Re: copyright under stress

On Fri, May 26, 2000, John Lederer <johnl[_at_]ibm.net> wrote:
>
> My own view of copyright is not that it is per se antiquated or
> wrong, but that the movement of it in the last 30 years has been
> the opposite of what technological change should have led to. For
> instance, terms should have become shorter, copyright should have
> covered less material, and notice of what is copyrighted and whom
> to contact for permission more obvious.
>
> I see a tactical dilemma, however.
>
> One tactic would be to point out to the community what is wrong
> with copyright and, through various means, try to put pressure on
> Congress to reform. This daunts, because copyright presents one
> of democracy's weaknesses -- a strong private interest group
> against a diffuse public interest.
>
> The other is the Gotterdammerung approach. Copyright is becoming
> increasingly dysfunctional and the conflict with the First Amendment
> more and more stark. Reason appears to have less importance and the
> dialogue moves towards polemics. The reactions to copyright problems
> have generally been to propose increasingly draconian copyright
> measures supported by emotion laden terms like "steal", "piracy",
> and handsome PAC contributions. I suspect that such an approach
> will eventually lead to a radical restructuring of copyright by the
> courts, or to it being hacked apart by the mob (at least the Geek
> part of the mob).
>
> So which is the better tactical approach? To fight, or to encourage
> outrageous excess, confident that after the Revolution the Hollywood
> moguls will be sweeping the streets?

I generally agree with your comments, but I believe that advocates of free speech (and true advocates of the progress of art!) may not need to await copyright's restructuring by the courts or destruction by the Geek mob. The private interest groups to which you refer are being increasingly burned by the very expansion of copyright protection for which they have so vigorously lobbied and litigated.

The film and television industries, in particular, seem to be repeatedly finding themselves at the mercy of an overprotetive copyright law. Consider the Woods case, in which the film 12 Monkeys was enjoined, and the Hart case, which was quickly settled to prevent the issuance of a preliminary injunction against the film Devil's Advocate. Other cases were filed against the films Batman Forever, Made in America, and Immediate Family, and against the television shows Barney and Friends, The Cosby Show, and Roc. And this partial listing does not attempt to include alledged infringement of written works, such as scripts!

The creation of a film or television show involves the contributions of many creative persons, and thus many opportunities for conscious -- or subconsious -- infringement that might escape the detection of industry lawyers. Moreover, the plaintiff in a case against a film or television studio may take advantage of the substantial leverage that results from a granted, or even threatened, preliminary injunction. These industries are dependant upon a complicated system of contracts and deadlines.

So perhaps the real solution lies in demonstrating to the copyright industries that they, perhaps more than anyone else, could benefit from decreases in the scope of copyright protection. Or, at least, in a decreased use of preliminary injuctions in copyright litigation.

As Pamela Samuelson observed in The Copyright Grab, we should "not assume that these copyright maximalists are good judges of what's in their long-term best interest."

Anyone still reading at this point may be interested to know that my organization, Washington Area Lawyers for the Arts, will be addressing these and related issues at our Second Annual Arts and Entertainment Law Symposium, to be held on November 10, 2000 in Washington, D.C. Confirmed speakers include Marci A. Hamilton, of Cardozo School of Law. (BTW, Ms. Hamilton provided enlightened and articulate testimony at the House Subcommittee hearings held on May 25 regarding the recent amendment adding sound recordings as a category of work-for-hire. I'm surprised that this volitile topic hasn't received more attention on this list.)

The Symposium will explore "indirect" government censorship, with one panel focusing on tensions between the first amendment and intellectual property, and another panel focusing on the grant or denial of government arts funding as a mechanism of governmental control of the arts.

WALA is in the process of selecting speakers for these panels. I encourage anyone who may be interested in participating in our Symposium to contact me off-list for details.

Maureen Cohen Harrington
Director of Education
Washington Area Lawyers for the Arts
815 Fifteenth Street, NW, Suite 900
Washington, D.C. 20005
phone: 202-393-2826 x28
fax: 202-393-4444
e-mail: mharrington[_at_]thewala.org Received on Tue May 30 2000 - 23:18:28 GMT