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Re: [dvd-discuss] Petition for rational copyright law

On 10 Jun 2003 at 15:09, Jeme A Brelin wrote:

Date sent:      	Tue, 10 Jun 2003 15:09:43 -0700 (PDT)
From:           	Jeme A Brelin <jeme@brelin.net>
To:             	Openlaw DMCA Forum <dvd-discuss@eon.law.harvard.edu>
Subject:        	Re: [dvd-discuss] Petition for rational copyright law 
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> On Mon, 9 Jun 2003 microlenz@earthlink.net wrote:
> > I really do not see why N years PERIOD, should be considered brutal in
> > its absolute equality and has to be replaced with all sorts of schemes
> > to optimize the return. Optimizing the return is what you do when you're
> > not making a lot more than you can deal with. Optimizing copyright is
> > the same way. If we are not overflowing with useful memorable
> > copyrighted material then something is wrong with how we are dealing out
> > copyright.
> The problem with "N years PERIOD" is that if it's useful to anyone, it's
> too long and if it's too short, it's not useful to anyone.

So? That's going to be a problem with anything less than "Forever Less a Day". 
There ANYTHING that is useful cannot be accessed. 200yrs...well Beethoven's 
descendants are bemoaning the loss of copyrights but Wagner's are still 
revelling in it. The descendant's of Thomas Edison are wondering how to convert 
the sound recordings on wax cylinder's of mediocre performances by mediocre 
performers into something economically profitable. 20yrs The Best of "The Who" 
(i.e., The Who with Keith Moon <no flames please...my copy of Quadrophenia was 
purchased the first day they hit the stores>) is out there for anyone to record 
or download. Britney Spears isn't nervous YET but Paul Simon and Art Garfunkel 
are looking for another 20 year reunion -The recording of the one in Central 
Park doesn't match my memories either but that's also on the web.

ANYWHERE you set it there will be things of no use, lesser use and high use. 
Right now the writings of Hemingway, Fitzgerald, Milne and others are not 
available for free. Dover would probably like to reprint a lot of works from 
the 20s but cannot because of copyright or the inability to track down 
copyright in an economic fashion. Books of genealogy have a very specialized 
and small clientele

It is inherent in N years that this will happen. Why then is that a BAD thing? 
The point isn't to seek a perfect solution (See Berne Convention for one 
attempt) or an optimal one (optimal in what sense - See Posner and Landes for a 
flawed attempt). It is to set a fair one with enough of one and not too much of 
the other. 

> You want things to enter the public domain pretty quickly, especially if
> they're just falling into obscurity otherwise.  

The goal is not to put a lot of junk into the public domain. That which is 
obscure is likely to remain obscure even if it is published in the public 
domain! Things that are known to have merit should enter it after a period when 
the creators have gotten rewarded. In a capitalist system it is via the market 
place. Although the creation of foundations that give grants to 
writers/composers to create works is an interesting twist-a capitalist sets up 
a foundation to distribute money as an aristocrat did centuries ago. But in 
contrast, should someone want to exploit the obscure, why should they or 
society be burdened with copyright restrictions to use it after a "reasonable" 
and simply determined time.

Similarly, having the term sufficiently large does allow the market place, 
scholars literary critics, librarians, or book lovers to get some idea of what 
seems to be worth preserving and working towards that. In the last month I've 
seen two  PBS programs discussing writers of the 40s or 50s whose works are 
being promoted for "rediscovery". 50 yrs doesn't seem to long to me. 

>But you also want to make
> sure that a popular work isn't diluted with knock-offs, misattributions,
> and plagiarism, because that's confusing to posterity and makes historical
> research a bitch.

Sure...but how long need that be? You are not likely to have 50 yrs of knock 
offs etc....if nothing else maybe historical scholars may want to adopt some 
forensic techniques such as looking at the material and weave of a Stuffed 
Mickey Mouse....one with polyester is not likely to be gotten out of a soapbox 
during the depression.

But this argument really has nothing to do with the way the term is assigned 
only that it is too short. It's a red herring. 

> So you have to have a system whereby speculative copyright is minimized,
> but the system can have its desired effects.

To prevent the buying of copyright speculative futures, make the term 
short...not forever less a day but no more than necessary. 

> Personally, I'd like to see a non-exclusive right of attribution (with
> appropriately high damages and legal remedies) that lasts quite a long
> time and a very short copyright period for works that need more exclusive
> protection.

I would agree that the attribution of creatorship is a moral right that morally 
society must codify legally in the doctrine of fraud. Plagiarism in the form of 
copyright becomes a crime committed against the state.

As for shorter copyright terms....the term need not be uniform and is not I 
believe...nor should it be. The term must be set by the "general" usefulness of 
the work and the ability to derive other products from it (e.g., plays, motion 
pictures, compositions) but at a certain point it should be "You've had enough 
time...NOW it's time to let others use this PERIOD"

BTW WRT to Eldred...I think the whole life+N years is inherently bad because it 
inposes an administrative burden on society and the government that Congress 
and the Courts do not understand - had they more training in mathematics, less 
in law or understood what they did learn in math better (calculus in the 8th 
grade doesn't cut it- if a well known law prof is reading this) or just thought 
about it (track down John Smith's death please) then they might. Nevertheless, 
had they decided that terms needed to be extended, they could have created a 
graduated system had they adopted the N years approach that would not be an 
administrative nightmare or create this two decade deadzone in the public 

> J.
> -- 
>    -----------------
>      Jeme A Brelin
>     jeme@brelin.net
>    -----------------
>  [cc] counter-copyright
>  http://www.openlaw.org