Saturday, September 10, 2005

Limit Copyrights

Sept. 10: I've made several updates to this post in the past 2 days.
Consider this. Only 4% of all works continue to collect royalties after 20 years of copyright. Only 2% of all works continue to collect royalties after 56 years. If a work manages to collect revenue steadily for 95 years, then the present-time economic value of that revenue to the original author is equal to 99.8% of a perpetual term, assuming an interest rate of 7%. The 20 years of the 1998 extension make up 0.4% of that. A perpetual term would be unconstitutional. - Facts not challenged by the court in Eldred v. Ashcroft.

I said this in 1971, in the very first week of PG, that by the end of my lifetime you would be able to carry every word in the Library of Congress in one hand - but they will pass a law against it. I realized they would never let us have that much access to so much information. I never heard that they passed the copyright extension 5 years later. It was pretty much a secret, just as is the current one, unless the Supreme Court strikes it down. Only then will it make the news. - Michael Hart, founder of Project Gutenberg

But this is a rich and complex stupidity, like a fine Margaux. I can only review a few flavours. - James Boyle
I've been troubled recently by copyright law, principally by the length of copyright terms. I know that copyright terms are too long--much too long. They are too long everywhere in the world, partially thanks to WIPO, the IP front group for IP businesses; but the U.S. in particular stands out an example of disturbing copyright policy, despite a constitutional clause that was intended to prevent this kind of abuse.

"Too long" doesn't even begin to describe it. Individual authors are granted copyright for their entire lives plus an entire extra lifetime of 70 years. More importantly, corporations get a similarly absurd term of 95 years (from the date of publication).

It seems inconceivable to me that this would have happened without big business lobbying for retroactive copyright protection. The original copyright law offered 14 years of protection, and only if the publisher officially registered the work. It also allowed a 14-year extension, but for most works, that extension was not used. Copyright has been extended at least four times since then. Although I don't recalling hearing specifically that all the various copyright extensions were applied retroactively, I just felt in my gut that it had to be the case. Why else would copyright be extended, but for lobbying by big business? And why would big business lobby, but for the sake of this year's bottom line? What business is concerned with its bottom line 95, 70, 50, 30, or even 20 years from now? For many or most businesses, I find it hard to believe that the fate of their intellectual property even 10 years after today holds a lot of interest.

Nevertheless, for the sake of this article, I've endevoured to find confirmation that copyright extensions have generally been retroactive, and have confirmed that all four copyright extensions (1831 through 1998) were retroactive. The last two copyright extensions (1976 and 1998) were the most extreme, together adding 39 years to the terms of commercial works published between 1923 and 1976. Notice this chilling effect: a frozen public domain. No more works will lapse into the public domain until the thaw begins on January 1, 2019. Project Gutenberg, the non-profit digitization project, won't get much new business for quite some time.

This Cnet article states that the Supreme Court voted 7-2 against Larry Lessig's constitutional challenge to Orrin Hatch's copyright extension act of 1998. This bill is also known as the "Mickey Mouse" bill because its lobbyists/funders included Disney, whose copyright on the very first mickey mouse cartoon (1928) was to expire in 5 years. And it passed without much fanfare. For the sake of a very, very few works that were still making royalties, works from 1923 onward were suddenly locked up for 20 more years. And if I live a normal lifespan, this blog entry will be legally copy-protected until the year 2130, unless I take steps to prevent it.

The court's decision is sad, because the challenge is quite valid. The intention of the constitution seems clear enough:
Section 8 (powers of congress), Clause 8: 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;
Now, most people focus on the "limited times" part: of course, 95 years is technically a "limited time". So is a thousand years, or a million. Where do we draw the line? Most people think 95 years is too long; I think it's rediculously long. But congress obviously thinks 95 or more years is "limited". Still, I prefer to focus on the "promote the Progress of Science and Useful arts" part. Legally, it seems that this is held to mean, "to promote the creation of new inventions and creative works". But how can anyone argue that retroactive copyright extension can promote the creation of new works? It's absurd! If a company is still making money from the predecessors of the predecessors of the predecessors of its current employees, would that not reduce, not increase, the financial pressure to create new works? And if the Beatles were still around, and were still making a living from their first songs, why would they feel a financial need to write new songs?

Common sense says no. How about scientific evidence? Is there even any anecdotal evidence? I'd bet good money that all the copyright extensions that have been made were done without any solid studies or other evidence to justify them.

More to the point: does a retroactive extension affect the author's original decision to create the work? Is congress somehow sending an encouragement for more creativity into the past? Of course not. The fact is, retroactive extension does nothing to encourage creation of works, past or present.

Well, actually, I can think of one single argument. Consider what happens if you reduce the cost of canned soup in the store. Can this affect sales of carrots? The short answer is yes, because increased soup sales can result in decrease sales of all other foods, insofar as consumers don't eat more. If copyright was 15 years--which I think is sufficient--then as of now, all works from 1989 backward could be made freely (or at low cost) available on the internet, and reprints of books could be made available at lower costs. These would indeed compete with new works for people's attention, and maybe, just maybe, people would choose to watch more old movies, listen to more old music and read more old books. Hence decreasing the demand for new ones, hence, maybe, reducing the rate of creation.

Constitutionally, this could be a valid, if disgusting, argument: that we should encourage the creation of new works by suppressing the old ones.

Still, I find it hard to believe that works that are, say, 40 years old or more could have a serious impact on demand for new works: stuff that old is mainly of historical interest, and among the public, history is a small niche compared to the new and glitzy. The "threat" posed by works even 20 years old does not seem excessive. Clearly, the industry that lobbied for all these copyright extensions doesn't place a lot of value on old works: only 4% of all copyrighted (commercial) works are commercially available after 20 years. (according to James Boyle.)

But if the the demand for new works were to decrease, who made the decision? If that happened, it would be the result of the people, rediscovering millions of books and songs, and thousands of movies, that today are mostly ignored, either because these works are not available at all (except used copies), or becase their commercial prices are too high to compete effectively with new commercial works. The people would vote with their feet. And if the people indeed choose to do this, why should Congress--and the other legislatures of the world--stop them? If the people did this, it would clearly be what they want. Why should a legislature go against the will of the people in this matter? Remember: 4% after 20 years. If the content producers were willing to release the remaining 96% into the public domain, I would be a lot happier. But almost universally, this has not happened. Some companies have been known to defend their copyrights long after they have stopped caring about them. And so, old content remains locked up. For nearly a century.

The 5 supreme court justices, by the way, did not focus on the above argument. Regarding the sheer length of copyright terms, they basically decided it wasn't the court's business to decide upon any particular time limit. Regarding the issue of retroactivity, a key argument in favor seemed to be that because all previous extensions were retroactive, and given that retroactivity had never had a court challenge before, it was a tradition, and this traditional-ness somehow makes it constitutional. And somehow, the court was almost entirely blind to the issue of the public interest, which I'm sure the framers of the constitution had in mind. Langvardt & Langvardt make the case that the court's worries about practical effects of striking down the law (effects on existing contracts based on the law, and on possible future challenges to the prior 1976 extension act) overwhelmed all other considerations and precluded them from performing a thorough analysis of the issues. I wonder also whether they were afraid to appear to be performing "judicial activism". As Justice Ginsberg stated, “[t]he wisdom of Congress’s action . . . is not within our province to second guess.” Still, the dissenting opinions gave me some hope that there is some reason left in the court. Both Justices Breyer and Stevens provided strong rebukes to the majority, and the two had interestingly different approaches in their arguments--proving that there's more than one way to skin this cat.

In summary, while I believe U.S. copyright terms exceeding about 40 or 50 years should be considered unconstitutional--and all retroactive extensions are unconstitutional--I believe copyright terms beyond about 30 years are unreasonable, because they are contrary to the will of the people--or at least, would be, if the people gave serious thought to such matters, or better yet, if they got the chance to see what life would be life without onerous copyright laws. Imagine, for instance, if you could use Google to search and view all the books ever published that are more than 20 years old. Google's trying to do something like that, but what it provides is severely limited by copyright. Or, imagine if you could purchase the book collection on DVD-ROM (or Blu-Ray DVD, if there is not enough storage space on the former.)

Update: Google's limited use of copyrighted books has drawn the ire (in the form of a lawsuit) of the Author's Guild, which, as publisher Tim O'Reilly says, is unfortunate.

Many countries have no constitutionally implied limits on copyright, but the limits dictated by reason and morality--yes, I believe it's a moral issue--remain.

Unfortunately, copyright, and other IP laws, have been ignored far and wide by the public. And, sadly, the modern world has never had the chance to see the effects of a short copyright term. But I hope that, in some small way, I can raise awareness of the issue.

P.S.: I am not a lawyer, so, while the recent copyright extensions are clearly against the spirit of section 8.8, I must admit, I see a possible loophole in the matter. It looks like Section 8's purpose is to lay down the powers of the Federal government, as opposed to the State governments, such that any powers not granted to the federal government are granted to state governments. Thus, for example, a state government could (or should be able to) institute an infinite-length copyright law. The constitution does not actually say that all "securing" laws must be limited in time, nor that they must promote the progress of science or useful arts; no, it merely delineates the federal government's power. So in my mind this raises the question of whether the federal government is allowed to enact a law that is beyond its section 8 powers, if such a law is not opposed by any of the states; indeed, so far as I know, no IP law has been challenged by a state government. The purpose of the section is apparently to give all unspecified powers to the states; but if no state ever challenges a power the federal government has claimed, then why should any court even consider its constitutionality? Indeed, why shouldn't Federal laws to have force in any matter wherein a given state government has made no decision? After all, as far as I can see, the constitution does not say that the Federal Government cannot make laws outside the domains delineated in section 8. Anyway, I don't know the answer--that's why I'm asking.

Update: the tenth amendment states
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Note that it does not say "to the States exclusively", but that's probably how it is interpreted.

P.P.S. The constitution mentions authors/writings and inventors/discoveries, but not audio or video or fonts or databases. Of course, it could not be expected to, given the time it was written. But I wonder just how it happened that the constitution came to apply to all of these things implicitly.

P.P.P.S. Actually, I'm inclined to think the constitution was written a bit carelessly--didn't the framers realise that lawyerswould be its principal examiners, and that arbitrary court decisions would set almost permanent precedents in place? Well, never mind. Rant over.

Miscellaneous bonus links: I hereby declare that this article shall revert to the public domain after ten years (January 1, 2016). The copyright of derived works shall also revert after ten years. Again, without the preceding declaration, my copyright would be expected to last until 2130. Please note that it is extremely rare for any author to declare a copyright term limitation, including myself. I mean, adding terms to everything is just tedius.
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1 comment:

leorockway said...

I haven't read the whole article yet, so sorry if you mentioned this already, but there's an interesting speech by Richard M. Stallman regarding copyright law that you might find interesting.