Solum on Keenan on "limited times"
Lawrence Solum, who has done great work interpreting the text of the Progress Clause (ignored by the Court in Eldred), has an interesting and useful comment on Doug Keenan's effort to interpret the meaning of "limited times." Solum's basic strategy is to interpret "limited" in light of the actors the clause envisions -- authors. What's interesting about that is that it throws into relief the fundamentally important change Congress made when it effectively expanded the reach of "Authors" to include corporations. While there is a "limit" to an Author's life, what is the natural "limit" to a corporation's life?
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One thing that I've heard surprisingly little mention of in discussion of copyright terms; any copyrighted work is a product of the culture that produced it, as well as of the author him- or herself. Wouldn't this imply that the creation should be given back to that culture, eventually?
That's why I liked of having a set term, extensible indefinitely for an annual fee (although I favor a rather high, increasing fee, rather than a nominal one). At least that results in the author paying something back to society for the continued monopoly. And eventually, that fee gets higher than the money the property brings in, and the property is truly released for the benefit of all.
Having said all that, I do like that interpretation of "limited". :>
I think this type of analysis helps to underscore why we may need a second bite at Eldred (if possible). I am not sure why the takings angle wasn't played out in Eldred (and I am sure this is exactly the place to have the why's pointed out to me in painful detail) but it seems that at least the retraoctivity portion of the CTEA could have been thrown out on a takings theory. This would leave a law which would only apply to works being authored today, which wouldn't see the benefit of the law for another 50-70 years.
This is where the economic analysis comes in. What rational actor is going to waste money lobbying for a benefit that would only come in another 50 years? Without the retroactive effect of the CTEA, it becomes an easy law to lobby out of existence.
My interpretation of the Eldred strategy was that the good guys were going for a clean win, betting the ranch on a common sense interpretation of the "limited times" language in the hopes of getting the whole thing thrown out. However, as a NPV analysis of future income streams shows, in this case half a loaf may equal the whole loaf before you know it.
Isn't it time to drop the Eldred battle? It was fought; your side lost. The message seems pretty clear; the courts aren't going to wage this policy battle.
Lawrence:
Are you going to address the latest 321Studios/CSS arguments and rulings?
Alan
in his piece lawence solum argued:
Given that the first Copyright Act specified a term of fourteen years plus a like term of renewal, it might be argued that the CTEA’s term of authors’ lives plus seventy years, being potentially quintuple the original term, would no longer qualify as conceivably “limited.”
it might be argued, but is it a valid constitutional argument?
from a US constitutional law perspective, can anyone tell us if the actions of one congress can create a further constitutional constraint on a later congress? are there any examples of this?
unlike the well-known constraining effect of legal precendent on the judicial branch, it seems to us as though there exists no such precendent setting mechanism in the legislative branch. the only constraint between one congress and the next would seem to be political momentum.
how about it, constitutional scholars, does solum's argument pass constitutional muster?
Unfortunately, I didn't find either of the past two theories particularly persuasive.
Keenan - A copyrighted work doesn't have a permanent value. The longer the protection lasts, the more the work could be worth
Solum - People have estates. Many artists may want to leave something for their kids or grandkids. The longer the protection lasts, the more the work is worth in the author's lifetime.
I should note that "a limited time", as opposed to "a time", sounds to me as though it implies more than simply fixed.
But the heart of the matter may be the 5th amendment. Works have a shelf-life, eventually all works become worthless. If pieces aren't contributed to the public domain until they aren't worth anything, we the people have been deprived. If the work is put into the public domain when it has say 10% of its value left, then there is some kind of trade; we haven't been deprived of property.
What do you think?
Solum's argument as it appears in his blog post looks like a variant on Thomas Jefferson's proposal to set the term of copyrights and patents to the half-life of an adult generation, which was 19 years in his time and about 30 years in ours. Jefferson's starting point for his proposal was the principle that "the earth belongs in usufruct to the living".
A version of Dave's argument, (without the 5th amendment, so far as I'm aware) has been advanced in a patent context, for example: if the antibiotic is no longer potent when the patent expires, the public hasn't gotten anything from its bargain with the inventor. A 19th-century congressman, whose name I forget, advanced a similar argument in the copyright context. More recently, I used it in the copyright context, too, and I wouldn't be surprised to learn if others have.
The problem with the CTEA is not only that the public receives a bad bargain from such ridiculously long copyright terms, but also that the members of Congress who spoke in support of the bill, outside of a few perfunctory statements, barely acknowledged the importance, or even the existence, of the public's right to have all works of the human mind enter the public domain. The same fault appears in the Supreme Court majority's Eldred opinion. The political process might indeed suffice if our policy makers would give the public's right to the public domain its proper weight. But why should they, if the Supreme Court does so only occasionally ?
I have to say that I think arguing "limited times" is probably the wrong way to go about it. Correct me if I'm wrong, but it seems to me that courts have been consistently ruling that "limited" means whatever Congress thinks is proper, as long as it falls short of perpetuity. I think it would be much more useful, from a Constitutional standpoint, to attack current copyright legislation on the grounds that it does not "promote the Progress of Science and useful Arts."
All the arguments people have been making are to the effect that the creator of a work does not derive substantial benefit from the copyright beyond n years; but if an author stops deriving benefit from a copyright it is no longer promoting progress by encouraging him to contribute further to society.
The real problem is that most people are not willing to argue against copyright because they have been, to put it bluntly, brainwashed into accepting copyright as a fundamental right of creators rather than a bargain with society. You'd be amazed--or maybe you wouldn't--at the number of people who argue circularly that copyright must be extended because it's important to protect the rights of authors. Unable or unwilling to reason from first principles, they fail or refuse to see that the rights of authors are only protected because doing so benefits society.
Perhaps instead of trying to argue we should be trying to educate? I'm not being sarcastic, the fight's still worth fighting; it's just a thought worth considering.
On a related note. I was watching a small 'making of' thing on MTV about the movie The School of Rock staring Jack Black. According to this program they had a 6 million USD budget for paying for the rights to use songs etc. in the movie. What suprised/shocked me was the claim that they had paid 150 000 USD for the of the main character to quote a line from an ACDC song. While I find it reasonable that you have to pay royalities for using a popular song or lyric in a movie, I do find it strange to think you would need to pay (and pay such an extreme amount) to be able to quote one line from someone. Is US copyright law really that harsh? I would think most places such things would fall under fair use.
But the heart of the matter may be the 5th amendment. Works have a shelf-life, eventually all works become worthless. If pieces aren’t contributed to the public domain until they aren’t worth anything, we the people have been deprived. If the work is put into the public domain when it has say 10% of its value left, then there is some kind of trade; we haven’t been deprived of property.
dave, you are on the right track insofar that arguing the constitutionality of article 1 section 8 within itself is a weak attack. neither the lever of limited times nor progress is going to crack this nut for you. the winnng argument, if there is one, has have to come from outside.
we don’t think an argument on the 5th amendment’s takings clause “nor shall private property be taken for public use, without just compensation” is going to get you there. copyrighted material is, by definintion, private property, and to argue that an individual is taking from the public by extending his copyright requires a dyslexic misreading of the literal meaning of the amendment. the 5th amendment argument is better used by those who support an extended copyright than by those who wish to shorten it.
as the three blind mice are sympathetic to the difficulties our opponents face we offer a hint to guide you on your way: your yellow brick road, our dear friends, is the 4th amendment….
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated… “
as we have argued here before, the inherent problem in perpetual copyright is the lengths to which the government must go to enforce it. the longer a work is in public use, the deeper it becomes part of the culture, and the more tyranny which must be applied to enforce the owner’s exclusivity.
it is here – on the battlefield of the rights of the one individual (the copyright owner) versus the rights of other individuals (computer users) – and not between indivudual rights and the public as a whole – is where this discussion should be focused and where reasonable balance will be achieved.
TBM: If you consider extending copyright as taking from the public or not, is not related to dyslexia. It is related to if you recognize that intelectual property does not really exist, that is is in fact just a mental construct created by us as a means to encourage humans to build upon what has gone before. The main argument of people wanting more IP is that people should be allowed to keep ownership of their original ideas, but I would claim that you would be hard pressed to find any idea in this world which can truly be called original, they are all in some way or some form based upon earlier ideas and concepts. And when you see things in this context it is easy to see that IP is something you are granted by the public as a reward for your addition/improvement to the common pool. What some people (like you?) tend to forget is that you wouldn't been able to create your 'original idea' if hadn't been for the availability of the knowledge and information already in the shared knowledge pool of humanity.
So looking at the issue in this context it is clear that when you are granted something from the public then it is also clear that when your copyright term is extended it is taking something from the public.
Congressional expansion of author's rights to corporation is echoed by expansion of Bill of Rights to cover corporations, a trend that is at odds with how tightly constrained corporations were in the early days of our country. see story USA (tm) at Adbusters.org.
http://adbusters.org/magazine/28/usa.html
as the three blind mice are sympathetic to the difficulties our opponents face we offer a hint to guide you on your way: your yellow brick road, our dear friends, is the 4th amendment….
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated… “
While I appreciate the sympathies of the three blind mice, the 4th Amendment seems a hollow offer in light of the DMCA and Patriot Act.
However, if the mice are as cunning as I believe they might be, the 4th might be a better argument to curtailing the DMCA, CTEA, CAPPSII, and Patriot Act.
Eldred vs. Ashcroft failed on its legal merits because the Supreme Court wasn't willing to curtail the rights of Congress (if I read the decision correctly). A Fourth Amendment challenge might have more favorable legal merits in the Court's view.
--Jason
A MODEST PROPOSAL
When a work reverts to the people (enters the public domain), by tradition that means that any individual can freely use it. But... why could it not instead be that the right of use reverts to the Goverment, acting as the people's agent. (Furthermore, I see no Constitutional reason that legislation could not be passed to make this retroactive, so that the rights to the works of Mark Twain, Shakespeare, Homer, and so forth would would fall under this proposal.)
Furthermore, by legislation a mechanical license would be required to be granted (if I am using the terminology correctly), so that anyone could make any use of this public-domain work just by paying whatever fees and royalties Congress requires; that is, permission could be assumed. Congress could waive fees for high-school theatre departments and the like.
I mainly propose this because it would generate a large amount of revenue for the Treasury, which (if the laws were properly constructed) would come mainly from movie studios and similar large enterprises, and there's no significant downside. And God knows the Treasury could use the money.
What say you?
Just Some Guy: The idea seems horrible to me. The problem with perpetual/very long term copyright is not that it earns some people money, that is actually the good thing about it.
The problem is that when you have a world where 'every' sentence, word and idea is owned by someone who demands a fee for its use, it stiffles further innovation and development and removes competition from the marketplace. Paying the money to some government will not make that situation better.
Well. I agree its a radical idea, and might have bad unintended consequences, but consider this:
Such a move would almost certainly derail attempts to further extend copyright terms -- attempts that otherwise will almost certainly succeed. That alone is a very desirable outcome.
Why is this? Well, copyright holders such as Disney have a huge stake in extending their copyrights, and lobby congress very heavily and effectively for this. And their is no large organized opposition. There is no one with the lobbying clout of Disney on the other side.
BUT
If Congress itself would benefit from shorter copyright terms -- well, that evens things up considerably. After all, Congress is always eager to increase revenue, especially in ways that do not increase direct taxation. And even better that they could take moral high ground -- doing something for the good of the people. That would largely negate all the corporate lobbying in the world.
Furthermore, this is the only way to achieve the goal of returning copyright terms to reasonable length. Because the courts are not going to do it, and Congress is not going to do it as things stand now. Railing about the morality of it, citing amendments and convoluted legal arguments is not going to do it.
Politics is the art of the possible. My proposal is far from perfect... better that works be set free, but if not than then much better they belong to the Congress than to Disney.
In his first post, just some guy proferred:
To which Christian, in support of his opinion that JSG's idea is a "horrible idea", replied:
JSG acknowledges:
IMHO, once an idea "might have bad unintended consequences", it's time to go back to the drawing board because in the digital world "might" translates to "eventually will". But kudos for thinking about alternatives.
JSG goes on:
I'm not convinced that further attempts to curtail copyright (and, indeed, other "intellectual property") laws are doomed to failure. It might take a generation or two, and I might be overly optimistic, but I think that the human spirit will prevail over corporate dominance.
For evidence I offer my (a 31-year-old telecommucations computer geek) conversation with a gentleman named Brian (a 28-year-old guitarist and saxophonist for a local band) tonight.
Transferring the collection of license fees from one monopoly (the RIAA) to another (the government) doesn't seem to be the right way to go, IMHO. Rather, I think that the government should stop supporting the RICO efforts of the RIAA and let the market evolve. It will be painful (as mentioned, I'm in the telecom industry and we're going through the same thing), but it's necessary.
Here's the fact that established industries never want to admit: There is no such thing as protectionism when it comes to technology. It's been historically proven time and again that any effort to stifle technology is doomed to failure. This fact is the poison pill of globalization.
--J.
I am questioning Jason's optimistism that the human
spirit will prevail. Just look at all the open
licenses (including GPL). They heavily rely on the
copyright law (as well as contract law). The longer
the copyright law lasts, the better for the open
licenses to last that long. The addition of 20
years to copyright term gives them 20 more years to
force their terms and conditions on people who agree
to them. Where is the spirit in that? Why don't
they just simply truly free up their works to the
public domain where the true human spirit can be
found? But no, they want to make sure that people
abide by their terms and conditions as stated in the
open licenses for as long as possible. They only
maintain the status quo in intellectual property
rights. The corporations are just happy to have
their support, thank you.
Don't be too optimistic, Jason.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
Solumn is correct that the key to interpreting the Copyright Clause in the constitution resides in the word "authors" - but then he betrays his logic by suggesting fixed Copyright terms that are still ultimately arbitrary. He seems to say that we should look at actuarial tables from life insurance companies and take the average life-span in any given era to set a fixed length of copyright.
This is still an arbitrary figure that is not compelled by the text of the Constitution - and thus is just as vulnerable to attack from those who say courts should not usurp decisions from the Legislature in discretional matters not explicitly prohibited by Constitutional restrictions.
It seems obvious from the text of the Constitution that a copyright of a work can not be extended beyond the life of an individual author. In other words, if an author writes something at the age of 10, and manages to live until 90, then the copyright for that particular work should last 80 years.
If an author creates a work at the age of 65 and dies at 67, then the copyright for that work would be only 2 years, etc.
Authors should be able to sell the rights to their works to third parties (including corporations), but such third parties would only hold a life estate in the work for the length of the underlying author's life.
As a result, the Constitution should never recognize corporations as the actual "author" of a work. It can only be the owner for the life of a work's human creator.
Hi Joseph,
I am questioning Jason’s optimistism that the human
spirit will prevail.
I don't blame you. My optimisim is based upon history; the will of the market has always routed around attempts to control it. If you'd like a list of cites, I will provide them but a google search should suffice.
Just look at all the open licenses (including GPL). They heavily rely on the copyright law (as well as contract law).
Precisely. The GPL is the ultimate hack of copyright law. The further Disney seeks to prolong its Mickey-Monopoly, the further the GPL will erode copyright. The GPL does indeed rely heavily upon existing copyright law, but it does so in an effort to bring copyright law back into the social norms for which it (copyright law) was intended. There's nothing as eloquent as a self-repairing algorithim. :)
The longer
the copyright law lasts, the better for the open
licenses to last that long. The addition of 20
years to copyright term gives them 20 more years to
force their terms and conditions on people who agree
to them. Where is the spirit in that? Why don’t
they just simply truly free up their works to the
public domain where the true human spirit can be
found? But no, they want to make sure that people
abide by their terms and conditions as stated in the
open licenses for as long as possible. They only
maintain the status quo in intellectual property
rights. The corporations are just happy to have
their support, thank you.
I believe your 20-year reference pertains to patents and not copyright law in the US. This once again demonstrates the problem of conceptualizing patent, copyright, trademark, and trade secret laws into the term "intellectual property". Conflating all of those segments of law into one generic term serves only to confuse the public and disenfranchise the opinions of those who do understand the differences.
Don’t be too optimistic, Jason.
I will certainly think about your advice, Joseph. But I will continue to educate my family, friends, and peers about the lack of harm of P2P. If someone can walk into a diamond store and, via some digital means, duplicate a diamond...is that theft?
I remain hopeful that the will of the customer (NOTE: I did not use the term "consumer") will ultimately determine the market.
There's a very good reason for the term "disruptive techology". It's just that...disruptive.
I do not dismiss the possibility that I'm overly optimistic or naive; I'm simply comparing the lessons we've learned throughout history as applied to disruptive technology in our current predicament.
--Jason