LarsG's Journal: Randite says: "CTEA good, Lessig bad"

What do you know, randite Amy Peikoff thinks the CTEA is good and Lessig is a horrible Marxist.

People on Politech are having a lot of fun with this one.

Anyway, time to Shrug Atlas:

In 1998 Congress, pursuant to its Constitutional power to determine the duration of federal copyright protection, passed a law extending the term of that protection by 20 years. This law brought United States copyright protection in line with that already afforded in Europe.

That's half right and half wrong.

Before 1995, the duration of copyright in Europe ranged from life+50 to life+80.

The duration was harmonised in the internal market in 1995 by the 93/98/EEC directive. The duration was set to life+70 for authors of literary and artistic works and 50 years for corporately owned phonograms and films.

The US copyright term extention act of 1998 set the duration to life+70 for authors and 95 years for corporate authors.

It is true that the duration for authors that hold the copyright to their own works were harmonised by the CTEA, but it created an even larger gap than before for works where the copyright is held by corporations.

If you look at the lobbyists in favour of the CTEA, it is obvious that most of them wanted a retroactive extention for corporately owned works. In Disney terms, preventing The Mouse from falling into the public domain.

In addition, as the average life expectancy in the United States now exceeds 70 years, the law brings copyright protection in line with the legal vehicle for the posthumous control of tangible property--the law of testamentary trusts, which bases the term of such control on a human lifespan.

That is an apples and oranges comparision. Unlike rights to tangible property, copyright (and related rights like patents) are not based on a natural right. They are instead derived from the copyright clause of the US constitution which in its entirety reads: "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."

Thus, Congress can only extend the duration and scope of copyright law if it "promotes the progress of science and useful arts". Also, the duration of the copyright must be for "limited times".

The CTEA is the last in a long row of legislation that has retroactively extended copyright from 14+14 years to life+70/95 years.

Lessig would have the Supreme Court extend this perversion of free speech to mean: free of any need to pay for the borrowing of someone else's greatest achievement: original thought. Or worse: free of any need sufficiently to digest that original thought so as to be able to put it into one's own words. Appropriating and parroting the creation of others is now, according to Lessig, "free speech."

That isn't Lessig's argument at all. His argument is that that both the 1st amendment and the copyright clause in the constitution set a limit on Congress' power to extend the duration of copyright. For the last half of this century, due to the repeated extentions, the duration of copyright has for practical purposes become unlimited. He wants the supreme court to tell Congress that they can't continue to extend the duration if they want to stay within the constitutional limit of "limited times".

Also, creation is not something that is done in a vacuum. Disney and other corporations have benefited greatly by creating adaptions of works in the public domain (Snow White, Hunchback of Notre Dame, Alice in Wonderland, to give a few examples) or making fair use of copyrighted works (Steamboat Willie was a parody of Buster Keaton's Steamboat Bill). These are the same corporations that today are lobbying to extend copyright and limit fair use, so that noone else can do the same with their works. Copyright is supposed to be a tit-for-tat mutually beneficial contract between creators and the public, and the CTEA is one of the more obvious examples of how this balance is being tilted in favour of corporations.

"Only 2 percent of works protected by copyright," they go on, "create a regular stream of income for their creators." Translation: only a small minority of "non-little" people will be hurt by repealing this law, so why not do it?

If you create a work that "conveys an important artistic or philosophic message", is it not in your interest that the future generations can get access to it? Remember, if the 2% figure above is correct, there is a 49 to 1 chance that the work won't be reprinted by the publisher. How does it promote your quest for giving people important insight in eternal questions if the last copy in existence of your work decompose on a dusty shelf years before the people who want to preserve it are allowed to because of the latest extention of copyright law?

I'd recommend that you talk to people trying to preserve old movies - there is not sufficient commercial incentive for movie studios to do the work, and those that want to are blocked by copyright law. Movies from the 1920s and 30s are getting close to disintegrating from physical decay and the likely result of the 20 year extention is that it will become impossible to restore many of them when they enter the public domain.

in addition, he wants to be sure that the integrity of the work is protected against mutilation as long as possible.

Then you should start lobbying for Congress to change copyright law to mirror the european (and Berne copyright treaties') concept of "moral rights".

If those in the "digital liberties set" plan to have a field day with others' works of creative genius--bastardizing them into whatever fragments they find appealing, adding any distorting content they choose, then blasting the results all over the Internet--what is the point of trying to convey to the world one's own vital viewpoint?

I think you are exaggerating the dangers here.

My experience with efforts like Project Gutenberg that digitise public domain works, is that they try very hard to provide accurate and true copies of the original. After all, why should they spend time and money on preserving something if they don't care about the work?