Court rejects Google Books settlement

[spellbanisher]

My apologies Kennyc.

[kennyc]

Originally Posted by spellbanisher

My apologies Kennyc.

Thank you. Let's continue the discussion at hand.

[murraypaul]

Originally Posted by spellbanisher

A 2000 dollar tax would be excessive, but your reasoning that a tax would discourage creative activity is not sound. How does allowing an artist to profit from works created twenty, thirty, forty, or fifty years later encourage creative production?

You don't think that knowing that I can profit from something I create today for the next twenty, thirty, ... years would encourage me to produce something?

[SleepyBob]

Originally Posted by murraypaul

You don't think that knowing that I can profit from something I create today for the next twenty, thirty, ... years would encourage me to produce something?

But do you say, "Darn, I can only profit from writing this book for the next 30 years. That's just not worth the effort. If only I could profit for 50 years, then I'd start writing."?

[Elfwreck]

Originally Posted by SleepyBob

But do you say, "Darn, I can only profit from writing this book for the next 30 years. That's just not worth the effort. If only I could profit for 50 years, then I'd start writing."?

You know Paramount and Disney would close their doors and give up if they could only guarantee 30 years of monopoly sales from their movies. Avatar's billion-dollar-plus sales so far wouldn't be worth bothering with if they couldn't exploit it until 2105.

[kennyc]

Originally Posted by Elfwreck

You know Paramount and Disney would close their doors and give up if they could only guarantee 30 years of monopoly sales from their movies. Avatar's billion-dollar-plus sales so far wouldn't be worth bothering with if they couldn't exploit it until 2105.

of course not

It's this damn corporate greed that annoys me the most. That is mostly where the changes to the law need to take place. I think we need very different laws which apply to individual creators/authors than apply to corporations. Unfortunately the way corporate law exists the corporations ARE individuals. This is what if f'ing over the entire country.

[Greg Anos]

Originally Posted by Kali Yuga

Does that mean I need to register my clothing, too? How about my pencils?

There is a lot of property that does not require registration in order to receive legal protection, including goods whose theft would be felonious.



Actually I'd say it is a social construct, much in the same way as any other political rights bestowed upon, demanded by, or accepted by a nation.

However, more to your point: The current structure of copyright already pushes many of the costs onto the copyright holder.

The police do not proactively search for copyright violations, that's up to the copyright holder. If an infringement is found, a federal prosecutor isn't going to step in and take over the case; it's going to be a civil proceeding, where the allegedly aggrieved party has to pay legal fees.

Your idea of copyright as a lottery is patently absurd, by the way.

Patently absurd? Nonsense. Let me spell it out one logical link at a time...

I'll use photographs, since these seem to be causing the most questions.

My brother is an internation salon exhibitor, and has listened to a number of lectures by National Geographic photographers. They have all said the same basic thing.

For every picture used by National Geographic, they take (on average) around 1000 pictures. Now these are long time pros, they know what they're doing behind the camera. The rest aren't duds, bad photographs, just not quite the magical one being chosen. They might sell another image to another source, on average and that's it for that batch of pictures. So the photographer, has 998 images, which are not commercially viable. Does he/she need copyright protection on those images?

Actually, no. They're under the absolute control of their creator, and nobody has access to them to copy unless the creator lets them. Nobody will copy them, because nobody can - they don't have access! Only if the picture(s) are distributed is there any need for copyright protection.

And why would the photographer release a photograph? Because he's getting paid to do it! It becomes an economic property, with a price tag attached.

That's the whole basis for copyright, economic monopoly. It's an economic deal.

And that's the point being raised about a 20 year renewal. Things that will bring in money will have pretty much been defined by then. You want to keep on making money off of the "property"? You pay a tax to keep it. If it's not worth the tax to keep it, you let it go.

And that's where the lottery ticket comes in. You want to profit as close to forever you can get away with on a copyright creation, at absolutely no cost. There is no other economic activity like that in humanity. You want a free "lottery ticket" that maybe someday something you created will be worth something. If it doesn't, it cost you nothing. If it does, whee, you make money. I say that's wrong. You want to buy a "lottery ticket", pay for it. Every other creator does. You're not special. Patents pay. Trademarks pay. So should copyright.

[Elfwreck]

Originally Posted by Ralph Sir Edward

So the photographer, has 998 images, which are not commercially viable. Does he/she need copyright protection on those images?

Actually, no. They're under the absolute control of their creator, and nobody has access to them to copy unless the creator lets them.

He needs copyright protection in case his memory card gets stolen or computer gets hacked. They should have the protection we offer to unpublished works. Because hey, he took 998 photos of ocean surf crashing against the rocks, sold two, and now has a lot of pictures of water and rocks. And maybe next year, a local university is having a beach party fundraiser for the new stadium, and will offer him $50 each for 2-4 photos for their ads & newsletters. Which is not what National Geo pays, but the photos were just sitting there on his hard drive; why not make some money off them, get his name in a new location.

Authors keep a lot of drafts & outlines; same kind of thing. Those should be protected--nobody else should be able to grab them & publish them. But he doesn't need the registered version of protection unless it becomes a problem. (Which is why copyright's always been "no need to formally register until you file a complaint.")

In 20 years though? If he hasn't found a buyer for those pics, he's not likely to. Let 'em go, throw them on SuperFlickr, and let grade-school kids see how professional photography works; let college kids find the ones with suggestive-shaped rocks & put funny captions on them.

[Greg Anos]

Originally Posted by Elfwreck

He needs copyright protection in case his memory card gets stolen or computer gets hacked. They should have the protection we offer to unpublished works. Because hey, he took 998 photos of ocean surf crashing against the rocks, sold two, and now has a lot of pictures of water and rocks. And maybe next year, a local university is having a beach party fundraiser for the new stadium, and will offer him $50 each for 2-4 photos for their ads & newsletters. Which is not what National Geo pays, but the photos were just sitting there on his hard drive; why not make some money off them, get his name in a new location.

Authors keep a lot of drafts & outlines; same kind of thing. Those should be protected--nobody else should be able to grab them & publish them. But he doesn't need the registered version of protection unless it becomes a problem. (Which is why copyright's always been "no need to formally register until you file a complaint.")

In 20 years though? If he hasn't found a buyer for those pics, he's not likely to. Let 'em go, throw them on SuperFlickr, and let grade-school kids see how professional photography works; let college kids find the ones with suggestive-shaped rocks & put funny captions on them.

I can live with that, but you're still getting a free lottery ticket for 20 years. Patent doesn't, you have to pay thousands upfront, with no guaranteed it's worth anything. And trademarks actually has to be used before you can get a Trademark, just the opposite of copyright.

[Kali Yuga]

Originally Posted by Ralph Sir Edward

Patently absurd? Nonsense. Let me spell it out one logical link at a time...

A "lottery" implies that an individual hits the jackpot based purely on luck.

There are many characterizations you can apply to copyright, but a "lottery" is not one of them.

Originally Posted by RSE

For every picture used by National Geographic, they take (on average) around 1000 pictures. So the photographer, has 998 images, which are not commercially viable. Does he/she need copyright protection on those images?

Yes.

Many photographers do what is called "stock photography," where they shoot a ton of images at their own expense and submit it to an agency. The agency catalogs them and tries to license or sell them to ad agencies, art directors, marketers and the like.

A successful image can produce revenue for years, or take years before anyone needs it. As such, the photographer will have thousands of images on file at the stock agency that continue to earn varied amounts of income -- and no idea which images will be profitable at what time.

By the way, it looks like Nat Geo has its own stock agency. Go to nationalgeographicstock.com and enter "1053432" in the Quick Explore search, and it will pull up a photo that is well over 20 years old and possibly commercially viable. And if your brother isn't earning anything from Nat Geo's stock agency, maybe he ought to do some work and get on them about it.

Originally Posted by RSE

They're under the absolute control of their creator, and nobody has access to them to copy unless the creator lets them. Nobody will copy them, because nobody can - they don't have access! Only if the picture(s) are distributed is there any need for copyright protection.

That's a bit optimistic, in an era of thoroughly digitized images. E.g. a photographer will lose a ton of control once they turn over the image; same for any "work for hire."

Plus, what many working photographers -- albeit not necessarily photojournalists -- will tell you is that they get ripped off all the time. In some cases it is that a client uses an image beyond the agreement, e.g. they license the image for use in a regional campaign, and start using it internationally. In other cases, art directors may just grab an image off the Internet and use it without bothering to contact the photographer, let alone pay for it. This is why photographers are especially sensitive to loopholes generated by an orphan works law -- because their copyright could get infringed, and the infringer could pay a small fee to a clearinghouse to mitigate legal damages.

Originally Posted by RSE

And that's where the lottery ticket comes in. You want to profit as close to forever you can get away with on a copyright creation, at absolutely no cost. There is no other economic activity like that in humanity.

You can't resell the exact same vegetable for 20 years non-stop. I.e. in this respect, it doesn't make sense to treat intellectual property exactly like real property.

And in most cases, yes someone does have to keep doing work to keep a work of IP commercially viable. E.g. a 30 year old book needs to be printed, or converted into an ebook; the author may also need to hawk his or her wares to keep sales up. A stock agency needs to keep slides on file (in the past) or digitize the slides (recent past) or host digital images on servers, and of course publish its catalog for client use -- not to mention manage accounts, collect payments, distribute royalties.... A big backlist title also needs some effort put into it, albeit nowhere near as much as a new blockbuster. I don't think it is all that common for a 30+ year old book to suddenly gain stellar sales with zero effort.

Originally Posted by RSE

You want a free "lottery ticket" that maybe someday something you created will be worth something. If it doesn't, it cost you nothing. If it does, whee, you make money. I say that's wrong. You want to buy a "lottery ticket", pay for it.

It's not a "lottery" when you actually did the work.

Nor is a profit from a bit of chance limited to intellectual property. To wit:

What if I run a vineyard, and 1992 turns out to be a great year for a type of wine that I made and stored? Perhaps I could have sold a bottle for $100 then, and now the stored bottle goes for $1000. I haven't done any work here, other than store it in a wine cellar. Is this "wrong?" Or is it acceptable because it's a physical object?

Or, let's say I purchase a Picasso in 1970 for $15,000 and it is now worth $15,000,000 -- far beyond any inflationary price changes. I, as the owner, did nothing except either hang it on my wall or store it securely; I certainly didn't pour $10 million of work into it. Is this also "wrong?" Should we halt all fine art sales right now?

Or, I purchase a stock today at $10/share, and sell it tomorrow at $15/share. I literally did nothing to increase the value of the stock. In many ways, this is much more a form of gambling than any copyright. Is this now "wrong," even if it is my own money I'm putting on the line?

Originally Posted by RSE

Every other creator does. You're not special. Patents pay. Trademarks pay. So should copyright.

And, as I pointed out earlier, if you actually want to protect the work, it's the rights holder who actually needs to put resources on the line to do so. The State rarely enforces copyrights unless it involves the production and sale of counterfeit physical goods.

Also, as I pointed out, copyright also protects a great deal of non-commercial work.

Sorry, but a "lottery" is a bad metaphor that does not reflect the reality of the situation.

[Greg Anos]

That's the reason behind the old "file for copyright". Nobody had to worry about Aunt Gertie's family photos, anybody in the family could have them. If Aunt Gertie thought they were of value, she could copyright them. If not, why should her descendants be profiting off of them? Or fighting over ownership? (everybody get a copy.)

That's the problem with all the orphan works today. It's that free lottery ticket mentality. When you pay to play, so to speak, you pay attention to what you have. You describe things in wills, ect.

Otherwise, it's the squatter's rights mentality. It makes a mess of land ownership, why should we not be suprised it makes a mess of copyright.

[Greg Anos]

Originally Posted by Kali Yuga

A "lottery" implies that an individual hits the jackpot based purely on luck.

There are many characterizations you can apply to copyright, but a "lottery" is not one of them.



Yes.

Many photographers do what is called "stock photography," where they shoot a ton of images at their own expense and submit it to an agency. The agency catalogs them and tries to license or sell them to ad agencies, art directors, marketers and the like.

A successful image can produce revenue for years, or take years before anyone needs it. As such, the photographer will have thousands of images on file at the stock agency that continue to earn varied amounts of income -- and no idea which images will be profitable at what time.

By the way, it looks like Nat Geo has its own stock agency. Go to nationalgeographicstock.com and enter "1053432" in the Quick Explore search, and it will pull up a photo that is well over 20 years old and possibly commercially viable. And if your brother isn't earning anything from Nat Geo's stock agency, maybe he ought to do some work and get on them about it.



That's a bit optimistic, in an era of thoroughly digitized images. E.g. a photographer will lose a ton of control once they turn over the image; same for any "work for hire."

Plus, what many working photographers -- albeit not necessarily photojournalists -- will tell you is that they get ripped off all the time. In some cases it is that a client uses an image beyond the agreement, e.g. they license the image for use in a regional campaign, and start using it internationally. In other cases, art directors may just grab an image off the Internet and use it without bothering to contact the photographer, let alone pay for it. This is why photographers are especially sensitive to loopholes generated by an orphan works law -- because their copyright could get infringed, and the infringer could pay a small fee to a clearinghouse to mitigate legal damages.



You can't resell the exact same vegetable for 20 years non-stop. I.e. in this respect, it doesn't make sense to treat intellectual property exactly like real property.

And in most cases, yes someone does have to keep doing work to keep a work of IP commercially viable. E.g. a 30 year old book needs to be printed, or converted into an ebook; the author may also need to hawk his or her wares to keep sales up. A stock agency needs to keep slides on file (in the past) or digitize the slides (recent past) or host digital images on servers, and of course publish its catalog for client use -- not to mention manage accounts, collect payments, distribute royalties.... A big backlist title also needs some effort put into it, albeit nowhere near as much as a new blockbuster. I don't think it is all that common for a 30+ year old book to suddenly gain stellar sales with zero effort.



It's not a "lottery" when you actually did the work.

Really? I write a bad story. Nobody is willing to pay for it. Yet i worked hard on the story and marketing it. So where my payoff? Work means nothing. Hitting the marketplace with the proper product means everything. It's economics...

Originally Posted by Kali Yuga

Nor is a profit from a bit of chance limited to intellectual property. To wit:

What if I run a vineyard, and 1992 turns out to be a great year for a type of wine that I made and stored? Perhaps I could have sold a bottle for $100 then, and now the stored bottle goes for $1000. I haven't done any work here, other than store it in a wine cellar. Is this "wrong?" Or is it acceptable because it's a physical object?

Or, let's say I purchase a Picasso in 1970 for $15,000 and it is now worth $15,000,000 -- far beyond any inflationary price changes. I, as the owner, did nothing except either hang it on my wall or store it securely; I certainly didn't pour $10 million of work into it. Is this also "wrong?" Should we halt all fine art sales right now?

Or, I purchase a stock today at $10/share, and sell it tomorrow at $15/share. I literally did nothing to increase the value of the stock. In many ways, this is much more a form of gambling than any copyright. Is this now "wrong," even if it is my own money I'm putting on the line?

But that's the point. In every example you listed, you put money in. Nobody made you put money in, and you didn't automatically get a cut of any profits for nothing.

Originally Posted by Kali Yuga

And, as I pointed out earlier, if you actually want to protect the work, it's the rights holder who actually needs to put resources on the line to do so. The State rarely enforces copyrights unless it involves the production and sale of counterfeit physical goods.

Also, as I pointed out, copyright also protects a great deal of non-commercial work.

Sorry, but a "lottery" is a bad metaphor that does not reflect the reality of the situation.

I use "lottery" because the creator does not control or determine whether or not his work has any economic value. The marketplace does. And it does after the creation fact. So...It's a lottery at the time of creation. Maybe it has economic value, maybe it doesn't. (Maybe the lottery ticket will win, maybe it won't.) Is the analogy perfect? Of course not. But win or lose, you have to pay to enter a lottery. Copyright should do the same.

I pay for police protection, fire protection, insurance for risks, ect. It doesn't come for free. Yet you seem to think the copyright protection should be. I don't agree. If you prefer, it's a squatter's rights mentality.

[Elfwreck]

Originally Posted by Ralph Sir Edward

I can live with that, but you're still getting a free lottery ticket for 20 years. Patent doesn't, you have to pay thousands upfront, with no guaranteed it's worth anything. And trademarks actually has to be used before you can get a Trademark, just the opposite of copyright.

If there's no free protection before formal registration (I could see a return to requiring a notice of copyright, although I don't expect it), showing a draft version of a novel to a publisher becomes very problematic. Does a photographer copyright every picture before submitting a selection to a magazine? Does a short-story author copyright her stories before submitting them? That would slow down publication *a lot*, if there's no protection before the formal registration. If lyrics & music had to be registered in order to protect them from being grabbed without permission, bands couldn't send in demo tapes.

Right now, things are protected before official registration, so that the magazine can't just steal submissions from the slushpile and publish them without paying. The free lottery ticket is considered reasonable exchange for value--society gets some access to unfinished works, with limited rights, in order to encourage them to be finished and widely published.

[Kali Yuga]

OK, I'm gonna make this short in the hopes you might actually read it. If you don't, I won't waste my time replying again.

• Luck is present in every economic and cultural success. Copyright is no more or less a "lottery" in this respect than anything else.

• The rights holder does pay for protection, in two ways. The primary way is that most of the burden of enforcing copyright falls on the rights holder.

• Just as with police and fire, copyright holders pay taxes. Sales taxes on the content; corporate taxes on the publisher; income taxes on the creator / rights holder.

Registration changes nothing about the above factors or their dynamics. You aren't any "luckier" or likely to succeed because you register. And the rights holder is already paying to protect the work, via any litigation costs and taxes.

Thus, the "lottery" concept is patently absurd. I suggest you drop it.

[kennyc]

I have to agree with Kali on this one.