Subject: Re: Thought crimes
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Wed, 27 Dec 2000 14:26:12 +0900

>>>>> "shap" == Jonathan S Shapiro <shap@cs.jhu.edu> writes:

    shap> *Should* copyrighted material revert to the public domain
    shap> after X years?  Why?

These I can't answer, but ...

    shap> Who is the government to say that I should be forced to give
    shap> up the fruits of my labor rather than pass them to my
    shap> children or grandchildren?

It doesn't say that.  AFAIK you can make a private contract with your
customers to make passing it on possible (see below).

With respect to copyright as we know it, the government is the creator
and enforcer of the right in the first place.  Copyright is a social
artifice; the government (as "representative of society") can offer
whatever terms it likes.  You can withhold your work, but you have no
innate right to demand that the government enforce copyright merely
because you have released a work.  The only claim you have on action
by the government is that social contract.

Also, since intellectual assets are non-rival, there is nothing in
termination of copyright protection that forces your progeny to give
up the physical fruits of your labor; they can keep their copies.  Nor
will the government take away any revenues you have already received
(except by the usual forms of taxation).  It is just discontinuing its
promise to exercise force against people who happen to come into
possession of copies of your work without paying you for them.

Question: does copyright law make it impossible to make a private
contract involving a longer term (or even perpetual) NDA on a work?

If not, you can argue that content providers who think they need/can
get more protection than the automatic copyright provides should be
willing to pay the transactions cost of negotiating such.  (Which
would be high compared to the current "shrink-wrap" nature of
copyright protection, but not all that high---you could simply require
that vendors read the customer their "lack of rights" and get a
signature on a "I understand the license" document as well as on the
credit card slip, I would think.)  Presumably enforcement costs would
be higher, too, but I don't know enough about those things in practice
to know by how much.

If it is impossible to create such contracts, maybe we should make it
possible, and so impose the burden of enforcing putative "innate
rights to IP" on those who believe in them.

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