted an entry entitled “Another Urban Legend Shot Down.” He wrote that “One of the arguments against extended copyright terms, made in Eldred and other places, has been the charge that there are piles of books, films, etc., moldering away unseen because no one can get permission to look at them and the copyright holders are too oblivious to find and exploit useful items.” He then says that the fact that Amazon sells DVD packs that contain 50 classic movies for just $16.47 refutes the idea (or “urban legend” as he puts it) that there are other movies out there that are being harmed by extended copyright terms. He goes on, “Would such treasures be available if there were no money to be made from making them so? Doubtful.”

FIrst DeLong implies that there are no such works disintegrating out of sight and hints that such an idea is just an “urban legend.” I would point him to the Library of Congress’s report on film preservation. It catalogs precisely the fact that a great number of films are literally disintegrating. It is a fact, not a myth.


He further characterizes the argument he is trying to refute as a charge that works are “moldering away unseen because … the copyright holders are too oblivious to find and exploit useful items.” It’s not just that they are oblivious, but that they are completely unaware of their ownership. It’s called the orphan works problem and I assume he’s familiar with it. You can read more about it here. Film is a fragile medium and to preserve it one must copy it. (The same goes in many respects for photos, too.) Copying without permission, of course, is infringement–even if you can’t find anyone of whom to ask permission. This means that even if I wanted to restore 50 orphan films on the verge of disintegration so that I could make and sell an Amazon DVD pack–a fine motive–the copyright on those films will prevent me from doing so. The longer copyright terms are extended, the longer I can’t restore and sell the movies, and with disintegrating film time is a major factor.

It also does not follow that because there are DVD packs for sale on Amazon that all films will benefit from restoration. As the LOC’s report sates:

If there is a single division that separates most of the preservation issues discussed in this report, it is between two categories of films: those that have evident market value and owners able to exploit that value; and the other films, often labeled “orphans,” that lack either clear copyright holders or commercial potential to pay for their continued preservation. In practice, the former are primarily features from major Hollywood studios; the latter–numerically the majority–include newsreels and documentaries, avant-garde and independent productions, silent films where copyright has expired, even certain Hollywood sound films from now defunct studios. For these films the urgency may be greatest.

DeLong further seems to argue that without extended copyright protection, the Amazon DVD packs would not exist. He asks, “Would such treasures be available if there were no money to be made from making them so? Doubtful.” But I would point him to another series for sale on Amazon called Dover Thrift. It is a series of books, priced at about $2 each, the underlying works of which are all in the public domain. That is, they are being printed–and someone is making money–without copyright.

Therefore, what I argue for is not no copyright, but rather sensible copyright. I argue for taking into consideration the public domain, and not just the interests of creators, when setting copyright terms. What should be the balance is up for debate, but an informed debate requires that we face facts and not simply dismiss those facts as urban legends because they are inconvenient to our position.

May 6, 2006 | Comments |

Viewing 5 Comments

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    The funny thing about Jim DeLong and the PFF crew is that, beyond the problems they have understanding basic economics, they also have a DREADFUL time with basic logic.

    Nearly all of their arguments on IP issues involes absolutes about what would happen without copyright (nothing would get produced, they say). When you have such an absolute, all you need is a single example to disprove it. And, every one of their absolutes has more than just a single example.

    However, what's even more bizarre is when DeLong and the others then try to use a single example to prove their absolute. That's impossible. A single example may prove that what they're talking about is possible, but it hardly proves the absolute case. This is what happened at the CATO event when DeLong seemed to think that by saying one publication would go out of business without copyright protection that obviously all publicatoins would go out of business. And, it's what he's done here, by using a single example that hardly proves the full case.

    Also, by the way, if DeLong is so sure that no one would bother publishing works in the public domain, I wonder why publishers bother selling the works of Shakespeare...?

    Anyway, since it's so clear that the folks at PFF understand neither economics nor logic... why is it that anyone takes them seriously?
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    Mike, That last question is a good one. Why is it that anyone would take seriously superficial arguments? Why would I or Tim or other busy people take the time to address these arguments? I often wonder that myself.

    I think there might be a couple of reasons. First, a group like PFF does good work, and makes sound arguments, on many other issues. So, they can't just be ignored. An uncritical audience might accept their arguments about intellectual property because they rightly respect their authority on other issues.

    Second, I have no doubt that Jim DeLong makes his arguments sincerely and that he believes them wholeheartedly. However, his IP arguments can be seized by less principled interests groups to advance their causes. And, because of DeLong's earned eminence on other issues, he can be credibly cited. In Washington it's often not about who has the best argument, but who has the most support--something that can more easily be tallied.

    So, while some arguments might be obviously fallacious, it might still be worth answering them to hopefully brake any traction they might muster.
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    >> Anyway, since it's so clear that the folks at PFF understand neither economics nor logic... why is it that anyone takes them seriously?

    Because they provide legislators with intellectual cover for doing what they want to do - vote for legislation that benefits their friends in the entertainment industry.
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    I'm not familiar with PFF, but I would argue that copyright is not well understood by the general population and surprisingly just as well understood by many copyright creators/owners. Because of this, whenever someone provides a plain language explanation of it, it is a lot easier to grasp.

    "We need copyright extensions because otherwise no one would be able to make anything and companies would go out of business" is a lot easier to accept than trying to explain the nuances of copyright, the public domain, and the problems with continuing the extensions of copyright. Sound bites are easier to swallow than dissertations.

    Anyway, I just wanted to say that you wrote a good article. I originally read it at jerrybrito.com. Copyright is something that a lot more people are able to get involved in since the advent of citizen publishing such as blogs, personal websites, and online journals. I think a big problem is the lack of education on the topic. The most people learn is that they are not allowed to make excessive copies of pages from books while doing research papers. No one learns of the importance of public domain works, and I remember reading that the major media industries were trying to fund education that would be favorable to their point of view.

    Unfortunately the danger to most people isn't obvious. It's copyright law, after all. A large chunk of it isn't actually part of written law so much as court rulings. Any news on the topic will probably be ignored as something that "doesn't have anything to do with me".
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    Jerry,


    I think that DeLong doesn't bother to think outside of his field most of the time. Many programmers, artists, etc. couldn't imagine a life of not trying to do what we do. Copyright helps us, but we'd try to do what we do without it because it's what we want to do for a living. Copyright is a powerful means to protect our products, but DeLong has idolized it to the point that it's become the sole factor that determines whether people produce or can produce.


    DeLong really is probably the one at PFF who writes a lot online who really doesn't get it. Ross, Singleton and others at least periodically engage those outside of the PFF whereas DeLong is content with just spouting, well, crap. Yes, copyright is great, but it needs to be a way to protect an innovation, not drain its usefulness and sometimes others can take advantage of your ideas and do something better with them. That's why copyright law needs to be liberal and fluid, and DeLong can't grasp how barriers to bringing old works into the public domain can be bad for new creators and the public. Truth is, if you don't make any money on your creation within a decade, chances are you aren't ever going to so I see no point in extending copyrights beyond 25 years.


    Another thing that DeLong cannot conceive of is how a project like the Gutenburg book project could restore these films and make DVD images availible for free or a small fee online. There are a lot of people who would contribute funding to such a not-for-profit to get the equipment and many would help out with bandwidth via BitTorrent and other mechanisms.

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