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May 29, 2011Supreme Court Takes Up Scholars' RightsBy Marc Parry

Denver

When Lawrence Golan picks up his baton here at the University of

Denver, the musicians in his student orchestra see a genial

conductor who corrects their mistakes without raising his voice in

frustration.

Yet Mr. Golan is frustrated, not with the musicians, but with a

copyright law that does them harm. For 10 years, the music

professor has been quietly waging a legal campaign to overturn the

statute, which makes it impossibly expensive for smaller orchestras

to play certain pieces of music.

Now the case is heading to the U.S. Supreme Court. The high-stakes

copyright showdown affects far more than sheet music. The

outcome will touch a broad swath of academe for years to come,

dictating what materials scholars can use in books and courses

without jumping through legal hoops. The law Mr. Golan is trying to

overturn has also hobbled libraries' efforts to digitize and share

books, films, and music.

The conductor's fight centers on the concept of the public domain,

which scholars depend on for teaching and research. When a work

enters the public domain, anyone can quote from it, copy it, share it,

or republish it without seeking permission or paying royalties.

The dispute that led to Golan v. Holder dates to 1994, when

Congress passed a law that moved vast amounts of material from

the public domain back behind the firewall of copyright protection.

For conductors like Mr. Golan, that step limited access to canonical

20th-century Russian pieces that had been freely played for years.

"It was a shocking change," Mr. Golan says over dinner at a tacos-

and-margaritas dive near the University of Denver's mountain-

framed campus. "You used to be able to buy Prokofiev,

Shostakovich, Stravinsky. All of a sudden, on one day, you couldn't

anymore."

A Professor's Fight Over Shostakovich Heads to the Supreme C... http://chronicle.com/article/A-Professors-Fight-Over/127700/

1 of 14 8/23/12 9:41 AM

Other works once available but now restricted include books by

H.G. Wells, Virginia Woolf, and C.S. Lewis; films by Alfred

Hitchcock, Federico Fellini, and Jean Renoir; and artwork by M.C.

Escher and Pablo Picasso. The U.S. Copyright Office estimated that

the works qualifying for copyright restoration "probably number in

the millions."

Congress approved the recopyrighting, limited to foreign works, to

align U.S. policy with an international copyright treaty. But the

Golan plaintiffs—a group that includes educators, performers, and

film archivists—argue that bigger principles are at stake. Does

Congress have the constitutional right to remove works from the

public domain? And if it does, what's stopping it from plucking out

even more freely available works?

"If you can't rely on the status of something in the public domain

today—that is, if you never know whether Congress is going to act

again and yank it out—you're going to be a lot more cautious about

doing anything with these materials," says Mr. Golan's lawyer,

Anthony Falzone, executive director of the Fair Use Project and a

lecturer in law at Stanford Law School. "You really destroy the value

and the usefulness of the public domain in a profound way if the rug

can be pulled out from under you at any time."

The Radicalization of Golan

Before the rug was yanked out from under him, Mr. Golan had no

experience as an activist. He still doesn't seem like one. Outside the

orchestra pit, the conductor could pass for an off-duty businessman:

trim build, clean-cut dark hair, slacks, waist-length tan jacket. The

tenured professor has taught conducting and led the 80-student

Lamont Symphony Orchestra at this private university since 2001.

Yet he has done little to publicize his cause on campus, at least

judging from the reactions of others in the music school one recent

evening as the halls buzzed with costumed nuns rehearsing

Puccini's Suor Angelica.

"No!" said one professor after hearing that Mr. Golan's case was

going to Washington. "Are you making it up?" asked another.

Mr. Golan keeps a low profile as a plaintiff because his life is about

music, not litigation. "I would love to have my name go down in

history like Arturo Toscanini, for being the greatest conductor of all

time," he says.

But because his quest for that glory coincides with a broad shift in

the reach of copyright law, he has a better shot at going down in

history as the capitalized name atop a Supreme Court opinion


2 of 14 8/23/12 9:41 AM

studied by future generations of law students.

The son of a violinist in the Chicago Symphony Orchestra, Mr.

Golan was just starting his own professional career when Congress

passed the copyright restoration.

The change was surprising from a philosophical point of view:

Under copyright law, the Constitution grants authors a limited

monopoly over their works as an incentive to promote creativity.

Over the years, Congress has often delayed the passage of works into

the public domain by lengthening the duration of copyright terms.

But removing pieces already there was different, Mr. Golan's

lawyers argue, a radical change in what one scholar describes as the

basic "physics" of the public domain.

That may sound abstract, but the impact on Mr. Golan was direct.

When a work is in the public domain—that Puccini opera, say—an

orchestra can buy the sheet music. Symphonies typically cost about

$150. And the orchestra can keep those pages forever, preserving

the instructions that librarians laboriously pencil into scores. But

works under copyright are typically available only for rent. And the

cost is significantly higher: about $600 for one performance. With

the flip of a switch, the new law restored copyright to thousands of

pieces.

For big-city orchestras like the New York Philharmonic, that change

is like a "mosquito bite," Mr. Golan says. But Mr. Golan's university

ensemble gets only about $4,000 to rent and buy music each year.

That means it can perform some copyrighted works but must rely on

the public domain for about 80 percent of its repertoire. And

$4,000 is relatively generous. Other colleges might have only $500

to spend on music. When the Conductors Guild surveyed its 1,600

members, 70 percent of respondents said they were now priced out

of performing pieces previously in the public domain.

Teaching suffers, too. Every year, for example, University of Denver

students compete for the honor of playing a concerto, a piece in

which the orchestra accompanies a solo instrument. But when a

pianist wanted to audition with a piano concerto by Prokofiev, a

Russian composer who died in 1953, Mr. Golan was forced to tell

her no.

"It's one that any aspiring pianist needs to learn, and to have the

experience of actually playing it with orchestra is phenomenal," Mr.

Golan says. But "we just didn't have the money in the orchestra

budget to pay the rental price."


3 of 14 8/23/12 9:41 AM

The problem soon got worse. In 1998, after lobbying by

entertainment groups like the Walt Disney Company, Congress

passed another law, extending copyrights by 20 years. This

Copyright Term Extension Act—mocked by critics as the Mickey

Mouse Protection Act—meant that a work would not enter the

public domain until up to 70 years after its creator's death.

That legal one-two punch made it hard for Mr. Golan to play both

foreign and American works, like Gershwin's Rhapsody in Blue.

In response to those changes, reform-minded academics at top law

schools fought back with multiple lawsuits challenging the

constitutionality of the statutes. The conductor's tale made him an

ideal poster child for their war to protect the public domain.

Reformers suffered a defeat in 2003, when the Supreme Court

rejected an online book publisher's challenge of the 20-year

extension. In that case, Eldred v. Ashcroft, the court found the

change acceptable in part because it had not "altered the traditional

contours of copyright protection."

Think of the Golan case as "Eldred, the Sequel." Only this time the

question isn't whether Congress can delay works from entering the

public domain. It's whether removing works already there is a

"bright line" Congress can't cross.

'Fairly Horrible'

If that bright line dims, scholars and librarians will have problems.

To understand why, consider the copyright confusion faced by

Elizabeth Townsend-Gard.

Ms. Townsend-Gard is an associate professor at Tulane University

Law School. As a graduate student in the 1990s, she studied history

at the University of California at Los Angeles. Her dissertation was a

biography of Vera Brittain, a British author known for her World

War I autobiography, Testament of Youth. Ms. Townsend-Gard

mined letters, diaries, photos, and other texts for her research. But

she worried about getting permission to publish materials she

needed, because Ms. Brittain's literary executor, too, was writing a

biography of the author.

In 1996 the ground shifted under Ms. Townsend-Gard's feet. At the

outset of her research, almost all the works she needed had been in

the public domain. When she finished, because of the restoration

now under attack by Mr. Golan, almost all those works were under

copyright.

She ultimately diversified her project so that it became a


4 of 14 8/23/12 9:41 AM

comparative biography of many subjects rather than just one. But

she also grew fascinated with the copyright complexities

surrounding the daily work of historians. Ms. Townsend-Gard

ended up going to law school after finishing her Ph.D., and invented

a software tool, called the Durationator, designed to tell users the

copyright status of any work.

The market of scholars who might need that tool is large. The law at

stake in Golan alone potentially affects anyone studying works

created or published by non-U.S. authors or publishers from 1923 to

1989. Most of those materials were in the public domain before.

Now they are covered by a complicated copyright statute, says Ms.

Townsend-Gard.

"For people who work on the 20th century, it's fairly horrible," she

says.

Now pull back from the view of an individual scholar, and imagine

you are working on one of the numerous projects to make millions

of digital books available online. Libraries, archives, Google:

Copyright restoration has big consequences for their digitization

efforts. Most of those ventures will not publish the full texts of

works online unless they are clearly in the public domain in the

United States.

But when it comes to a foreign book, figuring out its copyright status

can require a mammoth investigation. That's because a work must

have been under copyright in its home country to qualify for

restoration in the United States, says Kenneth D. Crews, director of

the copyright advisory office at Columbia University Libraries. So,

for example, when Columbia considers digitizing a rare trove of

Chinese books, including many from the 1920s and 1930s of great

interest to scholars, its staff must grasp the legal nuances of a

country that has gone through a revolution—and a transformation

of copyright law—since the books were published. Or must try to,

anyway.

And if the law is unclear, the university must decide whether

digitization is worth risking a potentially expensive lawsuit should a

rights-holder turn up later.

"It's deterring digitization on anything foreign," Ms.

Townsend-Gard says, "because people can't figure it out."

The U.S. Court of Appeals for the 10th Circuit took a different view.

In a 2010 ruling backing the government, it stressed the argument

that recopyrighting foreign works that had fallen into our public


5 of 14 8/23/12 9:41 AM

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Berne Convention requires each signatory to recognize the copyright of foreign authors in the sameway as it recognizes the copyright of its own nationals. Copyright is not protected and not enforcedfor individual authors in the USA. A "law" that is not enforced is not a law, it is a fraud. I neversold,never transferred my,artist's copyrights on my works, but I struggled 16 (sixteen) years infederal courts for my copyrights,that were involuntarily transferred by SDNY to international artpublishing house. Involuntary transfer of my copyrights must be reversed, or the word "author"should be removed from the Copyright Law of the United States (par 302a, 201e). See my Petitionfor Writ of Mandamus,Supreme Court of the United States,In Re:Peker Docket No.08-8088 (whichis a reminder of the Constitution Article 1 Section 8 Clause 8 :the Copyright Clause).Alsos.Google/Groups/Elya Peker. Where there is no copyright for individual authors, there is no legalbasis to restore copyrights of foreign authors. Elya Peker May 29,2011

7 people liked this. Like

If we subtract the emotion out of techie internet proponents---all their whines and tears and pleasand pleads and ple........., if we subtract out as well the emotion from big media thief corporationswanting to charge HUGE fees for CD format replacing record formats and getting away withit--------if we dis-authorize de-mystify BOTH these whiner groups----------we are left with SHEERLAZINESS.

The web PROMISED micro-pricing, mass auction, continuous market features at little or not cost,

domain was crucial to protecting American authors' interests

abroad. Our restoration of those copyrights could drive other

countries to grant retroactive copyrights to contemporary American

works that had fallen into their public domains.

And big money is at stake. The court quoted Congressional

testimony from the mid-1990s in which a group representing

publishers, record companies, and other copyright-based industries

estimated that billions were being lost each year because foreign

countries were failing to provide copyright protections to

U.S.-originated works. The recording industry told lawmakers that

there were "vastly more U.S. works currently unprotected in foreign

markets than foreign ones here."

The government, in its Supreme Court brief, pointed out that the

copyright restorations were limited in scope. They applied to foreign

works whose creators weren't familiar with U.S. copyright

procedures, for example. Other works restored were previously

ineligible for protection.

The Supreme Court is expected to decide the case during the term

that begins in October. Mr. Golan hopes to be in Washington to

watch. Unless, that is, he has a concert to conduct.

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ElyaPeker 1 year ago

richardtaborgreene 1 year ago


6 of 14 8/23/12 9:41 AM

"The web people?"

I didn't know the Internet was run by Spidermen.


Richard, the web offered nothing your complaining about. It was and still is not a platform forcommerce. It is open and the laziness is certainly from the Media Companies who couldsimply have made any tools they wished to. But instead of trying to sell their goods on line,they instead invested all their energy into blocking transmition of work that they purchasedcopyrights. They shut their own revenue streams down and forced a war.

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And...silly me....I thought the primary mission of copyrights was to promote the progress of scienceand the useful arts.....the founding fathers must actually have meant that the primary mission ofcopyrights is to incentivize authors by letting them hold onto their works so no one can use them intheir, their children's, their grandchildren's, their great-grandchildren's, and their great-great-grandchildren's lifetimes in order to stagnate the progress of science and the useful arts. I musthave misread the U.S. Constitution.


Yes. And it was to incentivize creators to create b/c they could be reasonably assured that ifthey created something useful, they, or their duly authorized agents, could sell it withsomething like monopoly privilege for a limited amount of time. To make it freely available foranyone to copy and sell for themselves immediately was not the aim, as some would suppose.

A solution to this moving forward for those really interested in pushing out their creative workfor the enjoyment and use of others without much regard for making money from it is CreativeCommons licensing.

That corporate owners of creative products desired to extend their monopoly privilege is notparticularly surprising, given the potential longevity of a corporation (now more and moreunderstood to have the same rights as an individual). It is somewhat indicative, I think, of thecorporations inability to continue to be creative...and thus the need to rest on the laurels andmarketabilty of the creativity of the human founders now mouldering in the grave.


You touch on some interesting issues...first is the individual copyright vs the "corporate"copyright. 30 or 50 years is plenty of time for an individual to enjoy the fruits of theircreative labor while covered by copyright law. The extension of this to 70 years AFTERDEATH is just silly. At that point, it's not about the author of the materials benefitingfrom a copyright at all.

The real issue driving the never ending copyright extensions is not individual copyrightliberties but the corporate copyright. And underlying that fight is the fact that under USlaw, corporations are essentially treated as individuals. Since corporations have thepossibility (at least) of existing permanently...in this age of protecting all revenuestreams, copyrights are an easy and logical target.

The question is...when is it enough? When does copyright law move from protecting therights of the creator to stultifying creativity? Will the fight only end when copyrightsbecome permanent? Talk about chilling...most of the courses I took in college relied inpart on public domain materials...and even then course packets would run $100 andmore. If every article published is under copyright and taken out of the public domain,many of those courses could not have even been taught...and that is a serious tragedy.

EDIT: In reply to electronicmuse below, I reiterate the words public domain -- i.e. notunder current copyright OR granted permission to print usually through journals ordirectly from the authors. These were not pirated materials.

The result of the Kinko's lawsuit was that these materials were no longer printed for usbut put on reserve at the library for us to copy at our own leisure. The net result was the

Ruben Safir 1 year ago

bizprof55 1 year ago

drdwilliams 1 year ago

tdr75 1 year ago


7 of 14 8/23/12 9:41 AM

I'm sorry, but I don't follow. How is it that no one can use a work under copyright? I have noproblem going to the local bookstore and PURCHASING a copyrighted work to read, or to themusic store and PURCHASING copyrighted sheet music. The issue is two-fold; one is thequestion concerning works in the public domain being moved back into copyright, therebychanging the rules of the game; second is the costs associated with performing copyrightedmaterial, especially for profit. In the former, my suspicion is that there will possibly be somegrandfathering of PD works; failing that, in the latter case, copyright holders CAN (and oftendo) suspend fees for works used for educational purposes and not for profit. Should beinteresting to see how this plays out.


Actually, the article doesn't address this, but it's not unusual for publishers to denypermission to perform a work that is (1) under copyright, but (2) out of print. This canoccur even if the composer would like the piece performed. As a church choir director,I've encountered this situation several times.

This sounds insane, and it is, but it makes a sort of twisted sense when you consider thatcopyright law came into being to protect the publishers, not the creators.


In fact, our laws are very much juried (pun intended) to make certain that money earned inbusiness ventures passes to the descendants of the original "tycoons."

Why not the descendants of creative people? There is no constitutional right to purloin theintellectual property of another. And, was patent law in the Constitution?????!!!!

Worse, it adds confusion to even equate patent with copyright "missions," as per the framersof those respective sets of laws. Indeed, patents were brought about for the express purpose ofallowing companies to retain proprietary rights, while at the same time revealing certain"trade secrets" and/or "state of the art" openly. And this makes great sense, as it definitelyadvances "the progress of science and the useful arts," as you correctly point out.

However, there are no trade secrets, nor blueprints upon which one might build, in novels,songs, etc. and it is telling that we have separate patent and copyright laws. The intentions forpatent and copyright law are very different, and you've mixed your metaphor here.

1 person liked this. Like

The USSR signed the applicable international copyright agreement(s) in the summer of 1972. Howfrustrating to have to deal with libraries that refuse to lend through Inter-Library Loan or makecopies of works published in the 1920s and 1930s using copyright as the reason. I can understandthe unwillingness to lend the books: many books published in the USSR at the time will nowdisintegrate in one's hands. Refusal to copy is pig-headed, but like a telegraph pole, one cannotjump over it, but one an go around it. Fortunately there are British and continental libraries that arewilling to copy such books. Here the obstacle is the price.


Golan is screwed. The Supreme Court doesn't care about the rights of men. They have become fawning sycophants of the state. There is too much money pushing on the Supreme Court. They willyield toward money and power instead of standing up for the rights of citizens. Golan is screwed.

Cranky_Yankee 1 year ago

marnest 1 year ago

electronicmuse 1 year ago

Vazir_Mukhtar 1 year ago

aindrias_hiort 1 year ago

Archer Sully 1 year ago


8 of 14 8/23/12 9:41 AM


It formerly was easy: copyright ran out originally in the US after 14 years, with right of renewal foran additional 14 years. Gradually this modest time period was extended.Until rather recently, copyright was limited to 70 years. This made it easy to identify public domainworks: anything over 70 years. The Congress, under lobbying by Disney and other publishers, madea very complex rule, supposedly designed to favor heirs of authors who died young, or whose workonly became popular after many years. Many tears were shed for the plight of the author's poordescendants. Now it is plain impossible to tell whether a work is still in copyright or not.

By contrast, patents last (in the US) only for 17 years, with a possible renewal for another 17. Thereare many inventors who get virtually nothing for their patents, because they were "ahead of theirtime." Apparently, they are not as worthy of sympathy as are artists, writers, and publishingconglomerates.

The internationalization of copyright rules has made matters much worse, as countries try tocoördinate their own policies with the quite irrational standards of the Bern Convention. Now it isnot just a national problem, but an international fiasco, which means that it is apparently totallybeyond reform.

The best, and perhaps the only solution would be for the US to drop out of the Bern Convention,and go back to a reasonable, uniform term for copyright, not dependent on the lifespan of theholder or the genealogy of descendants. The public would have to understand the issue, and resistthe emotional propaganda of the publishing industry, with all the sob stories about starving writers. I very much doubt that an electorate which is unable to have their representatives effect a balancedbudget, would ever be able to attain a sensible policy for copyrights.

It is an almost fixed rule of law that regulation grows ever more complicated, and is very seldomreformed by simplification, as valuable as that might be.


In fact, Benjamin F. Miessner, an inventor (electric piano, solution to "hum" problem in earlyAC radios, and many others), fought for what he considered to be "equity" between patent andcopyright periods. He lost.


Interesting case. This outcome will impact many creative people.

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In the Lessig case, the Supreme Court said that they have no jurisdiction over copyright, which issolely determined by Congress (and does not bode well for the Golan case) . Unfortunately theauthors of the Constitution apparently did not think it possible that all members of Congress couldbe bought and convinced to keep on extending copyright. With the Supreme Court's decision, thereis nothing to prevent Congress from extending copyright to ridiculous lengths, such as 500 years -and certainly Congress by itself does not have the ability to reasonably regulate itself. And yet theConsitution guarantees the public domain - but what party is supporting the public domain?

If there was ever a convincing argument for increasing piracy, this is it.


The way I would put it is that it is time for those in higher education to engage publicly in civildisobedience when it comes to allowing these entitlements of monopoly granted tocommercial publishers by the federal government to hinder the social good we can accomplishas educators.

docbnj 1 year ago


karenlabach 1 year ago

kosboot 1 year ago

Steve Foerster 1 year ago


9 of 14 8/23/12 9:41 AM

I suggest you be careful taking this advice. The "cost" of some kinds of civil disobedience,e.g. in which I engaged in the 'sixties, was a night in jail, or possibly even a knot on thehead.

If you go up against the powerful interests who support copyright, you might wind up"owing" hundreds of thousands of dollars as the result of legal action. The precendent hascertainly been set.


Good for Golan. At least he's trying to change something instead of just complaining or even worse,paying the higher prices and doing nothing. I also think he's on to something here. Once somethingenters the public domain, it's the property of the people. Imagine that the government took aphysical piece of property given to the public by a corporation or family, and retroactively restoredthose property rights to the corporation or family. For example, the land on which manyuniversities sit. Then the property owner could charge the university to use the land. Of course,most people would be outraged. What's the difference between removing and then restoringintellectual property? The rights of the many are still subverted in favor of the rights of the few.

Of course, "due process" doesn't apply, because passing a law is a type of "due process" andCongress has the right to pass laws related to copyright in Article I, Section 8 of the Constitution.Section 9, however, prohibits them from making "ex post facto" laws-laws that retroactively changethe legal consequences (or status) of actionscommitted or relationships that existed prior to the enactment of thelaw. Taking something out of the public domain clearly does this. The 10th Amendment furtherstates "The powers not delegated to the United States by the Constitution,nor prohibited by it to the States, are reserved to the Statesrespectively, or to the people." How often the people are forgotten. Once something enters thepublic domain, isn't use of that thing a right reserved to the people? I believe this is the intentionbehind the 10th Amendment.

I think there are several sound legal arguments to be made and I look forward to following this case.


Did you say something about government taking property from families and handing it over tocorporate interests?

http://en.wikipedia.org/wiki/K...


Good point. But in "eminent domain" arguments, there needs to be some compellingpublic interest in the project for which eminent domain is exercised. I cannot see howany compelling public interest is served by exercising "eminent domain" over intellectualproperty.

But you do present a great example of case law when public interest was imaginativelyexaggerated for private benefit. It doesn't make it right, nor does it mean that the courtwon't see it differently.


There is no "eminent domain" of copyrights since copyright isn't property, butcopyright, explicitely listed under the US constitution under seperate articles.

As for the public interest in removing copyright licenses from millions of works, thepublic has a grave interest since the current US law has now criminalized andestimated 40 million citizens who have shared works, copied them on xeroxmachines, and taped them on video tape.

You can only hope that the RIAA and Movie conglamerates sue massive numbers ofpeople and finally put in motion the necessary political force to resurp copyright law

Sean Cook 1 year ago

Steve Foerster 1 year ago

Sean Cook 1 year ago



10 of 14 8/23/12 9:41 AM

prominently, Patrick Leahy and Joe Biden) are working a strategy to define and configure acommodified notion of Intellectual Property as a controlled substance, to be regulated (and rightsenforced) by the Federal Government. It's not an empty contention, as much of the language andpenalties of enabling legislation for the War on Drugs was imported, for example, into the 2008PRO-IP Act, signed by GWB in October of that year (in the middle of the financial meltdown).Meanwhile, high-level positions in the Justice Department, under Eric Holder, have been filled bylawyers who have worked prominent cases for the RIAA (Recording Industry Association ofAmerica). In "Domestic Wars Redux: Obama, Digital Prohibition and the New 'Reefer Madness," Idiscuss all of this, in context. See the following URL: http://www.ctheory.net/article...


There is an irony in extending the copyright period to protect Disney. Would Walt Disney have beenable to create the vast entertainment empire if works such as Snow White, Pinochio, Cinderella, andLittle Mermaid were not in the public domain? Disney clearly benefited by using the works of othersbut does not want others to access their work.

The Constitution authorizes copyright protection to give an incentive for creative effort. But howdoes extending the copyright on an existing work give an incentive to a dead author?

Our economic system depends on the sanctity of the contract. At the time a new work is created, theauthor or composer knows the terms and agrees to create the work. There is essentially a contractbetween the creator and the public. Going back and extending the copyright terms is essentiallyrevising the contract unilaterally. The Constitution forbids Congress from revising contracts.

But the bright side is that retroactively giving copyright protection to works in the public domainmay hold the key to resolving the U.S. debt ceiling crisis. Congress could retroactively extendcopyright protection to the U.S. Constitution. Anyone citing an article or clause would have to pay aroyalty of, say, 99 cents. It could be administered by Apple through iTunes. This site alone couldgenerate enough revenue to keep the government open for quite a while.


In the same way that our laws provide that money will pass to heirs of business tycoons, whyshould not the heir of authors and composers enjoy the same rights?

After all, aren't they just "dead tycoons," in the same way that you allude to a "dead author?"


Different situation. Indeed, the dead tycoon does not earn money after he is roomtemperature. He can pass on savings to his heirs, but so can an author, or anyone else. There is nothing stopping the artist from buying stock in the tycoon’s company; norstopping the tycoon from buying the artist’s works.The original idea of copyrights and patents was to encourage creativity which after a(relatively short) time would become generally available, increasing the wealth,prosperity, and cultural level of the society. Even a tycoon’s work is difficult to containindefinitely, because there will be imitators of his successful policies, and entrepreneurswho will originate alternative products and services. History gives good examples offurious competition, particularly in new, developing technology. The time-limit onpatents gives incentives for licensing technology, in order to maximize the value of thepatent to the holder; so even fierce competitors trade these rights.In the early days ofradio, there were hundreds of manufacturers; and there must have been several hundredautomobile brands in the United States in the early days. Both involved numerouspatents.Without a patent system, it is hard to see how developers of new drugs couldrecoup their investments. The fact that the patents have an expiration keeps thecompanies looking for new discoveries, and also usually ensures that the prices of thedrugs will fall over time.

Falling prices are a good thing, because they mean that people can get more for theirearnings. It is an obvious (but overlooked) demonstration casting doubt on Keynesiantheory, that the most progressive industries usually have sharply falling prices, whichseem not to discourage the pioneering companies in the least. The first hard-drive I hadcost $350 for 20 MB of storage. For that much money (which is now inflated!) I cantoday buy more than 4 TB of hard-drive capacity. It means that to buy that 4 TB at thefirst price-rate, I would have to spend $70,000,000 (or the equivalent of about 160houses such as the one in which I now reside)!! Each hard-drive rests on numerouspatents, some current, demonstrating that the patent system does not seem to havechoked development.

To get back to copyright: it may be that an overly long copyright validity may actually be

alland 1 year ago


docbnj 1 year ago


11 of 14 8/23/12 9:41 AM

no doubt that cheap books are a benefit to society. Surely the works of past authors arean inspiration and stimulus to those of the modern day; and one would suppose that thisstimulus would be of at least as much importance for musical works, which one wouldlike to hear or perform. Creativity thrives on competition, on the inspiration of others,and on emulation of good models.


The District Court got it right in Golan, and the 10th should be reversed. But for Article I Section 8,copyright laws would be unconstitutional. Congress dramatically altered the established contours ofcopyright law, making it ripe for courts to examine whether Congress overstepped this specificauthority to suppress speech without abridging the freedom of speech guaranteed by the FirstAmendment. In my view, this Act is not even rationally related to the only purpose for copyrightprotection set forth in the Constitution and is, therefore, unconstitutional even without the FirstAmendment. But the standard here should be an even higher level of scrutiny, particularly since theimpact is primarily to enrich for profit corporations and has no effect on the promotion of progressand useful arts. Rather than serving to encourage authors to create more, it benefits thecorporations managing the creations of the dead, and creates economic and legal barriers to livingauthors.


Stealing music, or a novel, does not constitute free speech!


It isn't stealing. Copying may be illegal, but it isn't stealing, any more than speeding ismurder. Though speeding can result in death, it is a distinct crime from murder. We'vecovered this point about copying many times, so many that it is clear people who argue inthis vein are not arguing sincerely. You are trying to prejudice your case withinflammatory rhetoric. What do you think, did that scurvy verbal trickery work? Did itconvince anyone? No. At most, it perpetuated a deliberate confusion. That's not a solidfoundation for a good argument. An essential step towards an understanding is that youquit using this tired old cheap pejorative, and admit that COPYING IS NOT STEALING.


For something to actually be stealing you need to no longer be in possession of the stolenitem. That isn't the case... That's why copyright infringement, while illegal, is only a civilmatter...


docbnj, I agree with you on the current copyright situation. Regarding patent terms, the lawchanged a while back and patent protection is now 20 years from filing with patent term extensionsrarely granted.


"But when it comes to a foreign book, figuring out its copyrightstatus can require a mammoth investigation. ....."It's deterring digitization on anything foreign,"Ms. Townsend-Gardsays, "because people can't figure it out."

copyowner 1 year ago


Brenton Chapin 1 year ago

Zach Stein 1 year ago

saluki87 1 year ago

gringo_gus 1 year ago


12 of 14 8/23/12 9:41 AM

arrogant racism ?


I agree that, to put it somewhat more politely than some others, Golan has had it. So have many ofthe rest of us. The Supremes, as currently constituted, are in business to protect the doings ofbusiness, no matter how egregious. And if it at the same time, a blow can be struck againsteducation—and particularly arts education which everyone knows to be subversive—why how muchnicer! But, on the other side, we have to acknowledge that the Supremes can also be hard to predict;sometimes they step out of character and do something right.


I need to reply to myself, that is to add something, This entire discussion could be greatlyleavened by some yeast from history. In the first half of the 18th century, the great Germanmusic theorist, Johann Mattheson, remarked that it was all right to borrow if one returned thematerial with interest; in other words, if one used material that today would be consideredsimply swiped in a new piece with some added interest. Where, dear music lovers, would (e.g.)Handel have been in today's world? At the least in jail for (justified) contempt of court.


Well, gee, we're not talking about a bunch of Handels and Bachs out there, "quoting"from a previous generation of composers, are we?

We're talking about people who think of intellectual property as "free," for no morereason than they CAN steal it with impunity online!

Also, by the way, there indeed is a great deal of "sampling" (borrowing sounds ratherthan musical themes) in the current milieu of pop music. But, the party who "quotes" hasto pay. And it has been possible to "cover" a song with a new rendition for a long time.But again, the party who "covers" has to pay! And, the fees are not onerous . . .

I feel certain that the flow of music history will continue without serious impediments ifwe enforce copyright laws!


Though speeding can result in death, it is a distinct crime frommurder. We've covered this point about copying many times, so many thatit is clear people who argue in this vein are not arguing sincerely~~~ That aboutsums it up

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We are a not-for-profit organization that was established in 1983 for the purpose of collecting,preserving and sharing written music and to promote music education. As a part of ourorganization we lend out over 250,000 individual titles, with a total of a million pieces of sheetmusic that we lend out to our members.Check us out on line at www.bagaducemusic.org Sadly we can't help Mr.Golan as we do notcarry symphonies, but I'm sure The American Symphony Orchestra League can.After a professional study done last year, we have been deemed 47% rare and hope to keep it thatway so that future generations can benefit from our collection.

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13 of 14 8/23/12 9:41 AM

a professor's fight over shostakovich heads to the supreme ... · enters the public domain,...

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