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[ c o n f e s s i o n ]

This was going to be a very different essay. I'd planned to start by criticizing statements from both sides of this debate (Lawrence Lessig's numbers, for example, and maybe Orrin Hatch's weak logic) to gain the appearance of some sort of professional impartiality, and then to dig into justifications and maybe even remedies. I'm a writer, and I intend to make a good portion of my income, some day, from rights given me under copyright. I'm also slightly libertarian, I like my mp3s, and I read slashdot avidly enough to know who and what "Senator Disney," the DMCA, and the CBDTPA all are. This, I figured, gave me some credibility toward arguing from both perspectives.

But that meant research. That meant that, last week, I put together a couple thousand words on the history and current state of copyright law in America (that writeup, under copyright, serves as a basic prologue to this one); upon its completion, I still found myself in a position somewhat centered. I understood that when, in 1976, Congress basically doubled copyright terms, its explanation that it was adopting international standards in preparation of the adoption of the Berne Conventionthe international copyright treaty—really was an explanation, not an excuse. I didn't (and don't) agree that the extension will be beneficial to this country, its artists, or its people, but I can see plausible justifications for its passage. But looking into the arguments, the excuses, for e.g. the Sonny Bono Copyright Extension Act, which I'd argue is an altogether new beast, I couldn't find a way to justify it to myself from any perspective. The arguments in favor are generalized contain a smug tone of excuse, a conspiratorial wink, even on the page. The Senator Orrin Hatch, mentioned earlier, argued the following before Congress in 1995:

Even though the United States adopted the life-plus-50-year term of copyright only 19 years ago, and even though that term of protection has a nearly century-old history in the international arena, I do not believe that it should be accepted uncritically as an ideal or even sufficient measurement of the most appropriate duration for copyright term. Instead, we should be aware of many nations that have historically provided longer terms of copyright as well as the recent developments to extend copyright in Europe. Also, we need to examine the real-life experience of creators, their reasonable expectations for exploiting their works, and the concerns and views of the descendants, heirs, and other whom the postmortem protection of copyright was designed to benefit.

Among the European nations, Germany and Spain have for some time recognized respectively terms of life plus 70 years and life plus 80 years, and Portugal has for much of this century provided a perpetual term of protection. In addition, it is common for bilateral agreements relating to copyright protection among particular nations to provide for terms of protection in excess of the life-plus-50-year standard.

The bill passed in 1998, extending US copyright terms from life-plus-fifty to life-plus-seventy years. In mentioning a possible life-plus-80 term (as Spain has adopted) and the perpetual term Portugal enjoys, Senator Hatch reveals just how arbitrary this most recent extension has been; his entire speech, in fact, could be amended to life-plus-90 (or life-plus-200) by simply replacing the appropriate numbers. The justification goes like this: "Our artists and their families are not compensated appropriately, so copyright should be extended to x years. Other countries have adopted x as a fair term for copyright and so should we, because it is fair and because we do not wish to be at a trade deficit with these countries." Were it not for the constitutional mandate for "limited terms" of copyright, I have full certainty that Senator Hatch would be arguing for a perpetual copyright term instead of a simple twenty-year extension. I also have full certainty that, barring some Supreme Court decision or vast change in public opinion, in twenty years another copyright act will be introduced that "modernizes" our copyright laws to the then international standard of life-plus-x, our perpetual "limited" copyright term again extended for the purposes of artist compensation and international trade.

This was going to be an appeal to everyone, a discussion that attempted not to exclude—too many writeups about copyright are overly caustic, overly one-sided (see here), and it makes them less effective. But I don't know, I don't think I can appeal to the people who've passed these laws. I don't think there's any way to appeal to anyone who's taken a hard look at copyright today and said "yeah, that seems fair." I don't believe they are honest men, and I don't believe reason will affect them in the least.

[ t h e f t ]

It's called piracy. If I install a copy of commercial software on two computers at once, if I duplicate a CD and give that dupe to a friend, if I rip, encode, and share an audio track, it's called theft. This copyright infringement that some of us take part in daily with very little thought, that we justify by saying "I'm not taking anything I'd pay for—nobody's losing any money," this is what the television news programs refer to as theft. It seems a stretch to me: our own good auto-noded bot says theft is the "taking and removing of personal property, with an intent to deprive the rightful owner of the same," and somehow I can't see copyright infringement as a removal of property. The definition would seem, to me, much more apt in describing what has been done to stories like The Great Gatsby, like The Godfather, poems like "Howl," films like Casablanca and Gone With the Wind—cultural artifacts that have become part of who we are, have become in a communal sense our stories and myths. By all rights, we should own them. We should have the right to sing "Happy Birthday to You" without fearing royalty charges and lawsuits (I'm serious: the song is still under copyright and quite lucrative today). And barring the actions made by a few sessions of Congress over the last century, they would be ours. This is why those of us who find the current state of copyright infuriating feel that way: it's tantamount to cultural theft.

Copyright is a balance, a compromise, a well-intentioned attempt by our government to improve the arts, and by extension to improve its people. To promote the "useful arts" is its stated purpose, to encourage writers and artists of all sorts to produce the works that will enrich our lives. This the only reason Congress has the right to pass copyright laws (as Congress does not have the right to do anything that hasn't been granted to it by the US Constitution)—I have a hard time imagining how limiting the use of "Happy Birthday to You" is in the interest of promoting art. But I'm no judge, no Constitutional scholar, and anything I say about what a government should be allowed to do is just so much useless conjecture. I'll argue results, opinions based on my own logic and experience, and then suggest what our government and people should do, for their own good. I won't bother saying "you can't do that," which seems to be the main anti-copyright-extension battle cry, when our government already has.

So why is copyright extension a bad thing for all of us? Well, first of all it doesn't do what it purports to: The benefit of keeping a work locked for an extra twenty or even fifty years does not encourage me, as a writer, to produce more. It probably will not produce significant revenues for me (unless I am one of the very rare writers who's work is still in print a century from now). The Sonny Bono copyright extension may aid the heirs of F. Scott Fitzgerald, Ernest Hemingway, Pablo Picasso, and so on—perhaps a few hundred writers and artists and musicians of the past. They will, in the future, increase the cash flow of Stephen King's heirs, along with Michael Jackson's. These are the artists that are aided by copyright extension, the very few who remain marketable over long periods of time, the very same few who have made so much money for themselves (and their heirs) without the help of the copyright extension that they need no such gift. The only way the extension of copyrights could aid any of us (and we are the very people the extension supposedly exists to aid) is if we have found ourselves in no need of that aid. In fact, the average writer would not benefit at all from any of the four major (or the ten minor) copyright extensions that have been enacted over this country's history: most books go out-of-print far before the fourteen-year term would have expired.

This tendency of artistic works to go out-of-print quickly is the real tragedy of copyright extension: besides making no money for their owners, the majority of works in copyright are depreciating in cultural value. They lose their relevance as time passes, so that when they do eventually pass into the public domain they are no longer wanted. An out-of-print novel twenty years old might be an interesting basis for a play, an adaptation, or it might just be an interesting novel to read. But you can't download a copy, photocopy it, print it, read it aloud in public, or adapt it into another work. Doing so would cost the author, the owner, nothing. It is the source of no money for the owner, and it can also be of no benefit to the artistic community and the people in general—all so that a certain few popular works can benefit from a copyright term of life plus seventy years. In 2065, or whenever this imaginary out-of-print novel falls into the public domain (assuming, which perhaps I shouldn't, that copyright terms are not life plus 200 years by that point), we may very well find that the worth of this work is gone, lost to time, that people no longer see value in its words. I can't think of the last pre-1923 (that is to say, currently in the public domain) novel I've read by anyone even moderately obscure. Most likely, I've never read any. And when it comes to film, well, I don't like to think how many silent films have degraded to a point that they cannot be restored; copyright terms exist today at a length greater than the lifespan of at least certain types of film stock, and owners have not shown a great deal of responsibility in preserving older films (which are a source of little or no revenue). If works do not last long enough to enter the public domain, I'd suggest that perhaps the good of the public is not best served by keeping them in copyright for so long.

[ j u s t i f i c a t i o n ]

Intellectual property, consisting of the core copyright industries, movies, TV programs, home video, books, musical recordings and computer software comprise almost 4% of the nation’s Gross Domestic Product, gather in some $45 billion in revenues abroad, and has grown its employment at a rate of four times faster than the annual rate of growth of the overall U.S. economy. Whatever shrinks that massive asset is NOT in America’s interests. Which is why the United States Trade Representative has also endorsed the initiative.

The case for copyright term extension is that simple. What are the contrary views?

Some academics plead that the consumer would be benefited because more public domain works would find wider circulation at cheaper prices. What academics do not observe or do not know is that while American public domain work may be SOLD cheaper to exhibitors in many international markets, consumers are NOT granted cheaper prices. Not at all. The theater ticket remains the same price. TV station, home video stores give no discounts to the public. Advertising rates do not come down.

Mr. Jack Valenti, president of the Recording Industry Association of America, said the above on the floors of Congress in 1995, in favor of the copyright extension passed the following session. I could argue that copyright exists to create art, not industry, and so his statement is immaterial; I could argue that, though software exports are quite profitable for certain US companies, the market for software written in the 1920's and -30's (which is currently the range of years that the twenty-year extension affected) is not nearly so lucrative, that very little of that 4% of the GDP is from works that would have passed into the public domain while still profitable at all (my guess, if I had to venture one, would be less than 0.01% of that 4%); I could argue that, to be specific, the difference between Windows 95 passing into the public domain in 2070 instead of 2090 would probably not break Microsoft's (by then quite likely literal) bank. But then Mr. Valenti would probably call me "some academic." I could say that the moment a work of any value is passed into the public domain, it will be available, for FREE, on the internet (see Project Gutenberg), not "may be SOLD cheaper," not "NOT granted cheaper prices. Not at all." F-R-E-E. I could do that, I could argue and beat every point Mr. Valenti makes, but we'd still be playing his game. We'd be pretending that his points matter, that they are true motivating factors.

The point, the point that every consumer advocate and copyright revolutionary seems to miss, is this: This is not a fight between us and them. This isn't corporations against people, extracting money from us like greedy, grubby old men. This is corporations against other corporations, this is the old against the new, the stable against the unpredictable. If enough power, enough scope is granted to copyright-holders, these trusts of content-producing companies can be certain that they will not be unseated by newer, hungrier companies. If a conglomerate of film companies can place its intellectual property (think ads, for example) in enough public places, no one can film anything in any real location without owing them royalties. If a person wishes to sing any song not completely original in the presence of anyone else, he or she must pay the songwriting and music-producing conglomerate royalties ...or sign with them. The truth is, these companies know they have attained their current place in the business world by borrowing old ideas (think just how many Disney stories are original) and know in an open society newcomers will unseat them if allowed to borrow and build upon their works. The world of content-production has, in the past, been very volatile, and the real reason these industries lobby for copyright extension is to reduce that volatility. You and I do not own the myths, the books, the films, and the songs that define our culture simply because a small group of powerful people wish to have a little more job security.

[ c o n c l u s i o n ]

What am I going to do about this? I don't know. For one, I wrote this piece. I intend to pass everything I write (assuming I can make some sort of living writing words to which I retain the copyright) into the public domain twenty years after publication. I think that's a fair term. This will likely not cost me a cent, and if it does that probably means I'll have some sort of a following and may be able to influence some people with the gesture. I don't know ...but I won't feel guilty over benefiting from a system that I believe is unfair.

What can you do? Write your congressmen? That might help. Organize, support the FSF/etc.? Honestly, that'd probably do more. There is some suggestion floating around the Slashdot crowd that forming a PAC is the way to go; if we can do it, I think it might be a powerful force for change. Could it be enough to repeal the last extension or two? Probably not: once the gift is given, I don't see it being taken back. It may prevent the next twenty-year extension.

The truth is, copyright can only be explained in terms that are at least half-legalese, so people don't care. You can't change that. You can educate lawmakers, but that presumes that the lawmakers are open to education. The reality of the situation today is that a whole set of laws (copyright, patent, trade laws, etc.) are currently set up to favor established businesses over the new, and unless the philosophy behind this shifts on a large scale, the chances of any improvement in any single area are not good.

Lawrence Lessig, a Harvard professor, has been traveling the country for two years, discussing many of the same points I have here. He's now given up. His second-to-last speech was converted to a flash presentation recently, and its URL is listed below under "related reading." He makes some very good arguments, and I recommend it. But things haven't changed. I don't expect them to. I'm going to make my own little gesture, and I'm going to wait until the next round: I think at some point, the real intentions of these producers are going to become obvious, and perhaps the public opinion will shift and the lawmakers will follow.

In any case, the following is my suggestion for a fair and balanced copyright system:

Any original creative work is granted a copyright at the moment it is placed in a fixed form. That copyright will remain valid until any of the following conditions is met:

  • Forty years have passed since creation.
  • Twenty years have passed since creation, and the work has been out of print for at least one year.
  • The work is not being maintained in such a way that it will be available for reproduction and archival at the point its forty-year term expires.

I'm also tempted to add a clause that revokes copyright on any work that contains copy-protection technology that prevents legal fair use, but maybe that's going too far. Another possible suggestion would be different scales for different works (software, for example, does not have nearly the lifetime of literature or music), perhaps based on average length of profitability. My point, anyway, is that copyright should be beneficial to authors and artists, but in a fair way that does not trade public benefit for imaginary gains, and it should do so on society's terms.

[ r e l a t e d   r e a d i n g ]

Reclaiming the Commons: http://bostonreview.mit.edu/BR27.3/bollier.html

Copyrights and Copywrongs: http://www.msnbc.com/news/594462.asp?cp1=1

Copyright and Copyleft (essays): http://www.edu-cyberpg.com/Internet/copyrightleft.html

Lawrence Lessig's Presentation: http://randomfoo.net/oscon/2002/lessig/

Copyright Extension (speeches and source material from a pro-extension perspective): http://www.copyrightextension.com

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