All rights reserved.
- By John Constantine

So the Supremes are taking up an important issue in this increasingly digital age we live in.  Basically, the question is, how long can you own intellectual property copy rights.

For some background as to why this is an important question, simply query the great Oracle.  Not only is this an interesting question, but the monetary stakes are astoundingly high.  In an economy based increasingly on intellectual property, significant economic matters hang in the balance.

copyright Disney Corporation

Ever since intellectual property rights were established in the united states, congress has been extending the length of time the copyright is granted.  In 1790, copyrights lasted 14 years.  By 1998, our congress had extended the time to 70 years after the death of the author.  For corporations, the limit was extended to 95 years.

Again, we see that things have to get incredibly absurd before we deal with them at the level of the Supreme Court.

Basically the argument before the Supremes is

Does Congress has the responsibility to reasonably limit the time granted for copyright such that things actually do eventually enter the public domain?

Simply put, ideas shouldn't be private property forever.  It's in the interest of the American people that intellectual property become public domain.

The case before the Supreme Court brings up some interesting points.  The first I found interesting was the simple clarification of the commercial value public domain intellectual property has.  The Disney corporation has made many billions of dollars off of the 19th century classic, Grimms' Fairy Tales.  The interesting point is that Disney doesn't seem to think that its intellectual property should be in the public domain.

See the entertainment value in this argument?

So on the one side of the argument we have the traditional proponents of intellectual property law.  Basically, they are taking the position that the Congress is doing nothing wrong, and that they have infinite rights in the area of copyright - i.e. there are no first amendment rights with respect to free speech.

Meaning that it is their position that Congress can legislate their exclusive ownership of ideas.

On the other side of the argument are those that believe Congress can't simply keep extending the copyright time length on and on forever.  They argue that the congress has a responsibility to limit the length of the copyright granted.

They can't just make it eternal.

Which is what they're doing, of course.  The way things have been consistently done in the past points to a future of ever extending copyrights.  In order to protect existing copyrights congress will, before 2018, extend the copyright for another number of years.  Say another 20 years.

This practice has an obvious outcome.  Things that are copyrighted today will never become part of the public domain.

Basically, the problem is this.  If you have an idea, and I "steal" this idea, you still have the idea.  I cannot take the idea away from you.  You still understand and know everything about it.  What I have taken away from you is the exclusive right to that idea.  This is why the term "intellectual property" is such an oxymoron.

Property is something that has an exclusive relationship with an individual.  Ignoring for the moment the idea of sharing property, at its basis the idea of property is that when someone takes it away from me, I don't have it.  This is fundamental to our understanding of the concept.

But intellectual property is a complete figment of our imagination.  Unlike real property, which I can prevent someone from taking it easily - at least in principle - intellectual property is something trivially copied.

And copying it only makes it more valuable.

Ideas gain value when more and more people know about them.  Just ask Disney.  It's hard to imagine a better example of the tremendous commercial value to information being in the public domain.

As our economy is based more and more on services and high technology, the only real property is the intellectual property.  The ideas are the only thing that matters.  Everything else is almost automated away or trivial to produce once you know the trick.

Or take the music industry (please!).  Their sole income is based on the valve that they control which allows or disallows music to be copied.  Part of the problem people have with the music industry is that they just SIT on the music and don't make it available - even to those that want it.

I, myself, make my living through intellectual property.  It's all I produce.  So I find myself in a similar, if not leaky, boat.

But the whole intent of the copyright law, and of patent laws as well, is to make sure that the owner has a reasonable time to make money off the idea, and then it will slip into the public domain where all can benefit from it.

This is clearly what the Congress is ignoring.  What they have consistently done, thanks to the hard lobbying work done by massive media corporations, is keep extending the copyright so that no intellectual property will EVER make it into the public domain.

And that is what the case before the Supremes is all about.

If Congress is required to set reasonable limits on length of copyright and such, then their current course is never going to meet this requirement.  If not, then they are doing things in a perfectly acceptable fashion.

In my cynical viewpoint, I think the Supremes will punt on the issue and essentially side with the big money interests.  But you never know.

However, if the RIAA does win this one, I would at least hope that Congress would just give up the pretense of the "original intent" of the copyright laws and just be done with it.

Forget about the ritual of extending the copyright term another twenty years every nineteen years.  Just pass a frickin' law which makes copyrights permanent for all time, passed down to trusts and other corporate entities and be done with it.

If we're going to get fucked over, at least kiss us once and be done with it.

February 19, 2002