Monday, October 14, 2002

Andy writes:
Roger, John and Liza all reject the logical similarity between the limited times of the Rule Against Perpetuities (RAP) and copyright duration. That analogy would have been useful in rebutting the claim that any fixed duration is limited, and could have given Breyer a basis for striking the 1998 Act without striking the 1976 Act.

Roger says "Why should shortening a copyright cause any more chaos than extending a copyright?" The answer is because the former disrupts millions of contracts and settled expectations, while the latter does not.

John says a copyright "could be 500 years or even perpetual without violating the RAP." A 500 year copyright or even a life-plus-70-years copyright does violate the principle underlying the RAP, which has been my point. The reason is because it frustrates alienability in the later years, as a practical matter, the same problem that the RAP addresses in common law. We mentioned this point obliquely in our brief, describing how difficult it is to bargain with heirs of a "life plus 70 years" copyright near the end of that long term.

Neither Roger nor John give any yardstick for ascertaining the "limited times" of copyright. RAP, applicable at the drafting of the Constitution, gives this context.

Liza says "The Rule Against Perpetuities has no bearing on the present property interest created by copyright."

I'm drawing an analogy, not applying RAP directly to copyright.

We all missed the rebuttal to Congress' argument that any fixed time, even 500 years, is still "limited" under the Copyright Clause. The rebuttal is that "limited" should be comparable to the limited right to render property inalienable, typically no more than life plus 50 years. The reason for these limits on property is identical: preserving alienability and use by others are necessary to efficiency and progress.

It is not true that copyright shortening is more disruptive than copyright extension. The disruption is the same either way. When the copyright on Gone With The Wind was about to expire, the copyright holders made decisions based on that expiration, such as licensing sequels. Others invested in unlicensed sequels and parodies, to be released after expiration. Copyright extension disrupted all of those contracts and expectations.

It is annoying that Breyer would base his reasoning on the hypothesis that copyright shortening would be chaotic. There is no evidence on the record of shortening causing any disruptions. If he were honest, he'd want to remand for some fact-finding on the issue. But that won't happen. Maybe we should have explicitly addressed the argument.

The RAP argument might have been worth a parenthetical remark, but that's all.

Liza writes:
Andy, I don't understand yoiur argument about alienability at all. A long-term copyright is alienable the entire time. While the market for selling it may dwindle in the later years (because the royalties presumably dwindle and will be cut off at the end of the term), there is certainly a right to sell or assign it.

A lease can be for 99 years or 999 years without violating the Rule against Perpetuities. The Rule applies only to unvested future interests. A 95-year copyright is vested from day one.

Liza is not completely correct. Some of the rights are not alienable. Under 17 USC 106A, authors have rights to attribution and integrity that cannot be alienated. Furthermore, under 17 USC 203, even if the author has sold all his rights, he can still recover most of them after 35 years.

Andy writes:
Roger's examples of the inalienability of copyright are fascinating. They do constitute contingent future interests, the kind the RAP was worried about. But that wasn't what I was talking about.

Property becomes inalienable when the transaction costs for sale or licensing exceed the value. For copyright, this occurs as the number of owners increase. After the life of the creator, inalienability of copyright increases. By 60 years after life, inalienability dominates.

Liza wrote, "A lease can be for 99 years or 999 years without violating the Rule against Perpetuities."
Yes, because a 999 year lease does not render the property inalienable. A 999 year copyright would.

I'm still curious if Roger, Liza or John feel a 500 year copyright would violate "limited Times," and if so, why? Alienability and RAP provide a reason.

I tossed Human Events right in the garbage this week. It's lost its way. I wouldn't recommend it anymore. What finally pushed me over the edge is its bashing of Senator Bob Smith of NH on p. 2.

What bashing? It said that some voters wanted to write in Smith, but that Smith was supporting Sununu, the primary winner.

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