Re: [dvd-discuss] Eldred v. Ashcroft Accepted forReviewbySCOTUS

["John Zulauf" <johnzu(at)ia.nsc.com>]

Scott A Crosby wrote:
> 
> On Wed, 20 Feb 2002, John Zulauf wrote:
> 
> >
> > The copyright clause is about promoting progress, not maximizing
> > return.  Having a variable term for works copyrights will only lead to
> 
> Isn't 'progress' usually considered fulfilled when you maximize the
> economic output from a work. When the most money is made on a work? In
> that case, as per Posner and Ladner (I believe), it may be that that is
> true with these obscenely restrictive laws.

I would think that maximized the total economic output from a given work
would be antithetical to the dictionary definition of progress.  To the
extent a single work can be continually and unceasingly be milked for
all possible returns, the motivation to create new works is diminished.
Think of it this way.  If a given lottery ticket is valid for all future
lotteries the incentive to by a new ticket with those same numbers is
lost.  By removing (effectively) the limits from the limited times
clause their is no economic force motivating innovation over renovation
("Golden Anniversary Edition").

Think of Disney -- all in a panic about losing the exclusive rights to
Mickey Mouse.  This tends to indicate that they fear they have nothing
of equal prestige with which to replace him.  Being given yet another 20
year reprieve, there is nothing to motivate Disney to create yet another
marquee character.  They can simply rest on there legally preserved
laurels. 

Progress cannot build upon crumbling ruins of the irrelevant, but must
build on works of the most recent generation prior.  This limits the
times possible to 10, 20, or 30 years at most.  Clearly by the time the
maximal profit has been derived the works can serve no value to progress
-- it's loss of economic value directly tied to it's loss of relevance. 
In fact one can argue that awaiting maximize economic return exactly
equates to a public domain of exactly zero value.  If a work in the
public domain had residual value, then the economic return was not
maximized but was lacking in the extraction of that residual.

Even if the work has no direct value, economic value in the right to
control and license derivative works is real value.  Thus again
guarantee a worthless public domain both in direct and derivative uses. 
This worthless public domain thus guarantees no value has been added to
the free discourse of ideas and has thus frustrated, not promoted
progress.  Yes, commercial interests have benefited -- but the
Constitution is there to "promote the general welfare" not merely the
welfare of commercial interests, but of "we the people."  (no "e pleb
neesta" jokes please!)

> Or, if you define progress as maximizing the number of works in the public
> domain, in, say, 30 years.. Then no.

Progress (from the Eldred amicii) is all about new works, innovations,
novel topics, ideas, and their expressions within the sphere of public,
non-proprietary knowledge. It is about taking from what is and creating
that which wasn't before.  Long terms work against that in two ways --
by the "laurels effect" I describe above and by reducing the public
domain to archeological, culturally irrelevant, collection of many dusty
B grade works and a handful of classics.  Progress says go ahead Mozart,
Beethoven, Chopin -- borrow from works in the recent past (14 yr. ago
would include all pre 1988 works) -- and create masterpieces.  For the
Salieri's of this world -- who produce only the mediocre it says -- make
it great now or get over it.


The modern copyright laws would tell Mozart -- you can't glean through
the failings of the mediocre for the jewel a master's eyes and ear
divine among the dross.  You must pay them for their awful offal. It
stand squarely in the path to blockade progress unless it aligns with
the business models of the status quo.

.002

"It was a funny little tune, but I got some good material out of it" --
Amedeus