The Future of Copyright and IP: Part 2

from our listener Dave. So if you haven't heard part one of this discussion, go back to our last podcast, listen to that episode, then come back and dive right into this one because it's in medias race. Y'all. That

is correct. But let's talk a little bit about alternatives to this copyright just the if we If you're an artist and you want to create a work, and you want to have some protection of your work, but you also want people to be able and and feel um uh, they feel like they can totally take that work and tweak it in some way, make something new, rather than attaching a letter of intent to every single piece of thing that you create. Yeah, what do you do? Well?

One thing you could do is use something like a public copyright license, which is a way for original authors to grant copyright permissions under specific conditions, depending upon whatever the license says. And there are a lot of different types out there, but the most famous would be the

Creative Commons license. And uh this came about because there were a group of people who are saying, you know, I want to create a way for creators to be able to put their works out and have that peace of mind, but also to encourage creativity in the community. So not just be um, you know, a black and white, don't use my stuff. It is guarded for my entire lifetime plus another seventy years. Uh. So copyright doesn't really have that flexibility right there. There aren't grades of copyright,

so you have to create these licenses. And licensing is one of those things that most people don't have, you know, the the ability to do You need lawyers in there, and it's just one of those things where if you are an individual artist, you might feel like you don't have a means of doing this. That's where Creative Commons came in, not for profit organization that did this work on the behalf of artists, so that artists can then use these licenses free of charge and to find how

their work may or may not be used. The organization itself was founded in two thousand one and released its first set of licenses in two thousand two, which was version one point Oh. They revised those licenses over time, and here are some of the Actually, here are the six main ones. Uh So, here are the six main types of Creative Commons license. The c C B Y License, which allows others to use your original work as they see fit, even for commercial purposes, as long as they

attribute you for the original creation. So this is their widest like that, like the one that has the most leniency. Right. So if I create something and Joe, you're you think I'm going to remix that work and then I'm gonna end up selling it on you know, some music site, you can totally do that under this license. There's nothing preventing you from doing it, and I've given you permission through that license, even if even though my original work

is technically under copyright. Though I would think a question might be, how do I attribute you? Well, like, can I do it in some little piece of fine print somewhere or do I need to Technically it depends, but I mean, yes, you could like for something like a song, it tends to be within the data, like the meta data for the song. Um, you wouldn't have to have an announcement before the song starts. Like I remixed this song by Jonathan Strickland and it was cool, but I

made it cooler enjoy. You wouldn't have to do that. Yeah, there are specific rules, and these are the basics of creative There are very specific rules laid out on their website exactly. Uh. Next is the c C B y dash s A, which lets other others build on your work like the one I just mentioned, even for commercial use, but those who do also must abide by the same agreement.

So that means that I would grant Joe the permission to remix my work, but as part of that agreement, Joe also has to license it under this same type of Creative Commons licenses, so that I could take Joe's work and transform it into my own exactly, and you would have to continue to agree. So this is supposed to be to to foster creativity and sharing, the pay it forward. Yeah, and Wikipedia operates under this particular Creative

Commons license. Next, you have the B Y dash in D Creative Commons License, which allows for redistribution for commercial and non commercial use, but the work cannot be changed in any way and must remain whole with credit to the original author. So you could freely distrib tribute this work, but you couldn't chop it up. You couldn't remix it. You couldn't you had you would have to, you know,

keep credit to the original creator of the work. By dash in C allows for non commercial tweaking and building upon an original work with credit to the original author. So you could do you could, you know, remix something to your heart's content, but you couldn't sell it. You couldn't make money from it. You couldn't generate revenue that way. Uh. B y dash in C D s A is the same as above, only now all new creations must be licensed under those exact terms. So it's similar to what

we were talking about before non commercial use. I create something, Joe creates a remix, he has it under that same licensed Lauren creates a remix. None neither Joe nor Lauren can sell their stuff. I could technically sell mine, but you couldn't sell the remixes of mine. Um then you have b y in C, which lets other's remix and build upon your work, but only for non commercial use, and also acknowledge the average an owner. So uh, those

are the six main types. There's also the ability to put work directly into the public domain, which is kind of cool. You do have to fill out some paperwork so that it acknowledges that you have relinquished ownership any rights to write. So the idea here is again to give artists the ability some options, you know, as opposed to just either full protection or you don't pursue any protection.

You need to have some leniency in there so that you can you can foster creativity, but under the terms that you feel comfortable with, so that you can still make money if that's what you're choosing to do with whatever, you know, whatever your work happens to be. So right now, and we're gonna look into the future of copyright, but right now, if nothing changes, the Steamboat Willie version of Mickey Mouse will enter the public domain in twenty twenty three.

But that's not going to happen, probably not, yeah, because that's creeping up, yeah, coming up pretty quickly. I want to imagine there are already some serious talks behind closed doors whether at corporations or Congress or both, about extending copyright protection even further than it has already been extended. Well, you know, Walt Disney's head and you know under the parts of the Caribbean Ride probably has something to say

about it. Right, we watched too much Futurama. But yeah, so this is where we get into that that issue. You know what, I think, I think all of us agree that the creator of a work should at least be allowed for the expectation of generating revenue from that work in some way. Um, whether they pursue it or not is beside the point. They should at least have

that expectation that that is an option. But there's this balance between protecting that artist or owner and protecting the public and other artists who could enhance that work or or or use that work in some other means, some other transformative means without fear of being sued to the

ends of the earth and back. And now that we have these corporations in place, and the corporations, like we said, don't die of old age, they have every incentive to keep pushing that copyright limit until it's at truly ridiculous lengths. Some would argue that we're already there. Of the life of the commuter. In seventy years is a long time. You still can't sing the song happy Birthday without technically yeah, yeah, so that's, um, we won't be doing that today. Luckily

it's no one's birthday. It's no one's birthday right now. Happy happy happy happy happy happy happy happy happy happy happy.

That's that's about as close as we're gonna get. So. Um yes, So, I'm guessing that we're going to see this content in you, and we're also going to see more resistance, but it's probably gonna be on the sort of independent artist side, where you have artists who don't want to pursue this same pathway that corporations are pursuing, and yet still need to make a living so that they can continue to make art. Um. So, I think we're going to continue to see those those public uh

copyright licenses being pushed. But um, but this is this is tricky. I think we're gonna I think we're gonna just keep seeing actual official copyright law get more intant. Yeah. Now, Joe, before we recorded this podcast, we were just kind of talking over ideas. You brought up an interesting kind of sci fi idea about one element of copyright. What was that? Oh, well, it's this idea of fixed and the tangible medium. You

remember that from earlier on. So your work, if you want to claim copyright on it has to be fixed in a tangible medium. You have to write it down or recorded. If it's music, it can't just be something that was ephemeral and can no longer be accessed, like a thought or an improvisational performance that wasn't recorded or

something like that. It can, however, be something that's you know, written down on uh in computer memory, which some people would argue doesn't seem terribly tangible because it feels like it's ethereal, but in fact it actually is tangible. Sure. Well, that's one way in which we've extended the ways in which fixed in the tangible medium can apply to new types of things. So, now that we have recording equipment, electronic recording equipment, you can record performances of music that

might have been improvised on the spot. Sure, you know. Sure, if you if you want that a half hour jam session from Dave Matthews band, then they can copyright that. Yeah, and even you can even copyright a performance of a work that otherwise was in public domain. Yeah. Uh. And so by by adding this new technological recording capability, we're covering more of the types of works you can create under copyright. And I wonder how far that can go.

I mean number one, I just wonder about Okay, So, if we're recording more and more of our lives, if recording media become super pervasive they already are very pervasive, how much more of the ephemera of our lives can be copyrighted and claimed as art? Can you know, if you're just recording all the conversations you have with your friends,

can copyright conversation? Yeah? If you're recording all the humming you do, just random humming while you're walking around, If someday later you hear a song, You're like, that sounds like something I hummed, and you can go back and find it narrate in song what I'm doing a lot as everyone around the off yesterday. Yeah yeah. Yeah. So so I mean like, like, is my great hit um going to the Refrigerator going to be a breakaway pop

thing next year? Well, just with the threat you could have even more of a chilling effect on the creation of new works. If there's just more and more out there all the time that somebody could raise an issue with it, like, hey, this sounds like something that I created once and didn't ever plan on doing anything with um. And then if we want to get even weirder, what if we think about the ability to scan our brains.

I mean, obviously, right now we don't have the ability to scan your brain with an e g. And say, Okay, you're thinking of a yellow house on a coastline by a tree, but the fact that you are having that thought is in some way physical, And we could imagine in the future that there might be ways that you could detect the contents of somebody's thoughts by scanning their brain.

Your brain is a tangible medium, right, and so at that point, is a recorded brain scan of an idea of something that's fixed in tangible media, Well, the recording would be, but I would argue the memory itself is not fixed and tangible. It is tangible but not fixed. But scanning would be fixed, but not the idea. That is true because memories change all the time. That's right. Every time we remember, we're just retrying, We're trying to rebuild that original neural pathway that was formed upon the

creation of that memory. But every time we remember, we alter that a little bit. So therefore the memory itself cannot be fixed, but the scan itself could be. So then you would argue, well, the scans protected, but does that protection extend to whatever the idea was, and if it were was a specific idea, but then you went and wrote something else down that would technically be a transformative work because it wouldn't be exactly the way you thought of it when you created it. Would you have

to sue your own brain. I've often thought about suing my own brain, to be honest, there have been thought. It's particularly whenever I'm feeling really good about myself and then my brain digs up that memory of when I did something really terrible in elementary school and says, you're really a terrible person. You should remember that. Yeah, that happens. That's not a joke. Yeah, that's a good times brain. Thanks brain. But we've got a couple of other interesting

points that Dave brought up right. Uh, yeah, he asked in his email about fan created derivative works like fan fiction and stuff like that. Very good point. Yeah, yeah, there's there and there's actually a lot of conversation around this going on, or some conversation at the very least, because the Internet has allowed people to consume more and also to comment more. Yeah, you know, we see a lot of this development happened as technology a els for

more expression. Right. The printing press obviously was one of those things that was going to push forward this concept because suddenly there was the capacity to copy works on a on a much larger scale than previous previously. And now we've gotten to a point where it is much easier to create a derivative work and distribute it globally. Yeah, yeah, right, rather than just you know, writing a story and passing

it around in class or something like that. Yeah. And another thing is that we are living in an age where fan fiction and these kinds of derivative works actually can become big money makers. It's not just something that's taking place for fun on the side. Like think about though, I hate to introduce it to the world of this podcast. Fifty Shades of Gray. It's an erotic novel series that apparently began as Twilight fan fiction, and they're releasing the

movie on Valentine's Day. How messed up? Is that. Alright, well, let's not get into this movie. But anyway, this is this is fan fiction that became a huge money maker originally fan fiction at least. Yes, yeah, it was deemed transformative enough that as long as the author changed the names, it was totally ligit um. But I mean, you can

see why people would be concerned about this. Oh, absolutely well, I mean, and and the concern goes back to basically the time at which more people were getting access to the Internet, back in the nineties and two thousand's, huge corporations like Fox and Warner Brothers and Lucasfilm started sending out cease and desists and sometimes pursued greater actions against fan websites, which sounds so crazy when you say it

out loud, but but it was. But it was especially the kind of websites that were either operating under r l's that they wanted Star Wars fan dot com or something like that, it's something like that, or um Harry Potter World dot CEO dot uk um and and fans that were posting what these corporations deemed to be too much of their content. Um. Now, in general, companies have act off of lawsuits like this as long as fans

have shown that they're not operating for profit. Well, and I mean obviously it's a it's a risky pr move to make, to to to go against your fan base, the people who are the most passionate supporters of your work, and then to say, uh, don't use the stuff you love it. But they do it, I mean, you know, yeah, yeah, a lot of the businesses behind beloved media these days don't really seem to care very much if the fans end up hating them. I mean, you could say the

same thing about like DRM and stuff. There are just lots of companies. They're making media that people love, they're taking tactics that people don't like, but where else they go to. These corporations are also huge, and so it can always be that there are certain departments that are working with very different directives than other departments. Oh. Absolutely, I imagine that a lot of actual, say, recording artists are not necessarily fans of DRM rules stuff and things.

There's another element to this Internet world, right, engagement. Oh yeah, well, okay, so it's it's all really complex because because you know, okay, fans are gaining access to two more media and two

more online communities than encourage participation in that media. Um, not just consumption but actual participation and so and and like you were saying, Jonathan, like, it's kind of free marketing for the media, so they should like it, right, But it's also uncontrollable, which makes a lot of big

corporations really twitchy. Um and and furthermore, you know that the consumer creators are using for profit web spaces to post and access this content, which means that third parties like Facebook and Tumbler and YouTube are profiting from this fan creation process. And in some cases, like YouTube, the fan can be profiting indirectly through ad revenue, and in some cases the third party can claim some ownership of

the fans works depending on those terms of service. Right. So, in your YouTube example, let's say that I create a YouTube video that is deemed by the original owner of the work that I have incorporated in my video to be uh, you know, not transformative or derivative or whatever. They're not going to pursue legal action. They instead go through YouTube. YouTube actually allows for the owner of the original work to to gather the revenue generated by that

the one that I created. So if I create, if I create something that pulls a ton of video from Star Wars as an example, from the new Star Wars trailer for sure. And let's say that my video is not appreciably that much longer than the trailer, and the trailer takes up a good deal of my video, then it could very well be that if I decided to run an ad in front of it instead of taking it down, instead of blocking me, the the owner says, all right, well, just any revenue that that video generates,

send it to me instead. And I can totally do that, you know. So um, and I think a lot of us would argue that's depending upon the the extent of that use, that might be kind of fair to the kind of the best of all possible tricky, sticky situations,

better than getting sued. Yeah, there's another aspect to this that is interesting in theory, and I don't want to be too explicit about what I mean, but there are certain types of perhaps transformative works that could take somebody's intellectual property and do something new with it in a way that the original creator really might not like on a purely thematic level. You're talking slash vick, yeah, mainly, Yeah,

stuff like that. Okay, So imagine I write a series of stories online that are about I don't know, Darth Vader and Boba Fette being lovers, and I end up making a good bit of money with this by by selling it independently, like on your donations maybe or sure, Okay, what what does Lucasfilm have to say about that? I'm

pretty sure they're going to send you a cease and desists. Yeah, well, if I mean and and the key is if you're making money off of it, and that that's really the key to any of this is is that I mean kind of the rule of thumb is that if you're not profiting from it, most companies won't go after you. They just sort of they they assume that the effort of doing so is greater than any benefit they stand to in the case of getting you to stop doing

what you're doing. Hum if it's something that ends up being like you know, it's it's again fostering the community, they may think, well, that's not really where we're never going to go in that direction. We're never going to create anything officially that's in that same vein, because that's not what what this this universe or story is about. From our perspective as the owners of that intellectual property. But we're also not going to stop people from doing it.

Because there's no actual harm done to the brand or whatever it may be, then chances are nothing's going to happen. Yeah.

And in general, in fact, from from having kind of listened in on conversations that that authors were having on the on the internet, a lot of authors these days, uh, stay as far away from fan fiction of their works as possible, because if they do read something in a fan work and wind up incorporating any element of that into a later work of their own, they have violated copyright. They can transversely violate copyright exactly yea, even though they

created the work that was transformed. If they copy the transformed work, that's a violational copyright. Um. So yeah, do not send your ideas for the Dresden Files, for example,

into Jim Butcher, because he'll just dislike you. This is the same reason why if you ever create, you want to write a script on spec for a television series, it might be a better idea to send a script for a different TV series to that creative team to show you what show them what you're writing skills are like and how you put a story together, because most of those companies won't even look at an onspec script for their series for fear of that very thing happening.

Yeah yeah, um if if you want to learn more about this general topic of of fan created works, a guy named Henry Jenkins has written a whole lot about it um and and has really interesting savvy things to say, so I recommend looking him up if you're curious about it. Cool. So, one of the things we wanted to wrap up with is what what would happen? What wouldn't be interesting if somehow there could be a monumental shift in the government's

view of the value of copyright. What if we were to see an over correction or maybe just a correction, depending upon your point of view. Sure the Corporation is considered this an over correction, but a correction to move it back toward more what it was originally intended to be, a fourteen year period of protect Uh. I Well, I could be convinced otherwise if somebody had a really good argument they wanted to offer me. But I think that would be a much better situation even just the original

fourteen years. And that's it. I think it seems like that's enough. I mean, if your work is successful, you can make a decent amount of money off of it. In fourteen years, that seems to me a totally reasonable amount of time for something to be protected by copyright. Well, it's I could also I could argue, you know, if you're vain going it and you really don't hit popularity

until very late in your life, if not at all. Um, maybe in that case there could even be some kind of clause of some kind, like like how many billions of dollars? Uh, you know, if you hit a cap of how much this artwork is worth? Right? Maybe? I mean it's it's harder with art. It's harder with pieces of art, because that's the one thing that you can

sell or prints of that thing. Obviously, if people are making prints of it, that would be different because if it's out of the copyright, everyone can make a print of that work. Then you wouldn't see any revenue from it. If it is already past that fourteen years, well, I mean you can still see revenue from something that people have made prince of that's certainly not well, if it's out of copyright, they can make print of it themselves.

And not pay you anything. Well, yeah, but the original artwork there that we we we've argued about this before actually on the show. The the original van Go is obviously worth more than a print of it because there's magical properties involved in But the original van Go painting will only be sold by the owner once and then it's over. So if you've created this original work before you made it famous, and you sold it for a pittance because you hadn't yet made your name, sucks to

be you. Yeah, That's that's the way life works, baby, is the way the way I look at that. So I actually wouldn't mind seeing this return either to that. I mean, as someone who creates stuff, I obviously see the value again of having that protection. But I I also don't think it necessarily needs to last my entire lifetime plus seventy years. Yeah. Well, working in the space

we do, we can see it from both sides. I mean, we would like to be able to, you know, not just rip people off, but to fairly use works without having to worry about hor somebody going to try to sue us. If yeah, if I had sung happy Birthday, Heaven forbid on this podcast, would they sue us? And I think the answers, Yes, yeah, you want to be able to avoid that kind of chilling effect. But at the same time, you do want to have your works protected for a reasonable amount of time that you can

make revenue on. Uh, fourteen years seems to me like a good balance. Twenty eight years if you want to be more generous, how could how could you need it to be longer than twenty eight years? Yeah, I would agree with I would agree with twenty eight years. I I'm thinking that if I ever created something that was actually worth money, how would I feel about that? Again, where of course, we are looking at this from the perspective of individuals and not of a giant corporation that, oh,

she's going to exist perpetually without us. That our job here? What would the corporations want? What would they feel? Not so much, not so much that's our job, but something that is a consideration. Like if you sit there and think, all right, if I had formed this corporation and the purpose of the corporation is to make money, and way of making money is to protect your assets, then you start to understand why certain decisions are being pushed for.

It doesn't mean you have to agree with them, but you understand why they should create some more art. I agree, I not just tride on steamboat Willie's coat tails forever. One last point and we and we've talked a little bit about this before in our three D printing related episodes. I think way back when um so technology keeps making pirrating or sharing depending on what side of the argument

you're on, easier. So do you guys think that media corporations are ever going to catch up to the distribution speed that fans these days require and expect. Well, I think I think they'll. I think they'll catch up, but they'll only catch up to the you know, the transmission

speeds of like three years ago type stuff. It will always be something that's gonna either either we get to a point where it's essentially instantaneous delivery, in which case there's there's not much you can do about it anyway, and as we're pretty close to that right now. Honestly, well, well, I mean I mean more in the more in the sense of, um, you know, a movie comes out and people want to see it, and some people are willing

to go to a movie theater and see it. Some people are willing to go on Amazon and rent it

and some people are going to download a stolen copy. Well, the argument there is, I mean, this is a slippery slope argument where you say that any pirated version is lost revenue, which is not the case because you cannot prove that a stolen view of a film or listen an experience of listening to a song the placement of monetary right that that otherwise that person would have spent the money to experience that, and because experience was worth free to me, but it is not worth nine dollars.

So the problem there is that if the person was not going to buy it either way, then you haven't lost revenue. Uh you you know, it's irritating that someone's experiencing something that you've set a price on and they're doing it for free, But it's not like if they

hadn't done that, you would have made that sale. So this is a this is a real argument that the US Office of Ethics looked into about how there were claims from the music industry in the movie industry about how much revenue was being lost due to piracy, and the conclusion was you cannot come up with a number because you cannot determine that every Uh, every instance of something being stolen would have otherwise been an actual sale.

It goes back to not being able to predict behavior, and it goes back to it being digital rather than phiz sal right, because if it's physical, then clearly you can't sell a physical thing that's been stolen from you. You don't have it to sell it anymore. So if I'm selling c d s and I have ten c d s and sticky fingers, Lauren comes in and steals one of them, I now have nine CDs. I can no longer sell ten. But if I do digital copies and Lauren copies it, I haven't lost anything. I still

have the original code. I can still sell those instances to everyone else. So it's a different experience than when you had a physical good in your hands. Yeah, it reminds me of I believe it was a bit by the comedian Mindy Kaling who was talking about that, uh, that old commercial in the movie Theater is it's like, you wouldn't steal a car, you wouldn't steal a purse,

but you'll pirate a movie. And then she thought, you know, I would steal a car if all I had to do was touch the car, and then the car could be mine forever and the person could keep their car right right. It is a very very different case. And so I mean, does piracy result in lower revenue? We don't know. We honestly don't know the answer to that. The answer is probably a little bit. But to what extent or we don't know. It could be a significant amount,

it could be a very small amount relatively speaking. There's also argument to be made that pirates tend to be people who will go out and buy the stuff they love. That the initial piracy is them sampling stuff, and then the things they like they actually go out and support. And there's some evidence for that as well. Now clearly, yeah, there's not like every pirate has a heart of gold and is going to totally shell out the bucks for

the stuff they love. They're gonna be some people who are going to try and take anything they can get for free. Uh. The The alternative to that, as far as I see from the corporation's perspective, is make your stuff as easy to buy as possible, put it on as many platforms as possible, price it reasonably, don't add a ton of drm to it. That's gonna make the experience negative for people who legitimate purchased your product. The easier you make something to buy, the more likely someone

will buy it. Which is a little outside the copyright discussion, but it does tie into it. I mean, and copyright do are very closely related. I think I did want to bring it up because I do think that it's a contributing factor to what a lot of corporations are fighting for when they fight for copyright right, and it will definitely be an element that they will argue whenever they advocate for stricter copyright right. They are going to be going, yeah, well we're losing all of this yeah,

and intangible money to intangible piracy. Yeah, And I mean, that's it's I can definitely see where that argument could be made. Uh not legitimately in my view, but I can see how it could be made. What is the future of watching I don't know, the next Star Star Wars movie filmed on a camcorder on some Chinese YouTube. It's not in my future because I refuse to do that. You know, I think that the experience is going to get a lot better. Cell phone cameras, cell phone cameras improved, technology,

translation improved. It's not going to be Do not want? Guys, this is how three D happened? All right? Do you really want the next three D to happen? Because we're talking about how easy it will be to pirate movies? I don't want another three D, so let's let's just all right, So let's wrap this updates we got, We got an excellent discussion out of this, an epic excellent discussion. So thank you so much for sending in that email.

We really appreciate it. If you have a question, a comment, you want to know how something's gonna work in the future, just send us a message That email addresses thinking at how stuff works dot com or the line show us in the background giggling about do not want Sorry, please continue, I'm gonna try, I'm so close. Or drop us a line on Twitter, Facebook or Google Plus. A Twitter and Google Plus, we are FW thinking. Search for FW thinking on Facebook. We will pop right up and we'll giggling

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