Another good way to support music and the arts is with tax funds–perhaps a tax on blank media or on Internet connectivity. The state should distribute the tax money entirely to the artists, not waste it on corporate executives. But the state should not distribute it in linear proportion to popularity, because that would give most of it to a few superstars, leaving little to support all the other artists. I therefore recommend using a cube-root function or something similar. With linear proportion, superstar A with 1,000 times the popularity of a successful artist B will get 1000 times as much money as B. With the cube root, A will get 10 times as much as B. Thus, each superstar gets a larger share than a less popular artist, but most of the funds go to the artists who really need this support. This system will use our tax money efficiently to support the arts. (Richard M. Stallman, Free Software, Free Society. (US: GNU Press, 2010): p. 125.)
Shallow Thinking about Economics
One of the books I most admire today is Adam Smith’s The Wealth of Nations, because you can see Smith’s own breathtaking insights on so many aspects of the economy. It would serve well for people to read carefully The Wealth of Nations thoroughly, instead of adopting a caricature of Smith that is being reproduced again and again in corporate and capitalist propaganda and too often by the left. According to the free market model that he proposed, the wealth of any firm is proportional to the way as a group of workers is efficient in producing the goods. The market is not just a realm exclusively dominated by inanimate material resources, but there is also a labor market along with it. Part of the whole game of competition has to do with the ability of companies to create labor effective demand by increasing the offer of higher wages, presumably to attract the most talented workers. At the same time, competition for goods in the market place would drive market prices down to the level of natural prices … So, high wages + cheap prices = everything is good in the world.
As Robert H. Frank has pointed out in The Darwin Economy, this rarely happens in the marketplace. Smith’s scenario happens only when there is a convergence between individual interests and group interests. However, if we look at Charles Darwin’s analysis of the competitive process among species, we realize that many times there are traits of one species that serve individual interests that conflict with those of group interests. The same happens with the economy, the famous “invisible hand” of the market fails precisely when individual interests (be them people or companies) conflict with the interests of the group (e.g. society as a whole).
As many economists know, but don’t discuss as much as they should, companies and individuals generate externalities. This is due to the fact that the economy in general is engaged in distribution of scarce goods. If I take a candy away from you, then I gain the candy and you lose it. When I do this, I externalized a loss, while I internalized a gain. Externalities exist due to the fact the all-too-common transactions made by two or more parties, that a third party, having nothing to do with it, has to pay. One person’s gain is another person’s loss. None of this was taken into consideration by Adam Smith, and it is currently ignored by a lot of his followers. (I can excuse Smith … but I can’t excuse them).
The mere fact of the scarcity goods means that we all externalize everywhere, no exceptions. If I was accepted for a job, that is one job I’ve gained means one job that a bunch of other people were not able to have. If I have a high rank, it is one high rank that I have, while a bunch of other people will not have; and so on … This leads us to the next subject.
In The Darwin Economy, Frank discusses an economic justification for redistributive wealth. How ever unlikely it may seem, he bases all of his justification on the theory of Ronald Coase, who is today considered one very important authority on negative externalities, or activities that generate harm to others. Coase noticed that externalities are mutual. If I have a job, then I externalize on a series of persons who cannot have a job. But the fact that they don’t have a job will also create economic pressure on those who do have a job, especially in the form of several social ills. In other words, what makes me have a job is not only “I have a talent” for it, but I have a job because of others do not have that job. Coase’s view is that, at least in theory, if negotiations were possible, the affected parties should negotiate between them regarding what is the best negotiation possible to solve a situation involving mutual externalities. If it were not possible, then it is the duty of the state to reproduce as best as it can the result of what would have happened if a negotiation among free individuals were possible. This is the basis of what Frank calls a “libertarian welfare-state”, a political body whose job is to use taxes in order to reproduce situations of what would happen if negotiations were possible as solutions to externalities in societies. On the other hand, the principles governing this welfare-state are purely based on those of freedom and John Stuart Mill’s harm principle. This is the reason why we have welfare programs to alleviate the unemployed, hence evading several grave social ills. In effect, through the tax system, there is an income transfer from those who are employed to the unemployed, in order to compensate the latter’s cost for the former’s social status.
But what about the free-riders?! What about all of those people who live on welfare, within a dependent culture, at the expense of those who are working? First of all, living on welfare is far more difficult than people believe, and those who actually do are really a minor, although not insignificant, percent of the population. Second, as Frank always points out, these are not perfect economic solutions, but it is better than the alternative of not creating these programs to alleviate the externalities that permeate the economy. Under the circumstances, given that there will always be imperfections in any market and in any policy, we should do our best to stimulate job creation, and reduce the number of the “free-riders”.
A lot of the people who object to the welfare-state and want to live in Adam Smith’s world do not realize what Frank and other economists have alluded to. The Puerto Rican economist, Francisco Catalá Oliveras, has pointed out in his book Elogio de la imperfección, what he called the “Funes syndrome“: the belief that perfection is possible in the world, and that if perfection were possible, it would be functional. (I’ve talked about this elsewhere). This belief is propagated by ideologically inclined people (in the right and the left) who do not realize that it is a fallacy. Therefore, we should think according to what I have called: Catalá’s Law: The reason why a system works, it is because of its imperfection. Of course, not all imperfections give way to functionality, but the reverse is true in every instance.
So, if the market system is functional, maybe it is because … contrary to what people think … it does not work perfectly (at least as many of Smith’s disciples think), and needs the state’s restrictions and social assistance to correct these problems. This is overwhelmingly confirmed by history. Before World War II, the economy cyclically entered into huge meltdowns occurring every 15 to 20, for example, in the United States we can count these economic meltdowns: 1792, 1797, 1819, 1837, 1857, 1873, 1893, 1907, and 1929 (the Great Depression). After Franklin D. Roosevelt adopted Keynesian economics, and the U.S. received the benefits of World War II (1945) there has not been one single major meltdown until 2008. And why did we enter into such a meltdown, because of the elimination of many of the crucial federal restrictions on the economic sphere.
Income Transfers in the Private Sphere
One thing that might surprise many people is that the degree of how the market does not conform to Smith’s “invisible hand”. For instance, in Smith’s world, if wages were paid according to the degree of productivity and talent, then we should see an almost perfect proportion between salaries and productivity. The higher the productivity, the higher the salary; the lower the productivity, the lower the salary. If we were to represent this situation graphically, it would be like this.
Yet, according to Frank and many other economists who have studied the field empirically, the way firms usually behave is more like this situation: workers of low-rank are paid more than what they actually produce, while those who occupy a higher-rank are paid less than what they produce.
What is going on here? If you evaluate each firm (A, B, C), you see that in each case, in an absolute sense, those who occupy higher-rank and produce more are paid more than those of lower-rank and produce less. But … and here is the twist … in a relative sense, in each work group or firm, those who occupy high-rank are paid less than what they produce, while those of lower-rank are paid more than what they produce. This is a phenomenon called wage compression or compression of salaries.
This can be founded on both economy and ethics within business, as a sort of equitable solution to externalities associated with productivity and rank within firms in general. I often hear the objection (exactly the one I had naïevly formulated against Stallman’s cube-root solution): “This seems unfair! Shouldn’t those who produce more receive exactly the wages that correspond to what they produce?” Let’s meditate more regarding the implications of occupying a higher-rank:
- 1. To occupy a high rank necessarily means that others will occupy a lower rank. There is no way around this fact. You cannot live in a world where everyone can occupy high rank, even supposing that every single one worker were extremely talented.
- 2. We naïvely believe that in the private sector, if someone occupies a higher rank, then that means that this person occupies exclusively because of merit. Yet, those who observe better the behavior of private enterprises actually know that this is not the case in so many ways. Let’s see several scenarios, you can occupy a higher rank, because:
- a. You do have the merit to do so. Yet, that can probably mean that others have the merit too to occupy that position. In this case, people who are equally talented than you have to pay a cost for not occupying a higher rank, even when they deserve it. This is inherently unfair within a system that seeks to distribute a scarce good … in this case, a higher rank.
- b. Despite you having it, you do not have the merit … in which case, people more talented than you have to pay the cost for not occupying a higher rank, especially when they have better merits than you.
- Those interested in high-rank, but not interested in earning a high salary, will gravitate more to firms like Firm C.
- Those interested in high salary, but not interested in earning a high-rank, will gravitate more to firms like Firm A.
- Those who are more interested in both, will gravitate to firms like Firm B.
Back to RMS’s Proposal
One of Stallman’s concerns has to do with a prevalent phenomenon of winner-take-all markets. As Robert H. Frank and Philip Cook have shown in their studies, there is a sort of “trickle-down” economic phenomenon regarding this aspect of the market. Don’t get me wrong! it is not the case that the more those above earn, the more those below do. Quite the opposite, there is no trickle-down regarding “income”. Case after case have shown that the distance between the wealthy and the middle class & poor will generate more misery along the way, needless to say, more abuses from the wealthy.
However, what really “trickles-down” is spending. This is a form of externality that Frank calls “positional externality“. This is the sort of externalities highly dependent on context: what is a “good house”? … It depends of how society considers a “good” house. The wealthy spend a lot of money on big mansions, airplanes, helicopters, yachts, cars, and so on. Each wealthy person competes with others about having a bigger mansions, the best cars, and so on. The more they spend, the more they shift the social frame of what it means to have a “great mansion”. This also shifts also the reference of those just below it, which simultaneously shift the reference just below it, while shifting the social frame of those just below it, and so on… So, they more the wealthy spend, the more those below them spend, even when their incomes don’t increase as much.
According to Frank, this might be alleviated by scrapping every income tax system, and then substitute it by a steeper, more aggressive, and progressive consumption tax. This can decelerate (but not halt) consumption, especially at the top. Every time the wealthy and those who spend are taxed, the money would compensate those who are not spending as much as they do for their spending, needless to say that the money could serve to fix the crumbling infrastructure, among other things.
Although not exactly this sort of Pigouvian tax, Stallman’s cube-root (or similar) formula in order to create an income transfer from those artists who have the highest popularity to those of low popularity through the tax system might help alleviate the problems generated by winner-take-all markets in the music, movie, and publishing industries. It also gives far more opportunities to artists who are not as popular, but should be. This would be far more effective for artists, and would show much better support than, let’s say, watching American Idol … which is a glorification to the winner-take-all markets without the awareness of the social illnesses they create.
Time after time, we are annoyed at the fact that Hollywood gives us increasingly crappy and dumb movies where their writers and directors don’t give much thought to their writings (see for example, the cases of Signs, Batman & Robin, The Minority Report, The Golden Compass, The Master of Disguise, Star Wars Prequels (1 2 3), The Clone Wars, Catwoman, the Matrix Sequels (2, 3), Patch Adams, and the Twilight Series (see also 1, 2)… do I need say more?). (Click on the links to see intelligent reviews about these movies). I agree with Stallman, that if you want to be effective in almost boycotting Hollywood movies, all you have to do is to only go to those movies that you have good reasons to think they are good. One of my criteria to go and watch good movies is to go to Wikipedia, search for the movie that I plan to watch, and check the “Critical reception” section. God bless Wikipedia! We also complain about how much music sounds more than the same on radio, even how much they repeat the same reduced number of songs, at the expense of other great music by great artists who are not as popular (for instance, two artists I think should be more popular than Jay Z are my dear friends Brenda Hopkins and Daria Teplova. The same thing happens with books (including ebooks) such as The Da Vinci Code (1, 2), or the Twilight series (have you noticed that I intensely hate Twilight?) … and so on.
Stallman’s scheme makes both ethical and economic sense. I want to see more discussions about the finer details and implications of this proposal. I hope that this article helps reaching that goal and help lead a way to an alternative form of distribution of copyrighted products without turning good people into criminals along the way for sharing the works they like. Once again, we are not looking for perfect solutions, but we are looking for those that yield the best possible benefit for society as a whole.
Frank, Robert H. The Darwin Economy: Liberty, Competition, and the Common Good. Princeton: Princeton University Press, 2011.
___. Falling Behind: How Rising Inequality Harms the Middle Class. US: University of California Press, 2007.
___. What Price the Moral High Ground?: How to Succeed without Selling your Soul. Princeton: Princeton University Press, 2010.
Frank, Robert H. and Philip J. Cook. The Winner-Take-All Society: Why the Few at the Top Get so much More than the Rest of Us. US: Penguin, 1996.
Stallman, Richard M. Free Software, Free Society: Selected Essays of Richard M. Stallman, second ed. US: GNU Press, 2010.
Recently I’ve been reading much of QuestionCopyright.org’s website, listening to Richard Stallman’s MIT speech "Copyright and Globalization in the Age of Computer Networks" (here is the written version), and reflecting on Cory Doctorow’s "eBooks: Neither e nor Books" and Nina Paley’s blog about the subject. After all of that, I decided to make available for free (as Stallman would say: "Free" as in "free speech" and "free" as "free beer") all of the eBook versions available (PDF, DjVu, and ODF).
In general, I’m combining two different ideas. First, when my book becomes freely available to the public, and it is able to "spread it around", there will be a better chance that it will be read. The problem with using the "All rights reserved" version of copyright is that it condemns you to obscurity (as Cory Doctorow points out), especially in the digital world. So, I made sure of three things:
- The formats must be read in any operative system platform (be it proprietary or free). This is the reason why I do not create my eBooks in any proprietary format. The license lets people do the proper modifications of the original file, including proprietary formats, but I do not encourage this behavior. You should not be locked in to a single eReader device.
- The files must be DRM-free, so that people can use, modify, and copy the file so that derived works can be created, hence encouraging culture (as it has always done), and also to guarantee the scalability of copying of my work.
- The work must be under a license consistent with the Free Cultural Works definition and the Open Knowledge definition, at the same time this license must encourage copyleft. This will not take away what I understand are reader’s fundamental rights regarding eBooks.
This is combined with an idea suggested by Richard Stallman regarding music files. His MIT speech about the subject, he talks about a measure which can be implemented very easily in the case of eBooks. He said that in order to avoid penalizing fans for copying music, the music industry must change its ways of making money. He suggested that you can encourage companies or artists to make music files which, when circulated, include a small disposition which will appear in the listener’s own computer screen (or device) which suggests a dollar donation. It won’t get in the way of enjoying the music, it won’t forbid anyone to do anything. It just sits there, but it serves as a reminder that if a fan likes the music track and wishes to support the artist, it can be good to contribute with a donation.
So, in essence, what I did was to make these eBooks available for free, which will encourage people to copy the file. At the same time, this file has a disposition which is up in a corner, not too visible to bother the reader, but visible enough to remind him or her that they can support my work through a donation. The disposition itself is a hyperlink to the "Donations" page in Creative Heart‘s website. At the same time, if anyone is interested in not having that disposition, that version of the eBook is available for sale. Needless to say that the paperback version of the book is available if they want it. I want the eBook versions of my book "sell themselves" (so-to-speak).
You can download Creative Heart directly in this webpage.
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A Course in Miracles: Part I — Some Preliminary Notes
Third Edition of A Course in Miracles
A Course in Miracles has been a very important part of my spiritual journey ever since I was in early high school. Then in late high school I de-converted and returned to Roman Catholicism. This de-conversion, though, should not be taken as a loss of respect towards the Course. I grew spiritually in a way that it wouldn’t have happened if I stayed within Roman Catholicism. I met people in a Course group which met at home, and also I had the chance to know Kenneth Wapnick and his wife Gloria, both whom I consider my friends. In my opinion, Ken is one of the most beautiful persons you will ever meet, with a refreshing sense of humor, and in my mind he represents one of those people whom you can say shines a genuine love, and you feel Jesus "present" in him. His masterpiece, Forgiveness and Jesus, changed my spiritual life, and it is still an influence.
Why has the Course been important to me? Don’t be fooled by the name "Course in Miracles", which sounds so new-agey. In fact, to understand the Course, it is often necessary to exercise a lot of your intellectual abilities. Its content has a lot of Sigmund Freud, psychological depth, deep spiritual discussions about the world, relationships, and so on. From a literary standpoint, it is a gem, especially the last five chapters which are written in pure Shakespearean blank verse. It even includes, in its metaphysical aspects, what is essentially a form of Ancient Gnosticism. However, despite whatever the press says, the Course is not a New Age book, in fact, it is incompatible.
It has rained a lot from when I left the Course until now, and I have re-read it (though not re-converted) recently. As expected, there have been many new challenges to the Course: many more spiritual thought systems (some movements, sometimes new "churches", and even new renowned authors who use it). At the time I left the Course, the only renowned major authors I knew were Kenneth Wapnick, Gerald Jampolsky, and Tara Singh. Now we have the Circle of Atonement, the Church of Endeavor (which freaks me out), and Marianne Williamson. This is not an exhaustive list, though. Other challenges to the original Foundation for Inner Peace and the Foundation for A Course in Miracles involved nothing less than a very important copyright case, and also the illegal publication of the famous "Ur text", the original notes taken by Helen Schucman. The Hugh-Lynn Cayce text, the copy given to Hugh Lynn Cayce, the son of the renowned "psychic" Edgar Cayce, has been determined to be in the public domain. The later editions to the current Course as it is available now, plus the "Clarification of Terms" and the supplements (Psychotherapy: Purpose, Process, and Practice and The Song of Prayer) are still copyrighted by the Foundation for A Course in Miracles.
Note: I actually spent some time studying the whole case, and though I still don’t know every tiny detail about it, it is safe to say that I have to disagree with the Foundation for A Course in Miracles‘ course of action of attaching itself to the copyright of the Course the way it has. I won’t dispute whether Jesus (as the Course understands Him) advised to copyright the first public edition of its content as a way to guarantee its integrity. It did make sense to do that in the 70s, 80s, and 90s, but it doesn’t make sense now in the digital age. The Foundation can sue whoever it understands is infringing its copyright, but at the end of the day there are two realities that the Foundation should face:
- Copyright was not created in order to preserve orthodoxy (they haven’t stated this, but I can’t avoid the feeling that essentially this is what they are doing). This is an instance of what I call the "copyright protects my product from being used for porn" argument. In this case, the worry is not about porn, but about the Course’s integrity as Helen Schucman (or "Jesus") wanted it to be. Despite some valid points made by Robert Perry and the people of the Circle of Atonement (and I underscore the word "some"), it is clear to me that the Hugh-Lynn version of the Course includes some material which were not meant for the public, but for private use by Helen and Bill Thetford. Other material which appears in the Course (especially in the first chapters) can confuse the reader, since they are clearly not part of the Course itself. I currently prefer the way A Course in Miracles as it is published in its third edition by the Foundation for Inner Peace.
Yet, any way you look at this, we must not forget why copyright was created. Copyright was created as a sort of industrial regulation, which provides copyright owners a temporary monopoly over copying the work, hence providing the copyright owner an economic incentive to produce more works. Copyright has next to no value regarding the integrity of the text, just its commercial value. Copyright law can be used for other things, many of which have nothing to do with the original intended purpose, and as such was used by the Foundation for Inner Peace to somehow "protect" the integrity of the material. In the age of computer networks, this is no longer the case, because the effectiveness of such legal strategy has been undermined by the web.
- Since copyright creates an artificial scarcity making copying works a restricted activity, it makes copying works precisely a commercial good. Regardless of the Foundation’s best intentions, adhering (too fiercely!) to copyright has inevitably created an image that the Foundation’s whole reason for its fierce copyright restrictions has to do with commercial interests. This is an image I personally don’t buy nor share, but it is the the non-surprising outcome of it.
- My personal recommendation to the Foundation for A Course in Miracles (as well as the Foundation for Inner Peace) is that the Course (including the supplements) be available freely to the public. I’m not asking as far as to release the Course as it is edited to the public domain. If you still want a particular edition of the Course to count with your blessing, you can release it under the Creative Commons Attribution-NoDerivs License or one similar. By using this license, the Foundation could still retain the copyright, and at the same time it will make clear that it is the version of the Course which Helen Shucman wanted published. Let it spread on the Internet! Remember, the success the Bible and every major classic work in history was not attained because they had copyright restrictions, but because they had none. Letting so many people copy these works ad nauseam. I predict that the so-called "Jesus’ Course in Miracles", or the "Course in Miracles" published by the Miracle Distribution Center, or the so-called "Original Edition" as published by the Course in Miracles Society, all of which are essentially the Hugh-Lynn version of the Course, will succeed in reaching far more people than the one published by the Foundation for Inner Peace precisely because of their potential for scalability. The most successful organisms, expressions and ideas are the ones which reproduce the most. Just a thought! The Foundation for Inner Peace may keep publishing the printed version, and the Foundation for A Course in Miracles can support itself from all of the books, CDs, MP3s available in its website, needless to say, workshops given in the Foundation itself.
- Another recommendation. To ask people not to spread the Urtext on the Internet (once this was accomplished and done) appealing to respect for both Helen and Bill is a bit like trying to ask people not to download music through a file-sharing network out of respect for the artists. Talk to the Recording Industry Association of America and find out how well has this strategy worked! Suing the people who are spreading such a document will make you look bad in the end, not them. I do recognize the dirty tricks of the Endeavor Academy and how it was the one to spread the Urtext illegally (more information here). Despite this, my advice is to let it spread. It’s done! There nothing you can do about it, except try to tell people how to use it for research purposes and explain much of the content of the material that is not in the Course, or at least why it was removed from the published editions.
Problems Understanding the Course
When I began as a follower of A Course in Miracles in my teenage years, it was not too hard for me to grasp its teachings. Of course, approaching the Course itself can be a confusing experience at first. I had to read other sources which could provide me a very simple way of understanding the Course. After that, grasping the Course’s teachings was a piece of cake!
Again, it has rained a lot from then to now. Even before I left the Course, I saw a change in Kenneth Wapnick’s views on the Course, which confused me a bit, although I did understand perfectly where he was coming from. Jerry Jampolsky had its own views about the Course, but were perfectly consistent with the general view. My favorite book of his was Love is Letting Go of Fear. I found Tara Singh’s works very confusing with no hope for clarification. However, as I said before, whole new organizations and popular authors on the Course have appeared.
The Endeavor Academy is one of the freakiest in my opinion, because of its cultish behavior (see here and here for more information). It also tries to combine Christianity with the Course, something which I find impossible due to the drastic differences in doctrine, much like trying to create a round square. This obviously confuses students. (See Kenneth Wapnick’s and W. Norris Clarke’s dialogue on the subject in A Course in Miracles and Christianity: A Dialogue).
Another sort of confusion comes from Marianne Williamson. Don’t get me wrong! She strikes me as a genuine student of the Course, and wants to spread its message. Her views have been inspiring and have even saved lives in many ways. Yet, although I have no access to her more renowned book A Return to Love, I have the best next thing, which is a series of Youtube readings of the book. I have to confess that although she is not wrong in most of what she says, she explains the Course in such a way, that in the long run the Course will be confusing for those who read it the first time using her conceptual framework. Alas! I have found many people who have read Williamson’s own works, who have absolutely no idea what the Course is about when they read it for the first time, except the idea that "Love is our real Self, and everything else is false".
And last, but not least, the Circle of Atonement and its differences with Ken Wapnick’s views. I have to confess that a prima facie the Circle of Atonement seems to be a very serious Course study group. Their approach to the Course is mostly analytic, and more "literalist" (not "fundamentalist" as they are often accused of). I find their conclusions to be well-thought out, and fully based on the Courses’ own teachings. Their conclusions differ with Wapnick’s in very important aspects, but we know that Wapnick is, not only one very serious Course evangelist, but knew Helen and has participated actively in the Courses’ editing process (especially under Shucman’s guidance).
How is it possible that two very different conclusions can be reached by two rational organizations (the Circle of Atonement and the Foundation for A Course in Miracles) who claim to base themselves on the Course? My particular answer to the problem: because the Course itself is not very clear precisely on the subjects they differ on. Wapnick’s approach is mostly based on some principles which seem to be absolute in the Course, and take everything in the Course logically inconsistent with them as having metaphorical value. As I said, the Circle of Atonement has a more literalist approach (although not fully literalist), and much of what under Wapnick’s criteria seems metaphoric, under their interpretation has to be taken at face value. To learn more about the differences between Kenneth Wapnick’s interpretation of the Course and that of the Circle of Atonement, I strongly advise that you read the book One Course, Two Visions. I want to say, though, that as I read this book, there was an inclination to present the Circle of Atonement’s views as being more reasonable (what a surprise!), but at least I did see an effort to present Wapnick’s views as fairly and honestly as possible as they understand it, but there are tiny bits of careless ways of portraying his views. I agree with Mary Benton’s review of the book as it appears in Amazon.com.
In the following blog posts in these series, I hope to make an exposition of what I understand to be the Course’s actual message. In some aspects I will differ from Wapnick’s views on certain subjects, but my interpretation will be very close to his. I will also differ (and perhaps establish more distance) with the Circle of Atonement, although I want to be clear that do respect this group.
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Note: This is another article written by Fiera M. Tenkiller on Copyright Law. This is one of the best articles I have ever seen which offers other writers a very accurate idea of what copyright is really all about. One small flaw I found in the article is that, regarding copyright, we should distinguish between ideas and expressions. Expressions are copyrightable, ideas are not. A simple example can make this clear: If you buy two Algebra-I books for your children, and they both happen to be from different publishers, you will notice that both books have exactly the same ideas. Why are they both copyrighted? Because the same ideas are expressed differently in both books, THAT is what is being copyrighted. Fee’s article is a gem, and I reproduce it here with her permission.
UNITED STATES COPYRIGHT LAW: When Mickey Mouse Doesn’t Play Nice
A friend of mine who had posted some of her artistic works on her MySpace blog discovered that someone had copied them and was using them on another website. When I asked her about it she claimed “They infringed my copyright!” I had a hard time explaining to her that while some of her rights had been violated, it wasn’t so clear that in a legal sense her copyright had been infringed. Her implied right to be informed that someone intended to use her work was violated, and so was her pride. I asked her if she had registered any of the works she had posted and she said no. I told her that if she felt that she was going to lose income or some other tangible benefit from the rude borrowing of her works she should talk to a lawyer, but not to expect too much.
Many writers assume certain rights are protected by the U.S. Copyright laws that really aren’t. As they say, the devil is in the details, or more specifically, in the small print. My advice to my sister and brother writers is to study your rights carefully and become more informed about what copyright is and is not, and what it cannot do. You may be surprised that what you thought or was told was protection is actually something very different.
If a writer is intent on using U.S. Copyright for written works it is advisable to go through the effort of registering those works with the U.S. Copyright Office * and fill out the proper forms and pay the required fee. This does not guarantee full protection of those works, but it establishes a paper trail that can be useful if the writer ends up in court for example being sued by the person who borrowed the work (yes, that happens to writers more often than the other way around, believe it or not). If a writer is producing written works on a regular basis tossing out $35.00 tp $50.00 for each work can amount to a bit of cash out of the pocket. A better way is to collectively register works once every three months using U.S. Copyright Form GR. That way the writer only spends about $140 annually to register all the works produced in a given year.
Before a writer decides to take the above route a few things need to be taken into consideration:
First, is the work worth the value of registration?
If the writer has written the piece for recreation purposes, such as a poem essentially to share with friends, and has no intention of receiving monetary or other tangible benefits from it, registering the Copyright is probably not worth it. Copyright registration is not a measure of the quality of the work. It is not the same as trying to convince a good publisher to sell and distribute your work. Any piece of junk can be Copyright registered just as easily as the next great American novel.
Second, neither titles nor ideas can be copyrighted.
That’s right. Your title cannot be copyrighted. Associated with your name, the writer, the title helps to identify a particular work but that is all it does. This is true for a number of practical reasons. Consider for example how many autobiographies have been written with the title My Story and some of the reasons why are self-explanatory. The writer’s essential idea is also not copyrightable. Copyright does not protect what is in your head or what inspiration leads you to write a particular piece. This second truth is constantly being tested in courts when someone writes a blockbuster novel, and someone else who claims to have had a similar idea for story takes the successful author to court. It has happened twice to Harry Potter creator J.K. Rowling, the most recent case taking place last year in New York Federal District Court. Copyright covers only the particular expression of an idea, not the idea itself.
Third, just what harm versus benefit is actually going to be created by someone copying your work?
You the writer may not approve of someone borrowing your work without at least asking and giving you proper credit, but you have to decide if you are actually harmed in some way by their bad behavior (other than an insult to your ego) or if there is ultimately a greater benefit in how your idea is being circulated that outweighs other more personal considerations.
Copyright law talks about “Intellectual property” and sometimes this term creates more confusion than it solves. It sounds like it can be used to protect an idea, but it does nothing of the sort.
By rights anyone ought to be able to take another person’s idea and build on that idea to develop something for the public good and the advancement of common discourse. This is supposedly one of the foundations of academic freedom where someone proposes an idea, and then others explore, modify, challenge, and expand that idea (but even in academia this right gets muddled by competitive egos). The presumed benefit of copyright is that it grants the owner of the work (which as I pointed out in How to Sell Your Soul Using Copyright Law is not always the same as the creator) some control in how that work is distributed. Essentially that is all copyright really is, a way of providing the owner of a work some level of control over the work’s distribution. However, that control is not always absolute, nor is such control always beneficial to either the copyright owner or to others who might benefit from the work. In the realm of the free exchange of ideas and creativity sometimes copyright can be detrimental.
The last major overhaul in U.S. Copyright law was in 1976, with a series of amendments since then, including one passed in 2008. The Copyright Act of 1976 helped clarify some rights important to writers, most notably that even without registration it is assumed that once certain works are created (defined as actually writing them down in some sort of recordable medium such as ink and paper) it is under copyright protection. Registering it within three months of creation only creates an additional paper trail.
Now let me reclarify that term “protection” as it is understood under current Copyright law. Protection does not mean a written work is copy proof. “Protection” in this instance is a legal term granting the owner of the work some say in how that work is distributed and for what purpose. Even without registration a writer has the immediate right and choice to decide if she will sell her work to a magazine, run off copies at the nearest Kinko’s/FedEx and hand out to her friends, or post on her blog. She does not need the U.S. Federal government telling her how she wants to use her work. Perhaps clarification of what the “copy” in “copyright” means might help. It is not immunity protecting a work from the risk of being copied by someone else. It is recognition that the owner of a work may want to determine how that work is copied, or reproduced, for commercial purposes.
There is only one nearly absolutely sure way to prevent something the writer has produced will not be copied and that is to buy a very strong secure box, with a sturdy lock and store the written work inside that, and for additional protection keep that box in a vault that has a time lock and five foot thick walls that can withstand anything short of a direct nuclear strike. But if the writer is going to go to that route, why write at all? The purpose of writing, aside from things like grocery lists, is to share ideas with other people.
The Internet Age, as I mentioned in Part I, has brought its own headaches. In response to that the Digital Millennium Copyright Act (DMCA) was enacted a few years ago to address some of those issues. Like many aspects of Copyright laws and the way they have often been used or misused, this Act favors business first, most specifically Internet providers. In short what it does is protect ISPs from law suits if someone posts something on the Internet using their service that may be a violation of the Copyright law. This also covers Internet social network sites like MySpace and FaceBook. All the plaintiff can do is demand in court that the offending piece or pieces on that provider’s site be removed, and if there is found reasonable cause in a federal court the provider must remove those sites. If the provider refuses to remove the offending items can it be followed up by another suit (for non-compliance) costing the provider money. This happened with both MySpace and FaceBook last year in regard to Project Playlist and other playlists that users were posting on their profiles. The DMCA provides protection to providers if they file the name and contact information of the individual using their service with the Copyright Office of the U.S. Library of Congress and if they promptly remove, on good-faith, any item a subscriber claims is an infringement of his or her copyright. Think through how many people may subscribe to a particular service and you can see the logistical loophole in this law. However, if you insist that your particular work be filed by the provider with the Copyright Office and the provider complies you have at least the guarantee that if you see your work elsewhere that you don’t want it within that provider’s site, the provider should take it down at your request. You may also risk the provider removing your own work on your own blog or site, too, as an overreaction by the provider but that is another issue I won’t discuss here.
As I said earlier the U.S. Copyright law does not protect the writer’s idea, it just defines certain ways the owner of a written work may choose to distribute that work through copying, reproduction, and publication. It is not a magic formula that places a curse upon someone who uses another person’s work without attribution or credit or who derives some benefit by claiming the work as their own (defined as plagiarism). If you feel that your work has been plagiarized there are legal recourses, but they are expensive and complicated. The writer has to prove in court that the work: a) was created by the original author; b) was created before the alleged plagiarist used it; c) was not used with permission either by direct consent or implied; d) that a substantial portion of the work has unique attributes that can only be attributed to the plaintiff/original writer; and e) very often that the plaintiff charging copyright infringement or plagiarism has been harmed in some way by the use of their work by the unauthorized party. Sometimes the awards for statutory damages are not worth the effort because they can be as low as $750 in a U.S. Federal District Court which might not even cover attorney fees and court filing costs. There have been some cases where awards of $150,000 or higher have been granted in copyright infringement and plagiarism cases, but don’t hold your breath for that poem you posted on your blog. Chances are, even if someone “borrowed” your poem for their own blog a court will view its posting as essentially opening the poem to the public domain. U.S. Copyright law is designed more to protect commercial value of a work than its personal value.
The U.S. Copyright laws can work on a writer’s behalf, but can also screw over the writer. Those same laws can work against the writer (or anyone else) who is not wary. In 1989 the zealous lawyers working for the Walt Disney Company filed suit against the Academy of Motion Picture Arts and Sciences (the Oscar people) for copyright infringement when an actress, dressed as Snow White gave an interview in the auditorium lobby and then appeared with a chorus on stage in front of national TV to sing spoofs of popular songs. The Walt Disney Company claimed that the Academy was infringing their copyright on the Snow White character, was creating unfair business competition (with a one night, satirical performance no less), and was also diluting its trademark. Even though the character of Snow White existed literally centuries before Walt Disney issued its 1937 animated classic and Disney artists based their Snow White on the illustrations done by other book artists in the 19th and early 20th centuries the company still claimed Snow White as their exclusive property. The Academy countered in its defense that it was protected by the legal doctrine of Fair Use, which recognizes that the works of authors (or companies) can be quoted for what is defined as “transformational use” (such as literary critiques, academic use, or any other use where the quote may be used in some way to advance an idea). U.S. law has never specifically defined what Fair Use means, though it is regularly used to protect journalists who quote sources and other writers using quotes in a legitimate fashion. Fair Use is an assumed right that is sometimes recognized in courts, and sometimes not depending on context. The Academy people lost, though they made a good case for the application of Fair Use.
Ironically, the Oscars that year were broadcast on ABC, which was bought seven years later by the Walt Disney Company. Since 1996 ABC has consistently been the biggest financial loser each year among the major television networks (perhaps poetic justice for the Disney people’s avarice).
~ Fee Tenkiller
*To contact the US Copyright Office, to find out about registration and fees, go to http://www.copyright.gov/./forms.
Note: This is an article by Fiera M. Tenkiller which demystifies a lot of misconceptions so many writers have about Copyright Law, especially when it is conceived as a way to "protect authors". This is reproduced with her permission.
UNITED STATES COPYRIGHT LAW: “How to sell your soul using Copyright law”
You have written a story that you want to distribute through a commercial magazine publisher. Your manuscript is neat and properly formatted, even telling the publisher Wizass Magazine what copyright you are offering.
The editor at Wizass looks at your manuscript, really likes your story, and says “Goody, goody!” You indicate you are willing to sell Wizass “All Rights.” You thought that “All Rights” meant that you want all of your rights as an author protected. Well, here is the bad news, you just sold away all of your rights to your written work lock, stock, and barrel. Yep, my friend, you have just granted Wizass complete ownership of your story. If Wizass for whatever reason decides to delay publishing your story or even to scrub it because they decided that regardless how good the story is, it doesn’t fit with any upcoming issues they are planning, you do not have the option of taking your story elsewhere. As long as they keep the copy they sent you and do not sell it back to you, you have just cut off your options to redistribute that story, or even to revise it and take it elsewhere. If Wizass is ethical, they should pay you some fee for the story whether they use it or not, but it won’t be what you would be owed if the story is printed and your marvelous story may be doomed to an editor’s slush pile for eons never to see the light of day again.
Whoa! I hear you cry. But don’t editors sometimes resurrect stories from their slush piles at a later time?
Yes, they do, and sometimes a writer might get a surprise later to find that the magazine is finally going to publish her story. That can be a nice surprise for some writers. However, a caveat, because you indicated that you were offering “All Rights” that same editor can give your story to another writer who will do a complete rewrite and then that magazine will publish what began as your story – with someone else’s byline. Sorry, but it happens more often than you or I like to think about. What that publisher did is perfectly legal since you offered “All Rights.”
This is why knowing how copyright laws can either help you or screw you over is essential to you, the writer.
Copyright laws are not actually written to be fair. They are written to define how the game of distribution is played in the publishing world, and those laws lean heavily on the side of commercial publishers who are less interested in protecting the writer or the expansion of intellectual and artistic expression than they are in making a buck off of your hard work and genius.
My personal advice is to research your publisher carefully before submitting anything to them. Some publishers demand “All Rights.” If I were you I would avoid those publishers at all costs. They are often akin to the predators of the publishing world. When you surrender “All Rights” you surrender not only the chance to submit that same piece elsewhere, but often the right to submit revisions based on that piece elsewhere, too. And you do a disservice to the general public because by selling all of your rights to a publisher who might bury it rather than print it you deny potential readers the benefit of your ideas. If the publisher who has decided to wait publishing your story or kill it sends you a fee (sometimes called a “kill fee”) after you have discovered your mistake send the check back un-cashed and demand your manuscript returned. Once you have cashed their check the transaction is done, and done entirely in their favor. You have no remaining legal recourse once you cash their check.
And here is another lovely caveat. Suppose you have submitted your story with “All Rights” to Wizass and they do print it and pay you the fee they promised. Later you decide to write another story, not a reprint, but something which builds on the first story in some way. There is a lot of the first story in your second work, not a duplicate, but there are enough allusions to the previous work to make connections between the two stories obvious to anyone familiar with it.
You are smarter this time when you submit story numero dos to Jumpin’ Catfish Weekly, because you offer “First Serial Rights” which grants Jumpin’ Catfish the right to publish your story for the first time, after which distribution rights revert back to you. Everything is going smoothly until you get a letter from Jumpin’ Catfish informing you that they are being threatened with a lawsuit by Wizass, and you can expect to be named in the suit, too, because someone at Wizass saw your story and that noble publication is now getting ready to take you and Jumpin’ Catfish on the legal ride of your lives because according to Wizass your story is copyright infringement! Yep! Your own story is a copyright infringement because of another story that you also wrote. Remember, you sold all of the rights to your first story to Wizass.
Sound improbable? No, things like this have happened. This is an example how U.S. Copyright law does not always protect the author, but the legal owner of the written work, in this case the publisher who may or may not do anything with the original work, but is sure going to take your pants to the laundry and collect.
Remember, the Copyright laws are designed to define the rules of distribution of written, artistic, and similar creative works more than they are about the individual author’s rights. They are what they say they are (and not what some people hear when they hear the word) – copyright is the definition of the owner’s right to copy, not a protection from being copied.
Aside from First Time Rights and All Rights U.S. Copyright law also provides other options for the writer, each coming with its own benefits – and sometimes a minefield. These include:
One-time Rights. Similar to First Time Rights except that the author may simultaneously offer the same work to different publishers and each may publish that work just once. This is essentially a non-exclusive right that can sometimes work in the author’s favor. It offers the writer a wider distribution of her work through multiple publishers, the possibility of more fees, and the right to later redistribute that work or revised versions again after its initial publications.
Second Serial Rights. This grants a publisher to reprint your work after it has already been published elsewhere. This works if your work was previously licensed (I haven’t used this term here before, but essentially copyright is a form of licensing) as either First Time Rights or One-Time Rights to a previous publisher. Your boat is still sunk if you originally sold that work under All Rights.
Electronic Rights. This can cover online magazines, CD-Rom magazines and anthologies, interactive games, etc. It can even be used for some software you might write as long as you are not employed by someone such as Microsoft (Bad news. Even if you write the software as a personal project for your own purposes not related to your job on your basement PC at home, because you are employed by Microsoft or any of its subsidiaries Bill Gates’ people can still nail you for infringement of their copyright).
Subsidiary Rights. This applies more to book publishing than other types of publishing. This defines the rights of your publisher to resell your work for TV and motion pictures, translation into other languages, and those recorded books that so many commuters listen to on their way to more boring jobs than yours (Because you are a writer and they are not. Hee hee hee).
There are other forms of copyright licensing available to the writer, depending on how that writer decides is the best way to distribute her work and what she hopes will be a fair return for her efforts.
Yes, there are advantages for the writer under United States Copyright laws if she is careful. However, she also needs to realize that U.S. copyright does not actually protect her work, nor is the law always fair or flexible in her favor, nor does the law actually promote the free distribution of ideas in the public sphere and very often hinders them. Copyright can be a good thing, and very often it can be just the opposite depending on how it is applied and what is expected of it. The law gives the owner of the work (and I have explained some of those instances when the author is not the owner) a legal framework within which to distribute that work. It is a form of licensing and it does come with its caveats.
~ Fee Tenkiller
One of the things I worry mostly is about how the increase of copyright restrictions threatens everyone’s freedom, and undermines democracy. Cory Doctorow, a popular science-fiction writer, explains why the course of action that corporations in general (publishers, movie and record industries) are taking is a dangerous route. I sincerely think that everyone should watch this.
For years, Doctorow has belonged to the Electronic Frontier Foundation, promoted Creative Commons, and profits from his writings. He publishes his sci-fi novels in hardcover and paperback, while letting everyone download it for free from his website.
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