On Thu, Oct 8, 2009 at 22:32, David Tomlinson <d.tomlin...@tiscali.co.uk> wrote: > Yes, I am aware of this, but why five years, why not one year why not three > months, and if three months, why at all. >
Well done. You've re-discovered the Sorites Paradox. <http://plato.stanford.edu/entries/sorites-paradox/> But the copyright industry discovered it first. One thing the American Founding Fathers got right is that the test should be public benefit - whether it benefits the "useful Arts and Sciences". What they got wrong was not being a bit more specific about the "limited time" provision. I mean, yes, life plus seventy years is a "limited time" when you consider it cosmically. Given that someone is likely to produce their greatest work in their thirties or forties, given a reasonable life expectancy of 70-80 years, we are talking a century. I think a decade or two is long enough for the "useful Arts and Sciences" to benefit from a work. The problem with copyright is a perceptual one: people see "intellectual property" and they focus on the second word. It's property, they think. It's like a house or a car - I *own* it. No you don't. You are leasing it from humanity. And all that inspiration that led you to the point of creating the work has external costs. The artist wanders around the National Gallery. The writer reads books in libraries. The moviemaker watches other movies. Everyone goes to school. Many go to university. Feel free to insert Locke's labour-mixing argument here. (In the case of the BBC, which we all pay for if we have TVs, it's completely apparent that we have a moral stake in as much as we are required to pay for it if we want to watch TV. But we own a stake in every other type of cultural production too because no cultural work - at least nothing of any value - exists in a vacuum.) But again, I say, we have a Sorites problem. Unless you cope with the problem, you either end up saying we should have an infinite copyright term or no copyright at all. Yes, if we were to say 10 years extendable to 20, we'd face accusations of arbitrariness. But life+70 years is arbitrary too. Except it isn't. It's arbitrary in the same way that a badly regulated banking sector is arbitrary - it's done that way because certain people are profiting greatly from locking us away from our cultural birthright. How do we resolve the Sorites problem inherent in copyright and all intellectual property that has a temporal limit built-in? Simple. We use a Rawlsian original position thought experiment modified to cope with the same situation. Imagine that you were taken back to an original position. You were placed behind a veil of ignorance. You don't know whether when you are put into the world whether you are going to be Walt Disney or Richard Stallman. You don't know if you will be a Napster user or a member of Metallica. You don't know if you are going to be a copyright creator, a copyright reuser or whatever. Now decide on your principles. I think that given this thought experiment, a short-term copyright can be justified. Life+70 years is inequitable on Rawlsian grounds. The only people who can seriously think Life+70 years is equitable are the children of pop stars who will be collecting royalty cheques for the rest of their life for doing absolutely sweet bugger all. Just because your mum or dad is a pop star doesn't mean that the law should provide you with a guaranteed income. Two generations of my family have made their money in the printing trade. I have a feeling that the next two generations are not. Boo hoo. They've got to find a different calling in life. The other problem with morality-of-IP debates is that we do not get to see the real cost of what doesn't happen because of IP laws. It's very easy to throw out a counterfactual like "if we didn't have strong copyright protection, we'd never have The Beatles". But I'm pretty sure that for every quite reasonable counterfactual of that sort, there are a fair amount of flipsides - "if we didn't have strong copyright protection, we'd have had (some other thing we can't tell you because it never happened)". I can't tell you about the great singer we never had because of copyright limitations. I can only vaguely hint at it. The rhetorical force of specific counter-factuals has a great deal of weight compared to very general counter-factuals. But when it comes down to brass tacks, there isn't much to either of them. Are we really saying that if copyright had been 5 years shorter, the Beatles would never have existed? That seems ridiculous. (Hey, the Sorites problem works for counterfactuals too!) We can see it a bit more with technology stuff: we can see plenty of things which are perfectly legal to do with open source but which you can't do with closed source software and argue by analogy. There's a reason there are a hundred different Linux window managers - it's partly cultural, but it's also partly because of the liberty that software writers have to do that. But if you are arguing for a dramatic change to IP law, the best you can come up with is a very clumsy list of rather arbitrary and strange concrete counter-factuals like "hey, did you know, we could have more window managers if we did this" (or whatever). Okay, great. Not very convincing, is it? As an analogy for why I don't really like these counterfactual arguments about copyright and IP, let me point to an analogy. Some people who argue that abortion should be illegal provide a very bad argument against abortion which circulates around called the Beethoven argument. It goes like this: "If you knew a woman who was pregnant, who had 8 kids already, three who were deaf, two who were blind, one mentally retarded, and she had syphilis, would you recommend that she have an abortion?" (There are different variants, but the general gist is the same.) After reciting this, they wait for you to say "Yes", at which point they say "My oh my. You've just told Beethoven's mother to abort the greatest musical genius ever!" or words to that effect. (Again, sometimes it's Einstein or Martin Luther King or Jesus or whoever.) There are factual problems with the argument - feel free to consult Wikipedia if you care about the details of Beethoven's family situation. But the problem is that the counter-factual doesn't actually provide you with good reason to not abort the child. There is no way of knowing that any potential child is a genius until it becomes one. We haven't yet got some kind of magic device we can wave at pre-born infants to find out whether they are going to grow up to be serial killers or serial bestseller writers. (And even if we did, we'd have some pretty serious ethical objections to doing so.) You can't derive any relevant moral duties from the counterfactual because the counterfactual represents more knowledge than it is possible to ever have in situations of that type. That one counterfactual doesn't rule out other counterfactuals - imagine a woman who is pregnant with Future Hitler, someone who is predestined to become a ruthless dictator and murderer. She decides to have an abortion. Because she didn't give birth to this child, some causal connection causes her to become pregnant again and give birth to, oh, Future Mandela, some beacon of hope, charity and humanity. Does the latter sequence of events 'cancel out' the former? If you can infer the immorality of abortion in the Beethoven case, does the killing of Future Hitler and the creation of Future Mandela in the second counter-factual justify abortion? So, yeah, counter-factuals seem like a bad way to go in the debate unless there is some nice way of finding a neutral, scientifically respectable way of measuring the actual outcomes of different intellectual property scenarios. Is macroeconomics a science yet? ;) Sorry for prattling on for so long. -- Tom Morris <http://tommorris.org/> - Sent via the backstage.bbc.co.uk discussion group. To unsubscribe, please visit http://backstage.bbc.co.uk/archives/2005/01/mailing_list.html. Unofficial list archive: http://www.mail-archive.com/backstage@lists.bbc.co.uk/
