Last week, the House Judiciary Committee held yet another copyright hearing, this one on Moral Rights, Termination Rights, Resale Royalty, and Copyright Term
. We've discussed these issues at different times, and the hearing itself didn't break any major ground on anything, really. The artist resale right
issue is nothing but a blatant money grab by successful artists, demanding to get paid any time one of their works gets resold. It shafts younger, up-and-coming artists to the benefit of the few, super-successful artists.
However, the tidbit that caught my attention was the copyright term issue. As you know, some are expecting there to be a fight in the near future to extend copyrights yet again. Thanks to repeated copyright extension, brought to you by relentless lobbying from Disney and others, the US hasn't had a previously copyrighted work fall into the public domain in ages. However, there actually has been some inkling that maybe, just maybe, Hollywood had realized this wasn't a fight worth taking on. In fact, we were pleasantly surprised when the head of the Copyright Office, Maria Pallante, presented her (mixed bag) plan for copyright reform, that it actually included a reduction in copyright terms
rather than an increase.
And yet... two of the panelists last week laid out arguments for why the currently insane levels of copyright terms are perfectly reasonable. Of course, to do so, both had to totally misrepresent reality, often to levels that one might call disingenuous. Of course, the two individuals who made these arguments have appeared in stories on Techdirt before, so it really wasn't a huge surprise. First up, was Rick Carnes
, the head of the Songwriters Guild of America. Carnes is from the old school world where internet hatred is a thing of pride. He seems to think that the internet destroyed
songwriting and that no one could possibly write songs without strong copyrights
. Carnes also got some attention for demanding extra payment
for songwriters when Apple increased iTunes previews from 30 seconds to 90 seconds. That's the kind of person we're dealing with here.
His filing on copyright terms was so ridiculous
that the Association of Research Libraries had to step in and correct all the "myths"
he stated. Here's a little secret: when unprompted librarians
step in to tell you you're totally wrong, you're not going to look very good. The ARL notes that Carnes is simply wrong in saying that the US's copyright term lengths "represent the international standard." They don't. As the ARL notes:
The copyright term in the United States extends well beyond the Berne Convention’s standard and beyond the term of protection in the majority of countries. Many countries’ copyright terms are set by the international agreements to which they are bound. The Berne Convention sets the minimum copyright term as the life of the author plus fifty years. The current term of protection in the United States is set at a period of the life of the author plus an additional seventy years. For corporate works or “works for hire,” the period of protection is set at ninety-five years. These terms far exceed what is required by international law.
As ARL further notes, it's the US that is actually out of step with "international standards":
The vast majority of countries use the Berne standard of life plus fifty years; there are almost twice as many countries with a period of protection shorter than the current term in the United States than there are countries with a period of life plus seventy years or greater
Carnes also totally ignores (as mentioned above) that the Copyright Office boss has, herself, called for shorter terms, instead saying that the Copyright Office believes the current term is proper. And finally, Carnes totally misrepresents the Supreme Court's ruling in the Eldred v. Ashcroft
case to mean that the Supreme Court is fine with the current length of copyright. But, as anyone who knows anything about the decision realizes, that's not
what the case was actually decided on. Instead, SCOTUS merely said that Congress has the authority to determine the appropriate term, and the Court wasn't going to overrule Congress. As the ARL explains to flunking student Carnes:
The Supreme Court never addressed the question of whether a period of protection of life plus seventy years was appropriate. The Court only upheld the power of Congress to set the term and extend the term retroactively. The majority opinion in Eldred, while upholding the Copyright Term Extension Act, never addressed the propriety or benefits of the extension itself. Instead, the court addressed “the authority the Constitution assigns to Congress to prescribe the duration of copyrights.” As Justice Stevens’ dissent further points out, the question of “whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights.”
Perhaps even worse than Carnes' filing, however, is that of Tom Sydnor, who currently hangs his hat at the American Enterprise Institute (AEI). Sydnor is sort of a joke in the copyright world. Once responsible for whatever ridiculous expansion of copyright policy Senator Orin Hatch was pushing out, since leaving his job as a Congressional staffer, Sydnor has bumped around making increasingly ridiculous arguments for stronger and stronger copyright -- while occasionally stooping to take Larry Lessig quotes totally out of context
as part of a smear campaign against him. Some of Sydnor's previous hits include claiming that universities who don't turn students over to the RIAA are helping terrorists and pedophiles
, that the RIAA getting a jury to award it $1.92 million from Jammie Thomas for sharing 24 songs was a perfectly reasonable outcome
and that France's (totally failed) Hadopi policy of kicking file sharers offline represented "consumer relief."
So I'm already pre-conditioned to expect arguments that are reality-challenged from Sydnor, and he does not disappoint. His challenge was to try to take the life plus 70
term of today's copyright, and argue that it's completely consistent
with the Founding Father's vision, which had copyright set at 14 years, plus a renewal for another 14 years. And rather than just admit this is ridiculous, Sydnor gives it the old Sydnor try and basically makes up a bunch of stuff. First, he states this, which has no basis in reality:
The Framers concluded that copyright term should last during the lifetime of a work’s author,
and for a (potentially short) post-mortem-author period in which an author’s copyrights could
support his or her spouse and children.
They did no such thing. If they wanted copyright terms to last the lifetime, they had every opportunity to make it so. They did not. The founders were well aware that the initial term of copyright quite frequently resulted in works going into the public domain during the author's lifetime -- and they were actually quite okay with that.
the Framers’ principle of providing at least life-of-the-author copyright protection repeatedly
required term to increase. Over time, authors and others simply began living longer than they tended to
in 1790. For example, since 1790, the average human lifespan has increased by about 100% – from
about 40 years to about 80 years. The Framers’ premise of life-of-the-author copyright term then
required increases in copyright term.
So, we've already established that the basis of this point is simply incorrect, but even so, Sydnor is now building an incorrect argument on top of an incorrect argument. The increase in life-expectancy is true, but much of that came from better medical care concerning births and baby care. In other words, if you made it through the early years, you were expected to live much older than 40 years old. And I don't think that the founders were setting the length of copyright terms to encourage infants to write books. By ignoring infant mortality and child deaths, Sydnor is blatantly misleading people to pretend that the life expectancy of authors
doubled. It did not.
In the US, legislative calculations of copyright term have always been driven by estimates of how long human authors are likely to live. Human life spans change gradually, but laws that calculate copyright terms by estimating human life spans do not – and that is another reason
why changes in copyright term have been applied retroactively, to then-existing works.
Again, that's clearly bogus. The increase in the lifespan of authors
has been tiny. Some have basically argued that once you account for infant mortality, there's been very little change
in life expectancy over the last few centuries. And yet, copyright terms have gone from a maximum
of 28 years to what's now likely to be more like 150 years. I don't care how you calculate life expectancy (even if you include infant mortality rates), things have not changed that much.
Either way, these kinds of blatantly dishonest arguments are likely to become increasingly common as we approach the next round of fights concerning copyright terms. Don't let them get away with it.