Year: 2003

Recovered from the Wayback Machine.

I wrote and subsequently pulled a posting yesterday, about the Eldred vs. Ashcroft decision. I pulled the post because I wasn’t sure if I wanted to deal with the consequences of my writing. I knew that I was not following the ‘popular’ weblogging path in my post.

However, I believe in what I wrote so I’ve re-posted it and plan on continuing the theme it started in this post. Damn the pundits, full speed ahead.

I asked in the post the question: Do the rights of the public domain exceed the rights of the author to have control over their own acts of creation? Lately, all I’ve heard is voices in defense of the commons, but what about the artist?

Aaron Swartz created a set of Tips for Book Authors having to do with how we, since I am a book author, release our works into the public domain. In the introduction to these tips he wrote:

 

The article also hints at another, more insidious kind of copyright “theft” or “piracy”: that of copyright holders who hold onto their copyrights after the author has recouped their costs. Copyright only exists to provide an incentive to authors; once they’ve done the work and recouped their cost (and possibly the cost of their next project), they should donate their work to the public domain.

Since when is an artist obligated to give their works to the public? Is this same requirement demanded of all people? Exactly when did we lose our sense of perspective when it comes to both copyright and the importance of the ‘public good’.

Rogers Cadenhead, another author, responded to Aaron with:

 

As a computer book author, I applaud Swartz for applying the terms “theft” and “piracy” to the practice of keeping book copyrights, thus ensuring that no rational discussion of his idea can possibly take place.

 

Rogers also goes on to say that if we only re-couped our costs, there would be no incentive to give up so much of our lives in order to write the books that Aaron wants us to so easily give away.

As Jonathon Delacour writes:

 

This utopian idea that authors should write for love, not money, probably reflects the majority belief that writing a book is no more difficult than baking a cake. Yet I’m reminded of a New Yorker cartoon showing two people at a cocktail party. One says, “I’m writing a novel.” The other replies, “Neither am I.”

 

If only it were as easy as baking a cake. I spent yesterday working on one section of one chapter of Practical RDF. Just one section, trying to ensure that I captured the nuances of the technology clearly, and with representative examples. One day to write the number of words you see in this post, and the last.

In the comments over at Roger’s, I wrote:

 

I’ve authored or co-authored 13 books, all related to computer technology of some form or another. None of them would live past the old copyright period much less the new timespan, because technology tends to date as soon as a book hits the streets.

As other authors in this thread can attest, computer book authors rarely make large amounts of money. Seldom can we give up our day jobs in order to write fulltime. When Aaron states that we should be restricted to only re-couping the cost of writing a book, I have to laugh; with my current effort for O’Reilly, I’d be glad if this did happen, because it’s taken well over a year to write this book.

Personal efforts aside, what people seem to forget is the larger question — when does the rights of the ‘public domain’ supercede the rights of the individual? I’m not talking about publishers or corporations — I’m talking about the artist. A book or a piece of music or painting are works of creativity that took not only effort, but time, considerable time, on the part of the artist. To say that the creator of the work has so many rights to their effort, and no more, because the will of the ‘people’ must be satisfied, is just another variation of mob rule. When are the rights of the individual respected over that of this faceless, nameless, and soul-less public domain?

Aaron has all these ideas, but he’s never published a book. He’s never had to put the amount of time and effort into writing several hundred pages, go through the editing, or listen to reviewers cutting it to shreds. He’s never paid the price necessary for him to blithley write out ‘Tips for Authors’, and telling us how much we’re entitled to for our efforts.

Cory Doctorow did an incredible thing, publishing his book online. I respect him for it. But this wouldn’t work for computer books, because chances are, free online versions of the book would cut into the sales. And these books have a short earning life span, as it is.

And I have to ask — why should we put these books online for free? I’m not denying people access to the information. They have access to much of the same information online I do, but my books help them access the information more easily. However, not having my book online won’t deny people access to the information. As for electronic forms of the book on CD, did this with Que and Sams books, and next thing we knew, they were online all over the place.

What’s worse in all of this is to be accused of being a ‘thief’ because I choose _not_ to put my work into the public domain immediately, or maybe not at all until the copyright ends. But you know, that’s my choice. Why is there this almost mob-like mentality, carrying aloft words like ‘theft’ and ‘piracy’ rather than torches, ready to condemn if one doesn’t immediately turn all of our creativity over to the ‘public domain’. Where is the good in this? To me, this is just as bad, perhaps even worse, then over-extending copyright or patent priviledges. I would rather see Disney hold on to its copyright of the Mouse, than to see artists forced to give up their creations for some ‘common good’.

 

Perhaps I should change my tag line to read: Pirating from the Public Domain since 2001.And ya know something? I plan on continuing my ‘pirating’ into the future.

Arrr!

Update: Larry Stanton in my comments referred to posts by Jack Balkin about the First Amendment clause issue of Eldred vs. Ashcroft. This gentlemen is a constitutional lawyer specializing in first amendment law, and his posts on this issue, here, here, and here are rich reading — clear explanations from an expert’s viewpoint.

As I said earlier, I know that Larry (Lessig) is disappointed at the results of Eldred vs. Ashcroft, but this opportunity for us to see constitutional law in action, and to hear from the experts as ‘regular folk like you and I’, is worth its weight in blogger gold.

Thanks Larry Stanton for links. And I did notice that Denise Howell also had linked to Jack Balkin but I had missed it, earlier.

-earlier-

Where others have been seeing failure about the Eldred vs. Ashcroft decision, I’ve seen nothing but triumph. I do not agree with Larry Lessig that he ‘failed’; and the guiding principles behind this decision should be ones that, once the emotion of this moment passes, he also should be celebrating.

A small group of people took on not only the powerful entertainment industry but the very Congress of this land. They could do so because the Framers of the constitution instituted a court of last resort — the Supreme Court. In this court all power is set aside and two parties could argue a case based on its own merit. In this very court even the smallest of us could have one last word.

However, there is nothing in the Constitution that says that the law of the land favors the small, or even favors the fair. Because of this, the court of last resort sweeps aside all emotion in addition to the power. This is not to make it an unfeeling court, but one whose decisions are based on careful consideration of the law, as well as the impact of the decison over the future and the past — something too important and far reaching to trust to the vagaries of emotion. Who dances on the side of angels changes too frequently to allow this any influence of the decision within this court.

In the last 48 hours, we’ve been given an opportunity to read the decisions of the Justices, to get a glimpse into the minds of these, the defenders who stand at the last bulwark between law and lawlessness in our land. Adding to this richness of this experience, Larry himself, in an expression that is both simply stated as well as compelling, provides insights into the mind of the man who prepared this case. Rather than a dry recital of fact, tonelessly presented in sound bites on the evening news, we’ve been given a glimpse into how law — law at it’s best — in this country works, or was meant to work when framed many, many years ago.

The Supreme Court denied the challenge of Eldred vs. Ashcroft, true. Who is to say that their reasons are not good? Larry wonders if the reason the justices denied the challenge is because the Court will only accept a role to defend the rights of the states against Congress, and not the public domain. But what is the public domain that it needs defense?

A question lingers through all of this: Do the rights of the public domain exceed the rights of the author to have control over their own acts of creation?

We may say that copyright is evil, that it denies the ‘public domain’; but to the artist, copyright is the only law they have that allows them ownership of their own work. It’s true that the copyright laws have benefited, hugely at times, major corporations, but ultimately there is that barely known writer or painter whose only defense against theft of his or her work is copyright law. Could this not have weighed strongly with the justices, this image of the artist rather than the corporation? The rights of the individual versus the rights of the common good? It’s at the back of my mind; are they so very different from me?

However, the copyright law itself was not the wearer of the black hat in this particular challenge. And the law itself was not the basis of Larry’s arguments. Instead, he sought to show that the Congress basically overreached itself with its extension of the copyright. What was unsaid in the arguments he provided, because they had to be unsaid, is that Congress overreached itself due to the influence of power and money — the same Congress that in its purest form should be beyond both.

However, the Supreme Court answered that though it may seem as if the Congress has overreached itself, it is not up to the members of this court to reign in a Congress that allows itself to be overly influenced by power and money — it is up to the people who put this Congress into office, and then ignored the acts of this same Congress. For the court of last resort to deny this is to deny the responsibility of the voters to ensure that the Congress acts in the best good for all.

The Supreme Court was never meant to abbrogate our own responsibilities.

Larry wrote:

 

What the Framers of our constitution did is not enough. We must do more.

I both agree and disagree with Larry — the Framers of our constitution framed it exactly right; and it is now up to us to do more.