Re: Constitutional Challenge to (C) Code

Robert E. Smith <cosmith[_at_]ash.palni.edu> wrote something which prompted Amy Stoller's <redherring[_at_]tuna.net> responses which I now interrupt with impertinent questions and general dismay:

Amy Stoller <redherring[_at_]tuna.net> wrote:
>
> Robert E. Smith <cosmith[_at_]ash.palni.edu> wrote:
> >
> > What would be the likelyhood of success for a Constitutional Challenge
> > of the Duration of Copyright under both current and pending US Code?
> > It seems to me that life plus fifty-seventy years does not "promote
> > the progress of science and the useful arts by securing for limited
> > time." I do not understand how a lifetime beyond my lifetime is
> > limited and how it guarentees my right to my work when I am dead.
> > Class action, anyone?
>
> If you have produced any intellectual property, your heirs will have
> control over its disposition and will be able to benefit from it for
> seventy years after you die.

I have some questions.

How does this so-called benefit "promote the progress of science and the useful arts?" Can you seriously suggest that the "life+50" term has NOT provided authors and IP creators with a sufficient incentive -- that there are creators who are either withholding their creative works or simply refusing to create because there just isn't a long enough copyright term yet? Will we be getting more or better intellectual property if the term extension passes? Won't this benefit really be realized by the corporations who buy up these copyrights as part and parcel of the publication process? And do we really think the amount paid per copyright will go up if Copyright Extension passes? And does the public really benefit when a heroin-addicted or dim-witted distant offspring is granted "control" over a great-grandparent's intellectual property?

> Lifetime plus seventy years is by definition a limited time. The
> extension from fifty to seventy years brings the US in line with the
> rest of the signatories to Berne and gives artists a chance to leave
> something to their children with a reasonable hope that those children
> may benefit thereby. It is a sensible provision, given increased life
> expectancy.

But 17 years is a LOT more limited than the 120-year term which might well arise when a young author lives for fifty years after writing the Great American Novel, and then a 70-year additional term commences. The patent term has remained fairly stable since 1790, the copyright term has not. Why shouldn't patent holders be able to "leave something to their children?" Remember, copyright and patent law's express Constitutional basis is the promotion of the progress of science and the useful arts. Intellectual Property rights are an incentive granted by the public for the public's benefit. We grant these rights in order to provide a reasonable incentive for creators, and history tells us that shorter terms were incentive enough. Now that the copyright term is long enough to insure that great-grandchildren are making careers out of administering the copyrights of their long-dead ancestors, I'm prepared to ask what kinds of incentives might get these inheritors of creative DNA to write something for us other than lawsuits and protectionist copyright legislation. And given that our copyright term is based on "the life of the author," increased life expectancy has ALREADY resulted in a functional extension of copyright. If anything, the fact that authors are living longer suggests the we ought to peel some years OFF of the post-mortem term.

> I hope it is not your position that creators and owners of intellectual
> property should be unable to leave anything of value to their spouses
> and children, or that their heirs should have to endure without remedy
> uses of their spouses or parents' life work which are repugnant to them.

Well, I'm all for them leaving the money they made from selling their copyrights. And as for "enduring without remedy" repugnant uses? Well, because the United States is, at least for the moment (and for the last 208 years) a country which does not recognize "moral rights" I do indeed think that heirs (and assigns) should occasionally have to endure repugnant uses, as well as fair uses, and the "pain" of seeing the family's cash cow return to its rightful place grazing in the meadows of the public domain. The French have the kind of protection you seek -- with the droit moral applying indefinitely, and so, presumably, if Francois Rabelais' great-great-great-great-great-great-great-great-great- great-great-great-great-great-great-great-great-granddaughter thinks your translation of "Gargantua" might damage her late ancestor's reputation, well, off to court you go.

I much prefer the United States tradition, which implicitly recognized that because authors and IP creators draw upon the public -- they are inspired by existing works, they record what surrounds them -- that it is appropriate that creative works return to the public, where they are then consumed by new creators who use them to create more work. I'm also a big fan of free speech, parody, and collage as an artistic practice, all of which are becoming circumscribed by deep-pocketed copyright assignees who routinely steamroll those trying to use old art to make new art.

> ghoti
>
> Amy Stoller
> <redherring[_at_]tuna.net>
> <:)))>><(

Gauging from your "fishy" signature block, I can only assume that the "ghoti" which you are invoking is an uncited reference to George Bernard Shaw's discussion of English spelling, in which he demonstrated that "ghoti" was an acceptable alternative phonetic spelling of "fish." Given that Shaw died in 1950, and given your enthusiasm for a lengthy term of copyright, I think your use of the Shavian reference ought to be suspended until 2020 - seventy years after Shaw's death. Alternatively, you might consider writing the Shaw estate (or the appropriate assignee), and asking them whether they have any objection to your use of one of Shaw's most famous, and therefore, most valuable copyrighted works.

Sincerely,

John Logie
Penn State University
<antrobus[_at_]ripco.com> Received on Tue Mar 31 1998 - 15:26:32 GMT