Re: [dvd-discuss] Constitutional amendment

[johnzu(at)ia.nsc.com]

>Tim Neu wrote:

>I.
>The new amendment "The Intellectual Property Right Amendment" (TIPRA)
>(stolen from .002's 10/17/02 posting with a different year, dropping
>the s on rights, a new name, and only the first section):
>
>   "The 'limited times' for 'exclusive right' granted to
>    authors and inventors shall not exceed 28 years."

Cool. 

>
>I only kept the first section because an amendment should be simple.
>The number and complexity of sections in .002's original post is too
>much and overly complicated to keep a large grass roots effort
>focused. 

You're absolutely right about that. I'm afraid I wrote the proposal
while in a bit of a bad mood and feeling depressed about the state
of the struggle. There are some horribles that are targeted with
each of the excess(ive) sections, but if the term is shortened, most of
these go away.  Circumvention of CSS style (post first sale/access)
TPM's becomes a real issue much faster with a 28 year term.  With
95 year terms the TPM horribles are "out of sight, out of mind".

> The only real question - is 28 years the right number?

I love 28. Historically significant, longer than current patent terms.
It creates a relevant, commercially viable public domain.  (Copies for
the price of copying and distribution, what a concept.)  It means that
works from a persons youth become available for free derivation and use
within the heart of their creative career.  Works that influence the 
nacent adult at 15 are available a 43 -- when something valuable can
still be done with it.  50 is too long for that (works from 15 available
only at retirement). This means a full generational skip of content 
recycling into the public domain.  This guarantees "rotware" and the
loss of most works to history, as who will loving restore a work that
has not personal value to them.  The corporate model has shown to be
a failure at preservation of all but the top-tier works.

Politically, 50 may easier to promote, but 28 or 30 -- 3(C) -- is 
really a far better "promote progress" number.  

Okay 3(C) has a really cool logo ;-) so maybe it's better.

>
>TIPRA?  Well, let's just concede this "Intellectual Property" name and
>put a limit on it!  Besides, who would be against a property right?

The patent holders shouldn't object as given the current political
climate patent extensions are not in the cards for the forseeable
future. The politics of patents (what makes for good press, not any 
ethical considerations) on HIV medicines and high yeild crops is a 
foreign relations and domestic "appearances" liability.  

No one is dying for lack of low cost "Sex and the City" DVD's,
so patents and copyrights do live in different moral spaces, at
least for those not cognizant of the censorship element of copyright**.
The 1A, education, competition (old works vs. new), abandon-ware,
rot-ware, and other horribles of long terms need to be clearly
outlined to the public in any campaign.  Also the contradiction of
Congressional bipolar scolding of and then rolling over to 
Hollywood interests needs to be exposed.  If Hollywood is rotting
the youth of the nation, just why are we treating them to like
political demigods?

>
>For reference, here is .002's message:
>http://cyber.law.harvard.edu/archive/dvd-discuss2/msg18464.html
>
>II.
>The organization championing the cause needs a name.  I favor the
>"'28 is Great' Property Proponents" both for the number of
>years and number of the next amendment.  I also considered "'28 is
>Great' Amendment Society".  Any other good names out there?

Copyright Restoration Society
Constitutional Copyright Club
Creative Rights Association
To Promote Progress


>
>III.
>The structure of the "'28 is Great' Property Proponents" should
>support organizing between one and two million Americans for
>petitioning their state legislatures.  A strong national office
>directing and coordinating the efforts in each state.  It would be
>the responsibility of the national office to standardize the education
>of and present a consistent message to the public.  The hierarchy
>at the state level would be focused on the following: finding and
>educating volunteers; educating the public at the local level; and
>organizing the many many petitioners (the vast majority of the one
>to two million).

Eldred and the coming "stupid-ware" restriction on use should help
stir the pot.  The biggest worry I have is that the content cartel
comes to their senses before critical mass opposing them builds.

>
>IV.
>A timeline for this effort may take years.
>
>V.
>Some dangers and obstacles in this plan.  Joshua Stratton wrote that
>.002's amendment is overkill, a weird issue, and invites sabotage.

Clearly.  I wrote the to simply stir the pot (and I threw pretty
much everything I could think of.  The terms limits is far cleaner
and returns 90% of the value of the larger messier stuff (okay dreck)
I wrote.  Well, I did stir the pot!


>As Lessig points out in his blog today,
>http://cyberlaw.stanford.edu/lessig/blog/archives/2003_01.shtml#000889,
>the cause may be derided as "anti-property" and therefore
>"anti-American".  Another consideration is could Congress bypass TIPRA
>with a treaty.

I'm not sure that congress can adopt an unconstitutional treaty.  It 
certainly will be painted as "anti-property" -- but the campaign has to
point out that culture is a commons, no the kings private forest.  The
content cartel needs to be protrayed in the the most usurous, rent-
seeking, author/artist defrauding light.  It is anti-land-grab.
We are Robin Hood, the cartel is Prince John.  (In black and white
sound bites.)

>After seeing the SCOTUS Eldred decision, a TIPRA amendment is clearly
>no longer "overkill" and even takes some of the weirdness out of the
>need for this amendment.  Sabotage is a real possibility.  A clear and
>simple worded amendment should minimize or make obvious any sabotage
>efforts.

I'm shocked by Eldred.  How the precedent for a process leading to
perpetual extension in an atmosphere of increase pressure on fair use
doesn't "change the contour" of copyright is beyond me. The logic of
the decision would apply to a 1,000 year extension as well as a 20 year
one.  This decision puts copyright up to the highest bidder and will be 
the rule unless this can be changed politically.

>
>I think the strongest opposition would come from anti-property
>sentiment.  This is where education and framing the arguments in a
>more property friendly way is necessary.

Clearly the history of Disney and others drawing from the public
domain (and stealing from the private as in Steamboat Willy v.
Steamboat Bill) needs to be highlighted.  The monopoly pricing (and the
way all modern media is owned) needs to be highlighted too.  Finally
the "property" arguement can be made to cut both ways if the public
understands that they OWN the public domain, and it is being STOLEN
from them.

>VI.
>Some possible unexpected proponents of the TIPRA amendment may be the
>patent crowd.  

Just from "solidarity" -- however the preferential treatment of the
??AA hasn't gained them any popularity with the patent crowd.

>With the strong history of Congress extending "limited
>time" for copyrights I'm sure they feel left out.  They may feel
>they can make a stronger case to "harmonize" the copyright and
>patent limited time duration since they would be so close in duration
>to each other.  If copyright is at the constitutional limit why not
>patents?  Of course, congress would still need to pass legislation and
>that would be another battle.

See above.  The HIV, patent seed stuff is going to hog-tie patents at
20 years for the forseeable future, with some foreign gov'ts considering
eminent domain claims over "life threatening" issues like HIV and new
anti- malarial drugs.  Also the generic drug lobby is very powerful 
and is using the third world health vs. patent issues to claim the moral 
high ground.  Economically they claim that if foreign gov'ts nationalize
certain patents, then US generic drug companies are at a competitive
disadvantage and their is a negative balance of trade.  

Long copyright terms have worked against the establishment of "generic"
publishers.  But then again senior citizens aren't choosing between
"prescription" DVD's and generics vs. their food budget.

>
>----
>I think this is enough for now.

Good stuff.

.002


**Actually, I'm a bit surprise that more of the evangelical Christian
community isn't more concerned about the censorship element. 90% of
all modern worship music is owned by large corporations, the 
Christian music/media scene getting popular enough that it is quite
a profitable business.  However the ownership of the "sacred" by the
"secular" (and the control that comes with it) is the flip side of the
1A establishment clause.  The church can't control the state AND VICE
VERSA.  The "life+70" control of culture means that churches pay
corporations for the right to sing songs on Sunday.  Most probably
see this as "paying unto Caesar that which is Caesar's" -- but the
irony of offering to Caesar in order to authorize one's offerings to
G*d.  (Proving that "there is nothing new under the sun" the context
of the original quote is regarding a Roman tax on attending the 
restored Temple in Jerusalem -- ironies abound.)

The second element of the silent evangelicals is in the areas of 
voluntary, personal censorship.  There are many that take personal
offense (and become angry) at hearing G*d's name used a curse.  
Many parents (evangelical and otherwise) would choose to 
shield pre-teens, tweens, and young teens from sexuality, profanity, 
or violence (some one, some another).  The copyright regime we are 
under currently censors "cleanware" derivative works****.  (Whether 
parents should or shouldn't shield children is a separate very OT subject.  

Galaxy Quest (great film) was originally shot with one use of "f*ck". You
can read it on Sigorney (sp?) Weaver's lips when facing the "choppers".
The ADR for "screw" for "f*ck" doesn't alter the meaning (except in
intensity), but lacking that my pre-teens would yet to have seen the
film.  The industry optimized it's profits in that choice, yet
much gratutious violence, nudity, and profanity abound in many
otherwise acceptable (to me, for my children, OK?).  There are many
films we only watch "edited for content" on TV. 

****Of course one could always have an "R-ware" version of a film
which upgrades(downgrades?) all minor swearing to f-word fest of 
Eddy-Murphian proportions, and takes all sexual scenes and replays
in slow-mo with digital zoom on the naughty and nice bits... (ahem)