Free Culture - Copyrights Amuck

Note: Scott Turow, who isn't crying any tears for Martha, wrote Reversible Errors, made into a television movie. I noted a few days ago that the first half was very good. The second half was disappointing, especially the last hour or so. Too bad. Good cast though.

The Constitution's Copyright Clause grants Congress the power to "promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings." Art. I, §8, cl. 8 (emphasis added). The statute before us, the 1998 Sonny Bono Copyright Term Extension Act, extends the term of most existing copyrights to 95 years and that of many new copyrights to 70 years after the author's death. The economic effect of this 20-year extension--the longest blanket extension since the Nation's founding--is to make the copyright term not limited, but virtually perpetual. Its primary legal effect is to grant the extended term not to authors, but to their heirs, estates, or corporate successors. And most importantly, its practical effect is not to promote, but to inhibit, the progress of "Science" --by which word the Framers meant learning or knowledge.

- Eldred v. Ashcroft (Justice Breyer, dissenting) [accord]

Free Culture: How Big Media Uses Technology And The Law To Lock Down Culture And Control Creativity might be a bit much for the layman who is not familiar with some of the issues discussed, but it examines an important matter, covering many of its complex areas, and does so in a fairly straightforward way. If you click the picture, you not only get various useful information (including direct links to much of the source material), but you can download the book. No matter how you access it, the issue of how copyrights are currently being used to restrain intellectual freedom and culture itself is an essential one to address. It underlines the heart of what makes this nation great -- free exchange of ideas, allowing the ability to build on past works, and "promote the progress of science [knowledge] and useful Arts."

Surely, someone who blogs and takes advantage of the new technologies such as the Internet and all it offers, should be concerned about this matter. In fact, Prof. Lessig (who argued, unsuccessfully, the Eldred case) notes that as early as Sept. 2002, it has been estimated that over sixty million people downloaded music. The problem with this is the fact that many used Napster and other illegal file sharing systems. It is to be noted that many used it to share unprotected works, sampling that promotes sales (arguably often "fair use" anyway), and to access material currently hard to obtain, especially if it is no long being commercially available (anything copyrighted after 1923 is likely still protected, but the financial value of much of it is very low).

Napster even argued it could block over 95% of the protected material by using various technical methods. No go. Let's not even discuss the fact the sharing went on partly because of overpriced music. We allow VCRs, even though they result in some illegal use, though an attempt was made to block them too. Now, a whole new industry opened up to take advantage of them. A wise course would be to learn a lesson from this. Accept and take advantage of new technology, have society and the government protect free culture as much as possible, and make reasonable adjustments to protect works when necessary. For instance, radio stations pay set (low) rates, and only to composers, not performers.

"Reasonable" is not a word I would use to describe the current law. Copyrights started out as a fourteen year term with one renewal (wherein you had to register each time; many didn't bother, fewer renewed). It now is life plus seventy years or ninety five years for corporations with registration not needed, making it quite hard to even sometimes find the owners of the rights to ask for permission. This is "limited?" The average copyright was around thirty years as recently as the early 1970s. Now, we have a situation where (quite arguably unconstitutionally, see Justice Stevens dissent in Eldred), where "limited" means that not only can you have a life plus fifty year term, but you can extend it twenty years. To quote Justice Breyer once more:

The Clause assumes an initial grant of monopoly, designed primarily to encourage creation, followed by termination of the monopoly grant in order to promote dissemination of already-created works. It assumes that it is the disappearance of the monopoly grant, not its perpetuation, that will, on balance, promote the dissemination of works already in existence.

Oh, some might say, what about "fair use," which allows use without permission? Well, originally copyrights were limited to books, maps, and charts, and not "derivative works" (after all, we are dealing with "copy" rights). Now, we have a situation where a 1990s (long after the author died) attempt to write a book telling Lolita (published in the mid-1950s) through the eyes of the victim (arguably an original idea) requires the permission of the owner of the rights. Prof. Lessig showed the ridiculous lengths this is taken by noting a case where a small indie film would have to pay ten thousand to include a television in a shot that aired a few seconds of The Simpsons, even though is creator (but not Fox) was fine with it.

This is patently ridiculous. We are currently violating the words and spirit of the Copyright Clause, especially if we read it along with the First Amendment. Terms are no longer truly "limited." They do not only protect "authors," but mainly corporations (this along with media concentration is particularly troubling), or at the very most authors as well as their children, grandchildren, and probably great-grandchildren. And, "originality," fair use, and reasoned restraint (like not suing twelve year olds for downloading songs or forcing Girl Scout troops to ask permission to sing songs around campfires) is surely not truly honored.

Prof. Lessig wrote this book to deal with such problems and offer various solutions (though unfortunately in somewhat summarized form). It is a valiant effort to fight an evergrowing problem. Will the 21st century bring great innovation or will it lead to a "permission only" culture, since technology and media concentration will restrain innovation and be on guard against copyright "infringement" ever more exactly? [Thus, you can read e-books, but code can also limit how many times you can view, copy, or even listen to them (if audio software is available).] Time will tell.