[grellas]

It may sound quaint to say, but principled application of the law is vital to a free society.

Ultimately, law is about power.

Under the U.S. Constitution and the Bill of Rights, the federal government is one of limited powers, meaning (at least it theory) that the federal government cannot lawfully act beyond the scope of its enumerated powers as expressly set forth in the constitution.

So, consider how profound (again, I know it sounds quaint) is the responsibility of those elected officials to act responsibly in how they legislate about such enumerated powers.

Copyright is part of the legislative power defined in Article I of the constitution. Right there in Article I, Section 8 you can see it among the fewer than 20 items set forth for what the Congress is supposed to do: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . To borrow Money . . . To regulate Commerce . . . To establish a uniform Rule of Naturalization . . . To Coin Money . . . To provide for the punishment of Counterfeiting . . . To establish Post Offices . . . 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 . . . To constitute Tribunals inferior to the supreme Court . . . To define and punish Piracies . . . To declare War . . . To raise and support Armies . . . To provide and maintain a Navy . . . And To make Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

I elided a few of the enumerated powers but the above sets forth the great majority of them.

Thus, while it might be and often is argued that copyright protection does not actually achieve the things ascribed to it (promoting creative works, protecting artists’ rights in their creative works, etc.), the fact is that our laws are profoundly to the contrary: the idea of promoting the progress of science and useful arts via copyright protection (and patent protection) is right there among the fundamentals defining the essence of the legislative power of the federal government. And, to be listed at all among such powers is in itself profound because the states that formed the United States and ultimately ratified the constitution as a compact among them were jealous not to give any more authority to the federal government than was absolutely necessary.

That authority was granted only on the biggest of issues and was checked and balanced by and among the legislative power (Article I), the executive power (Article II), and the judicial power (Article III).

And yet there it stands: the power to promote the progress of science and useful arts, "by securing for limited Times to Authors . . . the exclusive Right to their respective Writings". Right there among the powers to print money, to declare war, to lay and collect taxes, to establish federal courts, and the like.

And that is why it was so utterly reprehensible when in 1998 the Congress took existing copyright terms that were to have run for 75 years and retroactively made them 95 years. Yes, the 1923 copyrights were to have expired in 1998 and, here we are, 20 years later, grateful to have them come into the public domain at last.

And in what sense did this retroactive copyright extension serve to promote the progress of science and useful arts? Well, in no sense at all. It imposed new rules retroactively. It provided for absurdly long lengths of copyright protection. It had no bearing at all on the idea of promoting the arts. As such, it constituted nothing more than a crude exercise of naked power utterly divorced from the principled reason for having copyright protection at all.

I believe in the value of copyright protection. I think there are excellent arguments to be made in its favor. But the cause of copyright protection was not promoted by the 1998 extension. It was significantly set back because people looking at what that Congress did are rightly revolted by the cronyism that cynically gave special favors to a privileged few and, suffering from the pain thereby inflicted on those who were needlessly burdened by completely arbitrary restrictions on being able to use works that deserved to be in the public domain, concluded that copyright protection itself is a great evil burdening society for no good purpose.

To repeat, principled application of the law is vital to a free society. What happened with copyright in 1998 was a gross departure from that important truth. Let us hope it does not happen again as the 2018 expirations are about to occur.

[gohbgl]

Besides retroactive copyright being absolutely ridiculous, there are no studies that clearly show that IP promotes science and arts.

[sirmarksalot]

There are no studies because the only data set we have is the world we live in, where all the wealthy nations have some notion of copyright.

It seems obvious that IP provides some incentive to create, although how much is completely unknown. It also seems obvious that even in a world with no legal protection, people would still want to create, though again, how much is unknowable.

[icebraining]

That's true, though it should be possible to study the effects of the Act of 1976, which extended copyright duration in the US from a maximum of 56 years to life of author + 50 years.

And it seems this was done:

"Despite the logic of the theory that increasing copyright protection will increase the number of copyrighted works, the data do not support it. Instead, our findings demonstrate that the historic long-run growth in new copyrighted works is largely a function of population"

http://vanderbiltlawreview.org/articles/2009/11/Ku-et-al.-Do...

[sirmarksalot]

That also doesn't seem surprising in the least, though some properly incentivized individuals might feign surprise. Using the same gut logic, very few people are thinking 100 years in the future when they decide to take on a project. 56 years seems long enough that a creator would be able to work without worrying about getting ripped off.

An argument could be made that traders at large holding firms would value IP more highly with a longer term, thus allocating more money, and incentivizing production, but there are so many links involved that I seriously doubt much of that could hope to make it back to the artist.

Anyway, I was just responding to the implication that a lack of objective data is enough to seriously consider abolishing copyright altogether.

[kilo_bravo_3]

My former employer, and I, would disagree.

At my former employer they started getting massive numbers of returns on a product they sold. We exchanged hundreds of the devices and when the numbers got unbearable we started diagnosing the problems. Some returns, mainly from faulty installations, were expected but hundreds was unprecedented.

They noted out-of-spec components on the boards, counterfeit components, and slight manufacturing defects.

This led to months of back-and-forth, often very heated, bickering between manufacturing, quality control, the service department, distributors, component suppliers, dealers, and the engineers who designed the product.

Eventually it was determined that cosmetically-identical boards were being manufactured by someone in a country that rhymes with Dyna and had made it into the supply chain.

The company then spent hundreds of thousands of dollars on a holographic label printer, and hundreds of thousands more on personnel, procedures, and specifications to attach in-house printed serialized holographic stickers in predetermined locations and orientations that varied based revision and board serial number.

We also completely changed how we sent out new boards, implementing an expensive process where every board was tracked from production to installation, frustrating many of our distributors.

This was a small/medium-sized privately-held company in the commercial/industrial sector. We estimated that almost $10 million was spent honoring bogus RMAs (which they continue to do), determining the source of the RMAs, and implementing a solution to reduce future RMAs.

If that $10 million had not been spent fighting someone ripping off my employer's IP, at least one and probably two new products could have been developed, considering that entire teams of people, from Management to Engineers to Technicians, were redirected to work on the RMA issue. Who knows how much money end users lost from downtime, because someone somewhere between us and the end user, decided to rip them off.

Software folks don't care. The last thing they do, both free and proprietary vendors, before releasing software is attach language like this:

THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

or this

IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MODIFIES AND/OR CONVEYS THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

So who cares if their IP is ripped off?

My former employer can't do that. People may die if our products fail. There are statutory requirements to comply with. So we charged a lot for our products and offered iron-clad, no-exceptions, on-site support.

Instead of engineering down to a price point, we engineered for maximum safety and reliability.

But Wang Da Nian somewhere in Shenzhen decided that ripping off our designs, firmware, and trademarks and using the shittiest parts possible to insure that it would operate when installed all while taking the time to make it look EXACTLY like our product was a good business decision.

[mindslight]

That hardly sounds like a success story for the current copyright/patent regime. Given that you had to resort to technical measures anyway, it sounds like the law was entirely useless to you. Meanwhile, we're all still paying the costs of it.

[tigeba]

The term 'useful arts' does not refer to creative works and is in fact an antonym for endeavors like performing or fine art. I believe any protections of this sort actually flow from the interpretation of 'authors' and 'writings'. Article I is not intended to 'promote the arts' in the way any modern person would interpret the statement.

[hutzlibu]

"And in what sense did this retroactive copyright extension serve to promote the progress of science and useful arts? "

Well it brought money to disney and they did produce art (...at least sometimes, the last Star Wars was not soo bad)

So if they would no have revoked it, all this money would have instead been spend on drugs or worse, instead of cementing the monopoly of our lovely family entertainment company.

[pbhjpbhj]

/s

Presumably.

Like, without the land grab keeping works from the public for 20 years longer does anyone suppose Disney would have done anything different?

It certainly didn't alter the behaviour of the long dead content creators.

[VikingCoder]

Your "at least in theory" is not true in practice.

The 10th Amendment states:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

And the Supreme Court has ruled that "added nothing to the [Constitution] as originally ratified".

The Commerce Clause lets the federal government get away with just about anything.

[amalcon]

The tenth amendment obviously did add nothing substantive to the Constitution. The Constitution explicitly enumerates the things the various branches of government can do. Explicitly stating that they can't do other things is no more necessary than an explicit inclusion of "No cheating" in the rules of a game.

The commerce clause thing is a separate issue. Wickard v. Filburn had nothing to do with the tenth amendment, as it is based on a (particularly broad) interpretation of one of those enumerated powers.

I am not a lawyer, this is not legal advice, you should hire a lawyer if you are somehow in a situation where this is directly relevant to you.