Subject: Revised: Myth of the 1976 Copyright "Catastrophe"
Date: Saturday, November 30, 2002 1:15 AM
From: Jason Schultz <snip>
To: "Larry Lessig (E-mail)" <>

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 1927-1946.
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 1946).

I've attached an excel spread sheet of the book numbers for 1927-1946.
Of the 187,280 books published in the U.S. from 1927-1946, only 4,267
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 2.3
percent remain commercially available, while 183,013, or roughly
ninety-seven 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, 37,144 films were deposited with the Copyright Office
between 1927 and 1946. If we assume similar availability statistics,
then only 2.3 percent (or roughly 854 films) would still be available
from copyright holders and 36,290 would be held captive by delinquent
rights owners. Again, these numbers 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

 <<Elred.books 1927-56.xls>> 

Jason M. Schultz
~ Fish & Richardson P.C.
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