Tom the Dancing Bug is a comic strip series by Ruben Bolling. At times it strikes me as pointless, or incomprehensible, or utterly predictable cant. But at its best --- perhaps 20% of the time --- Tom offers a delightful blend of political commentary and wicked humor.

In late January 2003 Bolling struck a resonant chord as he caricatured current US intellectual property law. The strip begins as Superman TM is lured into a trap --- along with Mickey Mouse TM, Popeye TM, Bugs Bunny TM, Woody Woodpecker TM, and a crowd of other classic cartoon characters.

The villain chortles, "Ha-ha! Welcome to my domain, Superman! My public domain where I am your master!"

Then the evil one continues, "That's because when Congress's endless extensions of copyright terms are declared unconstitutional, you'll all be my --- or anyone's --- helpless playthings!"

The Man of Steel TM starts to slump. "Copyright ... fading!" he mumbles. "Can't ... resist ... unauthorized ... use!"

But then --- ta-da! -- the Supreme Court comes to the rescue: a black-robed judge ("... who fights a never-ending battle to protect the powerful and wealthy") crashes through a window, frees the copyrighted characters ("Go! Run back to your corporations!"), and trounces the rascal who wanted to do something creative and new with these cultural icons.

It's funny, but of course it's also serious --- especially if one cares about the general welfare of society. In Eldred v. Ashcroft Justices Breyer and Stevens dissented from the majority decision. Their statements are both witty and inspirational to read; their reasoning is, I believe, incontrovertible. Justice Stevens argues that that an essential symmetry in rights must exist:

It would be manifestly unfair if, after issuing a patent, the Government as a representative of the public sought to modify the bargain by shortening the term of the patent in order to accelerate public access to the invention. The fairness considerations that underlie the constitutional protections against ex post facto laws and laws impairing the obligation of contracts would presumably disable Congress from making such a retroactive change in the public's bargain with an inventor without providing compensation for the taking. Those same considerations should protect members of the public who make plans to exploit an invention as soon as it enters the public domain from a retroactive modification of the bargain that extends the term of the patent monopoly. ... Neither the purpose of encouraging new inventions nor the overriding interest in advancing progress by adding knowledge to the public domain is served by retroactively increasing the inventor's compensation for a completed invention and frustrating the legitimate expectations of members of the public who want to make use of it in a free market. Because these twin purposes provide the only avenue for congressional action under the Copyright/Patent Clause of the Constitution, any other action is manifestly unconstitutional.

And Justice Breyer offers a tour de force quantitative analysis of the costs to society of the recent copyright extension (conservatively, several billion extra dollars transferred from the public to winning copyright holders) and the miniscule extra payment to authors. After computing the net present expectation payoff of the new law for the average writer --- "less than seven cents today" --- Breyer asks:

What potential Shakespeare, Wharton, or Hemingway would be moved by such a sum? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account? ... How will extension help today's Noah Webster create new works 50 years after his death? Or is that hypothetical Webster supposed to support himself with the extension's present discounted value, i.e., a few pennies? Or (to change the metaphor) is the argument that Dumas fils would have written more books had Dumas père's Three Musketeers earned more royalties?

Breyer goes on to point out that, mathematically and economically, there is no significant difference between a copyright term of ~95 years and infinity. The discounted present value of the one is more than 99.8% of the other.

But apparently logic doesn't sway the minds of lawmakers; money does. As Breyer concludes:

This statute will cause serious expression-related harm. It will likely restrict traditional dissemination of copyrighted works. It will likely inhibit new forms of dissemination through the use of new technology. It threatens to interfere with efforts to preserve our Nation's historical and cultural heritage and efforts to use that heritage, say, to educate our Nation's children. It is easy to understand how the statute might benefit the private financial interests of corporations or heirs who own existing copyrights. But I cannot find any constitutionally legitimate, copyright-related way in which the statute will benefit the public. Indeed, in respect to existing works, the serious public harm and the virtually nonexistent public benefit could not be more clear.

I have set forth the analysis upon which I rest these judgments. This analysis leads inexorably to the conclusion that the statute cannot be understood rationally to advance a constitutionally legitimate interest. The statute falls outside the scope of legislative power that the Copyright Clause, read in light of the First Amendment, grants to Congress. I would hold the statute unconstitutional.

I respectfully dissent.

(see also TradingInGhosts (1 Oct 1999), ParaMode (9 May 2000), ArtNewspaper (4 Aug 2001), RobertNozick (2 Feb 2002), ForGreatJustice (1 Dec 2002), MacaulayOnCopyright (27 Jan 2004), ...)

TopicJustice - TopicArt - TopicLiterature - TopicSociety - TopicHumor - 2003-02-13

(correlates: IntellectualHeirs, MacaulayOnCopyright, NationalWealth, ...)