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.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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”?
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.
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?
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.
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.
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).
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?
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.
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.
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.