David Riordan <[email protected]> writes: >A Bloomberg article about the RSC's pulled copyright reform report >just got me thinking... > >Back in 1998, almost 14 years ago, Congress passed the Mickey Mouse >Sonny Bono Copyright Term Extension Act, which took all works then >covered under copyright in the United States and retroactively tacked >another 20 years of monopoly before they would reach the public >domain. Works that would have reached the public domain in 1998 got a >stay of execution from the hands of the public – those unwashed masses >– until a date far, far in the future, 2018. > >Wait - that's like six years away! That's pretty soon! > >We haven't talked much about copyright term extension since Larry >Lessig lost us Eldred v. Ashcroft and got these retroactive copyright >term extensions enshrined as constitutional as a side effect. So now, >for copyrighted works to enter the public domain, Free Culture >advocates really have only one form of recourse, blocking term >extensions.
There's another way to think about this: When the Court concluded in Eldred v Ashcroft that retroactive extensions were constitutional (regardless of whether they were good or bad law, of course) it actually gave a subtle gift to the copyright reform movement. Any retroactive change to copyright terms inevitably harms some set of interests. If it's an extension, then it harms those (like Eldred) who want to distribute works that would have been in the public domain. If it's a term *contraction*, it would harm those who stand to benefit from continued monopoly rights. And the Court has apparently said that since copyright terms are not a promise by one party to the other, but rather a statutory matter subject to policy changes like any other regulation, then it is constitutional to change term lengths (and even other conditions of copyright) retroactively in ways that harm or favor *either* party. That means we can advocate for retrocactively *shortening* terms. It might be unlikely that the current Congress would pass that, of course, but if they did, the precedent is established that the change would be constitutional. So Eldred v Ashcroft may be a blessing in disguise. As copyright liberalization becomes more of a popular cause (which I think is gradually happening, due to the proliferation of digital devices), one legal barrier to improvement has been removed: the US Supreme Court has said that retroactive changes are, in principle, constitutional. It didn't say they're only constitutional if they extend term limits -- it just said retroactive changes are constitutional, period. So let's not advocate for blocking term extensions. Instead, advocate for *reducing* term lengths retroactively. Reframe the debate, and let the maximalists justify why terms shouldn't be contracted. -Karl _______________________________________________ Discuss mailing list [email protected] http://lists.freeculture.org/mailman/listinfo/discuss FAQ: http://wiki.freeculture.org/Fc-discuss
