Re: [dvd-discuss] Digital Rights Management GedankenExpe

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

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.