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Source link: http://archive.mises.org/7513/the-sad-sad-fate-of-renewed-copyrights/

The sad, sad fate of renewed copyrights

December 6, 2007 by

Here is one example of a million. It occurred to us the other day that it would be useful to have Robert Taft’s book A Foreign Policy for Americans (1951) in print. It is not a great book but an important one for American political history because it establishes the essential non-interventionism of the old Republican tradition. You can buy the book on bookfinder now. There are four copies available, ranging in price from $10 to $30. So putting it out is not a priority for the Mises Institute in any way, but, still, it would be nice.

Had the book been permitted to fall into public domain, this would be a no-brainer. But, alas, Robert Taft Jr. renewed the 1951 copyright on the 28th year: 1979. I’m sure he thought he was doing the right thing, but now he is dead. And where is the book? Gone from memory. And where can we find the rightful “owner” of this book? Someone is out there but finding that someone would require a great deal of searching. Or we could put our attorneys on the job and pay them an arm and a leg. And for what? We would sell a few hundred copies probably, so essentially we would be publishing at a loss anyway.

So what do we do? The same as anyone who has ever thought of this: nothing. And where stands the great book by Taft? It’s not online. It’s not in print. For all practical purposes, it is headed to the dustbin of history — all because the son made the dreadful error of protecting his father’s work. This is one case of a million, several million. It is a sad fate, but not as sad as the fate of many books being published today which have copyrights that extend 100 years.

My strong recommendation is to use the creative commons license or some other method when you publish. It is the only sure way to give your work life into the future.

{ 42 comments }

Person December 6, 2007 at 12:21 pm

The sad, sad fate of renewed LAND TITLES

Here is one example of a million. It occurred to us the other day that it would be useful to have some of the land in Colorado. It is not a place but an important one because of its location. There are four subplots available, ranging in price from $10000 to $30000. So buying part of it is not a priority for the Mises Institute in any way, but, still, it would be nice.

Had the land been permitted to fall into and unowned state, this would be a no-brainer. But, alas, Robert Taft Jr. renewed the property title after abandoning it. I’m sure he thought he was doing the right thing, but now he is dead. And where is the land? Locked out of use. And where can we find the rightful “owner” of this land? Someone is out there but finding that someone would require a great deal of searching. Or we could put our attorneys on the job and pay them an arm and a leg. And for what? We would barely use the land, so essentially we would be setting up there at a loss anyway.

JD December 6, 2007 at 12:25 pm

If the lawful owner is dead, who will sue you if you just go ahead and publish? If someone does come forward to sue, you can work out a deal with them then.

jeffrey December 6, 2007 at 12:36 pm

Person, the land is a non-scarce good. If we claim ownership of it, noone else can. That’s why there are title companies that keep careful track and you can find out immediately who owns what (true this can get complicated in rare cases I won’t go into). The point is that our owning it precludes anyone else from owning it and thus is there an active market for land.

Not true with copyright. This book could have one publisher (Harry Potter) or a million (Bronte Sisters). Our printing this violates no property rights at all. We are only prevented from doing so by a state-granted monopoly, the beneficiary of which may or may not care either way.

Yes, we could go ahead, but that’s too risky. The rights passed to someone. Or it is also possible that Robert Taft Jr. sold his rights to some publisher, which continues to own them. You open yourself up to uncertain liabilities, and settling these can be too costly.

happylee December 6, 2007 at 12:53 pm

While trying to make a bad point, Person accidently raises a good question: Does adverse possession apply to copyright?

Sounds like a question for Super Stephan.

Person December 6, 2007 at 1:04 pm

jeffrey: Please compare apples to apples. If you claim right to publish, Taft can’t claim it exclusively. There *is* a cost to him. It’s not the win-win-win situation you think it is.

jeffrey December 6, 2007 at 1:18 pm

Well, you might say the same about the Post Office. UPS is costing them business (actually we can’t be sure of that but let’s say that’s true). There is a difference between violating rights and costing business.

Jonathan Bostwick December 6, 2007 at 1:20 pm

There’s a cost to Apple if Microsoft starts selling Zunes. But that isn’t a property right issue either.

If you are going to keep trolling, at least get some new material.

Person December 6, 2007 at 1:32 pm

There’s also a difference between assuming a conclusion and proving it. If I already agreed that IP is invalid, your post is GREAT confirmation of my pre-existing beliefs. Now, am I supposed to be dazzled?

Bruce December 6, 2007 at 1:37 pm

Jeffrey,

Perhaps the copyright was inherited by the erstwhile governor of Ohio, the grandson of Robert A. Taft, Bob Taft.

jdavidb December 6, 2007 at 1:41 pm

Claiming exclusive rights is not something people have a moral right to do, Person. Exclusive privileges handed out by government are immoral. Our Constitution argues that such exclusive rights are handed out only because they are useful for progress of science and the useful arts, not because they are something people have an inherent right to. The founders, particularly Jefferson, agreed. But the Constitution is wrong: these exclusive privileges do not cause progress, they retard it.

DC December 6, 2007 at 1:51 pm

Person, please compare apples to apples. The “right to publish” isn’t a tangible good. Not only have we (and I use that generally to include Jeff, Kinsella, et al.) been down this road 100 times, but you insist on going the same route each time.

Where did Jeff state he was going to prove the invalidity of IP with this blog post? How is that his “conclusion”? Does your reply to my comment have to prove the validity of the meaning of language first before I can talk about its content?

Your tactics are boring and, frankly, rather weak. How about we deal with this argument where you always seem to abandon it. Here is where you can pick it up:
http://blog.mises.org/archives/007223.asp

Person December 6, 2007 at 2:09 pm

jdavidb: “Claiming exclusive rights is not something people have a moral right to do, Person”

You don’t believe in private property, the exclusive right to some amount of property, then?

DC: “The “right to publish” isn’t a tangible good.”

Neither is the “right to exclude others from this land”. The referent of that right (the land) is tangible; but the right itself is not. But then, the referents of IP rights are also tangible!

“Where did Jeff state he was going to prove the invalidity of IP with this blog post?”

He certainly thinks he was going to provide an argument for that conclusion, but it only works if I already agree with him.

“Your tactics are boring and, frankly, rather weak. How about we deal with this argument where you always seem to abandon it. ”

I abandon it when it’s clear I’m arguing in circles with people who aren’t taking it seriously or aren’t thinking clearly.

Lamar December 6, 2007 at 2:18 pm

There’s always some copyhound trying to equate IP with land, or infringement with stealing. It’s saavy marketing, but intellectually dishonest.

galacticmonk December 6, 2007 at 2:50 pm

getting some mileage on reason.com…

http://www.reason.com/blog/show/123796.html

DC December 6, 2007 at 2:50 pm

Person, you write:
“He certainly thinks he was going to provide an argument for that conclusion, but it only works if I already agree with him.”

Bullocks. Nothing in that blog post indicates that Jeff intended to disprove the validity of IP claims with that blog post. You are fighting a straw man.

“I abandon it when it’s clear I’m arguing in circles with people who aren’t taking it seriously or aren’t thinking clearly.”

Again, bullocks. I make some very clear and (I think) decisive argument against the premise of your critique. You’ve never dealt with it, but I’m always ready to see what you have to say.

The referent of that right (the land) is tangible; but the right itself is not. But then, the referents of IP rights are also tangible!”

And here we get to the fundamental problem again. This is dealt with in the previous post I linked to. Please — feel free to respond.

Dick Clark December 6, 2007 at 3:10 pm

happylee: Adverse possession has never been applied to IP in the United States (according to my Property prof, anyway).

Think about why: IP is widely acknowledged by legal professionals to be a legal fiction that is based on a policy decision, not some innate natural quality of ideas.

This is important for two reasons:

1) As a matter of positive law, the courts aren’t going to impose a common law rule about actual (real or personal) property to a fake form of “property” which is really just a bundle of imposed “rights” (a monopoly) that resemble property rights.

2) Adverse possession requires that the adverse possessor use the property at issue in a manner that is actual, open/notorious, exclusive, hostile (to the rights of the “true owner”; not by permission), and continuous. Even if the courts were inclined to run against the constitutional policy of granting IP monopolies, a court would have a hard time explaining how an adverse possessor fulfilled the requirements of adverse possession. Actually, it would pretty much be impossible, for a reason that we understand as anti-IP types: since an idea isn’t scarce, describing use as “exclusive” is nonsense, except where the artifice of government enforces the exclusion of others from such use.

Kevin B December 6, 2007 at 3:16 pm

Person,

You have the right to pursue the communication of ideas, but not to *communicate* ideas. There is a cost to others when you communicate with them, and that cost must be agreed to by them before it can be proper.

You own your head, and they own theirs. Land is no different. You can pursue others to become renters or not, but you cannot physically force others to be renters. You may offer advice, communication of concepts, etc. to others, but you cannot force them to accept, at any cost.

—–

On the side, I would like to know: Do you support the idea that one person may trade his head for a parcel of land?

PapayaSF December 6, 2007 at 3:25 pm

Google Answers no longer exists, but there are other online services that offer expert answers for small fees:

http://www.dmoz.org/Reference/Ask_an_Expert/For_a_Fee/

You might well be able to find the copyright holder for less than what it would cost to talk to a lawyer about it for 15 minutes.

Person December 6, 2007 at 3:27 pm

DC: “Bullocks. Nothing in that blog post indicates that Jeff intended to disprove the validity of IP claims with that blog post. You are fighting a straw man.”

Interesting, since I was only claiming he’s making an *argument* to that end, not a prima facie case, and he doesn’t even make that lower standard without involving circularity.

“Again, bullocks. I make some very clear and (I think) decisive argument against the premise of your critique. You’ve never dealt with it, but I’m always ready to see what you have to say.”

No, you didn’t. I addressed your argument several times already, since several others already made it. Like everyone else, you focus on “well can I validate IP, *given* the rephrasing”. I’ve said that matter is irrelevant to the point I was trying to make, because it is. My claim is merely:

-The fact that ideas (imprecisely referred to by Stephan_Kinsella as “IP”) are non-scarce does not suffice as a refutation of IP.

Stephan_Kinsella spends ten pages of his famous paper trying to show otherwise: that only scarce stuff can be property, and ideas (or “IP” as he sloppily refers to it) are not scarce. However, I say:

-If making the exact same claim in different words invalidates your critique, the critique is invalid, regardless of how a given advocate phrases the position you are critiquing.

-IP claims *can* be so reworded: namely, as partial ownership of everything in a region, to the extent it instantiates a given idea. (i.e. the IP that Stephan_Kinsella already advocates, known as “radio frequency rights”)

Therefore, that *specific* argument Kinsella advances is in error and he should publicly, consistently admit this. (He has publicly admitted it, but then denies it.)

Do not make the mistake of getting bogged down in later implications. That is again muddled thinking. It does not matter if IP is ultimately justified or not. It does not matter if “Person” supports IP or not. It does not matter if Stephan_Kinsella has some other super-cool-dude arguments against IP. The argument from scarcity IS INVALID.

Once I get admission of error there, we can move on to the other parts. But not until.

“And here we get to the fundamental problem again. This is dealt with in the previous post I linked to. ”

No you don’t. You simply advance other arguments in lieu of propping up this one. You have not responded to my claim that IP is analagous to physical property in that:

-In both cases, the *rights* are intangible.
-In both cases, the *referents* of the rights are tangible.

“Think about why: IP is widely acknowledged by legal professionals to be a legal fiction that is based on a policy decision, not some innate natural quality of ideas”

Legal professionals are experts on the law as it is, not on what innate natural qualities things have. (Max_Chiz has a hard time getting this too.)

Person December 6, 2007 at 3:31 pm

addendum:

The last point I responded to was by Dick_Clark, not DC. I would also like to add this response to Dick_Clark:

“since an idea isn’t scarce, describing use as “exclusive” is nonsense, except where the artifice of government enforces the exclusion of others from such use.”

The *right* can be exclusive. Again, people assert ownership of the *rights*, which are scarce, not the idea itself. And, as I’ve explained a hundred times, your use of “scarce” is incoherent. My sleeping in your unused bedroom does not infringe on your uses of your house, yet you believe you have a right to exclude me anyway. Why?

Kevin_B: what is that a response to?

DC December 6, 2007 at 3:44 pm

“It does not matter if IP is ultimately justified or not.

Here’s why it does. All claims to owning something need justification. That is the precondition of Kinsella’s argument before he discusses the particular claims of IP proponents. In other words, “once I get admission of error there [i.e. that their claims need to be justified], we can move on to the other parts [i.e. whether their claim is justified and coherent]. But not until.”

Willy-nilly IP claims to owning property are UNJUSTIFIED. I don’t think that you see that we both agree that owning ideas is irrelevant — this is the part where you can quote this and say “he agreed with me but tried to retract it later” — until we’re agreed that we’re dealing with justified claims (i.e. homesteading).

It’s the framework of your critique that I am dismantling. I’m can’t work within it because it’s flawed.

Kevin B December 6, 2007 at 3:44 pm

Person,

My point was that while land titles and copyrights may both be fruit, they are not both apples.

Person December 6, 2007 at 4:10 pm

Kevin_B: Yes, you’re a cutesy wordsmith. I get that. I wasn’t asking for new metaphors, however. The question before you is: what were you responding TO?

DC: Please stop shifting contexts. OBVIOUSLY, property and property claims needs justification. But Stephan_Kinsella advanced one argument to defend his position. I don’t need to have any kind of “framework” to show that that specific argument is not internally consistent. I simply need to show where *that specific* argument is in error. Stephan_Kinsella wants to avoid having to give a response to this by making his opponent jump all kinds of hurdles before he will consider any disconfirming evidence.

It does not matter who I am. It does not matter what I believe. All you need to know about me is that I’m a Person — and my screen name told you that already. You do not get to make flawed arguments just because your conclusion is correct.

Artisan December 6, 2007 at 4:46 pm

… you don’t have any homesteaded rights to an original published text, while the actual owner of those rights cannot be found as easily as notarial claims.

Is that sad? or is it the fact that you don’t know if to go ahead re-printing under those circumstances makes you liable for more than just the sheer amount of the royalties?

Sorry but it seems while the subject is interesting even for copyright advocates, that Mr. Person’s right:

would you NOT agree to the invalidity of copyright from the beginning, you would at least be tempted to focus – in a general “libertarian” forum – on the second point, i.e. discussing the eventual discrepancy of the actual legislation with the (Rothbardian) concept of homesteaded “corporate identity”.

Instead of that you just assume loosing tracks with copyright descendants is “an example in a million”… that speaks for “creative commons license” (?).

QUOTE:
“Yes, we could go ahead, but that’s too risky. The rights passed to someone. Or it is also possible that Robert Taft Jr. sold his rights to some publisher, which continues to own them. You open yourself up to uncertain liabilities, and settling these can be too costly.”

Slocum December 6, 2007 at 5:08 pm

This is why we need Google to prevail in the legal fight surrounding its book scanning project. Google’s position is that they’re going to scan everything and then copyright holders can ask them to remove a book from the DB. The publishers want them to explicitly gain permission first. Obviously, the publisher’s approach would be prohibitively expensive for obscure out-of-print books. If Google has its way, these books will be brought back from the dead. If the publishers prevail, they’ll stay buried.

Kevin B December 6, 2007 at 5:09 pm

Person,

I was responding to your original post. In it, you replaced “copyrights” with “land titles” in an attempt to forward your anti-anti-IP position, I assumed.

If I was wrong, and you were just being cute yourself, then I apoligize for the misunderstanding.

Regards,
Kevin

Dick Clark December 6, 2007 at 5:10 pm

Person: “And, as I’ve explained a hundred times, your use of ‘scarce’ is incoherent. My sleeping in your unused bedroom does not infringe on your uses of your house, yet you believe you have a right to exclude me anyway.”

Your sleeping in my unused bedroom most certainly does infringe upon my use. If I wish to keep that bedroom vacant, say, because I have a brother who drops by unexpectedly on occasion and I like to be able to accommodate him, your hostile occupancy robs me of the use of my property. This robbery of my property rights is not some ethereal deprivation of my peace of mind; rather, it is an actual, physical fact: if my brother were to drop in, he would not find his accommodations in order. Thus, my right to use of my property has been abridged.

This is not so with an idea. Imagine a rich man who conceives of some great design, sure to reap a profit if realized in a salable widget and decides to “save” it for a rainy day. A day does come when he finds himself destitute, and he undertakes to bring his design to fruition, courting financiers who might assist in deploying his product on the market.

To his dismay, he discovers that some scoundrel, having overheard his plan, has beaten him to the punch, and has already succeeded in arranging for wide distribution and sales of the finished product. To be sure, both the owner of the vacant guest room and the “owner” of the socked-away invention intended by their abstentions of use to save away a little insurance for possible future events. Unlike the bedroom owner who finds his extra bed occupied, the hard-luck inventor has no rival depriving him of use of the thing over which he believes he deserves control. The inventor may still try to bring his invention to market. He may still use the idea in some other way, too. It is the likelihood of monetary remuneration for the planned use that the inventor is deprived of, not the freedom of use itself. This is a failure on his part in devising his contingency plan, and not a trespass like that which the trespassing guest room sleeper commits.

Person December 6, 2007 at 5:43 pm

Kevin_B: “I was responding to your original post. In it, you replaced “copyrights” with “land titles” in an attempt to forward your anti-anti-IP position, I assumed.”

Okay, and how was your post responsive to it?

Dick_Clark: “Your sleeping in my unused bedroom most certainly does infringe upon my use.”

My sleeping in your unused bedroom infringes on your *exclusive* use, yes. But then, your use of my idea also infringes on my *exclusive* use of it!

“Unlike the bedroom owner who finds his extra bed occupied, the hard-luck inventor has no rival depriving him of use of the thing over which he believes he deserves control.”

Yes he does. The hard-luck inventor’s rival wants to deprive him of *exclusivity* in selling the invention, over which the HLI believes he deserves control.

(This is the part where you’re supposed to “clarify” what you meant by adding in your conclusion as an assumption.)

Anthony December 6, 2007 at 6:28 pm

Person, how exactly does the right to property occur, btw?

Robert Brager December 6, 2007 at 6:51 pm

This discussion about I.P. – as always – is illuminating and necessary.

However, the partial thrust of Jeff’s post – the part not concerned with I.P. – was getting the ideas contained in Taft’s book out into the general population or available for those who want it.

And I say, why be weak here?

I’m fully behind the Samizdat approach. As it is, I have a digital library of almost 1,700 books – a good 800(!) of them libertarian in orientation and of the remainder, dealing with historical situations of concern to libertarians. I share them on a file-sharing network called Soulseek.

Now, I may be revealing too much here, but maybe one of you can anonymously send me that book, I’ll scan it, it enters the Samizdat, we keep spreading the word, and, eventually, all of you who want a digital copy can have one.

I mean, shoot, why not? Bootlegging is glamorous.

Francisco Torres December 6, 2007 at 8:43 pm

Person:

The *right* can be exclusive.Again, people assert ownership of the *rights*, which are scarce, not the idea itself

In the case of rights to publish, the issue is the use of private property in a certain way to achieve an end – case in point, placing ink in paper in a certain pattern, my own paper, my own ink. I can perfectly claim that I have exclusive rights to use my own paper and ink to print a book; however IP law would allow me to also DICTATE what another person can do with HIS paper and HIS ink, by asserting that the PATTERNS the ink happen to make are mine. That is an unreasonable violation of the other person’s right of use of his private property. IP IS a crass violation of private property in favor of a privileged one or a few.


And, as I’ve explained a hundred times, your use of “scarce” is incoherent. My sleeping in your unused bedroom does not infringe on your uses of your house, yet you believe you have a right to exclude me anyway. Why?

Because you make him alter or modify his decisions and actions as to how to use that particular space, in a non-voluntary way. That is a violation of his liberty. That is the reason we shoot trespassers, no matter how lovable they would be.

DC December 6, 2007 at 9:10 pm

Person, you write:
“Please stop shifting contexts. OBVIOUSLY, property and property claims needs justification.”

OK, I’m glad that we agree. You were saying this was irrelevant before, but it is relevant. And I’ll expand on that in a second.

“But Stephan_Kinsella advanced one argument to defend his position.”

Here is, and always has been, where you get imprecise. Advanced what argument to defend what position? You have given different, or vague, answers to these questions.

Kinsella argues that IP proponents claim to have homesteaded ideas as a basis for owning physical objects “to the extent that they instantiate idea X“, as you are fond of saying. You can dispute this argument in one of two ways:

(1) Show how else an IP proponent could make a justified (i.e., using the homesteading principle) claim without claiming to homestead an idea.
(2) Show some other basic justification for owning anything, namely some principle other than homesteading.

If you approach the argument from point (1), Kinsella will have one answer for you. If you approach from point (2), he will have another.

You have tried to do a problematic mix of the two, arguing that IP proponents can make justified claims (thus attempting to engage Kinsella with respect to point (2) above) without establishing justification (thus ignoring point (1 )above, which is a precondition for talking about point (2)).

Schmendrick December 6, 2007 at 10:43 pm

Copyright is a right granted by government. Rights cannot be transferred or sold. I cannot give another person my exclusive right to publish something anymore than I can give him my right of free speech. No government ought to recognise the sale or inheritance of copyright.

TokyoTom December 7, 2007 at 5:41 am

Jeff, obviously you need to consider various actions and to weigh and compare their respective costs/benefits/risks LvMI’s preferences and degree of risk aversion.

Are there any inexpensive actions that can lower your risks? First, do you only self-insure, or might any actions be covered under an existing policy (with a deductible that could be covered by a reserve from any net book revenues)?

Is it really that difficult to find Robert Taft, Jr.’s heirs, such as Bob Taft? If no one really has a clue, might you lower your risks by getting some of them to sign a release, or even to write a foreword (thereby spreading risk)? Can you publish it in a country where the copyright has lapsed? Can you scan it and make it available (in the US or abroad) to read as a book online (some foreign libraries might do this)?

Just a little brain-storming.

Mad Max December 7, 2007 at 6:08 am

Last I heard, the author’s grandson was at the School of Education at the University of Dayton. Why not ask them to put you through to him? You might be able to find out about who holds the copyright.

http://soeap.udayton.edu/contact.htm

Person December 7, 2007 at 1:17 pm

DC: Like Stephan_Kinsella, you have to tear my statements out of context to refute them.

My point is that I can refute an individual argument Stephan_Kinsella makes without building my own prima facie case, and that is exactly what I’ve done here. His argument depends on IP proponents asserting their claim with a certain language. A trivial change of the language invalidates his argument under that wording so (I claim) it invalidates it under all phrasings. Which part do you disagree with? (Once you get it into the “I don’t like your framework”, you’ve already missed the point)

Peter December 7, 2007 at 8:35 pm

DC: the word you want is “bollocks” (testicles), not “bullocks” (oxen)

Peter December 7, 2007 at 8:50 pm

DC: the word you want is “bollocks” (testicles), not “bullocks” (oxen)

jeffrey December 10, 2007 at 12:04 pm

I just had the most wonderful conversation with Robert Taft III (as he is generally known, but it is not technically correct).

He was unaware of the re-registration, and is unaware of anyone in his family who knows about it. But of course he is thrilled at the prospect that this could come back into print.

Anirvan Chatterjee, BookFinder.com December 11, 2007 at 2:40 pm

Jeffrey, the situation you’re describing is referred to as “orphan works.”

There’s been significant attention paid to the issue over the past few years, but with no legislative action taken as of yet.

Shawn Levasseur December 12, 2007 at 1:13 pm

Whether or not copyrights should or should not exist, the bottom line is they do yet there’s no provision for copyrights to expire due to falling out of use.

This is where Creative Commons is a good idea. It declares a release certain rights to the public without relinquishing ownership.

The addition of the Founder’s Copyright, which releases works to the public domain after 14 or 28 years after their creation, creates a private solution to the “never-ending copyrgiht” that is the effective situation at present.

pippa smart December 18, 2007 at 11:49 am

As someone above has said, this constitutes an “orphan work”. Recently ALPSP (Association of Learned Professional and Society Publishers) and a host of other organizations have put together guidelines for the re-use of such materials. (If you are a member of ALPSP you can view a page from their “Hot Topics” listing (which I edit) with links to these various initiatives and statements on http://www.alpsp.org/ngen_public/default.asp?id=375 – apologies to those who are not members.)

Although perhaps not ideal for the future, but maybe a step forward for such problems.
Pippa

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