— michael heraghty

I’d be willing to do the work for the Constitutional Convention option in *my* state, New York.
Although at this point the state of NY law is so much more progressive than federal law that I’ve been toying with starting a secession movement. Of course, the so-called ‘federalists’ on the US Supreme Court routinely declare that federal law overrides state law when it’s an issue where the *liberals* want state law to be valid…

We still need a narrowly targeted civil disobedience movement, focused narrowly on publishing long-out-of-print “copyrighted” works and forcing them to sue us every. single. time. It will be tricky: the organization must not do any of the publication itself; that must be done by individuals who are willing to take the chance of getting sued.

Every suit would be a public relations fiasco for the plaintiffs, provided every individual publishing was well-coached on what to say, namely something like this: “I want to share my favorite 90-year-old work with the public. The plaintiffs won’t even publish it, they just want to prevent people from reading it. I have nothing against copyrights, except when they mean that nobody can read my favorite, harmless, 90-year-old books. If the copyright owner published it, I would be happy to stop doing so.”
The purpose of the organization would be careful design of exactly how to get the message across.

This is specifically what I mean by civil disobedience. I want to focus it solely on the issue of unavailable works. This would, in a way, form a counterpush to the legal campaign for the Eldred Act or a similar Use-It-Or-Lose-It act, since all of the protesters’ activities would become legal if the appropriate legislation was passed.

The time is really opportune for a similar situation now, headed by the dems. They are desperate to regain seats, they are lacking a clear agenda, and they are in this situation at a time when voters are wondering how much of their liberty will be lost to corporations or in the name of national security.

All of this, naturally, strays from the issue at hand. But the fact of the matter is that nobody will campaign on reforming copyright law because the masses do not perceive this as a big enough issue; this is one of the ansillary issues that people will sacrafice for the sake of voting for well rounded candidates. I do not mean to trivialize it in any way, this is simply the reality of how the masses perceive issues such as this. And in the end, whether it is a limit placed on congress’ ability to extend copyrights, or a taxation system, or a lottery on which items remain under copyright, it’s still copyright reform. It’s a “for it” or “against it” item on a politicians resume as far as the average voter is concerned.

So i’ll stop spamming now, with this closing advice: look at the 2004 elections as an opportunity and the time leading up to that as positioning time. Putting a bill in front of the current congress probably wont yield very positive results. Providing a piece for a larger puzzle may be the best investment of time.

I would be very interested to see a loose network of people that believe it is worthwhile and can be done, to begin to discuss more seriously the question of how. This could be done in the context of a broad based campaign agreeing on a political consensus of issues, going out and attempting to draft like-minded candidates with a genuine shot of winning (like Lessig). Honestly I know such things are begining to happen regardless of those who dont believe in the likelyhood of success (try thinking back to the 94 republican revolution – groundswells arent that uncommon – they just take building of infrastructure to make them happen.. much like large multiyear tech projects). Sure it was a bit foward, in a tongue in cheek sort of way, for me to post about it here… but I figured it was worth a little poke to see what it stirs up. I just think its time we start putting ourselves where our mouths are and fight directly for what matters to us. Like Glenn Reynolds is fond of saying: A pack, not a herd.

Besides, i wonder if a professor would make a good politician; politics can be an uncomfortable place for the honest.

Absent a circuit split or a public groundswell, the Court doesn’t normally take up a case just to say they agree with the decision below. Therefore, I’d guess that at least two more Justices thought initially that they might reverse. I wonder who the two could’ve been?

The easier solution, and the one that is more likely to work, is to get another law passed. Call it the Lessig law, get Congressman Honda (whom I believe to be Professor Lessig�s own representative) to sponsor it, get big media companies with a lot to gain by it (say, the NY times) behind it financially. And some dark night, when no one is looking, sneak it onto a defense allocation bill…

This is easier than any other suggestion I�ve read, and it has a much higher chance of winning…

To promote the progress of the sciences, intellectual property should be available for access and review at all times. I have absolutely no problem with extending the copyright term so long as they continue to publish the work so that I can, if I so chose, go puchase or rent a copy. However, when the laws are used to “bury” some form intellectual property, I do have a problem with the situation.

Disney provides perfect examples for both situations. In the former category, I include the films of Mickey Mouse, because those are available for purchase or rental pretty much at my whim. The the latter category, one film stands out – the Song of the South.

No one would blame Disney for wanting to avoid the results of re-releasing that film to the theaters, or releasing it on DVD. As a pure business decision, I, myself, would try to quietly bury that film. However, from the perspective of the powers that the Constitution provides to Congress, there is no provision that says that Congres can make a law that allows a business to try to bury the past. Yet that is exactly what the current Copyright law allows – any company in the same situation as Disney (owning politically sensitive intellectual property that would be convenient if everyone just forgot that existed) can bury that intellectual property.

I wonder if the Court could be convinced to set limits on the Copyright laws that would take the form of “use it or lose it” for intellectual property.

That thought can be carried one steo further – have Congress alter the Copyright laws to include a “use it or lose it” clause. At the very least, the term Intellectual Property implies that there is some kind of economic value – and this value can be taxed. Intellectual property that is unavailable for public consumption is tax revenue that is being denied to all levels of government (in the form of sales and income tax), and with the current economic climate, we might be able to do something with this.

R. Eric Billings

Kentucky