Cites & Insights: Crawford at Large
ISSN 1534-0937
Libraries · Policy · Technology · Media

Selection from Cites & Insights 7, Number 8: July 2007

©1: Term and Extent

PermaCopyright and Other Extremes

Beyond the strange permutations of DRM, DMCA, fair use and legislative attempts to push copyright law one way or the other, we sometimes see true outlying cases. Thus it is this time around, with no apologies for a half-year absence. I give you Mark Helprin of the Claremont Institute and his May 20, 2007 New York Times op-ed, “A great idea lives forever, shouldn’t its copyright?” And in an attempt to make Cites & Insights a full-service ejournal, I have the solution to Helprin’s op-ed and those who find it ridiculous: see “An immodest proposal” later in this essay. First Helprin.

Helprin grumbles about taxation in general but says that once you’ve paid your taxes, your possessions are yours in perpetuity, to do with as you please.

That is, unless you own a copyright. Were I tomorrow to write the great American novel (again?), 70 years after my death the rights to it, though taxed at inheritance, would be stripped from my children and grandchildren.

Hmm. Did you know there were specific inheritance taxes on intellectual property? I didn’t—and I don’t believe there are. So, unless I’m badly mistaken, Helprin’s got it wrong in one: Unlike real property, intellectual “property” is taxed only to the extent that it results in income. I don’t know of any Patent Tax or Annual Copyright Levy. His initial comparison of a house to a copyright is so absurdly wrong as to be laughable. But Helprin is nothing if not serious.

He denounces the Constitution for abridging his rights as a Creator. He claims the public domain is essentially a “transfer of wealth from the families of American writers to the executives and stockholders of various businesses…” He seems to think other forms of property ownership offer the protection copyright holders have. And, of course, his essay title is purely nonsense, as he knows: Ideas are not copyrightable, and he even says, “Ideas are immaterial to the question of copyright.” In the end he argues that Congress should extend the term of copyright “as far as it can throw.”

Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else? The answer is obvious, and transcends even justice. No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.

Strong stuff. Now let’s go back to the first sentence, where he speaks of paying the taxes on earnings used to build a house, sales taxes on materials, real estate taxes during your life and inheritance taxes during your death. There are also various transfer and licensing costs, but never mind.

Consider how many of those taxes are visited upon intellectual property. I count zero, especially for copyright, since there’s not even the cost of registration (that no longer being required). Here’s the deal: You pay nothing for copyright. You get absolute control over not only copying of your “creation,” but also derivative works—nobody can base a new work on your work without permission. You get a level of control rare for most real property. In return, your heirs may eventually give up some of those rights.

Do you have absolute rights over other property, to pass along and do with entirely as you please without government claim or interference? Really?

Ø    Try putting up a four-story homemade shack lined with fluorescent-orange coated aluminum on your real estate in a suburban community. Well, it’s your property, isn’t it?

Ø    Try driving your car 120 miles an hour down city streets. It’s your car, isn’t it?

Ø    OK, you can’t do that. Why not park your car and torch it—after all, it’s your property and you should be able to do with it as you wish?

Ø    Oh, and by the way, once you sell real property, you have no more rights over it. Period. But you can sell copies of copyright material and still retain control over other uses, including further copying of the copies you sold. Those are much greater rights than real property conveys.

What’s that you say? Real property rights are limited by the needs of civilized society? Just so. And so, in order to promote the progress of science and useful arts, are copyright and other intellectual property rights. They’re limited in different ways—but they also have different strengths, not incidentally including the lack of any taxation for the copyright itself.

Arguing for infinite copyright—using copied ideas and a near total misunderstanding of property

TeechDirt ( offered this reaction by Mike Masnick on May 21, 2007. Masnick notes that Helprin’s piece appeared shortly after the formation of a new “copyright alliance” pushing for even stronger copyright laws (I’ll get to that later).

A conspiracy-minded person might suggest that this is no coincidence, and that the best way to get stronger copyright and patent laws passed is to first get people arguing about ridiculously strong laws, and then get them to agree to “lesser” changes that are still much stronger than what we have today.

Masnick calls Helprin’s piece “confused” and says he’s making the mistake others make—“just because the linguistic convention is to call such things ‘intellectual property,’ it really is the same thing as property.” Actually, I don’t think Helprin’s confused at all: he wants IP to be the same as real property, albeit without the taxation and constraints of real property.

To my mind, Masnick gets into trouble when he claims that the purpose of property is “to better manage the allocation of scarce resources.” Maybe, maybe not. I’m happier with his comment on the unusual nature of copyright:

The purpose of copyright (and of patent law), then, wasn’t the same as the purpose of property law. It has nothing to do with more efficient allocation of scarce resources. Instead, it’s a government-granted incentive—a subsidy—to encourage the creation of new works. In other words, it was a case where the government believed there was a market failure. That is, they believed that without this incentive, certain intellectual works wouldn’t be created—and the tradeoff between locking up that idea and creating more content was one that was worthwhile. However, they always knew that it was a tradeoff—which is not at all true for real property. And, as an incentive, many would say it’s been plenty of incentive for many authors who have written books—including Helprin. As an author of 11 books, clearly the incentive was enough for him at the time. In effect, by arguing for extended copyright, Helprin is going back and asking the government to change the bargain it gave him and retroactively promise him more. It’s as if you could go back to your boss for the work you did in 1975 and say you now want to be paid again for it. Or, more realistically, it’s Helprin asking for welfare.

Of many comments, some noted the taxation issue. Two early comments—both anonymous—supported long or infinite copyright, one of them claiming that “scarcity of money” somehow justifies eternal copyright. One silly commenter said he was going to copy the post and print it out on flyers, selling them for $1: He was sure Masnick wouldn’t mind. This was a naïve thing to say—because Masnick responded. “Cool. Let me know how it goes…. If you can do a better job getting our content to the people who want it, more power to you.”

Without researching his work in depth, I’m guessing that Masnick favors considerably less copyright protection than I do. It’s worth noting (as he does, in a response to another comment) that, unlike me (so far, at least), he “produce[s] a ton of valuable content every day, and I get paid well for it.” He’s opposed to long copyrights “because I can make more money without them.” For my own work, I’m indifferent to long copyrights—I can’t think of anything I’ve written that will have significant commercial value 29 years after it first appears.

Lawrence Lessig and his wiki

Lessig didn’t just blog about the Helprin article—he started a page, “Against perpetual copyright,” on his wiki ( A word about that wiki: One of the few pages is “The Anti-Lessig Reader,” which is intended to be “a simple source for ‘the other side of the story.’” What a concept!

The page itself is a work in progress and you’re probably better off reading it directly. If you do, don’t miss the Discussion page, longer than the article and including a number of gems such as the following:

Dear Mr Helprin,

In light of a rumored bill before Congress to retroactively extend the limited copyright in the US to 25000 years after the death of the author (or the destruction of the last copy of the work, whichever comes last), we are investigating several potential copyright infringements in your last op-ed entitled “A Great Idea Lives Forever. Shouldn't Its Copyright?.”

Descendants of James Madison request to be compensated for any citation, partial or full, of any of his works. Descendants of Hammurabi (currently estimated at about 127 million) claim copyright on any western law text and discussion thereof, as they are all derivative works of Hammurabi’s Code of Law. Finally, there have been claims by descendants of Evander, son of the Sybil, that all Roman letters fall under their copyright, and that therefore any text using them needs to pay them a fair share of proceeds.

Preliminary calculations put the projected statutory infringement fines at 4.2 trillion dollars. This number may change as more claimants come forward. As it is unknown how much more the US Congress is going to extend copyrights, we suggest to settle sooner rather than later.


Howard Howe, Dewey, Chetham & Howe, LLP

Some commenters thought the Helprin piece must be satire (it isn’t). Others pointed out that Helprin essentially rehashes a Mark Twain essay (now in the public domain, no thanks to Twain) and that one of his best-known novels takes its title from a Shakespeare play—and the first phrase in the book appears to be taken directly from the Bible. In both cases, tight perpetual copyright would mean trouble for Helprin (and, of course, would have eliminated most of Disney’s early animated flicks).

The article-in-progress and discussion page both note that there are limits on real property—e.g., if you don’t use it and someone else does, “adverse possession” can result in that person taking it from you. Lessig (who is a lawyer) says you cannot limit the use of physical property in perpetuity: “the law recognizes that dead people shouldn’t be allowed to control the use of physical property that might be put to better use by the living.”

Lessig posted “On the Helprin reply: Wow” on May 31, 2007 on his blog. He notes the extent to which the wiki article is better than his original might have been and possible differences in emphasis. He notes that long-copyright proponents want to couch the debate in terms of “respect” for the author, claiming that “remixers” (those who explicitly base new creations on old) don’t respect the author. But, Lessig notes, Helprin barely cites anyone (failing to respect his indirect sources) even though he’s dealing with a topic that’s been discussed (and discussed and discussed…)—where Jonathan Lethem’s “The ecstasy of influence,” a Harper’s Magazine essay that discusses the usefulness and necessity of derivation in creation, has an originality similar to that of Peter Schickele works on P.D.Q. Bach albums: It’s derivative but remixed to create something new. Which brings us to…

The ecstasy of influence

Lethem’s February 2007 article is available ( as “Harper's makes articles like this available free to everyone.” It’s a long article, the kind you rarely see these days in most magazines (it prints out at 34 pages plus 14 pages of attributions). It covers far too much ground to be summarized here (and Lethem’s far too good a writer to deserve my butchery, even if much of the article is deliberately derived from other works). Just a few notes to give you a flavor…

He’s talking about influence and the extent to which nearly all creative work is derived at least partly from previous works—even when the creator isn’t aware of that influence. “Literature has always been a crucible in which familiar themes are continually recast.” (Originally in Michael Marr’s The Two Lolitas.) The line “When you live outside the law, you have to eliminate dishonesty” appears in the 1958 movie The Lineup—and there’s a pretty good chance Bob Dylan saw that film before he wrote Absolutely Sweet Marie.

Lethem notes that “originality and… appropriations are as one” might be said of all art, continuing with his search for the John Donne line (“All mankind is of one author, and is one volume; when one man dies, one chapter is not torn out of the book, but translated into a better language; and every chapter must be so translated…”), which he had heard in the movie 84, Charing Cross Road—except that it was abridged there. He wound up going from a movie to a book to a play to a website and back to a book—and the original Donne piece is primarily famous because of a later line, “never send to know for whom the bell tolls; it tolls for thee,” which Hemingway ripped off (in hardline copyright terms) for a book title. It’s a great anecdote…and Lethem cribbed the whole thing from Jonathan Rosen’s The Talmud and the Internet.

And so it goes (to quote Billy Joel’s song title, or Kurt Vonnegut, or…). The piece is chock-full of great stories, mostly not original to Lethem. I haven’t read Siva Vaidhyanathan’s Copyrights and Copywrongs, but his recounting of a 1941 discussion between Alan Lomax and Muddy Waters may inspire me to read it yet. (Waters sang “Country Blues” and said it “come to me just like that” while he was working on a car in 1938. When Lomax mentioned Robert Johnson’s “Walking Blues”—the same tune, recorded three years earlier—Waters immediately added four more somewhat contradictory accounts of the song’s origins.)

Lethem discusses the nature of current copyright and how much it is distorted from Jefferson’s original vision. He discusses “Disnial,” the hypocrisy of the Walt Disney Company in desiring eternal copyright over an empire founded so heavily on works in the public domain. He discusses the gift economy and the commons. Some of Lethem’s assertions:

Any text that has infiltrated the common mind to the extent of Gone With the Wind or Lolita or Ulysses inexorably joins the language of culture. A map-turned-to-landscape, it has moved to a place beyond enclosure or control. The authors and their heirs should consider the subsequent parodies, refractions, quotations, and revisions an honor, or at least the price of a rare success.

A corporation that has imposed an inescapable notion—Mickey Mouse, Band-Aid—on the cultural language should pay a similar price.

The primary objective of copyright is not to reward the labor of authors but “to promote the Progress of Science and useful Arts.” To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate.

Contemporary copyright, trademark, and patent law is presently corrupted. The case for perpetual copyright is a denial of the essential gift-aspect of the creative act. Arguments in its favor are as un-American as those for the repeal of the estate tax….

Any text is woven entirely with citations, references, echoes, cultural languages, which cut across it through and through in a vast stereophony. The citations that go to make up a text are anonymous, untraceable, and yet already read; they are quotations without inverted commas. The kernel, the soul—let us go further and say the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism. For substantially all ideas are secondhand, consciously and unconsciously drawn from a million outside sources, and daily used by the garnerer with a pride and satisfaction born of the superstition that he originated them; whereas there is not a rag of originality about them anywhere except the little discoloration they get from his mental and moral caliber and his temperament, and which is revealed in characteristics of phrasing. Old and new make the warp and woof of every moment. There is no thread that is not a twist of these two strands. By necessity, by proclivity, and by delight, we all quote. Neurological study has lately shown that memory, imagination, and consciousness itself is stitched, quilted, pastiched. If we cut-and-paste our selves, might we not forgive it of our artworks?

Artists and writers—and our advocates, our guilds and agents—too often subscribe to implicit claims of originality that do injury to these truths. And we too often, as hucksters and bean counters in the tiny enterprises of our selves, act to spite the gift portion of our privileged roles. People live differently who treat a portion of their wealth as a gift. If we devalue and obscure the gift-economy function of our art practices, we turn our works into nothing more than advertisements for themselves. We may console ourselves that our lust for subsidiary rights in virtual perpetuity is some heroic counter to rapacious corporate interests. But the truth is that with artists pulling on one side and corporations pulling on the other, the loser is the collective public imagination from which we were nourished in the first place, and whose existence as the ultimate repository of our offerings makes the work worth doing in the first place.

An immodest proposal

Helprin desires PermaCopyright for his original work. So do many lyricists and poets, and other creative artists. Well, why not?

Here’s a modest change in U.S. copyright law:

Ø    Any work asserted to be wholly original can be maintained under copyright indefinitely.

Ø    Any work admitted to be partially or wholly derivative is protected under copyright for 28 years (or 40 years or other plausible term).

When you create a work, you either assert that it is wholly original and get PermaCopyright, or you say nothing and get Founder’s Copyright.

Of course, the words in that first bullet need to be defined.

Ø    Wholly original: No significant part of this work can be found in any previous work. Period. If one percent of the sentences or five percent of the plot in your novel appeared previously (in one work or many—why should pastiches get more protection than straightforward copying?), if two seconds of your three-minute song is recognizable as a melody or chord sequence from other music, if a significant portion of the dialogue, scenes, plot or characterization in your movie is recognizable from other movies (or books or…) then your work is not wholly original. I’m sure we can arrive at similar “levels of unoriginality” for paintings, sculpture, nonfiction and the like. (Nonfiction’s tough: You can’t copyright facts, so you’re presumably claiming that your sentences explaining those facts are wholly original. Good luck.) Oh, and by the way, either there’s a fine for falsely claiming originality (or persecution for perjury) or, at the very least, your derivative work loses any copyright protection since it was protected under false pretenses.

Ø    Maintained under copyright: PermaCopyright requires government resources, just as communities composed of houses do. Those who desire PermaCopyright should pay for those resources—just as homeowners in communities do. Thus, a reasonable annual fee should be part of the process of maintaining indefinite copyright. After all, why should intellectual property be treated more advantageously than real property? Fail to pay the annual fee, you lose the PermaCopyright.

Seems straightforward to me. Truly original artists could get their desires: everlasting copyright. Those who create by building on the works of others would get plenty of protection to earn royalties for their partly-creative work, albeit not for absurdly long terms. Who could oppose this reasonable legislation?

Other extremes

Masnick noted the formation of a new copyright alliance—indeed, that’s the name. You’ll find the Copyright Alliance’s website at It was founded in May 2007 by “29 member organizations from the worlds of entertainment, arts, technology and sports” and claims to represent “an estimated 11 million Americans working in copyright-related industries.”

The stated principles of the alliance seem entirely desirable until you read them carefully—e.g., “To promote the progress of science and creativity, as enumerated in the U.S. Constitution, by upholding and strengthening copyright law and preventing its diminishment” (emphasis added). The membership roster is interesting: For example, in addition to MPAA as one member, we have the parent companies of studios as individual members. As far as “technology” is concerned, that’s primarily the Software & Information Industry Association, Business Software Alliance and Entertainment Software Association, all traditionally copyright hardliners (and, sigh, Microsoft). You won’t find the Consumer Electronics Association or other similar associations in this group. AAP’s there, as is RIAA; so are BMI, ASCAP, the Magazine Publishers of America, Major League Baseball, the National Association of Broadcasters and various companies and associations. I don’t see the Writers’ Guild or other associations of writers—but you can be sure the Directors’ Guild of America is represented. So far, “Our Staff” seems to be one executive director at least on the web page, although a news release mentions a PR person.

Here’s what the Copyright Alliance says of anyone who expresses doubts about extreme copyright:

Have you ever heard somebody say, “Of course, we want to see artists get paid,” and then they follow that with a phrase beginning with “but”? Generally the “but” and what follows it, implies a belief that copyright protections are not really important any more. That belief can begin to erode or even eliminate the intellectual property rights accorded to creators in the U.S. Constitution and through global treaties. The U.S. Congress in 1790—in one of its first major acts—passed the first Copyright Act. They did that because they felt it was vital to a newly created and growing country that embodied a belief in the rights of the individual. That wisdom is as true today. If anyone ever says they want to see artists get paid, remind them we already have a system that does that, and it has been doing so successfully for 217 years. It has helped make our American creative culture unique and great, and it will continue to do so.

No admission that the first copyright act offered 28 years’ protection with registration, none without. No possibility that “but” could include “not for absurdly long times past the death of the artist.” Nope. You’re 100% with CA or you’re against copyright: The simple, black-and-white world of extremists.

Is there a connection between CA and Helprin? Well, the “Documents and Research” page begins “Below are our most recently added documents and research” (emphasis added) and offers three links, the second of which is Helprin’s article. The first is “Thoughts on orphan works” by Richard Weisgrau, a photographer—and it’s an interesting piece of work ( posted June 5, 2007. Weisgrau assures us that he’s “no longer an advocate for any cause.” But his discussion of orphan works legislation begins with this sentence: “Last year, independent creators of copyright-protected works were threatened by legislation that came to be known as the Orphan Works Bill.” In my vocabulary, “threatened” is a word ripe with the smell of advocacy. Weisgrau says he’s all for “properly drafted” Orphan Works legislation—but only with the right “compromises.”

A lovely bit of selective quotation comes at the beginning of “The purpose of copyright law,” when Weisgrau quotes the Constitutional basis for copyright. In full: “to promote the progress of science and the useful arts.” Not a word about “limited time” and nowhere in the essay is there recognition that U.S. copyright was always intended to have time limits. Since he says, “Valuable IP has always been and will continue to be in demand,” I’m not convinced that’s an oversight.

So what are Weisgrau’s compromises? First, orphan works can only be used for “educational and informational uses that serve the public interest”—no advertising or promoting “products, services, ideas or concepts.” Second, an international internet registry of copyright holders with contact information—but not the works they hold. Third, an internet database of “desired orphan works”—and here’s a second trap. You want to use an orphan work? You pay a fee and post a digital copy or descriptive information. Then you wait—until some “certain waiting period” elapses and you get to use the work or until a copyright-holder contacts you and licenses the work (or refuses). Finally, an International Standard Copyright Number to eventually “reduce dependency on the orphan works database.”

The second and third items might be part of a workable Orphan Works system—but the first exclusion is so broad as to undercut the whole concept, particularly when “promoting…ideas or concepts” is included. In fact, apart from that poisonous sentence on the Orphan Works bill “threatening” creators and Weisgrau’s, um, accidental omission of the limited-time aspect of the copyright clause, this is not a particularly extreme paper.

The third link is a report by Stephen E. Siwek, “Copyright industries in the U.S. economy.” It’s a slick PDF from the International Intellectual Property Alliance on how much “copyright industries” contribute to the economy. One can always argue about secondary impact, and one can certainly argue that balanced copyright would not significantly reduce that contribution (and could increase it), but in any case it’s a supporting document clearly created before the formation of the Copyright Alliance.

CA may be worth watching. It’s fair to assume it won’t be lobbying for increased fair use or shorter copyright terms.

Three extreme items—one of them a spoof

Here are three items. One of them is a spoof. Can you tell which one?

Ø    The proposed “Intellectual Property Protection Act” would make not only copyright infringement, but attempted copyright infringement a crime, add seizure and forfeiture of property “used, or intended to be used, in any manner or any part, to commit or facilitate the commission of a violation” and clarify that registration of a work is not required for criminal prosecution of infringement.

Ø    The MPAA is lobbying for legislation to make unauthorized home theaters illegal. Any hardware manufactured in the future would contain technology notifying the MPAA of what is being shown and details of the audience. Anyone with a home theater (defined as a home with a TV larger than 29", with stereo sound and at least two comfortable chairs, couch or futon) would need to pay a $50 registration fee or face fines of up to $500,000 per movie shown. An MPAA spokesperson noted, “Ideally we expect each viewer to have their own copy of the DVD, but we realize that isn’t always feasible. The registration fee is a fair compromise.”

Ø    The RIAA is getting ready to push legislation repealing the “exemption” that allows radio stations to play recorded music without paying performance royalties. (Songwriters and publishers already receive royalties.) Congressman “Hollywood Howard” Berman will lead the fight. Mary Wilson of the Supremes says it’s unfair for radio stations not to pay, forcing older musicians to continue touring to pay their bills. “After so many years of not being compensated, it would be nice now at this late date to at least start,” the 63-year-old Wilson said from Milwaukee, where she was performing at the Potawatomi Bingo Casino.

One of those is phony. Two are real. Can you tell the difference?

Protecting creative property effectively…

There’s more than one way to push copyright way over toward one side, as Julie Hilden demonstrates in a January 29, 2007 FindLaw’s Writ essay, “Answering the multi-billion-dollar question: Important lessons for companies seeking to protect creative property effectively in the twenty-first century” (writ.lp.findlaw. com/hilden/20070108.html) Note that we’re talking companies here, not creators. It’s a breathtaking set of strategies, one that librarians should find particularly fascinating for its implications.

The First Sale Doctrine Must Die

First, I believe content companies will have to effectively modify—through federal legislation—the traditional first-sale doctrine in copyright law.

Quite a start. “Companies must at least explore means to ensure that they can reap revenue from multiple users, or even from a single user’s multiple uses of their content.” So mean ol’ Netflix won’t gain a “huge windfall.” Per-use charges “could make pricing more efficient”—and you presumably know that in economic charges “efficient” means extracting every possible dollar, “what the market will bear.” And of course it’s “fair” to the “creator”—never mind that the benefits would go almost entirely to corporations.

The only question is whether consumers will accept a model other than the first-sale model. Instead, they may continue to view the first-sale model as inherently more fair. After all, to my knowledge, it's been the only model offered (ever since the advent of phonograph recordings for sale a century ago). Moreover, and largely as a result, consumers' concept of ownership resides in physical objects—such as records, CDs, or DVDs—not in viewings or experiences.

Oddly, content is, in a way, a service in the form of a good: It is bought as an object, but then it entertains us just as a live performer might. The challenge for capturing more revenue is convincing users to see content more as a service, than a good. That perspective might then convince uses to give up their stake in the first-sale doctrine, in exchange for a fairer pricing system.

One would think this column should have been published in 1984. “Get fairer pricing: Give up actually owning a record or movie or book…” If you believe a pay-per-use system would result in lower costs for the average citizen—oh, sorry, “consumer”—there’s some lovely marshland next to my current place of work that I’d be happy to lease you. I don’t own it, but I can lease you the concept of preferred viewing rights. The “service, not good” argument could be applied to nearly any object: You could charge a fee for every item cooked on a stove (preparing meals is a service, just as in restaurants), for example.

The second idea seems plausible: “Competition with copyright infringing outlets must be low in price and immediate.” Taken on its own, it’s hard to argue with that one. So I won’t. But then there’s the third:

The Book Industry Should Transition to Paperback Originals and Also Eliminate the First-Sale Doctrine

I've only briefly mentioned the book industry, but it's of particular interest to me, as an author. I support the shift to paperback originals, for the same reason I support limited simultaneous theatrical/DVD release: Both remove artificial restraints on content distribution.

I also have come to support an end of the first-sale doctrine for books, even though it concerns me that libraries will be hurt. I would support lower prices or exemptions for libraries, but in the end, it is so much fairer to price books on a per-reader basis, that I'm persuaded the first-sale doctrine must go.

“Even though it concerns me that libraries will be hurt.” Hurt is, to be sure, not quite the right word.

Looking back through the last six or eight months of Hilden’s columns, I don’t see many that deal with copryight—although when there are such columns, she consistently uses scare quotes around the term fair use and seems satisfied that the Constitutional aim of copyright is to protect profit, which I suppose could be one reading of “promote progress.”

Kahle v. Gonzales: No Luck on Terms

In January 2007, a court of appeals dismissed Kahle v. Gonzales, an attempt to roll back copyright term extensions for works that are no longer in print or are orphaned. The court concluded that the new case made substantially the same argument as Eldred v. Ashcroft (which attempted to overturn copyright term extension in general) and saw no reason to come to a different decision.

In a January 25, 2007 post at lessig blog (, Lawrence Lessig expressed surprise in the reasoning of the opinion (although not the decision itself, given the way oral arguments had gone). He thought this case was “plainly different” from Eldred. He believes that challenging the change from “opt-in” (copyright registration) to “opt-out” (automatic protection unless you explicitly waive copyright) is substantially different from anything previously decided; the court does not. The post goes into more detail as to why the cases should have been different—and why, in the long run, the 20-year extension may be less important than the change to automatic copyright without registration.

Ultimately, this seems to be a losing battle. The courts defer to Congress on copyright term and extent; that seems unlikely to change short of Congress actually adopting eternal copyright.

The spoof…

”MPAA lobbying for home theater regulations” appeared at BBspot ( BBspot is a humor site. The other two are certainly not intended as humor—one from the draft bill itself, one from a Los Angeles Times story.

Cites & Insights: Crawford at Large, Volume 7, Number 8, Whole Issue 92, ISSN 1534-0937, a journal of libraries, policy, technology and media, is written and produced by Walt Crawford, a senior analyst at OCLC.

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