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Jim Baen’s Universe

Page 74

by Edited by Eric Flint


  In short, my in­co­me is en­ti­rely ba­sed on sa­les and ro­yal­ti­es-and I will sta­te he­re, flatly, that I do not want and do not ne­ed the “pro­tec­ti­on” so kindly of­fe­red to me by gi­ant cor­po­ra­ti­ons who try to use me as the­ir fig le­af. The Mo­use and its 95-ye­ar cop­y­right terms can go to hell in a han­d­bas­ket, as far as I’m con­cer­ned.

  I do not want my works cop­y­rig­h­ted for my li­fe­ti­me plus se­venty ye­ars. That is ri­di­cu­lo­us. It do­es me no go­od at all. It is not­hing but an ex­cu­se for gi­ant cor­po­ra­ti­ons to lock up so­ci­ety’s in­tel­lec­tu­al he­ri­ta­ge as the­ir mo­no­poly for as long as they pos­sibly can so they can go­uge the pub­lic-and you may rest as­su­red that, when the Mo­use’s cur­rent 95-ye­ar pro­tec­ti­on plan runs out, the Gre­at Ro­dent will start shri­eking that it ne­eds yet anot­her ex­ten­si­on.

  Enough. The gro­tes­qu­ely long pe­ri­ods of cop­y­right es­tab­lis­hed by mo­dern laws are not di­rectly re­la­ted to the is­sue of DRM, gran­ted. But tho­se terms ma­ke every prob­lem con­nec­ted with cop­y­right ten ti­mes mo­re dif­fi­cult to de­al with-in­c­lu­ding DRM.

  DRM is bad eno­ugh, on its own terms. Add to that the fact that it will last for clo­se to or (often) mo­re than a cen­tury, and you put all the prob­lems of DRM on ste­ro­ids. So­ci­ety co­uld li­ve with asi­ni­ne laws that only sta­yed in ef­fect for a few de­ca­des. It can­not li­ve with asi­ni­ne laws that get loc­ked in for a hun­d­red ye­ars-with fur­t­her ex­ten­si­ons on the ho­ri­zon, be su­re of it-wit­ho­ut be­gin­ning to suf­fer from in­tel­lec­tu­al scle­ro­sis and ma­j­or po­li­ti­cal prob­lems.

  Not to men­ti­on so­ci­al ones. The mo­dern dri­ve to mo­no­po­li­ze in­tel­lec­tu­al pro­perty is not res­t­ric­ted to cop­y­right. You can see the sa­me dyna­mic at work with re­gard to pa­tents and tra­de­mar­ks-whe­re the im­me­di­ate con­se­qu­en­ces are far mo­re se­ve­re than they are with cop­y­rights. It is qu­ite li­te­ral­ly true that tho­usands of chil­d­ren die in the world every day be­ca­use of ex­ces­si­vely long pe­ri­ods-en­for­ced with ex­ces­si­ve se­ve­rity-of in­tel­lec­tu­al mo­no­po­li­es.

  To go back to the be­gin­ning, ne­ver for­get that cop­y­right is an evil. The­re is not­hing go­od abo­ut it, ex­cept that it is a so­mew­hat less evil way of re­nu­me­ra­ting aut­hors and ar­tists for the­ir la­bor than the al­ter­na­ti­ves. (Which are ba­si­cal­ly one form or anot­her of pat­ro­na­ge, be it pri­va­te or pub­lic-all of which ha­ve the­ir own set of well-es­tab­lis­hed ne­ga­ti­ve con­se­qu­en­ces.)

  So, we li­ve with it. But “li­ve with it” is the right way to vi­ew the mat­ter. Not the pre­pos­te­ro­us ap­pla­use that I find so many aut­hors sho­we­ring on cop­y­right. In my opi­ni­on aut­hors ha­ve a par­ti­cu­lar res­pon­si­bi­lity to ma­ke su­re-or try the­ir best, an­y­way-that the cop­y­right system that pro­vi­des them with a li­ve­li­ho­od do­es not be­co­me a can­cer for so­ci­ety.

  As for tho­se aut­hors who shrug the­ir sho­ul­ders and say they can’t see whe­re it’s any of the­ir bu­si­ness, I will be still mo­re blunt. If aut­hors don’t see to it that cop­y­right do­esn’t be­co­mes can­ce­ro­us, then-so­oner or la­ter-so­ci­ety will simply ex­ci­se cop­y­right with sur­gery.

  Copyright is a pri­vi­le­ge, not a “right.” It is a pri­vi­le­ge that so­ci­ety cho­se to ex­tend to aut­hors and ar­tists and ot­her pe­op­le en­ga­ged in cre­ati­ve in­tel­lec­tu­al work be­ca­use so­ci­ety ga­uged that this in­t­rin­si­cal­ly evil mo­no­poly wo­uld still, ove­rall, work in so­ci­ety’s own in­te­rest. But if and when that ce­ases to be true-and we ha­ve al­re­ady re­ac­hed that po­int-then so­ci­ety has not only the right but the duty to eli­mi­na­te cop­y­right al­to­get­her.

  To put it anot­her way, if aut­hors aren’t smart eno­ugh to ke­ep the­ir own ho­use in or­der, so­oner or la­ter they will find it be­ing do­ne for them.

  In la­ter co­lumns, I will ad­dress the prac­ti­cal as­pects of the is­sue. I will de­mon­s­t­ra­te that it is per­fectly pos­sib­le, even in the sup­po­sed “new world” of the di­gi­tal era-which ac­tu­al­ly po­ses no fun­da­men­tal new prob­lems at all-for aut­hors and pub­lis­hers to fi­gu­re out ways to ma­ke a li­ving wit­ho­ut be­co­ming a can­cer in so­ci­ety. It can be do­ne wit­ho­ut DRM, and wit­ho­ut any gre­ater cop­y­right pro­tec­ti­on than we had in ti­mes past. It’s not even hard.

  But, to con­c­lu­de, I didn’t want to start the­re be­ca­use I didn’t want an­yo­ne to ha­ve the mis­con­cep­ti­on that my po­si­ti­on-or Jim Ba­en’s-de­ri­ves fun­da­men­tal­ly from nar­row eco­no­mic con­cerns.

  It do­esn’t. It’s a mat­ter of prin­cip­le. As I sa­id ear­li­er in this es­say, first you de­ter­mi­ne what yo­ur ba­sic prin­cip­les are. Only then do you start trying to fi­gu­re out a way to ma­ke mo­ney. What you don’t do-ever-is go at it the ot­her way aro­und. Do­ing so may se­em smart and op­por­tu­ne to so­me pe­op­le, but it isn’t. It’s just a slip­pery sli­de in­to an abyss.

  ****

  One last thing. I re­fer­red to Ma­ca­ulay’s spe­ec­hes on cop­y­right ear­li­er in this es­say. Tho­se spe­ec­hes, as far as I’m con­cer­ned, con­ta­in just abo­ut all wis­dom the­re is on the who­le su­bj­ect. “New prob­lems,” ba­lo­ney. The­re is not one sin­g­le is­sue that sup­po­sedly ari­ses due to the “di­gi­tal era” that Ma­ca­ulay did not al­re­ady ad­dress over a cen­tury and a half ago.

  I strongly ur­ge an­yo­ne with a se­ri­o­us in­te­rest in this is­sue to re­ad tho­se spe­ec­hes. If you’re won­de­ring how to find them, it’s easy.

  Just see be­low.

  Prime Pa­la­ver # 4

  Macaulay on cop­y­right law

  Eric Flint

  September 1, 2001

  These are two spe­ec­hes gi­ven by Tho­mas Ma­ca­ulay in Par­li­ament in 1841, when the is­sue of cop­y­right was be­ing ham­me­red out. They are, no ot­her word for it, bril­li­ant - and co­ver ever­y­t­hing fun­da­men­tal which is in­vol­ved in the is­sue. (For tho­se not fa­mi­li­ar with him, Ma­ca­ulay wo­uld even­tu­al­ly be­co­me one of the fo­re­most Bri­tish his­to­ri­ans of the 19th cen­tury. His His­tory of En­g­land re­ma­ins in print to this day, as do many of his ot­her wri­tings.)

  I strongly ur­ge pe­op­le to re­ad them. Yes, they're long - al­most 10,000 words - and, yes, Ma­ca­ulay's ora­to­ri­cal style is that of an ear­li­er era. (Altho­ugh, I've got to say, I'm par­ti­al to it. Ma­ca­ulay ora­ted be­fo­re the era of "so­und bytes." Thank God.)

  But con­ta­ined he­re­in is all wis­dom on the su­bj­ect, an im­men­se le­ar­ning - and plenty of wit. So re­lax, po­ur yo­ur­self so­me cof­fee (or wha­te­ver be­ve­ra­ge of yo­ur cho­ice) (or wha­te­ver, pre­fe­rably not hal­lu­ci­no­ge­nic), and ta­ke the ti­me to re­ad it. The "oh-so-mo­dern" su­bj­ect of "elec­t­ro­nic pi­racy" con­ta­ins no prob­lems which Ma­ca­ulay didn't al­re­ady ad­dress, at le­ast in es­sen­ce, mo­re than a cen­tury and a half ago.

  I sho­uld no­te that Ma­ca­ulay's po­si­ti­on, slightly mo­di­fi­ed, did be­co­me the ba­sis of cop­y­right law in the En­g­lish spe­aking world. And re­ma­ined so (at le­ast in the US) for a cen­tury and a half - un­til, on a day of in­famy just a few ye­ars ago, the Walt Dis­ney Cor­po­ra­ti­on and the­ir sto­oges in Con­g­ress got the law chan­ged to the mo­dern law, which ex­tends cop­y­right for a truly ab­surd pe­ri­od of ti­me. Which - tho­se who for­get his­tory are do­omed to re­pe­at it - is a re­turn to the po­si­ti­on ad­vo­ca­ted by Ma­ca­ulay's (now long for­got­ten) op­po­nent in the de­ba­te.

  Eric Flint

  A SPEECH DELIVERED IN THE HOUSE OF COMMONS ON THE
5TH OF FEBRUARY 1841

  by Thomas Babington Macaulay

  On the twen­ty-ninth of Janu­ary 1841, Mr Se­rj­e­ant Tal­fo­urd ob­ta­ined le­ave to bring in a bill to amend the law of cop­y­right. The obj­ect of this bill was to ex­tend the term of cop­y­right in a bo­ok to sixty ye­ars, rec­ko­ned from the de­ath of the wri­ter.

  On the fifth of Feb­ru­ary Mr Se­rj­e­ant Tal­fo­urd mo­ved that the bill sho­uld be re­ad a se­cond ti­me. In reply to him the fol­lo­wing Spe­ech was ma­de. The bill was re­j­ec­ted by 45 vo­tes to 38.

  Though, Sir, it is in so­me sen­se ag­re­e­ab­le to ap­pro­ach a su­bj­ect with which po­li­ti­cal ani­mo­si­ti­es ha­ve not­hing to do, I of­fer myself to yo­ur no­ti­ce with so­me re­luc­tan­ce. It is pa­in­ful to me to ta­ke a co­ur­se which may pos­sibly be mi­sun­der­s­to­od or mis­rep­re­sen­ted as un­f­ri­endly to the in­te­rests of li­te­ra­tu­re and li­te­rary men. It is pa­in­ful to me, I will add, to op­po­se my ho­no­urab­le and le­ar­ned fri­end on a qu­es­ti­on which he has ta­ken up from the pu­rest mo­ti­ves, and which he re­gards with a pa­ren­tal in­te­rest. The­se fe­elings ha­ve hit­her­to kept me si­lent when the law of cop­y­right has be­en un­der dis­cus­si­on. But as I am, on full con­si­de­ra­ti­on, sa­tis­fi­ed that the me­asu­re be­fo­re us will, if adop­ted, in­f­lict gri­evo­us inj­ury on the pub­lic, wit­ho­ut con­fer­ring any com­pen­sa­ting ad­van­ta­ge on men of let­ters, I think it my duty to avow that opi­ni­on and to de­fend it.

  The first thing to be do­ne, Sir, is to set­tle on what prin­cip­les the qu­es­ti­on is to be ar­gu­ed. Are we free to le­gis­la­te for the pub­lic go­od, or are we not? Is this a qu­es­ti­on of ex­pe­di­ency, or is it a qu­es­ti­on of right? Many of tho­se who ha­ve writ­ten and pe­ti­ti­oned aga­inst the exis­ting sta­te of things tre­at the qu­es­ti­on as one of right. The law of na­tu­re, ac­cor­ding to them, gi­ves to every man a sac­red and in­de­fe­asib­le pro­perty in his own ide­as, in the fru­its of his own re­ason and ima­gi­na­ti­on. The le­gis­la­tu­re has in­de­ed the po­wer to ta­ke away this pro­perty, just as it has the po­wer to pass an act of at­ta­in­der for cut­ting off an in­no­cent man's he­ad wit­ho­ut a tri­al. But, as such an act of at­ta­in­der wo­uld be le­gal mur­der, so wo­uld an act in­va­ding the right of an aut­hor to his copy be, ac­cor­ding to the­se gen­t­le­men, le­gal rob­bery.

  Now, Sir, if this be so, let jus­ti­ce be do­ne, cost what it may. I am not pre­pa­red, li­ke my ho­no­urab­le and le­ar­ned fri­end, to ag­ree to a com­p­ro­mi­se bet­we­en right and ex­pe­di­ency, and to com­mit an inj­us­ti­ce for the pub­lic con­ve­ni­en­ce. But I must say, that his the­ory so­ars far be­yond the re­ach of my fa­cul­ti­es. It is not ne­ces­sary to go, on the pre­sent oc­ca­si­on, in­to a me­tap­h­y­si­cal in­qu­iry abo­ut the ori­gin of the right of pro­perty; and cer­ta­inly not­hing but the stron­gest ne­ces­sity wo­uld le­ad me to dis­cuss a su­bj­ect so li­kely to be dis­tas­te­ful to the Ho­use. I ag­ree, I own, with Pa­ley in thin­king that pro­perty is the cre­atu­re of the law, and that the law which cre­ates pro­perty can be de­fen­ded only on this gro­und, that it is a law be­ne­fi­ci­al to man­kind. But it is un­ne­ces­sary to de­ba­te that po­int. For, even if I be­li­eved in a na­tu­ral right of pro­perty, in­de­pen­dent of uti­lity and an­te­ri­or to le­gis­la­ti­on, I sho­uld still deny that this right co­uld sur­vi­ve the ori­gi­nal prop­ri­etor. Few, I ap­pre­hend, even of tho­se who ha­ve stu­di­ed in the most mysti­cal and sen­ti­men­tal scho­ols of mo­ral phi­lo­sophy, will be dis­po­sed to ma­in­ta­in that the­re is a na­tu­ral law of suc­ces­si­on ol­der and of hig­her aut­ho­rity than any hu­man co­de. If the­re be, it is qu­ite cer­ta­in that we ha­ve abu­ses to re­form much mo­re se­ri­o­us than any con­nec­ted with the qu­es­ti­on of cop­y­right. For this na­tu­ral law can be only one; and the mo­des of suc­ces­si­on in the Qu­e­en's do­mi­ni­ons are twenty. To go no fur­t­her than En­g­land, land ge­ne­ral­ly des­cends to the el­dest son. In Kent the sons sha­re and sha­re ali­ke. In many dis­t­ricts the yo­un­gest ta­kes the who­le. For­merly a por­ti­on of a man's per­so­nal pro­perty was se­cu­red to his fa­mily; and it was only of the re­si­due that he co­uld dis­po­se by will. Now he can dis­po­se of the who­le by will: but you li­mi­ted his po­wer, a few ye­ars ago, by enac­ting that the will sho­uld not be va­lid un­less the­re we­re two wit­nes­ses. If a man di­es in­tes­ta­te, his per­so­nal pro­perty ge­ne­ral­ly go­es ac­cor­ding to the sta­tu­te of dis­t­ri­bu­ti­ons; but the­re are lo­cal cus­toms which mo­dify that sta­tu­te. Now which of all the­se systems is con­for­med to the eter­nal stan­dard of right? Is it pri­mo­ge­ni­tu­re, or ga­vel­kind, or bo­ro­ugh En­g­lish? Are wills jure di­vi­no? Are the two wit­nes­ses jure di­vi­no? Might not the pars ra­ti­ona­bi­lis of our old law ha­ve a fa­ir cla­im to be re­gar­ded as of ce­les­ti­al in­s­ti­tu­ti­on? Was the sta­tu­te of dis­t­ri­bu­ti­ons enac­ted in He­aven long be­fo­re it was adop­ted by Par­li­ament? Or is it to Cus­tom of York, or to Cus­tom of Lon­don, that this pre- emi­nen­ce be­longs? Su­rely, Sir, even tho­se who hold that the­re is a na­tu­ral right of pro­perty must ad­mit that ru­les pres­c­ri­bing the man­ner in which the ef­fects of de­ce­ased per­sons shall be dis­t­ri­bu­ted are pu­rely ar­bit­rary, and ori­gi­na­te al­to­get­her in the will of the le­gis­la­tu­re. If so, Sir, the­re is no con­t­ro­versy bet­we­en my ho­no­urab­le and le­ar­ned fri­end and myself as to the prin­cip­les on which this qu­es­ti­on is to be ar­gu­ed. For the exis­ting law gi­ves an aut­hor cop­y­right du­ring his na­tu­ral li­fe; nor do I pro­po­se to in­va­de that pri­vi­le­ge, which I sho­uld, on the con­t­rary, be pre­pa­red to de­fend stre­nu­o­usly aga­inst any as­sa­ilant. The only po­int in is­sue bet­we­en us is, how long af­ter an aut­hor's de­ath the Sta­te shall re­cog­ni­se a cop­y­right in his rep­re­sen­ta­ti­ves and as­signs; and it can, I think, hardly be dis­pu­ted by any ra­ti­onal man that this is a po­int which the le­gis­la­tu­re is free to de­ter­mi­ne in the way which may ap­pe­ar to be most con­du­ci­ve to the ge­ne­ral go­od.

  We may now, the­re­fo­re, I think, des­cend from the­se high re­gi­ons, whe­re we are in dan­ger of be­ing lost in the clo­uds, to firm gro­und and cle­ar light. Let us lo­ok at this qu­es­ti­on li­ke le­gis­la­tors, and af­ter fa­irly ba­lan­cing con­ve­ni­en­ces and in­con­ve­ni­en­ces, pro­no­un­ce bet­we­en the exis­ting law of cop­y­right, and the law now pro­po­sed to us. The qu­es­ti­on of cop­y­right, Sir, li­ke most qu­es­ti­ons of ci­vil pru­den­ce, is ne­it­her black nor whi­te, but grey. The system of cop­y­right has gre­at ad­van­ta­ges and gre­at di­sad­van­ta­ges; and it is our bu­si­ness to as­cer­ta­in what the­se are, and then to ma­ke an ar­ran­ge­ment un­der which the ad­van­ta­ges may be as far as pos­sib­le se­cu­red, and the di­sad­van­ta­ges as far as pos­sib­le ex­c­lu­ded. The char­ge which I bring aga­inst my ho­no­urab­le and le­ar­ned fri­end's bill is this, that it le­aves the ad­van­ta­ges ne­arly what they are at pre­sent, and in­c­re­ases the di­sad­van­ta­ges at le­ast fo­ur­fold.

  The ad­van­ta­ges ari­sing from a system of cop­y­right are ob­vi­o­us. It is de­si­rab­le that we sho­uld ha­ve a supply of go­od bo­oks; we can­not ha­ve such a supply un­less men of let­ters are li­be­ral­ly re­mu­ne­ra­ted; and the le­ast obj­ec­ti­onab­le way of re­mu­ne­ra­ting them is by me­ans of cop­y­right. You can­not de­pend for li­te­rary in­s­t­ruc­ti­on and amu­se­ment on the le­isu­re of men oc­cu­pi­ed in the pur­su­its of ac­ti­ve li­fe. Such men may oc­ca­si­onal­ly pro­du­ce com­po­si­ti­ons of gre­at me­rit. But you must not lo­ok to such men
for works which re­qu­ire de­ep me­di­ta­ti­on and long re­se­arch. Works of that kind you can ex­pect only from per­sons who ma­ke li­te­ra­tu­re the bu­si­ness of the­ir li­ves. Of the­se per­sons few will be fo­und among the rich and the nob­le. The rich and the nob­le are not im­pel­led to in­tel­lec­tu­al exer­ti­on by ne­ces­sity. They may be im­pel­led to in­tel­lec­tu­al exer­ti­on by the de­si­re of dis­tin­gu­is­hing them­sel­ves, or by the de­si­re of be­ne­fi­ting the com­mu­nity. But it is ge­ne­ral­ly wit­hin the­se walls that they se­ek to sig­na­li­se them­sel­ves and to ser­ve the­ir fel­low-cre­atu­res. Both the­ir am­bi­ti­on and the­ir pub­lic spi­rit, in a co­untry li­ke this, na­tu­ral­ly ta­ke a po­li­ti­cal turn. It is then on men who­se pro­fes­si­on is li­te­ra­tu­re, and who­se pri­va­te me­ans are not am­p­le, that you must rely for a supply of va­lu­ab­le bo­oks. Such men must be re­mu­ne­ra­ted for the­ir li­te­rary la­bo­ur. And the­re are only two ways in which they can be re­mu­ne­ra­ted. One of tho­se ways is pat­ro­na­ge; the ot­her is cop­y­right.

  There ha­ve be­en ti­mes in which men of let­ters lo­oked, not to the pub­lic, but to the go­ver­n­ment, or to a few gre­at men, for the re­ward of the­ir exer­ti­ons. It was thus in the ti­me of Ma­ece­nas and Pol­lio at Ro­me, of the Me­di­ci at Flo­ren­ce, of Lo­u­is the Fo­ur­te­enth in Fran­ce, of Lord Ha­li­fax and Lord Ox­ford in this co­untry. Now, Sir, I well know that the­re are ca­ses in which it is fit and gra­ce­ful, nay, in which it is a sac­red duty to re­ward the me­rits or to re­li­eve the dis­t­res­ses of men of ge­ni­us by the exer­ci­se of this spe­ci­es of li­be­ra­lity. But the­se ca­ses are ex­cep­ti­ons. I can con­ce­ive no system mo­re fa­tal to the in­teg­rity and in­de­pen­den­ce of li­te­rary men than one un­der which they sho­uld be ta­ught to lo­ok for the­ir da­ily bre­ad to the fa­vo­ur of mi­nis­ters and nob­les. I can con­ce­ive no system mo­re cer­ta­in to turn tho­se minds which are for­med by na­tu­re to be the bles­sings and or­na­ments of our spe­ci­es in­to pub­lic scan­dals and pests.

 

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