Public Domain Days Should Be Better

For the first time in 21 years, on January 1st works entered the public domain as their copyrights expired. This is both a major victory and a crushing defeat for IP freedom, depending on your expectations. Copyright terms have been continually expanded for decades, and so many people expected 2018 to see a battle as Congress tried to extend copyright terms yet again.

This failed to materialize. Timothy B. Lee at Ars Technica says that the mere threat of internet activism made this a battle the entertainment industry could not win:

“There’s now a well-organized, grassroots lobby against copyright expansion,” Grimmelmann tells Ars. “There are large business interests now on the anti-expansion side. Also a wide popular movement that they can tie it into.”
The rise of the Internet and its remix culture means that a lot of people now benefit from a growing public domain in ways that weren’t true in 1998. That includes big companies like Google, but it also includes grassroots communities like Wikipedia editors and Reddit users. This emerging copyright reform coalition flexed its lobbying muscles in 2012 when it overwhelmingly defeated an Internet filtering bill called the Stop Online Piracy Act.

So that’s pretty awesome. However, we should note that the current copyright length of 95 years is still a horrific travesty. I’ve written about this before, so I will quickly summarize some points and add a couple additional ones. First, copyright is not like other forms of property; it’s an agreement between artists and the state to provide monopoly control over a work of art for a specific period of time in order to provide an incentive for creative works. The law should find an optimum between allowing people to build upon works creatively and rewarding artists for their creations, but because the benefits of copyrights and concentrated and the costs of long copyright terms are diffuse and hidden, we now have very long copyright lengths.

It’s excellent that we won’t be getting longer copyright terms this year, but they should be much shorter. The fact remains that works that will expire between now and 2038 should never have had their copyrights extended. In fact, there is no argument that currently copyrighted works should ever be extended! They are already invented, meaning the copyright law has done its job. Copyright extensions should only work prospectively, encouraging new works that wouldn’t be created otherwise. Does current copyright length optimize for both creating works and allowing new works to build off of old ones? It’s unlikely.

One reason the copyright trade-off seems far too protective is that artists are simply not planning 95 years in the future. I don’t have hard evidence on this, but that may be because psychologists have never bothered to check whether humans plan 100 years in the future because it’s such a ridiculous proposition that no one would take their experiment seriously. There are for example, plenty of articles wondering why humans don’t do things that would obviously benefit them, like evacuating from a flood zone when a hurricane is coming. Moreover, even if you “took humans out of the equation” and had a systematic, long term time horizon corporation investing in creative works with a discount rate of 5%, cutting the length of copyright from 95 years to 50 years keeps over 92% of the net present value. In other words, even if you had a long term planning vehicle that avoided human psychological pitfalls, the vast majority of works would still be created today.

Finally, because the length of copyrights is so long, we are creating orphaned works (see the Center for the Public Domain). It would be nice in theory that artists’ estates are collecting royalties for 95 years. But in reality, only artists who were quite successful during their lifetime could afford to set up an estate who could license out their works. Many works are just so old that we have no idea who owns the copyright, and it’s literally impossible to license them if we wanted to. This problem will only get worse as more and more copyrighted works come from after 1976 when all creative works automatically received a copyright without any registration. One result of this policy is that some works will be lost forever; the physical media upon which the works were originally recorded like paper and film are literally disintegrating. People today have no incentive to digitize works as copyright claims could appear making their work unprofitable. Our current policy helps a few highly successful copyright holders while making it too expensive to bother preserving or remaking the work of all others, not to mention the hidden cost of lost derivative works.

So absolutely, let’s celebrate that we finally have a Public Domain Day for the first time in 20 years, but let’s not overlook the problems that still exist.

Oracle v Google is Everything that’s Wrong with Copyright

This week, the Oracle v Google trial came to a close, with a jury finding that Google’s use of Oracle’s Java API names was fair use. This is, of course, not the end, as Oracle has vowed to appeal the decision.

The outcome is monumental, but only because the courts have previously erred significantly and ruled that APIs are copyrightable at all. The Supreme Court had refused certiori to examine that ruling of an Appellate court, which in turn was a reversal of a District court decision (EFF has all the details). Interestingly, this most recent case was heard under the original judge, so it’s quite possible the Appellate Court will reverse again. I think it’s crazy to suggest that API names are even copyrightable, but given that they’ve been ruled as such, I can’t see how use of APIs isn’t fair use.

Google didn’t copy Oracle’s code; they rewrote it themselves, but used the same name for the code functions, and then packaged it into a much better product than anything Oracle had created. And it’s not like this negatively impacted Java’s market viability (contrary to what Oracle claims); Android likely saved Java from becoming a defunct language used only in big enterprise environments. Younger aspiring developers want to program in languages for apps and new web technologies like Ruby, Node, Swift, and even Python. But the only new reason to know Java is because Android exists; if Android had picked Python, that’s what everyone would be learning to make Android apps. It’s ridiculous.

But more fundamentally, the use of API names can’t be restricted! That defeats the whole purpose of having them! Sure, Twitter has the right to restrict the calling of functions on their servers through their APIs, but the actual name of the REST calls isn’t theirs forever now. Steve and Leo on Security Now said it very well about APIs:

It’s driving a car. If we didn’t have a single uniform car/driver interface, meaning brake and accelerator, and this is how the steering wheel works, it would be a disaster. And as I thought about this more, I realized that this notion of standards is what this comes down to. And standards are such a part of our life that it’s even – it’s almost hard to appreciate the degree to which we depend upon them. I mean, think about even threads, you know, nuts and bolts with standard threading. If everyone just made up their own, so that screws were not interchangeable, it would just be a catastrophe.

I would go even further; a steering wheel is a patentable invention that other car companies would have to pay to use…but calling it a “steering wheel” isn’t something you can restrict. Doing so would be a blatant misuse of copyright and horrific reduction in free speech. Steven Gibson continued:

And, I mean, so I guess my real complaint is that Oracle has historically benefited from the spread and the use of Java. And so because they allowed that to happen, it’s done as well as it has. And suddenly now Google has capitalized on it, and they’re wanting to take their marbles back and to say – or basically, essentially, this is a $9.3 billion lawsuit. So they’re saying we want some of the revenue which Google is obtaining as a consequence of doing a far better job in commercializing and leveraging Java for profit than we ever could. Because all we’re doing is telling everyone to get Java out of their computers…

…The BIOS is another perfect example. The fact that IBM gave us an interface called the Basic I/O System allowed all kinds of programs to be written without regard for whether it was, for example, a color graphic display or a monochrome graphic display. They were completely different. They occupied different hardware regions. Yet the BIOS hid those differences so that a program didn’t have to worry about what type of hardware you had. And that was an API, a standard. But just in general this kind of standardization, you can sort of imagine sort of a Mad Max post-cataclysm world where you no longer have standards, and everyone’s thing is just made from scratch, and they’re not – nothing’s interoperable. And it would just be a bizarre place.

And I think one of the major things that the Industrial Revolution did was it taught us the power of interoperability. And here Oracle is trying to say, yeah, we’re going to get a toll for you using something that we purchased and never figured out how to use.

I’ve said it in the past, and I’ll keep saying it: the purpose of all intellectual property law is not to help the owners of intellectual property, but rather to promote creativity and new works. Ruling that API names are copyrightable does literally nothing to promote interoperability or improve technology; it only makes it harder to improve the world. Getting this fair use ruling is better than nothing, but it should never have come to this.

Photo credit: Android Lineup by Rob Bulmahn, licensed under CC-BY-2.0.

Intellectual Property and Cultural Appropriation

The point of intellectual property is to promote the creation of new content, but IP has become so cumbersome it actually thwarts creativity rather than promote it. However, restrictions do not just come in the form of laws, but also critiques of what society finds socially acceptable. Concerns about avant-garde art pushing boundaries would normally be considered the domain of traditional conservatives. Nonetheless, recent developments have made unlikely critics on the Left, concerned about new art “appropriating” the culture of minorities.

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In a previous post, I made a strong argument that copyright has become too restrictive. Other forms of intellectual property, like patents, aren’t much better. Duke Law Professor James Boyle has written extensively on this issue: What Intellectual Property Should Learn From Software, A Manifesto on WIPO and the Future of Intellectual Property, and a free book, The Public Domain. Software patents are especially annoying, just ask Richard Stallman.

I had previously stated that IP is interesting because it has a utilitarian basis, not a moral one. Professor Boyle has more degrees than me and says it better:

Yet intellectual property rights are not ends in themselves. Their goal is to give us a decentralized system of innovation in science and culture: no government agency should pick which books are written or have the sole say over which technologies are developed. Instead, the creation of limited legal monopolies called intellectual property rights gives us a way of protecting and rewarding innovators in art and technology, encouraging firms to produce quality products, and allowing consumers to rely on the identity of the products they purchased.

While some academics, technology groups, and libertarian groups (like the Cato Institute) have talked about the problems with IP, mainstream politics has yet to really embrace the discussion, with one exception: the Left is not a fan of pharmaceutical patents. For example, ThinkProgress lauds the Vatican for speaking out against drug patents, and the Huffington Post bemoans the extension of drug patents in the TPP. Naturally, these articles do not have a great grasp of markets or how they work to benefit individuals, but they do bring forward some interesting points; ThinkProgress holds drug patent laws as more of a moral issue keeping lifesaving drugs away from the poor, while the Huffington Post piece (written by the founder of the CEPR) supplies alternative, more efficient ways to run the drug patent system. If you want a counterpoint, I’d recommend The Economist’s commentary on this topic.

I think this discussion is excellent, and more Republicans should start talking about the most obvious IP reforms, like reducing the amount of patents issued (especially in software), and making it easier for the FDA to approve more drugs at lower cost to companies. Unfortunately much of the discussion about cultural appropriation is decidedly less excellent. Continue reading Intellectual Property and Cultural Appropriation

Copyright versus Creativity

Unlike the cave painting above (which is no longer under copyright), you are reading an article whose copyright will expire in over a century. Given the life expectancy of an American born less than 30 years ago, I’m likely to just miss the next Cubs World Series win in 2070. But 70 years after I’m dead, my copyrights will expire, meaning you will be free to incorporate this article into a movie or perhaps a 3D hologram, sometime around 2140. Of course, that assumes copyright law won’t change in the intervening 130 years. History seems to indicate otherwise, as 130 years ago, my copyright would have only lasted 56 years, which suggests this article’s copyright might not expire until 2170, or maybe even 2200!