The Surprising History of Copyright and What It Means For...

Uploaded by GoogleTechTalks on 08.10.2007

>> FOGEL: This is pretty much a slideless talk. Really, the only slides you need is
the one right behind me. Everything that I refer to is linked to from this site
I'm very glad to see all of you here, thanks a lot for coming. It's nice to see that many
people are interested in copyright, its history and its effects. Before I begin the talk proper,
I want to tell you about a talk by the Google Policy Team at 3:30 over in Tech Talk 42 [INDISTINCT].
They have come in from Washington D.C. and they're going to tell us what they're doing
there, net neutrality, child protection and other stuff. I guarantee you. These two talks
will not overlap because I'm going to that talk. So you don't have to worry you can go
to it too. And speaking of Google Policy, I want to start out with a disclaimer. The
content of my talk is not in any way the official position of Google on copyright or intellectual
property or anything else. It has not been endorsed by the Google Policy Team, not by
the Google Legal Team. I'm very glad that Google is the sort of Organization that holds
open forums like this but they should not be held responsible for its content. And with
that, let's begin. You do not hear a lot these days about the history, the origins of copyright.
I think based on talking to a lot of people we sort to tend to feel that it's just always
been there or it's one of those things that like building roads or constructing sewers
or something it's something that governments just start doing at a certain point. It's
natural and uncontested. That's not actually the case with copyright. In fact, some people
will trace it back, if they're--if they're a lawyer, they read some legal history will
trace it back as far as the U.S. Constitution where there is a clause empowering Congress
to pass copyright legislation. But copyright's history predates even that. And it is kind
of surprising where it comes from. It was not created by artists and writers who are
suddenly rising up to demand protection at all. It was created by the publishing industry
which in the early days of the printing press was a very different industry from what it
is today. Information history in general was very different than it is today. I won't have
time to go into all the details of that history. I want to fit this talking into an hour. I
want to have time to talk about the implications of copyright history for how we think about
and deal with copyright today and I specially want to leave time for questions at the end.
So, if you go to that website or you go look at some other resources on the history copyright
you will see some stuff that I'm leaving out here. I don't think any of that is.
>> Your screensaver went on. >> FOGEL: Oh thank you, screensaver. I don't
think any of those details are going to be better--terribly important but you might want
to know them if you're doing a lot research into copyright. So, where did it come from?
Well, when the printing press first arrived in England in the late 1470s--the mid-1470s,
late 1400s. There was no such thing as copyright. In fact not only was there no copyright there
wasn't government and a society pretty much completely unprepared for the implications
of the mass distribution of printed material. It was just the Wild West out there. As soon
as the press arrived people began running off copies of just anything under the sun,
historical works, fact, fiction, religious tracks, political tracks, works by living
authors and dead authors, they were not careful about crediting. They would engage in plagiarism
and reverse plagiarism, sometimes the printer would write something and print it up and
release it under the name of an author who had nothing to do with it because that author
was more famous and that way would work to get more attention. All sorts of things went
on, it was total chaos. From the government's point of view the worst aspect of this chaos
was the political tracks. All of a sudden anyone with a printing press and a grievance
can start running off seditious pamphlets by the thousands and distribute them all over
the kingdom. If you are government, especially in England in the 15th century--in 16th century
that's a disaster. You can't just have people printing anything they want. Who knows what
they might say? They might--they might form a rebellion, make trouble. So, the government's
reaction was very interesting. They--it shows us I think that the idea of privatization
of social services was not invented in modern times. I'm just going to hit a key here. I
should have learned how to turn off my screensaver. There you go. Sorry.
>> [INDISTINCT] >> FOGEL: Don't tell.
>> [INDISTINCT] >> FOGEL: They--the government--sorry?
>> It's okay. We're with the slide is for now.
>> FOGEL: We'll just stay there for now. And if the screensaver goes out, don't worry about
it. The government's reaction was to privatize censorship. They created a guild called The
Company of Stationers. The company's charter gave it the sole right with a couple of exceptions.
The sole right to own and operate printing presses in England. The company had the right
to seize and destroy presses operated by non-members of the company. And they have the right to
burn books printed without the company's authorization. In return for this monopoly the Company of
Stationers was obligated to run the works they printed by the Crown Censors first. And
naturally after a certain amount of time they got pretty good at telling what the censor
would and wouldn't like and they would just do self-censorship, they wouldn't even bother,
they would say, "Look that's never going to fly. You can't print that." This arrangement
lasted for about 150 years. And during that entire time there is still no such thing as
copyright. The Stationers did among themselves practice a certain kind of proto-copyright.
They would make arrangements where one person--one member of the company would print one thing
and no one else would print that and they were actually formal little agreements. So,
this notion of ownership of a work did begin to take hold among the printing community
but it was ownership by the printer and it was ownership of printing rights, it had nothing
to do with the author. The works were entered into the Company of Stationer's Registry under
the stationer's name not the authors. So, this worked pretty well for about 150 years
until almost 1700 and then disaster came, disaster for the Company of Stationers at
any rate, although not for lovers of free speech. The government of England changed
hands. This is the Revolution of 1688, the Glorious Revolution, it's sometimes called.
I won't go into all the details of that revolution. It's very complex and very important in its
own way independently of copyright. But among the effects, to simplify greatly, and I hope
historians in the audience will forgive me. Among its effects were that Parliament changed
hands and what, in some senses, had been the opposition now came into power and furthermore
Parliament's power relative to the Crown was greatly strengthened. Those now in power had
no love for state--for censorship and no love for the Company of Stationers for the most
part. And they decided to let the company's charter lapse. Now, if you have any experience
with government regulated monopolies, you know that the story is never that simple.
You can't just turn them off once you have them because they lobby and that's what the
stationers did. They went before Parliament realizing that their livelihood, their monopoly
on printing was about to end and they made a rather new argument. They said, "An author
has the natural right of ownership in their work and furthermore, this right is transferable,
assignable by contract to other parties like a form of property it can be sold or contracted
out or leased." Parliament accepted this argument and the reasons why are perhaps a bit hard
to understand today. You have to cast yourself back into the mindset of information technology
in the 18th Century. The Parliament did not like censorship. Although they probably sensed
that it had its uses. But they didn't necessarily want a return to the chaos of the period between
the arrival of the printing press and the chartering of the Company of Stationers. And
the stationers were essentially saying to Parliament, "If you do not protect our trade,
with this monopoly right, we will have an economic disincentive to behave well. We will
not be able to print things reliably, to make identical copies, to avoid plagiarisms both
of the normal and the reverse kind and to protect the integrity of works, if it's just
a complete free market." Because consider what a print run means. You have to gather
a lot of dead tree pulp. That screensaver looks good. You have to gather a lot of dead
tree pulp together. You have to arrange the plates for your press, which is quite labor
intensive. If there are illustrations you have to get an engraver and make those illustrations
in metal and then you print off thousands of copies at great expense, you distribute
them around which may cause some money as well and then you see if your work sells.
You haven't even collected any revenue yet. Now, what if your competitors, waiting in
the wings, can just watch you invest in a hundred works, watch the three of them that
actually pay off and start selling and then they ran off copies of just those works? Well,
they're not paying the cost of investment in all the other 97, they have much lower
risk. The stationer's argument was we need to be protected from that situation. We're
caught in a sort of game theoretical dilemma. If you give us a monopoly, we will behave
better. You also have to think of the technology of printing. It's often said that the Internet
is sort of an extension or augmentation of the printing press, kind of the final work--realization
of the printing press's potential, but there's an important sense in which that's wrong.
If you have a copy of a printed work and a printing press, especially an 18th Century
printing press, making a copy of that work is terribly difficult and if it has illustrations
this is not possible. You can duplicate them to some degree of approximation but you can't
really make a copy. And as far as the words of the text, you're going to be tempted to
abridge the chapters you think are boring, you're going to have more misspellings because
you won't have time to do it with the same care the original printer did. With the printing
press, you can only make more copies if you possess the master. With the Internet, you
can make copies from copies; the Internet is a master list. In fact, with the Internet,
making perfect copies is what comes naturally and if you want them to have a variation,
you have to put an extra effort to do that, it's the reverse of the printing press. They
don't think like we think today. They were thinking, "Look, there's a natural monopoly
physically inherent in printing." Because whoever prints it first has sort of created
the work that's out there in the public and they've got the original plates. And if we
just make our laws embody this monopoly without the odium of censorship then we will have
essentially the same arrangement we had during the entire 150 years of the Company of Stationer's
heyday. And everything will be just as good as it was then only without censorship. And
Parliament didn't really object. And it was actually a fairly reasonable argument given
the technology and given the economics of the time. But, if you remember just one thing
from this talk, please let it be, copyright was not designed by the writers and artists
asking for a means to earn a living for an economic basis for creativity. It was design
by the publishing industry to support a certain kind of distribution mechanism, one that is
completely obsolete today. So let's fast forward a bit. I've been going around for about a
decade talking to just about everyone I meet about copyright. I mean, literally I would
talk to strangers at the bus stop, taxi drivers, free software developers in IRC channels,
strangers at parties, just everyone. And I've compiled a pretty good picture, I think, of
how people think about copyright especially in the United States but also I've been doing
this in Europe a little. What you hear when you talk to people about copyright does not
look like that. You hear four or five points consistently over and over. They are, one,
artists and writers, they need copyright to earn a living. They depend on it. It's very
important to them. Without copyright, they're just—-they're out in the cold cruel world.
Pretty much everybody will express that sentiment at some point when talking about copyright.
The second thing you hear is copyright is largely about protection from plagiarism.
Over and over, I hear sentiments like, if somebody writes a book they should get credit
for it. Now, modern copyright law is not really about preventing plagiarism as you probably
already know. And specially, given the Internet, it's very easy to find out who really wrote
a work first. There is a reason people think that plagiarism is one of the primary functions
of copyright. And that it's said, every time the copyright lobby talks to Congress or puts
out a press release or issues a cease and desist letter, they include a sentence about
how artists have to be protected from plagiarism because they know that that resonates emotionally
with all of us. And I can give you some petty glaring examples of this, in fact I will,
because it's just too good to resist. This is Hilary Rosen, the former head of the Recording
Industry Association of America, talking to a college audience. It's from a few years
back, late '90s, maybe early 2000s. So this--she is describing here, what she says as she goes
around talking about the importance of not copying things to college students. She says
analogies are really what worked best. I asked them, what you have done last week. And they
might say, they wrote a paper on this or that, so I tell them, oh you wrote a paper and you
got an A? Would it bother you if somebody could just take that paper and get an A too?
So, this sense of personal investment does ring true with people." Well, she's right,
it does ring true with people. But, her analogy is completely inapplicable for copyright because
when people download songs from the Internet they don't replace the artist's name with
their own. In fact, they recommend the file to their friends, and they say, "Hey, check
out this band." And they gave the band's name accurately. What she should have asked was,
"What if somebody could show your paper out and show everyone else that you got an A?
Would you have a problem with that?" And of course the students would have said, "No,
we don't have problem with that." This technique--this tactic is--once your--excuse me. Once you
are watching out for it, you will see it in just about every article, every press release,
every mention by an industry lobby or industry figure about copyright. It's quite amazing.
And this, I think, is part of the reason why the standard answer you get when you talk
to people in the street about copyright is, "Artists have to be protected from plagiarism."
The third thing is that everyone makes it clear that they want to be thought of the
artist's friend. Everyone is on their side over and over. You hear the sentiment, "You
know, I might download songs from the Internet but when I go to a concert of a band I'll
buy the CD because I want to support the band." It's a very, very emotionally powerful thing
to tell people that by obeying copyright that they are on the side of the artist. That's
where everyone wants to be. Nobody wants to be on the publishers' side. Publishers are
big evil corporations. And in fact, people have started to become conscious that publishers
are making a lot of money from copyright. But if you tell people copyright is protecting
the artist then they will feel funny about violating copyright rules and the industry
has learned this 100%, they know how to talk. The fourth thing is that, people are very
ambivalent about file sharing. Just about everyone I asked says either that they do
it or they know people who do it. They kind of smile funny. And then they'll then say
whether they do it or not, you know that they do it. And when you ask them how they feel
about it, you get this strange kind of answers. Like, I've heard people say, "Well I know
it might not be the most right thing to do, but really who is it hurting?" It's like people
know in their gut that it's really not hurting the artist but they still feel this residual
guilt about it. Because, there's this incessant message coming from the industry, file sharing
is bad, file sharing hurts the artist. I don't think there's any evidence that file sharing
hurts the artist. I've certainly never seen any. It does hurt the publishing industry
somewhat. If you would like to see by the way some of these answers, a couple of friends,
Google is also, Ben Collins-Sussman and Brian Fitzpatrick. And I--we went around Chicago
this summer with a video camera and we interviewed people in the street, about their thoughts
on copyright. And if you go to that website,, all one word, no hyphen
for those on video. You can download that video and watch, it's really striking. People's
reactions to the questions about file sharing. They're in this kind of weird moral quandary,
because they want to do it, their friends do it, they don't feel like it's wrong, and
yet they feel like it's wrong. Now, here's one thing you never hear when you talk to
people about copyright. Nobody has ever in 10 years said to me, "Copyright was invented
by distributors to subsidize and stabilize a certain kind of distribution technology."
Nope. That part of the history has been completely wiped from our world consciousness. Even books
about copyright, when you get to the part of the beginning of the book, where it talks
about how copyright begins? If their book's in English, in the United States, they will
talk about the constitutional clause that says Congress now shall have the power to
reserve few inventors and authors exclusive rights to their discoveries et cetera. That
clause postdates the Company of Stationers and the passing of the Statute of Anne, the
law that Parliament passed, granting the authors monopoly. Postdated by about 70 years, 65
years. So, and then it was not a new idea when the authors of the Constitution put it
in there. They were essentially putting into American law what was already law and habit
and a way of thinking in England, this was not an invention. So, the Constitution is
not the beginning of copyright. The true beginning has largely been forgotten. The implications
of all this are pretty big. As you're probably aware, there's a very large debate going on
about what should the relationship between the Internet and copyright be? I think that
debate is especially relevant to Google. We are a company that flourishes in the environment
where information is free to flow unrestricted. But the trouble is that that debate is currently
being had on terms that are purely defensive for those people who want to copy and share
things. What has been going on is because the background assumption of this debate is
copyright is there to protect artists and help them earn a living. The industry will
always say, "Well, if you pay to buy a copy, shouldn't you pay every time you see it?"
And then we come back with, "Well, look there should be some openings carved out for fair
use." I mean, okay. Yes, they should have the right to sell it and, you know, nobody
else should be able to sell it unless the author gives them that right. But, let us--let
us have a few things that are fair used. On those terms this debate is never going to
go in the right direction. And the right direction being, I think, a realization on our part
that the Internet, the proper use of the Internet, is simply fundamentally incompatible with
copyright law. Now, if you're worried about protection from plagiarism, give me one second,
which a lot of people are, the experience of the open source world is very instructive.
I've been working on open source for about 15 years, been talking to people who have
been in there for 20 or more. Open source essentially happens without copyright. Yes,
there are licenses on the software but that's sort of to help perpetuate freedoms that wouldn't
need to be perpetuated if there were no such thing as copyright. Essentially, you can pick
your free software as operating in one of the first copyright free spaces we've had
in 300 years. And there simply is not a problem with plagiarism in the open source world.
I'm not saying it never happens, it may. I can't remember any cases off the top of my
head. And when you do a search for plagiarism in open source free software, I spent a long
time doing that search the other night. And I couldn't find a single example. Instead
what I found were open source plagiarism detection packages. So, it is at least certain that
you can say plagiarism in a free software world, one of the first copyright free spaces
to exist on the Internet is no worse a problem than it is in the mainstream publishing world.
Work plagiarism still happens and every now and then when you'll read an article about
it. If you're still worried about plagiarism, imagine this; let us suppose that there was
a company that trawls the Web all the time gathering data. I'm not going to mention any
names. And supposed that this company remembered the time stamps of the files that it saw and
it remembered the URLs. And it computed the checksum for each URL. And it found out two
Meta information such as tags or something like that, maybe even the author of the information.
And it recorded all these things in a database. Remember it's not even saving the files themselves.
I'm not talking about the cache copy. What if you'd just save that all those checksums
and URLs and author names and stuff and maybe a little description in the database? And
at the end of every day, it sorted that database and then it took a checksum of the sorted
concatenated database. And it published that checksum in a little classified ad in the
back pages of The Wall Street Journal every day. You now have a plagiarism detection or
a priority database engine that cannot be corrupted even by the people running it. I
don't really think this is necessary, I think there might be some other interesting applications
to in such a database--such a database. But the problem of plagiarism has been solved
already. Copyright has nothing to do with it. In fact, when you let things float around
freely on the Internet that makes it possible to detect the original much more quickly.
This is why; by the way it's so ironic that the Publishers Association and the Authors
Guild are suing Google Book Search which promises to be, if we match snippets of texts together
in the right way, the first and best plagiarism engine ever built. You would think they would
be cheering us. But unfortunately, they are suing us. I think it would be nice if somebody
pointed out to them that this holds a lot of potential for preventing and detecting
plagiarism. Another question that was a serious problem back in the days of the printing press
and unregulated printing in England was the integrity of the work. I mean, you--if you
had two copies of a book, back in the day, you couldn't even be sure that they were identical
even if they have the same author's name on the front. Somebody might have added whole
sections, left out sections, et cetera. That is also no longer a problem. Making perfect
copies is what the Internet does naturally. You don't have to do extra work to make a
perfect copy of a copy. Now, the Internet does allow you to modify those copies very
easily as well. But that's okay usually when people do that they say so. There are not
that many cases of people corrupting or changing someone else's work and then going out of
their way to make sure that there's no trace of it and putting out the new work as though
it were the original. And where there are such cases they are usually easily detectable.
So, then we get to the final question, the one that the copyright lobby wants you to
ask, which is, "But without copyright how will artists and writers make a living?" This
a great example of a question that is best answered by being unasked. Copyright is not
how artists and writers make a living today and it has never been. I mean, you all know
some musicians, right? You know writers. I'm a writer. I've got two books published that
are under open copyright. Copyright isn't paying anyone's living. There are a few superstars.
Stephen King is certainly making out very well, more power to him. But, it doesn't make
any sense for society to organize the way it shares information around the production
of a few superstars while everyone else ends up either in debt or breaking even. The ways
that people make a living from creativity, meaning not just writing, but also music and
performing arts in general are through a variety of means that have been true for centuries,
for a long time before copyright, during copyright, and from now on they will continue to be true.
Their patronage, the day job, subscriptions. Subscriptions by the way paid for a lot of
writing back in the early days of the printing press, including the writings of many writers
that the copyright lobby likes to tell as examples of copyright supporting artists.
Samuel Johnson is a great example. He made very little money from copyright. Many of
his works were paid for in advance by subscribers who paid in anticipation of the work coming
out. From musicians and other performers performance is the main means of income. There are also
piece working commissions. A lot of writers who make a living writing do so by commissions
from magazines and then magazines revenue itself is not heavily dependent on copyright
royalties. It's dependent on advertising and subscriptions. And traditional publishing
still works without copyright. I mean my publisher was willing to release my stuff under open
copyright. Because they--by signing a contract with you they cause a work to come into existence.
They get control over the timing. They get some control over the marketing. And it makes
sense to pay someone to produce a work which you're then going to release for free if you're
going to be the first to market without even copies. So traditional publishing doesn't
have to go anywhere. There are also new methods of supporting creativity that are possible
now that we have the Internet, with the free flow of information, the easy attachment of
metadata and micropayments. Here's a--here's a very good example which--this idea's been
floating around a lot, I think it's been independently reinvented several times and now there's a
group called Fundable.Org which has actually implemented it. Supposed there's a writer
who wants to write her next novel and she knows it will cost her $50,000 just to pay
for rent and groceries during the amount of time it'll take to write that novel. So, she
posts on her blog, "All right, I'm ready to write, but it's going to cost $50,000." She
goes to a third party intermediary organization or maybe they find her because they're taking
a small commission from this deal. That organization goes around to known fans of the author and
anyone else. Hopefully they don't spam any mailing list, and say, "Okay, make your pledges.
Pledge whatever amount you feel you can pay. We're not going to collect until we have $50,000
worth of pledges or maybe even $60,000 to pay for the commission." So, some people pledge,
some don't. It doesn't matter. If it's a good writer eventually you're going to reach the
right amount. I mean, it only takes a few people--well, a few thousands of people pledging
small amounts of money to reach that sum. And now, the writer writes the work under
contract with the intermediary. Releases the work for free to the world on the Internet
and the pledges get called in and paid to the writer. There are some interesting properties
in this system. The work exists for free and it's available to the whole world. The writer
got what she needed to produce the work. And nobody paid more for the work than they were
willing to pay. There's no need to restrict. Sharing in order to pay for things. Maybe
a broader way to think of it is this. If there are people who want to produce and there are
people out there who want to consume. When did we stop believing that the free market
is going to find a way to get those people together? We don't need a monopoly right to
make that happen. If we have a distribution technology that doesn't require high upfront
centralized investments. And we don't anymore. So let me conclude with a little lobbying
of my own. This sentiment, this idea, that copyright is really about subsidizing a certain
kind of distribution technology and not about subsidizing creativity has almost no currency
today. And as long as it has no currency the debate on copyright can only go in one direction.
The first thing I would ask you is that if you find yourself in a flame where on / dot
with somebody about copyright, please just say that sentence. And then point them to
that website. That meaning can spread very quickly because people want to believe it.
They want file sharing. They already are halfway to believing that publishers are abusing the
copyright and cheating artists. And in fact they do literally cheat many times, I don't
have time to share you some stories--share with you some stories about that but there's
a lot of evidence to believe that publishers' bookkeeping is not accurate in many cases.
Once that meaning starts getting out this debate may finally start to change. If it
doesn't change, we, meaning the world and we, meaning Google are headed for disaster.
Because, what's going on now is that copyright terms are being extended to infinite lengths.
Copyright interpretations are being strengthened so that the circle of what constitutes fair
use is getting ever smaller. And the very worst thing is that copyright protection is
being built into our hardware. No, that's not even the worst thing. That's the second
worse thing. The very worst thing is that copyright protections are being built into
law such that it is proposed in some jurisdictions and I don't think this is law anywhere yet.
That software and hardware be required to pay attention to digital watermarks and refuse
to copy files that are marked a certain way. Now, think about that. We would actually not
be allowed to build a piece of software or a piece of hardware that could copy files
that have a certain bit string at the front. What are we? What is Google going to do when
the Linux kernel code is required by law not to copy certain files? That's an amazing prospect.
What are we going to do? Well, we can't crawl the Web because we're not allowed to hold
a file in memory long enough to index it. This company, as I said, flourishes on the
free flow of information. And the freer the world to information, the better off we are
and the better off the world is. Please don't feel guilty about copying. You're not doing
anything wrong even if increasingly you are doing something illegal. Please don't think
that balance is the right approach that there are some negotiations in which the rights
of creators and the publishing industry are balanced against the good of the public. The
public's good and the creator's good are one and the same. It is the free flow of accurately
attributed works on the Internet. Such that everyone has access to creative output. Everyone
can easily identify who created what? And can use essentially the same techniques that
they've been using all along to compensate those creators. Helping those people find
each other. That's the business we should be in. Excuse me, let's take a drink. As I
watched the progression of ever tighter, ever more restrictive copyright laws in a battle
that I thought was going to go the other way. Because I thought the meaning of Internet
was obvious. I get worried. And I think our great grandchildren are going to look back
at us, at our generation and wonder in amazement, and they're going to ask how on Earth, excuse
me, could we have built a gigantic worldwide copying machine and then hesitated to use
it to its full potential? How on Earth could we not have been able to tell the difference
between stealing a bicycle and copying a song? I don't know how we're going to explain ourselves
to them. Okay, that's the end of the rant. I'd love to take questions.
>> Yeah, I want to talk to this claim that plagiarism is a non-issue.
>> FOGEL: Yes. >> I'm thinking about Disney Company. The
referring word on the copyright on the English analysis is transcribed. And they're worry
is, we're going to use Mickey for their own purposes in cartoons and advertising and so
forth. And therefore, I could get some of the, you know, magic or the associations of
Disney with their [INDISTINCT] without compensation or commission.
>> FOGEL: Yes. >> Is that just a plagiarism? Or is it something
[INDISTINCT] >> FOGEL: So, I'm going to repeat the question,
for people on the recording. Companies like Disney are worried that if Mickey Mouse are
or similar object, let's call them, go out of copyright that people will start using
those images for their own purposes. And that then--that'll sort of be those purposes will
then have the aura of Disney associated with them that's kind of a form of plagiarism,
isn't it something we should protect? That is a legitimate worry. I don't think it's
as great as it might be because right now when somebody uses someone else's work we
assume that there has been some sort of contractual relationship. We assume because of the existence
of copyright law that there must be an endorsement or an agreement between those two parties.
And if that assumption were not there then when you were to see someone using Mickey
Mouse you wouldn't think that Disney had anything to do with it. Now, you're right that this
would mean that people can start using characters in someone else's novel in their own novel,
for example. And that there would be nothing the original creator could do about it. But
the original novel doesn't go away. The original novel will not be tainted by those uses. And
although it maybe slightly discomforting especially to those of us who grow up during the copyright
regime, to think about that happening, is it worth preventing people from sharing information?
Is that--is that very minor benefit worth saying to people, "You just can't copy that
at all. You can't use that." So, that's my answer. There's a lot--you, sir.
>> Sir, I'm a little confused about your position. I mean, so if I say I wrote a book or I wrote
a song and I just want to put it up on my website. And my position is just that, my
preference is that. Like I don't want to go to indexes or I don't want anybody else to
copy this file and post it on their own servers. Should--like, do you think that session should
be supported by the law or not? There's no publisher involved. It's just...
>> FOGEL: No, actually no, no, I don't. What I think should be supported by the law is
that your name cannot be stripped and no one else can claim the credit for it. That is
credit reputation is a non-renewable resource. It cannot be replicated, it can't be copied.
To the degree that someone takes credit for your stuff, that's the degree to which you'll
lose credit, it's always proportional. But, if they accurately credit you, well, look
if you don't want people to copy the thing don't put it on the Web. Pass it around to
your friends. So no, that doesn't bother me. And [INDISTINCT] to me that bothers any new
creator of [INDISTINCT], you know, when I put writings on the Web, I want people to
copy them. >> Yeah. I don't know. I would disagree with
that. >> FOGEL: Well...
>> I don't completely buy that, but yeah, I mean...
>> FOGEL: Okay. But, unfortunately it's not a good forum for that kind of conversation,
so I'll have to leave that. Next question. Yes.
>> When you proposed that every [INDISTINCT] for this novelist contribute or pledge some
small amount of money. Why it doesn't the tragedy of the commons happen? Where just
everyone assume someone else would pay for this guy.
>> FOGEL: Oh, because, the tragedy of the commons upgrades in a slightly--in a suddenly
but unfortunately different theoretical environment. In this case, you don't actually pledge the
money until you--until there's a signed contract or that is, your money is not going to get
called out, right? You wouldn't actually be getting anything out of your bank account
until someone has promised inside a contract to deliver the work. So, if you're sitting
there and you've made your pledge but your money hasn't actually been called yet, and
you see that nothing's happening, well, maybe you have a little more or maybe you don't.
But the point is that the result of the transaction is apparent before you're actually obligated
to give the money. And so, you'll basically--you'll pay what it's worth to you and if not worth
anything to you, you won't pay. You don't have to worry about what other people are
doing. If the work never comes to exist, that's not a tragedy, there will be other works.
So, I don't think the game theoretical dynamics work out like the tragedy of the commons.
>> I'm curious. You have mentioned that you've interviewed people regarding these concepts
of copyrights. >> FOGEL: Yes.
>> Have you actually talked with the artist about the...
>> FOGEL: Yes. >> ...position of copyrights?
>> FOGEL: Actually, my family is in the music business, the classical music business. So
I've talked with a lot of artists. Artists, it depends on who you talk to. If you talk
to a superstar, I won't mention any names. Anyway the classical musical world, you know,
doesn't really have superstars, right? They're making a fair amount money off copyright,
but even then, some of them are sympathetic, although not all. Among orchestral musicians,
and this is really interesting, for about 10, 15, in a lot of cases 20 years, orchestral
musicians have made no money off recording royalties. In fact, the orchestra that my
family was associated with, The Chicago Symphony Orchestra, has not even been making recordings
for the last two years because nobody can pay the royalty rates that the Musicians'
Union demands. Now, there's something--there's an aspect of shooting yourself on the foot
here. If you're not making recordings at all you're certainly not making any money. And
yet a lot of those musicians feel very strongly about copyright and I--you know, since there
is no economic interest there, I can only resort to psychological explanations. But
it has nothing to do with their livelihood, they're very well-paid and they're not making
any money from copyright right now. So, are the artists--artist are [INDISTINCT]
>> It sounds like a kind of limited sample to me.
>> FOGEL: Sorry? >> It sounds like a kind of limited sample
to me. >> FOGEL: Well, so an important--what he said
was it sounds like its limited sample. I don't just talk to classical musicians, believe
me. But, one thing to know is that when a band, anyone other than like Rolling Stones
or U2 or something, when they release a CD they don't make any money. They just want
to get that CD out there. And the terms of their contract with the distributor are such
that they hardly make a dime. Any band, for the best majority of bands, any band that
puts AdSense on its web pages is just going to make more money from the AdSense than from
their CD sales. Except, perhaps for direct CD sales of CDs manufactured by them at their
concert, which people often buy as a kind of charity gesture. Next question. Yes sir.
>> [INDISTINCT] earlier to the Disney questions, no matter what happens if Mickey Mouse [INDISTINCT]
copyright wouldn't anyone start making movies took a story about Mickey Mouse and then how
does trademark law fit into this and what is your position on the trademark law?
>> FOGEL: Oh, the question is, sort of, about the difference between trademark law and copyright
law. Trademarks, although they're both called intellectual property by the legal system,
they are completely different. Trademarks are a way of preventing confusion, of preventing
identity confusion. You want to know that when you're dealing with a party, they really
are who they say they are. And if anybody could claim to be anybody, we'd have chaos.
So, trademark's totally fine, no problem. And if Mickey Mouse is your logo and it's
trademarked, then no, some other person shouldn't be able to use it to identify themselves.
But you can't say that the novel "War and Peace" is the logo of Tolstoy, that's different.
Yes. >> So, I think you--there are kind of four
different parts of IP are kind of important when you're trying to [INDISTINCT] an argument
like this. Especially patenting, it seems like through the history that we have, especially
since there's some major industrial focus around distribution and the regulations around
it, the copyright has kind of grown into this [INDISTINCT] massive beast, but if you try
to kill it off and say, "Okay. We're in a time where we don't need it anymore because
we have this nice Internet thing3." I don't think that the arguments that you've presented
kind of deal completely with the economic desires of the creators. Currently, they're
being fed even into a limited degree by this kind of greedy distribution complex. The ones
that goes away, aren't they going to insist on perhaps a more kind of strong form of patenting
so that they can keep property of their--not the expression of ideas, like in copyright
but the utility of ideas because you're saying before, "Well, they're going to get recognition
if we do this watermarking stuff correctly." But, how do you--how do you get value out
of what you did to the world? There has to be a solution to that.
>> FOGEL: So that question, and I hate to say this. I don't mean to beat you over the
head with it but--well I guess, I don't hate to say it. That question reveals the myth.
It just is not how creators make a living for the most part. We all want to think it
is but if you actually look at the numbers, it's not.
>> If you reshift the way of the current system, how would you, kind of--I realize that other
creators don't make a lot of money but presuming... >> FOGEL: No, no, they don't make any money.
>> Right. So just... >> FOGEL: Not just, you know.
>> So when they move to making this more money, aren't they going to start working the right?
So if they're directly brokering these agreements with us, won't they want to protect their
side of the deal more and more about enter into a, kind of, an emasculation of things
like patenting and control over the original idea?
>> FOGEL: Well, the comparison between patents and copyrights is very complex. Part of the
motivation behind patents is to prevent companies from keeping secrets, especially in medical
research. There--so, a direct comparison between patents and copyrights, I think, is really
impossible. There are some aspects that are similar but no, I mean, the one--the one right
that is both, sort of, spiritually and economically important to creators, to creators of what
is currently copyrightable material is the attribution right. They need to know that
their works are not being--that credit for their works is not being stolen and the integrity
of the work is important. Now the integrity problem is essentially solved. If you go the
author's website, the thing you download is their book, there's no doubt about that. But
the whole--the thing I'm trying to get at is that the Internet makes it possible to
have revenue streams that don't depend on the creation of an artificial property right.
So I hope that answers the questions. The white shirt, yes.
>> So, say I'm creating a videogame that cost me $10 million to create. I'm going to sell
a million copies of it to recoup my costs as a publisher and patented developer, so
I guess I could say I'm a content creator defending his copyright. How--what model do
you see working for the videogame... >> FOGEL: That's a great--that's a great question
and you may not like the answer but at least it'll be honest. The question was, "I'm a
videogame developer, it cost me, you know, $10 million to develop this game. What model
in this new world I'm proposing is going to pay for that?" Any model we have whether it's
single monopoly right, whether it's global monopoly, that is anybody can distribute,
there's no monopoly but they all have to pay royalties to the creator which we never tried
or the kind of free form model that I'm proposing. Any model is going to emphasize and strengthen
certain kinds of creations and deemphasize or weaken the possibility of making other
kinds of creations. For example, the big budget special effects film Hollywood movie. That's
kind of harder to make if you don't have strong copyright law. But the question is, "Are those
things so valuable to us that we are willing to have a system that prevents people from
sharing with each other?" And especially given that technology advances inextricably and
it is now possibly even as a lark in your spare time to create a science fiction thriller
that 15 years ago would have required $50 million to create. I don't think it's a good
argument for keeping copyright. Yes. >> I'm going to introduce...
>> Come in, Carl. >> FOGEL: Oh, yup?
>> [INDISTINCT] direct questions. >> FOGEL: Can't really hear you, sorry.
>> Can you hear me now? >> FOGEL: You mind if I take that one?
>> Yeah. >> FOGEL: [INDISTINCT] all right, go ahead.
We'll take one from here. >> Thanks, Carl. I see you're drawing a distinction
between the blockbusters and the fine artists and you're kind of dismissing any of the artists
that really make a lot of money off of copyrights. However, would the infrastructure for that
communication exist without the copy--without being [INDISTINCT] by copyrights for instance,
would an artist who is--wants to record a CD and give it away, even have a CD or CD
player available to them and to their audience if it wasn't for the infrastructure that is
bought and paid for through the industry. >> FOGEL: I think that's a--that requires
such a degree of speculation to know what would have happened with the Internet that
I couldn't even begin to answer it. But, I mean, the Internet was started as more of
a military research project than anything else. And I don't think that there's any evidence
now that the haste of development or aggregation of the Internet is going to slow down based
on the presence or absence of copyright based revenues. I mean, frankly the--you know, you
could say that the development of the Internet was mainly driven after its post research
project phase by pornography. So, you know, I think--I think most of these--most of these
works we're talking about--although they have used the Internet for distribution and of
distribution of copyright materials in some cases, I don't think they're really important
in making the infrastructure of the Internet exist. But that's--it's a big what if game
and, you know, you can't say for sure. I certainly can't say for sure. Anyway, go ahead.
>> KELLER: I'm Daphne Keller. I'm a copyright lawyer here at Google. And I have office hours
on Wednesdays across the street if you'd like to come talk about copyright. I just wanted
to say I think a lot--and we talked about this.
>> FOGEL: Yes. >> KELLER: I think a lot of your description
of how early English copyright was driven by a monopoly held by the people who controlled
distribution is true. And I think it's still true today that a lot of lobbying that goes
on in D.C. is done by the distributors rather than the creators who are [INDISTINCT] to
justify copyright topic. However, U.S. law is very much [INDISTINCT] on the idea that
copyright is an engine driven by the [INDISTINCT] the individual theaters and it's written in
the Constitution. So that's what courts are looking at when they think about copyright.
That's what Congress... >> FOGEL: Yes.
>> KELLER: thinking about. And if you disagree with Congress about the idea that
the best way to drive [INDISTINCT] is through massive expansion of the copyright to maybe
include 70-year terms and DMCA super protection based on unhackable technologies and so forth.
Do you think Congress got it wrong? I think the best way to persuade them is to demonstrate
that production--clear production based on systems of other than super strong copyright
really works. So [INDISTINCT] development really think things under Creative Commons
Licenses and so forth is sort of created on material example that we don't need the extensive
robust rights necessarily. >> FOGEL: Absolutely. And just to summarize,
what Daphne's saying is, if the way copyright is going to end, if it ends, is--well, I'm
not sure you're promoting that, I don't want to put words in your mouth.
>> KELLER: I'm not promoting. I'm also not promoting the [INDISTINCT] if you don't think
it's a good idea. >> FOGEL: Okay. It's the creators themselves
are going to start using these other distribution models independently of copyright law. They're
just going to release stuff voluntarily under new models. And I think that's true. That's
the engine that's really going to make this happen if it happens. But I think there needs
to be a two-pronged approach because those laws are causing us great problems and are
going to cause us much greater problems very soon. And the trouble is that the DRM, digital
rights management and--or digital restrictions management as some of us like to call it.
And the Digital Millennium Copyright Act, unfortunately, these things are accurate expressions
of democratic sentiment. Those laws reflect more or less the public's belief that copyright
is necessary for creative development to happen. And if we don't change that assumption the
laws are going to be a very long time in changing and artists are going to be a very long time
in becoming willing to experiment. Whereas if artists start to get the idea that maybe
copyright wasn't designed to help them in the first place they may become a bit more
willing. There's one other point I want to make. As Daphne pointed out, the legal basis
of copyright in the U.S. is in the constitutional clause and that's were the courts look. At
that and the--and the case law and further laws that are sort of based on it. But just
because that clause says to promote the progress of science and the useful arts doesn't mean
that's what the system is designed for. When Congress passes the Clean Water Act, that
doesn't mean it's about cleaning the water. Okay. Now, I'm not saying that the authors
of the Constitution were being insincere, they really believe in copyright and given
the technological and economic [INDISTINCT] in which they operated. It was perfectly a
reasonable thing they were saying. Things have change now. Not just in a--in a quantitative
way but in a very fundamental qualitative way. It's a different world.
>> Now, I want to make a point here that the--for the common good basis of copyright patents
in U.S. law, I mean, are true. But is it going to be moot? Because that's not the basis of
worldwide copyright patents and treaties override U.S. law. So, treaties negotiated by federal
government override any U.S. interpretation of copyright, so.
>> KELLER: In some acts, it depends on implementing the [INDISTINCT] the U.S. manages to resist
[INDISTINCT] treaties a lot and in this case sometimes that's a good thing.
>> FOGEL: [INDISTINCT] is a legal discussion of philosophical thought. Difficult questions.
Yes sir. >> [INDISTINCT] so my question--my question
is not about [INDISTINCT] royalty but it's about [INDISTINCT]. I'm an independent movie
maker who wants to shoot a documentary from the [INDISTINCT] and it cause me x million
dollars to make this movie. Now, there's no system for copyrights in place. How does that
educate the [INDISTINCT] >> FOGEL: Well, a good answer that is, how
does such things generally created now? For the most part somebody goes to a foundation
and gets a grant. That's how most of that stuff happens. It's not, you know--occasionally
there's a big blockbuster success like "March of the Penguins" or something. But if you
take a lot of the films, the educational and documentary films you like, you will find
that somebody impoverished themselves and went out and wrote grand applications borrowed
money from their relatives to make it happen. And if you look at a lot of the books you
like, if you look in the [INDISTINCT] there's often a foundation granted there. The system
really isn't really paying for that stuff. Okay. We are--we're half an hour away from
the Google policy talk which again is over in Tech Talk 42. I'm happy to stay here and
continue taking questions but those of you who have somewhere to be at 3:00, this is
your chance to get up. Don't worry about it. I won't be offended. And thank you very much
for coming.