Jambe's Wormhole Primer

John Walker recently wrote an editorial about copyright at his video game blog in which he had the temerity to suggest that maybe copyright should expire after perhaps twenty or thirty years instead of the status quo (which is life of author plus seventy years in the US). Steve Gaynor of the Fullbright Company wrote a response at Gamasutra . I disagree with Gaynor's take.

Gaynor didn't support a specific copyright term. Perhaps he favors the status quo? This is not made clear. The only notable, concrete claim made in support of copyright greater than 20-30 years is that artists and/or managers may use profit from past work to create new work. This is a positive and plausible byproduct of copyright law and enforcement, but I have two concerns:

1. I don't think copyright law should be concerned with how right holders dispense their profits (they can spend on employee wages, new development kit, old medical bills, fireworks, Ferraris, blow, etc).

2. I don't see how any specific copyright term (long or short) is supported by this reasoning or by anything else Gaynor said.

That second concern is, in a nutshell, my response to the article. To preemptively summarize: I see that Gaynor cares about this topic, but I fail to see meaningful links between his article and the proper term of copyright (whatever it may be). In lieu of more lengthy writing about arbitrary numbers alongside ambiguously-relevant PassionRhetoric©, have some studies (pdf):

The first study finds an optimal copyright term of 15 years with a 99% confidence interval up to 38. From the second:

“Our study suggests that when lawmakers consider whether to expand copyright law, there is little empirical or theoretical support for the position that increasing copyright protection will increase the number of new works created. Based upon the historic data, the most that can be expected is a 38 percent chance that the new law will be associated with an increase in the number of new registrations for some unknown category of work. In contrast, lawmakers are more likely to find a relationship between an increase in the number of new works and those laws that reduce or otherwise limit copyright protection, and even then the relationship is far from guaranteed. Expecting a legal change to increase the number of new copyrighted works is akin to shooting a gun with both live ammunition and blanks at targets moving in the dark. You will occasionally hit a target, but you will not know when this will happen or which target you will hit. Population size, not law, is uniformly and consistently the best predictor of the number of new works produced.”

So yes, copyright should last a million jillion years! Here's a commentated summation of Gaynor's post:

¶1-3: John Walker et al. are talking about proper copyright terms; Walker thinks 20 years is good. I don't.
¶4: Artists/managers may use profit from old art to engender new art. Profiting from art is a gamble.
¶5: Making lots of money via art at all is rare, and extended profitability is probably rarer still.
¶6: Restatement of ¶4 in the form of an anecdote about a Washingtonian record label.
¶7: Restatement of ¶4 this time with “devs need to be paid” and “money needs to come from somewhere”.

I find everything in 4-7 agreeable.

¶8: Cormac McCarthy should retain copyright to Blood Meridian (1985) for longer than 20 years because 1) he made The Road in 2006 and 2) his publisher used profits from McCarthy's novels to publish other authors.

I strongly disagree with the first clause, though not the veracity of the justifications (they seem irrelevant). Firstly, I don't think McCarthy was incapable of supporting himself in the interim (note that Gaynor only implies he couldn't). Secondly, if his publisher isn't a cabal of cretins, they too should be able to support their business on the merit of their representation, clientele and track record, all of which publishers managed to cultivate when copyright terms were markedly shorter.

¶9: Walker's analogies between game development jobs and workman jobs is “asinine” because the jobs are different (one is a continuous series of localized jobs with fairly-reliable localized pay and the other is a gamble in which the product of a long, expensive development is heaved upon the Public Sea with Hope billowing its sails). Walker “patronizingly simplifies” these differences.

I agree that they're different in the way Gaynor explicates; I wonder how Walker would have drawn an analogy at all were they not. I didn't find anything “patronizing" about Walker's comparison or simplification. I could read paras 4-7 of Gaynor's article as patronizing and banal, but I didn't; I just think he cares about the topic and tried to relate his position as best he could (ditto Walker).

¶10: I'm happy to support good art, both directly and indirectly. I want to make money off of Gone Home for more than just 20 years (if it's feasible) so I can make new stuff, pay others for working with me, etc.

Surely all non-shit folk like to support good work, arty or otherwise. As to the twenty years stuff: it assumes 1) Gaynor will have spent/lost all the money he made from Gone Home in those twenty years and 2) he'll be unable to make money from Gone Home post-expiration. The first may or may not come to pass, but the second is untrue. Copyright expiration wouldn't magically remove Gone Home from digital storefronts, and people could have trivially pirated his game the whole while.

Furthermore, as I indicated above, I'd think something was amiss with Gaynor as a developer and/or manager were he unable to support new projects in the interim. People who hit it big and then do nothing else (and/or produce a string of failures) have no inherent right to state support in new creative endeavors, especially not indirectly through the vagaries of the copyright system. They do have a right to seek unconventional funding or new occupations; indeed many artists have "real jobs", as they often define them (though I think they usually do both themselves and "real jobbers" a disservice with such language).

¶11: [direct quote] “John's article doesn't differentiate between “ideas” and the work itself. Copyright protects the work itself: the actual film or record or game based on the intellectual property (ie the specific game called “Gone Home,” vs. the title, characters, setting, etc. of Gone Home.) This is why anyone can (and seemingly does) make a movie/game/TV show/etc. based on and called Alice in Wonderland and starring Alice and the White Rabbit and the Queen of Hearts etc. etc., but Disney can still claim exclusive copyright to the Tim Burton film created in recent years-- to the work, the film itself inspired by the ideas-- not to the ideas themselves.”

The rest of ¶11 is iteration on this untruth. The claim that copyright is not about the ideas is strange and incoherent. The game “Gone Home” literally is “the title, characters, setting, etc of Gone Home”. What else could it be? I don't think esoteric philosophical talk is necessary here; this strikes me as a patently fallacious non-distinction.

As to the Alice in Wonderland anecdote: Disney's ability to use “Alice in Wonderland” and all its characters has nothing to do with a fluffy non-division between “ideas” and “works” and everything to do with the fact that its copyright expired in 1907. If Carroll had written Alice's Adventures in Wonderland in the America of 1924 instead of the England of 1865, Disney's 2010 adaptation attempt would've been shitcanned (if they hadn't bought the rights).

¶12: Restatement of ¶4 with “inspiration/perspiration” angle. Restatement of ¶12's fallacious division, equating ideas to inspiration and work to perspiration.

This is a straightforward analogy but it doesn't render Gaynor's ad hoc division of ideas from work coherent, nor is it intelligibly pertinent to copyright (either de jure or de facto). The last two sentences highlight the strangeness of the work/idea split:

“That 1%-- the idea that inspired the work, that might be an inspiration for other new works (that themselves would need to be funded)-- perhaps that's what feels more appropriate to enter the public domain on a shorter timescale. Because frankly I would love to make a System Shock sequel, but no way am I negotiating the rights for that.”

How would a copyright enforcement system allow the System Shock sequel of Gaynor's dreams while still protecting the original in any meaningful sense? Either Gaynor can make a spiritual successor (i.e. alter all the words and phrases of contention, use all-new assets, etc, and do more than simply clone the game) or he can do nothing.

Surely that's the point of copyright (that is to say, the proper point): it means one owns the thing itself in its entirety with naught but limited, explicit exceptions. If I want to make a movie out of a copyrighted Cormac McCarthy novel, for example, I must get license from McCarthy. I can't just crib all his names and ideas wholesale, call the result a “filmic pastiche” and expect to get away with it.

~ Jambe, February 6th, 2014 (contact me at jambeeno @ the gmail)