3/17 quote on value of public domain-sports

Subject: 3/17 quote on value of public domain
From: GUEST,T in Okahoma (Okiemockbird)
Date: 17 Mar 00 - 12:44 PM

"If the inventor of the T-formation in football had been able to copyright it, the sport might have come to an end instead of prospering. Even where athletic preparation most resembles authorship -- figure skating, gymnastics, and, some would uncharitably say, professional wrestling -- a performer who conceives and executes a particularly graceful and difficult -- or, in the case of wrestling, seemingly painful -- acrobatic feat cannot copyright it without impairing the underlying competition in the future. A claim of being the only athlete to perform a feat doesn't mean much if no one else is allowed to try."
--NBA v. Motorola (2nd Cir. January 30, 1997)

Subject: RE: 3/17 quote on value of public domain
From: fox4zero
Date: 17 Mar 00 - 01:22 PM

Dear Okiemockingbird: I find that it is easier to argue in the opposite direction, ie. if Manufacturer A owns the patent on a certain process and is the exclusive manufacturer, then manufacturers B thru Z should be motivated to find a new process. If the patented process was public domain and all could use it, what is the motivation for change?

I fail to see the connection between the copyright of creative works (music, novels etc) and stagnation. Popular music has evolved with changes in our society, without restriction, since the 18th C. copyright laws. Authors have not been stiffled by "Moby Dick" and have been writing the Great American Novel ever sine the 18th C. copyright laws.

[Disclaimer: I have an interest in royalties derived from copyrighted music]

Larry Parish

Subject: RE: 3/17 quote on value of public domain
From: Mary in Kentucky
Date: 17 Mar 00 - 01:50 PM

Since I have my name on a chemical patent, here are a few thoughts.

1) Patents only last for 17 years (I think).

2) The "art" is furthered by copying predecessors. We all "stand on the shoulders of giants."

3) My boss used to say that if you want to hide some knowledge of how to do something, put it in a patent. In case you haven't examined any lately, they are extremely difficult to duplicate.

I look at the copyright/public domain/music issues as a spectrum, and I clearly reside toward the public domain end of the spectrum.

Share the Music!

Mary

Subject: RE: 3/17 quote on value of public domain
From: GUEST,Okiemockbird
Date: 17 Mar 00 - 02:26 PM

Parish, as long as the life of a patent is very short, then your "necessity is the mother of invention" argument has some strength. Some inventions are, indeed, attempts to achieve the same result by a far different process. But other inventions are improvements on prior inventions, as Mary in Kentucky points out. If A has the patent on the process X forever (I judge from your support for the Bono Act that you think the term of copyright and patent should ideally last for centuries or millenia), B may never have a chance to make his brilliant improvement. Mr. A. will simply let the X process stagnate in a fixed form until the end of time, and rake in the cash. Still other inventions involve using some prior invention (such as the transistor, or the wheel) as a building block for something that could not have been thought of at the time the building-block invention was created. Even if re-inventing the wheel were possible, I don't see how the re-invented wheel would not infringe the original one.

Once the patent expires and everyone has the same advantage, then the "motivation for change" is to find some improvement that will lower one's costs or that will achieve an even better result.

Besides this, there is the matter of drug patents. In the U.S. drug patents cover the drug itself, not, as in some other countries, the process by which it is made. No generic equivalent can enter the market (thereby lowering the price) until the patent expires. The short-term lock-out may inspire some well-off competitors to do research into other, non-infringing drugs, but less well off competetors will be shut out, those who can improve the patented drug (or the process by which it is made) will be shut out of the market, and those whose genius is in marketing will be unable to try their talents on the patented drug.

In the case of music, the art cannot progress well without certain agreed-on assumtions. If someone had an eternal patent on the 12-tone equal tempered scale, only those who the patent-holder deigned to favor could make music using this scale. That might lead to useful experiments in alternatives, but I think we get the best of both worlds if the 12-equal scale is free for all to use (developing common musical idioms) as well as to create new variations and alternatives.

Popular music has not evolved "without restriction". If an amateur theater group can't afford to produce a musical because the grand rights are simply too expensive, that is a restriction. If an orchestra can't afford to give a concert of a popular copyrighted piece, that is a restriction. If they pay the royalties instead of hiring a guest conductor that they wished to hire, or instead of hiring more players, that is a restriction. If I can sing one melody at the local fair but not another, that is a restriction. Some artists write melodies by absorbing the existing examples of a particular musical genre (e.g. Irish jigs) and then producing a new melody based on those absorbed melodies, motifs, and conventions. If all Irish jigs were under copyright, would it be possible to write a new Irish jig in this way without being accused of unconscious infringement ? I have my doubts. And even doubts can be a restriction.

Then there is the question: how did I learn music in the first place ? I learned it from teachers and from books. The teachers themselves learned from books. Many of those books might not have existed, or might have been much more expensive, if all the musical examples in them had been under copyright.

T.

Subject: RE: 3/17 quote on value of public domain
From: fox4zero
Date: 18 Mar 00 - 05:01 AM

O.K. Okiemockbird, I am weighing all of your arguments and will consider all at an hour when my brain is functioning at a higher speed.

While I favor the Bono Copyright Extension, I think that centuries and millenia are SLIGHT exaggerations. I think that the life of the last surviving author/composer plus X years is very fair.

While drug companies do very well financially, it never seemed fair to me to start the countdown on a drug patent from the date the patent was granted. Since considerable time may lapse till a drug is approved by the FDA, it wpould seem to be logical to start the countdown from the date of approval. [I have no financial interest in any drug company, except I do ingest a lot of expensive medications]

Regards, Larry Parish

Subject: RE: 3/17 quote on value of public domain
From: GUEST,Okiemockbird
Date: 18 Mar 00 - 10:58 AM

As it happens, in cases where the FDA approval has eaten a big chunk out of the effective life of the patent, drug patents have been extended for two years or so. This happened, for example, in the case of Claritin. But now the manufacturer is back in Congress asking for yet another extension on the Claritin patent.

The overall purpose should be kept in mind. The monopolist's only reasonable expectation is a reasonable return on his investment. If the effective life of the patent was shortened slightly by the approval process, but the manufacturer has nevertheless made money hand-over-fist, he is not harmed by letting the patent expire on time. He has already gotten his reasonable return.

I'm sorry I jumped to the conclusion that you agreed with Jack forever-less-one-day-is-a-"limited"-time Valenti in favoring perpetual copyright.

T.

Subject: RE: 3/17 quote on value of public domain
From: GUEST,Dan Keding
Date: 18 Mar 00 - 11:30 AM

A thorny issue this. I usually write about one song every three years, but I write stories regularly. One of the problems that I see is that what we are talking about is cultural/artistic manifest destiny. You create it, I want it, I take it. Does this foster creativity and add to the artistic climate of any culture? Of course not. In many ways it influences the creative folks to either not create or only create for their own private use and not for the public. There is a loss. I also think that it fosters stagnation rather than hinders it. If one doesn't care to pay the fees involved with performing a certain piece then that person may begin his/her own creative process and instead of adding to the stagnating pool of complainers that person adds to the overall creativity of the artistic community. I wrote a story once that was very traditional sounding. Another storyteller started to perform it. She called me for permission to record it. I hadn't recorded it yet so I said no. I wanted to be the first to record my own work. She was furious and told me anyone should be able to record it because the story "sounded so traditional." This type of behavior happens all the time. Without laws to protect the artist then we would have no recourse but to continually go out into the community and sever the heads of those who wrong us. This would of course eliminate from the gene pool those wretches who are unethical or too lazy to create but it would also take away creative time from our work. In the end it comes down to this, stealing is wrong even if you mask it with the cloak of art.

Subject: RE: 3/17 quote on value of public domain
From: Mary in Kentucky
Date: 18 Mar 00 - 11:40 AM

...back to music. I'm still undecided as to where my exact position is on specific issues. But something occurred recently that gave me pause to think. I posted some very specific parody titles and where to buy the book to the forum and was chided for not posting entire songs. Since the author was probably still living, and the words were his entire creation, I just didn't think it was right to post 'em. On the other end of the spectrum, I just don't think it's right that I can't put "Winter Wonderland" on my website.

So where do I stand? Don't know. All I can do is keep reading T's links.

Mary

Subject: RE: 3/17 quote on value of public domain
From: GUEST,Okiemockbird
Date: 18 Mar 00 - 12:08 PM

Dan Keding shows tendencies I have seen before in copyright maximalists:

(1) responding to the least question about what the proper scope and duration of copyright should be with words like "theft" and "piracy".

(2) responding questions about what the proper scope and duration of copyright should be by simply repeating arguments for why copyright should exist at all, arguments that do not address the question of how long the monopoly should last or how broad it should be.

T.

Subject: RE: 3/17 quote on value of public domain
From: GUEST,Dan Keding
Date: 18 Mar 00 - 03:36 PM

Fair enough. I think that copyright should last the lifetime of the writer/composer. Just because a number of years pass doesn't diminish the art of the writer. I do feel that people who write new words to traditional melodies should only be allowed to copyright the words. I have written several songs this way and only register the words.

Now here's a question for all those eager to use copyrighted material. Let's say that the copyright ends with the death of the author. What happens to the heirs? This would mean that an untimely death, let say like Stan Roger's, would leave a young family with no income from the work of the composer. Is this fair? Or am I just being an annoying maximalist for bringing it up? I'm not saying I advocate this but I am saying that as we all grow older we all want to leave our families secure in a world that does not always honor the artist.

Sorry T. if the words theft and piracy stung. I was trying to put into words what many composers/authors feel when they see their work used without permission and recorded without any renumeration.

Dan

Subject: RE: 3/17 quote on value of public domain
From: T in Oklahoma (Okiemockbird)
Date: 18 Mar 00 - 06:36 PM

Dan Keding, thanks for the thoughtful reply.

A claim of copyright in a demonstrably public domain melody is invalid, but some people (if Krasilovsky and Shemel are to be believed) make such claims anyhow. I'm glad you aren't one of them. Note, though, the qualification "demonstrably". Extending the term of copyright might not make demonstrating the public domain status of a given melody any harder, but it certainly makes it no easier.

Since your question concerning how the copyright system should deal with an author's premature death was directed to "all those eager to use copyrighted material", it was not directed to me or to anyone I know. Those such as myself who think the recent copyright term extension was unfair, want to use public domain material, and we think we have been ill done by a law which will prevent any published work from entering the public domain for a full twenty years.

Artists who see their own copyrights infringed have, in theory, ASCAP and the HFA to look out for their interests. My concern is that the scope of duration of copyright have been expanded at public expense, without leaving the public even the cold comfort that the expanded protections will actually benefit living authors, rather than corporations, middlemen, and wealthy trust funds of long-dead authors.

T.

Subject: RE: 3/17 quote on value of public domain
From: GUEST,Okiemockbird
Date: 24 Mar 00 - 11:15 AM

"In 1948, Britten composed his realization of the The Beggar's Opera. Of the realizations made of this opera, Britten's was the first to use so many of the original songs, sixty-six of the sixty-nine airs. His realizations range from supplying original accompaniments to the development of operatic forms such as melodramas, scenas, and finales based on one or more tunes. The airs as treated by Britten may be classified ino six categories: (1) "Straight setting" (similar to his folksong settings); (2) "Straight settings, but with the phrases of the air spaced apart"; (3) "Straight settings, but with the melody itself treated freely"; (4) "Settings in which the air is worked into an elaborate, but formally concise, musical scheme" (subdivided into numbers with and without chorus); (5) "Settings embodied in larger musical designs" (numbers with introductions and codas based on original material derived from the airs); and (6) "Settings in which two or more airs are used in combination." As part of his settings, Britten was able to retain the original keys of a large number of the airs. He also restored Macheath's role from a baritone, as it had been sung for several years, to the original tenor."
--abstract of Norman Del Mar, "The Chamber Operas. III. The Beggar's Opera." In Benjamin Britten: A Commentary on His Works from a Group of Specialists, ed. Donald Mitchell and Hans Keller, 163-85. London: Rockliff, 1952; reprint, Westport, Conn.: Greenwood Press, 1972, posted to href=http://www.music.indiana.edu/borrowing/browsecd.html

This example illustrates the importance of public domain in a number of ways:

(1) The Beggar's Opera itself would not have existed in the form in which John Gay wrote it had Gay not been free to copy musical airs from almost any source.

(2) Derived versions, such as Die Dreigroschsenoper and Britten's version would not exist if the original did not exist. The book of Die Dreigroschenoper relies heavily on The Beggar's Opera. The music is mostly original, but Weill copied one air from the source, "An Old Woman Cloak'd in Grey".

(3) The six categories of "settings" enumerated in the abstract quoted above show that there are forms of musical creativity, equally creative with fully original composition, that require copying of pre-existing material. The law has chosen, for policy purposes, to tax these forms of creativity in order to subsidize fully original composition. But all taxes, however valuable the goals for which they are levied, should be reasonable and moderate. In this context, it means that the term of copyright should be reasonable and moderate.

T.

Subject: RE: 3/17 quote on value of public domain
From: GUEST,Okiemockbird
Date: 31 Mar 00 - 11:27 AM

More examples of works that might never have been created if copyrights never expired are here, here, and here

Whether I would miss these works if they hadn't been created is not really relevant. More important is that I would miss the freedom to create them without having to pay fees or explain yourself to anyone.

T.

Subject: RE: 3/17 quote on value of public domain
From: GUEST,Okiemockbird
Date: 30 May 00 - 10:43 AM

Here is Richard Stallman's analysis of what he calls (rightly, I think) a trivial patent for "A method for enabling a remote user to preview a portion of a pre-recorded music product from a network web site containing pre-selected portions of different pre-recorded music products, using a computer, a computer display and a telecommunications link between the remote user's computer and the network web site". (e.g. listening to a MIDI at Alan's site ?)

T.

Subject: RE: 3/17 quote on value of public domain
From: GUEST
Date: 26 Jan 01 - 10:05 AM

Check out this story: a company has sued a rival for infringement of its patent in a certain form of peanut butter and jelly sandwich: Click here.

N.B. The link will vanish in about 2 weeks.

Subject: RE: 3/17 quote on value of public domain
From: GUEST
Date: 26 Jan 01 - 10:07 AM

Sorry about the missed character. Click here.