But here’s my take, based on your facts (i.e., no first sale version of the book available in any format):

The purpose of the copyright law is to create an economic environment which encourages creativity by awarding control of the use of a created item to the author and by extension, the publisher, on the assumption that those people will be encouraged by the potential financial rewards to make the article commercially available during the period of copyright protection.

A book which is not now available in any first sale format from the
author/publisher has been abandoned for commercial purposes, and therefore the purposes of the copyright law can no longer be achieved.

I can’t see any reason that an author/publisher who is thwarting the purpose of the copyright laws by not making the book available in any form should be permitted to restrain possession of the book by the public.

I can’t see any reason to permit the author/publisher to control non-commercial redistribution of a book where commercial abandonment has occurred.

So I don’t see any reason why, when those are the circumstances, an end user can’t do whatever he wants with a book, in whatever format, so long as he doesn’t attempt to benefit commercially during the copyright period. It’s hard for me to see why that isn’t “fair use.”

Your obligation is to make a diligent search for an accessible point of sale for the book. If there isn’t one, then there’s nothing to feel guilty about in downloading the “pirate” copy.

Okay, I’m sure that has all been said in one way or another. But here’s my question:

Why, in today’s internet environment, doesn’t an author or publisher simply download a copy of the pirated book, and throw it up on a web site with a link to PayPal? Or better yet, put up the site, link to PayPal, and provide the reader with a link to the pirate site, so that readers can pay for the book, while the pirate site does all the work and pays for the bandwidth.

You seem to imply that there can’t be any “great work” from authors without copyright. However a lot of our valuable works were made well before copyright, especialy well before copyright was life plus 95 years of exclusive and extremely extended rights – DRM etc…, you seem to forget about those. What do you suggest, all these old authors were “crap” or “fools”? I don’t think so.

“who gets to decide who should be paid for their work — and how much? The government?”

The government is currently deciding the form, perimeter and duration of those laws and so is in practice currently directly deciding who should be paid for their work and how much. And in some case who should die, eg drug patents. The government also directly pays lots of money to authors in many countries, for movies, the press and cultural work at large. Many creators are also public employee: think mathematics for an example where about all creators are public employees in most part of the world.

So not much of an argument here, it’s government already.

About replacing exclusive rights for revenue there are many options.

One is very well known and has worked very well probably for about all of mankind history: prizes. They can be private (may be with tax incentives) or public (with votes or not). Prize in particular help getting known, once you are known many indirect ways exist to make a confortable living. Joseph Stiglitz is advocating prizes for example:

http://www.heise-online.co.uk/news/Nobel-laureate-criticises-intellectual-property-rights-system–/111066

There is also the option of just nuking intellectual property and let the free marlet work. In my case I’ve just stopped or nearly stopped to buy books, movie and music, most of my collection increase are now gifts by friends and relative. This part of revenue will likely be unaffected if IP is gone (think about the incentives). Some music is now legally available both free and for pay at the same time and with great success, amazon 2008 best seller was openly available for free (latest NIN album).

Also, about selection work for good and bad, the internet still has lots of potential against the current regime of editors. When you think about software you can see how well free and open software has done in selection by quality against the still existing traditional editor monopoly. Software is of course a special form of work, but by how much really?

I will also remark than society and politicians have already taken wide-ranging decisions that made the life of millions of blue collar worker very difficult (and sometimes deadly) all around the world (laws against unions, unlimited capital and goods movement with unexistant rights for people to move, etc…). Most of the benefits of intellectual property accrue to lawyers and big corporations, why would it be so hard to let it go? After all it’s a small decision.

Sincerely.

Making statements like this are very easy; however, the question is what system of compensating authors sufficiently that they can have food with their meals. I’m reminded of the old saying, “democracy is the worst form of government — except for all of the other forms of government”. No question, using the notion of copyright to allow creators to derive income is not perfect. Some creators get far more money than would be considered “fair”, and there are plenty of creators that arguably do not get sufficient compensation for their work. The question is what we replace copyright with?

In a pure, “there’s no such thing as intellectual property” regime, only amateurs would be able to write novels, short stories, etc. They would have to depend on some other job (maybe being waiters or waitresses, the traditional job for starving actors who are trying to make it big — except they would have to do this for their entire life?) — or maybe they wouldn’t write at all. If you consider that many books, such as War and Peace, Great Expectations, were written primarily as a way for their authors to barely make enough to live (and pay off gambling debts), the claim that “great works of literature would exist even if copyright didn’t exist” is very hard to believe.

So what’s the alternative? Most wanna-be authors are in fact, pretty bad. Read some of the stories of editors who have to read submissions from first time authors. (For example, read this editorial, “Slush”, by Mike Resnick for a description of the dreck editors have to wade through to find the few good writers from wannabe authors.) Without the profit motive of the “artificial scarcity”, who gets to decide who should be paid for their work — and how much? The government? Gee, that should work well….

“”" Just to illustrate how great out ignorance of the optimum forms of delimitation of various rights remains – despite our confidence in the indispensability of the general institution of several property – a few remarks about one particuilar form of property may be made. [...]

The difference between these and other kinds of property rights is this: while ownership of material goods guides the user of scarce means to their most important uses, in the case of immaterial goods such as literary productions and technological inventions the ability to produce them is also limited, yet once they have come into existence, they can be indefinitely multiplied and can be made scarce only by law in order to create an inducement to produce such ideas. Yet it is not obvious that such forced scarcity is the most effective way to stimulate the human creative process. I doubt whether there exists a single great work of literature which we would not possess had the author been unable to obtain an exclusive copyright for it; it seems to me that the case for copyright must rest almost entirely on the circumstance that such exceedingly useful works as encyclopaedias, dictionaries, textbooks and other works of reference could not be produced if, once they existed, they could freely be reproduced.

Similarly, recurrent re-examinations of the problem have not demonstrated that the obtainability of patents of invention actually enhances the flow of new technical knowledge rather than leading to wasteful concentration of research on problems whose solution in the near future can be foreseen and where, in consequence of the law, anyone who hits upon a solution a moment before the next gains the right to its exclusive use for a prolonged period.”"”

The Fatal Conceit: The Errors of Socialism, 1988 (p. 35) Friedrich von Hayek

Applying copyright laws to software (which is most often not a work of art, but a work of “craft” was always a bit strange for me.

I think there are a lot of pitfalls in the idea of releasing something to the public domain as soon as it falls out of print. Imagine I am a small publisher running my own presses. At what point would I have to stop accepting new books for publication, because I can’t let anything go out of print? What if I fully intend to reissue a book – but in three years, not today? What if my entire strategy is limited editions? Why should that not be allowed? I’m sure there are many other cases where such a ‘public domain when out of print’ would have unintended consequences throughout the, err … ‘creation chain’. All of the people and processes that facilitate a work going from creation to my appreciative two hands. I’d want to see people thinking about them very carefully before enacting such a thing.

Now, I’d very much welcome it as a creator option … and as such, it exists today. An author could easily write into his publishing agreement a provision that states ‘if for two years you don’t sell x copies, then the work falls back to {me the author|the public domain|some other entity or agreement}’.

I think we could certainly could encourage more authors to do this for their very next book.

The rights of the copyright owner is not absolute, even today. Copyright is a limited monopoly which is granted by society for the betterment of society. It is not just to enrich Disney (although it has managed to buy enough legislators to believe that), nor is it to give absolute control of a work to its creator.

If you don’t believe that, take a look at the US Copyright Code, Title 17, Chapter 1, Sections 107 through 122. They list all sorts of limitations on the creator’s exclusive rights granted by Title 17, Chapter 1, Section 106. Some of those limitations make absolute sense. For example, Section 117 allows you to make a copy of a computer program from the hard drive to the memory so you can run it. Section 110, subsection 1, allows performance or displays of copyrighted materials in classrooms of non-profit educational institutions — without having to pay any royalty fees. That’s because Congress decided as a matter of public policy, supporting the mission of non-profit educational institutions was more important than the absolute right of the creators of the copyrighted works. A more interesting one is the performance of non-dramatic musical works at agricultural or horticultural fair, which similarly does not require paying royalties. (Section 110, subsection 6). That one you can probably write off to powerful senators from farm states, and is probably about as legitimate as the Infinite Copyright Extension Act for the Protection of Sonny Bono and Mickey Mouse, but the point is that copyright has never, ever been an exclusive right.

So the question is, for public policy reasons, should it be possible for certain copyrighted works that were previously for sale for mass market consumption, and so those works have become part of our culture, but which have now gone out of print, is a good thing; and if it is not a good thing, maybe people who do own copies should be allowed to make copies and give it to others. Whether we could get such an amendment to US Copyright Law passed is a different question, but the question here is what is the Right Thing? Then we can decide whether it is possible to get past the corporate lobbyists that are bound and determined to maintain the status quo, or worse, yet extend copyright by even longer and longer terms. (In some sense, the problem of works going out of print has been made worse and worse by Congress; so it may be an that enforced repatriation of an unexploited copyrighted work to the public domain might be a patch to to fix the problem.)

I recognize that limited edition artwork is a problem that would need to be addressed; so maybe this would only be done for books, music, computer programs, etc., that have been sold for the mass market. I don’t have all of the answers here; but perhaps this would be a starting point. The important thing to remember, especially if you look at the actual US Copyright Code, that the exceptions can be very carefully and finely drawn; it doesn’t have to be a Grand General Principle that applies to all works of arts identically.

As to the second paragraph. I think any property owner should be able to fiddle with price as they wish. So I’d be pretty worried about a proviso which mandated the work goes into PD as soon as it’s not commercially available at essentially the price it was introduced to market. A lot of creators would then feel pressure to hedge their bets by setting initial price very high. In other words, the gaming could easily happen by setting initial price to $10 million, then lowering it to $10 a week later. Remember, th market’s ‘invisible hand’ just keeps on working, day in and day out. Except in the case where a rights-owner has simply decided they want their property off the market, there’s no incentive to price oneself completely out of the market.

But I don’t see why the playing field has to be re-balanced to essentially tell creator/owners that they must either continue selling their product, or lose it to the public domain. Is it theirs, or not?

Gen X