November 27, 2002  ·  Lessig

In Eldred v. Ashcroft, we challenged the 1998 Sonny Bono Copyright Term Extension Act. During oral argument, the Court asked whether our rule would affect the 1976 Act’s extension. Though this issue had not been briefed, we indicated that it would, but that the Court’s own caselaw gave it a way to strike the 1998 Act without striking the 1976 Act.

Justice Bryer in particular was concerned about the effect on contracts entered into in reliance on the 1976 Act. His view seemed to be that there would be “chaos” if those contracts were invalidated.

Jason Schultz of Fish and Richardson and Deirdre Mulligan of the Berkeley Center for Law and Technology (both of whom worked on a great amicus brief in the case) have now looked at the numbers. Their work is great, and the numbers surprising. See the chart on books here and the brief analysis here. Bottom line: a surprisingly small amount of work would be affected.

  • David Moynihan

    No big deal, but 2002-56=1946. Important to remember if you’re, say, planning on bringing a few favors to the online victory party.

  • Jason Schultz

    Thanks David. As the Barbie Liberation Organization once made Killer G.I. Joe say, “Math is hard!”

    For those interested, I re-ran the numbers for 1927-1946 and they’re actually even better.

    Between 1927-1946, 187,280 books were published in the U.S. Only 4,267 are available in 2002 from publishers, or 2.3% of the total published in those years. This means that over 97% of the U.S. book copyrights that would be “affected” by striking down the 1976 retroactive extension are commercially dormant.

  • Glenn Fleishman

    This analysis is problematic because the methodology of determining which works from each year is still “in print” has to be done through tedious human analysis. ISBN numbers only began to be assigned in the 1970s (as SBNs) and I believe it wasn’t a widespread practice until the 1980s. This means that titles in print from before the 1970s have to be looked at individually and with author names to determine if any instanciation of the work in question is still in print today.

    This doesn’t reduce the value of the analysis, but where is the methodology so we can determine how they handled the overlap (or lack thereof)?

  • Jason Schultz

    We obtained the list of books currently available via Books In Print at Using their electronic database, you can look for books in print by year of publication. Since we did the search in 2002, we were able to see how many works from a give year were still available.

  • Lessig

    We’ve revised the analysis to correct for the error. Thanks for flagging it.

  • John Gregory

    Surely the concern of AOL/TW is not about books – and probably there aren’t a lot of book publishers who would be worried about losing the 1976 extension either. I would imagine that the concern is all about movies. I think it is a serious weakness in the figures that the authors simply *assume* that the availability of old movies is the same as that of old books – so that about 97% of the movies of the relevant period would not be available. I doubt that – though replace “available” by “worth watching” and I would concur.

    I suppose one could use as a surrogate for Books in Print some of the thicker movie guides in print – the ones that rate thousands of movies, for video renters or late-night-TV watchers. If the film is listed in one of these books, probably its author has seen it, or knows someone who has seen it, in the past 10 or 15 years – so it’s probaby still available.

    Is it another problem with the stats that percentage availability does not address value? Maybe only 3% of the old movies are available, but they include Gone with the Wind, Wizard of Oz, etc etc – big earners still. Likewise the books include the Great Gatsby, much of Hemingway, etc.

    One can legitimately argue that the authors and even – more to the point – the publishers, including broadcasters, have had their rewards, and it’s the public’s turn. I think that’s a very good argument. I just don’t think that the figures are all that significant.

    BTW how would one get these numbers before the Justices anyway? Can one file supplementary briefs after oral argument?

  • Jason Schultz

    I guess one point of the figures is more to say that beauty is in the eye of the beholder, i.e. while a very small percentage of works may still be “profitable” (something one could also question in the age of Internet distribution), why should that keep the other 97% out of the public’s hands? The public (especially researchers, academics, students, etc) may well find those more valuable in terms of information about our national history and cultural heritage than the 2.3% still available.

    As for the film #s, they are certainly speculative. Still, how many films from 1927-1946 are really available at Blockbuster or NetFlix? 50? 100? I can’t imagine more than that. 50 or 100 out of more than 30,000 still seems like a large price to pay for such a small return to the public.

  • krishna

    if as you say, a large portion of old literature(50+ years old) is not commercially exploited, why doesnt someone in a country outside america try and put these up on the internet, if someone does hold the rights to that piece of work and wantsto enforce it that person can.

    he can inform the webmaster and the webmaster shall remove the piece. Kind of works on the principle that copyright protection is not granted on creation but on request. It might be against the law, but with the law in this case making very little sense, an innovative attempt at trying to expose its fallacies is worth a shot.