How, exactly, did Disney "Kill Copyright?"

[Gfactor]

@Saint Cad

IIRC this was the issue used in fighting the Copyright Act. If the government can extend copyrights indefinately, then it is in effect an infinite copyright. But the Constitution only allows for a limited time for copyright. SCOTUS ruled that as long as the copyright will eventually expire, it was Constitutional.

Actually the argument was a bit more nuanced than that:

Here is the relevant portion of the opinion:

We address first the determination of the courts below that Congress has authority under the Copyright Clause to extend the terms of existing copyrights. Text, history, and precedent, we conclude, confirm that the Copyright Clause empowers Congress to prescribe “limited Times” for copyright protection and to secure the same level and duration of protection for all copyright holders, present and future.

The CTEA’s baseline term of life plus 70 years, petitioners concede, qualifies as a “limited Tim[e]” as applied to future copyrights.4 Petitioners contend, however, that existing copyrights extended to endure for that same term are not “limited.” Petitioners’ argument essentially reads into the text of the Copyright Clause the command that a time prescription, once set, becomes forever “fixed” or “inalterable.” The word “limited,” however, does not convey a meaning so constricted. At the time of the Framing, that word meant what it means today: “confine[d] within certain bounds,” “restrain[ed],” or “circumscribe[d].” S. Johnson, A Dictionary of the English Language (7th ed. 1785); see T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (“confine[d] within certain bounds”); Webster’s Third New International Dictionary 1312 (1976) (“confined within limits”; “restricted in extent, number, or duration”). Thus understood, a time span appropriately “limited” as applied to future copyrights does not automatically cease to be “limited” when applied to existing copyrights. And as we observe, infra, at 18, there is no cause to suspect that a purpose to evade the “limited Times” prescription prompted Congress to adopt the CTEA.

To comprehend the scope of Congress’ power under the Copyright Clause, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime. As earlier recounted, see supra, at 3, the First Congress accorded the protections of the Nation’s first federal copyright statute to existing and future works alike. 1790 Act §1.5 Since then, Congress has regularly applied duration extensions to both existing and future copyrights. 1831 Act §§1, 16; 1909 Act §§23—24; 1976 Act §§302—303; 17 U.S.C. § 302—304.6

Because the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice with respect to patents informs our inquiry. We count it significant that early Congresses extended the duration of numerous individual patents as well as copyrights. See, e.g., Act of Jan. 7, 1808, ch. 6, 6 Stat. 70 (patent); Act of Mar. 3, 1809, ch. 35, 6 Stat. 80 (patent); Act of Feb. 7, 1815, ch. 36, 6 Stat. 147 (patent); Act of May 24, 1828, ch. 145, 6 Stat. 389 (copyright); Act of Feb. 11, 1830, ch. 13, 6 Stat. 403 (copyright); see generally Ochoa, Patent and Copyright Term Extension and the Constitution: A Historical Perspective, 49 J. Copyright Society 19 (2001). The courts saw no “limited Times” impediment to such extensions; renewed or extended terms were upheld in the early days, for example, by Chief Justice Marshall and Justice Story sitting as circuit justices. See Evans v. Jordan, 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.) (“Th[e] construction of the constitution which admits the renewal of a patent is not controverted. A renewed patent … confers the same rights, with an original.”), aff’d, 9 Cranch 199 (1815); Blanchard v. Sprague, 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to enact a 14-year patent extension that “operates retrospectively”); see also Evans v. Robinson, 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813) (Congresses “have the exclusive right … to limit the times for which a patent right shall be granted, and are not restrained from renewing a patent or prolonging” it.).7

Further, although prior to the instant case this Court did not have occasion to decide whether extending the duration of existing copyrights complies with the “limited Times” prescription, the Court has found no constitutional barrier to the legislative expansion of existing patents.8 McClurg v. Kingsland, 1 How. 202 (1843), is the pathsetting precedent. The patentee in that case was unprotected under the law in force when the patent issued because he had allowed his employer briefly to practice the invention before he obtained the patent. Only upon enactment, two years later, of an exemption for such allowances did the patent become valid, retroactive to the time it issued. McClurg upheld retroactive application of the new law. The Court explained that the legal regime governing a particular patent “depend[s] on the law as it stood at the emanation of the patent, together with such changes as have been since made; for though they may be retrospective in their operation, that is not a sound objection to their validity.” Id., at 206.9 Neither is it a sound objection to the validity of a copyright term extension, enacted pursuant to the same constitutional grant of authority, that the enlarged term covers existing copyrights.

Congress’ consistent historical practice of applying newly enacted copyright terms to future and existing copyrights reflects a judgment stated concisely by Representative Huntington at the time of the 1831 Act: “[J]ustice, policy, and equity alike forb[id]” that an “author who had sold his [work] a week ago, be placed in a worse situation than the author who should sell his work the day after the passing of [the] act.” 7 Cong. Deb. 424 (1831); accord Symposium, The Constitutionality of Copyright Term Extension, 18 Cardozo Arts & Ent. L. J. 651, 694 (2000) (Prof. Miller) (“[S]ince 1790, it has indeed been Congress’s policy that the author of yesterday’s work should not get a lesser reward than the author of tomorrow’s work just because Congress passed a statute lengthening the term today.”). The CTEA follows this historical practice by keeping the duration provisions of the 1976 Act largely in place and simply adding 20 years to each of them. Guided by text, history, and precedent, we cannot agree with petitioners’ submission that extending the duration of existing copyrights is categorically beyond Congress’ authority under the Copyright Clause.

Satisfied that the CTEA complies with the “limited Times” prescription, we turn now to whether it is a rational exercise of the legislative authority conferred by the Copyright Clause. On that point, we defer substantially to Congress. Sony, 464 U.S., at 429 (“*t is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors … in order to give the public appropriate access to their work product.”).10

The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature’s domain. As respondent describes, see Brief for Respondent 37—38, a key factor in the CTEA’s passage was a 1993 European Union (EU) directive instructing EU members to establish a copyright term of life plus 70 years. EU Council Directive 93/98, p. 4; see 144 Cong. Rec. S12377—S12378 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch). Consistent with the Berne Convention, the EU directed its members to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. See Berne Conv. Art. 7(8); P. Goldstein, International Copyright §5.3, p. 239 (2001). By extending the baseline United States copyright term to life plus 70 years, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts.11 The CTEA may also provide greater incentive for American and other authors to create and disseminate their work in the United States. See Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323, 330 (2002) (“[M]atching th[e] level of [copyright] protection in the United States [to that in the EU] can ensure stronger protection for U.S. works abroad and avoid competitive disadvantages vis-à-vis foreign rightholders.”); see also id., at 332 (the United States could not “play a leadership role” in the give-and-take evolution of the international copyright system, indeed it would “lose all flexibility,” “if the only way to promote the progress of science were to provide incentives to create new works”).12

In addition to international concerns,13 Congress passed the CTEA in light of demographic, economic, and technological changes, Brief for Respondent 25—26, 33, and nn. 23 and 24,14 and rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works, id., at 34—37; see H. R. Rep. No. 105—452, p. 4 (1998) (term extension “provide[s] copyright owners generally with the incentive to restore older works and further disseminate them to the public”).15

In sum, we find that the CTEA is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be. Accordingly, we cannot conclude that the CTEA–which continues the unbroken congressional practice of treating future and existing copyrights in parity for term extension purposes–is an impermissible exercise of Congress’ power under the Copyright Clause.

Petitioners’ Copyright Clause arguments rely on several novel readings of the Clause. We next address these arguments and explain why we find them unpersuasive.

1

Petitioners contend that even if the CTEA’s 20-year term extension is literally a “limited Tim[e],” permitting Congress to extend existing copyrights allows it to evade the “limited Times” constraint by creating effectively perpetual copyrights through repeated extensions. We disagree.

As the Court of Appeals observed, a regime of perpetual copyrights “clearly is not the situation before us.” 239 F.3d, at 379. Nothing before this Court warrants construction of the CTEA’s 20-year term extension as a congressional attempt to evade or override the “limited Times” constraint.16 Critically, we again emphasize, petitioners fail to show how the CTEA crosses a constitutionally significant threshold with respect to “limited Times” that the 1831, 1909, and 1976 Acts did not. See supra, at 3—5; Austin, supra, n. 13, at 56 (“If extending copyright protection to works already in existence is constitutionally suspect,” so is “extending the protections of U. S copyright law to works by foreign authors that had already been created and even first published when the federal rights attached.”). Those earlier Acts did not create perpetual copyrights, and neither does the CTEA.17

Eldred v. Ashcroft, 537 U.S. 186 (2003): http://www.law.cornell.edu/supct/html/01-618.ZO.html

[Governor_Quinn]

@gaffa

They have less power and money than Disney, but share in the damage they have done to film. By keeping their grandfather’s works in copyright, they have damned thousands of films to dissolve into vinegar-scented dust. If the copyright term had been left where it had been, hundreds if not thousands of films could have been rescued. But nobody can afford to do it because they can’t sell copies of the restored films without spending the money to track down the current copyright holder. Harold Lloyd’s granddaughter is easy to find, but his contemporaries? Any money spent tracking down these people is money that could have been spent on restoration, and at some point it becomes more than sales of the restored film would yield. So films become dust to keep the gravy train running for some trust fund babies.

It’s a bit late, but a few problems with this:

1. How much of this deterioration has occurred in the last few years and the last few years alone, rather than being something that happened a few decades ago and is being publicized now?

2. The stories I’ve heard involving silent film collectors suggest that a liberation from copyright holders won’t be a cure-all, as there is a tendency for print-holders to be rather possessive.

3. An actual problem with copyright issues is mangled here. In the case of silent film, the problem I’m used to seeing mentioned is not “who has the copyright?” (when it’s that confused, the gray market tends to go crazy), but, rather “rights are held by a Big Shot who won’t let someone else use it but has no use plans themselves”.

[JRDelirious]

Interesting…

@gaffa

By keeping their grandfather’s works in copyright, they have damned thousands of films to dissolve into vinegar-scented dust. If the copyright term had been left where it had been, hundreds if not thousands of films could have been rescued. But nobody can afford to do it because they can’t sell copies of the restored films without spending the money to track down the current copyright holder… Any money spent tracking down these people is money that could have been spent on restoration, and at some point it becomes more than sales of the restored film would yield.

yet,

@Supreme Court

Brief for Respondent 25—26, 33, and nn. 23 and 24,14 and rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works, id., at 34—37; see H. R. Rep. No. 105—452, p. 4 (1998) (term extension “provide[s] copyright owners generally with the incentive to restore older works and further disseminate them to the public”).

In other words, the presumption is that if the rights-holders know what’s good for them, they’ll realize it’s in their best long-term interest for the works to continue to exist and to be published in a proper manner.

As usual, the assumption in law and economics is that people will act rationally in their own best interest. (Yeah, I know, what color’s the sky in that world… )
(BTW, however I would agree with them that a sense of equity would seem to require that at any given time, EVERY copyrighted work under a country’s laws be under the same regime, unless there is a rational interest in creating a multi-tier system of long v. short protections)
It would be interesting to see if anyone asked the late Sonny Bono what would he think of extending patents for decades on end – íf he said it would also be good, or else claimed THAT would hinder progress but on the other hand there is a substantial reason why his estate has to forever control * “I Got You, Babe”, * it would be illustrative of his mindset.

Folks like Mr. Bono seem to be of the opinion that “formal-contentive” intellectual property (more on this later) should be as much a “patrimony” of the creator and his estate, as a farm he homesteaded or a business he founded, i.e. heritage of that family for as long as they do not give it up. Sure, being an actual songwriter, he’s not one of the “trust fund babies” but he must have felt that if the grandchildren of Henry Ford could count on getting at least some share of the proceeds of the company the Old Man started, why should his grandchildren** not ** get a bite of the proceeds from his songs?

(BTW, I just coined that clunker phrase “formal-contentive” intellectual property to contrast it to another that I’ll call “purely informational” intelprop. The latter is things like chemical formulas, processes, inventions, where what you have created or discovered is strictly objective knowledge of how something happens, and its value is independent of form or medium of dissemination. “Formal-contentive” IP would be that in which inextricably you have linked a specific form and content making up the whole of the creation and the experience produced by conveying it - e.g. a picture, a film/video, a piece of music, a book.)

Of course, the Sonny Bono POV clashes with the vision as commonly understood by many, and mentioned earlier, that intellectual property protection has an underlying understanding that eventually, this will pass into the public domain and thus enrich everyone. (Some in this board have gone to the extent of arguing that it should be possible, if a rights-holder is just letting the works “lay fallow” out of print or circulation and do not respond to good-faith efforts to negotiate a reissue, then if you cannot declare an “abandonment” of copyright, least to exercise a common-access license to reissue it by paying the royalty whether the rights-holder wants it or not.)

All this of course became a major issue in the 20th Century with two key developments: that of technologies that allowed the mass reproduction and distribution not just of books and sheet music but also of actual** performances ** or stagings, i.e. records, film, TV, radio, and later the digital formats; and that of mass audiences consuming these. The inclination towards maximum copyright has the advantage when seeking legislation to that effect, in that it can arouse sympathy on both sides of the aisle: on the right, “Gentlemen, it’s property rights! If you make it, it’s yours! It’s the free market!” ; on the left, “Brothers, it’s justice for the noble artist and writer! It’s ensuring that his children will get their fair share!” Or something like that. (In the latter case there’s the secondary argument that often a writer/creator will be unappreciated in his own time, and why not let at least his heirs reap the belated rewards.)

---

As to discovered v. created my view is that musical or literary or “performance” creations would be in a very similar position to synthetic chemical compounds: you start with a certain set of elemental components (molecules and the laws of physics and chemistry in one case; notes, rhythm, light, geometric shapes, the English Language, etc. in the other) and you figure a way to arrange them in a new and unique manner. You (whether acting as an individual, or as a corporate entity hiring those who worked on it) are still the “creator” of that particular finished product.

[Acsenray]

I think there’s a practical, conceptual, and moral difference between copyrights and patents here.

What are we talking about essentially? We’re talking about the right of the Disney company to control a series of fictional characters. Allowing the copyright/trademark protections to expire will result in non-Disney authors using those characters to write new stories using those characters.

However, with the exclusivity in place, I think there’s a pretty strong argument that we, as a society, aren’t losing anything. Sure, we don’t have an unlimited supply of stories about Micky Mouse, but that’s not really much of a loss. Nobody is stopped from writing fictional stories about anthropomorphic mice – they just have to come up with a new mouse character if they are going to publish such stories. In this way, the exclusivity actually encourages the creation of new value.

[Digital_Stimulus]

@acsenray

However, with the exclusivity in place, I think there’s a pretty strong argument that we, as a society, aren’t losing anything.

And I would say that you’re flat-out wrong. Or, at least, not giving the matter serious enough thought. (I note that I’m less then clear on trademarks, hence my focus on copyright.) Copyright does not simply apply to “stories about Micky Mouse”; there are many things that dance around the edges of fair use, and even more that go (or would go) beyond. However, I recognize that I can’t begin to fathom the extent of other peoples’ creativity, and so cannot outline what those “things” might be.

Leaving aside the specific Micky Mouse/Disney example, take just about any court case dealing with copyright infringement in which the defendant loses, and there you have an example of we, as a society, being poorer for it (poorer in the sense that any work not generally available to the public, whether to your taste or not, is a loss to society). And that doesn’t begin to address copyright’s “chilling effect” – works or actions never undertaken due to potential legal culpability.

Don’t get me wrong – I’m not advocating for abolishing copyright. And I suspect one could come up with examples to specificially counter some of what I wrote above; I’d ask to keep such objections in context of extended copyright. At any rate, I believe in the theory; I just disagree with it’s current implementation.

[Hellestal]

@acsenray

I think there’s a practical, conceptual, and moral difference between copyrights and patents here.

Patents and copyrights exist for precisely the same reason. Because the first unit cost of creating new knowledge is so high, but the duplication of that effort for additional output is so low, intellectual property provides the creators of new ideas a government sponsored monopoly so that they might profit from their work. Though they are regulated differently, the essential nature of both forms of property is absolutely identical.

There is, in other words, no large practical or conceptual difference here. The morality I’m gonna leave till later.

@acsenray

What are we talking about essentially? We’re talking about the right of the Disney company to control a series of fictional characters.

We’re talking about the right of not just Disney, but all the major media corporations to own large swathes of American culture, even after the constitutionally stipulated reason for the original governmental grant of that right (to promote the progress of science and the useful arts) has long since vanished. I might agree with you that there’s a moral difference between patents and copyrights, but even when we’re dealing just with copyright, there is absolutely a moral imperative at work, above and beyond the explicitly described constitutional principle.

@acsenray

However, with the exclusivity in place, I think there’s a pretty strong argument that we, as a society, aren’t losing anything.

This is unequivocally false.

Even from a strictly economic perspective, your statement is incorrect. Monopolies are less efficient than competitive markets, especially when they’re artificial constructs created from governmental fiat. Copyrights exist despite this market inefficiency because artists need some financial incentive to create, else there would be practically no new works at all. For an obvious example of this, we can compare the adaptations that have been made from public domain works compared to adaptations of newer material. Shakespeare, for instance, is as popular as he’s ever been, still played on stage and sometimes in the movies. But if Shakespeare weren’t public domain, if somebody still held that copyright, the vast majority of those productions would’ve been quashed.

But even moving from the rigid financial analysis to a more artsy-fartsy look at things, it’s still wrong to say “nothing” is lost. Tom Stoppard, as one example out of many, has made some of the most successful stories of his career working within the history of English literature. I agree that a lack of Micky Mouse stories is not “really much of a loss”, but the loss of Stoppard’s work, or Neil Gaiman’s, or Alan Moore’s, or Walt Disney’s (the man, not just the corporation) would be flatly unacceptable.

Snow White itself might just have been sued into nonexistence if it had been made in today’s copyright environment. The story itself might be said to be “stolen” from the Brothers Grimm. And the Brothers themselves were originally just compilers of stories from the German oral tradition. Over the years they developed and refined their own story-telling style. What if the grandchildren of the Brothers Grimm had kept their fat asses on the copyright? What happens to the entire Disney Corporation?

It’s already been pointed out that Disney is simply a convenient target, one megacorp out of many involved in the loathsome Sonny Bono law. But even if their own lobbying was simply part of a hideous whole, we shouldn’t make excuses for the terrible law itself. Even if copyright is less important than patents, it is totally flawed logic to then say that it should be rewarded for longer periods simply because of its lack of significance. That’s the same as saying “Copyright is less important, so let’s reward big corporations and punish small libraries and other archives!”

And that is, of course, nonsense. If copyright really is less important, then we can spend more time balancing the desires of all interested parties. And yeah, we will probably come to the conclusion that 20 years is too short for copyrights, but we will definitely come to the conclusion that life plus 75 is way, way, way too long.

[Acsenray]

@Kendall Jackson

Patents and copyrights exist for precisely the same reason.

This is an abstract “reason.” And even though this reason might be the same, the moral and practical effects of implementing protection in either case need not be identical.

Because the first unit cost of creating new knowledge is so high, but the duplication of that effort for additional output is so low, intellectual property provides the creators of new ideas a government sponsored monopoly so that they might profit from their work.

Here’s where you’re wrong. Copyright law does not protect “ideas” at all. It protects expression. Anyone is free to create a new work implementing an idea, so long as they do not copy specific expression.

Though they are regulated differently, the essential nature of both forms of property is absolutely identical.

That their “essential nature” in theory is “absolutely identical” does not refute my stand that in concept, practice, and morality, they are different.

About the right of not just Disney, but all the major media corporations to own large swathes of American culture,

This is the high art of hyperbole. Show me how American society and culture is actually being harmed by the restrictions. Satire, parody, political and cultural commentary are all unaffected. I say, given that (1) Disney continues to create expression based on its ownership of the characters, and (2) Other people are free to create all kinds of expression of different kinds, there is no harm at all, and, as I suggested before, there is in fact a benefit, in that new creators are forced to come up with different expression.

even after the constitutionally stipulated reason for the original governmental grant of that right (to promote the progress of science and the useful arts) has long since vanished.

This is purely opinion on your part, but you state it as if it is some kind of empirical fact. In any case, as shown in the recent gun case, a constitutionally stipulated reason for something does not necessarily set absolute boundaries for it.

explicitly described constitutional principle.

Remind me, what is the explicit number of years that the Constitution sets forth?

Even from a strictly economic perspective, your statement is incorrect. Monopolies are less efficient than competitive markets, especially when they’re artificial constructs created from governmental fiat.

Can you care to define “market” here? The monopoly is over a single work. Other creators, if they want to enter the market, must come up with their own works. Seems like the opposite of a monopoly, actually.

But if Shakespeare weren’t public domain, if somebody still held that copyright, the vast majority of those productions would’ve been quashed.

The vast majority? In any case, there’s a big difference between 500 years and 70 years.

Tom Stoppard, as one example out of many, has made some of the most successful stories of his career working within the history of English literature. I agree that a lack of Micky Mouse stories is not “really much of a loss”, but the loss of Stoppard’s work, or Neil Gaiman’s, or Alan Moore’s, or Walt Disney’s (the man, not just the corporation) would be flatly unacceptable.

You are failing to demonstrate that the Sonny Bono Copyright Term Extension Act would have prevent the creation of any of these things.

And the Brothers themselves were originally just compilers of stories from the German oral tradition. Over the years they developed and refined their own story-telling style. What if the grandchildren of the Brothers Grimm had kept their fat asses on the copyright? What happens to the entire Disney Corporation?

From your description, it would seem to me that the Grimms would not have any viable infringement claim anyway.

the loathsome Sonny Bono law. But even if their own lobbying was simply part of a hideous whole, we shouldn’t make excuses for the terrible law itself.

“Hideous”? “Terrible”? I suppose people might disagree over the optimal length of copyrights, but there’s nothing apparent about this conclusion.

Even if copyright is less important than patents

I don’t even know what this means. Did I use the phrase “less important”?

[Hellestal]

@acsenray

Here’s where you’re wrong. Copyright law does not protect “ideas” at all. It protects expression. Anyone is free to create a new work implementing an idea, so long as they do not copy specific expression.

What it protects is the ability to copy a work, and the ability to create a derivative work. “Specific expression” isn’t the most precise way of stating that.

But you’re right to say that copyright does not specifically protect ideas.

@acsenray

This is the high art of hyperbole. Show me how American society and culture is actually being harmed by the restrictions. Satire, parody, political and cultural commentary are all unaffected. I say, given that (1) Disney continues to create expression based on its ownership of the characters, and (2) Other people are free to create all kinds of expression of different kinds, there is no harm at all, and, as I suggested before, there is in fact a benefit, in that new creators are forced to come up with different expression.

This evidence exists all around you. I’m not joking. It really does.

You say later in your post that my conclusion isn’t apparent. Okay. I’m trying to re-edit my post with that in mind, because all of this is blindingly clear to me. But I’ve followed these issues for the better part of eight years, and maybe I’m not explaining well these connections that are crystal clear to me.

So, as for this “different expression” thing…

Shakespeare didn’t come up with “different expression”, and his writings were allowed, arguably for the betterment of humanity. The Grimms didn’t come up with “different expression”, and it was allowed, arguably for the betterment of humanity. Walt Disney, the person, didn’t come up with “different expression”, and it was allowed, arguably for the betterment of humanity. And yet now that the Disney Corporation exists, new up-and-coming artists are not allowed to do what Disney did to succeed. Now that we have one Walt Disney Corporation, no one may use the same techniques that the original Disney used.

We have a huge, multinational corporation whose very existence was entirely dependent on softer copyright laws than we have now. And that very corporation is now pushing for stronger laws. It makes my stomach turn. A very real argument can be made that the Walt Disney Corporation would not exist as it does now if a young Walt Disney had had to labor under these rules.

I would agree entirely with you that creating something “different” is a thoroughly valid form of artistic expression. What you don’t seem to realize (and seriously, the entire history of aesthetic creation backs me up here, even if it’s not obvious to you yet) is that taking an existing story, something that already inhabits people’s minds and shapes their dreams, and doing something new with that old story is just as valid as creating something “different”. Legions of authors have done exactly this. The most respected author in all of English letters built his career from doing exactly this.

So: what have we lost? We’ve lost huge amounts.

We have lost all those movie adaptations. We have lost all those Penguin Classics books. Project Gutenberg has lost the ability to archive the work for free for anyone who wants to read it.

I mean, shit, look at the number of adaptations that have been done with 19th century stories. Compare to the number of adaptations that haven’t been done with 20th century stories. Just think of how many film versions of Pride and Prejuidice you can find. You can get that book for free online. And yet I had to shell out fifteen bucks for Catch-22. Why? It’s still under copyright.

It was published in 1961. Heller died in 1999. It’ll be 2073 before that book enters the public domain and the Penguin Classics people can dare to print it or Gutenberg digitize it so that it will be available for more people. These are all costs - real, objectively verifiable costs that can be seen with the briefest of internet searches.

And I will be dead before Catch-22 is available for everyone. That novel is older than I am, its author already gone, but I will be dead before it enters the public domain. I’m not saying that it should already be in the public domain, but I am saying that it is a moral outrage that it won’t be public before I kick it.

If my anger isn’t completely clear yet, I hope at least parts of the puzzle are starting to fill in.

@Kendall Jackson

even after the constitutionally stipulated reason for the original governmental grant of that right (to promote the progress of science and the useful arts) has long since vanished.

@acsenray

This is purely opinion on your part, but you state it as if it is some kind of empirical fact.

It is not an opinion. It is an empirical fact. A group of economists, including five Nobel Prize winners, wrote an amicus brief to the Supreme Court stating exactly that. They did a net present value analysis of the additional revenue that could be gained from extending the terms.

I’m not sure whether you have any familiarity with finance, but a NPV analysis is not “opinion”.

@acsenray

In any case, as shown in the recent gun case, a constitutionally stipulated reason for something does not necessarily set absolute boundaries for it.

I never said the case was decided poorly. I said the law was bad. “Terrible”, in fact. But terrible is not a synonym for unconstitutional.

@acsenray

Remind me, what is the explicit number of years that the Constitution sets forth?

It doesn’t. I never said it did.

@acsenray

Can you care to define “market” here? The monopoly is over a single work. Other creators, if they want to enter the market, must come up with their own works. Seems like the opposite of a monopoly, actually.

Well, I’m sorry, but that’s completely incorrect. It’s not the opposite of a monopoly - it is the exact definition of monopoly. There are indeed markets for just one work, and yes, that one work is a monopoly. But the monopoly extends to any derivative works as well. And I agree entirely, derivative works should enjoy that very protection. Interesting fact: derivative works did not enjoy such protections at the beginning of American copyright law.

What this monopoly amounts to, to use other economics terms, is a government enforced tax on the general public (the “public domain”) in order to subsidize the owners of copyrights. It might not look like a tax, but it could absolutely be characterized as such. And that tax should be eliminated, that monopoly no longer enforced, as soon as possible. In fact, I’ve seen economic analysis that indicate that copyrights of less than 10 years would still accomplish the constitutionally stated goal of this intellectual property. The vast majority of novels, for example, go out of print in the blink of an eye and never come back.

I’m not advocating 10 year copyrights - I’m just saying that, in economic terms, what we have now is beyond ridiculous. It does not serve its proper function.

@acsenray

The vast majority?

Alright, that might be an overstatement, but it depends entirely on the mood of the various copyright holders over the years. Which is a huge part of the problem.

With Shakespeare as it exists now, any group of willing folks can put together a performance, no permission necessary. Increase the length of copyrights, and you’re creating a permission culture for the continued use of the most valued and culturally significant works.

@acsenray

In any case, there’s a big difference between 500 years and 70 years.

Agreed. But Heller is dead. How long do I have to wait to read Catch-22 online? How long until any indy filmmaker can direct a movie without going to the estate? If the answer is “you’ll be dead before then”, when I wasn’t even alive for the publication of the book, then yes, I consider that a moral outrage. For the longest time, it was the right of cultural inheritors to adapt the works of previous generations (and in laxer times, they had a right to adapt from the current generation). Some of the finest works of literature are based on that tradition. This includes almost everything Shakespeare ever wrote.

But that tradition of adapting the past is being eaten away.

@acsenray

You are failing to demonstrate that the Sonny Bono Copyright Term Extension Act would have prevent the creation of any of these things.

Those were examples of how many great authors use derivative stories. They were not all examples of Sonny Bono. Somehow I felt this would be more apparent since I had not yet, at that point in my post, even mentioned the Sonny Bono act.

But I did mention that Snow White would’ve been in danger. And that’s true. If the Grimm book had been covered under the same term provisions of the Sonny Bono act, Walt Disney might not have produced Snow White. It would’ve been a derivative work, after all, and as such, it would’ve been protected. Just inside the window, sure, but protected nonetheless. Considered by many to be the first great animated movie - POOF! - gone. And with its disappearance, you might just be looking at the disappearance of almost the entire Disney line.

I might not like their modern corporate politics, but I would weep at the loss of that collection of movies.

@acsenray

From your description, it would seem to me that the Grimms would not have any viable infringement claim anyway.

I’m not sure where you get that. Maybe an argument could be made that stories in the German oral tradition should not have been copyrightable. But I don’t see how an American-born Walt Disney could justify any claim that he went straight to the source of the stories, instead of relying on Grimm translations to give him the needed seed for his movie.

@acsenray

“Hideous”? “Terrible”? I suppose people might disagree over the optimal length of copyrights, but there’s nothing apparent about this conclusion.

Okay, the entire post has been geared to answering this, and so I’m hoping all of this is much clearer. But in sum:

The fact is that there is no economic reason whatsoever to have superlong copyrights if the actual intended goal of intellectual property is as the constitution states.

The fact is that the entire history of our literature is based on derivative works, which means that if we want this tradition to continue, one that starts before Shakespeare and has tried to continue even after Walt Disney, we should allow derivative works as quickly as possible.

And the fact is that both the most recent term extensions were passed, after extensive lobbying from Disney & Company, to benefit current copyright holders at the expense of libraries, online archives, and any potential new Shakespeare out there who might be more talented at engaging the culture directly instead of making up a different “specific expression”.

So, yes, Mr. Bono’s law is a noxious, loathsome, odious piece of garbage. Is it unconstitutional? Well, apparently not. Is DisneyCorp solely responsible? Hell no. Will they try to extend terms again when the deadline starts creeping up?

Yes. Yes, I absolutely believe they will.

This a long post, but the case, as I see it, is very simple. I know my debating style isn’t the best, but I hope you haven’t found my personality too grating that I’ve distracted from the meat of the issue. Copyright terms should be reduced (50 years is a nice round number). It’s good economic policy, it’s good for the libraries and archives, and it’s good for our literary tradition.

The only people it’s bad for are those who are profiting from work they didn’t even do. Unfortunately, those group includes major media corporations with mucho lobbying cash, so any reform isn’t likely to happen anytime soon, if ever.

[BMalion]

Kendall Jackson, that was one of the best damn posts I’ve read in a long time.

[Acsenray]

@Kendall Jackson

Shakespeare didn’t come up with “different expression”, and his writings were allowed, arguably for the betterment of humanity.

Are you suggesting that had the CTEA been in force in the 16th century that Shakespeare would have been barred from producing anything? That’s an unsupportable conclusion. Even if the original works on which some of his plays were based had been protected by copyright, fundamentally Shakespeare’s art (and good literature in general) is not about the specific characters and plot used but rather how he wrote about them. In many cases, the specific storylines would even under current law not have been protected (folk tales, histories, old stories). And, so long as we are allowed to argue based on “what is apparent to me,” my position is that had he been barred from using those specific plots and characters, he would still have come up with the good stuff.

The Grimms didn’t come up with “different expression”, and it was allowed, arguably for the betterment of humanity.

What the Grimms did would still be “allowed” today.

Walt Disney, the person, didn’t come up with “different expression”

Of course he did. Walt Disney’s Snow White is a “different expression” of that story. And anyone is free to do the same thing he did today.

new up-and-coming artists are not allowed to do what Disney did to succeed. Now that we have one Walt Disney Corporation, no one may use the same techniques that the original Disney used.

Of course they’re still allowed. They might just have to go looking for things that are slightly older than what Disney looked at. To me, this is not a huge difference.

A very real argument can be made that the Walt Disney Corporation would not exist as it does now if a young Walt Disney had had to labor under these rules.

And a very real argument could be made that it is much more likely that if Disney had been blocked from using Snow White (how old is the story anyway? I had the impression that it was a folk tale, not something that would have been protected by copyright law), then he would have used a story that was slightly older or he would have come up with a different story or hired someone to write a new story.

mean, shit, look at the number of adaptations that have been done with 19th century stories. Compare to the number of adaptations that haven’t been done with 20th century stories. Just think of how many film versions of Pride and Prejuidice you can find. You can get that book for free online.

And yet I had to shell out fifteen bucks for Catch-22. Why? It’s still under copyright.

I’m not feeling any sympathy for this. What people have done for centuries is buy books or borrow them from a library, regardless of their copyright status, not expect to get them for free.

I am saying that it is a moral outrage that it won’t be public before I kick it.

Your lifetime seem to me a rather arbitrary standard.

There are indeed markets for just one work

Only if you choose to define it that way. In my view the relevant market is the market for all literature, and there is a strong argument that making people come up with more original stories (for the term of the CTEA at least) adds value to that market.

is a government enforced tax on the general public (the “public domain”) in order to subsidize the owners of copyrights.

But this “tax” is a matter of choice. If the copyright holder is charging above the value of a particular work, the public is free to use works whose price is more closely matched to its entertainment or artistic value. In the big picture, such cultural artifacts are fungible. And to the extent that something is so great as to be irreplaceable, then it seem to me that this “tax” might well be justified.

In fact, I’ve seen economic analysis that indicate that copyrights of less than 10 years would still accomplish the constitutionally stated goal of this intellectual property.

The Constitution does not state that its stated goal is the exclusive goal. There is also a morally valid goal of rewarding the creators of popular works.

How long do I have to wait to read Catch-22 online?

So far as I’m concerned it’s not a moral imperative that you get to read Catch-22 for free online within your lifetime. Shakespeare couldn’t either. Borrow it from the damn library.

If the Grimm book had been covered under the same term provisions of the Sonny Bono act, Walt Disney might not have produced Snow White.

I think you’re wrong here. The Grimms recorded extant folk tales. Disney would still have been free to use the storylines. Only the Grimms’ original contributions to those folk tales would have been protectable.

Considered by many to be the first great animated movie - POOF! - gone. And with its disappearance, you might just be looking at the disappearance of almost the entire Disney line.

This is a kind of alternative-universism that makes little sense. All cultural artifacts are influenced by contemporary economic, political, etc., conditions. Change history and who knows what would have changed. Change 2007’s copyright law and maybe 2008 would have been different culturally. My take is that great artists will always be able to come up with something good and the CTEA is a minor hindrance to that.

But I don’t see how an American-born Walt Disney could justify any claim that he went straight to the source of the stories

He wouldn’t have to.

(50 years is a nice round number)

And so is 70 or 90. In the big picture, I see little difference between 50 and 90.

[Exapno_Mapcase]

@acsenray

And so is 70 or 90. In the big picture, I see little difference between 50 and 90.

This cuts to the heart of Kendall Jackson’s false argument. It is the very line I was going to lead with in my post. He says that he’s for copyright, and he says that he would permit a copyright period of 50 years. But not one facet of his argument reveals how in any way how the difference of a few years would alleviate any of the ills he sees about copyright.

Invoking Grimm and Shakespeare is fatal to his argument rather than helping it. No one today advocates indefinite copyright (Sonny Bono is conveniently dead, and doesn’t have much to say on the matter). Everyone on all sides of the issue agrees that copyrighted works should eventually move into the public domain to make them available to public dissemination.

It is trademark that is indefinite. Most of the complaints are actually about trademark restrictions rather than copyright restrictions. **KJ ** says he doesn’t know much about trademark and it would pay him to study up on the subject, because his confusion makes his arguments untenable.

Confusion is rife throughout all his posts. If corporate entities “control” American popular culture it is only because people have voted with their dollars to give them that power. They have had choices at all times to watch and embrace alternate versions. You can go out a do a new Snow White or Cinderella tomorrow - as many people have done in the past. Or you could create new visions and mythologies and capture the public’s imagination as Pixar has.

KJ, you are simply wrong in saying that copyright prevents people from writing in “corporate cultures”. Thousands of fan fiction pages on the Internet is testimony to that. You can do anything you want to those characters, including “slash,” bondage, porn, and grossness that would send the creators’ heads to spinning. Very few of these fan fiction writers have been stopped in their writing and most of those cases involved trademark issues rather than copyright issues.

The one thing that you cannot do is *profit * from these ventures into other peoples’ creativity. As a creator myself, I heartily approve of this. I’m not a personal fan of fan fiction. It hasn’t happened to me that I know of, but I can’t imagine that any works using my worlds or creations would please me. And the thought that somebody else would make money by despoiling my creations, while I don’t get a single penny, creations that occurred solely after I faced a blank scene and concentrated until the blood ran down my forehead, is disturbing and disgusting.

KJ, you say that you’ve spent eight years thinking about this, but apparently you didn’t spend any of those minutes thinking about the creators and their roles in creation. The entire tradition of literature is not based on derivative works, and citing Shakespeare doesn’t make it so. You can’t make that argument and say that Joseph Heller’s original, non-derived creation must be made available to other hands in a timely fashion in the same breath.

Copyright is not simply for the benefit of the creator. Creators have children and families. Some creators die too soon. Saying Heller’s works should be put into the public domain during your lifetime is like saying that the Gore-Tex factory should be taken from his children and given to the government after its inventor dies. Their earnings are a legacy like any other form of inheritance. Copyright is unique in that way, in that it is the only form of property that is ripped from the creators to allow anybody to make money off of it.

There are certainly times when the original creators can no longer be found, creating what is called “orphan copyright.” There is a bill that has be in process for years in Congress to correct this. You’d think everyone would cheer, but instead the anti-copyright forces have already put out their propaganda with the same silly anti-corporate arguments that you make. Check the Proposed copyright law would let corporations steal your works legally thread. As I say there, it all depends on the fine details of the execution, but the concept is exactly what people have been calling for. It would eliminate many of your arguments, but I don’t see you mention it one way or the other despite your eight years of thinking.

As I said earlier, most people even inside the writing community would prefer to see copyright reduced to 50 years or so. Most of us can live just fine with today’s law, thought. You have not made any case that the current law has any real effects on anybody outside of giving the creators more time to make money from their own creations. Until and unless you can do so, you need to seriously rethink your arguments.

[Hellestal]

@acsenray

Are you suggesting that had the CTEA been in force in the 16th century that Shakespeare would have been barred from producing anything?

No, I’m not saying that.

But the stories we have from him, the stories we treasure, were not “original”. He was extraordinarily successful with adaptations of stories that already existed. You are free to believe that he would’ve been just as successful otherwise. Maybe he would have been. Of course, maybe he wouldn’t have been. That possibility exists, as well, even if you wish to discount it entirely.

But I am stuck valuing what we have from him. And what we have from him is largely adaptations of previous stories. My point is not that Shakespeare would’ve written less valuable stuff. My point is that adaptations are themselves valuable.

@acsenray

Of course they’re still allowed. They might just have to go looking for things that are slightly older than what Disney looked at. To me, this is not a huge difference.

I understand that. To me, though, it is a huge difference.

@acsenray

And a very real argument could be made that it is much more likely that if Disney had been blocked from using Snow White (how old is the story anyway? I had the impression that it was a folk tale, not something that would have been protected by copyright law), then he would have used a story that was slightly older or he would have come up with a different story or hired someone to write a new story.

I never said otherwise. But I see that you don’t even see it as a possibility that the company might’ve stalled if it had been deprived of the source material of its first feature length work. You’re free not to believe that. But such smashing success is often like lighting. Take away Snow White, and maybe things fall apart.

You might deem this hypothetical nonsense, and you’re free to. I suppose I’m just fascinated by adaptations more than you are.

@acsenray

I’m not feeling any sympathy for this. What people have done for centuries is buy books or borrow them from a library, regardless of their copyright status, not expect to get them for free.

I’m not looking for “sympathy”. I’m trying to express both my opinions and economic fact, with a bit of the history of copyright thrown in for good measure.

Your opinion differs? Fine. You don’t care about government imposed monopolies that exist beyond their stated purpose? Fine. But your sympathy means not a thing to me.

@acsenray

Your lifetime seem to me a rather arbitrary standard.

Well, yes, it is arbitrary. A less arbitrary standard would be the economic incentive. In that case, 20 years is more than sufficient.

But I’d like to point out that my arbitrary standard extends several decades beyond the economic need. I’m not bound by the economics entirely, but the financial analysis does lead me to the conclusion that there is a moral imperative to get works into the public domain as soon as possible.

@Kendall Jackson

There are indeed markets for just one work.

@acsenray

Only if you choose to define it that way. In my view the relevant market is the market for all literature, and there is a strong argument that making people come up with more original stories (for the term of the CTEA at least) adds value to that market.

It is not my personal definition. It is the formal economic definition.

I understand that specialists sometimes use familiar terms in ways that are confusing to lay audiences, but what you’re talking about is not the “market”. It is the “industry”. For the market of that book, there is indeed a monopoly. Because of the monopoly, there is an increase in prices. Because of the increase in prices, there is economic inefficiency and deadweight loss.

I used to teach this at my old uni (TA, not prof), so I can walk you through this if it’s confusing. But you do not get to redefine words that have precise meanings in formal analysis just because you don’t understand what specialists mean when they say “monopoly”.

@acsenray

So far as I’m concerned it’s not a moral imperative that you get to read Catch-22 for free online within your lifetime.

I disagree. It’s clear we’ll never convince each other, but at least I laid out the basis for my case.

@Exapno Mapcase

Invoking Grimm and Shakespeare is fatal to his argument rather than helping it. No one today advocates indefinite copyright (Sonny Bono is conveniently dead, and doesn’t have much to say on the matter). Everyone on all sides of the issue agrees that copyrighted works should eventually move into the public domain to make them available to public dissemination.

This is just plain false.

Jack Valenti, former prez of the MPAA, one of the biggest lobbyists for the Sonny Bono act, once quipped that copyrights should exist forever minus a day. You see, there’s a minus day in there, so the term is still technically “limited”. Yes, Valenti is dead, too, but he wasn’t just a former failed pop singer. He was a big man in charge, helping to coordinate the policy of most of the major studios.

I would agree that the vast majority of people in this debate want capped limits. But it’s simply naive to believe that corporate heads, whose minds are filled with nothing more than thoughts of the bottom line, aren’t pushing for limitless terms. They would be doing their shareholders a disservice by not advocating such a position.

@Exapno Mapcase

KJ, you are simply wrong in saying that copyright prevents people from writing in “corporate cultures”. Thousands of fan fiction pages on the Internet is testimony to that. You can do anything you want to those characters, including “slash,” bondage, porn, and grossness that would send the creators’ heads to spinning. Very few of these fan fiction writers have been stopped in their writing and most of those cases involved trademark issues rather than copyright issues.

The one thing that you cannot do is profit from these ventures into other peoples’ creativity. As a creator myself, I heartily approve of this.

As a non-creator myself, I also approve. And nowhere did I say otherwise.

@Exapno Mapcase

Saying Heller’s works should be put into the public domain during your lifetime is like saying that the Gore-Tex factory should be taken from his children and given to the government after its inventor dies. Their earnings are a legacy like any other form of inheritance. Copyright is unique in that way, in that it is the only form of property that is ripped from the creators to allow anybody to make money off of it.

This is totally, absolutely, unequivocally false.

Do you think patent-makers work less hard than you? Do you think their descendants don’t deserve a little extra period to profit from their parents work if there is an untimely death? Do you think your aesthetic creations are so much more valuable to the world than the pharmaceutical corporations that you derserve life plus 75 years, whereas the people who make pills that save people’s lives should only get 20?

Seriously, that is just not right.

No, copyrights are not the only form of property that are taken away. You seem to be so emotionally caught up in your creations that you appear to have no sympathy for the people who create technology instead of art. And you know what? 20 years is enough. Even for the big corporations that spend billions of dollars - 20 years is enough incentive to keep them investing, researching, producing.

But artists get more leeway, for whatever reason. I realize that, and I’m not arguing with it. Artists get more leeway. They get more than 20 years. Fine. I have not once argued in this thread that they should get less.

But the terms now, life plus 75, are too long. Way, way too long. 50 years, or life plus ten (whichever is longer) would be enough. Economically speaking, it would be more than enough.

You’re one hell of a writer, though. I almost PMed you last week to see if you could tell me who you are, so that I might buy some of your stuff, but I figured you probably held too tightly to your anonymity here to let me know.

[Max_Torque]

@Kendall Jackson

But the terms now, life plus 75, are too long. Way, way too long. 50 years, or life plus ten (whichever is longer) would be enough. Economically speaking, it would be more than enough.

I’ve argued on this board before for “life plus 20”. My reasoning is, if the author dies and has very young children (or in the case of a male author, has yet-unborn children), a life-plus-20 term will allow the writer’s surviving spouse to continue to benefit from the works until the child reaches adulthood. But having the author’s children’s children’s children still reaping the benefits, as can easily happen today, really seems to be beyond that which was originally contemplated by the Constitution.

[Exapno_Mapcase]

First, let me say that I put copyrights and patents together automatically, because they are conjoined that way in the Constitution. Apologies for not making that clear to others.

Just to remind people, the so-called copyright clause in the Constitution doesn’t actually use the word:

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.

It’s been understood since the time of writing that copyrights and patents are the subject of the clause. Most people today focus on the “limited times” wording. The word “securing” is just as important, though. To stick with copyright for a minute, publishers freely stole the writings of others and put out their own editions of these works. The point of copyright laws was to protect the author, to ensure that works could stand by themselves long enough to guarantee the writer as good a chance as possible to make money on those writings. The gradual difference between the length granted to patent protection and to copyright protection was due to the understanding that technology changed rapidly while words could be timeless. Improvements to technology over a 17 year period were the standard, even in the 19th century. A writer’s works could live on and on. The length of copyright was extended to 28 years, plus a 14 year renewal period in 1831. The Copyright Act of 1911 extended the renewal period to 28 years. That was what was in place when the Copyright Act of 1976 superseded it.

Now, back to what KJ wrote. Everybody admits that corporations do have a financial incentive to hold on to copyright for as long as possible. The leap to the assumption that at some point in the future corporations will somehow increase copyright again, despite the huge outcry that the current increase caused, despite the need to coordinate that battle with the European Union and the other major global lawmakers, despite the challenge to copyright laws that the Internet itself has created in numerous ways, is an act of propaganda rather than a rational argument. Similarly, nobody took either Sonny Bono or Jack Valenti seriously in their proposals back in the day and I know of no proponent (major or nutcase) currently who is stating this, even as an extreme position to be bargained back. I do deem your arguments to be “hypothetical nonsense”. None of them will happen.

Nor do I see anything in your arguments that gives any basis to your underlying critique that something got broken when copyright was extended by 20 years. You just keep repeating that the current length is too long. That is probably true. It’s not much of an argument to use when testifying before Congress, though. Can you imagine the questioning? What’s the right period, then? Who says? What economic data do you have? What about the people we now will be hurt? How do you distinguish between 50 years and 70? Or 60, or 90, or 56, or 1,000,000,000 seconds?

As an intellectual position the only people who will give you opposition on this are the ones who want copyright to disappear entirely. In practical terms, the next battleground is 2018, when material created in 1923 is due to enter the public domain. Congress simply isn’t going to enter a topic this contentious if the need isn’t there. Orphan copyright will be fought over sooner than that, though, because the need is huge and interests are already fighting.

I do appreciate your kind words about my writing. You’re right about my wanting my anonymity, though.

[Hellestal]

@Exapno Mapcase

It’s been understood since the time of writing that copyrights and patents are the subject of the clause. Most people today focus on the “limited times” wording. The word “securing” is just as important, though. To stick with copyright for a minute, publishers freely stole the writings of others and put out their own editions of these works. The point of copyright laws was to protect the author, to ensure that works could stand by themselves long enough to guarantee the writer as good a chance as possible to make money on those writings. The gradual difference between the length granted to patent protection and to copyright protection was due to the understanding that technology changed rapidly while words could be timeless. Improvements to technology over a 17 year period were the standard, even in the 19th century. A writer’s works could live on and on. The length of copyright was extended to 28 years, plus a 14 year renewal period in 1831. The Copyright Act of 1911 extended the renewal period to 28 years. That was what was in place when the Copyright Act of 1976 superseded it.

This is a good background, but it also leaves out some of the most interesting and most important events in the history of American copyright law.

First, the right to what lawyers call “derivative works” was not included under the original copyright act. And for better or worse (probably for the worse) the law chugged along like that in America for over a hundred years. It wasn’t until 1891 that Congress, thinking about foreign translations and such, finally put its foot down and said that the original owner had the power over derivative works.

Second, the Copyright Act of 1911 applied to copyrights on new works. But Congress extended the terms of existing copyrights eleven times in forty years, culminating with the Sonny Bono act. While it’s true that many of these extensions were short, some of them just a single year, the pattern of extending the life of copyrights that already existed became a concern, especially since the justification for both the 1976 Act and the Sonny Bono Act (1998) was to get copyright terms in line with international standards. Even more interesting: the 1976 Act extended all existing copyrights by 19 years. And when that 19 years was eaten away by time? It was just three years later that Sonny Bono came along and extended all existing copyrights another couple decades.

And it’s “propaganda” to believe that they’ll try again? I don’t possibly see how you could make that claim when the full history is told.

Yes, the last battle was contentious. But the big media corporations won. Then they won the court case. And they aren’t the type of organizations that quit when they’re winning when so much is at stake. When the time comes, I am confident that they will lean on Congress again, just as they did before. You hearten me somewhat with your solid belief that they won’t succeed, but you are utterly unconvincing to me when you say they won’t try.

But hey, I can wait and see. I’ll make it another ten years, easy, if the hookers and booze don’t kill me.

@Exapno Mapcase

Nor do I see anything in your arguments that gives any basis to your underlying critique that something got broken when copyright was extended by 20 years.

Then you missed my cite in post 28 when I linked to the amicus brief from the economists.

Now, I can manage a simple Net Present Value calculation, but I don’t have their data, and more importantly, I don’t have their expertise (five Nobel Prize winners signed that brief). So I can’t give you an exact dollar amount, and I can’t compare 50 years to 60 years to 90 years. In addition, I’m a free-market sort of guy myself (well, I generally lean in that direction whenever I can), and so when I type out “government monopoly”, and I point out that the originally stipulated reason for that monopoly has passed (as it has), I have a tendency to instinctually feel that the argument is over. Proof done.

And just for the record, I didn’t pull the Grimm hypothetical out of my ass. Lawrence Lessig, who argued the Eldred v. Ashcroft case, asks in one of his books what would’ve happened if Disney had had to work under those conditions, if Grimm had still been copyrighted at the time of Snow White. Of course, he doesn’t have an answer. But I didn’t have a set answer myself, just a very compelling “what if?”.

Compelling to me, anyway.

A breather now, to make several more random points. Hoo… Okay:

First, I didn’t know before that most cases of infringement involve the plaintiff using trademark law instead of copyright law. Fine, fine. But I’m sure you know, trademarks in fiction are for, say, the title and not for the body of the work itself. As such, that won’t extend to protecting the reproduction of, say, Steamboat Willy or Action Comics #1 when they finally enter the public domain.

Now, of course, that will not necessarily mean that any Joe Schmoe can slap that big red-and-yellow Super-S or the silhouette of mouse ears on their own book to sell it. That seems like a pretty clear and obvious trademark violation.

But trademarks can no longer be enforced when they’re diluted. And with any interested party who owns a color printer and a scanner able to whip out copies of AC#1, for profit, I’m thinking that’s a pretty clear way of legally diluting the trademark. I reckon it wouldn’t be long before the trademark got too dilute to protect. Maybe I’m wrong on that, but I betcha one green picture of George Washington* that there’ll be an important case about one of these American icons soon enough.

Second, while I do agree with you that no one should be able to profit from fanfic without the owner’s permission, I want to point out the example of the Japanese comic book industry, where people… profit from “fanfic” without the owner’s permission all the time. We’re not the Japanese, and we don’t have to do things their way, but it’s fascinating how successful the Japanese manga industry is compared to its US counterpart.

It is possible that the stricter copyright standards in the US have over the years worked against the health of the industry.

And I want to point that while you are protected from fans profiting from fanfic based on your work, musicians are not protected to the same degree. Anyone can make a cover of a song, even without the original composer’s permission. The cover artist simply has to pay a statutorily defined royalty instead of being forced to negotiate for permission. This arrangement seems to suit the industry better than a pure permission-based approach.

It is possible that something similar might be arranged in more narrative-based art-forms. Not remotely likely, but still possible.

I know I’ve repeated, over and over, repeatedly, in a most repetitious manner, that copyrights are too long. Trust me, I would rather have discussions about the Japanese market, or about music cover bands, or about the film industry’s resistance to new technologies (for copyright reasons before they realize they can profit), or anything else.

But these discussions are supposed to revolve around the give’n’take between the needs of creators and the needs of the public. And there is no give’n’take in the law anymore. It’s all take-take-take from the big media companies. You’re right that most fanfic owners get away with their reproductions - but the law clearly states that the owners have every right to bring the hammer down if they so wish. Well, I just don’t cotton to that. No mistake, it puts a bug up my ass. Time was, any adaptation was allowed. That wasn’t right, so it swung the other direction. And it swung too far. I can’t help being of the firm belief that a person should be free to write about Kirk and Spock fucking each other sweatily and passionately, as long as they’re not making a buck from the project.

And I think that’s all I have to say on this.

Probably.

• I’m a lovely crayon artist. For proof, please send a self-addressed stamped envelop with a green picture of George Washington printed by the Federal Reserve System of the United States. No refunds. Void where prohibited.

[Exapno_Mapcase]

@Kendall Jackson

This is a good background, but it also leaves out some of the most interesting and most important events in the history of American copyright law.

First, the right to what lawyers call “derivative works” was not included under the original copyright act. And for better or worse (probably for the worse) the law chugged along like that in America for over a hundred years. It wasn’t until 1891 that Congress, thinking about foreign translations and such, finally put its foot down and said that the original owner had the power over derivative works.

And that happened for two reasons. One is that the Berne Convention came into being in 1886. The US was not a signatory. The other was that U.S. publishers were therefore ripping off European works, publishing them in so-called “cheap books” and not sending any money back to Europe. The International Copyright Treaty of 1891 was the impetus for Congress’ action.

What happened next? Berne was revised in 1908 to use life of the author plus 50 years as its base copyright length. Congress followed with the 1909 Copyright Act creating the 28 plus 28 system. So the U.S. copying Berne has a long history, starting before major corporations took over American culture.

Second, the Copyright Act of 1911 applied to copyrights on new works. But Congress extended the terms of existing copyrights eleven times in forty years, culminating with the Sonny Bono act. While it’s true that many of these extensions were short, some of them just a single year, the pattern of extending the life of copyrights that already existed became a concern, especially since the justification for both the 1976 Act and the Sonny Bono Act (1998) was to get copyright terms in line with international standards. Even more interesting: the 1976 Act extended all existing copyrights by 19 years. And when that 19 years was eaten away by time? It was just three years later that Sonny Bono came along and extended all existing copyrights another couple decades.

The meme that “Congress extended the terms of existing copyrights eleven times in forty years” is a powerful one, repeated in every anti-copyright screed, but I’m not sure if its correct.

I traced it back to Lawrence Lessig’s 2004 book Free Culture.

Then, beginning in 1962, Congress started a practice that has defined copyright law since. Eleven times in the last forty years, Congress has extended the terms of existing copyrights; twice in those forty years, Congress extended the term of future copyrights. Initially, the extensions of existing copyrights were short, a mere one to two years. In 1976, Congress extended all existing copyrights by nineteen years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the term of existing and future copyrights by twenty years.

I can’t, despite extensive searching, find exactly what 11 extensions he’s referring to. There’s a possibility that since the 1976 and 1988 acts changed the provisions of all previous acts at once he’s merely multi-counting. A bar graph on the Trend of Maximum U.S. General Copyright Term page indicates that’s the case. That’s somewhat less impressive. If other acts are being referred to, I’d very much like to see reference of them.

The 1976 Act, BTW, was a much belated response to the US becoming a member of the Universal Copyright Convention in 1955. I can’t figure out what is supposed to be meant by the act extended all existing copyrights by nineteen years. The Act (which took effect in 1978) extended original copyright to life plus 50 years, obviously an indefinite but widely variable figure. In addition, according to Wiki, “the Act created a static seventy-five year term (dated from the date of publication) for anonymous works, pseudonymous works, and works made for hire.” True, 75 is 19 more than the 56 possible years of copyright earlier, but only for a very minor subset of all works, although a subset important to corporations. Certainly not all works got this extension. Since we remember that Berne had long been using life of the author plus 50 years, we see another instance of the U.S. copying Europe.

And it’s “propaganda” to believe that they’ll try again? I don’t possibly see how you could make that claim when the full history is told.

No, it’s propaganda to state that copyright is automatically in trouble at some distant unspecified time in the future before the corporations will obviously win as they obviously won every time before. Corporations could only wish they had the power you keep giving them.

Then you missed my cite in post 28 when I linked to the amicus brief from the economists.

NPV calculations, even when made by an impressive group of Nobel laureates, are only as good as the numbers, the extremely speculative, based on no sound foundation at all numbers you feed into it. And also of the assumptions that you make. When I read the amicus brief I almost giggled, because the work was almost a parody of applying economic considerations to decisions which never involve them. Very, very few writers ever decide among projects to choose the ones which they believe will have the maximum future earnings potential 70 or 90 years down the line. They just write their next book. And the economic hit that potential makers of derivative works would suffer could be palliated or removed entirely by a proper orphan copyright system, which they never mentioned.

First, I didn’t know before that most cases of infringement involve the plaintiff using trademark law instead of copyright law. Fine, fine. But I’m sure you know, trademarks in fiction are for, say, the title and not for the body of the work itself. As such, that won’t extend to protecting the reproduction of, say, Steamboat Willy or Action Comics #1 when they finally enter the public domain.

No, I don’t know this, because it is not true. Trademarks extend to individual characters, their likenesses, their costumes, their catch phrases, to recognizable poses, situations, or events, to their villains and subsidiary characters, to their made up locations, and to anything else the lawyers can think of. Titles are about the one thing they don’t apply to. As long as Mickey Mouse is a trademarked character, Steamboat Willie is off limits.

But trademarks can no longer be enforced when they’re diluted. And with any interested party who owns a color printer and a scanner able to whip out copies of AC#1, for profit, I’m thinking that’s a pretty clear way of legally diluting the trademark. I reckon it wouldn’t be long before the trademark got too dilute to protect. Maybe I’m wrong on that, but I betcha one green picture of George Washington* that there’ll be an important case about one of these American icons soon enough.

Wrong again. Trademarks can only become diluted if the trademark owner does not vigorously pursue violators. Mere numbers of violators don’t mean a thing. As long as Disney and DC zealously sends its lawyers after the gnats who are swarming around its trademarked properties, they are legally covered.

Music is an interesting field in copyright all to itself. I’m not as intimately versed in its details as I am with writing, and I think we’ve shown that talking about a legal field you’re not fully familiar with causes you to confuse your personal opinions with facts.

So I’ll end this as well, unless more non-facts are posted. I’ll do my best to correct those because no meaningful discussion can take place unless everyone is arguing from the same legal page.

[Hellestal]

You asked for cites.

@Exapno Mapcase

The meme that “Congress extended the terms of existing copyrights eleven times in forty years” is a powerful one, repeated in every anti-copyright screed, but I’m not sure if its correct.

I traced it back to Lawrence Lessig’s 2004 book Free Culture.

I can’t, despite extensive searching, find exactly what 11 extensions he’s referring to.

<snip>

If other acts are being referred to, I’d very much like to see reference of them.

I’ve traced it back to Lawrence Lessig’s argument in Eldred v. Ashcroft, specifically to Footnote 1, which provides his cites, the references you were after.

@Exapno Mapcase

No, it’s propaganda to state that copyright is automatically in trouble at some distant unspecified time in the future before the corporations will obviously win as they obviously won every time before.

Unspecified? It’s been specified at least twice already in this thread. In ten years time, we’ll find out who’s right.

And I’m not “giving them” power. Hell on a biscuit, man, they have money.

@Free Culture

Thus a congressional perpetual motion machine: So long as legislation
can be bought (albeit indirectly), there will be all the incentive in
the world to buy further extensions of copyright.

In the lobbying that led to the passage of the Sonny Bono Copyright
Term Extension Act, this “theory” about incentives was proved
real. Ten of the thirteen original sponsors of the act in the House
received the maximum contribution from Disney’s political action
committee; in the Senate, eight of the twelve sponsors received contributions.
3 The RIAA and the MPAA are estimated to have spent over
$1.5 million lobbying in the 1998 election cycle. They paid out more
than $200,000 in campaign contributions.4 Disney is estimated to have
contributed more than $800,000 to reelection campaigns in the 1998
cycle.5

You’re convinced they won’t win next time. In fact, you’re convinced they won’t even try. I see no rational basis for believing that they won’t try. But I have never said that another extension is inevitable, though I admit my cynicism about that possibility does infect my tone.

@Exapno Mapcase

NPV calculations, even when made by an impressive group of Nobel laureates, are only as good as the numbers, the extremely speculative, based on no sound foundation at all numbers you feed into it. And also of the assumptions that you make. When I read the amicus brief I almost giggled, because the work was almost a parody of applying economic considerations to decisions which never involve them. Very, very few writers ever decide among projects to choose the ones which they believe will have the maximum future earnings potential 70 or 90 years down the line. They just write their next book.

This just means that you’re as unfamiliar with standard economic analysis as you think I am of trademark.

The simple fact is that almost none of us consciously go through the sophisticated calculus that appears on the blackboards of economic classes. And yet when economists use consumer and producer behavior theory (microecon, not the fuzzier macro stuff that pretends it’s some kind of proto-psychohistory), it provides us with extraordinary predictive power. The funniest thing about this particular case, though, the key point that you missed, is that they are saying exactly what you are saying: that no author would actually think about the extension of the copyrights, which undercuts (in their estimation) one of the possible justifications for the original law.

Of course no writer would think about it: the incentive is too small. And so, it would not interfere with the production of new artistic works. The artistic community would continue to produce, just as the technological sector has enough incentive to produce with their 20 years. That is their point.

The analysis of the economists is correct. The faux-Nobel for econ is not just a shiny piece of metal.

@Exapno Mapcase

No, I don’t know this, because it is not true. Trademarks extend to individual characters, their likenesses, their costumes, their catch phrases, to recognizable poses, situations, or events, to their villains and subsidiary characters, to their made up locations, and to anything else the lawyers can think of. Titles are about the one thing they don’t apply to.

This is not quite true, Mr. Marx. If you feel compelled to correct me (which I understand, in this particular case), then let’s at least be precise about it. Trademarks do apply to the titles of series of works. “Wheel of Time” is trademarked, even if “Eye of the World” is not. It was likely this very fantasy series that was the source of my original confusion. I remember chuckling at the fact that Jordan’s Wheel symbol was trademarked in addition to the title of the “book”. Now that I look back, I see I was conflating the book with the series.

@Exapno Mapcase

As long as Mickey Mouse is a trademarked character, Steamboat Willie is off limits.

Then this is a perpetual copyright.

To be more precise, this is the granting of an exclusive right to that work for an unlimited period. It might not be prosecuted under copyright law, but that is precisely what it is.

And there is, as far as I can tell, no case law whatsoever that you are correct about this. It appears to be an open question as far as the courts are concerned. Back in the day of more reasonably-lengthed copyrights, people weren’t generally in the habit of trademarking the catch-phrases, costumes, poses, and whatever of fictional works. The whole kit-n-caboodle entered the public domain. Lewis Carrol lost Alice (in the US), Disney made Alice, no trademarks involved.

This is important. One of the key principles on which Lessig made his case was that by extending existing copyrights eleven times in forty years, that Congress was, in effect, creating a perpetual copyright. The Court’s response was, essentially, “Nuh-uh”. The limit was longer, they said, but it still existed, and as such, it was still valid and constitutional. Well, okay, a 7-2 decision is kinda hard to argue with. But if trademarks are used to protect works whose copyrights have expired, then that argument of limitation vanishes completely.

The copy-right (in its original sense) becomes perpetual. And that is patently unconstitutional.

And also, to repeat, since that’s what I do: Trademarks giving a copyright that never ends? :mad: I wager there’ll be a case on this. I imagine Lessig will be involved.

[Exapno_Mapcase]

Just a couple of quick comments.

Trademark protection is not at all the same thing as copyright protection. Copyright protects expression. Trademark protects, for want of a better word, the images of that expression. They are complementary and necessarily so, since they each protect a section of rights that the other does not touch. Sort of the opposite of the same thing.

(The name of a series is emphatically not a title in law. That’s what allows it to gain trademark protection.)

I’m not sure I understand why you mock Sonny Bono and Jack Valenti but praise Lawrence Lessig, since he is their exact equivalent but on the other side. There are many of us in the writing community who consider him a nutcase embarrassment for his extreme stances.

But even he will never confuse trademarks with copyright.

Honestly, you’re just hurting your arguments with this. I’ve told you from the beginning that your lack of understanding of trademark was causing confusion with the claims you’re making about copyright. Don’t jump from trademark’s being unimportant to its being omnipotent. It’s all much more complex than that. Do some research on trademark equivalent to what you’ve done on copyright and get to understand its strengths and its limitations and the role it plays in controlling - and protecting - expression.

[Hellestal]

@Exapno Mapcase

I’m not sure I understand why you mock Sonny Bono and Jack Valenti but praise Lawrence Lessig, since he is their exact equivalent but on the other side.

I haven’t mocked Sonny Bono. I haven’t mocked Jack Valenti. I haven’t praised Lawrence Lessig. I’ve criticized or praised their arguments.

Their arguments are the important part. I’m not building an altar to Lessig and sacrificing goats in his name. When he says something intelligent, I’ll use it. When he doesn’t, I won’t. Maybe Lessig is actually is a nutcase embarrassment, but there’s nothing cited in this thread that indicates anything of the sort, and there’s nothing I’ve read anywhere else that didn’t wildly and willfully distort his actual opinions. And as far as this thread is concerned, unsupported allegations of his nuttiness are entirely beside the point.

@Exapno Mapcase

But even he will never confuse trademarks with copyright.

He also wouldn’t confuse patents and copyrights.

Since the message didn’t get across last post: I am not involved in some monstrous equivocation here. This is what I’m interested in: “the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work)”. Taking it to its simplest form, I’m interested in the right to copy. The copy-right.

If the legally defined copyright on Action Comics #1 comes to an end and the book enters the “public domain”, but my entrepreneurial nextdoor neighbor is sued for a trademark violation when he tries to sell his newly minted copies on E-Bay, then DC Comics still maintains, in fact if not in legal terminology, the exclusive legal right to copy that work. DC Comics still maintains that “copy-right”.

I have no other word for it.

Just based on your comments in this thread, I can make an overwhelming case that this copy-right (even if the law is calls it something else) is perpetual. You’re the one who said that a trademark violation would squelch any attempt by a third-party to sell Steamboat Willy for a profit, even after it’s in the “public domain”. Despite your belief that I’m vastly ignorant, this is the one and only major piece of trademark information that you’ve actually attempted to teach me in this thread (the title thing is interesting, but peripheral to the point I’m trying to make).

And trademarks, as you know, are forever. Shoot into the future: As long as Disney keeps pumping out mouse products and mailing cease-and-desist letters, Steamboat Willy is stuck in public domain purgatory. Theoretically, it’s lifetime is over, but for all practical purposes, nobody else can exercise the right to copy it. That right is still exclusively held, in a roundabout way, by Disney. And the same would be true 400 years from now. Or 800. Or a 10,000. Or forever minus a day. Again, this is based entirely on what you said. If it’s wrong, then I can’t help but think that you have somehow described the situation incorrectly. If it’s your opinion that this simple logical deduction results in some kind of “omnipotent” trademark, then it appears to me that it’s entirely your own doing. I’m simply applying the rule of trademarks that you described.

Not looking for a dissertation here. I’d appreciate something short and to-the-point. Please acknowledge that this trademark-based exclusive “right to copy” is perpetual as I’ve described it (even if the lawyers don’t call it copyright), or if I’ve fucked something up (eh, it happens), briefly point out where I’ve gone wrong or provide a cite that covers it.

If I’m truly misunderstanding things, then put me back on the right road.

[E-Sabbath]

So when Steamboat Willie exits copyright, I will not be able to sell a copy of it on DVD?