[ARSCLIST] Correspondence with Lawrence Lessig

[Frank Forman <fforman1@xxxxxxxxxxxxx>]

So does anyone know of an article that lays out the basics of copyrights
in old sound recordings?

---------- Forwarded message ----------
Date: Sun, 20 Jul 2003 20:19:50 -0500 (CDT)
From: Premise Checker <checker@xxxxxxxxxxxxxxxxxxxxxxxxxxxx>
To: Lawrence Lessig <lessig@xxxxxxxxx>
Subject: Re: COPYRIGHT, CONGRESS, DUE DILIGENCE, AND COASE

Thanks for your answer, and I'm going to send it to the ARSC list and my
own list of music lovers in hopes that someone can supply an article about
old recordings that will give you the basics. The _ARSC Journal_ regularly
features a column about copyright issues, but it is probably only a small
part of your larger concerns, however great it may loom in our minds.

I still protest the mere $1 fee and hope you replace it with $500 or
$1000. Here's why: a handy idea was described by the economist Thomas
Schelling in his _The Strategy of Conflict_ (Oxford UP, 1963) and that was
about how strategies could be coordinated in the absence of
communication. The idea is that if everyone chooses the same solution all
would get a prize. If they did not agree unanimously, no one
would. Schelling gave examples. Where to meet in the world? The North
Pole. When to meet during the day? Noon. When to meet during the
year? January 1st. Where to meet in New York City? His respondents
gravitated to Grand Central Station, but they were academics used to
travel to conferences. Where to meet in Washington, D.C. (my
question)? Alas, it could be the Capitol, the Washington Monument, or the
White House. Too many "obvious" choices, and I doubt the prize would be
collected.

You get the idea, but Schelling had another twist. If communication were
allowed, there is a good chance that the first proposal would become the
"Schelling point," as it was called by my former professor, Gordon
Tullock. Googling the phrase, you get 131 hits.

I strongly fear that the $1 figure would become a Schelling point and it
couldn't get raised. The big copyright holders would, of course, rather
not pay the $1, but as the pressure mounts up to revise the copyright law,
thanks in large part to your own efforts, they will be quite happy to
routinely send in $1 to renew everything they have the copyright to. It
would cost them much more than that to fill out each renewal form. Yale
University Press apparently did just that, as I mentioned in my article.

You lawyers! I worked from 1969 to the end in 1984 at the Civil
Aeronautics Board, and there was always a feud between the economists and
the lawyers, about a hundred each out of 800 total employees. I once joked
to the librarian there that she ought to throw out all those useless legal
books and replace them with useful economics books. She told me that the
lawyers told her to throw out all the useless economics books!

What I observed as an economist is that lawyers measure things by how many
legal arguments they could count up for and against a proposed course of
action. What I would do was to come up with dollar estimates of the
various pros and cons and thus assign numerical weights. I did this once
for a hearing to determine which carrier would be awarded a Miami-London
route and was grilled for three hours by airline lawyers, none of whom
contested my calculations. But afterwards when the CAB economists and
lawyers met to discuss what to do next, the lawyers did accept my results
but they padded them with additional legal arguments of their own. They
invented something like six more arguments of their own. Since there were
only three for the contrary, the lawyers, whose say was final, went with
my recommendation.

My point is that a $1000 reregistration fee would result in a very great
number of works entering the public domain, since copyright holders would
really have to think hard about whether there is any real prospect of an
old work ever generating that much profit. I contend, from rather casual
reasoning, to be sure, that very few older works would be reregistered.

But if you allow $1 to become a Schelling point, you may very well get
your one "camel's nose under the tent," but the $1 might stick. The
difference is that you lawyers count camels' noses, while we economists
count dollars.

No, I'm not claiming economists have it all over lawyers, for you would
agree with King Solomon, "Who can find a virtuous woman? for her price is
beyond rubies" (Proverbs 31:10), while hardly any economists would. I
hope, though, that my economist's insights may be of use.

Frank Forman

On 2003-07-17, Lawrence Lessig opined [message unchanged below]:

> Thanks for the email, and I apologize for the delay in responding.
>
> This is a fascinating issue which I have not followed as carefully as I
> should (though I do know of the Capitol decision). Is there a useful
article
> written about these old recordings? I think we might be able to get a
> legislative response to this.
>
> Re the  $1 fee: It is certainly low. But remember the camel's nose under
the
> tent. We need to establish the principle about copyright renewals. We
can
> then set the appropriate price.
>
> Thanks again, and I am sorry again for the delay in responding.
>
>
>
> On 6/27/03 8:04 AM, "Premise Checker"
<checker@xxxxxxxxxxxxxxxxxxxxxxxxxxxx>
> wrote:
>
> > Dear Mr. Lessig,
> >
> > I am a great fan of yours and I love what you said about throwing out
your
> > Ayn Rand books in _Code_. I am a Recovered Objectivist, owing in part
to
> > your quip.
> >
> > I belong to the Association of Recorded Sound Collections and am
keenly
> > interested in getting old records onto the web. I have a collection of
> > 1000-2000 cassettes I inherited from a Huron, South Dakota school
teacher
> > of most of the Victor and Columbia 78 rpm albums of classical music.
They
> > could quickly go onto the web were it not for a lack of Federal
preemption
> > of copyright in the 1976 revision. Lawyers can sue under the guise of
> > remaining State laws, common laws, and in some cases foreign laws. You
may
> > not be following this sideline of copyright laws, though it is of very
> > great concern to us lovers of old recordings. Perhaps you have heard
of
> > the recent Capitol vs. Naxos decision.
> >
> > I forwarded your plea on letting copyrights expire to my music
friends,
> > but I must protest the mere $1 fee in the strongest possible
> > terms. Publishers would routinely renew all copyrights, as apparently
> > happened with the case of Yale UP (see below). I would demand $1000
and
> > let it get compromised to $500 (or $500 down to $250, whichever seems
more
> > salealbe).
> >
> > I attach a piece I circulated to my arts and music list as well as to
the
> > list of the Association for Recorded Sound Collections. It's an
> > economist's piece, and we economists look at things differently than
> > lawyers. Please feel free to steal, modify, and adopt its ideas.
> >
> > And let me know that you have gotten this message, for I may not have
your
> > correct e-mail address.
> >
> > Sincerely,
> > Frank Forman
> >
> > COPYRIGHT, CONGRESS, DUE DILIGENCE, AND COASE
> > by Frank Forman
> > checker@xxxxxxxxxxxxxxxxxxxxxxx
> > [I place this in the public domain, so use freely as you
> > see fit. I would like, however, suggestions about who to
> > send it to or where I might publish it. My main aim is
> > to get others to steal my ideas about a way of making
> > a compromise between academics and other scholars and
> > business interests.]
> >
> > Congress should amend the copyright act to allow anyone
> > to reprint an old book if a decent effort to track down
> > the copyright holder turns up blank or to pay only a
> > nominal amount if the book hasn't been in print for a
> > long time. Once the book, or article, or sound
> > recording, or whatever, goes back into print in this
> > way, it should forever remain the public domain.
> >
> > This should keep the big boys--Disney, Playboy, the big
> > publishers--reasonably happy, and all the little
> > people, like scholars, should be happy too. Article I,
> > Section 8, Clause 8 of the Constitution authorizes
> > Congress "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 and I might naively
> > think that this means that a judicious balance will be
> > struck about just how long these limited times are, and
> > those of us with business calculators know that there
> > is very little difference between an annuity that pays
> > out for fifty, even twenty, years and one that pays out
> > forever. Copyrights should not last for very long,
> > twenty years being my somewhat educated guess.
> >
> > But in a democracy (rule by rent-seeking pressure
> > groups), this judicious balance is not struck, and the
> > reason is that those who stand to gain, however
> > slightly, from long copyrights are concentrated, while
> > those who stand to benefit from shorter ones are
> > diffused. The only way to strike an actual balance is
> > to have experts rule or to change human nature so that
> > politicians follow an abstract public interest rather
> > than trying to get reelected. We've tried the both with
> > unhappy results.
> >
> > I see no prospect that the big publishers are going to
> > start acting in the interests of scholars, but those
> > who would like to revive old, forgotten books are
> > getting organized. Politicians need their votes, too.
> > Hence, the compromise I have proposed. I can't work out
> > the details of what a decent effort (called "due
> > diligence" by regulators) to track down a copyright
> > holder would be, nor to specify what the other terms of
> > the compromise might mean. Spelling these out will be
> > the job, not so much for Congress as for the U.S.
> > Copyright Office, whose staff numbers over 400 but does
> > not include a single economist, so Marybeth Peters,
> > then and now the charming Register of Copyrights, told
> > me at a convention of the Association for Recorded
> > Sound Collections several years ago.
> >
> > I *am* an economist, and I'm here to propose something
> > more than just a compromise. This takes us to the Coase
> > of my title, specifically to Ronald Coase and "The
> > Problem of Social Cost," which is the most widely cited
> > paper both in economics journals and in legal journals.
> > It came out in 1960 in a journal called, not very
> > surprisingly, the _Journal of Law *and* Economics_. It
> > is so well written that you do not need a single course
> > in either field to understand it. It is a pleasure to
> > read, too, and I recommend it. It has been reprinted in
> > a Coase anthology _The Firm, the Market, and the Law_.
> >
> > Coase says, with the terribly important qualifier *in
> > the absence of transaction costs* (the whole point of
> > my writing here, but later), that it makes no
> > difference in behavior how property rights are drawn
> > up. Coase's famous illustration is the case of a
> > railroad scattering sparks along the tracks as it sped
> > through farmland, occasionally causing fires. Who's to
> > pay? If the railroad is liable, it can either pay for
> > the fires or put devices on its locomotives to prevent
> > the fires. Whether the fires are so rare that it
> > doesn't pay to install the devices is up to the folks
> > on the railroads to decide.
> >
> > On the other hand, if the railroads are not liable and
> > if the safety devices are economical, then the farmers
> > should get together and pay the railroads to install
> > the devices. Coase's point is that the pure economics
> > of the situation, not where the liability lies, is all
> > that matters, though of course the railroads would
> > rather not be liable and the farmers wish they were.
> >
> > The practical difficulties of protecting farms from
> > sparks, when there is no liability on the part of the
> > railroads, are immediately obvious: the farmers would
> > have to get organized so that they all paid and each
> > farmer didn't expect the other farmers to pay and not
> > he. In other words, what we economists call the
> > "transaction costs" involved in organizing the farmers
> > would be prohibitive. And so they often are, in finding
> > the copyright holders of a book that has long since
> > ceased to make anyone money but is still legally under
> > copyright protection. I know someone who wanted to put
> > Henry Veatch's _Intentional Logic_ up on her website.
> > It was copyrighted in 1952. She wanted to know if Yale
> > University Press had renewed its copyright, for
> > otherwise it would now be in the public domain. She
> > wrote the press, and they did not bother to reply. She
> > asked me to check at the Library of Congress. I hiked
> > up there, a mile or so up Capitol Hill on my lunch
> > hour, to a huge room in the Madison Building. It was
> > between Christmas and New Year's with hardly anyone
> > there, so I got immediate help and was taken over to
> > the correct bank of 3x5 file cabinets, which I could
> > never have found on my own, and shown what the markings
> > on those cards meant.
> >
> > Anyone further afield would have had to pay the Library
> > of Congress to do the search, and you know that you
> > always have to pay for the minimum of an hour. It would
> > take the obligatory "six to eight weeks," too. As it
> > happened, Yale had sent in the forms and paid the fees
> > to get the copyright extended for the second term of
> > twenty-eight years. Apparently Yale did so for all its
> > books.
> >
> > Most books did not get their copyrights renewed under
> > the old system of twenty-eight years plus twenty-eight
> > years renewable (it was fourteen plus fourteen in
> > 1790), and this would still be true of most books
> > today.
> >
> > Veatch's book was an easy case. Publishers go out of
> > business. Individual copyright owners die, oftentimes
> > without wills. Copyrights can be sold, with the Library
> > of Congress never finding out. All this can be
> > difficult to track down. And if Yale University Press
> > won't bother to answer a simple inquiry, you can bet on
> > the difficulties elsewhere.
> >
> > Worse, and even if Yale did answer the inquiry, there
> > are a great many people in this world whose job it is
> > to say no. Or to charge you a minimum of $250 (like the
> > infamous Nieman-Marcus cookie recipe. Since the
> > Waldorf-Astoria hotel allegedly did the same thing in
> > the 1930s for its Red Velvet Cake, both stories are
> > likely bogus. Google nieman waldorf recipe). It was
> > just not worth it to her to pay out $250 for the
> > privilege of scanning in the book and putting it on her
> > site.
> >
> > Apparently some people like this book. My friend did,
> > and one copy was recently offered on
> > http://www.bookfinder.com for $350. Personally, I'd
> > rather have the cookie recipe and $100 in change (one
> > old man's rant--the Veatch book to me--is another man's
> > freedom fighter). Not enough people thought the book
> > was worth even the cover price to keep it in print.
> > Yale, I am sure, has no intention of reprinting it.
> >
> > The transaction costs for what is of little or no
> > economic value are too great. You have to find the
> > current copyright holder, who may not bother to
> > respond, or say no, or charge $250. The costs being too
> > great, the Coase theorem, which says it doesn't matter
> > who owns the copyright in the *absence* of these
> > transaction costs, does not hold. It does matter, and
> > it matters more than just the political transfer of a
> > rights from one pocket (the public with its stake in
> > having works enter the *public* domain) into another
> > (the publishers). It means that the "Progress of
> > Science and useful Arts" is being hampered and not
> > promoted, since books that would have are not getting a
> > second life.
> >
> > What to do? Let anyone reprint an old book, old meaning
> > twenty years, provided he determines that the book is
> > no longer in print. If the book is younger than that
> > and not in print, he must conduct a "due diligence"
> > search to track down the current copyright owners. He
> > must ask the publisher, and the publisher must respond.
> > If the publisher has vanished, he must make a
> > "diligent" effort to find out who bought out the
> > publisher. He must not have to pay $200 to have someone
> > else do the search for him. If the book is younger than
> > twenty years and the copyright holder says no or wants
> > $250 and that's too much, it's just too bad. Our would-
> > be reprinter has to wait out the twenty years to see if
> > the book is still in print. And in print means selling
> > a certain number of copies, not just being printable on
> > demand for an outrageous sum. (We'd better get moving
> > here, before on-demand publishers start hiring
> > lobbyists.)
> >
> > Finally, in the case of free-lance articles in
> > magazines and newspapers, I'd allow the editor to keep
> > the article on the website if he fails to track down
> > the author after a diligent search, after five years.
> > We've all got to keep moving. I might prefer that all
> > newspaper articles enter the public domain after ten
> > years, but that won't happen. Publishers are indeed too
> > organized, but they have transaction costs, too, and
> > should be allowed to keep free-lance articles on their
> > sites.
> >
> > Lot's of controversy here: I myself don't want anyone
> > using the copyright laws to keep embarrassing things
> > out of the public domain. (I can't decide about J.D.
> > Salinger's letters.) Information does want to be free,
> > but it also has to be paid for, which is why there is a
> > copyright law in the first place. We all know how
> > organized publishers are, but academics and others are
> > getting organized too. The converse of the Coase
> > theorem--in the *presence* of heavy transaction costs,
> > it matters greatly how the copyrights are drawn up--
> > makes the case for letting low value books go back into
> > the public domain cheaply.
> >
> > ----------------------
> > Frank Forman is an economist at the U.S. Department of
> > Education, is speaking on his own, and is the author of
> > _The Metaphysics of Liberty_ (Dordrecht: Kluwer
> > Academic, 1989).
> >
> >
>
>
> -----
> Lessig
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