Authors Guild argues in favor of censorship (also: they don't know shit about Shakespeare)

The Volokh Conspiracy's David Post shreds the Authors Guild editorial in this week's NYT. In it, Scott Turow and James Shapiro argue that America should introduce COICA, an official censorship law that blocks websites that large companies from the entertainment industry don't like. It's alarming to see authors arguing in favor of censorship, but the argument put forward in the editorial, "Would the Bard have Survived the Web?" is also profoundly ignorant account of how Shakespeare wrote his works:

To begin with, how odd is it that they'd invoke Shakespeare in this context? "We need stronger copyright or else we won't get the next Shakespeare" is like arguing "We need the designated hitter, or how will we ever get the next Babe Ruth?" In a copyright-free world -- not that I'm advocating such a thing, but hey, you brought it up -- we'll get the next Shakespeare the way we got the last Shakespeare, in a copyright-free world. The first copyright statute, the Statute of Anne, wasn't passed until 1709, long after Shakespeare was a-moulderin' in the grave. [That's what we need a name for -- this kind of absurdly misplaced historical argument]

What's more, old Billy the Shake's great plays were largely based on works by his contemporaries and forebears -- works that would have been illegal "derivative works" had our contemporary copyright laws been in place then.

If you want to read something by an author who understands both copyright and Shakespeare, try James Boyle's "The Search for an Author: Shakespeare and the Framers."

There Should Be A Name for This One, Too (via Copyfight)

(Image: William Shakespeare, a Creative Commons Attribution (2.0) image from tonynetone's photostream)

• [bob d]

  This reminds me of the “Stephen Hawking would be dead if he had lived in England” argument. Surely there must already be a name for using an example as supposed proof of your argument when it actual supports the opposing view?

• [Anonymous]

  COICA – rhymes with cloaca.

  • [magnetsandlasers]

    re: cloaca. My brain goes there too.

    • [Ugly Canuck]

      Perhaps even not enough.
      But who am I to say?

• [Roy Trumbull]

  Shakespeare was a heavy user of antecedent texts. He borrowed heavily from Ovid, to name just one. But his plays in turn were pirated by others. Attempts to control this sort of thing appear to be futile. Even Gilbert and Sullivan suffered from it. They had to rehearse companies on shipboard to get a production to America before pirates could mount their own productions.

• [double_tilly]

  I wonder if the voice of the state and the voice of commercial enterprise has an influence on the lived experience of even non-artist types?

• [Anonymous]

  We’ll get the next Shakespeare where we got the last one – from the muse of writing. There is no other source. People who want to write will write and try to find some way to make a living despite the current fad for “intellectual property” weirdness. Nobody worth a damn as a writer ever refused to write because companies don’t like websites. If the generations of samizdat writers in the USSR who continued to get their works out despite the KGB read about the arguments going on in America over copyright laws, they’d either laugh themselves sick or shake their heads and drink themselves into a stupor over the realization that American would-be writers are be a whining back of spineless pussies.

• [show me]

  I suggest the term, “innachronistic,” copyright 2011 by show me, licensed under a Creative Commons license of some type where anyone can use it anytime but they are free to credit me if they chose.

• [Anonymous]

  Since you asked, Quothz, The Statute of Anne provided for publishers to have monopolies on printing certain works. It had nothing to do with authors.

  Nobody is saying we shouldn’t have copyright. What people are saying is that we shouldn’t have so much copyright that it stifles innovation and creativity. The problem is that many of the recent measures help publishing companies rather than artists/creators.

  Case in point: The copyright extension act that passed in, what was it 1998, extended the term of copyright. Arguably that increased the value of any given copyrighted work. But in the case of a creator who had already transferred the rights to that work to a publishing company, the act did not provide for the publishing company to pay anything additional to the creator or the creator’s family. The term extension was nothing but a big windfall for publishers at the expense of creators. Contrast that with the last time the term was extended in the 1970′s– the creators of works had the rights returned to them for the additional term, and if publishers wanted those copyrights for a longer time they had to pay the authors.

  I’m sorry, how does cheating creators encourage creativity?

• [wylkyn]

  The thing that bothers me the most is that the draconian laws being shoved down our throats won’t do squat to curb piracy. Like placing a huge rock in the ocean, the pirates will merely find a course to steer around it. And those of us who follow the rules and are punished for doing so start to wonder if the pirates don’t have the right idea.

  I refer you to this classic clip that I quote whenever I’m scolded for watching a movie I paid for: http://www.youtube.com/watch?v=7I5dVBezF9k

• [Zac]

  I think history has given us many many examples of how humans work best when they get an opportunity to riff off of, rip off, and collaborate with each other. Shakespeare stole his best plots, Elvis stole African American music, and the PC revolution never would have happened if Microsoft hadn’t ripped off Apple (or Apple hadn’t purchased ideas from a short-sighted Xerox).

  Current draconian copyright laws (which are only getting more onerous) primarily benefit large publishers, and encourages intellectual stagnation, and frequently steals value from consumers. A free exchange of ideas is what will lead to the greatest degree of innovation, both in art and science.

  That said, as many have pointed out, artists (and scientists) need to eat, and nothing is a better motivator than money. Far few people will create if they can’t make a buck off of it, so abolishing copyright is certainly a bad idea, and I think very few would argue that we should toss it out entirely.

  However, it makes no sense that an idea should remain private property, for an author’s entire life plus another 70 years (which is the current U.S. law). That’s insane, and it doesn’t benefit the artist (who is now dead), only the companies that trade in ideas. In the U.S. Constitution, there was no mention of intellectual property, simply this clause, “[Congress should] 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;” And Congress did so, by giving people the right to patent an idea for 14 years, and apply for one 14 year renewal, after which the idea was public domain.

  You see. That is the key difference here. The concept that an idea can be property, can be bought or sold, can be passed on after death, this is a modern invention, one cooked up by media conglomerates (especially Disney). When the founding fathers set up the original U.S. government, they understood that it is important for authors, artists, and inventors to turn a profit, and they set up laws that ensured they would have enough time to do just that. But they also understood that ideas are not property, and by treating them a such, you stagnate creativity and harm consumers. It is time to get back to basics with our copyright laws.

  • [turn_self_off]

    The basic story behind life + 70 comes from the berne conventions merging of the US/UK copyright with the French “rights of the author”.

    The latter was what introduced the life + something timeframe, because it dealt as much if the authors right to control how his creation was represented (and by extension, how the author was represented) as the economics of it all.

• [davidjoho]

  Lewis Hyde’s new book, Common as Air, does a masterful job of re-framing copyright by showing how the US Founders viewed it in light of their larger ideas about what it means to be a human being in a shared world of stuff and ideas. (Sorry that this sounds like spam. It’s just a hell of a good book, and I just finished reading it yesterday.) http://openlibrary.org/works/OL15351566W/Common_as_Air

• [millrick]

  from the New York Times editorial
  “Dramatists’ ties to commerce were severed”
  …so sad that drama hasn’t reunited with commerce

  …’scuse me while i download some Glee

• [Blue]

  Copyright is a medicine. In the right dose, suitably restrained, it is fine and advantageous. Too much and it becomes a poison.

  • [Antinous / Moderator]

    Copyright is a medicine. In the right dose, suitably restrained, it is fine and advantageous. Too much and it becomes a poison.

    So homeopathy, then?

• [Anonymous]

  [That's what we need a name for -- this kind of absurdly misplaced historical argument]

  Anachronistic attribution fallacy?

• [Anonymous]

  >>That said, as many have pointed out, artists (and scientists) need to eat

  Artists and scientists have to borrow heavily from a communal ressource pool of previous works and knowledge in order to be able to produce anything. If they don’t give back in eventually the pool will dry up, then it’s bad for everyone involved.

  Gee whiz. Maybe considering new art and science is added back in to our *communal* cultural pool and is naturally owned by all of humanity, maybe, you know, some sort of collective entity representing all of us could be responsible for compensating artists and scientists appropriately for their work.

  And then maybe someone will read Kropotkin’s “The Conquest of Bread” and wonder why we’re not pushing this a bit further than just for scientists and artists.

• [princeminski]

  The only things Shakespeare published in his lifetime were a couple of poems dedicated to patrons in a presumable bid to attain “gentleman” status. As I recall from the “Shakespeare: The Globe and the World” exhibition, the plays were often ripped off by other theatrical companies who planted scribes in the audience to write down the lines as they occurred. Naturally this resulted in a lot of messed-up dialogue. Occasionally the Lord Chamberlain’s Men (Shakespeare’s company) would publish somewhat unrefined versions of the plays which functioned as a primitive form of copyright. These early printings account for some of the line interpretations which differ from the posthumous First Folio versions of some of the plays. Yeah, ho hum, but the point is that *somebody* in Shakespeare’s circle was trying to protect his “intellectual property.”

• [Anonymous]

  The real shakespeare parallel, which Shapiro knows well, is that there are plays that we have only because of unauthorized piracy; Pericles and the Two Noble Kinsmen. We’ve lost a couple of others, and quarto versions of Lear and others vastly increase our understanding of Elizabethan drama. All because of a world without copyright.

  Shakespeare isn’t an argument for stronger copyright, or weaker copyright, or anything. He wrote amazing plays, and we’re lucky to have them. All of which Shapiro knows, and he should be ashamed of himself for roping the bard into this argument.

• [scifijazznik]

  What a bunch of guildos.

• [Anonymous]

  Oh BS. Yes, many of Shakespeare’s plays were based on Greek myths or even somewhat similar to works by his contemporaries. Guess what? Many books today are based on Greek myths or similar to other contemporary works.

  Copyright laws do not prevent books from having similar plots of paying homage to each other or parodying each other or any of that.

  • [Anonymous]

    Ya, but stealing character for character, plot for plot is plagiarism. Shakespeare did indeed do this.

• [Marilyn Terrell]

  Those beslubbering, boil-brained clotpoles!

• [Anonymous]

  “Authors and Owners” by Mark Rose is another great book about the history of intellectual property:

  http://www.amazon.com/Authors-Owners-Invention-Mark-Rose/dp/0674053095

• [Quothz]

  I assume Mr. Post won’t mind if I reprint his writings, but with my name as the author.

  Remind me again why the Statute of Anne was signed? Perhaps it was in response to some sort of behavior that was detrimental to authors? Sure, Shakespeare had a good thing, but that’s because he owned (a chunk of) the theatrical company, not because of the fairness with which everyone handled creative works. Most authors, especially those who wrote actual books, had to already have independent means or have developed a high resistance to starvation.

  Who knows how many authors out there could have been as great, or greater, than Shakespeare, but chose other fields because they enjoyed living in buildings.

  Today, even still, writing is not widely considered a profession most people should consider, no matter how good they are. Even successful writers discourage people from entering the field. Quite a lot of popular authors ride on the edge of financial stability (for example, Spider Robinson). And he wants to reduce their protection?

  Copyright obviously needs reform. Taking away the authors’ rights is not reform, it’s deform. If anyone’s rights need to be lessened, it’s that of publishers, agents, distributors, and retailers, all of whom earn more from a book sale than the author.

  • [Brainspore]

    I assume Mr. Post won’t mind if I reprint his writings, but with my name as the author.

    Then I assume you willfully ignored the part where he wrote:

    In a copyright-free world — not that I’m advocating such a thing, but hey, you brought it up —

    • [Quothz]

      Cory writ: “It was signed to protect the business interests of English Stationers”

      That would explain the part where it took the perpetual monopoly on works away from those English stationers and created a public domain. Oh, wait, no it wouldn’t.

      While I should’ve avoided implying that it served only a single purpose and was uncompromising in that, you should avoid that, as well. It did help the stationers, sure, and I won’t argue that it wasn’t intended to, but it was also explicitly for the benefit of authors, as well.

      Some anonymous coward sez: “The Statute of Anne provided for publishers to have monopolies on printing certain works. It had nothing to do with authors.”

      An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.

      Brainspore muttered: “I assume you willfully ignored the part where he wrote”

      Whoops; my mistake; I was rushing at lunchtime.
      D pls tk th wrd ‘wllflly’ nd shv t p yr ss, th’.

      • [turn_self_off]

        Do not forget, the authors where protected against the “stationers” as the latter would print and sell for profit without giving the authors anything if they could get away with it. Problem today is that anyone can be a potential “stationer”.

  • [Ugly Canuck]

    Cervantes, the author of Don Quixote, and himself a nearly exact contemporary of Shakespeare, bitterly resented the fact that his works were widely pirated and even translated into several languages, without him getting any thing, not a cent, at all for it. Sometimes indeed his name was removed or replaced in those pirate editions.

    BTW IMHO Cervantes’ instructions for how to blow up a dog still cannot be beat.

    • [vettekaas]

      Then again, some authors, such as Voltaire (slightly after Cervantes and Shakespeare) used the vibrant industry of pirated editions of books to make more money, or to increase publicity. As I recall, since his stuff tended to be banned or censored, he’d let the publishers print the ‘censored’ version but then would ‘leak’ the ‘uncut’ version to pirates.

      Step 1: Allow censored version to be officially published.
      Step 2: Leak ‘uncensored’ version.
      Step 3: Infamy!

  • [Cory Doctorow]

    “Remind me again why the Statute of Anne was signed? Perhaps it was in response to some sort of behavior that was detrimental to authors?”

    No. It was signed to protect the business interests of English Stationers against incursions from Scottish competitors.

  • [kylerconway]

    As Cory said. See this for a primer: http://questioncopyright.org/promise

• [bmcraec]

  The term is anachronistic thinking, I believe. How many people have you heard exclaim, when the are reading something created prior to the reader’s frame of reference, how horrible/stupid/thoughtless/cruel/greedy/two-faced people were, back in the olden times?

  Historians, and people who teach history, are continuously on guard for these thinking mistakes. Just because someone in the year 1470 came up with a fantastically bizarre explanation for why the sun, moon, and little lights moved across the sky doesn’t make that person stupid, or a liar. They simply didn’t know anything else, and like the great majority of people, couldn’t wrap their minds around anything that hadn’t been thought of before.

  When you’ve got it made, like successful authors, or musicians, or other “creators” whose success came about due to the business models of the 20th century, the present is really scary. Not that any of the real big names will suffer; they’ve already made their piles. It’s the corporations representing them that are really terrified, as the new way of doing things will not mean a revenueless future; it will just mean that the way things are done yesterday will not be the way things are done tomorrow, and that means uncertainty. Much, much better to play sock-puppet with the creators in your stable to foment for the comfort of the status quo than risk uncertainty for your value chains.

  Fear, Uncertainty & Doubt are the best tools ever created to inspire the already well-off to stop any further innovation from creating any new well-off people.

  • [Anonymous]

    “They simply didn’t know anything else, and like the great majority of people, couldn’t wrap their minds around anything that hadn’t been thought of before.”

    Great points, but I would amend your use of “…couldn’t wrap their minds around anything…” to “can’t”, because “couldn’t” implies that we’ve somehow moved beyond this (and also implies that we ARE more intelligent now, which contradicts your original point).

    Other than that I totally agree.

    J