Copyright As Emphysema: Bad To Begin With And Only Gets Worse

from the now-there's-a-quote dept

Wed, Aug 19th 2009 1:30pm — Mike Masnick

An anonymous reader points me to the comment section of a recent Doc Searls post discussing problems with the copyright system. The post itself is interesting (though covering ground familiar to those around here), but the comment in question has this rather unique analogy from Searls comparing copyright to emphysema:

I won't speak for Bill Patry, but I'm beginning to see copyright (and patents, at least for software and business methods) as emphysema of the marketplace: something that is bad to begin with and only gets worse.

To support that point, he then asks an interesting question:

Can either of you name a single legislative or regulatory instance (in any country) when the concept of copyright has been challenged successfully -- or the scope of its restrictions (in time or any other dimension) has ever been reduced? I can't, but I'm not a lawyer.

It's a good question. I left a comment pointing to the only one I could think of off the top of my head: which was the US's decision that federal gov't documents could not be covered by copyright. That, of course, is a tiny tiny minor push back on copyright, and many other countries haven't even gone that far, preferring to use "crown copyright" to allow governments to claim copyright on documents. In thinking about it a bit more there are two other possible points -- though both are again pretty minor. First is the fact that the 1976 Copyright Act codified "fair use." Before that it existed in common law, but was not directly in the law. However, considering that we basically gave up nearly the entire public domain on modern works, that Act was hardly a step towards less copyright. In fact, it was the single largest step towards copyright expansion in the US's history.

The only other (again tiny) pushback on expansionist copyright law was not from the legislature, but the recent court ruling (pushing back on a legislative expansion) that found a certain classification of works that were temporarily in the public domain couldn't be pulled back under a copyright regime. That case is going to be in appeals for years, and it applies to such a small class of works, it's barely worth mentioning at all.

But, of course, as we were recently discussing, the expansion of copyright has been quite massive during the entire history of the US. But, again, like Searls, I'm not a lawyer (or a historian), so perhaps we can get some others more knowledgeable on the subject to weigh in on Searls' question: what examples are there of legislatures actually decreasing the scope of copyright restrictions?

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, doc searls, emphysema, expansion

28 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 19 Aug 2009 @ 1:37pm

This reminds me of the time where we, at techdirt, present example after example of bad patents and evidence that the patent system is causing more harm than good. Then, when some people assert, "these examples are the exception, not the rule" I ask the question, well then, give me examples of good patents and demonstrate that society is better off as a result of these patents, to which I get few lame responses most of which end up getting refuted.
[ link to this | view in thread ]
C.T., 19 Aug 2009 @ 1:48pm

Golan
Mike,

I'm surprised that you do not regard the Golan litigation as being more important. Granted, a win for Golan will result in only a small class of works re-entering the public domain. That said, there are some seriously important works in the class....but that is not the point of my comment.

Golan is of major consequence for a number of other reasons, though. First and foremost, if the URAA is allowed to stand, then the case will represent a dramatic shift in the legal recognition of the public domain. Allowing works to be removed from the public domain and granted an additional term of copyright could be grounds for further retroactive extensions. Second, the case will tell us a lot more about the Supreme Court's holding in Eldred v. Ashcroft. At the moment there is hope that Congress' power to legislate copyright is checked by the "traditional contours" test, which would allow for heightened review of Congressional copyright statutes that alter those contours. In other words, the case is important not for the works that may be pushed into the public domain, but for the effect the case will have on future copyright challenges.

In my opinion Golan is a critically important case to keep an eye on.
[ link to this | view in thread ]
Mike Masnick (profile), 19 Aug 2009 @ 2:07pm

Re: Golan

I'm surprised that you do not regard the Golan litigation as being more important.

Hi CT. No, I agree that it's *important* and could become a big issue if the ruling stands... but in terms of what it means right now for a pushback on copyright, is pretty small.

So, yes, it's quite important, but I think the bigger impact won't be felt for quite some time.
[ link to this | view in thread ]
DJ (profile), 19 Aug 2009 @ 3:24pm

Re:
"we, at techdirt,"

Who's "we", exactly, AC?
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 3:37pm

If the Bliski ruling holds up, I would consider that a pretty substantial push-back on ever-expanding patents.

Of course, that's the courts and not the legislature reeling things in.
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 4:07pm

"considering that we basically gave up nearly the entire public domain on modern works"

I have to disagree with this. All "modern" works will enter the public domain at some point. It might not be fast enough to be "in your lifetime", but it isn't lost.

The 1976 legislation followed the same steps that have happened over the years, with copyright time being expanded, in keeping with the durability of much of the material copyrighted. Mickey Mouse is as vibrant and fresh today in new material as the mouse was 50 years ago, so why suddenly push a whole bunch of material into the public domain? Would the world suddenly be a better place if you could make legal copies of Steamboat Willie?
[ link to this | view in thread ]
Doctor Strange, 19 Aug 2009 @ 4:08pm

I thought one of the major changes of the copyright act of 1976 was to remove the requirement that works be published to fall under the aegis of Federal copyright - only "fixed." As such, a large body of unpublished work that would likely never have entered the public domain now will. This, if I recall right, was one of Congress' justifications for extending the copyright on other published work.
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 4:30pm

Re:
Would the world suddenly be a better place if you could make legal copies of Steamboat Willie?

Maybe it will, maybe it won't.

As long as Disney keeps using Congress to extend copyrights further and further (I think the next expansion is scheduled for 2023 or thereabouts), we'll never know, will we?

Would the world be a better place if Shakespeare's heirs still held the copyright on Romeo and Juliet?
[ link to this | view in thread ]
Mockingbird (profile), 19 Aug 2009 @ 5:29pm

Spain
In the course of the 20th century Spain reduced its term of copyright, at least for some classes of works, from life+80 to life+60 years post mortem auctoris. This applied to works created after the new term went into effect; works that already had a life+80 copyright term did not have their term reduced, or so I understand. In the 1990s, of course, the term of Spanish copyrights was raised to life+70 in accordance with EU directive.

To say that unpublished works would "never" have entered the U.S. public domain is to overstate the case, just as it would be an exaggeration to state that the common-law right of first publication (RFP) was "perpetual". It is more accurate to say that the RFP was indefinite. It could last for generations if it was carefully maintained, but unless it was carefully maintained, there might after a few generations have been no one able to claim the right, and hence no one able successfully to challenge a would-be publisher. Under such circumstances an "unpublished" work could in practice be published by anyone who came into possession of the manuscript.

The biggest problem with the indefinite RFP was that for two classes of works, sound recordings and plays, public performance of the work did not count as "publication", resulting in the unfair situation that a work that was being publicly exploited might not have its copyright clock running. The 1976 act took care of this problem. The 1976 act. The 1998 CTEA was completely unnecessary.
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 6:05pm

Re: Re:
The people at techdirt who do provide example after example of how patents are causing more harm than good.
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 6:06pm

Re:
"I have to disagree with this. All "modern" works will enter the public domain at some point. It might not be fast enough to be "in your lifetime", but it isn't lost."

Well, lets see when Mickey Mouse enters the public domain then.
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 6:08pm

Re: Spain
"To say that unpublished works would "never" have entered the U.S. public domain is to overstate the case, just as it would be an exaggeration to state that the common-law right of first publication (RFP) was "perpetual"."

Well, with the constant expansion of copyright one never really knows.
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 6:09pm

Re: Spain
"In the course of the 20th century Spain reduced its term of copyright, at least for some classes of works, from life+80 to life+60 years post mortem auctoris."

Wow, is this seriously the BEST you can do. Pathetic.
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 6:18pm

Re: Spain
So something might hypothetically make it in the public domain one day if we're lucky to be able to acquire the work assuming it hasn't been forgotten or thrown away and deteriorated beyond recovery or destroyed as a result or otherwise and assuming no entity claims it (even if they falsely claim it). Or some historian might find it and claim it and copyright it as something that he found as a historical artifact and he put all this research and development and hard work into making the discovery so he should own it. And by the time it does make it in the public domain most of its history and information related to it would be destroyed so its context and the culture of its time could also be destroyed.
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 6:47pm

So the general public has no say in what the government does because the corporations pull the strings. Fair enough. If the government has its way copyright would last forever minus one day. Instead, why doesn't the general public come to a compromise with artists and record labels. We decide, as consumers, how long we think copyright should last. Say I decide 7 years or less. The date is Aug 19th 2009. Then I refuse to buy a CD unless there is a provision on the front of the CD cover that says something to the extent of "this CD is released under a creative commons license after Aug 19th 2016" or some sooner date. That way the artist/record label can create the work for the public and in return they get something in return but the deal is mutually beneficial and fair for both parties. If the CD says that the copyright expires in 20 years I simply won't buy it. If it says 5 years then I may buy it. No one buys a CD unless there is an explicit provision on the CD itself (and on the cover where everyone can see it before even buying the CD) that says exactly when the CD will be released to the public domain and if you think the time is within the scope of a fair time. No copyright extensions apply to these CD's or works of art whatsoever, the agreement was between the buyer and the seller and the agreement is not to be broken by any court or copyright extension later on. If everyone absolutely refuses to buy CD's unless such a provision exists for, say, 5 years or whatever we think is reasonable, the record labels/artists would have no choice but to comply.
[ link to this | view in thread ]
Ed C., 19 Aug 2009 @ 7:51pm

Re:
Thanks for your wonderful insight, as it highlights some of the many fallacies about copyright.

"...in keeping with the durability of much of the material copyrighted."

First, most of the material that is still under copyright is not "durable", in that they do not stand up well to the ages. To state otherwise is to not only grossly underestimate the amount of works that are under copyright, but to overestimate the value of those works by just as wide of a margin. Hell, the vast majority of it is already forgotten after 20 years (the average span between generations).

"Mickey Mouse is as vibrant and fresh today in new material as the mouse was 50 years ago, so why suddenly push a whole bunch of material into the public domain?"

Some minute fringe of copyrighted works that still get some attention is not any really any justification to keep kicking the rest of copyrighted works along with them. Actually, I would content that the outside of the few fringe examples, public domain is required to keep most works "vibrant and fresh".

Also, there is absolutely no reason why I should not see any any of the works copyrighted within my lifetime pass into the public domain. Copyright was only to be insured for a limited period of time. "Not within my life" is not what most people would define as "limited". For an individual, that would be indistigishable from being permanent.

"Would the world suddenly be a better place if you could make legal copies of Steamboat Willie?"

Again, another fallacy. First, there is no reason why anyone should have the right to continuely profit from the same work by merely republishing it under a new format again and again. It's not just about making exact copies either, but the ability to make derivative works without the threat of litigation. You're ignoring that the real point of copyright is only to give artists and writers a limited period of time to for them to seek personal benefits from their work before letting the whole of society completely benefit from it. One of the beauties of art is that others will find uses of a work that the original creator could not have imagined. Do you think that the authors of the public domain books that Disney had repurposed to build almost the entire extent of his "classic" films could ever have even conceived the idea of "motion pictures"? To continually deprive generation after generation of the same right that Disney had is by far the greater crime!
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 7:59pm

Re: Re:
"o you think that the authors of the public domain books that Disney had repurposed to build almost the entire extent of his "classic" films could ever have even conceived the idea of "motion pictures"?"

Nope - they would have had to been alive a couple of hundreds years to see that, which would be past the current expiry of modern copyright. Amazing how that works out, isn't it?
[ link to this | view in thread ]
Ed C., 19 Aug 2009 @ 7:59pm

Re: Re:
I also forgot to mention that having Steamboat Willie in public domain would not inhibit Disney from making new Mickey Mouse movies either. I'm not a lawyer, but I'm guessing that Disney could use their trademark rights to Mickey to prevent others to doing so as well.
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 8:13pm

Re: Re: Re:
Again, you're showing how little you understand copyright, as their length at the time the movies were made would not have required "hundreds of years" for the books to have fallen into public domain. In fact, they were short enough that the original author might been alive to see the movie, and it was perfectly legal to do so! Amazing how that works out, isn't it?

Also, the belief that copyright should last for "hundreds of years" is complete idiocy.
[ link to this | view in thread ]
Mockingbird (profile), 19 Aug 2009 @ 8:42pm

Re:
You wrote:
All "modern" works will enter the public domain at some point. It might not be fast enough to be "in your lifetime", but it isn't lost.

That remains to be seen. We have already seen calls in Europe for an extension of the copyright in phonograms from 50 to 95 years. (More recent proposals knocked this down to 70 years, but an extension will still pass if the Council of Ministers agree to it). And writer Mark Helprin has already begun beating the drum for yet another U.S. extension. Is he a lone crackpot, or a pilot fish for the robber-barons? We'll see in a few years, when the copyright in Steamboat Willie will again approach expiration.

You also wrote:
Mickey Mouse is as vibrant and fresh today in new material as the mouse was 50 years ago, so why suddenly push a whole bunch of material into the public domain? Would the world suddenly be a better place if you could make legal copies of Steamboat Willie?

The world would be a freer place if we had freedom to market competing editions of Steamboat Willie. This is called "free trade" and "competition". Deluxe versions would go for more, but still, lower prices would be available for those who wanted them, as budget editions would be sold at prices close to the marginal cost of production. The monopolistic market would become a competitive market. The monopolist's surplus would become a consumer's surplus. Ordinarily competitive markets are considered better than monopolistic ones. Ordinarily consumer surpluses are considered better than monopolistic surpluses. That is how the world would be a better place if the copyright in works published in 1923 through 1928 were to expire.

And of course the market for Steamboat Willie should become a free market while the film is still "vibrant and fresh". Just as the patent on an antibiotic drug should expire while the antibiotic is still near the height of its potency.
[ link to this | view in thread ]
Kevin Carson, 19 Aug 2009 @ 9:52pm

The law only matters if you obey the law
What really matters is not whether copyright legislation is rolled back legislatively, but that it's being rolled back in the streets. Regardless of what legislation the Copyright Nazis get passed, the progress of technology is making it unenforceable. Frankly, I don't care what the substance of copyright law is. What matters is that bittorrent, strong encryption and proxy servers will kill the RIAA and MPAA deader than a doornail, along with all the other corporate dinosaurs whose business models depend on copyright.

http://radgeek.com/gt/2009/02/07/countereconomic_optimism/
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 10:59pm

Re: The law only matters if you obey the law
The fact is that people should stop buying copyright material with copyright that lasts almost forever and we should not pirate or spread it. It deserves no attention. ZERO. You spread it, you're only promoting their copyright material and business model even if you're spreading it illegally. Don't listen to it, don't show others what it is, ignore it. Download stuff released in the public domain or buy music that explicitly releases itself to the public domain after a reasonable period of time (ie: 5 years or 7 or whatever you deem reasonable) under some creative commons license or something. Don't promote or spread, either legally or illegally, copyright material whereby the copyright lasts almost forever. It doesn't deserve your advertisement, period. Just ignore it.
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 11:06pm

Re: Re: The law only matters if you obey the law
and I'm serious about this. The government doesn't work for the people, they work for the corporations, but we can enforce our own length that we think copyright should last simply by ignoring anything with long copyright and only buying material either released in the public domain or material that explicitly has a provision with a reasonable future date (ie: 5 years or whatever) whereby it releases itself in the public domain. It has to state what date it's released to the public domain under some license that allows anyone to freely copy, distribute, modify, remix, or reuse the works however they see fit provided they release any derivative work under a license with copyright that does not last almost forever. Otherwise, if it has no such provision simply don't but it. The people have no say when it comes to the law but we have a say when it comes to what we buy and we can choose to buy music ONLY from record labels/artists that release their music to the public domain in a reasonable time. It should come as naturally as recycling or anything like that, it should be ingrained in us so that we can support an advancing society. We don't pirate or distribute copyright material whereby the copyright lasts almost forever, we ignore it because it doesn't deserve our attention. That's what everyone should do.
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 11:17pm

Re: Re: Re: The law only matters if you obey the law
and we need to make it VERY clear to record labels and artists (and not just music artists, this should apply to video games and any type of art) that if they don't put a provision on a CD releasing it under some creative commons license after such and such date (a reasonable date that we decide) we will NOT but their work. The will of the people means nothing to politicians, our votes don't change much, but what we choose to spend our money one makes a HUGE difference. If everyone stuck together on this one the people can get their way. The thing is we can't be apathetic, we must stick together and spread the word, everyone needs to participate or it won't work. If everyone doesn't participate it won't work and it'll be our own faults for being loyal customers to tyrant corporations.
[ link to this | view in thread ]
Anonymous Coward, 19 Aug 2009 @ 11:37pm

There is a world of freely licensed music out there, many of which is very good, promote that. Put that on bittorrent and peer to peer networks, stop wasting your bandwidth promoting music with almost infinite copyright. It doesn't deserve your endorsements yet alone anyone's bandwidth. Until artists and record labels can release songs with a provision stating they will be automatically released under a creative commons license on a specific reasonable date then don't download or distribute their stuff. Start looking into creative commons music or other stuff, someone showed me http://creativecommons.org/music and put that on bit torrent if you can and promote those artists. Ignore the RIAA and ignore anyone that wants to own their material almost forever, they want to own it almost forever they can keep it to themselves, we'll just get material from someone else.
[ link to this | view in thread ]
Fred McTaker (profile), 20 Aug 2009 @ 12:54am

Revolution
I'm not an historian, but I'm married to one. The second-hand sense I get is that the only real "rollbacks" of copyright privileges have happened as the result of national revolutions. The U.S. didn't have any copyright law at all until 1790 -- about 14 years after the Revolutionary War. I could be wrong, but I don't think the U.S. honored the copyrights of any other nation until 1891. Here's a link supporting both of those dates:

http://www.earlyamerica.com/earlyamerica/firsts/copyright/

The 1976 Act was a huge jump -- extending maximum copyright from 56 years (1909 Act) up to about 100 years or more, depending on the lifespan (and early writings) of the author. The greediest part of the grab was including unregistered, unclaimed, and even *unpublished* works, all of which makes no sense when the point is to get new works into the public domain rather than kept secret. "Fair Use" can hardly be seen as recompense, as a more liberal interpretation was already widely held by common law. The U.S. didn't even join the Berne Convention in respecting the copyrights granted in other countries until 1988. TRIPS was another huge encroachment on the sovereign rule of independent nations committed in 1994. A lot of damage to the U.S. public domain was done during the Clinton years, which is the main reason I'm not a fan.

http://en.wikipedia.org/wiki/United_States_copyright_law
[ link to this | view in thread ]
Anonymous Coward, 20 Aug 2009 @ 7:59am

Re: Revolution
"I could be wrong, but I don't think the U.S. honored the copyrights of any other nation until 1891. Here's a link supporting both of those dates:"

You're right, and we've talked about this sort of thing before. Much of the reason the U.S. advanced is because it ignored intellectual property from other countries and "stole" their technology. Now that intellectual property is starting to reside here more and more our advancement is slowing down.
[ link to this | view in thread ]
Yikes, 9 Mar 2017 @ 4:50pm

Re: Re:
At this rate, I wouldn't be surprised if Steamboat Willie escapes copyright lockdown before Romeo and Juliet does (the former was made after the first modern copyright law was passed, the latter before).
[ link to this | view in thread ]