[Foundation-l] About that "sue and be damned" to the National Portrait Gallery ...

[Gregory Maxwell]

On Sun, Jul 12, 2009 at 1:54 AM, Michael Snow<wikipedia at verizon.net> wrote:
> Gregory Maxwell wrote:
>> Consider the incentive system that you create when you combine a
>> copyright system which is effectively perpetual through retroactive
>> extensions plus the ability to copyright any work in the public domain
>> by making a slavish reproduction:
>>
>> New exciting viable business plans emerge, such as:
>>
>> 1) Obtain classic works of art and slavishly digitize them.
>> 2) Destroy the works of art
>> 3) Perpetual profit!
>>
> Come now, let's not exaggerate. The profit would not be perpetual. You'd
> have to take additional steps to pull that off. In about 95 years
> (depending on the applicable copyright term), you'd need to slavishly
> copy the works of art a second time, into whatever the universal format
> of choice ends up being by then, and destroy the original copy lest it
> fall into the public domain. Also, ensure that all licenses to use that
> first copy expire at this time and require destruction of all
> outstanding versions. Then you can have everybody re-up for another round.

Well, thats what DRMed file formats are for.

But I always figured that that was the backup plan while retroactive
copyright extension was the principle tool here (for example, the EU
just recently retroactively extended copyright on music from 50 to 95
years; the US has done something like 3 retroactive extensions in the
past).

Another useful tool in this plan 'hosted content'— provide some flash
based viewer and no one ends up with a local copy.  These are backed
up by anti-circumvention laws (fortunately the US law is gracious
enough to not apply to protections applied on non-copyrighted works).

There are also database rights. You may not own the works, but if you
can assert control over aggregates it is unlikely that copies will be
made that people in the future will be able to find.

But even without DRMed files, hosted content, and database laws the
regular pace of technology may well make the old digital copies
inaccessible: I have storage media (10MB bernoulli box!) and files
from the 80s that I can no longer read— so I can only imagine what a
hundred years will bring. Not to mention social upheaval and simple
errors causing the loss of data.

It's also the case that if organizations come to depend on this income
that they'll have an easy time of preserving it in the future, which
is really the whole reason that retroactive copyright extensions
happen. Offsetting the cost of digitization is completely reasonable,
but selling away our descendants rights is not a fair payment.

Copyright is a form of continual income, it doesn't stop when the cost
of labor is defrayed. Fortunately the US doesn't allow you to
'capture' public domain works quite so easily, and yet there is no
evidence for a lack of digitization here, so at least we have proof
that it's not necessary for us to abandon the public domain in order
to have digital copies.