Patrick,

When you say "Creators have upon creation of their works the right to dictate how their work will be used" it is only true as been put into copyright law through lobbying of the various rights organizations. What one Congress can implement, another can take away. If tomorrow Congress decided to constrict copyright limits to 1 year instead of life plus 50 it has every right to do so.

Moreover, all property is subject to the input of the community (public) voice. Have you not heard of zoning laws? That is why you as the owner of a plot of land cannot erect a manufacturing plant in a residential zone.

Brian, no offense, but you are misreading history and the Constitution. Here's the Progress Clause, Article 1, Section 8, Clause 8: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” As it did with other rights, the Founding Fathers recognized here the preexisting "exclusive right" of creators over their works, and empowered Congress to "secur[e]" those rights. The only limits stipulated in the Constitution involve time; in other words, copyright would be a full right, but not a permanent one.

You are absolutely right that all property, when found in a nation state, can find restrictions put on it. John Locke, a favorite of Jefferson and Madison, went so far as to say that property rights were invoilate. I am sympathetic to his point of view. But being a utilitarian society, we have not embraced that form of absolute thinking with property or intellectual rights. Still, policymakers should always ask about the balance, for any restrictions on property rights is in fact a government taking of those rights, usually without compensation. So Congress should ask, when Boucher's bill is introduced, is the taking from the creative community worth providing consumers with something that is already arriving in the market?

Patrick,

When I was referring to lobbying, I meant most of the changes in copyright law since the 20th century have been at the behest of the rights organizations, not how the law was incorporated into the Constitution. Also, copyright law doesn't just stipulate the time factor of the rights holder, but goes into arcane decisions such as how big a tv a bar can have without abridging the "rights" of the copyright holder.

Patrick Ross, the noted wikipedia contributer, misquotes the Constitution by omitting the part that is directly relevant to Brian's point.

Section 8 is, in fact written as one sentence which enumerates the powers of the Congress. The clause 8 is thus part of a sentence which reads (with the other intervening clauses omitted for clarity:

"The Congress shall have Power:

....To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

--And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

So the Congress was granted the power (not the duty) to make laws which could secure to Authors and Inventors exclusive rights.

Two points that PFF continues to ignore:

1. These exclusive rights are in fact government granted monopolies (of limited time), and they are in fact special abridgements of the First Amemndment. There was nothing "pre-existing" in this right, but it was entirely created by the government.

2. The Congress has no duty to enact such laws by the Constitution. They do have the Powers to enact laws to grant such monopolies, if it is their wont. It is within their power to repeal all such laws.

What PFF fails to realize, (and here they are doing very much a diservice to their corporate pay masters) is that the very unreasonable "IP" laws are causing the backlash against IP laws in general. PFF would be much smarter to push for reasonable copyright laws (say 14 years, renewable once) then to push for the IP maximalization, which could very well lead to their being no IP laws in certain jurisdictions.

Such evaporation of IP laws couuld very well be a part of a populist regime, and if you don't think a populist regime could happen in USA, I have two words for you: Ross Perot.

"Inclined to use the power of the federal government to mandate terms he would like to see in the digital content industry instead of letting consumers demand through the market what they would like to see."

Doesn't the initial passage of the DMCA fit this description at least as well as Boucher's legislation? After all, wasn't the DMCA itself a government attempt to mandate the terms on which consumers obtained copyrighted content?

"What PFF fails to realize, (and here they are doing very much a diservice to their corporate pay masters) is that the very unreasonable 'IP' laws are causing the backlash against IP laws in general. PFF would be much smarter to push for reasonable copyright laws (say 14 years, renewable once) ..."

With all respect, I find this assessment of the "backlash" to be dubious. To my reading, neither the scholarly antagonism toward IP (the Lessig copyleft) nor the grumbling of the teenage Digg hordes is inherently based in irritation that new works won't be in the public domain 28 years from now.

Certainly in the latter case -- the "populist" backlash -- the whole thing stems from cockeyed notions that because we now have tools that CAN copy things, we SHOULD be free to copy. (And even that iteration of the stance is being generous to those who simply want free stuff.) It's not much more complicated than that.

A lot of the recent arguments that have sprung up on the anti-IP side are really just post-hoc rhetoric advanced in the service of that underlying stance. "Copyright duration is too long now" is one of the most glaring.

That position may well be right on its own merits, and is worthy of vigorous debate, but it is certainly not the spark of the copyright "backlash."

***Doesn't the initial passage of the DMCA fit this description at least as well as Boucher's legislation? After all, wasn't the DMCA itself a government attempt to mandate the terms on which consumers obtained copyrighted content?***

Tim, the initial passage of the DMCA was a way for Congress to enable online business models by helping creators deter copying and unauthorized use. Thus, the goals of the DMCA would not have been resolved merely by market dynamics, and creators would not have been able to tap the INternet to the extent they currently are. On the other hand, what Boucher is trying to achieve, enabling more free use of information, can arise from market mechanisms- by content creators selectively waiving their privileges under copyright policy, by leverage of dual licensing and creative commons type licensing.

***the "populist" backlash -- the whole thing stems from cockeyed notions that because we now have tools that CAN copy things, we SHOULD be free to copy.***

I agree entirely with Tom's point.

"With all respect, I find this assessment of the "backlash" to be dubious. To my reading, neither the scholarly antagonism toward IP (the Lessig copyleft) nor the grumbling of the teenage Digg hordes is inherently based in irritation that new works won't be in the public domain 28 years from now."

No. If the copyright term were 28 years, already all of Jimi Hendrix, the Doors, and the Beatles would be public domain. The fact that these works would be available would function as steam control...

Your assertion was that copyright durations are "CAUSING the backlash against IP laws in general." That is what I was responding to. Your assertion was not that shortened copyright durations might, perhaps, theoretically alleviate the backlash.

At any rate, I've been in the trenches of these online debates for years, going back to the very early days of the Napster program. I watched the evolution of the hoi polloi arguments right before my eyes:

1. "Man, they want to keep me from getting this music, this sucks."

2. "Well, wait a minute -- technically, you could say we're only SHARING. Isn't that like what my buddies and I do with our CDs? This sucks."

3. "What is 'the RIAA'? This sucks."

4. "What is 'copyright'? This sucks."

5. "Man, they don't understand the Internet. How is Napster any different from the public library? They don't get shut down for copyright stuff. This sucks."

6. "The record labels want to keep me from getting MP3s. Those guys are gazillionaires already. This sucks."

7. "This will only help their record sales. This sucks."

8. "Who cares if they lose money, bands make their real money touring. This sucks."

9. "Somebody just told me about this thing called 'fair use.' They're violating my rights! This sucks."

10. "Somebody just told me that Disney bought off the government. Copyrights are too long! This sucks."

Etc. etc. etc. etc.

And THAT is how the popular "backlash" evolved. Today it's teeming with a swarm of anti-IP sentiment and rationalizations for infringement. But forever and always, when you want to know what "caused" it, you must always refer back to #1.

"Your assertion was that copyright durations are

'CAUSING the backlash against IP laws in general.' That is what I was responding to. Your assertion was not that shortened copyright durations might, perhaps, theoretically alleviate the backlash."

No you have again misquoted me. I said:

"...the very unreasonable "IP" laws are causing the backlash against IP laws in general."

A PART of these unreasonable laws is the copyright length. There are many other unreasonable parts, for example the DMCA which is just government-sponsored protection racket, that, in addition to giving special protections to the content industry, also runs over little "silly leftist" ideas like the First Amendment.