This article has been out for a few weeks now, but I've finally had a chance to read through the whole thing. Louis Menard, over at the New Yorker, has a long piece on just how messed up copyright laws are today, going over many of the same grounds we have (for nearly two decades). The piece itself is a sort of book review of Peter Baldwin's new The Copyright Wars: Three Centuries of Trans-Atlantic Battle, but basically repeats the main point: copyright law as it is today really doesn't make much sense. The first half of the article is a great look at the problems of copyright law, but unfortunately, the second half of the article goes off the rails by leaping on familiar and misleading tropes about why people feel the way they do about copyright. Still, the first half covers a number of copyright's problems quite well.
Among other things, it takes on the massive orphan works problem:
As it is, few creations outlive their creators. Of the 187,280 books published between 1927 and 1946, only 2.3 per cent were still in print in 2002. But, since there is no “use it or lose it” provision in copyright law, they are all still under copyright today. Patry, in his recent book, “How to Fix Copyright,” notes that ninety-five per cent of Motown recordings are no longer available. Nevertheless, you can’t cover or imitate or even sample them without paying a licensing fee—despite the fact that your work is not competing in the marketplace with the original, since the original is no longer for sale....
In the case of Motown, at least you know whom to call. In the case of many books and photographs, the rights holders are unknown; in other cases, it’s expensive to track down the heirs or the legatees or the firms, possibly no longer in existence, to whom the copyright belongs. And so, for fear of being sued and having their work pulped or otherwise erased from the universe, people avoid the risk. Patry says that the BBC has a million hours of broadcasts in its archives that cannot be used, because no one knows who holds the rights.
But much of the article talks about how, even if many of these debates have gone on for decades, the internet has really brought the problems into stark contrast:
Before the Internet, the social cost of this obstacle was minimal. Only a few people had the time and the inclination to travel to where they could see or listen to archived broadcasts. But today, when everything can be made available to the entire world at minimal expense, it seems absurd to hold enormous amounts of content hostage to the threat of legal action from the odd descendant. “That a vast existing cultural patrimony, already paid for and amortized, sits locked behind legal walls, hostage to outmoded notions of property, when at the flick of a switch it could belong to all humanity—that is little short of grotesque, ” Baldwin concludes. Yet the odd descendant has the law on her side. She has the power to pulp.
The article makes some really great points, but also dips into some unfortunate claims. It's particularly disappointing that Menard trots out the whole "Hollywood v. Silicon Valley" trope in simplified caricatures:
Let’s call the first type of business Hollywood and the second type Silicon Valley. Hollywood, along with the music industry and the publishing industry, which are the other major analog-era corporate interests, makes money by producing and distributing content. Silicon Valley makes money by aggregating other people’s content. Hollywood fears pirates; Silicon Valley fears paywalls. Silicon Valley accuses Hollywood of “monopoly” and “artificial scarcity,” and talks about the democracy of the Internet. Hollywood accuses Silicon Valley of “free riding” and “contributory infringement, ” and talks about protecting the dignity of the artist. But each side is only trying to defend its business model.
But that's not even close to accurate. Because, as we've discussed at length, "Silicon Valley" has also built all sorts of new innovations and tools that have helped "Hollywood" make a hell of a lot more money -- often in ways that have little to do with copyright protection.
From there, Menard pulls in a few more misleading (to sometimes wrong) tropes about the copyright fights -- including that only academics care about the length of copyright terms, and that they really don't like copyright just because it makes it harder for them to access other academic research. It also suggests (falsely) that the DMCA's "notice and takedown" process means "you can post almost anything as long as you take it down when the rights holder complains." It doesn't. At all.
Menard almost entirely ignores the free speech implications of copyright law and completely skips over how copyright can be, and often is, used as a veto on innovation. The article also ends in an odd way, suggesting that freelancers should assign their copyrights to big companies "who have the muscle to protect" them. Huh? It's a disappointing end to an article that had plenty of promise in its first half. It almost feels like Menard rushed the second half, just repeating silly old stories about "the copyright wars" in trying to find a way to end the article. That's unfortunate. Given the first half, it seems like a more interesting road to have traveled would have been to explore ideas and concepts for copyright reform, and how to bring the law into the modern era, making it more current and reasonable.
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