(Fwd) Re: [dvd-discuss] Digital Rights Management GedankenExpe

[microlenz(at)earthlink.net]

The meaning and interpretation of "limited" was what I was 
grappling with (not successfully ) a few months ago with the 
question regarding why copyright terms had to be uniform. Limited, 
by its definition means finite but to promote progress, at least 
some of the items that enter the public domain must be useful, 
memorable, or desirable but certainly NOT obsolete. I wrote "at 
least some" ...one can't hit home runs everytime at bat. The time 
limits for when things seemed to be useful vary considerably. DOS 
2.0 vs 486 vs TombRaider vs Patriot Games vs Stratton's E&M. Not 
only does one time not fit all but what kind of progress do some of 
the things actually do? While some may disagree, entertainment 
does not promote progress as much as technical or intellectual 
persuits. I suppose that Jack Valenti would argue that as such 
entertainment should get the most protection and longest term 
("OK Jacky...we spend the most time protecting the least
thing"....WHere's Monty Python when you really need to do the fish
slapping dance!)


 (Here's another trick question. If the items that enter the public
domain after patent or copyright term ARE useless, then the 
standards for patenting or copyrighting items are too low and must 
be revised upward. OTHERWISE they are not promoting progress 
by protecting trivialities.)

I really can't see how a 125yr copyright on an Intel 80286, an 
80386,80486, or a Pentium processor promotes progress. (Trick 
question...is the Pentium processor with the infamous division bug
copyrighted? OR will Intel let that one slide into the public
domain!). The limited terms for those items seem to be about 10 
yrs at MOST (actually I'm thinking of the 80186...it found its way 
into some high end disk controllers and communications 
equipment) At least some of the the items that enter the public 
domain each year must have SOME worth. The situation that the 
current term has created is one where anyone could build Charles 
Babbage's Calculating engine now for FREE without ROYALTIES! 
HURRY HURRY GET YOUR FREE PLANS! On Page THREE (or
is it page 2 in British papers) 

I think you've hit the nail on the head...The "limited" and promote
"progress" must be read together. FINITE terms that are so long 
that theyCANNOT EVEN POSSIBLY promote progress are NOT 
constitutional. FInite terms that are short enough that there may 
still be some progress to be promoted when they end are what is 
Constitutionally required.

As I read John's reply I got some insight into the working of the
architects of copyright. WHy did they require a POSITIVE act for
renewal for copyright? IF the author doesn't feel the work is worth it
WHY should society? Keep the fees modest so that most can 
renew copyrights if desired but if they are not-either the it's 
"abandoned intellectual property" or else a gift to the public domain.
Of course maybe the problem is that many now view the public 
domain not as a legacy one gives to the world but as a repository of
things people couldn't keep to themselves.

ON the terms.... I can't see ANY copyright material needing 50yrs 
of protection but I'd give it to some classes (e.g., literary) but for
integrated circuits? Limited terms does not mean uniform terms.
Promotion of progress should regulate that duration.



> 
> 
> Michael A Rolenz wrote:
> > 
> > On #1, the same argument applies to some term between 28 to 50yrs.
> > Most likely the author, their spouse, or possibly children may
> > keep copies about. If the works are required to submit a copy for
> > archival purposes to the government (what a concept!) at least one
> > copy may be around. As we've argued before-ANY term longer than 50
> > yrs (from date of publication) just doesn't make sense.
> 
> While 30, 40, or 50 years all would produce benefits -- the shorter
> the term the greater those benefits.  I've been thinking about the
> word "limited" in the Copyright Clause. The gov't and the court have
> been taking the definition of limited as "non-infinite" -- but I
> think when one looks at the promote progress preamble, one needs to
> ask the question "limited with respect to what?" The word limited
> can be used in an absolute sense (non-infinite), a relative sense
> (with respect to a whole), or connotatively to evoke as sense of far
> less than that which would be desired (call, now only limited
> availability).  The absolute sense (the one the courts have used to
> free Congress of "term" scrutiny) -- is the least common use most
> often found in mathematics (the series summation is limited or
> converging) or economics (unlimited wants and limited resources). 
> Far more often are the relative sense (with respect to a whole --
> limited nuclear war) and the diminutive (far less than what demanded
> would support).  In the two latter cases the "times" then are
> limited compared to some whole, or some demand.  For an author, (and
> taking into account the initial requirement that an author be living
> for copyright renewal) this whole or demand would be the authors
> lifetime, for a work, the whole would be the relevant (progress
> promoting) lifetime of the work. Thus "limited times" translates
> instead of "finite" (the rarer academic usage) to "a substantially
> shorter portion that the whole of the authors lifetime"  -- here the
> 14+14 initial implementation makes substational sense and the 140
> years for Irving Berlin (or 95 years for Land Before Time I-VII) do
> not.
> 
> Thus we come to the conclusion that taken as a whole, the "promote
> progress" and "limited times" spoken of by the authors of the
> Constitution have explicitly that idea that a work, while still
> relevant, profitable and capable of promoting progress must revert
> to the public domain -- or the combination of "progress" and
> "limited times" will be unsatisfied. That the "limited time" is
> w.r.t. the relevant, contemporary lifespan of the work.
> 
> Now having said that... a decision that so limited the options
> available to Congress for "limited times" choices would be a tough
> sell before the USSC -- and unlikely to succeed.  I fear instead we
> are due for a "Dred Scott" of a decision gutting fair use and the 1A
> w.r.t. copyright.
> 
> I believe that the best hope is to sow the seeds of political
> dissatisfaction with the technology companies and somehow (in a
> legislative equivalent of Universal v. Sony) take back the balance
> of the Copyright in the Congress.
> 


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