I don't know if/how it could legally be done, but I'd love to see "cute" names for laws barred from use in Congress. Refer to them all by number not brand names dreamed up by marketing professionals to make the proposed law seem unassailable ("Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act" aka USA PATRIOT Act).
How about having a mechanism to allow the opposition to vote on a secondary name which will be included alongside the primary name in official correspondence?
Yes, it will degrade into "Bill to Save America / Bill to Destroy America" most of the time, but that's the point: it makes the absurdity easy to spot and difficult to ignore.
The Orwell Act: Proposed legislation names shall henceforth be limited to the following verbs and adjectives:
verbs: prevent, promote
adjectives: good, ungood
Edit: More seriously, laws should be named with the same rules that apply to good commit messages, concisely describing the change being made. Or maybe they're more like pull requests... point is, you should be able to go down the list of them and get a good feel for the activity.
Oftentimes, it even does the opposite of what the given description says.
For example, there was a solar law on the ballot in Florida in 2016 that was written by oil and gas companies, that basically would have created a charge just for having solar panels. The new cost was to simply subsidize energy companies losing revenue from people moving to solar.
Predictably, the bill was sold pretty heavily as a pro-solar bill meant to make solar more competitive. Much in the same way anti-NN is often sold as a method of making it easier for smaller ISPs to compete with the giga-ISPs.
The word "wytai" from the Dictionary of Obscure Sorrows comes to mind when I think about how much of the US political process is based almost entirely on deception and tricking people into voting your way.
> Predictably, the bill was sold pretty heavily as a pro-solar bill meant to make solar more competitive.
You can make something "more competitive" in two ways; kneecapping a leading industry does just as much "making competitive" as lifting up a tailing industry.
> I don't know if/how it could legally be done, but I'd love to see "cute" names for laws barred from use in Congress.
It can't even in principal be done in a binding way in mere statute, since newer law wins in case of a conflict, and even were it done by Constitutional Amendment, it would be hard to give it teeth.
Plus, it's plenty useful to have memorable named for laws, rather having to remember bill/session numbers (or, worse, the weird practice in California and some other places where laws, even when they actually have friendly names, are frequently referred to by bill numbers without session numbers, even long after adoption, when such identifiers are decidedly non-unique.)
This is a great example of the power of norms and conventions. As sibling says, Erskine May in the UK bans tendentious titles. It's not a statutory restriction and could be easily overturned by the House of Commons if it wanted. But no government has had the HoC do that, partly through inertia and partly because that government would then face partisan bill titles when next in opposition. So the convention endures.
The British constitution is, in some ways, built on conventions like this. It changes the calculus from legal to normative, and allows a sustainable banning of cute names even though, as you say, it can't be done in a binding way even in principle.
> This is a great example of the power of norms and conventions.
I agree. My main point was that legislation can't be the source of the fix; if you can engineer an independently-durable change in norms first, legislation can memorialize it and reinforce it, but a momentary majority can't establish it in a way that is resistant to the next momentary majority brushing it away.
The US used to work that way, but it appears that the norms of liberal democracy were a casualty of our advancing partisanship over the last ~9 presidential administrations.
> Plus, it's plenty useful to have memorable named for laws, rather having to remember bill/session numbers (or, worse, the weird practice in California and some other places where laws, even when they actually have friendly names, are frequently referred to by bill numbers without session numbers, even long after adoption, when such identifiers are decidedly non-unique.)
That's very easy to fix by adding the year and jurisdiction where appropriate. For example, in my opinion, Prop 8 does not need any qualifier but should there be any ambiguity we could call it the 2008 California Prop 8. I don't think the value is there in banning names though. For example, the CFAA* would be just as horrible with any other name.
This would be a great way to prevent polititians from framing the bills.
For more on framing, see George Lakoff’s lecture on moral politics — reveals the way political language uses metaphors and How framing a debate ensures its outcome.
Repeating the frame reinforces the intended meaning. Merely Using the name of the bill defines its outcome.
“Tax Relief” - no one wants to fight a “relief” effort. Tax cuts for the rich would be the correct name.
“Clear sky initiative” is the name of a clear cutting bill.
"Reconciliation" seems to be the choice euphemism for budget cuts. I was reviewing some legislation (https://www.govtrack.us/congress/bills/115/sconres36/text) recently which failed to pass (budget slashing proposed by Rand Paul) and noticed that almost the entire text of the bill itself is "X Reconciliation", "Y Reconciliation".
Isn't that just because it used the process whose name is "reconciliation", which allows certain kinds of legislation to make its way through the Senate and the House with simple majorities and thus avoid filibustering?
I agree completely. I'd like to see some sort of "No More Orwellian Names" act. The titles would be obtained using some kind of algorithm run on the bill text. But then, lawmakers would screw with the text until the algorithm returned the title they wanted. D'oh...keeping people from working around regulations is difficult.
Good luck. We can't get them to stop ignoring wide swaths of the Constitution. Even if it were to pass, I wouldn't hold my breath hoping they would begin obeying some minor procedural rule.
Completely agree. Take the branding out of law making. In my home country and I think most former commonwealth countries you instead see acts with names that are simple and semi hierarchical, e.g. this would just be something like “Copyrights (Ammendment) Act 2018”.
Got a new change to a crime? Well that all goes in the Crimes act, so that would be the “Crimes (Ammendment) Act 2018” instead of the “Drugs Are Anti Patriotic and Congress Persons Spensoring this Are Good Vote For US” act.
The marginal return on this is probably a lot lower than you would think. Very few people ever know the names of the laws that are passed, and when the names are publicized, it is to mock them at least as often as it is to somehow fool people.
The vast majority of people in the U.S. do not follow what Congress is doing. They follow what media sources say Congress is doing. And media sources tend to focus on what bills will do.
I would argue that legislation names just do not matter. Medicare, Medicaid, and Obamacare are among well-known government progams whose names were not even in the titles of their enacting legislation.
As a counter argument, I think the PATRIOT act might have not gotten as much popular support had it born a name more accurate to what the bill actually covered.
The important thing here is that primarily good MMA has been bundled with the CLASSICS Act. From the EFF commentary:
"The CLASSICS Act gives nothing back to the public. It doesn’t increase access to pre-1972 recordings, which are already played regularly on Internet radio. And it doesn’t let the public use these recordings without permission any sooner. While some recording artists and their heirs will receive money under the act, the main beneficiaries will be recording companies, who will control the use of classic recordings for another fifty years. Important recordings from the 1920s, 30s, and 40s won’t enter the public domain until 2067. And users of recordings that are already over 90 years old will face the risk of federal copyright’s massive, unpredictable penalties."
This is much, much more about record labels getting money rather than creators of content. The industry already heavily rewards purveyors rather than generators; if anything, this makes things worse.
There has got to be a way of preventing "bundling". Bundling unrelated laws together is the cause of so much strife. Tacking shitty laws onto good ones, sneaking in some obscure clause that gives some senator a tax break that nobody noticed or they ignore because they want the rest of the bill, a highly favorable bi-partisan bill turned into a partisan issue because a clause that furthers the interests of the party that introduced it, and inane strawman accusations that follow because now it's easy to paint someone as the bad guy that is trying to undermine this universally good bill (nevermind that their holdup is this one completely unrelated clause). The whole quid-pro-quo political economy exists because this is possible (I vote for your bill with your pet clause, and you vote for mine.)
A big part of the deterioration of current state of political discourse in the US could be attributed to this one issue. I have no conception of how such a limit on the content of bills could be defined and enforced while maintaining the balance of power, but the current system is insanity.
One of the most prominent recent efforts was the line-item veto, but the Supreme Court (rightly) said that it requires a constitutional amendment.
You also have to be careful what you wish for. For years everybody bemoaned so-called earmarking. Congress finally prohibited earmarking in their procedures. But many academics have suggested that an unintended consequence was less compromise and greater partisanship in Congress. See https://en.wikipedia.org/wiki/Earmark_(politics) At the end of the day lawmaking and especially budgeting is fundamentally an ugly business. We should be careful about being overly cynical or fatalistic about it. The most important thing is transparency, but that requires the electorate to be more practically minded and less idealistic.
Line-item veto sounds interesting, but extremely dangerous. Some bills meanings and intent could be completely reversed by vetoing a single provision in e.g. definitions section. This wouldn't fix the bundling issue, it would just make the president another party in it, and give them super-congressman powers with the ability to essentially make legislature all by themselves. (And the first couple of paragraphs on the wikipedia article [1] confirm this.)
You're right about being careful what you wish for. That's half of the reason why I didn't try to present a solution: the problem is conceptually clear, but any specific solution will be muddied by the complexities of reality.
Here's my idea anyway: an independent legislative committee whose purpose is to find bundling in bills and can split/veto/force a rewrite before it can be voted on. A supermajority vote can override it. While we're at it, lets also task it with creating an official name that describes the bill without "cutsie" nicknames that misrepresent the content. But as with most "do it with a committee" solutions, this just pushes the problem down a level. We still need solid definitions for things like "bundled" and "related" and "representative" and a way to evaluate the effectiveness of the committee and to challenge their decisions (supreme court? ugh). So I guess this is less a solution and more just a different way to describe the problem.
Feel free to tear the above apart, but that's kind of the point. I'm glad I'm not the one making laws.
> Line-item veto sounds interesting, but extremely dangerous. Some bills meanings and intent could be completely reversed by vetoing a single provision in e.g. definitions section.
Line-item veto, both where currently used in states (for the most part, Wisconsin seems to be a radical exception) and when it was (unconstitutionally) adopted at the federal level, does not allow that.
It allows separate veto of individual appropriations of money within a bill that included one or more appropriations. It doesn't allow separate veto of arbitrary provisions of law.
This can still drastically alter the intent of a bill, but not it in the way you suggest.
There's a difference between allowing a line-item veto (which is a very bad, dangerous thing) and something which prevents unrelated legislation from being packaged together.
Lots of stuff [1] is passed in a batched consensus process, where any member can have one of the consensus items separated into a separate vote. You could extend this idea by letting a sub majority (1/3 maybe) split bills apart to be voted on separately.
[1] Ratifying the previous day's minutes, for example
I agree but the people talking about them would just nickname them anyway. Then I guess it would just be a matter of which nickname gets the most coverage, the feel-good name, the accurate name, or the scary name. Maybe that at least gives us a fighting chance.
Under traditional Parliamentary procedure the so-called long title of a bill circumscribed its effect. But for various reasons this was never a rule that courts felt empowered to enforce. British Parliament (to a greater extent) and Congress (to a lesser extent) adhered to the rule for a long time, but I think in the modern era it's really of no consequence any longer. Among other reasons, like corporate charters long titles now often include vague language that negate any limiting effect.
If you do so, be brief, polite, and state your position, for or against as well as the strength of your position (strongly against, etc.). The staffer will simply aggregate everyone's for/against positions. Verbal abuse or extra emotion is not helpful.
I agree that it's not helpful. I do think the verbal abuse and anger comes from the helplessness people feel since they know that these senators are greedy sociopaths that already know bills like this are bad and won't take your voice into consideration.
Extending copyright long after the life of an artist is bad economics. Because of the value of future money any revenue from future sales 30+ is essentially worthless now. So it doesn’t induce people to create more works of art and entertainment.
> So it doesn’t induce people to create more works of art and entertainment.
Promoting artists to create art has long been sidelined as a goal of copyright. Now, copyright is there to make sure already copy written works are profitable forever. I mean think about it. All they have to do is take old music and movies and repackage it as new media. Disney movies from the 30s can be remade today with CGI. Pop music from the 80s can be remixed in 2040, and a whole new generation of people will buy it up, without any artists involved. Copyright has lost its purpose.
I'm not a lawyer, but retroactive copyright extensions seem to me like they should be unconstitutional. It's logically impossible to "promote the progress of science and useful arts" by dead creators after their works have already been published by extending their copyrights. These laws should only be able to apply to new works going forward.
I agree it's bad economics, but not for the same reason. I think it's bad economics because it prevents cheap/free access to a huge corpus of media. This provides a barrier to entry for startups and entrepreneurs.
I've heard it claimed that Google could have never been started in Europe due to their copyrights laws being so onerous.
Is that if the price is constant over that time? Couldn't you just price the product to reflect roughly constant value, giving you linear return over time?
The demand for classic opera recordings is constant. Year after year people will buy the 1966 recording of Tristan & Isolde at the Bayreuther Festspiele with Wolfgang Windgassen singing Tristan. These are reliable moneyspinners for the record companies, you'd expect to see initiatives to extend copyright.
Well... the Bambi film came out in 1942. You can buy the Signature Edition DVD+BR for $30, but you can also buy a 2 disc special edition for $7.49, the Anniversary Edition for $15.96, and a Blu-Ray for $14.27. We haven't reached the used market, where eBay can get you a copy for $5, most of which will go to shipping it to you.
There won't be a "used market" for media in the future, because media won't be delivered on physical substrate. The publishing interests have been working to eliminate it for years. Between DRM and streaming I think they'll manage to kill used markets.
Generally you imagine that future money decreases in value (in real terms). For example, you need to at least beat inflation-protected bonds! So in order to get constant real terms over the life of a piece of art, the actual price to consume has to increase exponentially over time. But in fact we get the sense that most art drops in consumer value over time (how many times have you listened to Gangnam Style in the last month?) so exponentially increasing price would not bring linear return.
The main motivation for extending copyright 'till the cows come home is most likely to keep material from becoming public domain and thereby from making sure it doesn't compete with the latest thrash the industry is producing. If their latest auto-tuned plastic one-hit wonder had to compete against a wealth of free-as-in-beer music the risk would be for the latter to become popular among the cool kids. No free music means no risk of that happening.
They say that in ancient roman times during a triumph there would be a slave that follows the triumphant general whispering to him "remember you are mortal".
They should have a congressional page follow Orin Hatch whispering in his ear "remember you are not a singer songwriter, your songs all suck, and nobody would ever listen to them if you were not a senator."
It's there any point in fighting this sort of thing anymore? Shouldn't 'we' just make sure digital copies are available somewhere; like scihub does for scientific papers? It seems to be impossible to reason with the politicians everywhre on this subject, not just in the US, so perhaps direct action is all that is left.
I'm completely unsurprised that it's Hatch. At least he's gone at the end of the year.
But if I understand the article, the current state of play is that Hatch introduced this into a bill that had already passed the House. If the Senate passes this, then it's different from the bill that passed the House, so it goes to a reconciliation committee. If the copyright extension survives that, then the modified bill has to pass both the House and the Senate.
So, yes, this is bad, and we need to work against it. But we still have several chances to block it.
What's crazy to me is that this legislation really only needs one person to get it there, because Congress is nothing more than a club of mutual backscratchers. Why focus on real issues when you can spend all your your time acquiring IOUs that will eventually pay off big?
As if the music industry, an industry I dearly love, isn't shit already, now congress wants to make it even worse. I don't see how they justify the current streaming deals or how they are even legal. They certainly aren't fair. It seems that congress is solely concerned with the profits of distributors and couldn't give a rat's ass about the livelihood of all the musicians who create this music. Extending copyright is just another example of how wrong congress is on this issue. At this point, I don't even know what to say. Musicians had a chance to ditch the so-called record labels, yet they seemingly decided to trade them in for even shittier deals with the likes of Spotify and Pandora. And somehow it got codified into law. It's amazing to me that there are still musicians producing music for a living. I do not see this profession lasting much longer as a viable profession, except for the most popular, biggest artists. In other words, these idiotic copyright laws that are supposed to incentivize creation have essentially ended the aspirations of most professional musicians. Ironic that it was claimed that piracy would do this. From a musician's standpoint, however, what is the difference between piracy and Spotify when both generate a revenue stream asymptotical to zero?
Hmm. The argument seems to be that pre-1972 sound recordings (only recordings, not compositions) enjoyed protection under a patchwork of state laws and aspects of common law, protection that was arguably unlimited. (It's not clear to me whether these are technically considered copyright protections; I guess not.) Therefore, protecting artists' right to receive royalties from streaming, as long as the performance is still under copyright, isn't technically an extension; in fact the 2067 cutoff could be considered a new limitation.
So I guess my take on this is that I still feel that copyright terms (95 years or longer, depending on certain circumstances [0]) are too long, and I can see that this bill might technically not be making the problem worse.
Wait, isn't it life plus 70 years? If so, the only Beatles music that would be public domain any time soon would be if there were songs by Stuart Sutcliffe...
Now, but until a few years ago some countries (Canada) only gave 50 years from publication. So the law was changed. Google the "mickey mouse copyright graph" to see what I mean. The US has repeatedly extended its copyright terms coincidentally in time to protect Disney assets.
>>"The beneficiaries of this monopoly need do nothing to get the benefit of this gift."
That's unfair. There is nothing for free, specially in politics. It's more probable that, the work, has been already done and now they are receiving the prize for their lobbying efforts.
The linked Lawrence Lessig op-ed [0] makes reference to a Supreme Court case he argued, where the 70-year version of this law was upheld. Luckily, unlike the sound recordings in question, Supreme Court oral arguments are available to posterity unencumbered, under a legal framework that encourages small, innovative providers like oyez.org to deliver them to the public. Here's the argument in question:
It's fascinating to hear these oral arguments, because you have some of the smartest legal minds in the world making references on the fly to obscure two-hundred-year-old case law, stringing things together in logical ways in much the same way that the most exciting engineering conversations in our line of work involve rapid conversations at a whiteboard, where deep technical knowledge and logic come together to create frameworks and business models that have never existed before.
But while lawyers and justices are engineers in one way, building case-law "frameworks" to improve the citizenry's experience based on a wide range of constitutional knowledge and common sense... lawmakers are engineers in another way, "hacking" those frameworks to see what they can get away with. Sometimes "hacking" is good, but it's entirely dependent on the moral compass of the hacker.
In this specific case, the Supreme Court had argued on the basis of a balance of harm to different types of "progress" as laid out in the Constitution: is it more likely that progress will be economically incentivized if copyright terms are extended retroactively, or if copyright terms are not extended retroactively? At the time, a lot of this was tied up in ensuring consistency with international law. But that's not the case under the 144-year CLASSICS Act now being considered - as Lessig describes in the op-ed, "no other jurisdiction creates a similar right anywhere."
So to me, the balance if the Supreme Court were to review this case would be to consider a streaming music provider's incentives. Do more people hear and become inspired by 1930's public-domain jazz music if:
(a) it's all public domain, anyone can start a startup streaming it; or
(b) it's protected, and large streaming companies like Spotify can invest more money into the propagation of the work because they have exclusive rights to a subset of it, even if the subset that is now "orphaned" is not accessible as it would be in (a)?
It's a complicated question, and as a technologist I would lean towards (a) if harmony with international law is no longer a consideration. But, as I mentioned, legislators are "hackers," and with the Supreme Court unable (by design) to proactively limit their ability to build on the existing precedent that extensions are possible... it all comes down to their moral compass and alignment with their economic incentives.
...and per [1], Orrin Hatch has received $664k over his career from the "TV/Movies/Music" industry.
(IANAL but things like this make me want to be one.)
Here's what the Constitution says: Article I Section 8. Clause 8 – Patent and Copyright Clause of the Constitution. [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
So, what is a "limited" time? The current trend seems to be toward considering any mathematically finite number of years to be "limited". A hundred, a thousand, a million, a billion, a googol (10 ^ 100), a googolplex (10 ^ 10 ^ 100) — these are all finite numbers.
I would argue that the Constitution was written by and for human beings, and therefore "limited" means "limited on a human timescale", and therefore the upper limit should be about half a mean human lifetime. Certainly, if a typical human can be born after a copyright is established, and live their life and die before it terminates, in their experience that's effectively an unlimited duration.
Quoting corrupt congresswoman Mary Bono: "Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress."
They want copyright forever. They have the entitlement to think it should be forever.
Since those in power no longer respect it being for a limited time, I put forth the "exclusive rights" should not be respected either. I do not consider or respect any copyrights held by Mary Bono as a result.
Gifting this to a private company like spotify because they have more eyeballs and could invest more is shortsighted. Spotify won't be the leader forever by allowing anyone to listen the music it can he spread to more places and used in newer ways. Youtube creators, indie tv shows, corporate training videos, ringtones are current platforms that could use this music.
It's funny that the senator's party's platform is based around little to no government regulation and healthy capitalistic competition. Here he is granting an artificial monopoly for 7 generations. I'll bet his hands were well greased.
Ah yes, as opposed to all the other developed European countries, Canada, Australia, New Zealand, etc., which all signed the TPP/TTIP, which contains similar massive copyright extensions.
Copyright is about the least artificial monopoly that exists. An artificial monopoly is the government sending men with guns to keep bigger stronger men than me off my land. It's a chunk of dirt that existed millions of years before I was born and will continue to exist millions of years after I'm dead, but the government allows me to call it "mine." That's as artificial as it gets, but we call it "natural rights."
A monopoly on creative works--something that didn't exist before the person who created it--is far less artificial. (And granting a monopoly on something that's non-rival, so everyone can have as much of it as they want so long as they're willing to create their own, seems far better than granting one on a scarce natural resource.)
Animals might have monopoly over land that they are physically standing on and protecting right this very second. But they have no concept of property: land in some other place far away from them that somehow remains theirs even if they aren't there or never intend to go there. That sort of property is solely a creation of the modern state.
Territorial creatures have possession, not property, which is completely different. Bashing someone's head in and taking their property is natural right. Having the State send men with guns in response to that action is a highly artificial deprivation of that natural right.
I think you should read about natural rights. The traditional natural righta are life, liberty, and property, which is the opposite of what you describe. And natural rights only exist in an organized society, they are just the limits of what a human should give in its social contract with the society.
I'm pretty sure rayiner knows what the concept is, he's criticizing it for misusing the term "natural" and he's replacing it for something that is actually natural.
Besides, current property is quite far from the Lockean concept of mixing your own labor and only taking it when "there is enough, and as good, left in common for others", which the original "natural right of property".
Copyright is a monopoly on a specific creative work, not an idea. It’s intangible but it’s not an idea (Microsoft Windows for example, isn’t an “idea”). It’s a product of labor, just like a house you built.
> Copyright is a monopoly on a specific creative work, not an idea.
But courts — urged on by copyright owners — have extended the scope of copyright protection to nonliteral aspects such as (for example) look and feel and structure, sequence, and organization. Sometimes this is done while paying lip service to the principle that copyright doesn't protect ideas. The resulting fuzziness of the boundaries is one of the major sources of complaint.
That intangibility is what I am trying to get at: If someone builds an exact copy of your house across the street, you don't lose anything. The idea that you should be allowed to prevent them from doing so is copyright.
I don't think it's sensible to refer to all ownership of land as monopolistic. In most cases land is fungible. There are many landowners in my town of plots of land which are largely interchangeable. Saying someone has a monopoly on their specific plot of land is about as relevant as saying someone has a monopoly on a specific cheeseburger. If one party were to own all the land in a particular region, like a feudal lord, that may be considered monopolistic.
The case with copyright is that copyrighted works are by definition not fungible; if you create a trivially similar work, you violate the copyright.
Err, there's a reason the first three rules of real estate are 1. location 2. location 3. location
The key thing about land is that it's unique, there is no other place on the entire planet identical to the place you're standing. There may be similar places, and that may be fine enough for some people. But plenty of wars have been fought over a particular piece of land. Just ask the Palestinians if land is fungible.
That analogy would only make sense if Palestinians were being offered similarly-sized and similarly-resourced land, to compensate for what was taken away from them at the beginning of the Nakba 70 years ago.
Except, they're not. The land was seized, with no new land provided in return. Over time, more and more has been occupied and taken away from Palestine.
I was referring to a local basis. I.e. in most cases, plots of land of equal size on a given street are of similar value for similar purposes. My point is that people don't typically monopolise land to the extent that a prospective land buyer has one potential current owner they could deal with. Of course there are always exceptional cases where this breaks down.
Are the Palestinians being offered similar land? That fight seems pretty all or nothing.
But more importantly, very few bits of land are all that special. Location, location, location means that if a business got its pick of nearby plots, most would happily switch, and reap the benefits!
That's a very unconventional view. I'd argue that as presented it is based on an over-simplification of copyright. Specifically, "something that didn't exist before the person who created it" and "everyone can have as much of it as they want so long as they're willing to create their own" do not seem to accurately describe copyright law to me.
I don't think it's unconventional. Almost nobody outside certain circles cares about the "public domain." It's a romantic idea that has little relevance.
And why do you think that description of copyright law is inaccurate? Copyright protects concrete expression, not abstract ideas, and independent creation is a defense to copyright infringement. How many sci-fi books are basically identical and rehash the same tropes? That's not copyright infringement. It's only infringement if you actually copy someone else's work.
> It's only infringement if you actually copy someone else's work.
This is inaccurate. Copyright has been extended to cover fictional characters for instance.
Consider that at the copyright term of 144 years proposed, the character of Count Dracula would still be under copyright, and not freely usable for artistic works.
Unlike patent law which protects novelty, copyright only protects originality. Violating copyright requires actual copying of material.
Theoretically, you could independently conceive of Count Dracula[1] and put him into your own work without violating someone else's copyright. To prove violation of copyright the copyright holder must as a preliminary matter provide evidence that the defendant likely had access or exposure to the copyrighted material. Only once that evidence exists could the fact finder infer, based on similarity, actual copying. For widely disseminated pop cultural material, however, exposure is a rather easy burden to meet.
[1] I presume for the sake of argument that the character Count Dracula is per se copyrighted. But I don't think that's true. AFAIU only certain stylized versions of that character are copyrighted. This necessarily follows from the fact that to show violation of copyright you must first identify the specific material that has been copied, and then show substantive similarity and the extent of copying. IMO modern copyright law is too liberal in this regard (i.e. favors copyright holders) and has gotten rid of many bright line rules that rejected infringement claims early on. But all of this absolutely matters if you're going to trial. The Oracle v Google case was fundamentally about how to construe similarity and extent in the context of APIs.
Copyright only covers coming someone else’s fictional character. It’s not copyright infringement if you happen to come up with a character that resembles Hermione or whatever.
As to the Dracula example: why should you be able to use the fruits of someone else’s labor for free? There is literally an infinite amount of independent things you can create without using other people’s work.
> why should you be able to use the fruits of someone else’s labor for free?
Why not? I like the letter 'i'. Why do you get to use the letter 'i' for free when it is my favorite? Every time you use it without paying me, you deprive me of the potential profits that i could make licensing that usage. Why do you get to benefit from the heat my body gives off?
Anything that has infinite supply is going to have a low price (to free) price without artificial constraints. In this case the artificial monopoly is copyright. There is no scarcity, so gov't "regulates" and "distorts" the market to reward content creators. This is not a natural state.
I'm not against a well-balanced copyright system that actually encourages creation in exchange for a limited time monopoly.
I don't have a problem with copyright covering characters, but with the excessive copyright term. My example of Dracula is that he is regarded by most as a classical character, like Frankenstein or Scrooge, not a modern character to be licensed like a Marvel superhero. Should the works of Shakespeare be under the creative control of his distant descendants?
Yes; Mickey Mouse is covered by copyright law, via the copyright on the original work he appeared in -- Steamboat Willie.
While the protection of the copyright of Steamboat Willie in itself is probably of no consequence to Disney, it's foundation to the licensability of Mickey Mouse is.
The copyright on Steamboat Willie only protects Steamboat Willie. Copyright is specific to the work it protects; it does not provide general protection of the characters in the work.
Mickey Mouse the character is protected by trademark. Unlike copyright, there is no time limit on trademarks. As long as they remain in active use and defended by the mark holder, they remain protected. To be clear: Steamboat Willie could enter the public domain tomorrow and it would not affect Mickey's trademark status.
I don't know if/how it could legally be done, but I'd love to see "cute" names for laws barred from use in Congress. Refer to them all by number not brand names dreamed up by marketing professionals to make the proposed law seem unassailable ("Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act" aka USA PATRIOT Act).