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[dvd-discuss] Copyright term only increased twice




A completely bizarre and amazing argument is put forth by Scott Martin and
similar arguments were made in the DOJ reply brief. Martin puts it thusly:

<quote>
In fact Congress revised its view of the appropriate
duration of copyright protection only twice in the past forty
years: once in the 1976 Copyright Act  which changed the term
from an initial term of 28 years plus a renewal term to a term
of life-of-the-author plus 50 years (with a commensurate
increase in the term of protection for existing works), and then
again in the 1998 Sonny Bono Term Extension Act  which added 20
years of additional protection to all existing terms of
copyright. The other nine extensions were short interim
extensions passed during the deliberation over the 1976 Act in
order to ensure that authors of works on the cusp of falling
into the public domain would not be penalized by Congress'
glacial pace in enacting the new Copyright Act.
<quote>

This argument proves what it intends to refute: Congress has made it clear that
it will not allow any more works to enter the public domain.

In forty years, it made two fundamental changes. From 28+28 to life+50 to
life+70. Given that almost all authors live longer than 26 years, Mr. Martin
has shown us that on average the term will be extended every 20 years by an
amount greater than 20 years. Worse, even if Congress can't keep up with their
average pace for 20 year+ extensions every year, Congress will pass "interim"
retroactive extensions for no other reason than to assure that no works enter
the public domain. 

For forty years already, Congress has had the goal to prevent ANY works from
entering the public domain. If they continue this with yearly 1-year extensions
or 20-year extensions every 20 years, or a mix of the two, it does not matter.

The error made by those who support the CTEA is that they believe the
Constiution requires only that each "term" in a sequence of terms be limited.
That is a bait and switch tactic that doesn't square with the text: they know
something has to be finite, so they invent a new thing for it to be, the
"term", so that it doesn't have to be the important thing which is the total
period of copyright protection (the union of the terms of protection). The
Constitution requires that the **"securing"** be for "limited times". It does
not say that the limit is on the duration of each individual term in a supposed
sequence of terms whose union can be of infinite duration. That sort of
accounting is called a pyramid scheme, and it is found in the books of bankrupt
companies, not the Constitution.

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