Thomas Edison, Intellectual Property and the Recording Industry

By George Ziemann 6/04/03

Chapter 4 -- Copyright and the Grand Illusion

Okay, I lied. Chapter 5 has to be the story I was going to write originally. Because today I have new information. Actually got it a few hours ago, so technically it was still June 3, in case anyone cares. Either way, we're still interactive.

Went to see a trademark/patent attorney to ask a few questions, inspired by the first three chapters of this article, but not directly related. Found him by total chance through the Maricopa County (Arizona) Bar Association. They picked his firm, not me. He wasn't referred by anyone. His name is Ken Booth.


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After we talked today and I made sure he was aware of Lawrence Lessig's birthday request (see Chapter 3, at the end), he sent me a document that he thought I might be interested in. It is a paper titled, 'Copyright Term Extension Act of 1998: Protection for an International Society', Kenneth C. Booth, University of Utah, College of Law. One of the points discussed was the Eldred case, which is why I think he sent it to me. However, I think it is a great easy-to-read summary of the entire history of copyright law. But I'm going to adapt it a little. Edit it down to the fine points and significant quotes.

Because, for the first time, I now understand why things are so screwed up with copyright law. It is so simple, it is ridiculous. And it only surfaces when you look at it without any rhetoric. So here are the hard facts, according to Mr. Booth, which I have no reason to nor intention of questioning.

The History of Copyright

Next, Booth points out that Thomas Jefferson used actuarial tables to determine what the average life span was, thus arriving at a 20-year suggestion for the length of a copyright. The 14-year copyright with one renewal seemed to cover the life-span of the author and give them a chance to not lose the copyright if they were still alive at the end of the first term.

Then he brings up the "M" word.

Long after his discussions with Thomas Jefferson on copyright term limits, James Madison was still concerned with limiting monopolies. He wrote:

"Monopolies, though in certain cases useful, ought to be granted with caution, and guarded with strictness against abuse. The Constitution of the United States has limited them to two cases -- the authors of books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use. There can be no just objection to a temporary monopoly in these cases; but it ought to be given. . . . Perpetual monopolies of every sort are forbidden, not only by the genius of free governments, but by the imperfection of human foresight."

Some charts and tables, apparently (this was a document ending in .doc, which my Mac never REALLY knows how to deal with.), showing how the copyright law has gradually expanded to includes prints (1802), music (1831), dramatic compositions and performance rights (1856), photographs (1865), paintings, drawing scupltures and fine art (1870), as well as how the term of copyright has expanded.

A little more background on how the copyright law has been pulled in the last 10 years in favor of matching the copyright laws of the European Union, which offered 20 years more protection that the U.S., prior to the adoption of the Copyright Term Extension Act (CTEA) in 1998. He goes on to explain that, since the laws are now in place, reducing them would actually be a violation of the Berne Convention, which prohibits reducing the length of a copyright, even though the original Berne Convention only called for life of the author plus 50 years.

Throughout the 104th Congress, controversy arose between legal scholars and authors. The legal scholars argued the copyright protection was already sufficient to provide incentive to create and that extending copyright terms would reduce rather than increase overall creativity.

The authors, supported heavily by the music, literature and movie creating, licensing and publishing communities, the Copyright and Trademark Office, and the Chairman of the Judiciary Committee, arguing that an extension is necessary to protect U.S. copyright holders in the international market, and that a longer term of protection will provide authors a greater creative incentive.

William F. Patry , formerly counsel to the Subcommittee on Intellectual Property & Judicial Administration, Committee on the Judiciary, U.S. House of Representatives, describes the typical process for creating and passing copyright legislation as follows:

"Copyright interest groups hold fund raisers for members of Congress, write campaign songs, invite members of Congress (and their staff) to private movie screenings or sold-out concerts, and draft legislation they expect Congress to pass without any changes. . . . [ S]ome copyright lawyers and lobbyists actually resent members of Congress and staff interfering with what they view as their legislation and their committee report."

The Grand Illusion

There is one big problem with Mr. Booth's paper, which is probably the reason ASCAP gave him an award for it. It is perfectly correct and almost hits a home run. But it stops just short and that's the way the recording industry likes it. There is a giant facade already put in place before the U.S. government as far back as 1998, if not before.

Yeah, a few authors got paraded out to make their statements, supported heavily by the music, literature and movie creating, licensing and publishing communities, to argue that a longer term of protection will provide authors a greater creative incentive.

The authors were lying out their asses. To everyone.

If they work for a major label, the "copyright interest groups," as you put it, then the authors don't own their copyrights. The labels do. If they don't already have a good contract, you can extend copyright protection for a million years and it won't get that signed artist an extra dime. The authors have been systematically stripped of their copyrights and then forced to tell Congress how extending their copyright life would benefit them.

Pure unadulterated bullshit. It all assumes the author owns the copyright, which is the fundamental flaw to all of this arguing in reference to the recording industry.

THE AUTHOR AND THE COPYRIGHT OWNER ARE NOT ALWAYS ONE AND THE SAME.

Madison and Jefferson talked about this. They were for authors' rights and worried about monopolies. Not a lot of discussion about the rights of people who publish such works. In fact, when there was a discussion about the publishers (see Chapter 3), the case went in favor of the artists. The publishers are not the issue. And they are not the concern of the U.S. Copyright Office, the mission of which is to "promote creativity and administer an effective national copyright system."

It says nothing about promoting the interests of the the monopolies for profit, while they let the artists starve by legal deception and contractural theft. It says nothing about allowing record labels to lock an artist's back catalog away forever because it is no longer profitable for them to produce, much less doing the same with "digital rights management" that becomes instantly obsolete at every iteration. For those products, many of them have been locked up and the key is gone.

Because no one represents the authors. The RIAA does not, although they proclaim to (another lie). ASCAP admits that it does nothing for the artists. When I lived in a union state, I saw how the American Federation of Musicians works. I'll just say I'm glad I live in a right-to-work state and leave it at that.

Tee hard part is to try and convince the lawyers, the lawmakers and the general public the plain truth -- Everything you know about the music business is wrong. It is all a big set-up. Go read the Recording Artists Coalition website. They're complaining about health care, contracts, webcasting rates. AOL gives its 30-hour employees better benefits than Warner Music gives Don Henley.

Because Don doesn't own his songs, either.

Copyright laws stopped benefitting the authors long ago, at least in the music world. If you're in the club, if you "make the big time" and finally ink that record deal you've worked so hard for, you lose your copyrights. You sign away the rights to your life's work. And you'll never get it back. Neither will your family.

Not for almost 100 years.

My personal opinion is that all of the extended copyright stuff is fine -- if you are the author AND the copyright owner. However, if you are the owner of a copyright and not the author, it would seem to nullify a great many of the foundations upon which the founding fathers constructed the Constitution. If the copyright does not benefit the author, what protection does it deserve?

If the length of the copyright is to maximize the author's benefit, then once it is sold, a different rule should apply. Especially if the "owner" ceases to commercially offer the "intellectual property" for the benefit of ANYONE.

Yes, ladies and gentlemen, the entire copyright provisions of the Constitution have been hijacked and twisted by a parade of misleading testimony and a fraud which has been going on for years.

But they'll indict Martha Stewart for cashing out a stock before it dived. It's not like she could change it from dropping. Meanwhile, the RIAA goes on.

Everyone knows all of this. It's not a secret. It's plain as day. But it never comes out that way in court. Or in front of Senate hearings. Or the DMCA. We haven't heard about it in the media, either.

After the FCC's June 2 decision to further deregulate the media, chances are that we never will.

What a country, eh? Best government that money can buy.

More to Come.

Chapter 1-- The Dawn of Recorded Music and the First Pirates
Chapter 2 -- Music, Movies and Monopoly
Chapter 3 -- The Industry Evolves
Chapter 4 -- Copyright and the Grand Illusion
Chapter 5 -- Bringing the Past Into the Present

 


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Other MP3 stories:
Copy Protection and the Reasonable Man
Review: Neuros MP3 Digital Audio Computer

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