December 4, 2002  ·  Lessig

Jason Schultz has done more amazing work calculating any “chaos” that would come from striking the 1976 Act. Using the Internet Movie Database, he confirmed the Copyright Office’s numbers that about 37,000 movies were released in the period 1927-46. (IMDb reports 36,386). Of those, only 2,480 are currently available in any format, or 6.8%. 93.2% of the films during that period are are commercially dormant. Another way to put this: Jack Valenti’s crowd says exclusive rights are the only way to assure content gets distributed. So we have a nice experiment: For the films between 1927-46, exclusive rights fails to make available 93.2% of the content produced. Does anyone really doubt the public domain would do better? Jason’s email is here.

  • Kevin Murphy

    And for real fun, you could try seeing how many nationally broadcast TV shows are currently available in ANY form. If you count all original content, such as game shows, network news, sprots and soap operas, I’d bet that about zero per cent is available, to 3 significant figures.

    And about 100% of it is now irretrevably lost.

  • Paul Jimenez

    Is this info too late to be useful? Oral arguments to the Supreme Court are well past, as is, I believe, the time for friend-of-the-court briefs. So how can this kind of information be brought to the attention of the people who are actaully going to have to *rule* on this issue?

  • http://blog.digitaltavern.com Allan Karl

    This is absolutely amazing. Numbers as statistics can be played like cards. So many ways. As lawyers may subscribe to the notion when you have the facts on your side, argue the facts. When you have the law on your side, argue the law. When neither is on your side, question the motives of the opposition. But we’re talking content that may have questionable monetary value. But there are those exceptions. Gone With The Wind and The Wizard of Oz were made in the same year. So how are these addressed? But the possibility of losing more than 90% iof creative content due to a silly law? There’s got to be a better way….

  • Paul Jimenez

    Are there resources that will let a similar computation be performed for music? Music/Audio has been recorded since the late 1800s… but how many of those recordings are still available in any form?

  • Jim Hassinger

    Let’s completely accept the fact that justice is on the side of Eldred. It may not prevail, but it certainly should. But let’s take the precious content of Hollywood’s 36,000 films. If we say they’re public domain, how will we, the public, care for them and then access them? What we need is a model of public care and storage for the content of the multimedia age. At the moment, some content is lovingly restored, like Gone with the Wind and the Welles films, but many other films are mouldering in the vaults, and there are no plans for their restoration and release. What happens to them if they become, rightfully, public domain?

  • http://www.confusedkid.com/primer Camilo Ramirez

    Lawrence
    One of the things to consider in this economy is that the providers of content, ie the music industry, do not actually you, the consumer, to listen or choose!
    The music and film industry has to fight, continually, for the attention of the consumer, making huge promotional drives to attract the most numbers to the first two weeks of their releases, and then letting go of whatever is in that week to concentrate on next week�s movie. I think it was on an interview in the Wall Street Journal that the industry acknowledged that the shelf life of a movie was less than that of a yogurt, barely two weeks- until it was pushed aside by the new release/movie/fad.

    So, if your whole objective is to fight for consumers� time and attention, you don�t want any content released into the market without your approval: It would compete actively with the content you, as distributor/provider, have just acquired.

    To illustrate the point, think that any of the old movies or songs, when accessible through services such as Napster or Audiogalaxy, actually took away the consumer�s attention from the new releases: Suddenly, you could listen to your favorite world music, and/or trade with people with similar interests and vaster knowledge.

    On February 26th, 2002, the Wall Street Journal printed an article on how MCA spent US$2.2 million dollars to promote Carly Hennessey, a singer that sold only 378 CDs (That is, 378 units); then it is easy to understand the challenge and how the free distribution of content can be highly dangerous to the entrenched business model of the entertainment industry.

    They are becoming a commodity, and they need their consumer�s time. Not money.

  • David Mundie

    I’m confused. NetFlix claims to have 12,000 DVD titles available. I don’t find the 871 figure credible.

  • Glen Raphael

    David: you missed the key caveat
    “from 1927-1946″.

  • Jason Schultz

    Yes, according to IMDB, there are 14,177 DVD titles available for all years.

  • Jason Schultz

    As to a viable model of public care and storage for the content of the multimedia age, check out the Internet Archive (more than just the WayBack Machine). They (and other digital archives such as Project Guttenberg) are 100% committed and prepared to preserve, maintain, and provide free global public access to all public domain content.

  • Rob Woodard

    Camilo hit on the main issue: it’s not in the movie or music industries’ interests to make all of their back catalog available to the public. In fact, you could probably make a case that as shareholder-owned enterprises they have a fiduciary responsibility to NOT make that product available, for as Camilo points out such provision could reduce profits on new releases. They also have a responsibility to protect their copyrights on those products vigorously, for they don’t then they establish a precedent that could again harm their profits on those releases that do have longevity (like Gone With The Wind).

    We’ve reached a point in these industries where the public interest in having access to all information conflicts with our capitalist system’s imperative to maximize profits. This is going to be an interesting century, as we try to resolve this basic conflict. The Eldred case is just one aspect of this, and will not be the final word regardless of its outcome. The Johanssen DeCSS trial in Norway, the Elcomsoft/Sklyarov case, and dozens of cases not yet heard of will also be required to be deliberated over before we as a society come to some sort of decision on how we’re going to live with this.

  • http://tom.weblogs.com tom matrullo

    This simple fact is what was so overpoweringly in favor of Napster. Napster gave us the deep archives, the music the recording industry chose to ignore. Then the RIAA woke up, and screamed. Now that it killed the golden source, it seems content to continue to ignore the music it gave us.