January 15, 2003

Eldred, extensions, and incentives

Here's a segment of the Eldred losing majority opinion which I found especially intriguing, for the economic aspects. There's interesting logic here. It seems to be a line of reasoning with the logic that since incentives are, as a rule, useful, then any incentive, no matter how trivial the overall effect, should be treated as useful, since incentives in general are useful. That is, there's no concept of diminishing returns, in terms of balance.

15 JUSTICE BREYER urges that the economic incentives accompanying copyright term extension are too insignificant to "mov[e]" any author with a "rational economic perspective." Post, at 14; see post, at 1316. Calibrating rational economic incentives, however, like "fashion[ing] . . . new rules [in light of] new technology," Sony, 464 U. S., at 431, is a task primarily for Congress, not the courts. Congress heard testimony from a number of prominent artists; each expressed the belief that the copyright system's assurance of fair compensation for themselves and their heirs was an incentive to create. ...
[Start with discussion of this incentive]

We would not take Congress to task for crediting this evidence which, as JUSTICE BREYER acknowledges, reflects general "propositions about the value of incentives" that are "undeniably true." Post, at 14.
[LEAP to discussion of any incentive]

Congress also heard testimony from Register of Copyrights Marybeth Peters and others regarding the economic incentives created by the CTEA. According to the Register, extending the copyright for existing works "could . . . provide additional income that would finance the production and distribution of new works." House Hearings 158. "Authors would not be able to continue to create," the Register explained, "unless they earned income on their finished works.
[More discussion of any incentive]

The public benefits not only from an author's original work but also from his or her further creations. Although this truism may be illustrated in many ways, one of the best examples is Noah Webster[,] who supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary." Id., at 165.
[Now ending with incentive in general, and more in this vein]

Look at the "best example" image here, the lone author, supporting "his entire family". But even before this copyright extension, he'd have been dead for 50 years before the copyright would have expired.

It's interesting that the example of "Disney" does not appear. Instead we are treated to the examples of authors, who in fact benefit least from the extension at all (since they'd be long-dead). As opposed to corporations, which are immortal. I think this is the best example of authors being used as an excuse.


By Seth Finkelstein | posted in copyblight | on January 15, 2003 03:22 PM (Infothought permalink) | Followups
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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