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#1
Old 02-20-2003, 02:45 AM
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Will they ever let copyright expire?

Copyright protection was for 50 years. Then in '76 they extended it by law to 75 years. Then in '98 they extended it to 95 years for corporate held copyrights.

So, are they gonna prolong this charade forever? Will film and music ever become public domain?

I think the fact that mass media and consumerism has developed to the point it has, perhaps they'll extend it forever. If a recent lawsuit had been successful, then the retroactive extension of copyrights in '76 and '98 would be knocked down, and any movie or audio recording copyrighted before 1946 would become public domain. Would they really allow Citizen Kane to be public domain? Not likely.

Never in the history of man has there been such capacity to turn a 95 year old work of art into a big revenue generator. Will the corporations really allow themselves to let go?
#2
Old 02-20-2003, 06:14 AM
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The Supreme Court has paved the way for them. The only way they'll stop is if the entertainment industry runs out of money and can't afford to keep buying senators.
#3
Old 02-20-2003, 06:26 AM
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The Copyright Extension Act was sponsored by Sonny Bono, and was basically a billion dollar gift to Disney. Then they rubbed him out by putting a tree from Toontown on the slopes. At the last second, it stepped into his path.
#4
Old 02-20-2003, 01:02 PM
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Just to join in the chorus of cynicism here. Congress will extend copy right protection toward the far horizon as long as the industries that profit from extended protection give money to Congressmen. Sooner or later the Supremes will hit a case where the length of protection is tantamount to perpetual and the Supremes will put a stop to it. Of course, that line may have Sleeping Beauty protected well into the 22d century. Clearly the founders did not have anything specific in mind when they said that copy right shall be limited—just some ephemeral limit, or so say the original intent types.
#5
Old 02-20-2003, 02:12 PM
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Haven't had the energy to wade through the Eldred decision. But it's hard for me to buy the idea that the 'original intent' of 'limited times' wasn't in relation to that most fundamental of yardsticks, the typical human lifespan.

Speaking of original intent, the clause pertaining to copyrights and patents gives Congress the power to 'promote the progress of science and useful arts,' with the means being securing exclusive rights for limited times to the authors and inventors. I did notice that the Eldred decision effectively rewrote that clause, writing out the first part, and giving Congress the power to extend the length of patent and copyright protection, without any showing that the extension promoted the progress of anything.

'Original intent', my ass.
#6
Old 02-20-2003, 02:50 PM
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Quote:
Originally posted by RTFirefly
Haven't had the energy to wade through the Eldred decision. But it's hard for me to buy the idea that the 'original intent' of 'limited times' wasn't in relation to that most fundamental of yardsticks, the typical human lifespan.

Speaking of original intent, the clause pertaining to copyrights and patents gives Congress the power to 'promote the progress of science and useful arts,' with the means being securing exclusive rights for limited times to the authors and inventors. I did notice that the Eldred decision effectively rewrote that clause, writing out the first part, and giving Congress the power to extend the length of patent and copyright protection, without any showing that the extension promoted the progress of anything.

'Original intent', my ass.
Wrong. What the Court did was to hold that so long as Congress had a rational basis for concluding that the extension promoted the progress of science and useful arts, the extension is constitutional and would be upheld. The Court found that Congress did have such a basis, and its extension of the copyright term was constitutional. The Court can't overturn laws just because they feel they are bad policy.

And this is basically the point - the length of copyright is a policy decision, not a constitutional one. Maybe, maybe, there is some point at which a copyright term would be effectively perpetual, but it would be a very serious thing indeed for the Supreme Court to overturn a law simply because they think it's a bad policy. Reasonable minds may disagree as to what the appropriate length of a copyright term is, just as they might disagree about the appropriate rate of taxation, pollution emissions, defense spending, etc. Congress is the body charged with weighing those opinions and passing a law that it believes strikes the right balance. If the Court overturns a law because it believes Congress struck the wrong balance, it is basically substituting its judgment for Congress' judgment. Unless we're talking about a separate constitutional violation (e.g. that the law offends equal protection), that's a very serious thing. It's nine unelected, unaccountable, life-tenured judges substituting their judgment for those who are elected to do the job.

So much of the bellyaching about the Sonny Bono Act can basically be summed up as "Waah! I wanna copy music! I wanna copy movies! I wanna copy Mickey Mouse! But the meanie media companies are so big and rich and strong and they get Congress to pass new extensions! We need the Court to protect us! Waah!" If another extension law comes up, those opposed should mobilize those that are interested, and make their voices heard. If enough people really care, or can be persuaded to care, the law won't pass because, guess what, Congresscritters are accountable, are not life tenured, and have an incentive to listen to people. I can vote for my Congressman, I can vote for my Senators, but last time I checked, I didn't vote for anyone on the Supreme Court.
#7
Old 02-20-2003, 05:09 PM
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While some (like jeevmon) will applaud the Eldred decision as a kind and just showing of judicial restraint, the decision says congress could make copyrights last one billion years if they so desired.

And no, it is not about "wahh I wanna copy music and mickey mouse." It's about preserving the social contract copyright holders entered into when they initially created their work. They shouldn't keep getting "gifts" every couple of years in free extensions of their term. If you and I enter into a contract, I don't get to unilaterally change a term of the contract every couple of years to my advantage without you also getting some benefit. Also, and most importantly, is that Mickey Mouse came from the public domain. So did snow white and most of disney's other "classic" movies/characters. They had no problem copying the Brothers Grimm. The public domain is vital to the creativity and free flow of ideas in our culture. Ulimited copyright terms (or constantly extended ones - no difference) destroy the public domain and ensure nothing will ever enter it. It's horrible.
#8
Old 02-20-2003, 05:56 PM
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But the "gifts" you refer to are coming from the entity that is authorized, empowered and, most importantly, elected to represent the public and the public interest. That's Congress. The Courts can review them to decide if they're constitutional or not, but can't review them to decide if they're good laws. And there's no billion year term under discussion, so raising that bogeyman simply

So, your contract analogy doesn't wash, because to the extent any revision of the "contract" is occurring, it is occurring because of mutual consent between the copyright owner and the public's representative, i.e. the legislature, a/k/a Congress. If you feel that Congress is not acting in the public's interest in this regard, then change the Congress. Our political system provides a means to do that every two years. And if enough of the public agrees with you, things can and will change. And if the public doesn't care, your position is essentially analogous to the person who believes that the public interest will be best served by a flat tax or by eliminating the Department of Defense.
#9
Old 02-20-2003, 06:00 PM
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But i want to make Steamboat Willie meets Citizin Kane cartoons! Minnie was a Sled!!!!
#10
Old 02-20-2003, 06:39 PM
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Ya know if Disney had been around in ancient Phoencia 4000 years ago, we would be paying Michael Eisner 5¢ each time we type an "a"

Yes this is a policy issue rather than a constitutional issue. But how does this second extension of copyright on existing works "promote the progress of science and useful arts"? Is Congress waiting for Walt to thaw?
#11
Old 02-20-2003, 06:45 PM
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Jeevmon the "don't blame congress because they represent and are elected by the people" line of reasoning is nothing more than idealistic. Sounds nice and fluffy but we all know it's bullshit. As long as Disney can afford to pay congress for copyright extensions every time Mickey is facing the public domain, the will of the people is thwarted. To make this argument is to ignore reality and throw pragmatism out the window.

As is the constitution. The Copyright Clause in the Constitution does not authorize Congress to perpetually extend copyright terms. It says "for a limited time" -- and if it's understood that your work will never fall into the public domain then congress is acting unconstitutionally. Perpetual <> limited time.

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[.]

Not only does this enumerated power require the terms to be limited, but it specifies the sole purpose of granting the limited monopoly of intellectual property rights. Extending a term after the creation of a work does absolutely nothing to promote the progress of science and useful arts. The work has already been created; granting it a longer term steals from the people and re-rewards the creator who has not added anything to the work since the original grant of copyright.
#12
Old 02-20-2003, 07:49 PM
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Quote:
Originally posted by jeevmon
And this is basically the point - the length of copyright is a policy decision, not a constitutional one. Maybe, maybe, there is some point at which a copyright term would be effectively perpetual, but it would be a very serious thing indeed for the Supreme Court to overturn a law simply because they think it's a bad policy.
I believe there is a Constitutional point here: if a copyright term can be extended retroactively, if it's only limited by the future decisions of Congress, is it really "limited" at all as that word is used in the copyright clause?
#13
Old 02-20-2003, 09:41 PM
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Technically, a million years could be considered a "limited time" because it's less than infinity.
#14
Old 02-20-2003, 10:17 PM
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[WARNING - Factoid that needs confirmation from a legal professional]

IIRC, any contract with a life over 100 years is considered perpetual in common law. Since copyrights are now limited to 95 years, they are of a "limited time" and therefore constitutional. If Congress tried to extend copyright life over to over 100 years, it would considered perpetual and would probably be thrown out as unconstitutional.

So there may be hope that in twenty years, we'll finally see that porn version of Steamboat Willie we've all been waiting for.
#15
Old 02-21-2003, 12:40 AM
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Just to make sure I have this straight:

"Mickey Mouse" is protected under trademark law because it's still in use right?

But what Disney was concerned about what that any schmoe who wanted to could publish, sell, and profit from copies of "Steamboat Willie" or "Snow White"?
#16
Old 02-21-2003, 12:28 PM
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Quote:
Originally posted by jeevmon
Maybe, maybe, there is some point at which a copyright term would be effectively perpetual
It's not so much an issue of this happening at a certain point (i.e. term longer than some vaguely defined value X), but rather an issue of this happening as a result of a pattern of infinity-by-iteration.

It's rather like a three-wishes story that ignores the (usually implicit) rule against meta-wishes ("I wish for a billion dollars and peace on Earth and three more wishes and for the IRS to forget that I exist and a couple of hot bi babes in a tub of lime jello and three more wishes and...").
#17
Old 02-21-2003, 01:49 PM
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Originally posted by ScoobyTX
Since copyrights are now limited to 95 years, they are of a "limited time" and therefore constitutional
If the holder is a corporation. If the copyright is in the name of an individual, it's life plus 70.

For instance, if either Mick Jagger or Keith Richards is alive in 2030, then it won't be legal to reprint the lyrics to the 1965 hit "Satisfaction" on your website without permission until 2100 or later.
#18
Old 02-21-2003, 01:59 PM
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To be specific: the term of copyright for a work by a corporation is 95 years from publication or 120 years from creation, whichever expires first. See 17 USC §302(c).
#19
Old 02-21-2003, 02:51 PM
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Originally posted by Steve MB
It's not so much an issue of this happening at a certain point (i.e. term longer than some vaguely defined value X), but rather an issue of this happening as a result of a pattern of infinity-by-iteration.

It's rather like a three-wishes story that ignores the (usually implicit) rule against meta-wishes ("I wish for a billion dollars and peace on Earth and three more wishes and for the IRS to forget that I exist and a couple of hot bi babes in a tub of lime jello and three more wishes and...").
I understand that complaint, but each one of those extensions is a separate legislative act, with Congress (supposedly) balancing interests each time. It's not like the copyright law contains a built in provision that every 20 years, copyright extends by 20 years. A different Congress has to vote on it on each occassion, so it's by no means a self-fulfilling prophecy. Courts can hold individual laws unconstitutional, but there is no tangible case or controversy to adjudicate when it comes to a pattern of Congressional actions which, if continued into the future, might lead to an unconstitutional result. A court can't strike down a law that hasn't been passed yet simply because it might emerge from a legislative pattern.

If there is some absolute limit short of literal perpetuity above which copyright cannot go for constitutional reasons, and a new law is passed creating a copyright term that exceeds that limit, then that law could be declared unconstitutional. But if each newly-enacted term would be constitutional if passed as a new law, the fact that there is a pattern of continual extensions does not, by itself, create a constitutional flaw.

The word "retroactive" gets misused an awful lot in these discussions, probably to make it sound like Congress passed an ex post facto law in extending copyrights in force. It's a glib sleight of phrasing with no merit. All that happened was that an existing benefit was extended. That's all. And it happens all the time in so many areas of the law.

As to whether the extension promotes the progress of science and useful arts, there is no real answer to whether the extension promotes the progress of science and useful arts in an absolute sense. A lot of people with a lot of different opinions have a lot of ideas on the subject, and fancy models and graphs and charts and statistical regressions, and chest-thumping platitudes about the people's will and the public interest (neither of which, incidentally, appear in the copyright clause), and doomsday prophecies, and demonization of Disney, peer-to-peer music service users, and other assorted villains to support their views.

Those who oppose the law argue that in an absolute sense, there is no benefit to extending copyrights in force. I disagree. There are two benefits that I see immediately. One: archival restoration. If there is a danger that some works may be lost forever before they would fall into the public domain, giving the author an incentive to restore those works ultimately inures to the public benefit. Some may see that as a minor benefit, others disagree. I'm not taking a position either way, other than to recognize that it is a benefit that may or may not be outweighed by other considerations.

A second benefit that I see, as a practitioner in this area, is harmonization. There are several benefits that a life plus system has over a fixed term. A fixed term necessarily depends on having something to fix from. For a creative work, this could be the date of creation, the date of publication, or the date of registration. The date of creation can be a highly disputed and litigated topic, dependent on such issues as whether a nearly complete draft represents the date of creation, the first draft, etc. The publication date also puts excessive emphasis on publication, and denies benefits to unpublished works. An author should not be denied the right to an injunction or damages against someone's unauthorized use of creative material that the author, for whatever reason, has elected not to share. It creates a perverse dynamic- in order to stop someone from publishing their private papers, an author would have to publish their private papers. Registration shares the same flaws as publication and puts excessive emphasis on a formal process. (And to pre-empt those who will say that we mandate "registration" for patents, let's remember that patents actually protect ideas, which copyrights don't. It's more serious to say that someone can't use compound X to improve the manufacture of substance Y than to say they can't make a porn version of "Steamboat Willie.") For works whose dissemination is not immediately sought, registration (and its concommitant requirement of deposit copies) is not desirable and would defeat the point of keeping private papers private.

A life plus term has several benefits over fixed terms. First off, death is generally a recorded event in the United States, so the time for measuring a copyright becomes easier to compute (in the case of dead authors). Second, the whole body (slight pun intended) of an author's work would pass into the public domain at the same time, instead of arriving piecemeal. Makes estate planning and administration a LOT easier. Third, having a term based on the author's life prevents potentially unfair forfeiture of an author's work while he/she is alive. As a simple example, if an author publishes three books of indifferent or middling success, but then a fourth book is the blockbuster that also increases the demand for the earlier works, a fixed term could deny the author the benefit from the investment (in time and opportunity cost) he/she made in those early works. We generally don't require other people to forfeit potentially productive assets while they are alive, and a fixed term could potentially create the equivalent of a forfeiture.

If we say that life plus 50 is OK, and life plus 70 is OK, but extending life plus 50 to life plus 70 is not OK, a two tier system would be created. Some works would get life plus 70, and others would get life plus 50. But how to distinguish? The only way would be to reintroduce one of the other variables (creation, publication, or registration) to differentiate between the different terms of protection afforded to different works. But that then reintroduces some of the very problems that a life-based term was designed to cure.

So, there are benefits to extending the terms of existing copyrights. There are also detriments. Works that would have passed into the public domain won't. That is a detriment. I'm not denying it. If we were talking about pending legislation, I might well side with those who say that the law is a bad idea overall.

But we're not talking about pending legislation. We're talking about an enacted law. So then, the question is not whether or not it is a good policy, but whether or not it is an unconstitutional law. Those who say it is argue that it does not promote the progress of science and useful arts, and therefore is unconstitutional. But, as noted above, there are benefits to extending the life of copyrights in force, and detriments, and room for debate on either side. There is a difference of opinion on whether the law promotes the progress of science and useful arts. Someone has to balance the pros and cons and make a decision that it does or doesn't.

Now, who gets to do that? On the one hand, we have Congress. Elected to pass laws, accountable, not guaranteed jobs for life, who must periodically answer to the voters. On the other hand, we have the federal judiciary. Appointed (not elected), guaranteed jobs for life, and not accountable except in impeachment situations.

What those opposed to the law wanted the federal courts to do was to come in and says Congress, we looked at the same facts you did, and believe that you got the interest-balancing exercise wrong, and your law is therefore unconstitutional. That's a pretty serious thing for the unelected, unaccountable judiciary to do. It's basically a plenary review of Congress' balancing of the interests. The courts should and do pause before engaging in that kind of second-guessing of Congress' prerogatives.
#20
Old 02-21-2003, 08:54 PM
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Quote:
Originally posted by jeevmon
Those who oppose the law argue that in an absolute sense, there is no benefit to extending copyrights in force. I disagree. There are two benefits that I see immediately. One: archival restoration. If there is a danger that some works may be lost forever before they would fall into the public domain, giving the author an incentive to restore those works ultimately inures to the public benefit.
On the other hand, extending copyrights can also do the exact opposite.

Don't expect to see Song of the South available on a digitally remastered Disney DVD any time soon.. they'd like the world to forget it was created in the first place. But if it were to fall into the public domain, the few copies that are out there could be legally copied and distributed.
#21
Old 02-21-2003, 11:18 PM
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Quote:
Originally posted by RTFirefly
If the copyright is in the name of an individual, it's life plus 70.
Which used to be life plus 50.

Which, prior to 1976, used to be a flat 28 years (renewable once).


They're right, the new copyright laws protect works for a ridiculously long time.
#22
Old 02-22-2003, 09:31 AM
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Of course it's all about "wahh I wanna copy music and mickey mouse." If jeevmon had his way for all of history, Tom Stoppard could never have written Rosencrantz And Guildenstern Are Dead and the world would be a better place. Who knows what potential Steamboat Willy is Dead cartoons are out there waiting to be dreamed up.

then again, if jeevmon and Disney were around in the 1600s, Shakespeare could never have written Romeo and Juliet since someone would already have the storyline copyrighted.
#23
Old 02-22-2003, 09:56 AM
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by me
Tom Stoppard could never have written Rosencrantz And Guildenstern Are Dead and the world would be a better place.
I have no idea what happened here. This is blasphemous, and I'd like to apolgise to Tom Stoppard.

I have no idea what I meant to say here, but I'm guessing it was something along the lines of the world not being a better place.

The shame, the shame.
#24
Old 02-24-2003, 09:19 AM
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Originally posted by gex gex
Of course it's all about "wahh I wanna copy music and mickey mouse." If jeevmon had his way for all of history, Tom Stoppard could never have written Rosencrantz And Guildenstern Are Dead and the world would be a better place. Who knows what potential Steamboat Willy is Dead cartoons are out there waiting to be dreamed up.

then again, if jeevmon and Disney were around in the 1600s, Shakespeare could never have written Romeo and Juliet since someone would already have the storyline copyrighted.
Show me one place where I've said that perpetual copyrights are a good idea. I dare you. You can't. What I said was that the Supreme Court was right to leave policy decisions to policymakers. As far as the "wahh" comment, there are so many people whose objection to the term extension was not the extension itself, but a visceral objection to copyright as a concept. It's not people who are seeking to exploit older works in a way that is creative or novel. It's people who want to download music for free. Who argue that any kind of copyright is wrong (other than perhaps the original 14 year term that was in the first Copyright Act) and they should be able to copy and freely distribute any creative content, any time, any place. And damn the constitutional niceties, like leaving lawmaking to lawmakers, rather than judges.

And Rosencrantz and Guildenstern could probably be defended as a parody or transformative use in the spirit of "The Wind Done Gone." So it's a bad example.
#25
Old 02-24-2003, 09:34 AM
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Quote:
Originally posted by tracer
Which used to be life plus 50.

Which, prior to 1976, used to be a flat 28 years (renewable once).


They're right, the new copyright laws protect works for a ridiculously long time.
Maybe. But if you're earning your money from them, it might be a different tune. I've heard that life plus 50 was originally intended to provide for the author's lifetime plus two generations after the author's death. (children + grandchildren). People are living longer, so life plus 70 (which Europe went to before the U.S.) arguably gives the same protection.

I've written already about the flaws I see with fixed terms. I think the author should not lose rights to their work while they are alive simply to put those who create individual works on a more equal footing with those who are employed in other realms. As an attorney, I invest time at work, and am immediately paid a salary. I can then save part of my income to provide for my retirement and my descendants. Authors and artists might not have the same luxury.

If we were talking about a new law, I might support life plus 25 or life plus 30. That should provide for at least one generation, given current lifespans. That doesn't mean, however, that I view life plus 50 or life plus 70 as some kind of violation of the Constitution that mandates judicial intervention.
#26
Old 02-24-2003, 06:04 PM
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jeevmon

If we were talking about a new law, I might support life plus 25 or life plus 30.

Do you see a real possibility that such a bill/law will on the table anytime soon ?
#27
Old 02-24-2003, 06:18 PM
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Originally posted by Gyan9
jeevmon

If we were talking about a new law, I might support life plus 25 or life plus 30.

Do you see a real possibility that such a bill/law will on the table anytime soon ?
Actually, they probably couldn't do it now because such a bill would itself be unconstitutional. For as long as it exists, copyright is a property interest. Any bill to shorten copyright terms at this stage (or any stage) would, unless very carefully drafted, violate the takings clause of the Fifth Amendment.

But, again, the fact that Congress settled on life plus 70 doesn't strike me as a constitutional violation, at least not without reading a whole lot of words into the Constitution that just aren't there or extending the judicial scope of review very very far in a way that could seriously undermine separation of powers.
#28
Old 02-24-2003, 07:40 PM
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Quote:
Originally posted by jeevmon
Actually, they probably couldn't do it now because such a bill would itself be unconstitutional. For as long as it exists, copyright is a property interest. Any bill to shorten copyright terms at this stage (or any stage) would, unless very carefully drafted, violate the takings clause of the Fifth Amendment.
Nah, they'd just have to make the new period apply to new works only, rather than making it retroactive. Something like, the shortened term applies for all works created after January 1, 2005. Or, more likely, there would be a "roll-back" schedule over a number of future years. Currently-existing works would still enjoy the longer term.

Of course, then we'd probably see a lot of stuff get rushed to press by December 31, 2004, but them's the breaks.
#29
Old 02-25-2003, 09:06 AM
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Max, just to be clear, that this proposal would once again introduce the publication/creation/registration problem mentioned above would be considered a necesary inconvenience?
#30
Old 02-25-2003, 09:12 AM
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Originally posted by Max Torque
Nah, they'd just have to make the new period apply to new works only, rather than making it retroactive. Something like, the shortened term applies for all works created after January 1, 2005. Or, more likely, there would be a "roll-back" schedule over a number of future years. Currently-existing works would still enjoy the longer term.

Of course, then we'd probably see a lot of stuff get rushed to press by December 31, 2004, but them's the breaks.
Perhaps, but I could see an argument being made that living authors had a concrete expectation of life plus 50 or life plus 70 for any works they create in their lifetime. Plus, as a practitioner in this area, I dislike the idea of reintroducing date of creation as a variable in copyright. It's a distracting battleground in litigation.

A clever way to do it might be to say that for any author born after date X, the term is life plus 30. While this law would take longer to phase in, the takings clause problem would be sidestepped completely without reintroducing date of creation as a variable in computing copyright terms.
#31
Old 02-25-2003, 10:36 AM
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Quote:
Originally posted by jeevmon
There are two benefits that I see immediately. One: archival restoration. If there is a danger that some works may be lost forever before they would fall into the public domain, giving the author an incentive to restore those works ultimately inures to the public benefit. Some may see that as a minor benefit, others disagree. I'm not taking a position either way, other than to recognize that it is a benefit that may or may not be outweighed by other considerations.
This just plain doesn't make any sense. Once something matures into the public domain, anybody who cares to do so can restore them, transfer them to more stable media, etc. Extended copyright makes it more, not less, likely that works will ultimately be lost forever.
#32
Old 02-25-2003, 10:43 AM
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Originally posted by Steve MB
This just plain doesn't make any sense. Once something matures into the public domain, anybody who cares to do so can restore them, transfer them to more stable media, etc. Extended copyright makes it more, not less, likely that works will ultimately be lost forever.
Depends on the age of the works in question. Restoration requires investment of money and time, which third parties may be less willing to make if they don't enjoy exclusivity in the final product. And if the work is at risk of being lost before it would ever enter into the public domain under the life plus 50 term, then no one gets their chance to try restoration because the work is gone.
#33
Old 02-25-2003, 01:35 PM
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Wrong. What the Court did was to hold that so long as Congress had a rational basis for concluding that the extension promoted the progress of science and useful arts, the extension is constitutional and would be upheld. The Court found that Congress did have such a basis, and its extension of the copyright term was constitutional. The Court can't overturn laws just because they feel they are bad policy.
The problem with this, jeevmon, is that it's an abdication of judgment on the Court's part: they're saying "if you've got a rational basis to believe you're within your Constitutional powers, then you're within your powers." That's silly. Can you imagine how things would change if the Supremes said to governments at all levels, "If you've got a rational basis for concluding you're not trampling on First Amendment rights, then we're not going to second-guess you, because that's policy, not the Constitution"?
#34
Old 02-25-2003, 02:16 PM
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I said:
Quote:
the new copyright laws protect works for a ridiculously long time.
to which jeevmon replied:
Quote:
Maybe. But if you're earning your money from them, it might be a different tune. I've heard that life plus 50 was originally intended to provide for the author's lifetime plus two generations after the author's death. (children + grandchildren). People are living longer, so life plus 70 (which Europe went to before the U.S.) arguably gives the same protection.
The reason that works become part of the public domain at all is that there is a social benefit to doing so. This has to be weighed against the social benefit of having copyright protection in the first place: copyright protection acts as an incentive to authors and artists, encouraging them to make new works, and these new works also provide social benefit.

Eventually, there has to come a time in the life of any work where the social benefit of moving it into the public domain outweighs the social benefit of leaving it in the posession of private owners. The fact that Waly Disney's legacy "still" makes money off of Steamboat Willie after 70+ years does not, by itself, provide enough of a social benefit to outweigh the social benefit of placing Steamboat Willie in the public domain.
#35
Old 02-25-2003, 02:22 PM
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Oh -- and here's an easy way to gauge how much social benefit increasing the duration of Copyrights has:

Before 1976, Copyrights lasted for 28 years renewable once, or a maximum of 56 years.

After 1976, Copyrights lasted for the lifetime of the creator + 50 years (if the creator was a natural person) or a flat 75 years (if the creator was an artificial person such as a corporation).

Did the increase in Copyright duration since 1976 result in more or better works of art or literature being created?

And, okay, obviously, some authors and artists benefitted personally because their works remained popular for a very long time. But what percentage of authors/artists (and their heirs) benefitted from this to any substantial degree?
#36
Old 02-25-2003, 02:51 PM
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Quote:
Originally posted by RTFirefly
The problem with this, jeevmon, is that it's an abdication of judgment on the Court's part: they're saying "if you've got a rational basis to believe you're within your Constitutional powers, then you're within your powers." That's silly. Can you imagine how things would change if the Supremes said to governments at all levels, "If you've got a rational basis for concluding you're not trampling on First Amendment rights, then we're not going to second-guess you, because that's policy, not the Constitution"?
Apples, oranges. Not the same thing.

There is a difference from "Congress shall make no law" (e.g. the First Amendment) and "Congress shall have the power to." When a law gets into the area where "Congress shall make no law", it gets a higher level of review (strict scrutiny), and the Court looks at whether the law is narrowly tailored to achieve some substantial policy interest that could not be achieved any other way. (The exact wording of strict scrutiny eludes me at the moment, but it's something like that.)

"Congress shall have the power to" is different. There seems to be no real dispute that Congress has the power to pass copyright legislation to promote the progress of science and useful arts. Now, whether a term extension, like the one in Eldred actually promotes the progress of science and useful arts is a subject of much debate. Obviously, people with different agendas (e.g. RIAA, EFF) are pushing their views, but that doesn't eliminate the legitimacy of those positions, any more than the fact that there are different interest groups pushing other agendas with respect to other legislation. So where you come out with respect to the promotion issue very much depends on your perspective. Are you an author, artist or media company interested in extracting value from your work? Are you someone with a strong interest in using public domain works and expanding the public domain? Your perception of what "promotes" the progress of science and useful arts will be affected.

Crafting copyright legislation, like any other legislation, is an act of explicit or implicit interest weighing and tailoring based on the perceived weight of those interests. We choose our legislators out of a belief that they will favor certain interests over others. If I want someone who is more sympathetic to the agenda of civil rights groups and environmentalists, I'll vote Democrat or Green. If I want someone who will favor the interests of gun owners and oil companies, I'll vote Republican. People periodically get a chance to decide which interests they would prefer to favor, and the composition of Congres changes accordingly. When Congress is in the control of one party or another, certain interests get weighed more heavily than others, and some interests may be disregarded entirely. It's called the political process. And its how laws are made. Congress weighs the interests involved (either explicitly or implicitly), and decides that, overall, doing things this way promotes the progress of science and useful arts better than doing it another way.

What RTFirefly and others seem to want is for the Supreme Court to step in, say "Congress, you got the interest balancing exercise wrong, and therefore your law is unconstitutional." In other words, the Court would be adopting one side's view of what actually "promotes" the progress of science and useful arts. But who elected the Court to do that? No one. The average voter does not select Supreme Court justices at all. And we have no way of recalling them if we decide that they're no longer favoring the interests we want favored. They're there for life. For good reasons, admittedly, but they are there for life and pretty much accountable to no one.

"Rational basis" is a way for the Court to stand back a bit and let legislators have broad discretion about the means used to achieve various ends. So long as Congress has a rational basis for believing that the means used achieve the ends, and no separate bar on Congressional action is violated, the Court should and does stand back. If the law impacts some area where Congress is affirmatively prohibited from legislating, it's one thing. If the question is whether Congress chose the "right" means to advance certain policy goals in its enumerated powers, it's quite another. The Court is not abdicating its judgment by saying that Congressional interest-balancing should be given great weight unless there is some separate constitutional bar implicated.
#37
Old 02-25-2003, 03:08 PM
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Quote:
Originally posted by tracer
I said:

to which jeevmon replied:

The reason that works become part of the public domain at all is that there is a social benefit to doing so. This has to be weighed against the social benefit of having copyright protection in the first place: copyright protection acts as an incentive to authors and artists, encouraging them to make new works, and these new works also provide social benefit.

Eventually, there has to come a time in the life of any work where the social benefit of moving it into the public domain outweighs the social benefit of leaving it in the posession of private owners. The fact that Waly Disney's legacy "still" makes money off of Steamboat Willie after 70+ years does not, by itself, provide enough of a social benefit to outweigh the social benefit of placing Steamboat Willie in the public domain.
Your opinion and you're entitled to it. But that's precisely the point. Everyone has an opinion. Just as everyone has an opinion on other issues. Is drilling in the Arctic National Wildlife Refuge a good idea? Some say no, that the detriment to the environment far exceeds any benefit from increased oil supply. Others say yes, the environmental impact is not nearly as significant as ensuring that we have enough oil. Is cutting taxes a good way to achieve economic recovery even if it leads to deficits? Ome say yes, some say no. Same thing here. Does a 20 year extension promote the progress of science and useful arts? One group says yes, one group says no. Each passionately believes that they are right beyond doubt.

To say that Congress got it wrong here, and that the Supreme Court erred by not reversing Congress, one would have to say that there is an absolute right answer, an absolute right way of arriving at that answer, and that Congress should have followed the absolute and most correct perspective. But there is no "right" answer on this one. There are just different perspectives, and Congress chose one. Merely disagreeing with that perspective does not create a constitutional violation.
#38
Old 02-25-2003, 08:29 PM
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Quote:
Originally posted by tracer
Did the increase in Copyright duration since 1976 result in more or better works of art or literature being created?
Come on, why do you think The Matrix was only released a couple years ago, instead of in the 70s? It must be because the creators didn't feel like making it unless they'd be able to profit from it for the next 140 years!

Music has been vastly improved as well. If not for copyright terms the length of two human lifetimes, we'd still be listening to dumb ol' Led Zeppelin and Pink Floyd instead of such thought-provoking, timeless artists as Avril Lavigne and Ludacris.
#39
Old 02-26-2003, 09:53 AM
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Quote:
Originally posted by Mr2001
Come on, why do you think The Matrix was only released a couple years ago, instead of in the 70s? It must be because the creators didn't feel like making it unless they'd be able to profit from it for the next 140 years!

Music has been vastly improved as well. If not for copyright terms the length of two human lifetimes, we'd still be listening to dumb ol' Led Zeppelin and Pink Floyd instead of such thought-provoking, timeless artists as Avril Lavigne and Ludacris.
Actually, the Supreme Court held long ago that they are not art critics, and therefore won't judge the copyrightability of a work based on its artistic merit. So I doubt that using the "quality" of works produced under a particular copyright regime to decide if that copyright regime promotes the progress of science and useful arts would pass muster either.

But the point about "The Matrix" brings up an interesting angle - I wonder if the investment would have been made in those movies with truly groundbreaking special effects if there weren't a lengthier copyright regime in place to help protect return on investment. I sometimes think if the 14 year copyright term (or even the 14+14 term) that many True Haters of Copyright advocate had been in place instead of the longer term, we would see more Ralph Bakshi Lord of the Rings and Nicholas Hammond Spider-Man films than Peter Jackson and Sam Raimi. After all, under a 14+14 term, Spider-Man and Lord of the Rings would be public domain by now, and the incentive to spend a lot of money to try and do the film with a lot of costly special effects would be virtually nil if there weren't some kind of exclusivity in telling stories with these characters (read: sequel potential with the opportunity to re-use some of the same technology and continue the revenue stream). The increased term of protection allowed technology to catch up to the creative minds of the artists. Though there are a lot of filmed versions of Hamlet, no one spends a lot of money on them. And it's a pretty sure bet that a CGI-laden version of "The Odyssey" or "The Iliad" is not coming to a theater near you soon.

I won't claim to understand the financial modeling that goes into the decision to greenlight a movie, but I'm sure that "I want to spend $300 million to do a very groundbreaking, special-effects laden film of a set of novels that will really bring to life the world the author created, even though any kid with a camcorder can turn these public domain novels into a screenplay and film it with his Magic: The Gathering club" would not be the most winning pitch in the world.

So, it's not just a question of Led Zeppelin/ Pink Floyd vs. Avril Lavigne/ Ludacris, but also of Ralph Bakshi/ Nicholas Hammond vs. Peter Jackson/ Sam Raimi.

(Yeah, I know that Sam Raimi was the director and Nicholas Hammond the actor, but since the Nicholas Hammond Spider-Man was a TV series with lots of directors, I had to go with the constant actor over the inconstant directors).
#40
Old 02-26-2003, 05:31 PM
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Quote:
Originally posted by jeevmon
So I doubt that using the "quality" of works produced under a particular copyright regime to decide if that copyright regime promotes the progress of science and useful arts would pass muster either.
Then how would you judge it? How can you determine whether a longer copyright term is beneficial or harmful?

Here's an objective measure: no works have passed into the public domain for years, and none will for years to come. Clearly, that's harmful to society, since copyright is intended to facilitate the flow of works from an author's mind to the public domain. Where's the equal or greater benefit from the longer copyright term?

Quote:
But the point about "The Matrix" brings up an interesting angle - I wonder if the investment would have been made in those movies with truly groundbreaking special effects if there weren't a lengthier copyright regime in place to help protect return on investment.
I can't believe you're serious. They aren't going to be selling Matrix DVDs even five years from now, let alone 28 years from now. A 95 year copyright term makes no difference in the return from any particular movie.

Quote:
After all, under a 14+14 term, Spider-Man and Lord of the Rings would be public domain by now, and the incentive to spend a lot of money to try and do the film with a lot of costly special effects would be virtually nil if there weren't some kind of exclusivity in telling stories with these characters
You don't think people would pay to see a high quality production of a story, just because there are also cheap low quality productions? Compare The Lion King to Kimba The White Lion, or Disney's versions of The Little Mermaid, Cinderella, Snow White, Hercules, Aladdin, etc. with any other versions. The stories are common, but Disney's versions are much better produced (read: cost a lot more to make), and people pay a premium to see them.

Quote:
And it's a pretty sure bet that a CGI-laden version of "The Odyssey" or "The Iliad" is not coming to a theater near you soon.
Funny you should use that example. O Brother, Where Art Thou was based on The Odyssey, and it's quite likely that O Brother wouldn't have been made if Homer still had a copyright on the original story.
#41
Old 02-26-2003, 05:46 PM
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Quote:
Originally posted by jeevmon
But the point about "The Matrix" brings up an interesting angle - I wonder if the investment would have been made in those movies with truly groundbreaking special effects if there weren't a lengthier copyright regime in place to help protect return on investment.
One more response to this point... Metropolis was one of the most expensive movies ever made at the time (5,000,000 German marks in 1926). The effects were just as groundbreaking as those in The Matrix:
Quote:
Review by Ted Prigge
One of the many amazing things about this flick is how innovative it is. The special effects are surprisingly good for a film made in 1926, with a couple realistic-looking explosions, a robot that moves believably, and a set which looks absolutely stunning (with buildings reaching up as far as the eye can see, although the flying cars are just usual planes).
And yet, Metropolis was created without the expectation of a century's worth of profit, or eternal control over the use of the film. It fell into the public domain and has been re-released several times (of varying quality), with the definitive version due to arrive in theaters and on DVD this year.
#42
Old 02-26-2003, 06:19 PM
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Quote:
Originally posted by jeevmon

If we were talking about a new law, I might support life plus 25 or life plus 30.
Make it life plus 20 or 21. For the sake of young law students everywhere, I dont' want some guy transferring his intellectual property rights to become a "rule against perpetuities" issue
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