Wednesday, August 14, 2002

Public Domain == Pervert Domain?

Oral argument in the Supreme Court for href="">Eldred v. Ashcroft is scheduled for
October 9. For those who have forgotten,
Eldred v. Ashcroft is the case that seeks to overturn the href="">Sonny Bono
Copyright Extension Act. Since the href="">last time I
checked, several more href="">amicus briefs have
been filed for both sides, so I spent part of last night reading through

The primary argument of the Petitioners--those against the copyright
extension--has been that the Constitution's Copyright Clause defines a
specific goal ("to promote the progress of science and the useful
arts") and a specific limitation ("for limited Times"), and that the
copyright extension violates the limitation while also failing to promote
the goal. These failures are most obvious in the Act's retroactive
term extension, which (Petitioners argue) can't possibly promote the
creation of new works, since it applies to works which already exist.

Opponents (those in favor of the term extension--Congress, Disney, and friends) claim that retroactive extensions can promote creation of new works, because Congress's tendency to extend copyrights may itself be incentive for creators. That's a bit of a circular argument, and questionable besides: would the prospect of a longer term, fifty or seventy years from now, affect your decision to create content today? Of course not.

Unfortunately, it's hard to prove that, and it's
hard to know just how limited "limited Times" should be. Opponents know
this, and so their arguments attempt to muddle the issue with definitional
quibbles and suggestions that previous term extensions provide sufficient
precedent for the current one. ("We got away with it before, why
shouldn't we now?" is an underlying theme in Opponents' arguments.)

The thing that bugs me most about Opponents' arguments, though, is that
they don't spend much effort trying to justify the Act on the basis of its merits; instead,
they justify it on the basis of Congress's authority to have passed
it. In other words, they don't offer compelling reasons why the
the term extension is a good thing, they just argue that it's
within Congress's power to pass. (It's obvious why they're doing
this: the only real benefit of the Act is its value to the wealthy
copyright holders who lobbied for it in the first place. Opponents
understandably downplay this aspect, since it suggests corruption on
their part.)

Last night, though, I read an argument in favor of retroactive extensions that actually seems, on the face of it, compelling. That argument came in an href="">amicus
brief filed by the estates of Dr. Seuss, E.B. White, and Ludwig
Bemelmans--all authors of famous childrens' books. Their brief provides several concrete examples of works that (they claim) would not have been created if it weren't for long copyright terms. They cite movies, plays, multimedia CD-Roms, and other works which they (the copyright holders) have adapted from their own earlier works. (Think Jim Carrey as The Grinch or Michael J. Fox as Stuart Little.) These works have artistic, technical, and educational merit (in theory), and so they justify continued copyright protection as incentive for their creation.

It's hard not to sympathize with their claim,
particularly when you have fond memories of the works in question. Their arguments are misleading, though. Original authors aren't the only ones capable of creating worthy adapatations--Disney didn't originally create Snow White and Cinderella, after all. Further, there's reason to believe that
the exclusivity of copyright promotes regurgitation rather than adaptation. (Another re-release of Pinocchio? How many times can they re-release the same movie?)

Seuss and friends want us to believe that adaptation should be the permanent exclusive right of original authors. To convince us, they point out that some authors use public domain
characters "to glorify drugs or create pornography". They mention this as part of their argument against the importance of the public domain, apparently trying to portray the public domain as a realm of debauchery--as opposed to the basis of our heritage and the primary source of our creative inspiration that it is.

It's ridiculous that these companies have exploited the public domain that existed prior to their works, but (now that they're established) want the public
domain after their works to be suppressed. It's even more depressing that Congress doesn't seem to understand (or chooses to ignore) that hypocrisy.

To underscore the lack of perspective that characterizes the Opposition, consider a quote from Sonny Bono's widow (who finished his term when he died, and who originally presented the bill):

Actually, Sonny wanted copyright to last forever.
I am informed by staff that such a change would violate
the Constitution. I invite all of you to work with me
to strengthen our copyright laws in all ways available to
us. As you know, there is also Jack Valenti's proposal
to last forever less one day. Perhaps the committee may
look at that next Congress.

Ah, yes. Good trick. Infinity minus one. Clever.


  1. While I agree with you about all issues of substance here, it's worth pointing out that idiots support and oppose both good and bad ideas, and do so roughly equally. That is, don't confuse "this bill is a bad thing" with "its backers are idiots".
    Though I agree with you, the Sonny Bono act is pretty damn stupid. If he wants copyright to last forever, maybe he should think twice about using things invented by other people which should not, rightfully, be available to him for free under perpetual copyright. Like the English language.

  2. > That is, don't confuse "this bill is a bad thing" with "its backers are idiots".
    You're right. Sorry. Replace "lack of perspective that characterizes" with "things that make me cranky about". :)

  3. Ooh... Scary. I found myself finding a point of agreement with the Seuss amicus brief, actually...
    They point out the thing about The Grinch being made into a movie at some appropriately exorbitant cost and I found myself thinking, "yeah, and of course if there were any possibility of competition then of course they wouldn't do that, right?"
    And then I realized that in fact it *would* be less likely. Movies are *much* more likely to go with a piece of intellectual property that they know they can't face competition on. For that matter, publishers do the same thing. Want an example? Look for a print copy of the excellent "John Dough and the Cherub" by L. Frank Baum. Can't find it. It's not out there.
    Of course, it's in the public domain so it's available in numerous places on the 'net. That's good, because ten years ago it was simply unavailable at any reasonable price. L. Frank Baum books go for truly ludicrous prices these days.
    Disney itself actually provides a pretty good disproof of this, luckily. Look at The Little Mermaid, The Hunchback of Notre Dame and so on. Public domain works, all.

  4. > "yeah, and of course if there were any possibility of competition then of course they wouldn't do that, right?"
    I don't doubt for a minute that copyright extensions cause certain works to be made when they otherwise wouldn't. Clearly, owning the rights to the Grinch allows you to make a Grinch movie with more confidence.
    But copyright wasn't added to the Constitution specifically to faciliate the Grinch movie. It's there to increase the number and quality of works in general. So when SeussCo says "this particular work wouldn't have been made without the term extension", they're misleading us into thinking that no other works would have been made in its place.
    If SeussCo didn't have the rights to the Grinch, do you think they would have sat on their butts, thus depriving the world of their creative potential? No, they'd make a different movie. And, in the grand scheme of things, I'd wager that new works promote the "progress of science and the useful arts" more effectively than regurgitated or derivative works.
    Several of the Opponents argue that, as the term of a copyright nears its end, it becomes harder and harder for the owner to exploit the rights with confidence.
    Well, yeah, of course it does, but extending the term doesn't solve that problem. It just puts it off. If we really believe that terms should be limited, then we have to accept end-of-term angst as inevitable.

  5. There's actually a pretty famous example of this that I'm forgetting the specifics of. I'll mention it and somebody who knows what they're doing can correct me if I mess up.
    There was a guy who created a new object (a chair maybe?) and put the design into the public domain. Unfortunately, he couldn't get any factory to manufacture it, even though they would pay no royalties -- because there was no guarantee that their competitors couldn't do the same. The existence of copyright/patent exclusivity actually decreases the value and marketability of stuff in the public domain.
    So would they have made a different movie? Yup. But I can see where the estate's argument comes from, because longer terms of copyright do in fact increase the value of the work, if only because copyright law is broken anyway.
    Which says nothing about the retroactive extension. That's just stupid. But it can't be removed, because otherwise there goes Mickey Mouse...

  6. "if only because copyright law is broken anyway."
    By "broken" here, I mean that it's poorly written, not that people disregard the laws in question. Though that may be true too.