Re: [dvd-discuss] Must Copyright terms be uniform?

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

Michael A Rolenz wrote:

> 
> Don't expect to see much of a renaissance as people can build on existing
> works. The ideas are not copyrighted. Nothing has ever stopped people from
> making imitations- for literary works....software and the more
> technological matters covered by copyright are a different matter. Those
> are things that people can build on and I can't see that a 120yr term
> promotes any progress.

I dunno, when copyrights go to the highest bidder, this means deep
pockets to prevent "derivative works" like "The Wind Done Gone."  --
This sends a huge message to publishing house editors (even if TWDG
beats the GWTW suit) that unless you're prepared to line up *your*
$350/hour lawyers against our $350/hour lawyers don't even think of
trying an "idea vs. expression" claim to anything in the neighborhood of
a successful and profitable literary work.
 
> The other problem I have with a 120yr term is that even paper doesn't last
> that long! I content that it is sheer arrogance to assume such a term. The
> only way a term such as that is viable is if it does become a monopoly as
> Pre-Statutes of Anne

I've been think along those lines as successor challenges to Eldred v.
Reno (now Ashcroft).  Essentially it is in the exact wording of the
Copyright Clause -- it is a requirement that "rights" for "authors" and
"inventors" are secured for "limited times" that "promote progress." 
Essentially it is a structural attack that pairs each aspect of
copyright law with actual and literal requirement.  The courts have said
that when interest need to be balanced, the judiciary is to give broad
leeway to the congress.  However even broad leeway has it's limits, and
when one end of the teeter-totter is burried halfway to China (or even
touching the ground) clearly no "balance" has been achieved.

The first are "ad absurdum" challenges

How can a "limited times" meet the "promote progress" if it is longer
that the expected lifespan of the original work.  Imagine a copyright
holder creating and publishing exactly one copy, authorizing no others,
and licensing it with a no archival copy license (like the DVD CCA
has).  This work will not and cannot pass into the public domain.  The
"limited times" are clearly too long.

(eBook, DVD) How can  "rights" "promote progress" if they prevent use
after purchase.  Essentially if one cannot copy the text of a work (as
can be disabled) or leverage special needs software the work cannot be
used to fullfil any academic, critical, or parodic use (without tracing
over the image with vellum or ???).  Clearly these cannot be valid or
constitutional.

Less "absurdum"

Progress, by it's definition is the build of new knowledge or works
derived from exsisting ones.  Further, progress is a societal, not
individual measure -- it must measure the wealth of knowledge and
cultural enrichment of the people as a whole.  Progress to be ripe must
be as available to the crackpot in his or her garage as to the corporate
laboratory.  "rights" and "times" that yield the fruit of societies
wisdom only to the for-profit industries serve not progress but mere
private interest and profit.  However the framers did say to "promote
profit and monopoly rent" -- but instead to "promote progress".

This means that each generation must be able to freely use the prior
works, or else recreate their value from scratch.  If the works are not
available for free use prior to their recreation (or rederivation) by a
subsequent generation, they promote no progress as they are not used as
the basis for subsequent. Each layer of the foundation must be abandoned
until obsolete, and a new foundation laid on bare ground by each
generation.  At best one might observe the style and structure of the
foundation marked "off limits" for the next century, but not used.  It
this is the case, the "limited times" have not served the interest of
"promote progress" as no work can truly be use for meaningfully
subsequent work.  We might, eventually after 2 or 3 generations have
rebuilt the same foundation be able to go back to the finally available
foundation, but this is not progress by any traditional thinking.

Imagine set of works {Wi|i=0,1,2,...} with linear depencies  Wi : Wi+1
(in Makefile notation no less.  Imagine each work is the the magmun opus
of a generation.  Finally imagine a collection of recreated works
{Wil|l=a,b,c,...} s.t. Wil is the lth recreation of Wi. If the
availability time of Wi is the time to create Wi+1 and Wi+2  then the
following would be the sequence of "non-progress"


W0 : 
   test -z $cash && echo "licensing W0" || exit 1

W1 : W0 
   echo "no progress, just private interest"

W0a :
   echo "reinventing wheel"
W1a : W0a
   echo "you call this progress"

# Progress must be commented out
#
W2 : W1 
  echo "more pure private interests"

# Can't use W1a, revert to W1(new W0 based derivative
WO_old :
	need some rule to test for expiration
	is the author alive && exit 1
	has the author been dead < X years && exit 1 
	...
W1b : W0_old
   echo "yet another reinvention"

W2 : W1b
   echo "so finally we get progress...."

Notice that the whole of the sequence favors and promotes private
interest, assure that it and not the public can progress.  The public
interest (and thus true progress) is kept behind by at least one full
terms length, more as the reinvention of the W1b case requires W0 to
lapse.

Add to this the concept of "unpublished copyright" for source code, and
software is guaranteed no progress (as opposed to benefit of private
interest) except for open source.

.002