Copyright Bureaucracy

Generally as a rule of thumb the Mass Media seems to be outraged when there is a bureaucracy that protects the rights of the public at the expense of the corporations; but when the bureaucracy protects the profits of the corporations at the expense of the public they’re silent. This is what the copyright bureaucracy is doing; whether it is the government or the corporations implementing it. Of course whether it is copyrights or something else if they are trying to protect the profits of the corporations at the expense of the public they use an example that seems to make it seem like they’re doing the opposite; which means they will surely have some rare examples of rags to riches owner of copyrights; however the vast majority of copyrights are in the hands of the wealthy and even if they aren’t they have to deal with publishing and promotional companies in order to develop a reputation and add value to their copyrights; and these institutions are in the hands of the wealthy.

When reading Stephen Fishman’s book the “Copyright Handbook,” naturally the first thing I did was of course to check see if it was copy written; and of course it was. This may seem perfectly reasonable until you consider what the original purpose of the copyright laws was.

The original section of the Constitution that justifies the copyright laws is the eighth paragraph of article one, section 8 which says “The Congress shall have Power”…. “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;…” This means that the original intent was to provide incentive for those that write books and invent things; however what seem to have happened is that the laws created by Congress may have done more to protect the income of those that control powerful bureaucratic institutions than to protect the rights of the writers and inventors without political power. This doesn’t mean that there aren’t some writers that deserve the protection of this system but it does much more than that and drives the cost of books education and many other items that the public relies on including even drugs. Drugs and other inventions are of course protected by patent laws not copyright laws but it is essentially the same thing.

Without a copyright bureaucracy Stephen Fishman and many other copyright or patent lawyers that often make much more money than those whose rights they supposedly protect would have to find another line of work which almost certainly wouldn’t pay as well. A close look may indicate that Stephen Fishman and other copyright lawyers for the most part don’t do much if anything to improve the quality of life of the majority; in fact when it comes to the copywriting of information necessary for education they actually put higher education out of the reach of a large percentage of the public by driving the costs up. This doesn’t mean that we should eliminate the copyright without careful consideration but there are serious flaws in it and it has turned into something that has clearly gone way beyond the original intent and the best interest of the public. We should keep in mind that the system to pay those that deserve it should be made as efficient as possible and it shouldn’t be bloated to protect the bureaucrats any more than any other bureaucracy. The system should be as simple as possible and it shouldn’t be designed to enable the bureaucrats to make more money than those that do work that actually improve the quality of life for the public.

Depending on how it is interpreted the first amendment could apply to the copyright laws as well. It states that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” If the courts were so inclined they could have interpreted this to mean that copyrights, especially excessive copyrights infringes on the right of freedom of speech or press. Unfortunately the courts have routinely used a wide amount of discretion to interpret the constitution in a way that benefits the politicians and campaign contributors that appoint them despite their claims of impartiality. Another amendment that would be worth serious consideration would be “Neither Congress nor the states shall make any law that restricts the right of the public to have access to an education.” This may seem obvious to many people yet the governments have often done just that and with the continued use of existing copyright laws they continue to do so in a more subtle manner. The most blatant example of restricting access to education was probably when they still allowed slavery and the outlawed the education of black people in parts of the south. This is phrased in a way that doesn’t require the government to provide financing for education but prohibits the restriction of it. In my opinion it wouldn’t go far enough since the strength of democracy depends on the quality of the education system; in order to have a sincere democracy the public has to be well enough educated to participate in it.

However this should be less controversial for those that are opposed to funding education and it should be easier to get it through. It is worth considering whether or not this is the intention of those that attempt to restrict access to education for the lower classes. If they understand the importance of education and many members of the lower classes don’t due to lack of education they can indoctrinate the public easier; and any obstacles to a good education including copyright laws could make it easier for them to do this. In order to implement this proposed amendment effectively, though it may require other methods to finance the research and production of educational material. In many cases though there are already incentives in place. Many research projects are funded by educational or government institutions for other purposes and the copyrights are just a bonus that they often take advantage of. One of the most extreme examples is the work done by Stanley Milgram and Phil Zimbardo which I mentioned in the previous blog about copyrights; in this example not only was the government subsidizing research that was later copy-written but they were researching ways to manipulate unsuspecting members of society, either in boot camp or elsewhere. There are also many examples where marketing people and political scientists conduct research in the academic and corporate world to learn how to manipulate the public more effectively and the public has little or no understanding about how this affects them then if the results are made public they’re copy-written so that they can control the distribution of the information. The public that participates in the research unwittingly receives no rights to obtain the results of this research unless they can afford an advanced education that is more expensive as a result of copyright laws.

At the beginning of his book Fishman states that this book is limited in what it covers and that it doesn’t include many other things like patent and the protection of music as well as how to negotiate contracts. He begins to recommend other sources for some of the things that this book doesn’t cover; there are many more recommendations before the end of his book which provides a good idea of how large the copyright bureaucracy is. When it comes to negotiating contracts though, there is a noticeable absence of books to help learn about this. A closer look may provide some hint about this including some discussion about trade secrecy laws which enable corporations to do a large part of their business in secret and discussion about how many publishing companies are trying to convince writers to surrender all their copyrights to the publishing companies or magazines. This dispute and many others tends to be between the people that provide the content and the institutions that distribute the material without much if any input from the consumers.

Those that provide good material like Colleen McCullough or Mark Twain, who happens to be the most cited author to justify copyrights due to his lobbying to extend them over a hundred years ago, certainly do deserve fair compensation; and the companies that distribute them also deserve reasonable compensation for the work that they do. However they are going way beyond that and creating a system that provides excessive control over educational material much greater than the incentives they originally claimed were necessary to encourage people to do good work. Since Mark Twain has been cited so often when it comes to justifying copyrights it is worth considering what he wrote in “Christian Science” about copyrights and how they could be used to excess. Twain wrote the following in this book: “She published her book. She copyrighted it. She copyrights everything. If she should say, ‘Good-morning; how do you do?’ she would copyright it; for she is a careful person, and knows the value of small things.” Twain has indicated in other writings that he is concerned about the poor and education so I seriously doubt he would approve of the way his lobbying has been used to justify excesses in the copyright laws that grew since he lived; however even if he does then that wouldn’t make it rights since valid principles should stand on their own merits.

Many owners of copyrights may not even be primarily concerned with making money off of them; instead they may be more concerned with accomplishing another goal, and the use of the copyrights is only a means to that ends. However they may be forced to sign copyright contracts with the publishing companies to get much if any promotion for their work which enables the publishing companies to obtain control of the copyrights. This is an example where the bigger concern may be the centralized control over promotional institutions that only do things for profit and often subsidize things that serve their political views but fail to promote material that is in the best interest of the public. One of the most blatant examples of the subsidizing of frivolous material may be the massive promotional campaign for Sarah Palin’s book “Going Rogue,” which hit the best sellers list and almost certainly had little content of value to many consumers.

However other books like Murray Strauss’ “Beating the Devil out of Them,” have a much harder time getting much if any promotion from the publishing companies. He wrote about how he had to threaten to sue to get his copyrights back so he could sell it to another publishing company, in the section ”Orphaned by Corporate Mergers" (p.i,ii). This is some of the most detailed discussion about what is in the contracts that writers have to sign in order to get published by major companies; and it doesn’t go nearly far enough. I don’t know exactly how secretive they are about these contracts but the fact that I haven’t seen much about it indicates they are at a minimum not broadcasting the content of the contracts. Perhaps the secrecy of these contracts is covered by trade secrecy laws; if so then they have created laws that restricted the access to educational information and restricted access to the contracts as well which means the public isn’t allowed to know why they are supposed to abide by copyright laws. Murray Strauss is just one of many authors that have written about how they’re concerned about how hard it is to get their message across, including Alice Miller, Dorothy Otnow Lewis, etc. In many cases they are more concerned with accomplishing a goal that involves educating the public for the benefit of society but they don’t have equal access to the promotional and media institutions controlled by the mulch-national corporations so in order to obtain their cooperation they may be forced to sign contracts which make profits for the publishing companies more important than the education of the public. If this wasn’t the case they would almost certainly be less secretive about their copyright contracts.

At one point Stephen Fishman writes about what he calls draconian results, which refers to the fact that due to failure to comply with a mere technical formality, the owner of the copyrights loses his copyright. At no point does he consider the possibility that there might be draconian results when a large segment of the population is forced to pay a much higher price to obtain many reading materials including some necessary to attend college and even access to the information that college professors give their students. There is a debate about whether or not the copyrights of scholars should belong to the professors or the colleges; this debate doesn’t give much if any consideration to the fact that the preservation of the copyrights is driving up the cost of education. If not for the copyrights, then many students could access an enormous amount of information including taped lectures on line for free. It would still be necessary to finance the professors and colleges but it shouldn’t be necessary for the professors to repeat their lectures over and over again instead of taping them. This is one method that hasn’t been considered much in the public discussion about copyrights. It actually costs more to withhold information from the public in the computer age in many cases than it does to provide it. When this happens the copyright laws are not helping to provide information to the public but they are doing the opposite.

Figuring out what copyrights protect is very difficult since they are trying to do this in a manner that doesn’t say “we’re trying to control the distribution of information and you shouldn’t distribute it without permission from the copyright police;” yet even though they don’t say this, or perhaps even do it, they may be trying to something that is way to close. 

You aren’t supposed to be able to copyright ideas or facts, there is supposed to be a minimum amount of creativity involved in the material that is being copy written; however the standard for minimum creativity seems to be very low, “The vast majority of written works-including catalogue copy, toy instructions and third-rate poetry-make the grade for minimum creativity.” (Stephen Fishman “Copyright Handbook” 2008 p.142) There is little or no discussion about the possibility that maybe there should be a reasonable way of compensating those that do compile facts without providing incentives for distorting them; this shouldn’t mean excessive control of the information but if these compilations benefits society then those that do the work should receive some compensation. What is or is not protected by copyrights is decided by lawyers with little input or understanding from the majority of the public. These layers have always had an excessive amount of influence in Congress since the Constitution was written. In fact most of the people that wrote the constitution and debated it had a background in law and most politicians have always been lawyers. This enables people from one profession to create laws that drive up the pay of people in that profession at the expense of the vast majority of the public.

Information that has been entered into the public domain isn’t supposed to be protected by copyrights although it would be a good idea to cite sources in this case; this even includes the bible however there are clearly ways around that. Fishman claims that if they’re updated, perhaps even minor updates, they can be protected and this seems to have been done in many cases. In James Dobsons book “The Strong willed Child” his copyright page cites scripture verses taken from “The New Testament in Modern English” copyright 1958,1959,1960,1972 by J.P. Phillips and “The Living Bible” used by permission of Tyndale House Publishers inc. I don’t know whether or not Dobson read what Mark Twain had to say about copyrighting the “Lords’s word,” but he didn’t raise any objections in his book. The debate on the constitution also has several papers in it that have been used by permission that are more than two hundred years old; these may be papers that were originally letters to private people or something like that and weren’t published previously so colleges were able to obtain copyrights and control over the way they were distributed. This is almost certainly just a small sample of the excesses that are being committed with copyrights; and makes some to the concerns Mark Twain expressed in “Christian Science” seem mild by comparison.

The courts have even ruled that the protection of information that has a heavy impact on the way our government is run is protected by copyright. In order to have a sincere democracy the public has to know how our government is run and how the most important decisions are made including the decision to pardon Richard Nixon which made it into the courts when the Nation Magazine published a relatively brief excerpt of Gerald Ford’s book. The Supreme Court ruled that this was protected because it was the “heart of the book.” (Stephen Fishman “Copyright Handbook” 2008 p.298) this decision should go beyond copyrights and it should include serious consideration of the publics right to know how their government is being run. Ford and any other public servant should have been required to answer to the people the same way employees are often required to answer to their bosses in many other cases.

Another problem with the existing copyright laws is, according to Fishman, the fact that apparently in some cases they provide incentives to deliberately insert minor mistakes into the compilation of facts, which aren’t supposed to be protected anyway without a minimum amount of creativity, to prove copyright infringement if someone copies the mistake. If copyright laws are providing incentives for falsifying information they should be reconsidered; furthermore a relatively quick and incomplete fix in this case could be to throw out any cases brought on these grounds.

In order to enforce these copyright laws the government has often destroyed an enormous amount of material that was created in violation of copyright laws; this means that not only were the efforts to create this material done for nothing but the expense to destroy it was also done at state expense although in some cases they may have obtained compensation from the violator; however there are certainly other cases where the government paid to destroy it without compensation. The government also spends an enormous amount of money on copyright lawsuits; “a 1985 survey found that the average cost of trying a copyright infringement suit in New York City ranged from $58,000 to $107,000. Costs may be lower in other parts of the country.” (Stephen Fishman “Copyright Handbook” 1995)

Surely many parts of the country don’t have as many lawsuits as New York City, I doubt if many lawsuits are being filed in rural parts of the country, but the costs are still very high and in many cases they are over something extremely trivial like whether or not someone will “hold it against” Brittany Spears when she uses lyrics very similar to a song almost forgotten by most young people that weren’t around forty years ago. There is little or no consideration that in some cases they’re protecting the rights of people that have little or no talent either like Dan Brown. Without a massive amount of promotional help from the major institutions there is no way someone with his writing skills would have made it onto the best sellers list with the horrible quality of his book; yet the rights of many authors with much better skills are not being protected. It is often said that many of the greatest authors haven’t been recognized until after they are dead; this has often been true and it should raise questions about the original premise for the laws since many of the best authors don’t seem to be writing for the chance to hit it big while still alive.

The legal system has relied on the threat of criminal prosecution to try to enforce copyright laws with a decreasing amount of success thanks to the internet; so they seem to have increased the potential fines and jail time; however this isn’t being taken seriously by many since they can’t enforce it if they try due to an already overloaded system. In 1995 Fishman wrote that the law allowed for jail terms of up to two years and fines from $10,000 to $50,000. This seems to have increased; the 2008 edition says, “Criminal Prosecution Willful copyright infringement is a federal crime (17 U.S.C. 506). Accordingly, the United States Attorney General has the power to prosecute infringers. A person who is convicted of infringement can be required to pay fines up to $500,000 and be imprisoned for up to five years in for a second offense.” This would of course require a trial before a jury and the defendant would be allowed to present a defense so the motive of the defendant would be considered. Some of the biggest copyright infringers on the internet are doing so, presumably, because they believe that the public should have access to educational material vital to the success of democracy in the most effective way possible regardless of their ability to pay for it. If this went to court there would surely be a grass roots effort to inform the public about it, this is unlikely to come from the Mass Media since they have indicated with their actions that they won’t report on things against their interest. For this reason plus the fact that the jails are already full of real criminals the threat of jail is clearly a bluff; if they were to actually enforce it would only escalate the problems in society.

Civil action isn’t much more successful as indicated in some cases; as indicated in my previous post about copyrights the publishers of “A People’s History of the United States” sent a cease and desist letter to History is a Weapon yet they’re still posing it on line for free, presumably with the blessings of the late Howard Zinn. Fishman has indicated that it is possible to get a temporary restraining order to cease and desist if the publisher has a case and that based on this order many suits are often settled yet this hasn’t happened. This has been going on for about ten months in fact it appears as if they might have waited for Howard Zinn to pass away before sending their cease and desist letter; which, if true would indicate bad faith on the part of HarperCollins.

For one reason or another it is still available, as it and many other educational materials should be. This may indicate that they had little or no case or that they realized that they would be drawing attention to a corrupt system in a manner that is clearly against the public good. They may be more inclined to pursue cases that have more justification like copyrights that have much less educational value.

Fishman has cited Melville B. Nimmer as the most authoritative source on copyright law and indicated that when he passed away his son David took over for him. Nimmer wrote a four volume legal treatise which is updated biannually by David, a copyright lawyer. Melville B. Nimmer was apparently known for standing up for the right to free speech; however it is difficult to reconcile this with support for the copyright laws at the time which although not as extreme as the current ones were to extreme. It is worth considering the possibility that he favored the use of free speech when it served his purposes; he stood up for it, during the Vietnam war, a time when it was clear that the public wouldn’t accept the corruption of the government quietly and there were several high profile people from the upper classes that rushed to lead the crowd in the direction they were already going anyway. The fact that his son obtained the rights to his treatise on a subject that probably shouldn’t have been copy written in the first place should raise some questions. David was born into a family that presumably had plenty of opportunity and he may have been able to work his way through college based partly on the influence and money of his father. This is an opportunity that the majority of the public doesn’t have thanks in part to these draconian copyright laws. This is almost certainly an example of how privilege is passed down from one generation to the next and excluding those from the lower classes.

David Nimmer is also a co-editor of “International Copyright Protection” which according to Fishman had no index as of 1995. Fishman’s own book does have an index but it isn’t very good; there are many things that are not listed in it so navigating it may be tough despite the index. In fact they actually have an incentive to do a poor job relaying this information to the public. They make their money by either charging $150-300 an hour or by selling books. Essentially the harder it is for people to navigate e these books the more they have to buy and the more they may have to consult with high priced lawyers. They may find some basic answers from lower paid employees but to get the access to more complicated stuff they will still have to pay for the higher priced lawyer.

Bureaucracy has often been defined as the method of rule by the government that involves an enormous amount of red tape; it has also been defined as the rule by an authority that works through administration means. The Soviet Union was demonized because of their inefficient Bureaucracy however in the USA we have the same thing only it is mostly in the hands of the corporations. Corporations have turned into the new authority and they have almost complete control over the government. If you apply a rigid definition of Bureaucracy that limits it to the government then some of what I have written may not apply to that definition; however if the corporations implement a lot of red tape and waste the problem is the same even if you chose to apply a different word to it. The difference between the USSR and the USA is that one form of Bureaucracy is in the hands of the government and the other is in the hands of the corporations. The most effective way to address this may be to minimize secrecy and waste regardless of which institution is implementing it and that requires an open discussion that considers different ideas.

There has been little if any public discussion about the justification of these laws. There have at times been discussions about ideologies, including Communism and Socialism, that might affect these laws but they were rarely if ever done in a civil and high profile manner instead they were routinely done during “Red Scares,” the most notable of which were the McCarthy era following WWII and the Palmer Raids and activities of the American Protection League during the end of WWI and the early twenties. If they had discussed it in a civil manner they could have dismissed only the flawed aspects of Socialism or Communism and kept the good aspects. One of the positive aspects of the Communist Manifesto that is worth serious consideration is the following recommendation, “Free education for all children in public schools. Abolition of children’s factory labour in its present form. Combination of education with industrial production.”

We have been led to believe that since Stalin was a tyrant then therefore Communism must be evil; should we believe that it is evil to educate all children not just the rich, or to protect them from sweatshop labor? Obviously education can’t be completely free; some of the things involved have to come at a cost; however all efforts should be made to minimize that costs and find the most effective way to finance it. Education should not be reserved for the wealthy only. There is an enormous amount of evidence to indicate that whenever there has been a powerful ideology that disagreed with those in power they’ve been badly misrepresented and in most cases those misrepresentations haven’t been corrected. We should review a variety of different ideas and try to find out how to provide compensation for those that do the work that actually improves the quality of life for the public and distributes educational material without control by the Bureaucrats.

Robert McChesney and John Nichols have attempted to do this with some help from the Baker brothers. They recommended that we consider a check off in our taxes that would provide a certain portion of our taxes to go to a certain author on the condition that the author makes his work available to the public domain. This isn’t much but it is a start and I’m sure that if we try we can come up with a more efficient way to finance the work of worthy authors. I will follow this up in the spring or summer with more suggestions on how we can better finance academic work with there suggestions and more and perhaps I hope some of your suggestions as well. There is an enormous amount of money being spent among frivolous lawsuits for this there should be some way of redirecting that enormous amount of waste to positive purposes like real education that benefits everyone.

When trying to cut their deficit politicians rarely mention cutting bureaucracy that benefits the corporations that take advantage of copyright bureaucracy or insurance bureaucracy to increase their profits. I don’t remember seeing this in the Walker transcripts (these transcripts have little to do with the topic of this blog but I wanted an excuse to put a link in) or anywhere else. The increase in the cost of textbooks and library books may not be as high as the waste from health care bureaucracy but it adds up and in this case it slows down the education of the public so they have a harder time understanding the system, which perhaps is the objective of some people. If they cut into the waste that serves little or no purpose then it wouldn’t be necessary to cut the pay or benefits of those that earn it.



Copyright © 2011 by psuedonym, Zacherydtaylor. All rights reserved. No portion of this can be reprinted without permission.

I couldn’t resist!! This is legally binding even though I didn’t register it with the copyright office. Apparently that isn’t necessary but it does provide legal benefits for those that do so. I will of course give permission to anyone if they actually think this is worth using. No further request is necessary for non commercial means. No money was paid to any copyright bureaucrat to produce this blog. If Stehpen Fishman finds out about this and doesn’t believe my quotes from him are fair use he can sue me and I will immediately send him a check in the mail for any amount he request; which he can dribble in or on any court he chooses. If you chose to use portions of this for commercial purposes without permission I will have to decide whether I want to hire a corrupt copyright lawyer to pursue a check from you which I can dribble in any court I choose to.
Related or not I’ll finish up with a few last words from Mark Twain.

“I was sorry to have my name mentioned as one of the great authors, because they have a sad habit of dying off. Chaucer is dead, Spencer is dead, so is Milton, so is Shakespeare, and I’m not feeling so well myself.”
“Surely the test of a novel's characters is that you feel a strong interest in them and their affairs—the good to be successful, the bad to suffer failure. Well, in John Ward, you feel no divided interest, no discriminating interest—you want them all to land in hell together, and right away.”

“The test of any good fiction is that you should care something for the characters; the good to succeed, the bad to fail. The trouble with most fiction is that you want them all to land in hell, together, as quickly as possible.”

“I fell over a cliff in the twilight, and broke some arms and legs and one thing or another, and by good luck was found by some peasants who had lost an ass.....” Christian Science
Free on line library mostly classics from Upenn:

http://onlinebooks.library.upenn.edu/

Free Press has done some good work on this subject:

http://www.freepress.net/

For The Peoples History of the United States at History is a weapon.com:

http://www.historyisaweapon.com/zinnapeopleshistory.html

For more information see:

http://fairuse.stanford.edu/

For additional comments from previous blog on this subject and more links to other related sites see “Copyright violators are thought criminals”

(For more information on Blog see Blog description and table of context for most older posts.)

The following are the original replies when this was first posted on Open Salon.

Hi Zacchary, fortunately there is a very strong open source movement in academic research, especially science. I refer you to the Public Library of Science www.plos.org. There is also a strong feeling among the medical research community that with an open source policy, medicine would have found cures for many common illnesses decades ago. I blogged about this six months ago (with some good links) at http://stuartbramhall.aegauthorblogs.com/2010/09/25/open-source-and-the-sustainability-movement/

Dr Stuart Jeanne Bramhall March 04, 2011 05:50 PM