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Post by Russell Letson on Feb 9, 2007 15:57:50 GMT -5
Paul--There's a bit of apples-and-oranges in the patent-copyright comparison. Tech does build on tech, and the "ideas" behind patentable devices are almost as important as their particular implementations--but it's the implementation that is patentable, not the idea. (Note what happens to a business sector when some smartypants is given a patent on a process like one-click on-line buying. Any similar process is deemed an infringement, and the litigation goes on forever because some patent-office genius refused to see the difference between idea-of and implementation-of.) Several things are operating here: competition between different ways of achieving a goal; a degree of economic security through monopoly pricing or licensing that protects and encourages investment; and the knowledge that in X years the monopoly is over, so you'd better be working on the next product.
Copyright, however, protects things like works of art and particular arrangements of words or whatever, and while those have an abstract-idea level analogous to the "idea" behind a physical device (hey, how about a story about a nearly-invincible serial-killer cannibal?), the particular words or notes or brushstrokes or whatever are unique and really more like a single piece of property than a device-design that can be improved on, elaborated, licensed, and so on. The Founding Fathers properly saw short-term patents as a good compromise between the needs to reward ingenuity and to fuel inventiveness in the whole technological-economic environment; but literature and music and other creative/intellectual "products" live or die by their irreproducibility, so it does make sense to think about them a little differently than widgets.
About term of copyright: I personally know at least a half-dozen writers who can have a comfortable old age because they retain control of work they did decades ago. We can argue about the social-engineering implications of passing wealth across generations, but it's hard to imagine artists not wanting to leave something to their children and even grandchildren. (Corporations I feel less empathy for--let 'em recognize that investments don't pay off in perpetuity.)
Not entirely on-topic but mildly related: I wish the (non-fiction) publishing world wouldn't force work-for-hire contracts on free-lancers, because I just saw something I wrote 20 years ago still generating income for the corporation that bought the assets of the original publisher, which paid me about $125 and a copy of the book. If I I had been able to retain copyright, they'd have to either pay me a modest fee to include my piece in their database/service, or get a staff researcher to gin up a more-or-less equivalent--but it almost certainly wouldn't be as good as mine (no brag, just fact). (It wouldn't be so annoying if work for hire paid worth a damn, but the up-front money is mediocre. I should quit, you say? What, and give up show business?)
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Post by PaulKay on Feb 9, 2007 16:35:48 GMT -5
Russell, To me the "ideas" behind a patent is not similarly analogous to an abstract idea, it is exactly like it. If one could copyright the transistor "concept" it would have the same protection as a written song. A song writer who's song is recorded by a band gets a mechanical royalty on every CD produced and a royalty on every piece of sheet music. Why shouldn't the person who originally conceived of the transistor get a mechanical royalty on every embodiment of that idea? What the founding fathers saw was that constraining "technical ideas" the same as "artistic ideas" would kill innovation (and rightly so, it would have). My point is that the intrinsic value of that technical idea was FAR FAR more valuable than the "artist value" of a song. Yet the "technical artist" can't get the same protection for his heirs as the artist because his "ideas" can't be copyrighted and extended by strong political lobbys. Don't you think the drug companies would LOVE it if they could copyright the "statin" idea and collect a royalty on every pill made on every variety of a statin drug? We don't see it as the same only because it would be too painful to see it that way. But as an engineer, I can see huge value in being able to copyright the "idea of a spreadsheet" or the "idea of a web page". So if technical ideas don't qualify, artistic ideas shouldn't either. The Beatles should be told, sorry you can only patent your "songs on vinyl in your specific arrangement". Those songs on CD or in mp3 are not protected. Sombody comes up with a new arrangement for the song with trombones and tubas should be free to produce it without royalty. Fair is fair... I don't see abstract ideas as any more in need of protection as technical ideas. If someone wants to create a new mouse cartoon, they shouldn't tremble in fear that Disney would squash them like a mouse under steamroller. About term of copyright: I personally know at least a half-dozen writers who can have a comfortable old age because they retain control of work they did decades ago. We can argue about the social-engineering implications of passing wealth across generations, but it's hard to imagine artists not wanting to leave something to their children and even grandchildren. ...and I can name at least a half-dozen engineers who might have had a comfortable old age if they could have retained control of their "ideas" too!
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Post by timfarney on Feb 9, 2007 18:24:38 GMT -5
Actually Paul, I think you're making my point that this is an apples to oranges comparison. There are a very finite number of notes, compared to all the possibilities in the technological arena, yet thousands of new songs manage to emerge, and be copyrighted every year with, relatively speaking, very few challenges.
Seems that, in spite of Britney and Kenny music is quite prolific in spite of the burden of copyright law. Progress in the area of the arts is, of course, subjective.
Tim
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Post by Russell Letson on Feb 9, 2007 18:55:08 GMT -5
A handful of observations: An art work isn't just an abstract idea--it is a very particular set of operations carried out in a medium, and copyright specifically requires that a work be in a fixed form--that's why the story "idea" of a nearly-invincible serial-killer cannibal is not copyrightable, but The Silence of the Lambs (and various elements of it, such as the constellation of character names, particular sequences of words, and so on) is. As a result, we have legions of Hannibal-wannabe books, all of which are copyrightable themselves--but I can't just appropriate Thomas Harris' text and sell it. In fact, as I understand the law, the closest analogue to "invention" in the engineering sense (that is, an insight into how to do or make something, along with a practical demonstration of it) is not copyrightable at all. Only particular manifestations of an artistic "idea" get protection, so if I imagine a world in which magically-gifted kids go to a magical boarding school, all I can copyright is my version of that story-generating idea--my particular novel or screenplay. (BTW, this ideas-are-free principle accounts for 75% of television.)
As I understand the history of patents in the US, they were precisely a matter of politico-economic social engineering, meant to balance competing interests: inventors got exclusive rights to exploit their inventions and the public got free access to them after a certain term. Before this, the only way to protect an innovation was to keep it a secret, which you can do with, say, a chemical process but not with a device. (This ignores the possibility of, say, a monopoly granted by a king in return for a kickback--the source of our current term of "royalty" for payments to a rights-holder.) The question of who gets what kind and term of protection has always been a political one, and the divergence in terms and conditions between artistic/intellectual creations and physical/productive-process ones has to be understood in that context. But the principle that eventually any invention or creation goes into the public domain was clearly a central part of the system from the beginning.
A side note on the conditions of engineers and artists: How many corporate-employee engineers would be allowed to hold patents in their own names anyway? Most companies consider innovations developed by their employees as company property--the clever engineer might get a bonus or promotion or whatever, but he's in the same position as the in-house editor or the freelance work-for-hire writer--you give up your rights to your work when you sign on. Would that it were otherwise, but I've not been able to find a way around that one. (Severe shortage in the clout department.)
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Post by Deleted on Feb 10, 2007 0:53:38 GMT -5
I've often said that all of these lawsuits is more of a control issue. If you look at it, the music industry has really taken a plunge in the quality of music produced and played at the mainstream level. Take for instance that Rush came out with Vapor Trails in 2002 and I don't know about you guys, but I didn't hear any of their new stuff on the radio. That was probably one of their best CD's and it was kicked under the rug. Sting's last CD wasn't promoted by MTV or VH1, because I personally believe the Music Industry wants to suppress the really talented ones, present the mediocre or crappy ones, and keep the general public ignorant. I think that's the prevailing attitude. There is a documentary called "Before The Music Dies" and you can check out the website at beforethemusicdies.com. It interviews guys like Eric Clapton, Dave Matthews, and many songwriters and it gets their opinions of the industry today. They even sit down with a songwriter and ask him to write a bubblegum pop song to be performed by the latest teeny-bopper. The teeny-bopper is a teenage girl who is assisting them with the project. She has no singing talent and her pitch is awful. It's done like that on purpose. They fix her with pitch correctors and polish it up really well and there you have the next Britney Spears. The industry was making a killing at this for a while and then control was switched to the user/listener via Napster. Groups that would never have been promoted by the industry such as 3 Doors Down (i'm not a fan by the way) all of a sudden were gaining popularity through old fashioned "word of mouth" but it was beefed up by the internet. The Music Industry can no longer tell people who to listen to and what is popular because Indies have a much louder voice and the majors are not needed as much as they were 10 years ago. I understand the fear of many of the honest, hard-working songwriters/artists, but I know some songwriters who view downloading as exposure and as an ability to increase thier overall profits and noteriety. I'm not advocating abolishments of copyright protection, because I fully believe that writers, artists, publishers, and labels deserve to be justly compensated. I am however arguing what my copyright law professor said, "the industry coped when tape recorders were invented and they will cope now." There will be something reached and these ridiculous lawsuits of the RIAA against grandparents, who don't even know how to turn on a computer, will end.
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Post by timfarney on Feb 10, 2007 9:25:41 GMT -5
Oh, I don't think it's nearly that conspiratorial, Justin. I think the music industry just wants to make money. And their executive suites are populated with empty suits who think that finding the next version of whatever vacuuous pop star is currently vogue is the cutting edge.
It may be a little worse today, but it's certainly not new. You could go back to the early days of rock n roll and find endless streams of the "new Elvis," most so hopelessly bland that it's obvious the only thing the "got" about Elvis was the hair dye.
Tim
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Post by patrick on Feb 10, 2007 10:05:09 GMT -5
Yes, patent and copyright protection is, indeed, social engineering. As Justice O'Connor wrote in one opinion, the patent system does not exist to guarantee a comfortable income to inventors, it exists "to promote the useful arts and sciences," and Congress can write whatever laws they like to so promote them. Monopolies for a limited time, e.g. patents, do that. They reward inventiveness reasonably and they provide an incentive to others to design around existing patents. It's a good thing they're time limited. What would our medical system cost if we were still paying royalties to the descendants of Jenner (invented immunization, died 1823) or Fleming (inventor of penicillin).
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Post by aquaduct on Feb 10, 2007 11:22:41 GMT -5
What I have trouble getting around is that the music "industry" really has never had anything to do with music. It's merely used available technology and its attendent barriers to entry to create an industry out of recorded music, which is not the natural state of music. I mean, where else could so many people make a living at something that they have little inherent ability in.
It seems to me that the complete collapse of the technological bubble that maintained the illusory pseudo-music "industry" is a fundamental business model shift that doesn't kill music so much as wipes out the hangers on.
An example would be songwriting. The sad fact is, a song is not music, merely a framework that music hangs on. If all you've got is a catalog of songs with no musical contribution, you're between a rock and a hard place. Fight to protect your "intellectual property" and real musicians will find other frameworks.
After all, given all that Prince had to work against in the Superbowl (driving rain, high heels, a mix that eliminated the entire rest of his band), the dude could have riffed on the phone book and made great music. The fabulous references to Hendrix (note, not the songwriter Dylan) and the Foo Fighters really weren't so much about the songs, but about the musicians. All the rights payments in the world for those songs doesn't come close to the music made by the referants.
As for the parrallels to engineering, my company pays one time bonuses for patents on a scale based on how far you get in the process. Something like $100 for a filing, $2000 for an award, and $10,000 for something incorporated into production.
Still, the engineering talent (and the big money for both the company and the employee) is in the ability to make great machines, not generate patents. If I'm interviewing to fill an engineering position, give me a guy with a B.S. that rides fast motorcycles and wins drag races on the weekend over the PhD. with six patents any day of the week.
After all, Enzo Ferrari didn't become famous because he patented the V12.
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Post by millring on Feb 10, 2007 12:30:50 GMT -5
Being neither writer nor engineer (and not a dog in either fight), I gotta say... this is a fascinating group of people to be having the discussion and I'm enjoying it. I've read oodles on the subject elsewhere and yet I'm a hearing a different perspective here than I'd previously thought about.
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Post by dickt on Feb 10, 2007 13:07:48 GMT -5
Yes, patent and copyright protection is, indeed, social engineering. As Justice O'Connor wrote in one opinion, the patent system does not exist to guarantee a comfortable income to inventors, it exists "to promote the useful arts and sciences," and Congress can write whatever laws they like to so promote them. Monopolies for a limited time, e.g. patents, do that. They reward inventiveness reasonably and they provide an incentive to others to design around existing patents. It's a good thing they're time limited. What would our medical system cost if we were still paying royalties to the descendants of Jenner (invented immunization, died 1823) or Fleming (inventor of penicillin). But patents expire after 20 years. Sound recording copyrights for virtually all sound recordings made after 1923 have been extended through 2067! This insures that most of the music recorded in the 20th century will be out of print and can only be heard if one can play cylinders, 78's, LP's, 45's, etc. This does not enhance creativity--it squelches it. As a percentage very little of the music from 1900 to the CD era has been reissued on CD. Yet Congress keeps passing laws to extend copyrights beyond all reason. Will Irving Berlin's great great grandchildren be beneficiaries of songs he wrote nearly 100 years ago? Will the 1927 Mickey Mouse cartoons ever pass into the public domain? The intent of the copyright laws was that it was a FINITE term and that works would pass into the public domain. Congress has really messed that up in the last 20 years.
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Post by aquaduct on Feb 10, 2007 13:22:22 GMT -5
Yes, patent and copyright protection is, indeed, social engineering. As Justice O'Connor wrote in one opinion, the patent system does not exist to guarantee a comfortable income to inventors, it exists "to promote the useful arts and sciences," and Congress can write whatever laws they like to so promote them. Monopolies for a limited time, e.g. patents, do that. They reward inventiveness reasonably and they provide an incentive to others to design around existing patents. It's a good thing they're time limited. What would our medical system cost if we were still paying royalties to the descendants of Jenner (invented immunization, died 1823) or Fleming (inventor of penicillin). But patents expire after 20 years. Sound recording copyrights for virtually all sound recordings made after 1923 have been extended through 2067! This insures that most of the music recorded in the 20th century will be out of print and can only be heard if one can play cylinders, 78's, LP's, 45's, etc. This does not enhance creativity--it squelches it. As a percentage very little of the music from 1900 to the CD era has been reissued on CD. Yet Congress keeps passing laws to extend copyrights beyond all reason. Will Irving Berlin's great great grandchildren be beneficiaries of songs he wrote nearly 100 years ago? Will the 1927 Mickey Mouse cartoons ever pass into the public domain? The intent of the copyright laws was that it was a FINITE term and that works would pass into the public domain. Congress has really messed that up in the last 20 years. Recordings are not music. They are historical records of musical events. Real music is immediate and transitory. The fact that these historical records aren't available by definition enhances creativity. If you can't revel in the past, you've got to go out and create more music. If Irving Berlin songs aren't available as your vehicle, write other songs. Sorry, but the death of the music recording industry has little to do with actual music.
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Post by patrick on Feb 10, 2007 13:51:17 GMT -5
I agree Dick. The copyright law is currently rather absurd. It does NOT promote the arts, it inhibits the progress of the arts. Imagine what the arts would be like if the current copyright terms had existed before this. Would we be paying royalties to Shakespeare's descendants? Beethoven's?
The very word 'Patent" comes from the Latin "pateo," to lay open. Society benefits from patents because teh inventor is required to teach the rest of us how to make his invention. In return, he gets a monopoly for a limited amount of time. That's the deal that society makes and both sides benefit from it.
Where, exactly, is the benefit to society of society granting a corporation a very long copyright term? Even if you made the term of a copyright the lifetime of the original writer or author, would there still be copyright on Mickey Mouse?
The copyright term extension was just pandering to a corporation at everyone else's expense.
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Post by Russell Letson on Feb 10, 2007 14:01:51 GMT -5
By Aqueduct's kind of reasoning, printed stories are not literature but only "historical records" of actual literature-generating events. This has the effect of freezing an art form at the live-reception stage and pretending that the fixed-form record isn't "actual" art. It's an interesting philosophical notion, but ignores the fact that technological change alters the psychological and cultural environment in which artistic production occurs. Writing changed literature (even our word for word-based art reflects that fact), notation changed music, film transformed theatre, and recording changed the way we receive music.
And we're not talking just about availability--Berlin's work will remain available because there's a market for it, even if greed-heads and control freaks sit on catalogs of less lucrative material. It's about who controls access, who charges for access, how much and for how long. The distortions and imbalances in the various branches of the intellectual-property field do indeed reflect who has bought influence, and what is at stake. Drug companies are brought up short because they sometimes deal with life and death (when they're not trying to grow hair or induce erections), so they're told to suck it up and invent some new stuff. Apparently all that's at stake in copyright is who owns Mickey, so the money does all the talking.
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Post by aquaduct on Feb 10, 2007 14:21:49 GMT -5
No, Russell. There's a fundamental difference between literature and music. Music is a performing art. Literature is not. Recording in and of itself may be its own art form, but it isn't music.
It's the same as the difference between literature and story telling. Does the copyright protection on "Grapes of Wrath" prevent great story telling or make it any less creative?
The fact that the recording "art" isn't anywhere near as inherently self sustaining as literature doesn't play into it.
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Post by timfarney on Feb 10, 2007 16:23:50 GMT -5
Anywhere there are sales and marketing people.
And by the way, that fundamental difference between records and literature -- that music is a performing art and records are only the capture of a particular performance somewhere in time? Nah. Maybe for live recording of single concerts, mostly bootlegs. But most albums that come out today are conceived, written, recorded and edited to be what they are - packaged recordings. The recording is the performance. Then the artists struggle after the fact to reproduce it live. It has been so for decades.
Tim
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Post by aquaduct on Feb 10, 2007 17:54:44 GMT -5
And by the way, that fundamental difference between records and literature -- that music is a performing art and records are only the capture of a particular performance somewhere in time? Nah. Maybe for live recording of single concerts, mostly bootlegs. But most albums that come out today are conceived, written, recorded and edited to be what they are - packaged recordings. The recording is the performance. Then the artists struggle after the fact to reproduce it live. It has been so for decades. The implications of that are sad, not the least of which is that I guess I've never been a musician. Artists may have had trouble reproducing thier recordings live, but I'm not aware of any musicians who have ever had a problem making music live.
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Post by Russell Letson on Feb 10, 2007 18:46:30 GMT -5
This is actually an interesting (if rather abstract) aesthetic question: does the art reside in the moment of creation, with a real-time connection between maker and audience, or can the "artistic" connection be asynchronous? What does this say about composed musical works preserved in notation? Are they art only when they are realized in a performance, and some other kind of entity when they're, say, read by a musically-literate person? Is a videotape of a play less an art object than the original live performance? What do we do about various kinds of electronic music that are only heard as a recording? Are they less "music" than live music? Insisting on the primacy of real-time performance/reception requires accounting for all the arts that either cannot be performed in this way or exist in modes in addition to real-time.
About musicians who have problems making live music: Glenn Gould chose recording as his only outlet. (His reasons seem to be a mix of the aesthetic/technical and the personal/neurotic, but still, that's what he chose.) Then there are composers who cannot realize their work themselves because their instrument is the ensemble (quartet, orchestra, chorus, opera company). Oh, and the Beatles and "Sergeant Pepper"--significant sections could not be performed live at all when the album was made, and maybe now only with significant technological assistance.
Actually, I'd say that Aqueduct's model does not apply to all music but only to the subcategory "music as a performing art," and then with the proviso that recording does not remove the music from the realm of art but only changes some of the conditions of reception. I will accept that the "electicity" or "connection" that is part of live performance is a real phenomenon (actors talk about it all the time, and most performers have experienced it), but it is not the defining characteristic of music or drama.
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Post by aquaduct on Feb 11, 2007 12:05:39 GMT -5
Russell,
The musicians are not the composer's instruments. The composer creates a "song", a framework for a musical event, that doesn't exist as music until an orchestra chooses to perform it. All the fakebooks in my basement do not constitute music, even if I happen to pick one up and read through it, as I am capable of doing (but I can't think of anything more boring without actually having a guitar in hand).
The written music has its place as a tool of musical communication and has rights issues attached to it publication as a literary work, but it's not music until the musician clothes the framework with performance.
And I'll concede that recording has its own artistic value separate from performance. I'd just say that, on its own, the recording art has brought very little to music separate from performance.
Yes, some super groups that had, at the time, freed themselves from the commercial constraints of the recording industry, have been able to produce concept recordings that hang together in a unique way as a series of songs, but it's been a couple decades since there was a decent one. And multi-tracking lets the Beatle's use car horns and Vanilla Ice sample Queen.
But I've played "Tommy" for community theater and I've seen Queen do "Bohemian Rhapsody" and Elton do "Funeral For a Friend" live. It's still really tough to get a significant recording contribution to the art that is distinct from performance.
What it has done, as Tim touched on, is allow musical hacks to produce good, commercially sucessful recordings that they can't hope to play.
But to say long copyrights on musical recordings stifles creativity is nutty.
You can't be creative because you can't do Irving Berlin covers? Because you can't release a note perfect re-recording of Seargent Pepper's? You can't release a new Mikey Moose cartoon with a disturbingly altered Disney character? That's restricting creativity?
And, hey, if the rights holders want to suffocate thier own asset by making it impossible to aqcuire rights permission (and there's no restriction if the rights holders choose to let it go for free), that's thier own dumb fault.
The recording industry used fundamental barriers of entry to recording technology and technical barriers of access to build an industry off the backs of performers, paying next to nothing to give musicians a shot at a national audience where real money could be made through live performances. That's the business model that is crumbling.
I've got a $200 unit in my basement that packs more recording power in the palm of my hand than the Beatle's had at Abbey Road and I can distribute the recordings for free (maybe charge 8 cents a throw so I can make back what I would with a major label recording contract) digitally to hype my own shows.
Recording is now a virtually free marketing tool for the real music. Of course, the new business model requires you to be a musician, but that can't be all bad.
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Post by timfarney on Feb 11, 2007 12:46:53 GMT -5
In some cases, yes, the implications are sad. But in others, it's simply a matter of creating in the studio what cannot be practically created live. I don't know if that's sad or a new art form. Even with crude 4-track technology, The Beatles couldn't have performed huge chunks of Sgt. Pepper, Revolver, etc. live without tape loops, an orchestra, an R&B horn section, an Indian music ensemble... That didn't diminish their ability to make music live on the roof of Abbey Road Studios a few years later.
I get your point and agree to a point. Music is not literature. It exists outside of it's recorded, distributed format. But for a long time now, the recorded form has been an art form in and of itself. And I'm not talking about Pro Tools digitally perfecting solos and taking the flat spots out of Faith Hill's voice. I'm talking about great albums that are concieved and executed as albums - the medium is the art.
I like those albums, myself, probably because I'm really more interested in the songwriting than I am in the performance anyway. But I love a good show or a good live recording too. I'm easy.
Tim
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Post by Doug on Feb 11, 2007 12:57:37 GMT -5
But it's not music, it may be an art but music is live. I have no use for a recording that the musician can't reproduce on stage. Just electronic noise.
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