Re: INFO/NYT: DISCUSS: The Future of the Internet

On Sat, Aug 21, 1999, Mike Oliver <mikeoliver[_at_]home.com> wrote:
>
> On Thu, 19 Aug 1999, Patrick A. O'Donnell <pao[_at_]ascent.com> wrote:
> >
> > This "even if only one person ... its worthwhile" style of emotional
> > appeal is getting way out of hand in our country today. I don't buy
> > it anymore. There are a few hundred million others of us whose
> > freedoms get trampled for the sake of this hypothetical "one person".
>
> I have lost count of the number of entrepreneurs, artists, illustrators,
> poets, musicians and others whose life pursuit is to create new original
> works (often at great personal sacrifice), that have come to me having
> had their work literally ripped off in the most gross, blatant way
> possible. In most of these cases, if it were not for copyright law,
> they would have no way to fight the theft.
>
> So, "whose freedoms get trampled" if we do away with copyright?
>
> I respectfully suggest that: (i) the misperception about what copyright
> law actually protects has lead many people to point their guns at
> copyright law for the wrong reasons; and (ii) there is little real
> evidence that enforcement of copyrights has had the effect of trampling
> the rights of a few hundred million (or even a few hundred thousand).
>
> Having said that, there are a number of areas where U.S. copyright
> law has took a wrong turn, IMO. The first is in term extension in
> the U.S., which was as Nick earlier pointed out, almost solely
> motivated by political power and money, and not the promotion of
> new creative endeavor. The second, is in the extension of the concept
> of derivative or adaptive works (I guess the two recent instances that
> come to my mind are the Seinfeld 'transformative use' case and the
> discussion on 'Lolita's viewpoint'). I'm not sure how to categorize
> these latter abuses. Their effect is definitely to chill others from
> _extending_ prior works without permission.
>
> Tough cases make bad law, sometimes. Its part of the great Democratic
> Experiment.

I both agree and disagree with Mr. Oliver. I agree that copyright, in spite of its shortcomings, does more good than harm. I agree further that term extension was handled hastily and inappropriately. While I don't believe that copyright term extension is somehow discredited merely because it was "almost solely motivated by political power and money" (so were the American and French Revolutions), I do side with those who hold that term extension should apply only to new works, not to those already in existence.

Regarding the "extension" of works idea, this is an important principle of copyright policy, and not to be taken lightly. As I understand it, copyright law DOES want to make it possible for artists to be inspired by and use the work of prior artists; but a line must be drawn, and that is why we protect copyright owners against the creation of derivative works without their permission. The question then becomes, When is a work derivative, and when is it merely an "extension" or "inspired by" or "an hommage to"? It's important to remember that copyright law does not PROHIBIT the creation of derivative works; it merely requires permission of the copyright owner. So the whole purpose of derivative work analysis is to determine whether the author of the second work needs to talk to the author of the first work or not. In the LOLITA case, the court held that the author of Lo's Diary made sufficient use of Nabokov's original plot, characters and expression that she needed to talk with the Nabokov estate before her work could be published in the US. They did talk, accord was reached, and the work is being published. In this case, the system worked; and I believe it works more often than it fails.

I grant that the Seinfeld case was wrongly decided.

Bob

Robert C. Cumbow
> Graham & Dunn, P.C.
> 1420 Fifth Avenue, 33rd Floor
> Seattle, Washington 98101-2390
> Phone: 206-340-9619
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> E-mail: rcumbow[_at_]grahamdunn.com
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Received on Mon Aug 23 1999 - 16:52:12 GMT