Forever, 20 Years at a Time


Jack Valenti, president of the Motion Picture Association of America, calls the Supreme Court's decision upholding Congress's retroactive extension of copyright terms "a victory…for consumers everywhere." Why? Because "copyright, whose aim it is to provide incentive for the creation and preservation of creative works, is in the public interest."

Even granting that this is generally true, it's hard to see how adding 20 years to the copyright term of a Mickey Mouse cartoon provides an incentive for anything other than holding onto your Disney stock. If anything, it discourages creativity by preventing people from using Mickey in new and interesting ways.

That was one of the the points raised by the plaintiffs in this case, who argued that copyright extensions for existing works do not "promote the progress of science and useful arts"–the reason given by the Framers for authorizing Congress to issue copyrights. They also argued that repeated copyright extensions violate the spirit, if not the letter, of the constitutional sitipulation that copyrights be for "limited times."

The Supreme Court didn't buy the constitutional arguments, although the justices conceded that copyright law may be out of whack as a matter of policy. It's easy to understand why Valenti is happy about the decision, but he should have the decency not to pretend that it has anything to do with "the public interest" or "consumers everywhere."

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  1. It’s so nice to know that Hollywood is making motion pictures out of the goodness of their hearts. It’s refreshing to discover that somethings aren’t about money.

  2. I’m glad that scum-ass bastard Jack Valenti has such a soft spot in his heart for the consumer. Reminds me of Thomas Friedman’s love for the “free market” (which, he says, can only exist when the visible hand of the IMF and the U.S. armed forces back it up, and “McDonnell Douglass makes the world safe for McDonald’s”). A copyright holdup artist bleeding for the consumer–statist robbery makes such interesting bedfellows! Next thing, we’ll find out Hitler was making secret donations to Hadassah.

  3. OK, so the Supreme Court has ruled that Congress CAN retroactively extend copyright protection. I guess there is nothing I can do about that. I wanted to know, however, how my representatives voted on the bill (the Copyright Term Extension Act) – there might be something I can do about that. (Not that I would cast a vote solely on something like this. I just like to keep tabs when my congressmen and congresswomen do something excessively stupid.)

    So I Googled “Who voted for the Copyright Term Extension Act” and found out that it was passed on a voice vote leaving no trail of who voted for it. Bastards!

  4. I understand that the concept of becoming rich or famous from creating new works is an incentive to create, but how can Valenti honestly argue that extending a copyright term to 70 years after the author’s death in any way encourages creativity?

    I doubt any budding poet or musician ever thought “I’d like to create a new work of art, but it just isn’t worth the trouble if my estate can only control it for 50 years after I am dead.”

  5. Richard: If labor law were rewritten to say employees had “property rights” in their jobs, the libertarian property-rights position would still be to oppose such laws. The same is true of today’s overextended IP regime, which sometimes uses the language of property rights but is in fact a tremendous regulatory restriction on my ability to do as I please with my own physical property.

  6. Well, let us all do our part to make sure that technology moots copyright restrictions with all due alacrity.

  7. I find it interesting that the original copyright law was for a period of 14 years, exactly the same as design patents while utility and plant patents were/are for 20 years.

    I could be wrong, but it seems to me there was sound reasoning in the 18th century that has since been revoked. Some vague concept like “function over form” or something.

  8. “…it discourages creativity by preventing people from using Mickey in new and interesting ways.”

    Huh? Creativity is making up your own characters, not recycling other people’s.

    At any rate, yes, my argument is with the Constitution. The government has no business “promot[ing] the Progress of Science and useful Arts” – except insofar as it does so by protecting individual rights.

  9. Steve: Creativity is making up your own characters, not recycling other people’s.

    JS: I dunno, there’s spontaneous creativity and there’s synthetic creativity, and usually art is some combination of the two.

  10. Richard: The flaw in your analogy between copyright expiry and “jacking cars” is that any property right really consists of two distinct rights: One, the right to use your property; and two, the right to exclude others from using it. When it comes to copyrights (and patents for that matter), the only one of these rights which is time-limited is the second. When a copyright which you own expires, you can still use the formerly-copyrighted work; you only lose the right to prevent others from using it.

    Now, for something like a car, the two aspects of the property right are inseparable. If someone else “jacks” your car and uses it for himself, he thereby deprives you of the use of it. In other words, you need the right to exclude in order to protect your right to use–you can’t give up one without giving up the other as well.

    However, for an intellectual work such as a (patentable) invention or a (copyrightable) book, the right to use is not dependent on the right to exclude. If I invent a new kind of widget, I can make all the widgets I want without needing to file a patent; all the patent gets me is the right to prevent others from making them (or rather, to have the State–yes, the big, bad State–prevent them for me) Likewise, if I write the next great American novel, I don’t need a copyright in order to print and sell copies of my novel (although in this case, unlike patents, I get a copyright automatically and for free–lucky me) All that the copyright buys me is the second property right–the right to exclude.

    Because of this fundamental difference between cars and books, likening the expiry of copyright to expropriation of personal property is a quite inappropriate comparison.

  11. Richard,

    Your argument is with the constitution, not us.

    “To promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    Note the phrase “limited times”.

  12. “Huh? Creativity is making up your own characters, not recycling other people’s.”

    “Huh?” is right. Very few works are 100% original. One has to wonder how Walt Disney would have fared if the Mickey Mouse Protection Act of 1998 had been law in his day.

  13. Richard,

    There’s a distinction, I hope you see, between physical property which is rivalrous non-rivalrous (I can copy and consume Metallica’s Sandman – god help me – and I haven’t interfered with your ability to consumer your copy). A property rights system is the best way of allowing us all to live peaceably in a physical world. But since IP is a question of ideas and sounds, the same arguments for property in I is don’t hold.

  14. Richard,

    A more accurate analogy would be…

    I can can salvage any Ford from the junkyard any time I want.

    With the current system, you can’t because Ford has ownership of the hypothetical car.

  15. As I said, the article by Long is rather poorly-written and -argued. Did you read the articles by Kinsella? The one on does a particularly thorough job of dissecting both of the common arguments for IP (the Lockean natural-property-rights argument and the utilitarian argument) and exposing their flaws from a libertarian perspective.

  16. “One has to wonder how Walt Disney would have fared if the Mickey Mouse Protection Act of 1998 had been law in his day.”

    So the fact that the intellectual property rights of creators may not have been properly protected in the past means we shouldn’t protect them now? I don’t think so.

    The points in Alex and DC’s posts fail to address the issue. Property belongs to the owner, not anyone else – whether anyone else can use it without interfering with his ability to do so, or not.

  17. Well, if we want to be intellectually consistent on the concept of intellectual property, then it should never expire. People will be trading the same property for all time in the future, just as they trade physical property today. As the world becomes increasingly dependent on information, this may be the direction we’re headed in.

    I’m not sure this is a good thing; it will stifle creativity. Nothing is created in a vaccuum; as was pointed out on the Reason website yesterday, Mickey Mouse was built on several existing ideas and the first cartoon even used the theme and music from an existing movie. Try doing that today without getting in a mess of legal trouble.

    It also amounts to creating millions and millions of individual monopolies – hardly consistent with the free market concept that has worked so well in the past. At the same time it makes us richer (more incentive to invent), it makes us poorer by costing us more for everything that uses some type of ‘intellectual’ property (and that includes everything these days).

    I don’t know what the answer here is but I do think the original framers of the constitution probably had it right by establishing a ‘limited right’.

  18. Jim: Suggesting that we must treat intellectual property exactly the same as physical property in order to be “intellectually consistent” about property, is akin to suggesting that we must call oranges apples in order to be intellectually consistent about fruit. There is a fundamental _natural_ difference between the two types of property–which I explained already–so it’s perfectly intellectually consistent for there to be a _moral_ difference between them as well.

  19. Of course, libertarians who happen to be published authors (e.g. Ayn Rand) would natrually skew towards favoring IP rights

  20. EMAIL:
    DATE: 01/26/2004 01:42:27
    Lies are only a problem when you believe them.

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