FC: Replies to Ayn Rand Inst., Marxist allegations, Eldred, and Lessig

[Declan McCullagh <declan () well com>]

When Larry was speaking after the oral arguments 
(http://www.mccullagh.org/image/d30-28/larry-lessig-luncheon.html), he 
mentioned the Politech post from the Ayn Rand Institute.

He said (I'm summarizing) that if he's a Marxist, he's in odd company, with 
notable free-marketeers like Milton Friedman, Ronald Coase, James Buchanan, 
and Thomas Hazlett filing a brief *opposing* the copyright extension act 
(http://eon.law.harvard.edu/openlaw/eldredvashcroft/supct/amici/economists.pdf). 
The brief said the law reduces innovation and provides at best very small 
additional incentives to innovate.

I don't believe that Larry mentioned in this context, but there's also the 
Cato Institute and Eagle Forum brief 
(http://eon.law.harvard.edu/openlaw/eldredvashcroft/cert/eagle-amicus.html) 
on his side.

Previous Politech message:
http://www.politechbot.com/p-04050.html

-Declan

---

Date: 8 Oct 2002 01:57:02 -0400
From: "John R. Levine" <johnl () iecc com>
Sender: johnl () imap iecc com
To: "Declan McCullagh" <declan () well com>
Cc: "politech () politechbot com" <politech () politechbot com>,
   "davidh () aynrand org" <davidh () aynrand org>
Subject: Re: FC: Ayn Rand Institute denounces Eldred, Lessig as Marxists

The screed from the Ayn Rand Institute completely fails to address the
essence of the Eldred case: the improper retroactive extension of
copyright on existing works.  Copyright in the U.S. isn't considered a
natural right, it is specifically authorized by a clause in the
Constitution in a list of things that Congress can do.  In its entirety,
the clause reads, "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."

You can make a feeble case in favor of extending the term of future works,
although it's hard to imagine that many people would say "Wow!  I wasn't
going to bother to write anything when copyright only lasted 75 years
after my death, but now that it lasts 95 years I'll get to work."  But
extending the term of existing works cannot possibly encourage anyone to
write something new unless you have a time machine, and it clearly damages
authors who cannot use works that would otherwise pass into the public
domain.  (The usual example of the latter is Disney's adaptations of
Pinnochio and Alice in Wonderland which had passed into the P.D. when they
adapted them into movies.)

The Institute argues in favor of, essentially, moral rights to the
integrity of work.  But in the U.S. we don't have that.  Once a work
passes into the public domain, people can do anything with it they want.
You can make fun of Shakespeare, you can make fun of Mark Twain (another
fan of perpetual copyright who should have known better), and when her
copyrights expire, you can make fun of Ayn Rand.  That's the deal, they
don't have to like it, but there isn't any legal basis to argue otherwise.

Regards,
John Levine, johnl () iecc com, Primary Perpetrator of "The Internet for Dummies",
Information Superhighwayman wanna-be, http://iecc.com/johnl, Sewer Commissioner
"Just how much hay did we buy?" asked Tom, balefully.

---

Date: Mon, 07 Oct 2002 22:33:04 -0700
To: declan () well com, politech () politechbot com
From: Lizard <lizard () mrlizard com>
Subject: Re: FC: Ayn Rand Institute denounces Eldred, Lessig as Marxists
Cc: davidh () aynrand org

Regardless of the possible increase in creative works to be had by assuring 
a starving twenty year old author that his currently non-existent heirs 
will be able to profit from his work ninety years his death, rather than a 
mere seventy (I, certainly, redoubled my creative efforts in 1998 due to 
that new incentive!) I was hoping that someone could explain to me how 
artists who died seventy years AGO will be encouraged to create new works. 
Since Rand, like myself, was an atheist, we have to assume that the ghosts 
of the artists are non-existent (and will, thus, not produce any more 
works), so I am assuming some form of time travel is involved?

The flaw of the 1998 law is not the extension of the time period for new 
works; it is the retroactive extension of coverage to OLD works. Surely, 
arbitrary and retroactive law is contrary to Objectivism, and changing the 
law after it has gone into effect is as arbitrary as you can get. The 
artist created work under the terms of a contract: The government would 
protect the copyright for 'x' years. The artist was not compelled to 
create; if he thought the term was unfairly short, he had every right to 
refuse to use his talents. Perhaps some did so refuse; by definition, we 
will never know. But, nonetheless, those who DID create did so under the 
terms of the contract set forth in the law of the time; to change that 
contract at whim is, or should be, repellent to anyone calling themselves 
an objectivist.

The Constitutional purpose for copyright was/is to encourage the production 
of arts; an object which has already been produced, by definition, needs no 
further encouragement. Had the new law merely extended the term for new 
creations, it is highly dubious anyone of any merit would have objected.

Rand herself notes:Intellectual property CANNOT be exercised in perpetuity 
(Ayn Rand lexicon, p353, emphasis mine). The consistent pattern of behavior 
on the part of the government is to deny that fact, to continue to extend 
the period of protection ad infinitum. The 'limited time' envisioned by the 
founders was not, I am sure, extendable to 'infinity minus one picosecond', 
which would still be 'limited' by a technical definition.

Furthermore, as a matter of basic justice, what is right for one person 
cannot be wrong for another; justice must be objective. Thus, if it is 
right for Disney to exploit the works of the Brother's Grimm and Rudyard 
Kipling, after a certain amount of time had passed, how can an OBJECTIVE 
system of justice deny the right of todays creators to unto Disney what 
Disney did unto others?

The institute which bears her name advocates arbitrary laws, the unilateral 
voiding of contracts, and subjective, whim-driven justice. If there was 
such a thing as a soul, Rand's would be furious.

http://www.online-literature.com/kipling/913/

---

Date: Mon, 7 Oct 2002 22:11:42 -0700 (PDT)
From: tack <tack () gaffle com>
To: Declan McCullagh <declan () well com>

> now exceeds 70 years, the law brings copyright protection in line with
> the legal vehicle for the posthumous control of tangible property--the
> law of testamentary trusts, which bases the term of such control on a
> human lifespan.

Well, it only takes them a couple paragraphs to stray from the basis for
our constitutional copyright regime.  Ideas are not property.  Even if you
feel otherwise, they certainly aren't tangible.

The founders lamented the idea of giving a monopoly to anybody.  The
problem is that they also felt that property law should not be applicable
to ideas.  I may be preaching to the choir here, but it was and is widely
believed that taking somebodies idea doesn't deprive them of it.  And as
such, Jefferson was adamant to seperate the law of property from the law
of ideas.  Following that, copyright and it's monopolies are a compromise
to create an artificial economy of ideas that is also regulable apart
from the economy of property.

With the coining of the phrase "Intellectual Property" and now articles
such as these, it is clear that there exist those who seek to subvert the
traditional and constitutional ideals of copyright to their own ends.
Unfortunately to the detriment to the American people and the democracy
upon which open sharing of information depends.

tack

---

From: "Mcintosh, Dennis" <dennis.mcintosh () wcom nl>
To: "'declan () well com'" <declan () well com>,
   "'reaction () aynrand org'"
        <reaction () aynrand org>
Cc: davidh () aynrand org,
   "'viruspublishing () mindspring com'"
        <viruspublishing () mindspring com>
Subject: RE: Ayn Rand Institute denounces Eldred, Lessig as Marxists
Date: Tue, 8 Oct 2002 06:17:41 +0100

Declan:

Scott Johnson is not quite correct in claiming that the Ayn Rand Institute 
article labels Lessig a Marxist. It only states that one of Lessig's 
arguments is an attack on money and success, which is "shameful and 
Marxist."  But, interestingly, the article goes on to attack the public 
interest rationale for the Act itself, as being too Benthamite.  The 
artist's interest in the integrity of his/her work indeed would "Promote 
the Progress of Science and useful Arts," and seems to be the only 
rationale pure enough to pass muster for the Ayn Rand Institute.  However, 
Congress frequently employs a public interest rationale in Acts of this 
kind, so it is probably not very helpful to the Government's case in 
defending the law to deny Congress the right to make such a calculation. 
Congress enjoys the right under the Constitution to do so, and presumably 
that will be recognized by the Court.  Lessig and co. bear a heavy burden 
in trying to overturn this statute.

By the way, I wouldn't be too hard on the Ayn Rand Institute's effort to 
suppress journalistic reuse of their intellectual product. That is entirely 
consistent with their viewpoint of protecting the original integrity of 
their thought.  No harm in lawfully protecting their rights, as they see 
them.  A big difference between them and Scientologists!

Dennis McIntosh
Leiderdorp, Netherlands

---

From: Zero Sum <count () shalimar net au>
Organization: Tobacco Chewers and Body Painters Association
To: davidh () heroic aynrand org, reaction () aynrand org
Subject: Re: FC: Ayn Rand Institute denounces Eldred, Lessig as Marxists
Date: Tue, 8 Oct 2002 16:32:52 +1000
Cc: declan () well com

> Op-Ed from the Ayn Rand Institute
>
> WOULD-BE INTELLECTUAL VANDALS GET THEIR DAY IN THE SUPREME COURT
>
> Those who are spearheading the current legal challenge to the
> copyright law favor intellectual cannibalism masquerading as
> creativity and free speech.
>
> By Amy Peikoff, J.D.
>
>          In 1998 Congress, pursuant to its Constitutional power to
> determine the duration of federal copyright protection, passed a law
> extending the term of that protection by 20 years. This law brought
> United States copyright protection in line with that already
> afforded in Europe.

Europe has been making many mistakes lately.  Why emulate them?
The European bent for legislating 'co-operation' seems to contradict
the philosophy you support (the GSM vs CDMA situation makes a good
case for your philosophy),

"Bringing it into line with Europe" is no argument at all.

> In addition, as the average life expectancy in the United States now
> exceeds 70 years, the law brings copyright protection in line with
> the legal vehicle for the posthumous control of tangible
> property--the law of testamentary trusts, which bases the term of
> such control on a human lifespan.
>
However, the ease with which material is circulated and the sheer bulk
of it has cause the rate of change in fashion, art and learning to
accelerate enourmously.  Maybe "a lifetime" is no longer appropriate.

Considering that all learning is accumulated and pyramids upon itself,
it may be that "a lifetime" is now an arresting factor for growth and
production of new ideas, fresh original thought.

There may, or there may not, be a reason for changing such an arbitray
figure.

>          Despite the reasonableness of this law, Stanford professor
> Lawrence Lessig is spearheading a legal challenge to it, culminating
> in his argument before the Supreme Court this Wednesday. Lessig, who
> seems to have become, in the words of New York Times writer Amy
> Harmon, "a rock star for the digital liberties set," is expected to
> argue that the law is "overly restrictive of the free-speech rights
> of would-be users of copyrighted material that previously would have
> been in the public domain."
>
You state the law is reasonable, but you haven't made your case.  You
toss in a bit of ad hominem and then fail to point out that much of
the material that is "benefiting" from the extended copyright relies
on older material that could only be used because copyright had
expired.  Art and culture pyramids on itself to produce a new and
richer world.

The above paragraph is hardly "op-ed", as it is hard to see how the
argument could be weaker or the attempted verbal effect greater.  I'd
call that paragraph "op-manipulation" not "op-ed".

Even there, it is ineffective.  It is so transparent that it fails.

>          In recent decades we have already seen the "right to free
> speech" extended to mean the "right" to be provided with a free
> platform for one's speech. Anyone who dares to be successful enough
> to own a property where the public enjoys gathering--e.g., a
> shopping mall--is for that reason compelled to allow people to speak
> on that property.  "Free" speech thus means: free of any need to
> earn one's own physical instrumentalities or audience, or even to
> pay for the right to borrow someone else's achievements.
>
The relevance of this is?

Would you say Mike Meyer's "borrowed someone else's acheivements" with
his Austin Powers scripts?  I would.  But that is OK as it is a
parody and that is legal.  He used that legal right to "violate"
copyright and produce art that is extremely popular (and has made a
decent quid out of it).

Just as Disney has used out of copyright "Beauty and the Beast", "Snow
White", "Sleeping Beauty" etc. etc. ad nauseam...

>          Lessig would have the Supreme Court extend this perversion
> of free speech to mean: free of any need to pay for the borrowing of
> someone else's greatest achievement: original thought. Or worse:
> free of any need sufficiently to digest that original thought so as
> to be able to put it into one's own words. Appropriating and
> parroting the creation of others is now, according to Lessig, "free
> speech."
>
Strawman.  You seem to be denying the whole morality of something like
"Harvard Lampoon".   You are denying the creativity in building on
other's works.  For parody or otherwise.

>          Lessig and his allies try to downplay what they are doing
> by making it an issue of finances. They say things like, "the
> copyright law used to restrict only big business, which is fine--but
> now it restricts anyone who has access to the Internet." "Only 2
> percent of works protected by copyright," they go on, "create a
> regular stream of income for their creators." Translation: only a
> small minority of "non-little" people will be hurt by repealing this
> law, so why not do it? This attack on money, success and big
> business--no doubt another symptom of the "Enron" era--is shameful
> and Marxist. How is the Court, as Lessig demands, to "balance the
> interests" of original thinkers against those for whom "creativity"
> consists of cannibalizing--and even vandalizing--the products of
> others' thought?
>
Another straw man, incomplete quotes, and even an interpretation.  I'm
afraid the methods of debate (you can't call it discussion or
argument) are not very creative, oh, and all of those methods were
created by someone else long, long ago.  Just as well there was no
copyright then.

>          The government is expected to argue--properly--that the
> Supreme Court cannot arbitrarily impose a definition of "limited
> times." In other words, the power to set an appropriate time period
> for copyright protection lies with Congress. Congress has clearly
> been reasonable in its exercise of that power.
>
Just as well Webster didn't copyright his dictionary or none of us
could afford to be literate.  There has to be some reasonable time,
and how long that time might be is going to differ depending on
culture and its rate of change.

>          The other main argument offered by supporters of the 1998
> law is that, in the long run, the law will promote creative work,
> and thus the national welfare, by offering higher profits to those
> who invest in it.  This argument--based on the "public good"
> standard--is intellectually bankrupt and doomed to failure.

Actually, no.  It is based on the notion of "public commons".  You
know, those little things, like the streets you walk on, the air you
breathe and the language you speak.

This issue is about what goes into the commons and when it gets there.
Too long a copyright can mean that things never get there at all,
they are lost before that happens.

> Opponents simply counter that more creativity will be fostered by
> allowing people to obtain and build upon existing works. Many
> "conservatives," such as Milton Friedman, use the same "public good"
> standard to argue that the incremental economic payoff provided by
> the 1998 law is not significant enough to encourage creativity.
>
What we can pass into the public commons represents the collective
wealth of humanity.  That which belongs to all.  It provides a
baseline, a  minimum that cannot be taken away.

The creator of any work builds it on a prexistent framework, the
letters, the words, the language, the style, the typewriter, the....

A creator should be recompensed for his creation so he is granted
copyright for a period of time in order that he may survive and
prosper.  But by utilising the prexistent framework mentioned above
he should repay the loan of that framework by contributing himself.

Or do not the followers of Rand beleive in repaying debts?

>          Anyone who raises the standard of the "public good" in this
> context had better be ready to have his rights in any field
>adjudicated according to the latest iteration of Jeremy Bentham's
> utilitarian calculus. In practice, this means according to the
> premises, preferences, and whims of the judge sitting before him.
>
There is a difference between "public good" and "public commons" and
it is the latter that is the point in this matter.  The "public
commons", borrowing from it and repaying the debt.  As such it is a
simple propertarian thing.  No moral calculus, utilitarian or
otherwise, is needed.

>          An artist or intellectual is often not only or even
> primarily concerned to reap the monetary benefits of his works; in
> addition, he wants to be sure that the integrity of the work is
> protected against mutilation as long as possible.

So, how *do* you feel about Austin Powers?

> This is especially true if the work conveys an important artistic or
> philosophic message. If those in the "digital liberties set" plan to
> have a field day with others' works of creative genius--bastardizing
> them into whatever fragments they find appealing, adding any
> distorting content they choose, then blasting the results all over
> the internet--what is the point of trying to convey to the world
> one's own vital viewpoint? What is the reward offered for trying
> painstakingly to create one's vision of truth or of the ideal
> universe, and to invite readers to share in it, if our nation's
> highest court gives Lessig's gang a formal sanction to practice
> intellectual vandalism on the finished product?

Seeing as the right of parody grants someone the ability to do all
that already, why are you asking such a loaded question in a context
where it is totally irrevevant?


Geoff Marshall

---

Date: Tue, 08 Oct 2002 17:05:41 +1000
From: Nathan Cochrane <ncochrane () theage fairfax com au>
Reply-To: ncochrane () theage fairfax com au
Organization: The Age newspaper

Hi Declan

Various forms of socialism -- lets not get into pedantics -- revolve around 
the notion of capital and ownership being vested with the state. In effect, 
a monopoly.

Capitalism, on the other hand, revolves around the pursuit of monopoly 
growing from the base of many competitors. The weak are winnowed out until 
there are only a couple of players and finally just one.

In effect, all capitalists aspire to socialism; ie monopoly control over 
the factors of production, backed by the power of the state through laws of 
coercion, police powers of enforcement and so on.

So it is odd the repeal of provisions in a pro-monopoly law, ie copyright, 
would be opposed by Rand as "Marxist". Was it Marxist when the free trade 
aspects of the law were diluted in the first place by adding extra years to 
the state-mandated monopoly?

---

Date: Tue, 8 Oct 2002 10:12:09 -0400
From: "Earl H. Merry" <early () eastcore net>
To: Declan McCullagh <declan () well com>
Cc: roundeye () roundeye net
Subject: Re: FC: Ayn Rand Institute denounces Eldred, Lessig as Marxists

1. The Ayn Rand institute is down-right creepy. Their faithful
promulgation of Objectivism is an oxymoronic weird-fest.

2. This "op-ed" is complete conclusory hack-job.

>
>         The government is expected to argue--properly--that the Supreme
> Court cannot arbitrarily impose a definition of "limited times." In
> other words, the power to set an appropriate time period for copyright
> protection lies with Congress. Congress has clearly been reasonable in
> its exercise of that power.

3. The Court can't reveiw Congressional interpretation of "Limited times"?
Cf. Marbury V. Madison. And making (forever - 1 day) == limited times is
on its face unreasonable. See remarks by Mary Bono:

http://ween.snell.clarkson.edu/ip/discuss/msgReader$25?mode=day

<snip>
"Sonny wanted the term of copyright protection to last forever," but
added, "I am informed by staff that such a change would violate the
Constitution." She proposed the change from 50 years past the creator's
death to life plus 70 years and noted that Jack Valenti, head of the
Motion Picture Association of America, had suggested a term of "forever
less one day."
</snip>

---

Date: Tue, 8 Oct 2002 07:41:23 -0700 (PDT)
From: Bryan Taylor <bryan_w_taylor () yahoo com>
Subject: Re: FC: Ayn Rand Institute denounces Eldred, Lessig as Marxists
To: declan () well com


I am completely baffled by the Ayn Rand Institute's position. I don't see how
copyright, whereby the government grants a monopoly, is consistent AT ALL with
objectivism. Ayn Rand may have enforced her copyrights, but she also enunciated
a philosophy that seems to me fundamentally inconsistent with intellectual
property. I would argue that a true objectivist would rely solely on
contractual negotiation to "secure" their copyrights, and that laws supporting
this, such as trade secret laws would be the favored legal framework. The
approach taken by the US Constitution is not this, is not objectivist, and IS
precisely the kind of thing objectivists should detest: a "public interest"
legal framework. If there is any Marxism present it is the fact that Copyright
exists in place of contract law.

The US Constitution correctly defines the philosophical foundation of
Copyright. For the public benefit, we endure limited monopolies granted to
authors and inventors. Because monopolies are inherently evil careful limits
are placed on those monopolies. Contrary to the assertions of the Ayn Rand
Institute Congress is NOT granted arbitrary power to set the term of copyright.
That power is limited by the words of the Constitution which grant the power.
It is preposterous to see a supposed objectivist advocating that the limits on
that grant of power be ignored.

Contrast the Constitutional framework, with protections for ordinary tangible
property (for which a true Natural Right exists). The objectivist reasoning for
allowing the protecting of tangible property (as opposed to "intellectual"
property) is that taking your stuff deprives you of the use of what is yours,
and thereby is an attack. That argument doesn't really apply to copyright, and
any mumbo jumbo handwaiving to get around this requires endorsing the idea that
government can grant "property" rights, and indeed monopoly rights, to any kind
of intangible thing it deems appropriate. Such power scares sane men and is
fundamentally not consistent with objectivism.

The Ayn Rand institute appears to advocate the "Sweat of the Brow" theory of
copyright, which has been totally rebuffed, refuted, and rejected by a
unanimous Supreme Court in the Feist decision. Their position has no support in
the law or in objectivist philosophy.






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