January 16, 2003
Disney Wins

By now anyone reading this knows the good guys lost in the Supreme Court this week. A good place to start reading about this is The Berkman Center for Internet and Society where Larry Lessig works. You can find links there to news stories and the actual opinions, including the two dissents. His blog is filled with both his own musings on losing, as well as the support and encouragement of hundreds of well wishers.

The New York Times lamented the "end of the public domain" in an editorial today.

Posted by John Battelle at January 16, 2003 09:18 AM

Professor Lessig actually left the Berkman Center for Internet & Society in 2000 to join the Stanford Law School faculty, where he founded the Stanford Center for Internet & Society.


Posted by: commenter on January 18, 2003 01:46 AM

It may prove difficult in the short term to reduce the term of

copyrights which have already been extended. Also, the forces pushing

perpetual copyright are strong. However, there is a another route, which

may be easier, employing the concepts of Aikido -- moving with the

strong force and redirecting it in a better way. Rather than fight to

reduce the maximum term of copyrights, consider that existing and future

copyrights could be taxed annually just like real estate as long as they

are kept from the public domain. This uses a market based approach to

limit the external costs of copyright monopolies.

What is the social justification for such a tax?

Real property taxes are justified by the notion that real estate imposes

a cost on society -- for fire departments, police departments, schools,

roads, sewers, water pipelines, libraries, town courts, propery record

archives, and so forth.

Copyrights were originally monopolies granted "for a limited time" with

the notion that the costs they imposed on society would be repaid by the

work moving into the public domain after that limited time. That bargain

has effectively been broken because the terms are so long (and likely

will be in perpetuity in the U.S.A. given the recent Supreme Court

decision). Yet, copyrights still pose a cost on society. There must be

courts to dispute them, police to enforce them. There must be prisons to

hold the millions of copyright offenders. Like no one in the 1960s would

imagine a million U.S. citizens behind bars for non-violent drug

offenses in the 1990s, it is possible that there may be a million U.S.

citizens behind bars in the 2010s for copyright violations as the "War

on Those Who Share" gets underway. There must be an information

superhighway to transport these works, and standards for disseminating

them. Authors of derivative works must spend time researching whether a

work is already in the public domain, or locating all the related rights

holders if it is not. Extensions of the principle of copyright to cover

the ideas in the work such as characters or plot lines or other

structures make it ever more costly to create new non-infringing works.

Many new or derived works are not created because of these chilling

effects, which is a hidden cost of copyrights. People in developing

nations or others who can not pay use fees for copyrighted works are

deprived of education or enjoyment when such a deprivation does not

directly benefit anyone. So, given all these indirect costs of granting

copyright monopolies, society is justified in imposing a financial cost

on copyright holders to rebalance the copyright bargain.

Real estate is typically taxed at a small percentage of an assessed

value. If the taxes are not paid, the real estate essentially becomes

owned by society. Note that these annual property taxes are in addition

to any fees for recording deed tranfers, liens, title searches, and such.

Since it is difficult to value a copyright, one possiblity to determine

the value of a copyright is to let copyright holders assess themselves

how much it is worth it to them to keep their work out of the public

domain. Then the rights holder would pay annually a small percentage of

this value (perhaps three to five percent). Each year, when the rights

holder sent in their tax, the rights holder could change this

self-assessed value to reflect their changing priorities and a changing

market. If the rights holder did not pay the tax, then the work would

move immediately into the public domain. If someone wanted that work in

the public domain, they could pay the copyright holder the self-assessed

amount and the work would then immediately be moved into the public

domain. This public domain buyout possibility serves to limit the

tendency of rights holders to produce low self-assessments to minimize

their annual tax payments.

This approach could include a digital archive of all copyrighted works.

Essentially, upon intial registration of a self-assessed value, a rights

holder would be required to send in a digital copy of the work. This

copy would be used to determine rights holders for works by means of a

digital search. Any work not in this database would be presumed public

domain. If the annual tax was not paid, this archive would be a place to

get a copy of the now public domain work.

This approach could also be scaled internationally where a copyright

holdler would have to determine a self-assessed amount in each country

for the priveledge of having their copyright enforcable in that country.

A benefit of this approach is that developing nations could gain a nice

income from such monopoly payments, rather than simply suffer the

knowledge of having a citizenry deprived of the fruits of human achievement.

Incidentally, this approach can

be applied to patents as well, although since patents are much more

limited in scope, the societal bargain has not been so badly broken for

their monopolies.

To argue against such taxes, rights holders like Disney need to

both argue what they have is like real property and yet somehow isn't.

This will help expose the inconsistencies and self-servingness of their


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