Record Lady's Site RIP

Ken Lang · Post by **Ken Lang** » 23 Aug 2005 7:25 pm

I haven't read all the replys but here are my thoughts.

The songs recordered were mostly pretty bad in sound quality.

No serious audio-file would consider them suitable for critical listening, let alone have them on a play list.

Much of the music is out of print or not in stock for years, so what music executive, writer or publisher was losing money for a non existing product?

In cases where updated CD's were available, the listener may decide to purchase them. Not anymore as the reminders of music past is off line.

Greedy music people have cut their own throats by losing whatever market potential the Lady's site might have to offer. As a BMI songwriter and publisher, the music industry hasn't added anything to me, but cut off exposure. (Not that I had any songs on her site.)

The record Ladys site was a cross section of the past and some current things. I would see it as more a historical and educational place than a threat to undermine the whole musicial establishment.

Once again the 'little' people are swept away by corporate ego, and that includes you and I who are just trying to pull up a few moments from our past and relive a few precious memories.

Bill McCloskey · Post by **Bill McCloskey** » 23 Aug 2005 7:33 pm

"If you can't recoup your R&D costs within the 20 year term of a patent, then the thing is probably not worth producing,"

You're not recouping the R&D costs of the successful patent in 20 years. You're recouping the R&D costs for all the unsucessful patents as well. It is the successes that let you afford to experiment and have a lot of failures. That is how progress is made.

I've been pretty much alone in this arguement. Glad to see Tom chime in and I agree with him 100%.

Tom Olson · Post by **Tom Olson** » 23 Aug 2005 8:27 pm

You're recouping the R&D costs for all the unsucessful patents as well.

Bill, very good and very valid point.

Ken, I probably tend to agree with at least the basic idea of what you are saying. However, one issue that comes to mind while reading your post is, "where do you draw the line" in regard to a copyright owner's right to enforce the copyright laws?

I would argue that the line must be as clear as possible, or we might as well have no copyright laws at all. Unfortunately however, in order to have a clear line, not everybody is going to be satisfied. In a perfect world the laws could be tailored for every conceivable situation -- but as everyone knows, we don't live in a perfect world. So, I'll admit that sometimes the enforcement of the law doesn't seem fair or right. But, I'd counter that with the argument that it's better than no law at all.

But, in any case, there's still ample opportunity to listen to older music that you might be interested in buying. For example, many on-line music stores (such as Amazon.com) offer the opportunity to listen to a portion of most CD's that are available for purchase. [This message was edited by Tom Olson on 23 August 2005 at 09:35 PM.]

Bill McCloskey · Post by **Bill McCloskey** » 24 Aug 2005 4:17 am

BTW, the Library of Congress has an excellent free source of old field recordings that is priceless.

Ken Lang · Post by **Ken Lang** » 24 Aug 2005 5:49 pm

Tom. I realize the need for a law for protection of writers and publishers. You mentioned fairness causes some pain for the little guy as it may now and then. I don't think fairness enters into the picture much for the little guy. If it did, every musical event and every bar in America would have a guy from ASCAP, SEASAC, BMI and a few other odd societies sitting at the front table with their notebooks open and pencils at ready.

Why don't they do that? Aha. Money is the answer. No ROI for that road.
And pleeeeeze folks, no stories on the odd encounters with reps. I've had a couple myself and it proves nothing.

Conclusion:
Yes we need protection for the creators of music.
Yes we need protection for the business of music.
The internet has changed society in remarkable terms and is only at the beginning.
The issues are complex and not easily solved.

And now some old fart can't listen to an old Willma Lee and Stoney Cooper song that 1.6 x 10 to the -7 of the world never heard, because some 35 year old lawyer in the "bidness" got a hard case on us.

edited for missing words[This message was edited by Ken Lang on 25 August 2005 at 05:13 PM.]

Post by **Dave Mudgett** » 25 Aug 2005 7:29 am

Tom, I appreciate the fact that you're trying to make an honest, real case here. It's hard to argue against unstated premises and arguments. Of course, I completely disagree with your argument, and give a point-by-point rebuttal.

Well, again, THEY'RE THE ONES WHO MADE UP THE LAW. If you can't get an answer from the one's who actually made up the law, who can you get if from?

My point precisely. The answer is nobody can - any argument I've ever heard has serious flaws, IMO. This is really beside the point to this argument, so I'll continue.

FIRST-- If you can't recoup your R&D costs within the 20 year term of a patent, then the thing is probably not worth producing, so, why should the patent term be longer than it already is?

Of course, I agree that 20 years should be more than long enough to recoup R&D costs for both successful products and the dogs that didn't work. My question is: Why don't you make the same argument for songwriters or record producers? In fact, I argue that the break-even period for music is much, much shorter. This statement goes to the issue "why not extend the patent period", but not "why the copyright period should be so much longer", which was the question.

Patents almost always cover piece-meal works. In other words, very rarely, if ever, does a patent cover something that's COMPLETELY and TOTALLY new.

Surely, you're not suggesting that most songs and record productions are "completely and totally new". Even monumental and original giants like Stravinsky, Thelonious Monk, and Hank Williams borrowed heavily from their predecessors. In all creative work, regardless of field - science, engineering, music, art - creators "stand on the shoulders of giants". This was my earlier point - I said "one doesn't completely own one's creations". Your premise is false, IMO.

Patents usually, if not always, cover things that without question improve the quality of life in some way or another. One can make the argument that artistic works improve the quality of life, but I'd argue not. Instead, I'd argue that artistic works are more of icing on the cake rather than the staple of life. ... So, I would argue that since patents cover things that are much more prone to affect the quality of life, then the terms for protection should be much shorter than artistic works because the value to society of receiving the material covered by patents is greater.

What is the purpose of a patent or copyright? Why do we give people or companies exclusive monopoly right to create/market/sell a product? The one and only reason is to give an incentive to do that creation in the first place. What you are saying is that, by giving more monopoly protection of their works to artists, we are giving greater incentive to artists than drug producers or other inventors. This is counter to your thesis that drugs and other inventions are more important to the 'quality of life' of most people. I argue that this is a logical fallacy.

You also argue that music/art effectively "does not improve the quality of life". Surely, you don't mean this. I know people who would rather be dead than without music or art. I argue that your premise is false.

1st question -- how would you feel if you were an artist who had put in 15 years of hard livin', playing all the honkytonks, bars and jukejoints in the country trying to get noticed, all the while writing song after song after song, honing your writing skills. Finally, you write a song that makes a big break....

Put on the same foot as patents, one would have 17 years (possibly renewable once) to make hay on that song. Do you really think it's reasonable for a songwriter or musician and 3 generations of descendants to "live off the fat" of one song for an entire life? Is that what this is about? Overall, I don't see how this goes to the point.

2nd question: what do you suppose would happen in the music industry if the copyright term were significantly shorter

They would have to start making relevant music, instead of leeching off the creations of previous generations decade after decade. I think this would be good.

My analysis of your overall argument:

First, you seem to concede, on the one hand, that the point of patents/copyrights is to give incentive to create. But you then argue that 20 years is enough to recoup patent R&D costs, and completely ignore the fact that music production has a much shorter break-even period. This is an effective argument against lengthening patent periods, but not an argument for lengthening copyright periods.

Second, you then argue that the reason patents must expire after 20 years is because patents "improve the quality of life", while music/arts don't. This is totally subjective, of course, but I argue that there is a huge range of 'quality of life improvement' in either patentable or copyrightable ideas. How about the 'patented Ginsu knives' or 'Veg-a-matic' - are these somehow more essential than the whole musical styles which are being obliterated by the DMCA? Again, you argue effectively for keeping patent periods reasonable, but not for lengthening copyright periods. Fundamentally, you don't discuss the tradeoff between incentivizing commercial creations with monopoly protection vs. public right to the benefits of that creation. You also have a logical flaw here, since you argue on the one hand that the more important work (according to you, patentable ideas) deserve less incentivization by shorter periods, and the more trivial creations (according to you, music) deserve more incentivization witn longer protection.

Third, you then further argue that patents are incremental - almost copies - of others work, while music/arts are totally original, hence deserving of longer protection. The notion that new music and arts are more 'original' than, let's say, newly made scientific discoveries, is laughable, IMO, especially if one is discussing popular or commercial music or arts. Oh, please, don't tell me that you think that the latest Shania Twain song, or even the much vaunted Lennon and McCartney canon, even remotely approaches the "originality" of the first genetically-engineered drugs or, let's say, the first integrated circuits, which got relatively short patents.

Your next points about the 'poor songwriter/musician' and 'poor music industry' are not to the point, IMO. My question is: Why do they deserve such special consideration? Is this such an essential component of our society? Do you not believe that many scientists and manufacturing workers pour their lifeblood into their work? Should we have the government change all the laws so that manufacturing and high-technology industries are 'protected' with virtual monopolies for 100 years like this? This goes back to my original question.

I answer your final point,

So, I'll admit that sometimes the enforcement of the law doesn't seem fair or right. But, I'd counter that with the argument that it's better than no law at all.

with the question "Why?". If a law cannot basically be enforced fairly or correctly, why is it better than no law at all? It's not hard, in principle, to fairly and correctly enforce laws like those against murder, assault, theft, and so on, because they are clear and generally agreed upon. The DMCA is neither. I'm not arguing against any law, but specific provisions of this one.

Donny Hinson · Post by **Donny Hinson** » 25 Aug 2005 7:55 am

Neither patents, nor copyrights, have absolutely anything to do with "improving the quality of life". They have to do with one thing...someone making money.

Anyone wanting to imrove his life or that of others by creating something is free to do so. Laws are not required for that sort of thing, just concern for others.

By the way, the easiest way to get a patent is to come up with something totally new.

Bill McCloskey · Post by **Bill McCloskey** » 25 Aug 2005 1:57 pm

I'm confused about one thing here.

On the one hand people are saying: these are old tracks that no one is interested in anyway. There is no money to be made.

On the other hand the same people say: it's the fault of Big Business and their greedy ways. Future generations shouldn't be able to live off the fat of these songs.

So which is it? Fat or Lean?

I also want to ask the folks that are upset they can't listen to these tunes and bring back memories, why they didn't buy the records in the first place and support the artist to begin with?

So far I haven't heard a good arguement of why the copywrite protection is a bad idea. Who does it hurt? Personally I think the rights of the creator and his prodgeny far outweigh any arguement I've heard so far.

Tom Olson · Post by **Tom Olson** » 25 Aug 2005 4:36 pm

Dave --

Of course, I agree that 20 years should be more than long enough to recoup R&D costs for both successful products and the dogs that didn't work. My question is: Why don't you make the same argument for songwriters or record producers?

Answer: Because I don't believe that you can equate patents and copyrights. For example, I'm sure you've heard numerous stories about the songwriter who takes out a napkin and writes down a complete song in a few minutes while sitting at a bar. So, how do you fix a price to that song? It only took a few minutes to write. So, let's say the songwriter's time is worth $200/hr and it took him/her 6 minutes to write. So, is the song worth only $20? Yes? No? What's it worth?

I argue that the break-even period for music is much, much shorter.

OK, then. What is the break-even period for music? You say it's shorter. OK, then what exactly should it be and why?

In your answer, please consider the points that I raised in one of my earlier posts above, which I will re-post here:

<BLOCKQUOTE>quote:<HR>In regard to copyright terms, let me pose these open questions:

1st question -- how would you feel if you were an artist who had put in 15 years of hard livin', playing all the honkytonks, bars and jukejoints in the country trying to get noticed, all the while writing song after song after song, honing your writing skills. Finally, you write a song that makes a big break. You've literally put your whole life into this one song, blood, sweat, tears and all. In fact, you feel as much emotional attachment to this one song as you would for your own child. How long would you want to have copyright protection for this song before anyone and everyone could take this song and do whatever the heck they wanted to do with it, without even giving you so much as a red cent? 10 years, 15 years? How long is enough?

2nd question: what do you suppose would happen in the music industry if the copyright term were significantly shorter -- perhaps only 10 to 15 years? Let me re-phrase this question: Let's say for any given artist, a CD of music less than 10 years old costs $20 and a CD of 10-year old or older music costs $3. How many $20 CD's would you buy and how many $3 CD's would you buy? I think the answer is pretty obvious especially based on what people have said about this very subject here on the forum. The answer I think is that everyone would buy mostly the $3 CD's particularly in light of the fact that the newer $20 CD's will be available in a few years for $3.

So, how much money will the artist make? Someone take a guess.<HR></BLOCKQUOTE>

Back to rebutting your points--

Surely, you're not suggesting that most songs and record productions are "completely and totally new"

Yes, I am. According to the applicable portions of the United States Code and the Code of Federal Regulations and yada yada yada, an artist is not entitled to a copyright on any work unless that work is original or new. So, yes, according to the law of the land, all copyrighted works are completely new and original.

That is, if a song or a book or a painting, etc. etc. "borrowed" or "copied" portions of another work, it would not be entitled to copyright protection because it's not original.

Even monumental and original giants like Stravinsky, Thelonious Monk, and Hank Williams borrowed heavily from their predecessors.

I guess that depends on what you mean by "borrowed." You apparently would take that to mean "copied." I would take that to mean "influenced by." Yes, almost every artist is "influenced by" at least one other artist.

If you are saying that if a first artist's work is "influenced by" a second artist's work, then the first artist's work is not original -- then I certainly disagree with you. If that were true then there would be almost no artistic works that are original.

Moreover, if what you are saying is true then the only original artistic works would be by those artists who have not ever come into contact with an artistic work of another. So then, if we travel into the deepest, darkest jungles of Africa or South American and find some native who's never seen any artistic work and ask him/her to do something in an artistic way, then that would qualify under your definition to be an original artistic work. I disagree with that too.

What you are saying is that, by giving more monopoly protection of their works to artists, we are giving greater incentive to artists than drug producers or other inventors. This is counter to your thesis that drugs and other inventions are more important to the 'quality of life' of most people. I argue that this is a logical fallacy.

It appears that you didn't understand my argument. My argument is that because the material covered by patents is more important to the quality of life than that covered by copyrights, it is more important to give that patented material to the public sooner, which is what is done under the current patent laws. If you still think this argument is a logical fallacy, please explain why.

You also argue that music/art effectively "does not improve the quality of life". Surely, you don't mean this. I know people who would rather be dead than without music or art. I argue that your premise is false.

Dave, there may in fact be people who would rather be dead then without music or art. However, if given the choice between a life-saving medicine and a painting or between having enough food to eat and a DVD, or between having someplace to live and a CD, I believe most people would choose the former in each case. My point is that the resultant technology from patents is much more important to the quality of life than that resulting from copyrights.

They would have to start making relevant music, instead of leeching off the creations of previous generations decade after decade. I think this would be good.

I'm not sure I understand what you're trying to say. Are you saying that artists would be more inclined to write better music if the copyright term were shortened? And, are you saying that an artist who depends on income from his/her old music is a leecher?

But you then argue that 20 years is enough to recoup patent R&D costs, and completely ignore the fact that music production has a much shorter break-even period.

No, I didn't ignore that "fact" because it is not a fact (it's what I would call a vague, unproven premise). Besides, what do you mean by "break-even point" for music? As I've already asked, how do you calculate the value or break-even point for a song?

How about the 'patented Ginsu knives' or 'Veg-a-matic' - are these somehow more essential than the whole musical styles which are being obliterated by the DMCA?

No. But on the whole, as I've said above, the value to society of technology that is the direct result of patents is much greater than anything resulting from copyrights. Face it, Dave -- you can't live on music alone.

Fundamentally, you don't discuss the tradeoff between incentivizing commercial creations with monopoly protection vs. public right to the benefits of that creation.

Actually, I did! See my post immediately before the post that you're quoting from, which was posted by me at 11:19pm, Aug.23. But anyway, if you're talking about how copyrights apply to artistic works, you're on the wrong track. Artistic works are not "commercial" creations.

You also have a logical flaw here, since you argue on the one hand that the more important work (according to you, patentable ideas) deserve less incentivization by shorter periods, and the more trivial creations (according to you, music) deserve more incentivization witn longer protection.

Well, I didn't actually argue that specifically. That's something you came up with. However, while you call it logically flawed, I think it's quite logical (even if I didn't come up with it).

You see, I find it completely logical that the more important something is, the less "incentivization" people need to do it.

Oh, please, don't tell me that you think that the latest Shania Twain song, or even the much vaunted Lennon and McCartney canon, even remotely approaches the "originality" of the first genetically-engineered drugs or, let's say, the first integrated circuits, which got relatively short patents.

Dave, you're looking through a microscope and I'm looking at the world from the space station.

Of course you can always find exceptions to the rule if you look hard enough. Try this -- look at 100 randomly selected patents and see how many of them don't mention and/or rely heavily on known technology. Now, listen to 100 randomly selected recordings of the original version of any song and see if you can find any two that have the same melody.

So, maybe there are some patents that don't rely on known technology (if you ever find one let me know what it is), and maybe there are a few records that don't sound all that original. So what? How does that affect my arguments?

Your next points about the 'poor songwriter/musician' and 'poor music industry' are not to the point, IMO. My question is: Why do they deserve such special consideration?

You call it special consideration. What makes it special consideration?

Is this such an essential component of our society?

Now I'm confused. You just said that art is more important than life itself. So, is it or isn't it?

Do you not believe that many scientists and manufacturing workers pour their lifeblood into their work?

Maybe some do -- see below for a more detailed discussion on this point.

Should we have the government change all the laws so that manufacturing and high-technology industries are 'protected' with virtual monopolies for 100 years like this?

No, I just spent nearly a gigabyte of space arguing against it, and you know it. See below for more about why artistic works should not be equated with technology.

If a law cannot basically be enforced fairly or correctly, why is it better than no law at all? It's not hard, in principle, to fairly and correctly enforce laws like those against murder, assault, theft, and so on, because they are clear and generally agreed upon. The DMCA is neither. I'm not arguing against any law, but specific provisions of this one.

Dave, I apologize but I honestly do not understand exactly what you're asking or what point you're trying to make. For one, I don't know what DMCA is. Also, you're making some pretty broad assumptions there. Like saying theft is easy to enforce. Theft is the very thing that started this thread, remember? The issue was whether downloading clips from the record lady site was theft or not. You say it's easy to enforce theft. Well, if it's so easy, then what's the problem?

Dave, remember, you asked for somebody to give you arguments against shortening the copyright term -- I gave you some. I don't necessarily agree or disagree, but I enjoy the challenge of argument.

However, to be honest, at this point I've gotten a bit lost as to what the exact points of your arguments are. I suggest that we condense the argument to a few simple points that can be more easily understood.

Here are my premises:
1) the technology resulting from patents is more important to the overall welfare of the population than stuff resulting from copyrights. I'm not saying art is not important, I'm just saying that there are a whole lot of folks out there who would give a whole lot more than all the CD's in the world for an effective AIDS vaccine.

2) If you shorten (as you seem to be proposing) the copyright term to less than that of patents (let's say 10 years) then here's what's going to happen. The cost of music that is more than 10 years old is going to be dirt cheap because there's no copyright protection on it -- anyone can copy and sell anything without paying anybody anything. So, artists, producers, writers, etc. are not going to make any money on music more than 10 years old -- they'll have to make all their money on music less than 10 years old. HOWEVER, if consumers, distributors, record companies, etc. KNOW THAT ANY NEW MUSIC CAN BE HAD FOR FREE IN 10 YEARS, then there aren't going to be very many people buying new music. That will drive the per unit cost of new music even higher. That will discourage even more people from buying, and on and on in a vicious circle.

3) Art is art and science is science. Sure there are scientists who have put their whole lives into their work. But as a whole, art is A LOT more personal than science. Most R&D is conducted by dedicated people who do a great job, but who look at their work as a job -- not as a life quest. A patent is a patent -- it's not as important as your child. Art on the other hand has a certain element of one's soul attached to it. Just ask a bunch of artists what they think about that and I think most will agree.

Based on my above premises, here is my argument:

1) in view of premise 1) above, since the technology resulting from patents is much more important to the welfare of the people than that resulting from copyrights, it's more important to give the technology to the people as soon as possible than to give the rights to songs to the people.

THEREFORE a short copyright term is not as important as a short patent term.

2) In view of premise 2) above, shortening the copyright term will send the music industry into a tailspin from which it will not recover.

THEREFORE shortening the copyright term is a bad idea.

3) In view of premise 3) above, you can't equate artistic works with technology.

THEREFORE who's to say that we should enable the public to take a part of an artist's soul after 10, 15, 20 or however many years.

Thank you for your time. Comments are always welcomed.

==Edited for brevity==

[This message was edited by Tom Olson on 25 August 2005 at 09:59 PM.]

Tom Olson · Post by **Tom Olson** » 25 Aug 2005 4:52 pm

Why don't they do that? Aha. Money is the answer. No ROI for that road.

Ken, you are exactly right. It's basically up to the copyright owner in most cases to police his/her own copyrights. The government simply does not have the resources (unless we raise taxes -- should we do that?)

Most copyright owners barely have the resources either. So, what happens, of course, is that the resources are put to the most efficient use possible. It's simply not very efficient to hire thousands of agents to go into every bar and make sure the ASCAP or whatever fees get paid. So, sometimes it happens sometimes it doesn't.

Just like it's not very efficient to have a cop every half-mile of every road at all times of the day to make sure people aren't speeding.

So, the laws are not enforced fairly and evenly. Why? Because it's simply impractical to do so. What's the answer? I don't have a practical answer and I don't think anyone else does either.

Tom Olson · Post by **Tom Olson** » 25 Aug 2005 4:55 pm

Neither patents, nor copyrights, have absolutely anything to do with "improving the quality of life".

Donny, the reason why we have most, if not all, the drugs, medical equipment, food, electronics, fuel, etc. etc. etc. is SOLELY because of the existence of the patent laws.

Tom Olson · Post by **Tom Olson** » 25 Aug 2005 7:14 pm

Dave, I wanted to revisit one of your questions in this separate post. You said:

<BLOCKQUOTE>quote:<HR>I answer your final point,

quote:
--------------------------------------------------------------------------------
So, I'll admit that sometimes the enforcement of the law doesn't seem fair or right. But, I'd counter that with the argument that it's better than no law at all.
--------------------------------------------------------------------------------

with the question "Why?". If a law cannot basically be enforced fairly or correctly, why is it better than no law at all?<HR></BLOCKQUOTE>

Well, if you read carefully, you'll see that I did not say, "a law that cannot be enforced fairly or correctly is better than no law at all."

What I actually said was:

So, I'll admit that sometimes the enforcement of the law doesn't seem fair or right. But, I'd counter that with the argument that it's better than no law at all.

Maybe I'm being a bit nitpicky, but there's a difference.

In any case, back to your question. To answer your question, I'd point out that what we have here in the U.S. is a system of laws that are impossible to enforce fairly and correctly 100% of the time. Let's say you are driving down the interstate going 10 mph over the speed limit. A guy in front of you gets pulled over and pinched. You don't. Some people commit murder and get the gas chamber, while some people commit murder and spend their lives playing golf and living off their NFL pensions. Is that fair? No. Is it a fact of life? Yes.

On the other hand, what some people deal with in other parts of the world are varying degrees of lawlessness that run the gamut from questionable to downright scary. Take a look at what people deal with in parts of Mexico, parts of South America, parts of Africa, and in parts of Asia. In many of those places, people feel extremely fortunate each morning just to be able to wake up alive.

So, the answer to your question -- at least from my perspective -- is, "yes, it is better to have laws that cannot be fairly and correctly enforced than no laws at all."

[This message was edited by Tom Olson on 25 August 2005 at 08:15 PM.]

Post by **Dave Mudgett** » 25 Aug 2005 9:44 pm

Tom, we're not on the same wavelength, IMO. I really don't want to carry this to ridiculousness. If you don't see my points, fine, but I did address them, every single one. I probably took this way further than I should have. I respect your view, but I totally disagree with it and believe you have entirely missed the point of my argument.

Just so you don't get the idea I missed your point - let me summarize the gist of what I see as the key difference between our arguments. You essentially argue that monopoly protection is, more or less, a 'natural' right for creators, but that for practical reasons, we need to interfere with that right on inventions (which you seem to assume are all like live-saving drugs) because the society needs them. You didn't state the 'natural' right business as a premise, but it's the only way to make your argument work. Conversely, I argue that nobody has any 'natural' right to a monopoly on anything, but that for practical reasons, we need to give an incentive for creators to create, hence grant a limited monopoly as that incentive. I argue that this monopoly should only be as long as absolutely necessary to give creators an incentive to create. Further, since I can't really see any difference in the incentive required to get either artistic or scientific creators to create, I conclude that artistic copyright and scientific patents should be handled about the same.

Are you finding my wavelength yet? If you are, read on and I'll try to detail my issues with your latest argument.

My original question, in essence, was: "Why should copyrights have so much more protection than patents?". I am not arguing that patents should have a longer period than they currently do. I'm not arguing that copyrights should have a shorter period than patents currently do. I am arguing that copyrights should be treated the same as patents are currently. My difficulty with your argument is that you flail away at these imaginary issues, not the real issue I raised. Let's start with your distilled-down premises:

<BLOCKQUOTE>quote:<HR>Here are my premises:

1) the technology resulting from patents is more important to the overall welfare of the population than stuff resulting from copyrights. I'm not saying art is not important, I'm just saying that there are a whole lot of folks out there who would give a whole lot more than all the CD's in the world for an effective AIDS vaccine.

2) If you shorten (as you seem to be proposing) the copyright term to less than that of patents (let's say 10 years) then here's what's going to happen. The cost of music that is more than 10 years old is going to be dirt cheap because there's no copyright protection on it -- anyone can copy and sell anything without paying anybody anything. So, artists, producers, writers, etc. are not going to make any money on music more than 10 years old -- they'll have to make all their money on music less than 10 years old. HOWEVER, if consumers, distributors, record companies, etc. KNOW THAT ANY NEW MUSIC CAN BE HAD FOR FREE IN 10 YEARS, then there aren't going to be very many people buying new music. That will drive the per unit cost of new music even higher. That will discourage even more people from buying, and on and on in a vicious circle.

3) Art is art and science is science. Sure there are scientists who have put their whole lives into their work. But as a whole, art is A LOT more personal than science. Most R&D is conducted by dedicated people who do a great job, but who look at their work as a job -- not as a life quest. A patent is a patent -- it's not as important as your child.

Art on the other hand has a certain element of one's soul attached to it. Just ask a bunch of artists what they think about that and I think most will agree. Therefore, who should have a right to take away for good in 10 years a part of any artists soul?<HR></BLOCKQUOTE>

Premise 1 is a gross over-generalization, is completely subjective, and depends on your value system. You argue that the "importance" of the intellectual property represented by patents is so much more important than that represented by copyright. I disagree. But even if I agreed, so what? You use this to argue that patented ideas, which are so important, deserve less protection than copyrighted ideas. Why? I argue that, if anything, since patented ideas are oh, so much more important, that as policy, we should be providing even more incentive for research on this. What better incentive than to tell pharmaceuticals that they have a 100-year monopoly on the products they develop. This comes from my premise that monopoly control of creations is not a 'natural' right, and the only reason to temporarily give it is as an incentive to create.

Note Well: I am absolutely NOT arguing for 100 year patents. The price of the drugs developed would be insane for 100 years, and for 100 years, nobody else but the originator would be able to use those ideas to develop new drugs. I am simply arguing that if something as important as new drugs don't need the incentive provided by 100-year patent monopolies, then why do artistic works need such long monopolies as an incentive to create? Again, the main premise comes into play: The reason that governments give monopolies to creators is that without it, they wouldn't create.

On Premise 2, you're again arguing against something I didn't advocate. I suggested changing copyrights essentially from 100 years down to the patent period, which is 17 years, possibly renewable once, for a total of 34 possible years, not 10 years. This is, more or less, one generation. I may be wrong, but I'll bet that TRL would be entirely happy if she was told that she could post 30 or so year old music, and so would I.

On Premise 3, I assure you that this statement: "Most R&D is conducted by dedicated people who do a great job, but who look at their work as a job -- not as a life quest."; is not true. Most scientists I know are fanatically dedicated - frankly more than most musicians I have worked with or seen - and I have seen and worked with a lot of each. Nor is it true, as you imply, that all or even most musicians look at their work as a "life quest". Most musicians I know and see love music, and some look at it as a life quest, but many others look at it as "a gig" - a job.

Further, what is "soul"? Do you really think the reason that copyrights have so much more protection than patents is because copyrightable works have more "soul"? Sorry, man - it's about greedy people (generally not musicians) in places like L.A. and NYC who don't want to work for a living, IMHO.

Some other ideas you have that are, IMO, entirely fallacious:

Yes, I am. According to the applicable portions of the United States Code and the Code of Federal Regulations and yada yada yada, an artist is not entitled to a copyright on any work unless that work is original or new. So, yes, according to the law of the land, all copyrighted works are completely new and original.

I think you're confusing "truth" and "legal truth". Listen to the thousands of blues, rock, hip-hop, country, and whatever songs of the last 50 years or more, and tell me that there aren't tons of borrowed ideas - chord progressions, plays-on-words, hooks, rhythmic feels, you name it. Consider Bill's Dave Van Ronk example (who I hold in very high esteem, and saw many times). He wrote many, many blues tunes, much in the style of earlier bluesmen that preceded him. Did he make a contribution? Absolutely. Was it "completely new and original"? Absolutely not. Dave is not around to say, unfortunately, but my sense is that he was an honest man who would have argued that he freely used many, many ideas from earlier generations of blues artists, and owed them a great deal. At least, I heard him speak to that effect many times at shows, where he extolled the virtues of people like the Rev. Gary Davis and Mississippi John Hurt and said how much he owed them.

You also attempt to argue that artistic works are somehow so much more original than, for example, scientific work. For example, you argue

If that were true then there would be almost no artistic works that are original.

Bingo! You've got it, except that you were arguing that artistic works are "completely new and original", and that is soooo much different than patentable works. There are no "completely new and original" works of art or science, IMO. All creators "stand on the shoulders of giants". I say this both as a scientist and a musician.

BTW, the full quote, "If I have seen further than others, it is by standing upon the shoulders of giants.", is originally due to Isaac Newton. If Isaac Newton's work to delineate the foundations of the science of mechanics was not "completely new and original", then there is nobody alive today who is, IMHO. Of course, I agree with Newton completely, hence you can deduce the logical consequence of my IF statement.

Another issue - you argue from my point

Dave's quote: What you are saying is that, by giving more monopoly protection of their works to artists, we are giving greater incentive to artists than drug producers or other inventors.

the following statement:

Tom's quote: Actually, I didn't say that -- you did. If you can point out where I said that, please do, because I can't find it and I don't remember typing it or thinking it.

I'm sorry, that is your entire thesis - you are trying to argue that we currently do (and should continue) to give longer monopoly protection (which is basically there as an incentive to create) to artists for copyrighted works. You said it right here:

Tom's quote: So, I would argue that since patents cover things that are much more prone to affect the quality of life, then the terms for protection should be much shorter than artistic works because the value to society of receiving the material covered by patents is greater.

My statement is inferred from yours plus my stated premise that the reason patents and copyrights are given is to give an incentive for creation of patentable & copyrightable ideas.

I believe our entire difference, which we have spent way too much ink trying to reconcile, is due to fundamentally different premises about monopoly control of creations. It seems to me that to make your argument work, you must believe it is somehow a 'natural' right for creators to have absolute commercial monopoly control of their creations, unless the society needs to control the creation itself. I, on the other hand, argue that nobody has a 'natural' right to absolute commercial monopoly control of their creations. But I do give practical recognition that unless we give creators a monopoly control for a limited time period, they will have no incentive to create.

With this 'natural right' premise in mind, here is my interpretation of what you are trying to say:

There is a 'natural' right for creators to hold a monopoly on their creations for a very long time [your unstated premise]. But the general class of patentable material is vitally important, and much more important than the general class of copyrightable material. The idea that copyrights and patents are an incentive for creators to create is basically false - creator monopoly is a 'natural' right. The critical issue is that the state and society need these important patentable creations, therefore we are going to take this right away early (after 17 years, or possibly 34 years). But copyrighted works, which are not important, retain their long monopoly.

Now replace your fundamental premise that "There is a 'natural' right for creators to hold a monopoly on their creations for a very long time." with the following premise: "Nobody has a 'natural' right to monopoly control of their creations. But if we don't give creators a good way to capitalize on their creations, such as a limited monopoly control, they will not be motivated to create."

So your argument looks like this from my point of view:

Nobody has a 'natural' right to monopoly control of their creations. But if we don't give a limited monopoly control to creators for some time period, they won't have any incentive to create. Further, patentable creations are much more important to society than copyrightable creations. Therefore, we should give the less important class more incentive to be created by giving more monopoly copyright protection.

If you don't see the illogic to this argument, I guess I'm probably not going to convince you of anything.

Now, look at my rebuttal of your argument from my point of view:

Nobody has a 'natural' right to monopoly control of their creations. But if we don't give a limited monopoly control to creators for some time period, they won't have an incentive to create. [Your Premise: Patentable creations are more imortant than copyrightable creations.] Therefore, we need to give larger incentives to patentable creations, hence the patent term should be longer than the copyright term.

Of course, I argue that patented and copyrighted creations are both important to society, but so is the need to give reasonable incentives to all creators. So my real conclusion is that patents and copyrights should be handled basically the same.

If none of this makes any sense, I guess we'll have to respectfully agree to disagree.

Tom Olson · Post by **Tom Olson** » 26 Aug 2005 8:50 am

Dave --

You essentially argue that monopoly protection is, more or less, a 'natural' right for creators, but that for practical reasons, we need to interfere with that right on inventions (which you seem to assume are all like live-saving drugs) because the society needs them.

No, I didn't. I didn't say anything about whether monopoly protection is or is not a natural right. Nor did I say anything about interfering with that right.

You didn't state the 'natural' right business as a premise, but it's the only way to make your argument work.

I disagree. My argument does not rely on that premise at all.

we need to give an incentive for creators to create, hence grant a limited monopoly as that incentive.

I disagree at least somewhat. The reason for patent protection is not to give incentive to create. People will be creative whether or not there is patent protection. What patent protection does is make it commercially practical to do large scale development of advanced technology.

I argue that this monopoly should only be as long as absolutely necessary to give creators an incentive to create.

As I've said, I agree that patent terms should be limited to that which is only necessary to spur technology development.

Further, since I can't really see any difference in the incentive required to get either artistic or scientific creators to create, I conclude that artistic copyright and scientific patents should be handled about the same.

To anyone who's been reading our posts, it would be obvious that this is a big difference in our arguments. As I've said, I don't believe technology can be equated with art.

My difficulty with your argument is that you flail away at these imaginary issues, not the real issue I raised.

I'm not flailing away at imaginary issues. You asked for arguments against shortening the copyright term. I gave you some. I don't think that any of the issues I addressed are imaginary.

You argue that the "importance" of the intellectual property represented by patents is so much more important than that represented by copyright. I disagree. But even if I agreed, so what? You use this to argue that patented ideas, which are so important, deserve less protection than copyrighted ideas. Why?

Dave, I'll say it one more time. Because technology directly resulting from patents is more important to the general welfare of the population than the art directly resulting from copyrights, then it logically follows that making the technology available to the general population for free sooner is more important than making the art available to the general population for free. Therefore, having a shorter patent term is more important than having a shorter copyright term.

I've stated this a plainly and as simply as I can several times, yet you seem to continually read it as meaning something completely different.

The price of the drugs developed would be insane for 100 years, and for 100 years, nobody else but the originator would be able to use those ideas to develop new drugs.

Dave, you apparently don't understand the basic concept of patents. The give-and-take aspect of patent law dictates that the invention is disclosed to the general population in the form of a published patent that is available at the patent office for anyone to read. So, in return for the monopoly protection provided by the patent term, the new invention made available for everyone to see. Thus, as soon as a patent is issued for a first invention, anyone can read the patent and see how the first invention works, and then anyone can make a new second invention based on the first invention, and can get a second patent. So, anyone could use the original developer's ideas to make further developments at any time after the patent issues.

I am simply arguing that if something as important as new drugs don't need the incentive provided by 100-year patent monopolies, then why do artistic works need such long monopolies as an incentive to create?

I don't know that artists need a 100-year copyright term as an incentive to create. However, at the same time, how do you put a value on an artistic work?

Your argument appears to be that since the patent term is 20 years, then the copyright term should be 20 years. To me, that's not a valid argument because art is not technology and patents aren't copyrights.

If Isaac Newton's work to delineate the foundations of the science of mechanics was not "completely new and original", then there is nobody alive today who is, IMHO. Of course, I agree with Newton completely, hence you can deduce the logical consequence of my IF statement.

I don't argue with you on this point. Remember? I argued that most if not all technilogical developments are not completely original because they depend so heavily on previous developments. So, I guess I don't understand your point.

you are trying to argue that we currently do (and should continue) to give longer monopoly protection (which is basically there as an incentive to create) to artists for copyrighted works. You said it right here:

This is what I said:

So, I would argue that since patents cover things that are much more prone to affect the quality of life, then the terms for protection should be much shorter than artistic works because the value to society of receiving the material covered by patents is greater.

This statement has nothing to do with incentives. I didn't mention incentives and didn't imply anything about incentives.

Once again, my point is that making technological developments coming from the existence of the patent term available to the public for free is more important to the overall welfare of the population than making art coming from the existance of the copyright term available to the public for free. Therefore, it is more important to have shorter patent terms than to have shorter copyright terms.

There is nothing even remotely related to incentives in my point.

In fact, you keep telling me about how I'm talking about this incentive and that incentive. But, in reality none of my arguments mention or rely upon the issue of incentives.

Anyhow, let me just ask you one question:

Why do you want copyright terms to be shorter? (limit your answer to one paragraph, and I'll respond likewise).

[This message was edited by Tom Olson on 26 August 2005 at 10:16 AM.]

Bobby Lee · Post by **Bobby Lee** » 26 Aug 2005 10:09 am

A copyright could be on a poem that took 3 minutes to write, or on a novel that took 3 decades. The same law has to cover both.

The bottom line is that here in the USA people have a right to own their creations and to control how those creations are used. At the very least, a copyright should be good for the creator's entire lifetime, in my opinion. Perhaps it should extend forever.

------------------
<img align=right src="http://b0b.com/Hotb0b.gif" width="96 height="96">Bobby Lee (a.k.a. b0b) - email: quasar@b0b.com - gigs - CDs, Open Hearts
Williams D-12 E9, C6add9, Sierra Olympic S-12 (F Diatonic)
Sierra Laptop S-8 (E6add9), Fender Stringmaster D-8 (E13, C6 or A6)

Post by **Dave Mudgett** » 26 Aug 2005 12:53 pm

Tom, the reason we can't come to terms here is that we don't seem to understand each others premises. I think you have one major hidden premise: What is the fundamental thing (theory) that gives creators of artistic works the right to monopoly control of their works. I think that I understand your theory on patents, but not on copyrights.

In his post here, b0b is unequivocal - "people have a right to own their creations and to control how those creations are used." This is the "natural" or "fundamental" right I'm talking about. If you say, "Yeah, I agree, that's what I believe", then I say "OK, I understand your argument.". But I'm really not trying to put words in your mouth, I'm just trying to understand.

My fundamental premise on this is that nobody has rights to monopoly control of anything, except to make a time-limited special exception in the case of creators of "original" work, as an incentive for them to create and commercially develop their creations. Clear, unambiguous. Some people probably agree, some probably disagree.

If you can give me any clear premise that states your theory about the basis of an artist's basic right to control their works in monopoly fashion, I believe we can reach mutual understanding quickly.

Tom Olson · Post by **Tom Olson** » 26 Aug 2005 2:56 pm

Dave,

I'll try to answer you to the best of my ability, but I'm not sure if I understand exactly what you're asking.

What is the fundamental thing (theory) that gives creators of artistic works the right to monopoly control of their works.

That would be the laws that society has made up concerning property rights. I would say that these laws are by nature "un-natural." (no pun intended.)

On the other hand, a natural law would be something like if an apple falls off a tree it will accelerate at 32ft/sec/sec. It's natural because it's not subject to debate -- it's clear and unambiguous.

The laws of society aren't so clear, as you've already suggested. If somebody comes up to you an punches you in the face, is that a crime? It depends. If he intended to harm you by punching you in the face and he did it for no valid reason, then it's a crime -- but the bottom line is that the only reason it's a crime is because our society says that it is. Different societies have different laws, so a criminal act in one society may not be criminal in another society. So, society lives by unnatural laws that are not always clear and that are not easy to enforce.

Society has laws governing various things -- crime, contracts, family relationships, etc. etc. There are also property laws. The basis of property law is that anyone has the right to own property and to do with that property whatever they want(as long as it doesn't harm anyone else). Generally, whatever you create is your property.

If you have a bunch of trees and you build a house out of the trees, the house is your property because you created it. Furthermore, it's yours basically forever. It doesn't revert to public domain after so many years. Or, you can choose to sell it, and you can sell it for whatever amount you wish.

Similarly, if an artist, sculptor, or writer sits in a studio and creates a painting or sculpture or book or poem or song, that work of art belongs to the artist.

However, society has created special laws in regard to art because art is a special type of property. There is an intangible element to art that goes beyond the physical embodiment of the art. In other words, a work of art has an intangible element above and beyond the canvas with paint on it, or the lump of molded clay or the bunch of sheets of paper with scribbling on them. To state it another way, when you read a story from a book, or listen to a song on a record, for the first time, then somebody takes away the book or the record, that story and that song are still going to be there, right? Even though you no longer have the book or the record. That's the intangible element of the work of art.

Society recognizes several things about the intangible element of art works. For one, it's difficult to place a definite value on the intangible element. For another, once that intangible element is created, it's relatively easy to reproduce it.

For example, it may take an author years to write a book, but once it's written, the book itself only needs to be printed and voila! you've reproduced in seconds or minutes the intangible element that took the author years to produce.

So, our society came up with the copyright laws to protect the intangible element of an artist's work. The artist created it, so it's the artist's property. If you build a house it's yours forever. So, if you write a book, why shouldn't it be yours forever? So, copyright law with its life plus so many years term falls pretty much right in line with the general concepts of other property law, in my view.

I know you might disagree with me on this, but I believe patents are a whole different matter. Patents cover "inventions" not artistic creations.

I think of an invention as more of a discovery than a pure creation as in an artistic work.

That is, with inventions if you study the natural laws (physics, chemistry, biology, etc.) and apply them to a particular problem, you will come up with an invention. Yes, inventors build things, but they build things in accordance with the natural laws. So, what I'm saying is that if there's a need for some invention and if you don't invent that thing, somebody else will. So, inventions are mostly driven by need and/or a natural tendency for people to improve upon known technology. That is, if the Wright Brothers handn't been the first to fly, somebody else probably would have soon enough.

On the other hand, if Beethoven hadn't written his 5th Symphony, I don't think anyone else would have. So, in that respect, inventions are kind of a lesser form of property than, say, a pure creation such as a work of art.

I think this difference between inventions and artistic creations is the main reason for the difference in terms of a patent and copyright -- that difference being that an invention is basically evolutionary and need-driven, and will eventually happen sooner or later, whereas artistic works are the sole creations of the artist that seem to come out of nowhere.

In other words, inventions are less personal because for any given invention, any number of people could come up with the same thing -- it just depends upon who discovers it first. On the other hand, artistic works are much more personal in that they bear the individual stamp of the artist.

So, this is where I'm coming from with my arguments. Society has decided that artistic works are property and the creator should have ownership rights in that property similar to other property. On the other hand, inventions are a lesser form of property, but are still entitled to limited ownership rights to spur technilogical development.

Looking at things from a different prospective, I would ask "what would be gained by taking away from the ownership rights of artists?"

I think I've made a pretty good argument above as to what I think would happen to the music industry if copyright terms were shortened. You raise the point that copyright terms shouldn't be shortened so much as to 10 years, but more like 20 years. I say, well, my same scenario would apply, but maybe it would be less dramatic.

In any case, I would still like you or anyone else to state a clear reason why the copyright term should be shortened.

I don't think shortening the copyright term would make artists come up with more and/or better material. Artists have been coming up with good material before copyrights and during the time we've had the current copyright term in effect. So, I think that proves that the quality of art is not affected by the copyright term.

[Copyright Tom Olson, 2005, all rights reserved

]

[This message was edited by Tom Olson on 26 August 2005 at 04:51 PM.]

Tom Olson · Post by **Tom Olson** » 26 Aug 2005 4:02 pm

Something that I forgot about is this:

Copyright protection is automatic -- it's there as soon as the work of art is created.

On the other hand, patent protection is far from automatic. First, you have to apply for a patent, and you have to do it within strict timeframes. Then, after you apply, you basically have to jump through hoops until you're sick to your stomach before you get a patent -- and you're not always going to be successful at even getting a patent.

The only reason I mention this is because I think it's evidence that my view stated above in regard to the difference between inventions and artistic creations is in agreement with the view of society as a whole in regard to the same issue. [This message was edited by Tom Olson on 26 August 2005 at 05:05 PM.][This message was edited by Tom Olson on 26 August 2005 at 05:07 PM.]

Post by **Dave Mudgett** » 26 Aug 2005 5:32 pm

Tom, I think you have, in a roundabout way, answered my question. Let me argue that I believe you apparently agree with b0b that there is an inherent right of creators to control their artistic creations. You ask:

Looking at things from a different prospective, I would ask "what would be gained by taking away from the ownership rights of artists?"

I think this says it right there! You acknowledge 'ownership rights' of artists right off the bat, and now ask me "what would be gained" by taking them away. I'm not saying you're "wrong", but in my view, those "ownership rights" don't exist. Remember, I'm not arguing current law, but what I think is correct. I know that current law gives "ownership" to creators for a very long time. I just argue that this is not a "right", by my set of values.

Tell me if I am misunderstanding you here, but that's what I was saying before - that you believe that creators have "ownership rights" - this is the kind of thing I'm talking about when I say "natural rights". This premise makes perfect sense with your argument. I don't think you make a bad argument at all - I just disagree with two critical premises:

1) That art is so much more special or inspired than science and engineering, on the whole.

2) That either of them "deserve" indefinite monopoly control rights.

I've done both music and math-science-engineering over a 30+ year period. The idea for an integrated circuit was definitely not discovered, but was designed, the same way a fine painting or great work of architecture was. That chip is nothing that occurs naturally - from a probabilistic point of view, we'd wait a lot longer for the molecules in a pile of silcone, gallium, and arsenic to congeal into an IC chip than wait for monkeys on typewriters to write Hamlet - and there's not enough time in the estimated life of the universe for either of them to happen.

I would also argue that there are 'natural' laws of music creation - composers like Bach and Beethoven exploited the harmonic structure that nature provides. Does it diminish the magnitude of their creations? Not a bit. But I get pretty weary when people minimize the level of creativity, inspiration, fanatical dedication, and genius that accompanies great science and engineering. What prevents someone else from having written precisely Beethoven's 5th is simply combinatorial complexity, but many engineering and design problems have this much or even more combinatorial complexity. Many scientific and engineering problems have staggering numbers of degrees of design freedom.

You say:

That is, if the Wright Brothers handn't been the first to fly, somebody else probably would have soon enough. ... On the other hand, if Beethoven hadn't written his 5th Symphony, I don't think anyone else would have.

On the Wright Brothers, I agree - what of it? Aviation and aerospace would very likely have eventually followed if any single designer/inventor didn't make their creation. The evolution of aviation might have been quite different, or maybe not.

But this is also true for Beethoven - suppose he hadn't written the 5th Symphony, what of it? Perhaps music would have evolved quite differently, or maybe not. If Beethoven hadn't been there at all, perhaps another composer would have risen to compose equally great works they didn't with him so dominant. Overall, how is Beethoven's 5th more special to the evolution of music than, let's say, one of Werner von Braun's important designs to the evolution of rocketry?

I guess what I'm trying to say is that when one is talking about things created by the human brain and hands, why should they treated so differently? A real mind-bender here is, for example, computer-generated music. The human programs the computer to generate music, and can certainly copyright it if the music has a unique sequence of notes. Why is anything like this somehow 'more worthy' than a genetically-engineered drug, obtained by searching for an appropriate genome sequence on a computer. This stuff is very fuzzy and getting more so all the time.

Hey, most creations aren't Beethoven, Picasso, the Wright Brothers, IC chips, or genetically-engineered drugs, but are much more pedestrian. I just argue that we need to give all creators a reasonable chance to have success in the market, but then allow succeeding generations to have the same benefit of unfettered use of earlier generations' ideas. This approach has served us well for the entire 'modern age'. The DMCA (Digital Millenium Copyright Act), which is the law that extended copyright protection so long, threatens that for artistic creation, IMO.

In any case, if you agree that your basic premise is that "artistic works intrinsically deserve copyright protection", then I understand your argument clearly and respect your view, even if I have a different one. You make some valid points - that's the trouble with real life - there are always valid points on both sides of a realistic argument.

Post by **Dave Mudgett** » 26 Aug 2005 5:50 pm

Just saw this:

it's evidence that my view stated above in regard to the difference between inventions and artistic creations is in agreement with the view of society as a whole

Well, it's certainly evidence that lawyers and politicians see it your way.

In some ways, I think this is as much administrative as substantive. In a patent, you go through much more trouble on the front-end, but it is somewhat more automatic on the enforcement end - I realize there are complications sometimes, but the patent approval does give prima facie evidence of originality. With a copyright, you just send it in, no analysis, no nothing, they just approve it with a date. It's strictly to record it. But if you want to enforce a copyright, you need to first show that the creation is original, and then show that it's been copied. My sense is that the patent system was originally geared more to companies, while the copyright system was simplified to be appropriate for single artists.

But I concede that the lawyers and politicians do not see things my way. But I'm only arguing from my view of principle, not law.

Tom Olson · Post by **Tom Olson** » 26 Aug 2005 7:30 pm

Dave, you raise a very good point -- the laws of man (which I referred to as the unnatural laws) are by nature fuzzy and sometimes very difficult to apply clearly.

You are also right that I look at artistic works as property in the traditional manner that has been part of society for hundreds and perhaps thousands of years -- that is, if you create something, it's your property.

I agree that one could think of some technology development work as nearly artistic. However, I still say artistic works are much more individualistic and totally original than inventions. For example most of the great composers simply sat down and wrote entire movements including all the parts. You could say that they basically wrote entire classical pieces "in a vacuum."

On the other hand, most inventing is done a piece at a time in a very methodical way, with each step being a natural progression of the last. My view is that inventions are more of a synergistic result of the scientific community acting as a whole to move technology forward. You could say that patents are like a carrot on a stick and the scientific community is the horse pulling the cart. (Maybe that's a bad analogy.)

You mention the integrated circuit. I believe that's a perfect example of my point. To read short narrative about the history of the integrated circuit, click here.

The narrative starts out like this: "It seems that the integrated circuit was destined to be invented. Two separate inventors, unaware of each other's activities, invented almost identical integrated circuits or ICs at nearly the same time..."

I don't want to sound smug, but that pretty much proves my point.

However, don't get me wrong -- I don't mean for a second that scientific inventions are not important. In fact, as I argued above, I believe the value to society as a whole of the technology developed as a result of patent protection is immensly greater than the value to society as a whole of the art work developed as a result of copyright protection. And I don't mean to minimize the value of art.

However, the value of any creation shouldn't be a factor in whether that creation is property of the creator or whether that property should be given the protection equal to any property regardless of its value.

I respect your opinion too, but I'm a little puzzled as to why you would say that an artistic creation should not be seen as property in a way similar to tangible creations such as a house or a hotrod or a model airplane or whatever.

[This message was edited by Tom Olson on 26 August 2005 at 08:57 PM.]

Tom Olson · Post by **Tom Olson** » 26 Aug 2005 8:07 pm

Not to get long-winded (actually, I already have), but here's a new slant on one of my arguments above.

To understand this argument, you would have to accept the majority view that artistic creations are property.

Anyhow, I don't know how valid this new slant is, but here goes:

Let's say somebody owns an important patent on which future technology is based. If the patent term were very long (say 100 yrs), this patent owner could effectively hold up the development of technology for 100 years by deciding not to license the patent to anyone. So, there's a public policy concern in limiting the term of patents so that technology can move forward.

Now, let's say somebody owns a copyright on a really good song. That person decides they don't want to license or sell the copyright for this really good song to anyone for 100 years. Well, big deal, right? There's lots of other good songs. Will this prevent anyone else from writing any other good songs? No, of course not. So, is society going to be hurt because some nutcase decides to keep his song to himself? No, it's not going to matter a hill of beans or make any difference in how we go about our day to day lives. So, there's no real over-riding public policy reason for limiting the copyright term. OK, I'll try my best to shut up now. Thanks. [This message was edited by Tom Olson on 26 August 2005 at 10:11 PM.]

Post by **Dave Mudgett** » 26 Aug 2005 10:03 pm

Tom, I'm not saying your points don't have merit. There is no "hard" answer here, since there are so many different ways to arrive at fundamental premises. But this isn't my view of scientific and engineering creation, and that's what I do for a living.

Now, don't get too smug on the IC design example yet.

Of course, there was strong motivation in the late 50s and early 60s to reduce the size of semiconductor components - a lot of people were working on it. This is like your airplane example. The basic physics was there, and someone would have gotten an IC eventually. But once there, things took off in many directions, as is normal when the number of degrees of design freedom increases. There is serious combinatorial explosion in the number of ways to design ICs and especially larger VLSI chips. I compared IC design more to a painting or architectural design. In visual arts like these, the medium is heavily influenced by the technology of the day, much the way chip design is. I don't think it was any accident that when concrete and steel becaue dominant contruction materials, architectural design suddenly became more streamlined, for example. Architectural design seems to move in waves like this. Is architectural design art or engineering? It has aspects of both, but I think it is thought of more more as artistic creation as opposed to scientific creation. Consider different painting media and computer-aided art. Is computer-art less original than brush painting simply because the artist has computer programs available to do certain things? These are more or less the same ideas as in chip design. Of course, designers are influenced by each other, but much in the same way that artists, musicians and songwriters are influenced by each other.

I also write original songs, and I know a lot of songwriters. I disagree strongly that most songs "come out of nowhere". Sometimes they are just free-associated like that, but many more are crafted distillations of ones own experience plus borrowed ideas from current or earlier generations of songs or musical idioms. Unless someone lived in a cave on a South Seas island for years at a crack, with no source of music, I don't see how anyone could possibly not be heavily influenced by the music one listens to - it is completely ubiquitous in the culture. When I listen to the radio (not very much these days), I'm startled how similar songs are to each other, and the melodies, hooks, rhythmic feels, and chord progressions of older songs.

I remember another post where I roughly estimated combinatorially how many unique 60-second melodies there are, based on certain assumptions. No, we're not going to run out of melodies anytime soon. But still, I hear the same old themes beat to death on the radio, song after song after song. How many ways can they do a I, IV, V blues progression? How many "original" chestnuts can be mined out of this old hole-in-the-ground? But there are tons and tons of new I, IV, V blues tunes copyrighted every year.

Also, have you ever noticed in popular music that all of a sudden, a whole bunch of bands suddenly make the same turn in direction? I think there is much less real "originality" in music than is often thought.

Now, I'm not arguing that there's no truly new and original music. Of course there is. But there is also a great deal of truly new and original science and engineering design.

It is possible to quantify the concept of "originality", and the concept of an "originality metric/measure" is not new. There are various metrics one can apply to various domains. Simonton developed one for classical music in 1984, Trajtenberg developed one for software patents in 1997, and Snelders and Hekkert developed one for products in 1999. These seem to measure the association between creations produced over a period of time, and every example I've ever seen of this showed a wide range of "originality", across any domain. I'll be stunned if any field shows a lot more or less "originality" than any other field.

So, for a lot of reasons, I simply don't accept the idea that creators "fully own" their creations, and certainly don't think scientific creation is less original than artistic creation. I'm not going to try to poke holes in every example you gave. But I think it would be interesting to do a careful study of "originality", let's say contrasting popular songs and engineering designs. I think a lot of people would be surprised at the result.

Tom Olson · Post by **Tom Olson** » 27 Aug 2005 9:00 am

Dave --

Is architectural design art or engineering?

You raise some more good points. I believe that most architectural designs (e.g. "plans", the "layout" "floorplan" or the way the building "looks") are actually nearly always covered by copyright protection. That's because the "plans" are not really a technilogical development -- instead, the plans are more of a creation, like a song or painting.

However, if there's some new method of construction, or type of structural technology, or whatever, used to construct the building, that could be covered by a patent.

I think that reflects on our earlier discussion that sometimes the law gets kind of fuzzy -- at least to most people.

once there, things took off in many directions, as is normal when the number of degrees of design freedom increases. There is serious combinatorial explosion in the number of ways to design ICs and especially larger VLSI chips. I compared IC design more to a painting or architectural design.

I'm not sure, but I believe you might be referring to "maskworks" which is basically the unique design of a particular type of I/C or semiconductor chip, right?

If so, you might already know (or be interested to know) that maskworks are nearly always covered by copyright law and not patent law. That's because the actual design or layout of the I/C, using known technology, is not in and of itself a technilogical development. Instead, it's an individual creation (using known technology) like a painting or set of houseplans.

There again, this shows how the law sometimes is a bit fuzzy and there may seem to be no real clear delineation.

[This message was edited by Tom Olson on 27 August 2005 at 10:04 AM.]

Post by **Dave Mudgett** » 27 Aug 2005 11:41 am

Hey, Tom - I think we are on the same wavelength again.

Yes, I know IC masks are sometimes covered by copyright, not patent. But the mask is the often the final product of a design method, which is (maybe) covered by a patent. More in a minute.

I fundamentally argue that choosing where a creative work belongs is fuzzy as blazes. That's one reason I have so much trouble treating the two types of creations so differently. This is, more or less, my thinking:

OK - suppose we say fundamental and truly original ideas, like designs which revolutionize the way things are done, get short shrift in patent protection, 17 years plus possible one-time renewal. Most of us engineering/science guys believe strongly that coming up with a general design method is much harder than cranking out one example, and are often far from inevitable. That idea of inevitability you were discussing is largely a matter of the combinatorial complexity of the design space. This complexity for general design methods and specific examples can range all over the map. The generalization that "general principles and design methods" are all inevitable is not true, IMO.

So, suppose now that someone's gone and done all the "hard thought" to make a seminal design contribution, for which they get a 17-year patent to license it out, if they are lucky. People can now take that design method, put it on a computer or work by hand, and crank out 500 different examples, and get lifetime + 70-years copyright protection on each one. This example applies directly to your IC mask example or music or art constructed by some algorithm. I argue that this happens a lot in all areas of creative work. There's a lot of "painting by numbers" disguised as art these days, IMO.

So on this issue, I argue that different kinds of creative works are so fuzzily distributed and hard-to-classify, with respect to "originality", "inevitability", and "importance to future creation" that there is no real way to distinguish them. So I think we should treat them the same. We all know that if we were to set up some crazy complex rules about how things should be classified, the only winners would be the lawyers.

Another critical issue: Why should anybody want to do the bold, truly original work? What's the incentive? Why do we think our young people don't want to bother working so hard to study higher mathematics, physics, engineering, computer science? This is the type of thought behind why I argue that incentives are a real critical issue here. We want to make sure that there is incentive for people and companies to do the hard, expensive, and risky work. Incentive is the only reason I argue for copyright and patent protection at all.

Another critical issue: competition. This is a basically capitalist society. The things that makes the capitalist economy work are incentive and competition. Monopolies, no matter how 'benign', give incentives but also stifle competition. A tradeoff is necessary - monopoly protection should be time-limited.

I personally think a good compromise on this would be to give all creative works a standardized one-generation 20-30 year creative control monopoly. This gives creators lots of time to capitalize on their creations while getting that next great creation ready. Do we really want to completely eliminate any incentive for successful creators to continue working? Think about it.

Finally, I realize I'm swimming upstream to argue against lifetime copyright on a forum full of musicians.

Copyright Dave Mudgett, 2005, All Rights Reserved[This message was edited by Dave Mudgett on 27 August 2005 at 12:44 PM.]