futoncam journals - Chris
Eldred vs. Ashcroft and other copyright ramblings - 1/27/2003 10:38 PM
I've been following the Eldred vs. Ashcroft case for quite a while now. For those who have never heard of it, it was a challenge to the Sony Bono Copyright Extension Act which extended the duration of copyright on most works in the United States by 20 years. The duration of new copyrights is now the life of the author plus seventy years thanks to that extension. Congress has been expanding the length of copyright for years, but the Sony Bono act was the first to extend the duration of copyright for works that had already been created. Usually they would make it so that new works would receive a longer copyright.
The Eldred case argued that the Sony Bono Act was unconstitutional because the constitution gives Congress the power to grant a limited copyright and charges them to do so "to promote the progress of science and the arts." Eldred also argued that by continuing to extend copyright that Congress was violating the First Amendment by prohibiting the creation of derivate works by keeping them from entering the public domain.
Unfortunately, (in my opinion) the Supreme Court ruled against Eldred and said that the Sony Bono Act was constitutional. This leaves proponents of a shorter copyright term to turn to means other than the courts. Before I detail those means, however, let me get my thoughts out about why copyrights should be shorter. First, I believe, like the founders did that Copyright exists to "promote the progress of science and the arts." Copyright should exist to give a limited monopoly to the creator of a works so that they can recoup enough money from that work to continue creating more works. The Founders of our country didn't think in terms of Intellectual Property because they didn't think of the arts as property for one person to own. They though of it as contributing to a cultural heritage, but saw that if art was going to flourish that the artists would need a way to support themselves. They turned to copyright as a means to that end. I see several tenents of current copyright law as going against that goal. First, the fact that the Sonny Bono Act increases the duration of already granted copyright is ludicrous. How does that encourage the creation of new art? It doesn't. It makes it so that artists can continue reaping benefits of old works for longer making them less likely to create new works. Secondly, I think it's crazy for copyright to extend past the life of the author. It may encourage the creation of art slightly by making an artist feel that his work can help support his family, but it allows an artist to live off of a single work for their entire lifetime and it keeps works out of the public domain for an incredibly long time. The public domain is an incredibly important resource. Look at many of the Disney films that we have enjoyed over the years and you will see that without the public domain they would never have occurred! Snow White, Sleeping Beauty, Peter Pan...all of these are stories that Disney was able to adapt without cost because the stories behind them had lapsed into the publid domain. Finally, I think it is silly for us to have a blanket term for copyright. Different kinds of works require different terms of copyright. Why should a novel and a newspaper article have the same term of copyright? Why should the source code for software and a song have the same term of copyright? Most of the monetary value of a newspaper article is gone within a year of its publication. Most of the value of software code is gone within three years of its release. How much money do Newspapers make off of two year old newspapers? Not much. How many programs that were written four years ago can you still even run on a modern computer? Yet we still buy music that was written in the sixties and we still buy novels that were written in other centuries. Works that no longer have significant commercial value should move into the public domain where they can be used as the basis for new derivative works. This is the payment that society is supposed to receive for granting copyright holders a limited monopoly.
Now earlier I spoke of a new tactic that proponents of shorter copyrights are looking at, now I'm going to talk about it. Lawrence Lessig, the lawyer who argued the Eldred case and who is a law professor at Stanford has suggested a piece of legislation that he's calling the Eric Eldred Act. This act would create a copyright tax that would kick in after fifty years. This tax would be small. The proposal says $50, but it could be as low as a dollar and still have an effect. Once a copyrighted work had been around for fifty years, the copyright holder would have to pay the tax in order to retain their copyright. Otherwise the work would move into the public domain. This would allow any work that no longer had significant commerical value to the copyright hold to move into the public domain where it could be used to create new derivative works. If the copyright holder felt that there was still significany commercial value to be had in the work, they could simply pay the small tax and hold on to their copyright. What isn't to like about this idea? Those who have no need for their copyrights will allow the works to enter to public domain at a reasonable rate and those who do want to retain their copyright will at least give a little something back to the government to cover the cost of things like Copyright Legislation enforcement and the like. According to Lessig, "Until 1976, the average copyright term in the United States was 32.2 years (the maximum term was 56 years, but 85% failed to renew their copyright after 28 years). In the last forty years, that term has tripled — every single work copyrighted today will remain copyrighted for an average of at least 90 years."
If you agree with what I'm saying here, it's time to take action! Write to your congressman or congresswoman, donate money via PayPal to free.mickey@foobox.com to help aid in the fight to get the Eldred Act introduced in congress, and talk about these ideas either on your website or as a letter to the editor or just in conversation with people. The more people hear this message, the better the chance to make real change. Any questions? Feel free to email me.