The Sonny Bono Copyright Term Extension Act

This particular bit of cultural theft was sponsored by Sonny Bono, who died fairly soon thereafter as a result of skiing into a tree. I have no desire to make fun of Mr. Bono, but this end-run around the Constitution was quite possibly the most blatant pandering to business recently seen.

Article 1, Section 8, Clause 8 of the United States Constitution grants Congress the right

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;
The debate in Congress of the Bono act apparently contained no reference whatsoever to promoting the progress of "useful Arts". Instead, Disney worried that, should copyright to Mickey Mouse expire, they would have no recourse should somebody issue cartoons showing Mickey and Minnie having it off (that much I remember from press coverage at the time). To allow this to happen to an American icon, representative of the innocence of youth gone by, would of course be unthinkable. Undoubtedly, the fact that they would soon also lose the exclusive right to market images of Mickey and his friends, thus eliminating a pretty substantial revenue stream, had nothing to do with it.

In any event, to head off this horrifying possibility, Disney lobbied to have the term of a copyright extended by twenty years. This brought the total term of a copyright to 95 years.

I am not a lawyer, and certainly not an intellectual property lawyer. I do not claim to have all the details in this matter. Project Gutenberg gives as a rule of thumb that any copyright obtained before January 1, 1923 has expired. Thus Tarzan of the Apes is in the public domain.
Anything created from 1923 to 1977, inclusive, has a 95 year copyright. So nothing from this period will enter the public domain until at least 2019. Thus Tarzan and the Leopard Men (1935) is not in the public domain, and won't be until 2031.
Any work created after January 1, 1978 by a natural person is covered for 70 years after the death of the author.
Any work created after January 1, 1978 by a corporation is covered for 95 years. I believe this also covers anything created not only as a team effort by employees of the corporation, but also under contract as a work for hire.
This information was obtained from the Project Gutenberg web page on 17 May, 2002. I am not affiliated with the project, and I am not making a great attempt to remain current. For more information, visit their Public Domain and Copyright How-To page.

Think about this. For well over 100 years, a term of 17 years for copyright had been considered sufficient "to promote the Progress of Science and useful Arts". But during the course of the 20th century, something like eleven extensions were made. Apparently, it was felt that while Twain, Melville, Dickinson, Hawthorne, and so forth might have been willing to trade their efforts for a mere 17 years of exclusive rights, this just wasn't enough. Maybe the rate of masterpieces was decaying. More likely, publishers were tired of seeing some of their enduring bestsellers slipping into the public domain. So they hired a few politicians to make that stop.

So Why Is This So Awful?

Okay, so the current copyright laws allow the descendants of Margaret Mitchell or the Three Stooges to make a nice living off their great-grandparents' work. Other than the moral problems of "intellectual property" being exploited by people whose intellects had nothing to do with it, what's the big deal? People are allowed to leave their money to their children, why not their copyrights?

There are a couple of problems. The first is the nature of intellectual property. It isn't like physical property. If your money is stolen, not only has the thief gained, you have lost. But when someone reads your book or hears your song, you don't lose it. And neither does the next person to read or hear.

The reader or listener has, hopefully, gained. He has new knowledge or insights or at the very least some enjoyable memories. And ideally, these things become a part of what he creates and contributes.

This is the idea of "useful Arts", at least as I understand it. The arts are a contribution to society. They are of no use if they cannot be shared, and incorporated into new art. And this creates a tension. If the creator has sole use of and total control over his products, they can't be incorporated into new things. They can't be disseminated as widely, enjoyed as fully. To this extent, they do not become part of the shared popular culture.

On the other hand, there is little incentive to create something if you can't make a living doing it. Precious little writing would be done if all authors also had to work at something else to make a living. So the Founding Fathers struck a compromise, giving authors and creators a limited monopoly, long enough to extract profit from their work. Even that was subject to some restrictions. I don't know when Fair Use became law, but it's my impression that the basic idea has always been around.

Does anybody, even the morons in Congress, really believe that extending copyright to 95 years is necessary to encourage more writers, more moviemakers, more anybody? Is there any evidence that it will "promote the ... useful Arts"? No. There is nobody out there thinking, "Well, I wasn't going to write the great American novel, but now that one more generation of offspring will be able to make a living off it, I guess I will." And that's one reason why this is so awful. In fact, it is explicitly unconstitutional. Remember, there is only the one reason for granting copyright. The latest extension was not done for this reason. The only constitutionally accepted reason for passing the law was not even mentioned in the debates on the law.

The real, I-know-this-sounds-paranoid reason why this sucks.

The real reason this sucks has nothing to do with morality or even constitutionality. It has to do with the pragmatic reason that with the current trends in technology, intellectual property law is taking us to a pay-per-view world. With effectively infinite copyright protection, there may soon be literally nothing that doesn't cost something every time you read it.

Sure, that sounds extreme. And maybe it is. But it's the logical progression of current trends.

Disney recently had their tame senator, Fritz Hollings, and a few others (including, of course, Dianne Feinstein from California), introduce the Consumer Broadband and Digital Television Promotion Act (CBDTPA). This insane law would require any interactive digital device to have copy protection. Under the law as proposed, any device that was capable of making a copy of a protected digital file would be illegal. It is difficult to overstate the harm this would do. Basically, any device that allowed access to a raw bitstream would have to be illegal. Among other things, computers running Linux would suddenly be contraband.

The purpose of the law is to make sure that nobody can copy an e-book, a motion picture file, a song, anything. Ever. It would no longer be possible to loan a book to a friend (it's locked to your reader, so loaning a single book would mean loaning your entire library). The same with songs. Forget loaning your CD; it won't play. Sharing textbooks? Not possible.

And forget Fair Use. The CBDTPA says that fair use is to be protected, but I wouldn't count on it. Copying a CD to play in your car won't technically be illegal. You have that right, even if the CD is copy-protected. But the Digital Millenium Copyright Act (DMCA) already makes any tool that would allow you to exercise your rights illegal. The protection of your rights is officially considered less important than the protection of corporate profits. That's not surprising. When was the last time you gave a congressman fifty thousand dollars?

Now consider a book, out of print for 35 years. Currently, you go check it out of a library, and if you need a few pages, you copy them. If you can find a copy, you buy it from a used book store. No problem. With electronic books, there's no such thing as out of print. They don't get printed, they get downloaded. Maybe only three people a year want a copy. They'll have to pay for it.

Is that a bad thing? Maybe not. It means that costs don't have to be recouped in a single print run. That's good; in theory, books with limited appeal could be made less expensive. The Complete Guide to Songs Based on the Mathematical Formulations of Polonius, uneconomical to publish before, could become a reality.

But that's not the end that Disney and others have in mind. Consider instead the expiring e-book. Right now, if you buy a book, you own it. You can sell it, or you can keep it. You can hand it down to your children. I own books that were printed before my grandfather immigrated to this country. And I own many more that were originally written long ago, and have been reprinted.

No more. Instead, there will be expiring books. This is already true of textbooks sold on dvd at a half-dozen dental schools in America. You can't print them, you can't share them, and you don't really own them. Instead, you have a license to read them, on a single device, for a limited time. Maybe only a single reading. The license expires, and you have to renew it. And the book never comes into public domain. Effectively, no new books ever come into public domain, because currently, nothing is coming in until 2019, and if you don't think there will be yet another extension before then, you just haven't been paying attention.

The same is true of every other form of entertainment. Music, video, everything. Welcome to a pay-per-view world. You'll never again tape an episode of Buffy the Vampire Slayer for a friend. Instead, your friend will order it and download it. And not be allowed to store it. If he wants to see it a second time, he pays for it a second time. And this goes on forever.

All this sounds slightly paranoid, slightly crazy. The details are probably wrong. But make no mistake. There is no interest at Disney or the publishing houses in making your life better. There is interest only in maximizing profits. That's done by exercising complete control over content. And that's the goal.