Welcome to 1929

 Literary works, musical works, and motion pictures published in 1929 whose copyrights were renewed after 28 years are finally in the public domain in the U.S.  These include A Farewell to Arms by Ernest Hemingway, The Sound and the Fury by William Faulkner, the first English translation of All Quiet on the Western Front by Erich Maria Remarque, and An American in Paris by George Gershwin.  As I wrote a few years ago, these copyright expirations are 20 years overdue due to the Copyright Term Extension Act of 1998.

Welcome to 1925

 Published works from 1925, whose copyrights were renewed after 28 years, are now in the public domain.  Among these are The Great Gatsby by F. Scott Fitzgerald, Arrowsmith by Sinclair Lewis, and "Always" by Irving Berlin.  The copyrights should have expired 20 years ago, but in 1998 Congress passed, and President Clinton signed, the Copyright Term Extension Act which increased the term of copyright for works published between 1923 and 1976 inclusive to a ridiculous 95 years.

Autocracy: Rules for Survival (Masha Gessen)

Masha Gessen, who has lived under autocratic rule, has some rules for survival in an autocracy.

Reprint: My post of January 18th, 2003 in response to the decision in Eldred v. Ashcroft.

The following was first posted on January 18th, 2003, in response to the Supreme Court's opinion in the case of Eldred v. Ashcroft.

===========================

January 18, 2003 (Gregorian Lunar Almanac 2003, 1st Moon, 15th day)

Court to  Public:  "We lied, suckers!"


In its ruling in Eldred v. Ashcroft, the U.S. Supreme Court has said, in effect: "We lied, suckers.  Almost everything we ever said about the public purposes of copyright was just hot air."
I am amazed that the court showed disregard, not only of its own copyright jurisprudence, but of its own institutional self-interest.  The court could easily have remanded the case for a trial on the question of whether the Bono Act promotes progress more than it places monopoly burdens on the public (copyright clause balancing) or on the question of whether it promotes a significant government interest more than it burdens speech (first amendment balancing).  The lower courts would have gone through the motions of making this evaluation and upheld the Act.  Eldred would have appealed again, the Supreme Court would have denied certiorari the second time, and that would have been the end of Eldred's case.   But the court would have been more consistent with its existing copyright jurisprudence, and at the same time would more strongly have upheld their prerogatives of constitutional review of Congress's exercise of its limited powers.  It will be hard for future courts to strike down any future extensions of the copyright term without repudiating its decision in Eldred's case.

The Eldred opinion's ignorance, or cynical dismissal, of its earlier jurisprudence is made especially clear in footnote 18:

Justice Stevens' characterization of reward to the author as "a secondary consideration" of copyright law...understates the relationship between such rewards and the "Progresss of Science".  As we have explained, [t]he economic philosophy behind the [Copyright [C]lause...is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventers." Mazer v. Stein, 347 U.S. 201, 219 (1954).  Accordingly, "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge...The profit motive is the engine that ensures the progress of science."  American Geophysical Union v. Texaco Inc. 802 F. Supp.  1, 27 (SDNY 1992), aff'd, 60 F. 3d 913 (CA2 1994).  Rewarding authors for their creative labor and "promot[ing]...Progress" are thus complementary; as James Madison observed, in copyright "[t]he public good fully coincides...with the claims of individuals."  The Federalist No. 43...Justice Breyer's assertion that "copyright statutes must serve public, not private ends"...similarly misses the mark.  The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with incentive to pursue private ones.

In Madison's day it might have been possible to assert that the public good "fully coincid[ed] with the claims of individuals", because the scope of copyright did not then include derivative works; did not then include public displays and performances; and only lasted for 28 years at most.  Everything else Madison wrote about copyrights and patents shows that he is fully aware that copyright places burdens on the public, and that these burdens can, if they become heavy enough, destroy the coincidence between "the public good" and "the claims of individuals."  Justice Stevens's and Justice Breyer's statements are entirely consistent with the cases they site.  It is the court majority that "misses the mark", disregarding the clear spirit of the court's earlier copyright dicta and cynically citing Madison in a tendentious way.  Justice Stevens does not "understate the relationship between [the] rewards [conferred in the copyright monopoly] and the 'Progress of Science'".  It is the court majority that understates --indeed, all but ignores -- the relationship between the public domain and the "Progress of Science."

The effect of the Eldred ruling is that the Congress need never rationally weigh the burdens copyright places on the public.  The Constitution clearly presupposes that the expiration of copyright--the public domain, as we now call it--is the most important constitutional means of keeping copyright true to its purpose of promoting progress.  But though the Constitution gives the public domain pride of place in its text through the words "promote progress", "for authors", and "limited times", the court has stated that the 105th Congress's cynical dismissal of the public domain as worthless is not subject to constitutional review.

The court's rubber-stamp review of the Copyright Term Extension Act is the weakest standard of judical review ever proposed.  It is weaker even than the generous standard stated in McCullogh v. Maryland (17 U.S. 316), where Mr. Chief Justice Marshall declared that an act of Congress must be "plainly adapted" to their constitutional ends and "consist with the spirit" of the Constitution.  Courts are understandably reluctant to invalidate acts of Congrss for failing to comply with the spirit of the constitution.  But if any act of Congress fails to "consist with the spirit" of the article I power under which it is passed, it is the Bono Act.

The court then backpedals with the following bit of Pilatesque hand-washing:

The wisdom of Congress' action...is not within our province to second guess.

But as Mr. Justice Breyer pointed out in different words in his dissent, a want of reason in the legislative judgement is grounds for finding an act of Congress invalid.  An act that is unwise is by definition an act of folly; and folly must at some point rise to the level of the constitutionally unreasonable.  A fair court would at least have considered seriously the burdens that the CTEA places on the public.  One of the reasons I find the Eldred ruling is defective is that it scarcely even to acknowledges the existence of these burdens, much less their great weight.

Happy Michaelmas, everyone!

Tomorrow is Michaelmas if your parish is named St. Michael's or St. Michael and All Angels.   Also if your parish is something like "Grace" and has adopted St. Michael as a patron. Otherwise you must wait until Monday.  Party on!

Mickle Mirth at Michaelmas, 2005:

The church in the picture, St. Michael's in Norman, Oklahoma, no longer has a medieval banquet as part of their patronal festivities.  Nowadays they have a fair, which was on Saturday last week.

What the moon looks like now

A nice site provided by the U.S. Naval Observatory allows us to see the moon (in a manner of speaking) even when conditions do not favor naked-eye observation.

Some of the ACTA's problems

In a post from a few months ago, Mike Masnick discusses one of the problems with the ACTA: It would require parties to punish "commercial scale" copyright infringement, which it then proceeds to define in an extremely vague and broad way. But the biggest problem is one he mentions here: It isn't that it would immediately change any U.S. laws or policies, but it would lock in the odious changes of 1998. Reducing the duration of copyright, or modifying the device and circumvention provisions of the DMCA, can be dismissed as "inconsistent with our international obligations" as long as we are a party to the ACTA.

Bill Patry: Right, as usual.

In all the swirl about SOPA, PIPA, ACTA, TPP, and C-11 and the technical issues these proposals raise, it is refreshing to see Bill Patry remind us that one of the most important things about copyrights is that they expire. (I have written about the same thing in a number of places, for example here and here). From the article:

When I was in private practice at a large law firm, a partner asked me to approach the estate of a famous playwright. My colleague was hoping to get permission to produce an abridged version of a play at his son's special education school.

The school was willing to pay the licensing fee, but the children were capable of only performing one act, not three. The production would be only before parents, not for any profit. After all this was explained to the estate, they subsequently refused permission and the money, insisting the children had to produce the play as written, or not at all.

I think that for published books, the 42-year term of copyright we enjoyed from the 1830s until 1909 was about right, but as noted in an earlier post, as a first step I would probably support a proposal to roll back the term of copyright in published books to a mere 75 years from publication, or 50 years from the death of the author, whichever is shorter.

Why I won't sign that petition

A petition has been submitted to the White House requesting that copyright duration be rolled back to a maximum of 56 years. I have long called for a shorter term of copyright, but I won't be signing this petition. That is because too much has happened since 1976 for it to be reasonable to ask for a single 28+28 year copyright term as we had for all published works under the 1909 act.

An important feature of the 1976 Act was the suppression of the common-law right of first publication in unpublished works. Careless writers called this old common-law right a "common-law copyright," and some insisted that it was perpetual, but this was an exaggeration. It was more accurate to state that it was a right of first publication, not a copyright, and that it was of indefinite duration. It could, indeed, last generations if carefully preserved. The 1976 Act abolished this right and replaced it with a statutory copyright in unpublished works, based on the life of the author. This is one feature of the 1976 Act that I consider worth preserving rather than rolling back. The petition submitted to the White House makes no mention of the distinction between published and unpublished works, and the difficulties of defining a term for unregistered unpublished works.

Also, it makes more sense now to have different copyright terms for different classes of works. Computer software source code, in particular, should have a much shorter term than books or songs.

Finally, as Mike Masnick points out, it is Congress that makes the law. A petition to the President should recognize this.

I might support a petition worded something like this:

The undersigned respectfully request that the President consider the following proposals for the amendment of the U.S. copyright law, and if he deem any of them "necessary and expedient", that he recommend them to the Congress in accordance with Article II, section 3 of the constitution; or, if he find any of them not to be necessary or expedient, that he reply to this petition in writing giving his reasons.

1. We request that the duration of copyright in published works by known authors (except for computer software source code, treated separately below) be reduced to a term of the lifetime of the author plus fifty years, but in no case to exceed seventy-five years from first publication; and that the duration of copyright in published works-for-hire and anonymous and pseudonymous published works be reduced to a term of seventy-five years from first publication. This change would be made without regard for the duration of copyright in the law of any other country, and without regard for any "rule of the shorter term" in any foreign law. Any international agreements that conflict with the proposal, to which the U.S. is a party, would be re-negotiated to conform to the new shorter term.

2. We request that the duration of copyright in computer software source-code to be reduced to a term of 25 years from creation. The Patent and Trademark office, or the Copyright Office, would be empowered to issue rules for computing a presumed date of creation when it cannot be determined from the text of the source code itself.

3. We request that the law be amended explicitly to state that the author's exclusive rights, once they have expired by operation of the law, become rights that are vested in the general public. An explicit statement is necessary due to the contemptuous and scornful tone toward the concept of publici juris works that was used by the U.S. supreme court in its Eldred and Golan decisions.

4. We request that the United States withdraw from the Berne Union.

Yochai Benkler: Next steps after tactical victory on SOPA/PIPA.

Yochai Benkler has a good discussion of recent developments. He includes four proposals:

Legislatively re-instate the Sony doctrine and reverse Grokster. Technology developers should only be liable for copyright infringements by users if there are no substantial non-infringing uses of the technology.

Decriminalize copyright to pre-1998 levels: put the Golem to sleep. Return the definition of criminal copyright to require large scale copying for commercial gain; reduce the funding to criminal enforcement and reduce the presence of federal functionaries whose role is to hype and then combating the piracy threat. In particular, as calls to shrink the federal government abound, it is critical to include in every legislation downsizing the federal budget provisions that would defund and eliminate most of the burgeoning apparatus of multi-agency criminal enforcement of copyright. The most direct pathway to this will be in appropriation bills, to defund implementation of PRO-IP until a more balanced substantive approach can be worked out.

Create a fair use defense to the anticircumvention and antidevice provisions of the DMCA. Users should be exempt from DMCA liability if they propose, in good faith, to make a fair use of the encrypted materials. Decryption and circumvention providers should be exempt from liability on the model of the Sony doctrine, if there are “substantial non-infringing uses” for the circumvention technology or device they offer. This would fix a much older overreach by the industry, from 1998, that has been very slowly and imperfectly loosened by the Librarian of Congress under powers to exempt certain uses from liability.

Rein in the international trade pathway for copyright extension. Another pathway, similar to criminalization in the sense that it harnesses federal functionaries to help the industry, distinct in the set of functionaries it harnesses, has been international trade. Through a set of trade agreements, both bilateral and multilateral, the U.S. government has pursued the passage of requirements more stringent than it could itself pass in the U.S. The recent adoption of SOPA-like laws in Spain is one example, as is the notorious Anti Counterfeiting Trade Agreement (ACTA). We need a law that would prohibit secret negotiation of IP-related provisions in international agreements, and a law that prohibits the U.S. from entering agreements that require of ourselves or our trading partners more restrictions on the public domain than then-current U.S. law permits.

I would add, as always, reduce the duration of copyright in published works.

"When Adam dalf and Eve span..." 2

Here was another version of the Adam and Eve picture that I made for last year's anniversary of the uprising of 1381.

Updating the tiger

I've updated the tiger to indicate the threat posed by SOPA/PIPA. If a version of the bills should pass, I'll change the color of the letters on the tiger's right-front paw to be the same color as the letters on the other paws.

Whose hands? Another possible case of cumulative authorship

A prose poem meditation beginning "Christ has no body now but yours" is frequently attributed to St. Teresa of Ávila, though sometimes instead to St. Catherine of Siena. You can hear a version of the text here, set to music by David Ogden:


Link:
http://www.youtube.com/watch?v=uJfmuVWMVnQ

However, as noted here:

http://anunslife.org/2006/09/20/saint-teresa-of-avila-prayer/#comment-260

the attribution to St. Teresa seems mistaken. I have yet to find anything like them in scholarly editions of St. Teresa's works. I have yet to meet anyone who can give a citation to any attested words of St. Teresa that can be the source of this poem.

So I tried tracing the words themselves. For now, at least, I believe the poem to be a work of cumulative authorship, like the text of "Hark the Herald Angels Sing" that is found in the Episcopal Church's Hymnal 1982. In the case of "Christ has no body now but yours", the work is principally by two authors: Methodist minister Mark Guy Pearse (1842-1930), and Quaker medical missionary Sarah Elizabeth Rowntree (dates unknown.) But the poem circulates in various versions which also show minor adjustments by others.

In my present reconstruction (which may change as I gain additional information) the Rev. Mr. Pearse is responsible for the second half of the poem. He spoke as follows in a sermon delivered on January 3rd, 1888, in Steinway Hall, Portman Square, London:

Now you, my brothers and sisters, are the eyes through which Christ's compassion is to look out upon this world, and yours are the lips through which His love is to speak; yours are the hands with which He is to bless men, and yours the feet with which He is to go about doing good--through His Church, which is His body.
--Evangelical Christendom, v. 42, February 1st, 1888, p. 46

Pearse cites no sources for his words other than, of course, the Bible.

A few years later Sarah Elizabeth Rowntree used Mr. Pearse's words, which she acknowledged to be his, and to which she added the first half of the poem. Here is the report from the Quaker periodical The British Friend

Sarah Eliza Rowntree gave an interesting account of the recent establishment of the "Home" in Pearl Street, and the progress of the Mission there. She appealed for more workers to assist its further usefulness, concluding with some words of Mark Guy Pearse, "Remember Christ has no human body now upon the earth but yours; no hands but yours; no feet but yours. Yours, my brothers and sisters, are the eyes through which Christ's compassion has to look upon the world, and yours are the lips with which His love has to speak. Yours are the hands with which He is to bless men now, and yours the feet with which He is to go about doing good through His Church which is His body."
--The British Friend, volume 1, number 1, 1892, p. 15

Around the same time John Wilhelm Rowntree (1868-1905) (I suspect a cousin of Sarah Elizabeth's though I cannot yet confirm it) used the words in a sermon on "The Place of Religion in Modern Life". In the outline for this sermon that was published posthumously in 1906, the piece stood as follows:

Remember Christ has now no human body upon earth but yours; no hands but yours, no feet but yours. Yours are the eyes through which His compassion is to look upon the world, yours are the lips through which His love is to speak, yours are the hands with which He is to bless, and yours the feet with which He is to go about doing good--through the church which is His body.
--from "The Place of Religion in Modern Life" (notes for a sermon), in Joshua Rowntree, ed., Palestine Notes and Other Papers by John Wilhelm Rowntree, Hadley Brothers, London, 1906, p. 106.

John Wilhelm's notes contain no attribution, either to Pearse or to Sarah Elizabeth, or to anyone else. John Wilhelm's words also differ in a few details from Sarah Elizabeth's, making him possibly the first of many who have adapted the text over the decades.

Update:It is of course possible that it was John Wilhelm (or even someone else) who added the first part to Mr. Pearse's words. But Sarah Elizabeth remains the first one on record to have spoken the whole poem in something like the form it now has.

I might as well end with something that St. Teresa did write. Or at least, she is said to have had it on a bookmark in her breviary, and the scholars seem to have accepted it has her work.

Letrilla
Nada te turbe,
nada te espante;
todo se pasa.
Dios no se muda.
La paciencia
todo lo alcanza.
Quien a Dios tiene,
nada le falta;
solo Dios basta.

"When Adam dalf and Eve span..."

This year, 2011, has been the 630th anniversary of the uprising of 1381.

Contradictions

In discussions of the computus, that is, the method for determining the date of Easter, one often encounters the erroneous statement that the Eastern Orthodox churches use precise astronomical computations to determine the date of Easter. For example, at this URL

http://www.saveandread.com/blog/?p=847

as recently as today I found the following:

The Orthodox church uses the same formula to calculate Easter, but bases the date on a slightly different calendar—the Julian calendar instead of the more contemporary Gregorian one, the calendar that is most widely used today. Consequently, both churches only occasionally celebrate Easter on the same day. Unlike the Western Church, the Eastern Church sets the date of Easter according to the actual, astronomical full moon and the actual equinox as observed along the meridian of Jerusalem.

This can be broken into two statements: (1) The Orthodox churches use the Julian computus, and (2) the Orthodox churches use precise astronomical computations.

These two statements contradict one another. One who sets the date using the Julian computus cannot at the same time set it using precise astronomical computations. And only occasionally do the two methods give the same result.

The statement that the eastern churches use precise astronomical computations derives from an agreement reached at a 1923 synod of eastern Orthodox bishops. Here is the report as it appeared in a standard reference work, the Explanatory Supplement to the Astronomical Ephemeris and the American Ephemeris and Nautical Almanac.

At a meeting of a Congress of the Orthodox Oriental Churches held in Constantinole in May, 1923, the Julian calendar was replaced by a modified Gregorian calendar...[in which] Easter is determined by the astronomical Moon for the meridian of Jerusalem.

This statement from the Explanatory Supplement is literally true. The Julian calendar, including its computus (also called a "paschalion") was replaced at the meeting in 1923. But it was never permanently replaced in practice anywhere else. Only the solar part of the 1923 calendar agreement has been put into effect, and even that has been controversial. Presumably the bishops, when they got home, found that the Julian computus (which was to be replaced by the lunar part of the 1923 proposal) was too old and traditional to change easily. Amost all the eastern Orthodox churches still use the old Julian paschalion. The reported exceptions are small dioceses such as Finland, which use the Gregorian computus.

However, some folk reading the report in the Explanatory Supplement with no knowledge of eastern Orthodox cultural politics appear to have naively assumed that what the eastern bishops decided had but put into effect. Hence was born the statement that the eastern churches use precise astronomical computations to set the date of their Easter, a statement that has taken on a life of its own and continues to be repeated, even though a simple check against astronomical facts could show that it is false.

In 2003, for example, the vernal full moon occurred at 16 April 19:36 Universal Time. The following Sunday was April 20th. This was Easter according to astronomical reckoning. The Gregorian Paschal Full Moon for 2003 (the 9th year of the 19-year cycle) was also April 16th, the same day, at least for some time zones, as the astronomical full moon. The Julian Paschal Full Moon that year was, however, on April 20th (Gregorian). Hence eastern Orthodox Easter that year was on the following Sunday, April 27th.

In 2006 (the 12th year of the 19-year cycle), the vernal full moon was at 13 April 16:40 Universal Time. The Gregorian Paschal Full Moon for year 12 is also April 13th. The following Sunday in 2006 was April 16th. However, the Julian Paschal Full Moon that year was not until April 17th Gregorian, so that eastern Orthodox Easter was the following Sunday, April 23rd Gregorian.

Some who try to explain these dates away might fall back on another canard, the Zonaras Proviso. They might try to claim that this proviso requires eastern Orthodox Easter to fall entirely outside the seven scriptural days of Unleavened Bread as computed in the present-day Rabbinic calendar. But a simple check will show that this year, 2011, the Hebrew calendar's week of unleavened bread runs from April 19th through April 25th. (Some in the diaspora will add an extra day, April 26th). Eastern and western Easter, however, are both on April 24th, 2011, within the Rabbinic calendar's days of Unleavened Bread. Hence the Zonaras proviso, even if it existed (in fact it does not except in the minds of canon lawyers) could not have this precise form.

Rufus Pollock et al. on the value of the public domain

Rufus Pollack has posted a draft (for it seems to be unfinished still) of his paper, co-written with Paul Stepan and Mikko Välmäkki, on the value of the public domain (PDF). The abstract can be found at

http://rufuspollock.org/2010/10/11/papers-on-the-size-and-value-of-eu-public-domain/

This is a study in a European context similar to Paul J. Heald's survey of American best-selling novels, which can be found at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=955954

Professor Heald surveyed works of fiction. Pollock surveys both books and sound recordings. For books he surveys a much larger sample than Professor Heald surveyed.

Back in 1998 I did a cursory survey of paperback song books, and found that incorporation of public domain content lowered the average price per book and the average price per song. As I surveyed these books, I quickly encountered problems of definition. What is a "pubic domain" song? What was a "public domain" book? My solution was to limit the survey to paperback books with piano-vocal arrangements. If more than 90% of the melodies in a book were public domain melodies (though the accompaniments might be copyrighted) then that book counted as "public domain" for the purposes of the survey, though obviously the book-as-a-whole and many of its components were under copyright. If more than 90% of the melodies in a book were under copyright, then that book counted as "copyrighted" for the purposes of the survey.

Pollock et al. deal with similar questions of classification. Is a book "public domain" if it is a public-domain novel but with copyrighted introduction and notes? The authors very reasonably say yes in this case as long as it contains the full PD text and the PD text is most of the book. A book that is more notes than underlying text is classified in a separate "YN" (Yes PD, but Notes) category. Altogether, the authors develop seven categories of classification of about sixty-four thousand books according to public domain content. Unsurprisingly, when a book is promoted from copyright to public domain, publishers bring to market competing editions in all price categories, from low-priced budget editions to high-priced luxury editions. This wide range of prices, as well as the value that might be added to some of the new editions by additional matter such as notes, complicates average-price computations. Limiting the comparison of prices to the low-price and middle-price editions (i.e. excluding the highest-priced editions, a technique called "right truncation") shows that publishers are offering public domain works to the public at average selling prices that are four to six percent lower than the prices at which they are offering copyrighted works. This is consistent with the results of Professor Heald's earlier, smaller study of best-selling American fiction.

The authors' survey of sound recordings draws fewer distinctions than the survey of books. A recording is considered "public domain" if the copyright in the sound recording has expired, regardless of the copyright status of the music that has been recorded. While a more sophisticated survey would also examine the importance of public domain music to the price and availability of musical works on copyrighted recordings, the authors' focus on the recording copyright alone is reasonable in light of the ongoing debate in Europe over extending the term of the phonogram copyright. Pollock et al. found that pop-music recordings were on the average roughly seven percent cheaper one year after expiration of their phonogram copyright than they had been one year before expiration.

Besides the analysis of the data, the authors transmit some anecdotal information gathered in the course of the study. According to them

one organization, involved in providing recordings for soundtracks to films and televesion, indicated that out-of-copyright recordings would be 70% cheaper than in copyright ones (£20 thousand to £6 thousand fee).

At the foot of the page (at the time of this writing) is the following, rather chilling, footnote number 11:

The organization explicitly requested to remain anonymous due to fears that an attributed statement could jeopardize his relationship with the large music labels.

This very anonymity makes it difficult to evaluate the ancecdote. What were the "recordings" the organization "provided"? What is the "copyright" referred to in the anecdote: a copyright in the music or a copyright in a recording? And so we know less than we might, apparently because the major labels have given one worker in the music business the impression that they are afraid of the truth, and will retaliate against those who speak it.

I like her already

Why Hollywood Should be very Nervous about Elena Kagan.
--Because she believes in fair use.

Update 4/22/2011: The link has moved to : http://www.hollywoodreporter.com/blogs/thr-esq/hollywood-nervous-elena-kagan-63877

Mr. Justice Stevens

Mr. Justice Stevens, in his long service on the Supreme Court, has written many opinions and dissents. But it is his dissent in Eldred v. Ashcroft that is my favorite. Stevens' starting point was that Congress's power to grant "exclusive rights" for "limited times" to "authors and inventors" for "their" writings and discoveries arises from the a single clause in the constitution, so that many of the principles that the court has developed in its patent-law jurisprudence to protect the public from excessive monopoly must apply to copyright law as well.

The court majority in that case had nothing but scorn and contempt for Stevens' dissent, expressed in Footnote 18 of the Court's opinion:

Justice Stevens' characterization of reward to the author as "a secondary consideration" of copyright law...understates the relationship between such rewards and the "Progresss of Science". As we have explained, [t]he economic philosophy behind the [Copyright [C]lause...is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventers." Mazer v. Stein, 347 U.S. 201, 219 (1954). Accordingly, "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge...The profit motive is the engine that ensures the progress of science." American Geophysical Union v. Texaco Inc. 802 F. Supp. 1, 27 (SDNY 1992), aff'd, 60 F. 3d 913 (CA2 1994). Rewarding authors for their creative labor and "promot[ing]...Progress" are thus complementary; as James Madison observed, in copyright "[t]he public good fully coincides...with the claims of individuals." The Federalist No. 43...Justice Breyer's assertion that "copyright statutes must serve public, not private ends"...similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with incentive to pursue private ones.

But as I wrote at the time, it was the majority, not the dissenters, who "understated" important aspects of copyright theory, and "missed the mark" in its analysis:

In Madison's day it might have been possible to assert that the public good "fully coincid[ed] with the claims of individuals", because the scope of copyright did not then include derivative works; did not then include public displays and performances; and only lasted for 28 years at most. Everything else Madison wrote about copyrights and patents shows that he is fully aware that copyright places burdens on the public, and that these burdens can, if they become heavy enough, destroy the coincidence between "the public good" and "the claims of individuals." Justice Stevens's and Justice Breyer's statements are entirely consistent with the cases they site. It is the court majority that "misses the mark", disregarding the clear spirit of the court's earlier copyright dicta and cynically citing Madison in a tendentious way. Justice Stevens does not "understate the relationship between [the] rewards [conferred in the copyright monopoly] and the 'Progress of Science'". It is the court majority that understates --indeed, all but ignores -- the relationship between the public domain and the "Progress of Science."

For completeness' sake, here is a link to Mr. Justice Breyer's dissent in the same case.

The new health-care law

The infant mortality rate in some of the rural counties of Oklahoma is shockingly high. If there is anything in the new law that, properly implemented, will bring these rates down, then that provision of the new law is to be welcomed.

Public Knowledge's 5-point plan for copyright reform

Public Knowledge has released a five-point plan for copyright reform that they intend to be the basis of a legislative proposal. The pillars of this plan are:

1) strengthen fair use, including reforming outrageously high statutory damages, which deter innovation and creativity;

2) reform the DMCA to permit circumvention of digital locks for lawful purposes;

3) update the limitations and exceptions to copyright protection to better conform with how digital technologies work;

4) provide recourse for people and companies who are recklessly accused of copyright infringement and who are recklessly sent improper DMCA take-down notices; and

5) streamline arcane music licensing laws to encourage new and better business models for selling music.

Before anything, though, else we need a shorter copyright term. I would consider duration to be implicit in point 3, limitations on copyright. But it is not clear that the folks at Public Knowledge think so. In this article, for example, under "What are the limits of copyright?", they mention only limitations on copyright's scope-- fair use and first sale. Duration is mentioned under the heading "why do we have copyright?" So it seems that the folks at public knowledge don't consider a shorter term of copyright to be part of their 5-point plan, even implicitly. What a disappointment.