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The Mouse That Ate the Public Domain
An anonymous submitter writes: "Antitrust lawyer Chris Sprigman has written a thoughtful column In Findlaw's Writ on the issues behind the 1998 Copyright Term Extension Act and the legal challenge (Eldred v. Ashcroft) to that law. I only spotted one mistake. Sprigman states that Disney's 1967 movie The Jungle Book came out a year after Kipling's copyright expired, but I can't see how, under the terms of the 1909 copyright law, an 1894 book could have had its U.S. copyright expire much later than 1950. Except for that one glitch, (if that's what it is) it's a fine column. There's no explicit mention of computer software except in the mention of the title of a 1970 article by Stephen Breyer, but everything he says about the usefulness of the public domain in literature applies with a vengeance to source code. And his is discussion of the U.S. Constitution's framers reminds us (though Sprigman doesn't develop this point extensively, and might not himself put it in as blunt terms as I'm about to) that there's even a deeper reason than utility to cherish the public domain: it is our right."
The copyright extension act (passed at the behest of Disney and the Gershwin heirs, who cynically manipulated the death of Sonny Bono to their own ends) was a bad law. What's more, I think it is an unconstitutional laws. Whatever you think of copyright, the law in the US is clear. The Supreme Court has ruled that the Constitution provides Congress the power to grant copyright solely for the public benefit. It is part of what has been called the "copyright bargain". The public gives up for limited times the freedom to copy the work, in return for the production of new works as a result of the exclusive copying incentive. Retro-actively extending existing copyrights by definition cannot encourage the production of new works, which is a major justification for copyright law. (The companies will surely argue in friend of the court briefs that giving them additional copyright time will cause them to keep old works in distribution, which is a public benefit. We'll have to see how this plays out). Companies like Disney don't need gov't subsidies. The Gershwin heirs should go get jobs. Authors already had life+50 years protection before the new law. How much more can you want?
Sprigman states that Disney's 1967 movie The Jungle Book came out a year after Kipling's copyright expired, but I can't see how, under the terms of the 1909 copyright law, an 1894 book could have had its U.S. copyright expire much later than 1950.
One way it could happen (though I don't know if it's the case here) is that there used to be renewal deadlines, and if you missed them... too bad. An example that comes to mind is It's A Wonderful Life (1946) whose copyright shouldn't be up for quite a while yet... but which became popular when it lapsed into the public domain through someone missing a filing deadline.
I respectfully disagree.
IMHO the problem is not the laws keeping up, but the principles underlying those laws being screwed with. For example, what if we had just stuck with the original 14 years for copyright. Screw the Europeans and their life + 70 years.
I am not saying that laws never need be changed or added, but I AM saying that the Founding Fathers got it MORE right than any other group of people in power, ever; that the underlying concepts that the USA was founded on are quite in harmony with the Internet and the information age. I can easily imagine the words 'Information Wants To Be Free'on the lips of Patrick Henry. The problem is not the laws being changed too slowly, but too fast, and with courts, congress and the states ADDING new laws where none are needed.
"Everyone is entitled to their own opinion, but not their own facts."
Let's say you're a songwriter. You write a hit tune. It goes to the top of the charts. You collect royalties up the wazoo. Great. A year later you realise, that since you're getting enough royalties to live comfortably, you really have no reason to write more songs, other than you might enjoy it. So you say, I'll write tomorrow. I've got lunch dates all day today. And you get lazy. Soon the public (your fan base) is funding your inaction.
But if the copyright only lasted long enough for you and your label to recoup expenses and make a tidy profit on top of that, chances are you'd be getting back to work a lot sooner. When you're hungry, you work.
c-hack.com |
But, copyright law was created before the U.S. reached the Industrial age ... The general attitude for copyrights has shifted dramatically during the past 200 years.
Not meaning to pick on U.S.-centrism, but copyright laws were created before the U.S. reached _any_ age, and the original purpose was to... wait for it... protect media cartels from competition and maybe be a handy mechanism for censorship, to boot.
Within the last 200 years, well, fair enough. The U.S. constitution said the purpose was to motivate further technological and intellectual progress. But within many other countries (especially in Europe) there is much more attention/justification around 'author's rights' than around 'scientific progress'.
It's a sad, but true, fact that the obviously insincere rationalization for the Mickey Mouse copyright extension is at least in part true: it _did_ bring the U.S. into line with international copyright practice. (And no, I don't buy the standardization line... I said it was obviously insincere.)
The article's closing sentence is: Perhaps if campaign finance reform succeeds in helping good arguments compete against ready cash, copyright will right itself.
The fight against DCMA, copyright extension, UCITA (or whatever it was - the law being peddled to states to give click-through licenses teeth etc.) are all worthwhile, but they are attacking the symptoms. The influence of money over politics is the cause.
(Disclaimer: I'm not a US citizen or resident, so arguably this really isn't my business.)
Anybody want to get some easy karma by posting links to campaign finance reform organizations?
Quattuor res in hoc mundo sanctae sunt: libri, liberi, libertas et liberalitas.
This has been hashed out on CNI many times, but people keep forgetting either when Disney's film was released or when Kipling's copyright expired.
For the record:
Kipling's copyright expired in 1956.
Disney released their version in 1967.
Now let us never speak of this again.
If you follow the link
Correspondence between Jefferson and Madison regarding the drafting of the Copyright Clause
and then read the mailing list message, there is a beauty in there by Madison. He thought that "monopolies" would be OK, for a limited time, and that there was little probability of abuse because of the democratic system being created in the US.
With regard to monopolies they are justly
classed among the greates nuisances in government.
But is it clear that as encouragements to literary
works and ingenious discoveries, they are not too
valuable to be wholly renounced? Would it not
suffice to reserve in all cases a right to the public
to abolish the privilege at a price to be specified
in the grant of it? Is there not also infinitely
less danger of this abuse in our governments than in
most others? Monopolies are sacrifices of the many
Follow the link ! The Madison and Jefferson writings are just great. It's the "inifinitely less danger" part which kills me. It's obvious our current payola system of government would be abhorrent to the founders.
Absolute statements are never true
After all, would you want to see an un authorized Mickey Mouse pr0n flick? (never mind ....)
the thought is enough to make Disney spin in his refridgerator.
"It is a greater offense to steal men's labor, than their clothes"
But, copyright law was created before the U.S. reached the Industrial age ... The general attitude for copyrights has shifted dramatically during the past 200 years.
It is true that the Framers felt the early American republic needed some protection against the large content producers of their day in London. But if there is to be a shift, it should recognize that today it is the large content owners in Hollywood and New York that seek protection by means of global trade treaties--and they have the least need in the world for protection--they have already achieved dominance. Developing countries have reasons to oppose strong "intellectual property" laws.
Another point is that the U.S. Constitution Article 1 Section 8 is based on the 1710 British Statute of Anne, which also gave exclusive rights to "authors" and not publishers. The publishers have been trying ever since to win back the monopoly they enjoyed before then with the Stationers' Company guild, in return for censorship of material offensive to the crown.
Today it is a few media giants, large global corporations, who claim to produce and therefore own all ideas and expressions. They are quite willing to censor material for the government or other powerful groups.
it _did_ bring the U.S. into line with international copyright practice...
No, the CTEA did not "harmonize" U.S. copyright law with European law, that is a misconception that Jack Valenti keeps lying about. In fact, there is no way that retrospective extension could be harmonious, because before 1978, U.S. copyright dated from date of registration not from date of author's death--that causes many confusing differences between term in England and the U.S.
As the Jungle Books example shows. Since Kipling died in 1936, his works were protected by copyright in England until 50 years after his death, and so still at the time of the film in 1967--until 2007 now that England increased the term to 70 years after author's death. In the U.S., however, the second volume of the book published in 1895 would have been protected 28, 56 (when renewed) and then 75 years after first publication in 1895, and went into the public domain (IN THE U.S.) in 1966, one year before the film, as the column states. If the CTEA term had operated to harmonize, or if it had applied before 1966, then the work would still be under copyright both in the U.S. and England. Disney would have had to pay many bucks for worldwide rights unless it could, as it did, "pirate" the work from the public domain owned by you and me.
The Jungle Books example shows also that copyright is also used to suppress the creation of derivative works as much as it is to give incentives to produce new works. How can Kipling be given an incentive to produce any new books--he died in 1936! Why should not every schoolchild be allowed the right to draw her own figures from The Jungle Books without having to pay Disney a royalty or even get permission? But Disney and other large corporations claim to produce and own all our culture and ideas--even our genetic information--and the right to rent it back to us as pay-per-view forever.
Not according to the Constitution. The Constitution doesn't talk about IP. It talks about copyright for the creator. The P part of IP is just one of those "well surely that's what they must have meant" things. (Response: Maybe and maybe not. And don't call me 'surely'.)
I am seriously thinking of putting my IP where my mouth is: adding a line to each source file I create, right below the copyright and the GPL blurb: "In ten years this work will automatically revert to the public domain. That is, if the latest copyright date listed above is from at least ten years ago, the copyright has been abandoned." Does anyone have a better way to express this?
"How can you claim that you are anti-crack, while still writing a window manager?" — Metacity README
entertainment
Pronunciation: "en-t&r-'tAn-m&nt
Function: noun
Date: 15th century
1 : the act of entertaining
2 a archaic : MAINTENANCE, PROVISION b obsolete : EMPLOYMENT
3 : something diverting or engaging: as a : a public performance b : a usually light comic or adventure novel
Somebody needs to remind the ENTERTAINMENT industry just what exactly their place is in the grand scheme of things! They've bent and twisted copyright laws and now they want to cripple every digital device under the sun, and for what? To protect Mickey Mouse cartoons and a few lousy movies??? NO! It's ENTERTAINMENT! It isn't something that actually matters that much! Yeesh, You'd think that it was a "national security" issue...like protecting nuclear secrets or something!
No Disney, you can't cripple all the computers. People use them to do things that are more important than a stupid cartoon mouse...like helping to treat the sick!
You're using her as bait, Master!