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Larry Lessig recounts the missteps in the

posted by Jason Kottke   Mar 02, 2004

Larry Lessig recounts the missteps in the Eldred vs. Ashcroft case.

Reader comments

Jason HeiserMar 02, 2004 at 12:07PM

Reading that filled me with a crushing despair. I’m a movie soundtrack collector. There’s a bounty of great movie music that is unreleased and will always remain so due to the implications of Eldred vs. Ashcroft. Most of this music is not commercially viable, and never will be. But the studios and musicians will squat on their copyrights until all the original recordings have disintegrated into vinegar and dust. What a fucking disgrace.

barlowMar 02, 2004 at 12:56PM

Lessig’s problem is that he opposes the interests of copyright holders. There is a way to balance your concerns, Mr. Heiser, and yet have even perpetual copyrights. Just pass a law that allows archival copies to be created or something. In other words, there are more creative ways to meet the practical challenges presented by worthless copyrights (such as expanding fair use for works older than x years, etc.) than to revoke the copyright altogether.

wayne bMar 02, 2004 at 3:33PM

Very interesting article - regardless of what you think about copyright. It seems rare to see people admitting that they made mistakes and considering -in public- why they made mistakes or weren’t capable or how they would do it differently. Something politicians should do more often, rather than being forced to.

tj hookerMar 02, 2004 at 4:22PM

I don’t think that Lessig opposes the interests of copyright holders. Copyright holders should be protected, but that that protection carries a responsibility to the culture that offers said protection. Copyright should be weighed against potential harm to the culture at large. The reason it’s coming to a head now is that the cost of reproduction/distribution has become very small, and corporate lobbies have leaned on congress to extend, and extend, and extend. “Extend, extend” benefits the tiny sliver of people who make a bank off copyright, but it creates a feudal realm where heirs, not the culture at large, can access works of art.

BrianMar 02, 2004 at 5:01PM

You can bet Disney will start changing their tune, and at least start arguing for more frequent renewal requirements, once they run out of fairy tales to turn into movies.

barlowMar 02, 2004 at 8:03PM

Why assume that ‘culture at large’ should ever have the ultimate claim over artwork that one industrious person creates? I certainly don’t. Why would perpetual copyrights with logical fair use caveats not be just as good for ‘culture’ and even better for copyright holders than the current expiration system? Personally, I think the Constitution is wrong about copyrights. Patents that expire - totally logical. But I just don’t see the connection with art… “Extend, extend!” That’s a battle cry I can get behind when it comes to art.

andreaMar 02, 2004 at 9:47PM

first of all, i’m pretty sure that much of the copyrighted information out there does *not* belong to the ‘industrious person’ that created it but rather the publishing house, be it Simon & Schuster or EMI.

secondly, what in the world would be the point of a perpetual copyright? everybody dies at some point! the copyright is about money after all, right? or is it now some moral and noble thing?

and i don’t understand how patents expiring is totally logical but isn’t when applied to copyrighted art. isn’t it all just a matter of building on other people’s ideas? which is good, right? and is often called a movement (as in, minimalism or realism, etc.) ..

leonardMar 02, 2004 at 10:10PM

Barlow, perhaps a question to ask in return is why the heirs of said ‘industrious persons’ should have ultimate claim over the artwork? We’re at life + 70 now. No end in sight. Anyway, perhaps besides the point (for hoighty toightiness, see postmodern theories on authorship, and or Thomas Jefferson’s Enlightenment arguments for sharing ideas).

For your second question I do have an answer of sorts. Perpetual copyrights would be okay perhaps if it wasn’t just length at stake, but breadth as well. While copyrights originally dealt only with, well, the ‘right to copy’ (reproduction, publication), it has since been extended to cover performances, derivative works, sampling/collage, referencing, etc. Also, what seems important to me is that memory-to-memory copies (that is everything digital!) is considered fixation and falls under copyright. All previously unregulated (non-exclusive rights) uses disappear (also, first sale doctrine, and licensing restrictions go out the window too). Compound w/ the implications of DMCA-like extensions and you have a very hostile environment

But what about ‘fair use’ you ask? I’ll let the lawyers argue about whether fair use is a positive freedom or merely a defense, but the reality of the matter is that unless you can afford to defend yourself in the court of law (against very large, deep pockets), the ‘extend, extend, extend’ mantra should give you some pause…

BrianMar 02, 2004 at 11:34PM

Barlow, the important thing to remember is that there is no natural right of copyright. The founders granted a temporary monopoly to encourage creative production, but it was intended to be temporary so that others could eventually take that work and build on it.

Ideas should not be locked up by individuals, they should be able to be used and expounded upon. Without that freedom you’d see a stifling of creativity in all areas of work and art.

And, as a point of fact, that chilling effect is already happening. See the Grey Album as an example.

barlowMar 02, 2004 at 11:42PM

Well, “the wheel” is built upon later in “the car” and in “that car” and in “his car” and in “her car”. A patented thing is rather abstract. But when a concrete piece of artwork is copyrighted, say some guy’s painting of a dog, it doesn’t prevent someone else from painting the same dog in a different way, or another dog in a similar way, etc. That 1984 Joe’s art is copyrighted doesn’t really hamper “artistic progress” for 2004 Sue. But a car, to use a patentable example, is so full of things that were patented at one point that it would be impossible, financially, to make a new car if those patents didn’t expire at some point. Some “look and feel” issues get close to being a problem, but I wouldn’t be opposed to simply modifying the law to protect artists from those kinds of charges.

The only hard case for art is work that samples another work, and I think certain kinds of compulsory licensing could deal with that matter without forcing copyrights to expire and thus depriving the artist of determining whether his heirs, or his favorite charity or his favorite company can benefit from that art forever.

As for whether the artist him/herself is the owner of the copyright, who cares. The important thing is that the artist at some point had say over the work and sold that right to another entity. That’s his or her decision. An artist’s heirs, an artist’s favorite charity, an artist’s cat - whomever he or she wishes to give the rights to should have that thing of value for as long as they wish. Nothing prevents an artist or company from granting a work to the public domain at some point.

And think of the benefits. At some point, David Bowie’s great great great grandson could grant the copyright of his recordings to the Smithsonian and the Smithsonian could then support its endeavors on the royalties. That benefits “ART”, right?

We could even put caveats in the law requiring the copyrighted work to be in print at least once every fifty years in order for the copyright to stay in effect.

The bottom line for me is this: Disney created Mickey Mouse and its whole empire is based on things like that. It should continue to benefit from that for as long as it wants. No one else invented Mickey Mouse. No one else colored in the cells for Steamboat Willie and paid for its marketing and so forth. Satire is already legal. Movies can be made about boat-driving mice, they just can’t look and sound like Mickey. Art advances. Disney’s copyright of Mickey Mouse sure hasn’t hampered the advance of animation. Forcing copyrights to expire just sounds to me like stealing from the people and companies who put the hard work in to create art in the first place. Why should any of us have a claim on “The White Album”? Let the Beatles have it and pass it on to MJ/EMI, and let them pass it on to whomever they choose. Why would it be my right to eventually have some claim over their recording? Why, that’s just plain un-American. :)

JohnMar 03, 2004 at 10:11AM

Disney didn’t create anything, individuals did. It makes no sense to grant “Disney”, a fiction, any rights at all- only the individuals who make up Disney.

I view copyright as a property right that derives from the fact of authorship. Licensing should be allowed, but copyright itself should be non-transferrable, and should expire upon the death of the creator. It makes no sense to give the rights to a work created by mortal men to an immortal organization.

Heirs have no more right to a creative work than society as a whole.

barlowMar 03, 2004 at 11:05AM

So farmer’s kids get to benefit from all the work their father put into the farm, but a writer’s kids get squat-ola when he dies?

JohnMar 03, 2004 at 12:20PM

Aren’t ideas and physical property fundamentally different kinds of things? At least in part, our current complications seem to be a result of trying to apply the principles of property law to the amorphous and slippery realm of ideas. I’m afraid it’s a bad analogy.

But in any case, I don’t think the point of the current movement to reform copyright law is about trying to force Disney to give up the rights Mickey Mouse or any other famous work. It’s about the other 99% of Art out there that no one is making money from, and is physically deteriorating away in obscurity due to the copyright law that was supposed to protect the work. No one wants to take away the potential for you to make money from your own work - it’s about allowing the less financially lucrative but equally culturally valuable works enter the public domain, where they can be enjoyed and cultivated by those in society that are inspired by them.

barlowMar 03, 2004 at 1:09PM

Having those works enter the public domain is not the only way to make their use a little easier.

As for ideas being different than physical property, that’s true. But an artistic work is sufficiently concrete to make the analogies. “The wheel” is an idea, but “The White Album” is far more concrete.

As for what this current movement is really all about, in the absence of hard numbers, I really doubt that 90% of the bandwagon has anything to do with preservation and everything to do with people wanting to trade copyrighted music, movies, etc. for free.

BrianMar 04, 2004 at 9:45AM

Barlow: The problem with making copyrights perpetual lies in the difference between “Intellectual Property” and “Physical Property”.

While my pen is mine, and can not be owned by anyone else unless it is taken from me, ideas (and, more precisely, works of intellectual property) are fundamentally different. Not only is it possible for multiple people to read a book without disenfranchising anyone, but it’s possible for two totally different people to come up with the same idea while being separated by time, distance and culture.

Take, as an example, a recent case of supposed plagiarism (and copyright infringement). Wayne Coyne from the Flaming Lips wrote a song called “Fight Test” that was similar in melody to a Cat Stevens’ song “Father and Son”. Coyne eventually settled out of court and ended up having to give away both the royalties and the rights to his song. (1, 2, 3).

While it’s entirely possible that Coyne maliciously ripped off Stevens merely to make a buck, a more plausible answer is that he either heard the tune somewhere and later recalled it during the songwriting process or came up with it entirely on his own. It should be noted that only the melodies are similar, and not the words or the subject matter.

To claim that intellectual property is property and should be owned by someone (and their heirs) in perpetuity is to place an increasing burden on each successive generation. A creator will have to clear each sentence of their writing and each measure of their music to make sure that their arrangement of words and their crafting of music is entirely unique, or face the wrath of an angry copyright holder in court. This is the very definition of “chilling effect”.

barlowMar 04, 2004 at 1:48PM

I sympathize with the burden that it imposes, but technology makes it easier and easier to verify these things *before infringement occurs*, and further changes to the law can ease up just how much of a work must be quoted before it constitutes infringement.

I also think this argument is ancillary to what really motivates 90% of the passion about copyrights (I’m not making an assumption about your motivations). But if this “chilling effect” is really your main concern, there are other ways to ease up the effect besides revoking the copyright at some point. We could, for instance, outlaw the copyrighting of melodies (on the radical side of things) or redefine what constitutes similarity (a more conservative change), etc. Because here, your big example is Cat Stevens vs. The Flaming Lips, and I don’t recall Cat Stevens dying, much less 70 years having transpired. You’re upset about the way copyrights work now, not about their length of force, proving that modifying the law, not limiting the length of copyrights, is the real answer to bring sanity to a system that is otherwise a real beacon to the whole world that says ‘we respect intellectual property’.

This thread is closed to new comments. Thanks to everyone who responded.

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