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The Constitution itself offers an empirical justification for copyright "To promote the Progress of Science and useful Arts by securing for limited Times to Aut

by defen 12y ago

The Constitution itself offers an empirical justification for copyright "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." Emphasis mine. Is a copyright term that is asymptotically approaching infinity actually "limited"?

twoodfin 12y ago
Is a copyright term that is asymptotically approaching infinity actually "limited"? The Supreme Court ruled[1] (correctly, I think) that it's up to Congress to decide what "limited" means, and as long as any copyright bill they pass has some limit on the term, it's Constitutional. Don't like it? Vote for a different Congress. It's not the Court's job to say Congress can't decide how it wants to balance a tradeoff when lawmakers are explicitly empowered to do so. [1] http://en.wikipedia.org/wiki/Eldred_v._Ashcroft http://en.wikipedia.org/wiki/Eldred_v._Ashcroft
- defen 12y ago
  Fair enough. My real point though is that the Constitution says that the justification of copyright is to promote the useful arts and sciences.
- YokoZar 12y ago
  I always felt like this case was argued wrong. Don't argue it's not "limited", argue that it "doesn't promote the progress of the Sciences and Useful Arts". There is no possible argument not involving time travel by which we get more works created through retroactive copyright extension of already existing works.
  - anigbrowl 12y ago
    Easily dismissed by pointing to the vast advances in scientific and artistic output over the last century. Unless you could show that the rate of output is slowing (which it isn't AFAIK) you're stuck with trying to argue that it would be even better if copyright law were abridged - a slippery pole argument, if you will. Courts typically eschew such hypothetical benefits in favor of rectifying measurable injuries.
dredmorbius 12y ago
Lawrence Lessig tried to argue the "limited times" element of that clause in his case to the Supreme Court (Eldred v. Ashcroft). He lost. He's since commented that he should have tried the promotion clause instead. That post-creation copyright extension fails that test. Until someone tries that, we won't know.
- dragonwriter 12y ago
  > He's since commented that he should have tried the promotion clause instead. That post-creation copyright extension fails that test. Honestly, I think he should have tried the "to the creators" phrase, as well: post transfer extensions of copyright no longer held by the original creator creates a new protection that never goes to the creators, and therefore not only fails to serve the purpose of the promotion clause, but isn't even within the scope of the means by which Congress is authorized to serve those purposes. (Of course, considering this argument alone doesn't stop indefinite extensions, its just means that works transferred before the extension would not be eligible for the extension. But if you include all transfers in that, including by inheritance, your only left with, at most, originally-corporate copyrights that have never been transferred, since the original term of modern personal copyrights already is longer than the life of the original owner.)
  - dredmorbius 12y ago
    Yes, that too. Though the counterargument is that by creating a deep market into which they can sell their works and rights, creators benefit. I see a few holes in the counterargument as well, but I'll hold myself to arguing three sides of this debate.
    - Silhouette 12y ago
      Though the counterargument is that by creating a deep market into which they can sell their works and rights, creators benefit. I suspect that particular counter is readily debunked by looking at the amount of money made by huge middleman industries (publishers, record labels, movie studios, etc.) compared to the original artists (authors, editors, musicians, producers, actors, directors, etc.). In particular, how many artists ultimately receive very low compensation for their efforts relative to the proven actual value of the work they create? Then the marketing/distribution engines have to start justifying their existence based on additional value generated for the original creators of the work. However, it seems likely that any such justification would also support a model where the original creators retain the fundamental rights, and instead only a short-term exclusive licence can be granted to a distributor, who can then renegotiate with the artist to renew their exclusive licence a year or two later (presumably if and only if the distributor still thinks the work is worth promoting and the creators still think they're getting a fair deal). You'd need some sort of collective licensing arrangement so that one make-up artist or background musician who worked on your blockbuster film couldn't screw up the whole distribution chain by withholding consent, but again that could probably be addressed by tying any decision-making authority to the original artists with some sort of quorum requirement and some sort of up-front agreement on the distribution of any future returns.

by defen 12y ago

twoodfin 12y ago

Is a copyright term that is asymptotically approaching infinity actually "limited"? The Supreme Court ruled[1] (correctly, I think) that it's up to Congress to decide what "limited" means, and as long as any copyright bill they pass has some limit on the term, it's Constitutional. Don't like it? Vote for a different Congress. It's not the Court's job to say Congress can't decide how it wants to balance a tradeoff when lawmakers are explicitly empowered to do so. [1] http://en.wikipedia.org/wiki/Eldred_v._Ashcroft http://en.wikipedia.org/wiki/Eldred_v._Ashcroft

defen 12y ago
Fair enough. My real point though is that the Constitution says that the justification of copyright is to promote the useful arts and sciences.
YokoZar 12y ago
I always felt like this case was argued wrong. Don't argue it's not "limited", argue that it "doesn't promote the progress of the Sciences and Useful Arts". There is no possible argument not involving time travel by which we get more works created through retroactive copyright extension of already existing works.
- anigbrowl 12y ago
  Easily dismissed by pointing to the vast advances in scientific and artistic output over the last century. Unless you could show that the rate of output is slowing (which it isn't AFAIK) you're stuck with trying to argue that it would be even better if copyright law were abridged - a slippery pole argument, if you will. Courts typically eschew such hypothetical benefits in favor of rectifying measurable injuries.

dredmorbius 12y ago

Lawrence Lessig tried to argue the "limited times" element of that clause in his case to the Supreme Court (Eldred v. Ashcroft). He lost. He's since commented that he should have tried the promotion clause instead. That post-creation copyright extension fails that test. Until someone tries that, we won't know.

dragonwriter 12y ago
> He's since commented that he should have tried the promotion clause instead. That post-creation copyright extension fails that test. Honestly, I think he should have tried the "to the creators" phrase, as well: post transfer extensions of copyright no longer held by the original creator creates a new protection that never goes to the creators, and therefore not only fails to serve the purpose of the promotion clause, but isn't even within the scope of the means by which Congress is authorized to serve those purposes. (Of course, considering this argument alone doesn't stop indefinite extensions, its just means that works transferred before the extension would not be eligible for the extension. But if you include all transfers in that, including by inheritance, your only left with, at most, originally-corporate copyrights that have never been transferred, since the original term of modern personal copyrights already is longer than the life of the original owner.)
- dredmorbius 12y ago
  Yes, that too. Though the counterargument is that by creating a deep market into which they can sell their works and rights, creators benefit. I see a few holes in the counterargument as well, but I'll hold myself to arguing three sides of this debate.
  - Silhouette 12y ago
    Though the counterargument is that by creating a deep market into which they can sell their works and rights, creators benefit. I suspect that particular counter is readily debunked by looking at the amount of money made by huge middleman industries (publishers, record labels, movie studios, etc.) compared to the original artists (authors, editors, musicians, producers, actors, directors, etc.). In particular, how many artists ultimately receive very low compensation for their efforts relative to the proven actual value of the work they create? Then the marketing/distribution engines have to start justifying their existence based on additional value generated for the original creators of the work. However, it seems likely that any such justification would also support a model where the original creators retain the fundamental rights, and instead only a short-term exclusive licence can be granted to a distributor, who can then renegotiate with the artist to renew their exclusive licence a year or two later (presumably if and only if the distributor still thinks the work is worth promoting and the creators still think they're getting a fair deal). You'd need some sort of collective licensing arrangement so that one make-up artist or background musician who worked on your blockbuster film couldn't screw up the whole distribution chain by withholding consent, but again that could probably be addressed by tying any decision-making authority to the original artists with some sort of quorum requirement and some sort of up-front agreement on the distribution of any future returns.