Ever since reading the opening briefs and amici curiae in Eldred v. Ashcroft, as well as the infuriating opposing brief and the petitioner's follow-up, I've been thinking a lot about copyrights and patents.
I find myself in overwhelming agreement with the petitioners, who hold that the CTEA is unconstitutional. At the very least, the practice of extending copyrights at the behest of wealthy copyright holders is frightening beyond belief. While I'm not particularly surprised by the corruption in this case, it still makes me ill.
It's also clear to me that the spirit of the phrase "limited Times" in the Copyright Clause is being violated by repeated term extensions. The arguments posed by the government basically boil down to "we have The Power, neener-neener", but they refuse to read any significance into that phrase in the Constitution. (The "limited Times" phrase, not the "neener-neener" phrase.)
A different question has been occupying my mind, though. Whether or not the CTEA is constitutional, one might ask the question: Is the limited Times restriction actually a good thing? Maybe the Constitution is wrong on this point. A friend of mine suggested that there are rational arguments on both sides of the issue, so since then I've been trying to see if there really are.
The philosophy established in the constitution (and upheld by later legal precedent) is that copyrights, patents, and other forms of intellectual property aren't "natural law"--they aren't fundamental to the nature of ideas. Ideas want to be free, and by their nature are free, but we willingly restrict that freedom so that the next generation of Palm Pilots will be even thinner. (Well, the Framers didn't word it that way, but that's what they meant.)
The natural freedom of information makes sense to me. As long as I keep an idea in my head, it's mine. But the moment I communicate that idea to someone else, I've given up control. If I expect that person to do nothing with the idea, then why did I share it with them in the first place? It's unnatural to assume that others won't use an idea simply because I told it to them. But that's what copyrights and patents achieve: they make it illegal for people to act on certain information.
The limited durations of copyrights and patents underscore their artificiality: after a certain self-imposed time period, the ideas return to their natural free state. Makes sense to me.
The primary counterargument I've heard is as follows: Invention is hard, and when you work hard come up with an idea, and it's your idea, it's nice to think that you could dictate how your idea is used, possibly forever. Who better to decide, after all, since it's your idea?
Well, maybe that's nice to think, but the basis of that argument seems to be ego, rather than any aspect of Common Good. The Framers got it right when they limited the duration of copyrights and patents. Pander to the ego and greed of inventors temporarily, but maintain the fundamental freedom of information by limiting the duration of that pandering.
I'm still interested to hear rational arguments on the other side, though I can't reconstruct any myself. Any takers?
Comments
Yeah, the "periodic philanthropy" strategy is (as you say) questionable, even if you make it mandatory, since you're leaving it up to the philanthropists which ideas they donate.
Proposals that allow unlimited copyright/patent terms subject to maintainence or re-registration certainly help the "unwanted thousands" of unprofitable works, but that suggests that the public domain is supposed to be only the dregs. The nice thing about limited terms (obviously) is that those rare fundamental change-the-world-inventions can't be monopolized forever. At some point, they'll be accessible to the masses--even (especially) the useful ones.
A nice thing about Copyright, though, as opposed to patents, is that you can't copyright a basic element. A melody in music, a recipe, a technique of arranging notes -- none of these are copyrightable. Patents are a different beast, naturally. This means that even if "Flight of the Bumblebee" remained forever out of the public domain, really quick up-and-down songs made of eighth-notes played manically would arise to replace it. Most of them would entirely fail to gain public acceptance, to the public's eventual good.
I suppose you could base your argument on the idea that people should always pay royalties to those whose work you stole, come to think of it.
It would mean that market forces (i.e. the copyright/patent holder) would choose how widespread the further development of any given idea was. As if, for instance, Diffie and Hellman got to determine the full future development of all forms of public key cryptography. Given the 20-year span of computer-related patents, we've kind of got a taste of this now.
The Open Source freaks (like me) don't much like it, and you'd expect a common strategy among monopolists to be licensing a patent cheap, making it very widespread, and then charging a vast amount when it's no longer dispensable to society. The guy who invented agriculture, for instance, would be able to hold the entire world hostage under this system :-)
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There are some arguments in favor of unlimited-duration intellectual property rights, but the ones I know of all hinge on some questionable assertions.
For instance: let's say we decide that various wealthy Carnegie-esque philanthropists will periodically donate intellectual property to the public, and that this will happen regularly enough to keep the public domain at least as interesting and fresh as under the proposed terms of the current term of copyright. This system also assumes we don't have unlimited duration on anything as outright stupid as patents currently granted by the US Patent office, but that's a different rant. This happens to some extent and is the same principle behind the Open Source (as opposed to Free Software) movement and their belief in a basically corporate/business foundation to open source. IBM, Sun and John Carmack are proving it's not an entirely groundless aspiration. It sits poorly with me, though.
Okay, so ignore that previous paragraph for a second. Say instead we assume unlimited duration on copyright, but there's some other condition to them -- for instance, enforcement (like trademark). This means that when an old copyright might as well have lapsed and the holder can no longer be identified or contacted, it effectively goes into the public domain. This lets Disney keep Mickey Mouse indefinitely, but it also means that many works that are ten to fifteen years old (or younger!) are already effectively in the public domain.
Another possible assumption with "unlimited duration" is to require a fee to be payed periodically to hold onto a copyright, which is basically a different formulation of the previous scheme -- as long as an idea provably has value to the holder, they remain the holder. This would be an "intellectual property tax", if you like -- a part of physical property law which is currently missing from the whole "intellectual property" idea.