Re: [dvd-discuss] [openlaw] Government takes more extremelineinsecond"Eldred" case

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

jerwin@gmu.edu wrote:
> 
> I'd actually suggest looking at the original Landes/Posner article. (Try
> to get
> a hard copy-- I'm sure that Lexis-Nexis has managed to mangle
> the calculus equations in the first segment of the article.)
> 

> 
> As for their assertion that
> "...This trend [towards longer copyright terms] is consistent with the
> fact that the cost of copying has fallen over this period, we showed
> earlier that the lower the cost of copying, the greater the optimal
> scope of copyright protection,"

This would be interesting if the Copyright Clause empowered Congress to
structure copyrights to optimally reward copyright holders.  Clearly
neither "promote progress" nor "limited times" reflect such an intent of
that clause.  Thus the whole of the argument is irrelevant.

What seems to be the clear "constructionist" view is that Congress is to
provide the least reward to the authors and inventors to incent them to
create new "writings" and "inventions".  

Now an analysis of the trade-off of "times" versus "total progress
created" WOULD be relevant. This would probably result in some "strong
and weak" nuclear force-like push pull.  At some short time (less than
20 years) their is too little incentive for inventions and some longer
time (30 years) the is too much reduction of derivative works (as the
licensing fees act as a disincentive to authors and inventors).  We end
up with a 10-20 year window (15-35 years) of squishy territory in which
these limited times can exsist (where the net forces have a low
derivative, like the cosine near 0) -- but outside of which the net
"total progress" can be shown to have clear 1st order negative marginal
rates to increases or decrease in "times" provided.  It is within that
window the Congress should be free to act, but beyond which the courts
should intervene.

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