Blogs > Liberty and Power > More IP Censorship

May 21, 2008 1:16 pm

More IP Censorship

[cross-posted at Austro-Athenian Empire]

The purpose of copyright, according to the Constitution, is to “promote the progress of science and useful arts.” Exactly how interfering with freedom of education is supposed to do that is a bit of a puzzle.

Particularly egregious is the argument that noncommercial copying is really commercial copying because if it weren’t provided for free, then a lot of people would probably be willing to pay for it. One could use the same argument to prove that all sex is prostitution.

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Andrew D. Todd - 8/4/2008

Here is a link to the 1709 copyright Act. There seems to be some debate about the precise year, as the act took effect in early 1710. English statutes are of course quoted by regnal year, not calender year, in this case, 8 Anne.

Roderick T. Long - 5/28/2008

See Charles' post.

Roderick T. Long - 5/28/2008

But I wasn't arguing against IP, I was pointing out the defects of two bad arguments for IP. Even if IP were legitimate those two arguments would still be bad.

Mark Brady - 5/25/2008

I realize you made your argument in the context of intellectual property rights but that's why you've got to distinguish, or at least allude to the distinction, between IP and other private property rights. Otherwise your argument isn't "really an argument against copyright so much as an argument for socializing private property."

Roderick T. Long - 5/25/2008

How on earth was my post "an argument for socializing private property"?

Andrew D. Todd - 5/23/2008

A further note:

Referring to Mackinnon, cited in my previous post, under the English copyright system, the universities were also deposit libraries. Under an act of 1666, the copyright claimant was required to deposit three copies, one for the Kings Library, which would eventually be the British Library, and one each for Oxford and Cambridge. The 1709 act required nine copies, the additional beneficiaries being the various Scottish universities, and Sion College. Allowing for the famously irregular pattern of English administration, I think one might fairly describe Sion College as an ancestral component of the University of London, which eventually inherited a large chunk of its books. After the Act of Union of Ireland, the Irish universities were added to the list, making a total of eleven copies.

I think that if one were to construe this into modern terms, taking account of reasonable costs, the deposit requirement would be about two hundred books, to be distributed to the flagship state universities and other comparable libraries. The quid pro quo for a copyright was that the author or publisher had to give copies to essentially all recognized research libraries. His legitimate source of revenue was people who wanted their own personal and private copies.

Mark Brady - 5/23/2008

Fascinating post.

Mark Brady - 5/23/2008

Rod, you have certainly made those arguments at length previously. Indeed you have argued your case well. And I didn't think you ought to have repeated them here even if it may have seemed to you that I did. What prompted my comment was that your post wasn't really an argument against copyright so much as an argument for socializing private property. And that's surely a very different argument from questions about what constitutes justly acquired private property and specifically whether intellectual property is libertarian.

Roderick T. Long - 5/22/2008


Mark, I'm baffled by your response. My post wasn't meant to be a general argument against IP (as might be guessed from the fact that it's only four sentences long!); I've made those arguments at length previously (see here and here – and for other folks' arguments see here) and was taking them for granted here.

My arguments were much more narrowly directed. I was arguing a) that the government's official case for IP, namely the one offered in the Constitution, seems in tension with its actual practice, and b) that the attempt to reinterpret noncommercial use as commercial was dubious. (Of course I don't care about the commercial/noncommercial distinction (since I think IP is illegitimate in either case), but IP proponents claim to, so I was making an internal criticism.) What were you looking for?

Andrew D. Todd - 5/22/2008

First, if you are going to cite newspaper material, you do need to cite it by the numbers: author, title, date, etc. Newspapers play games with paywalls and registration walls. One has therefore to cite in a fuller form than would be required for publications which have come to terms with the internet. You realize of course that the New York Times collects lists of who reads what, and sells them to the highest bidder. Particularly in those cases where they are doing little more than reprinting material created elsewhere, it is ridiculous to allow them special privileges. I take it we are talking about this story:

KATIE HAFNER, Publishers Sue Georgia State on Digital Reading Matter, April 16. 2008 9:00AM

also referred to in:

and the actual horse's mouth, the legal papers:


The substance of the claim is that in a few cases, Georgia State is "making available" anything up to half of a standard anthology over its library website, and in a larger number of cases, reproducing whole chapters, or single papers from anthologies, rather than going through the copyright clearance center to make up course packets. Most of this does not depart from traditional reserve room practices. The only thing new is fully electronic reproduction, which, of course, transforms everything. Wholesale copying was traditionally confined to the first-year graduate course, with its esprit de corps, but now copying is spreading downwards to upper division courses.

The publishers' theoretical rights are unenforceable in light of the present perfection of electronic cameras, etc. If the students cannot simply download material from the library website, they will make copies in the library and hold swap meets. Swap meets are not visible over the internet. Disks will circulate around departments, being updated with new material each term, but retaining the old material as well. One can imagine the pattern of the publisher's successive escalating demands, as each previous demand fails to shore up their falling revenues. They will ultimately insist that a book cannot be put on a course syllabus without the payment of a fee.

A curious note: a few years ago, I read an official history put out by the college fraternity omnibus organization (Clyde Sanford Johnson, _Fraternities in Our Colleges_, National Interfraternity Foundation, New York, 1972). It seems that there was a time in the nineteenth century when the fraternities had better libraries than the colleges did. The fraternities had adopted liberal intellectualism, complete with its tradition of reading widely in the English language, as opposed to the old emphasis on Latin and Greek language study.

By the way, the obvious intent of the framers, as evidenced by Early Republic legislation in 1790, was a so-called "founder's copyright" of fourteen years, renewable for an additional fourteen, substantially the contemporary English terms of copyright under the act of 1709. The 1709 act had included reprint exemptions for Oxford and Cambridge Universities, and an anti-price-gouging clause. Fields vary of course, but I think you would find that if a book is sufficiently foundational to be a required reading, in a course of sufficiently broad scope as to have a reasonable enrollment in a typical school, that book would very often turn out to be at least twenty-eight years old.

For what it is worth, taking something of a liberty with the intentions of the framers, they had implicitly set a copyright horizon of 1762. I presume the new copyright law did not have retroactive application, but this is still a good indication of the framer's sense of the proper reach of copyright. The school curriculum of the time was very much focused on works of much greater antiquity (Latin and Greek Classics, the Bible, Shakespeare and Milton), but the one obvious recent work which was likely to be useful in the schools was Dr. Johnson's dictionary, published in 1755 The framers chose to draw the line in such a way as to put it beyond the copyright limit. That creates a strong presumption that they did not intend copyright to extend to the kinds of books used in the schools. They might well have agreed to a shorter term of copyright for the year 2008, faced with evidence that everything moves faster now.

Sir Frank Mackinnon, "Notes on the History of English Copyright," Appendix II in Sir Paul Harvey, The Oxford Companion to English Literature, 3rd. ed., 1946

Mark Brady - 5/21/2008

I'm very sympathetic to the case against intellectual property but you haven't provided any real argument against IP. One might as well claim that if Georgia State were to appropriate other goods and services from private property owners and make them available to its students without charge, and the owners were to demand payment, the owners would be "interfering with freedom of education." Or, extending the argument, how would you as a professor at Auburn University respond if the administration conscripted your labor services without compensation for the purpose of educating their students?

The issue of copyright, and IP in general, has to be argued on its merits, and this you signally fail to do.

True, Georgia State "was not making money from the electronic course packs" in the sense that it was not selling the packs to students. But it was depriving copyright holders of their legal rights. Surely Professor Crawford has a point when she states that "It’s difficult to argue that this is a truly noncommercial use. Georgia State may be a nonprofit institution, but its students pay a lot of money for course materials, and would presumably pay money for the materials being provided to them by the university." And, I should add, if the university were determined to place the material online and had to pay for it, the university would either have to charge its students higher fees or cut back on other services. And neither does it follow that all sex is prostitution!

In short, a bad post. Bill Stepp's response was a better one as he sought to get to grips with some of the issues involved.

William J. Stepp - 5/21/2008

A good post.
Cambridge U. Press et al. ought to rework their business models to compete in the real world where the "cheap revolution" (to use Forbes' columnist Rich Kaarlgard's felicitous phrase) is reducing the cost of distribution and a lot more. This doesn't mean that content providers won't get paid for their work, contrary to the suits. They just have to leverage their first mover advantage with complementary services, and be a little more saavy.
In any event, they probably long ago earned back their cost of capital on the works in question and still earn competitive rents.
The irony here is that in July Cambridge is publishing Boldrin and Levine's _Against Intellectual Monopoly_. Maybe the mucky mucks upstairs there should call a timeout to read some of the stuff rolling off their own presses. Hopefully the lawyers at Georgia State have cottoned on to their arguments against copyright, and will use them in their defense.