Ed. note: The following is the text of a speech given April 1 by retired United States Rep S. Douglas Maynard before the 4th Annual Restore Intellectual Property Protection for Economic Recovery Summit and Retreat.
First of all, to the members of Restore Intellectual Property Protection for Economic Recovery, I wish to extend my sincere thanks at being invited to speak here today before such a distinguished group. RIPPER is among my very favorite political action committees. I would also like to take a moment to extend an extra-special aloha to all of the distinguished Members of Congress who have taken time out of their busy schedules to join us here at the beautiful ’Alunu Beach Resort. Hopefully each and every one of our friends from inside the Beltway will find the time for at least one round on the resort’s breathtaking course. I myself played a round yesterday, and all I will say for the record is that my score over eighteen was lower than the national debt.
And now to get down to matter for which I was invited to speak here today.
Property. Specifically, intellectual property.
Webster defines property as, “something to which a person or business has a legal title.” As the members of RIPPER are well aware, within the economy of our beloved nation there exists vast amounts of intellectual property to which no person nor business nor, amazingly enough, government, holds any legal title whatsoever. “How can it be the case,” any intelligent person might ask, “that property can exist without ownership?” It is the case because all of this valuable intellectual property has been permanently exiled to the ignominy of a vast economic wasteland. I speak, of course, of the so-called “public domain.”
If the average American citizen has even heard of the so-called public domain, that citizen very likely labors under the mistaken impression that it consists of a few antique curiosities about which nobody much cares any more. A smattering of old books. A few faded black-and-white photographs. A dusty heap of classical compositions of the sort routinely heard (at taxpayer expense) on National Public Radio. Fortunately, my good friends from RIPPER are gearing up to launch an informational campaign that will set our mistaken average American citizen straight about the true facts of the so-called public domain. This campaign will inform the great American public that:
- the so-called public domain is swollen with millions of abandoned books, photographs, musical compositions, art works, and other examples of creative output;
- these works have—if ever unlocked—huge economic value;
- many of these lost works embody the very essence of our precious American freedoms and the foundations of our great American civilization.
So what, exactly, makes up this so-called public domain?
- When you were a child, did your mother ever read you the wholesome, morally enriching stories of Mother Goose? These beloved stories, I regret to inform you, are locked away in the so-called public domain.
- Ever hear of The Declaration of Independence? The document that, unless I am very much mistaken, guarantees Americans the right to life, liberty, property, and the pursuit of happiness? You guessed it. Locked away in the so-called public domain.
- I will hazard a guess that you have heard of a little book called The Bible? The self-same Holy Bible that, thank God and our wonderful brave veterans, you will find in the bedside table of every American hotel room? My friends, believe it or not, even The Holy Bible is a prisoner of the so-called public domain.
Yes, as shocking as it may be, millions of our cultural treasures, among them the greatest, most inspiring works of human genius and ingenuity ever created, sit moldering in the void, as ownerless and economically unproductive as the fallow collective farms cooked up by Josef Stalin during the darkest days of the late, unlamented Soviet Union. Maybe there are people in this country who don’t care about “The Old Lady Who Lived in a Shoe,” The Book of Genesis, or The Emancipation Proclamation. But you my RIPPER friends, are proud Americans who care deeply about each of these national treasures, who care very deeply about all the millions of pieces of intellectual property presently condemned to economic limbo.
“How,” the average American citizen might ask, “was all this precious intellectual property stolen from its rightful owners in the first place?” The answer lies in our copyright law—our unjust, misguided, antiquated copyright law, which reads as if it could have been penned by Karl Marx himself.
You see, when you create intellectual property in the United States, the law says that you own the rights to your intellectual property, and I quote, “For limited times.” Yes, you heard me right.
For.
Limited.
Times.
The copyright law of the United States of America—not of Iran or North Korea or the People’s Republic of Berkeley—says that you may keep the rights to your own intellectual property for only “limited times.”
Imagine if the copyright law were extended to all property.
- “Congratulations Mr. Jones, you’ve paid off the mortgage on your house. However, I must inform you that you may retain ownership of your house for only a limited time.”
- “Yes little Suzy, I realize your mommy and daddy bought you that teddy bear, but the law says that a limited time has passed and now you must hand your beloved toy over to a bunch of strangers.”
Although this is only the Fourth Annual RIPPER Summit and Retreat, opposition to the socialistic “limited time” copyright law is nothing new. The great American author Mark Twain once said, “Only one thing is impossible for God: To find any sense in any copyright law on the planet.” Mr. Twain, in his folksy, common-sense wisdom, was strongly of the opinion that a creator’s rights to his own copyright should never expire.
More recently, Rep. Mary Bono Mack (R-Calif.) stated on the floor of the House that, optimally, copyright should last “forever less one day” (PDF file). And I am proud to tell you that not only was I serving as Congresswoman Bono Mack’s House colleague when she uttered those memorable words, I leapt to my feet to lead the cheering.
All this is not to say that some progress has not been made already. In the dark ages of 18th-century America, copyright lasted, at most, a mere 28 years. In our more enlightened era, personal copyright now extends to the life of the author plus 70 years, while corporate copyright lasts up to 120 years. Not forever. Not forever minus a day. Yet certainly a step in the right direction.
But what about all that potentially valuable intellectual property for which today’s more enlightened legislation came too late? Do you realize that every piece of intellectual property created before 1923 languishes in the economic black hole that is the so-called public domain? Do you realize that virtually every document published by the government of the United States of America—regardless of when it was published—lies trapped in the abyss? Yes, you heard me right. Every document created by the government of the greatest nation in the history of the world goes automatically into the public domain where it can be freely read, copied, usurped, and twisted by the enemies of freedom. Seen in this light, the so-called public domain is positively treasonous.
Only Washington can solve this problem. Solve it quickly, simply, decisively, and permanently by taking a single bold step: Eliminate the so-called public domain.
Reaping the profits of privatization
Certainly, eliminating the so-called public domain is the right thing to do if you believe in America; if you believe in the right of free individuals to reap the fruits of their labors; if you believe that the tentacles of socialism must be hacked off at the root before they strangle our precious and proven free-market economy. But, my friends, there is something else you need to know. Eliminating the so-called public domain would not only right a great injustice; done wisely, it will also provide the American public with some badly needed relief from the crushing burden of federal taxes.
For RIPPER proposes that Congress not merely end the so-called public domain by fiat; rather, RIPPER’s market-driven proposal is that the government of the United States auction off the public domain item by item and use the proceeds to extend tax breaks to the American people.
Is there enough value in the public domain to make auctioning it off worthwhile?
Absolutely.
Consider the well-known fairy tale Cinderella, a story that is currently imprisoned in the so-called public domain. Were the permanent rights to this story to be auctioned off, the high bidder would control, and be in a position to profit from, any future works derived from the story of Cinderella regardless of format. He would also control all previously existing derivative works.
Say a well-known entertainment corporation had at some time in the past made a highly successful animated film derived from the story of Cinderella. That corporation would have to negotiate with the new owner of the story in order to continue profiting from the film itself as well as from any spin-off works or merchandise. Given the potential profit, how much would you be willing to bid for the rights to Cinderella? Or Snow White. Or Alice in Wonderland? At the same time, consider how much the creator of an animated version of Cinderella would be willing to spend to prevent someone else from ending up as the owner of the source story and, in the same stroke, obtain control over all other derivative versions of that story.
Children’s tales are just the tip of the potential income iceberg. Imagine how much an individual or organization might pay for the exclusive, permanent rights to, say, William Shakespeare’s Hamlet? Beethoven’s Fifth Symphony? The Gospels of the New Testament? To the millions of documents produced by the government of the United States of America?
How much would the National Rifle Association pay to own the exclusive, permanent rights to the Second Amendment? Imagine the bidding between, say, the ACLU and the League of Decency for the rights to the First Amendment. Between Planned Parenthood and pro-life supporters for ownership of the text of Roe v. Wade. And speaking of bidding wars, just imagine the competition between Major League Baseball and the National Football League for ownership of the words and music of “The Star Spangled Banner.” And don’t overlook product placement as an incentive:
- The Federal Express Gettysburg Address.
- McDonald’s FDA Dietary Guidelines for Americans.
- Arrowhead Spring’s Water Music Suite.
Of course not every piece of intellectual property in the so-called public domain will fetch millions; even so, there are still economic possibilities to be found among the lesser denizens of that blighted landscape. It is easy to imagine ordinary Americans bidding on the “penny stocks” of the public domain—forgotten 19th-century poems and novels, insignificant government documents, random tintypes—in the hopes of taking ownership of a piece of intellectual property that will someday appreciate in value. Indeed, the selling and trading of low-dollar intellectual property would be the biggest boon to the home-based entrepreneur since eBay and day trading. I can also imagine corporations buying up large parcels of the so-called public domain and then selling shares in what would be, in effect, intellectual property mutual funds.
I mentioned the story Cinderella earlier. Our Congressional guests from the great state of California are thinking that executives of a certain corporation headquartered in Orange County would not be pleased at the thought of spending millions of dollars to purchase the rights to Cinderella and certain other public-domain stories from which they have derived extraordinarily valuable films and related properties. My response is that these executive will, in fact, be quite pleased to make such expenditures when they learn of the three additional points of RIPPER’s plan to restore fairness and economic common sense to intellectual-property law:
The fairest uses of them all
Point 1. In conjunction with the auctioning off of the public domain, RIPPER proposes that Congress do away with the fair use provision of the copyright law.
Fair use. It sounds so benign. So even-handed. So, well, fair. The fact is, however, that fair use is nothing more than a license to steal the property of others. Let’s say the principle of fair use were expanded to include bank accounts: The terms of fair use would allow anyone to steal from your bank account so long as they didn’t steal too much. Making matters worse, the law gives no clear guidelines as to how much is too much. It would depend on how much was in the account to begin with, who stole it, and what they used the stolen money for. Hardly something to set your watch by.
Eliminating fair use would finally give owners of intellectual property the same degree of control that owners of every other type of property known to mankind have enjoyed for centuries. When someone trespasses in an apple orchard, stealing one apple is as much an act of theft as stealing a bushel, so why should intellectual property be treated any differently? Relieved of the burden of fair use, an owner of intellectual property could at last control not only who used his property, but also when, how often, for how long, and for what purpose. The elimination of fair use would, most of all, prevent the incremental theft of intellectual property that today goes on unchecked by the law.
Point 2. Congress should also eliminate fair use’s ugly stepsister: the first-sale doctrine.
A bat straight out of socialist hell, the first-sale doctrine is yet another license to steal intellectual property from its rightful owner. Now you may hear people say that getting rid of the first-sale doctrine will hurt libraries, but that is a red (as in socialist) herring. Libraries could still lend without the first-sale doctrine; they would simply be required to pay the owner of an intellectual property a negotiated sum each time they made a loan, which is only fair. After all, if I pay my mechanic one time to fix my car, it doesn’t obligate him to continuing fixing it for free for as long as I own the car. Just as the mechanic is paid for each job, the owner of an intellectual property should be paid for each use.
Would this added cost hurt libraries? You can argue that laws banning murder hurt the manufacturers of coffins, but if stomping out a major wrong comes at the cost of sacrificing a marginal good, that’s a price any reasonable American is willing to pay. Besides, “Ye Olde Publik Library” may have been a quaint idea in the day of the village green and the town crier, but today people live in the age of the Information Superhighway. With the internet as nearby as our home computers, we no more need public libraries toady than we need public television when, at the touch of our remotes, we can get the History Channel and dozens of cable news networks. Time has left the library behind, and it is time for the law to catch up.
Point 3. The way the law now stands, most theft of intellectual property is considered a civil, not a criminal, matter. This makes no sense. So long as the theft of intellectual property remains decriminalized, an intellectual property owner must assume all the trouble and expense of defending his rightful property against the depredations of thieves. First, he must assume the role of detective in uncovering any theft of his property and, second, the role of prosecuting attorney in order to get justice from the courts. Indeed, the cost of taking an intellectual property thief to civil court is so high that average Americans without the financial resources of a large corporation are rendered nearly defenseless.
What Congress must do to right this wrong is to, first, criminalize all theft of intellectual property and, second, establish a federal intellectual property police force so that theft of intellectual property can be professionally detected, investigated, prosecuted, and punished on an equal footing with all other forms of theft.
Imagine an America with no so-called public domain, no legalized theft via fair use or first-sale doctrine, and full criminal prosecution of intellectual property thieves. In this fairer, more just America, an intellectual property pirate who, say, posts a clip of the animated version of Cinderella to a website would soon find himself under arrest by the federal intellectual property police. Prosecutors would try the case in federal court, and, upon conviction, the thief would be subject to fines and imprisonment. Meanwhile, the owner of the intellectual property—notified by federal authorities of the theft—could bring suit in civil court against both the thief and the internet service provider who permitted the posting of the clip. I guarantee it would not take many such cases before theft of intellectual property becomes all but unknown.
I also guarantee that, given the three-part protections proposed by RIPPER, the executives of every corporation holding intellectual property derived from works currently in the so-called public domain will have no objections to bidding on the true, full, just, and permanent rights to those seminal works.
Yes, I said permanent. For the end of the public domain will mean the realization of the dream of Mr. Mark Twain, Congresswoman Mary Bono Mack, and tens of thousands of other owners and creators of intellectual property. For without a public domain, copyright would, at last, last forever.
I and the good people of RIPPER say that it is time for Congress to put aside its ideological differences, stand up for justice, and finally say, “Limited times, your time is limited.” For the time has come to end the so-called public domain, unlock the treasures of our culture from the deadly grasp of misguided social engineering, and, in the process, pump up the beleaguered American economy with a badly needed tax break.
Thank you for your attention on April Fool's Day and, as always, God bless America.
DONALD A. BARCLAY is interim university librarian at the University of California in Merced.