Subject: Myth of the 1976 Copyright "Catastrophe"

Date: Wednesday, November 27, 2002 2:26 AM

From: Jason Schultz <[snip]>

To: "Larry Lessig (E-mail)" <lessig@pobox.com>

Hi Larry,

I know you're probably still sick of anything Eldred, but I thought

I'd share something Deirdre Mulligan and I came up with.

As you recall, the Court was concerned about the catastrophic effect

that striking down the 1976 retroactive extension would have. This

appeared to be partially based on AOL-TW's brief, which claimed that

"a host of mergers and acquisitions have occurred, and innumerable

licenses and contracts have been executed, that depend on valuations

of copyrighted works made in line with prior [retroactive

extensions.]"

Well, just to test this theory, Deirdre and I took another look at

those book numbers we had generated for our brief. We figured that,

as of 2002, the works that would be affected if the 1976 retroactive

extension were struck down would be generally those from 1927-1956.

This was based on the assumption that the CTEA would release works up

to 1927 (2002 minus 75) and that under the 1909 Act and 1992 automatic

renewal, works up to 1976 would get 56 years (28 for original term, 28

for renewed term -- 2002 minus 56 equaling 1956).

I've attached an excel spread sheet of the book numbers for

1927-1956. Of the 300,466 books published in the U.S. from 1927-1956,

only 9,240 are currently available from publishers at any price. In

other words, of the entire universe of books published in the United

States that are potentially affected by the retroactive 1976

extension, only four percent remain commercially available, while

291,206, or roughly ninety-six percent of those works, remain

commercially dormant and inaccessible. So it seems that were the 1976

retroactive extension struck down, the most significant impact of such

a decision would not be a monumental loss of contracts or corporate

mergers, but rather a dramatic increase in reading.

The numbers for films are also interesting albeit less conclusive.

While we were unable to locate a bibliographic source for films

available in 2002 by year, we did find a listing of films registered

with the United States Copyright Office by year. According to those

statistics, 59,138 films were deposited with the Copyright Office

between 1927 and 1956. If we assume similar availability statistics,

then only four percent (or roughly 2,366 films) would still be

available from copyright holders and 56,772 would be held captive by

delinquent rights owners. Again, these numbers would imply that the

most likely impact of extending Eldred's argument to the 1976 Act

would not be economic chaos for Hollywood but rather the world's

largest and most affordable historic film festival.

Anyway, thought you might enjoy this.

Best,

Jason

Jason M. Schultz

~ Fish & Richardson P.C.

4350 La Jolla Village Drive, Ste. 500

San Diego, CA 92122

858-678-4741 (v)

858-678-5099 (f)

[snip]