Lighten up, Derek Khanna

A legal cub named Derek Khanna, rather than finishing his law degree and taking the bar exam, has been steadily transforming himself into something of an anti-copyright celebrity purporting to represent a conservative perspective.  And yesterday,  he offered this inscrutable editorial, which appeared on Business Insider* among other places.  Ostensibly, the article is a criticism of copyright terms (i.e. the length of copyright), and there is certainly nothing wrong with having that discussion.  In fact, in the two plus years since I’ve personally been involved with these issues, I’ve met several strong proponents of copyrights who would be open to discussing the pros and cons of shorter terms; but it must be something about their 20-30 years worth of professional IP experience that makes them sound just a little less, I don’t know, hysterical than Derek Khanna.

Titled “The Conservative Case for Taking on the Copyright Lobby,”  one might think that the word case coming from a Fellow at Yale would involve some sort of logical construct written with the kind of dispassion legal scholars often exhibit, given their experience balancing complex and competing interests. Not so much.  Instead, Mr. Khanna offers a sort of screamo variation on the anachronistic theme that Hollywood lobbyists are robbing the future economic and creative capacity out from under the next generation while simultaneously committing treason against the orthodoxy of America’s Framers.  All of this is achieved, of course, by the “content lobby” sequestering creative works in the grip of terminal copyrights.

While Disney’s extended hold on its seminal cartoon Steamboat Willie certainly makes an interesting case for discussion, to read Khanna’s article, one might get the idea that creative work has receded thanks to Mickey and the 1976 Copyright Act rather than expanded. All the novels and plays and screenplays unwritten!  All those songs unperformed!  The films we’ve never seen!  And the computer games not produced!  All because of that damn mouse!   Seriously?  Even with terms as long as they are, I have yet to meet a single artist, great or small, who gives existing, protected works anything more than a passing thought when he or she begins to create something new. So, Derek should lighten up because he’s not only not a lawyer yet, he’s really very much not an artist.  I quote:

The costs of one of the greatest thefts in American history by these special interests hinders learning, destroys our cultural legacy, hurts innovation and the public, but, most important, it impedes filmmakers, artists, deejays, and other content creators who need to be able to build upon the work of others to create new content — as we have done for centuries. 

What do you mean we, kid?  And where have you been for the last 20 years?  Oh, right, growing up.

Certainly, Khanna is correct that the social purpose of copyright is to promote new works in the arts and sciences; and if the application of the law exceeds or betrays this purpose by preventing people from building upon the works of others, then reform is in order. Yet, despite whatever research opportunities his fellowship at Yale affords, Kahnna insists on trotting out some of the most overused, amateur complaints about copyrights — Steamboat Willie, corporate ownership of the song “Happy Birthday,” and some ill-advised things former MPAA head Jack Valenti said 32 years ago — rather than demonstrate how current copyright terms are having any tangible, negative effect on the creation of new works. This is because there are no solid data to support this accusation on any scale that can be considered problematic.  To the contrary, copyright continues to serve as a basis for fair trade among authors of works that enables multiple parties to benefit creatively and financially; and it also codifies the principle of fair use in the U.S., which happens to have the most liberal interpretation of that concept among countries that maintain copyright laws.

It is interesting, though, that Derek claims to be making a “conservative case” with this article.  In fact, the absence of a case by any definition of traditional argument reveals the piece for the emotional, buzzword vehicle that it is.  And to this end, the only apparently conservative position taken by Khanna (and it’s not his idea, by the way) in this editorial is a lightly veiled nod to “strict constitutionalism” with quotes like this one:

The steep costs to perpetual extension of copyright have been long known and are well documented. This is why the British copyright statute, the Statute of Anne, limited copyright duration to 14 years; why 12 of the original 13 colonies had similar copyright durations in their own statutes; why the Constitution includes the phrase “limited times”; and why the founders limited copyright to 14 years.

Of course, it’s rational to assume that the Framers anticipated the downsides of perpetual copyright, but the term of 14 years is as arbitrary and irrelevant to contemporary America as whatever it is Sarah Palin keeps babbling about muskets and militias.  When the U.S. extended terms in 1998, it was playing catch-up as one of the last countries to adopt the same terms other copyright-supporting countries already had in place.  What that means is that the U.S., as one of the largest exporters of entertainment and information media in the world, was literally leaving money on the table relative to its trade partners; and it’s difficult to imagine a conservative advocating a position that would support losing revenue in that manner.   One does not make a sound case for thoughtful reform simply by repeating incendiary and obsolete complaints or by bowling a googly like this one:

To their credit, in moments of candor, content-industry lobbyists at least admit their goal is to repeal the copyright clause from the Constitution. 

I got nothin’. I’ve read it several times and cannot figure out why Khanna claims content owners would want to repeal the copyright clause unless he means they would seek to repeal only the phrase “for a limited time.”  Either way, it’s pure, careless invention to suggest this notion lurks anywhere in the minds of serious copyright professionals. The clause itself is older than the Bill of Rights. And no matter what the subject, every time someone with a political axe to grind claims to know the intent of the Framers, it’s hard not to see how such “wisdom” in the wrong hands results in events like the armed standoff now taking place in Nevada.  To quote Terry Hart, who writes the blog Copyhype:

The fact is, the Founders spent remarkably little time on copyright. Joel Barlow told the Continental Congress we should have a copyright act and, by the way, you should just copy England’s law. The copyright clause was proposed just a few days before the Constitution was finalized, and adopted without debate. Compare that to the process going into the 1976 Act, which actually comprises 20 years worth of study by the Copyright Office, roundtables, discussion drafts, public comment, and congressional hearings.

And in case Derek Khanna and the editors who think he’s worth listening to hadn’t noticed, a new copyright review has been underway for several months now, complete with hearings in the House Judiciary Committee. It’s a complex matter being discussed by serious people with many points of view and by a variety of stakeholders. And I am told by lawyers I know who have been the room with studio execs and the MPAA, that nobody is talking about extending terms. Meanwhile, the narrative that Hollywood alone holds Washington in the grip of its lobbyists has been outdated for quite some time, with those resources dwarfed by the expenditures of Google alone in its efforts to weaken copyright.

I get why Khanna’s charm and good looks make him an attractive poster boy to watch poke a hornet nest with a stick. But despite all the aggrandized prattle about the digital age elevating discourse in the world, this is all too often what it really looks like:  a kid with exactly zero professional experience spouting a bunch of popular-sounding and oversimplified bullet points, all because it’s good click-bait. But that’s not where the real discussion is taking place, and neither should it be. This kind of reminds me of a moment in the year 2000 when CNN was reporting the unfolding disaster of the Russian sub Kursk, trapped deep in the Barents Sea and about to lose all hands. And CNN brings on action/thriller novelist Tom Clancy because of course he wrote The Hunt for Red October.   Fourteen years later, this circus gets more absurd by the hour.

*This was mistakenly attributed to another article and link in The Washington Post.  Thanks to Mr. Khanna for the correction.

© 2014, David Newhoff. All rights reserved.

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15 comments

  • Sam Flintlock

    I have yet to meet a single artist, great or small, who gives existing, protected works anything more than a passing thought when he or she begins to create something new.

    Chumbawamba’s Jesus H Christ. De La Soul’s Three Feet High and Rising. The JAMs’ (one of the main names the KLF go under) 1987 (What the Fuck is Going On). The Verve’s Bittersweet Symphony. Carter the Unstoppable Sex Machine’s After the Watershed. Public Enemy’s Psycho of Greed. The entire recorded output of Negativland.

    Music is what I know but there’s also examples from other artforms as well.

    The collage technique in visual art sometimes does this. Jeff Koons has ended up in court several times. There’s Shephard Fairey’s Hope poster, though lying in court really doesn’t make him a sympathetic example. Damian Hirst’s Hymn sculpture also qualifies.

    In books, you have the 300 pound gorilla that is Alan Moore, specifically Lost Girls and the later parts of League of Extraordinary Gentlemen.

    You may not have met any of the artists I’ve just listed, but I’m assuming you’ve heard of many of them. We can then add to that evidence the amount of creative works that are based on work that is either unprotected or licensed. A large part of the film industry’s output comes under this category.

    We should also look at the comics industry, both as an example but also as a cautionary tale. The DC/Marvel axis operates in a different way then much of the creative industry. The intellectual property is generally bought up by the publishing company and then a multitude of writers and artists work on it. That leads to some great work. Hellblazer for example, has some great interpretations you wouldn’t get with a single artist/writer team. Then there’s Superman. This is the cautionary tale. On one hand, the fact Superman has been repeatedly rewritten to keep up with the times is one of the things that makes him part of the US cultural landscape. However his creators, Siegal and Shuster, were treated appalling by DC Comics. That was with them having bought up the rights in exchange for publication. Allowing derivative works to have been made by big companies without even having to do that is rife with potential for abuse. I have no easy answers for that one. This issue is probably the single most important one to resolve if looking at easing up on transformative works. I suspect something along the lines of mandatory profit-sharing would be necessary.

    So really, when we look at the body of work that has used protected works, then combine it with the large amount of work that uses works that are no longer protected, then I’d suggest that the circumstantial evidence is near overwhelming. If artists are allowed to use a wider selection of works as raw material, they will do so. As such, I think the level of proof you’re asking for here is unreasonably high:

    rather than demonstrate how current copyright terms are having any tangible, negative effect on the creation of new works.

    Demonstrate how current copyright law is having any tangible, positive effect on the creation of new works.

    • I took the comment to mean that when people weren’t exercised when they were at the point of creating something. Afterwards maybe they’ve licensed stuff. Copyright restrictions did not curtail their creation, though it may have subsequently curtailed distribution, or the share of revenue that the derivative creator may earn.

    • David Newhoff

      I’m sorry, Sam, but doesn’t the existence of these works make my point? Also, I think it’s always a mistake to confuse the principles of copyright with specific instances of corporate behaviors toward individuals. It’s like the “Happy Birthday” example. On the one hand, it’s absurd; on the other hand, individual cases don’t add up to a systemic problem no matter how emotional they may be. My primary criticism of Khanna is his approach and the fact that the media take his performance seriously. To that end, if he offered some data or even relevant anecdotal evidence or even an original idea that proposes why terms of X would be more beneficial than terms of Y, that would at least be adding to the discussion in some useful way. But that’s not what he does, though, and I’ve already stated in the post that he’s using emotional nonsense and incendiary language to trot out the “corporate land grab” story. Terms may be too long, but Steamboat friggin’ Willie isn’t even a good example as to why.

      Current copyright law enables and encourages original and derivative works in several ways, including the maintenance of the principles of fair use. I think a lot of people believe fair use is the antithesis of copyright rather than a component of the law itself. Weaken the law, fair use goes with it, and guess who wins 100% of the time? Whoever has the most money. Meanwhile, my point about artists and their work is that those who set out to originate something don’t worry too much about what else is out there, and many who know they’re doing derivative work still fundamentally believe in the principle of permission. Permission is central to copyright law, regardless of money. The largest data suggesting copyright remains an incentive is that nations with copyright laws have produced vibrant, creative-sector economies that just so happen to coincide with expansion of free expression, and nations without copyright laws, haven’t.

      And this piece from 2012 comes to mind as an interesting expression of fair use. http://www.nytimes.com/roomfordebate/2012/10/10/does-the-law-support-inventors-or-investors/copyright-law-and-the-art-it-inspires

      • Sam Flintlock

        I don’t think the existence of those works proves your point, considering that a significant number of them ended up in court. Even in the cases that were eventually won (which is most of them), I’d suggest that the possibility of a court case has to act as a serious deterrent to legitimate derivative works. Indeed, deterrence theory is an important issue in criminology. Your linked article (which I agree is an interesting example of fair use art) would seem to substantiate that:

        Of course, one man’s fair use is another’s infringement, and unfortunately, the burden of proof in a fair use case is on the defendant, who, often lacking the money to fight in court, has no choice but to cease and desist. Many artists have suffered this fate, and so I continue making the blackouts with fingers crossed for a litigation-free future.

        And your defense of copyright as a principle is spirited, but somewhat of a misfire. Outside of some hypothetical post-capitalist utopia, I’m not in favour of abolishing copyright. I’m in favour of reducing terms, although I’m still undecided on the specifics. And I want the UK to adapt a “fair use” model stronger then the US. I want it to be a legal and artistic right as opposed to an affirmative defense. And I want it to be broader when it comes to making transformative works.

        The first position isn’t even one you necessarily disagree with. The second is undoubtedly more radical then your views. But it’s still firmly within a “reformist” perspective, not an “abolitionist” one.

      • David Newhoff

        You and I agree on many things, Sam, and if we were talking in a pub rather than through this medium, we’d probably find even more common ground. My point about the artists you listed — and I certainly don’t know all the cases — is that the system tends to favor the production of new works even when cases go to court. Plus, there uncountable numbers of deals made artist-to-artist all the time that we don’t read about because there’s no dispute, or because they involve small players who don’t warrant celebrity headlines. This is the problem I have with using litigation as an example to reject the value of copyrights, and particularly with regard to term limits. The majority of litigation is likely to pertain to works well inside even revised limits unless we reduce to terms dating back to the 18th century.

        Even without hard data, the anecdotal picture looks like this to me with something like music: there’s a finite number of notes and chords and instruments in the world and a rapidly expanding system for distribution of works, so musicians are theoretically hearing more works than ever. Nevertheless, a tremendous amount of new music gets produced and distributed without legal disputes. I frankly find it miraculous because I couldn’t compose an original song to save my life. But if copyright terms are really draining the market of all the possible ways to combine elements into new music, wouldn’t we see more litigation and hear less music? This is not to say that current terms may not pose other problems.

        There’s no question that the threat of litigation by a wealthy entity can have a chilling effect on expression. On the other hand, expression has a way of making itself known, and copyrights serve the iconoclast as well as the icon. I’m fascinated by this film “Escape from Tomorrow.” My prediction is that Disney, assessing this from a PR standpoint, won’t sue even if they feel they have a good case, but it certainly makes an interesting fair use story. The film also looks really good. I hope to get to it this weekend. NOTE: I should have qualified this interest in the film with my suspicion that the permissionlessness of it is probably a gimmick.

  • Well where do I begin . . . if your best arguments against my report include my looks, age and status of acquiring a JD rather than the merits of the argument, then that says a lot about your argument doesn’t it?

    First, I didn’t write the editorial in Washington Post, that was Stewart Baker, a Bush era legal adviser who wrote it in Vollokh Conspiracy which is where legal scholars debate and blog on major legal issues. So while you don’t think the report is serious, apparently a legal scholar does, and he’s not alone. Randy Barnett also tweeted about the article, and he was the legal mind behind the Obamacare challenge. I recognize that the copyright lobby probably doesn’t respect these names, that’s because they aren’t conservative and never were.

    As far as your reference to my op-ed, “The Conservative Case for Taking on the Copyright Lobby,” I link back to the report to substantiate the arguments within. You’d prefer to attack the editorial for not being backed by the evidence it is clearly backed by in the report itself. I didn’t use the word treason, as that’s defined in the Constitution, more like the enemy of our society that Madison expressly told us to watch out for and to guard against. He wrote it! I just cited it.

    You’re point about content creation not “receding” is beyond dumb. No one argues that content creation has plummeted, the argument is that we could have even more content creation with a more constitutional system. This is similar to cutting income tax. Did we have economic growth when personal taxation was at 95%, well yes, did we have more when it was cut? Yes again. The existence of some content creation does not mean that better policies could not lead to more, that’s basic public policy 101. Evidence here is overwhelming that we could be doing much better, see the report which cited nearly every single empirical study conducted on the matter.

    While Valenti’s quotation is 32 years old, in public policy making that’s not too long and gives a perspective on the MPAA’s argumentation style, further they have never really said that they retract that position. I have one Valenti quotation and a Dodd quotation from three years ago.

    And regarding the conservative stuff, you clearly haven’t read the report or the Townhall op-ed, it’s an extremely conservative argument. The conservative movement has long supported copyright reform, Hayek, Friedman, Schafly, Posner, Forbes etc.

    Lastly your point about the Founders term being ridiculous, misquotes the report. I don’t actually call for going back to the Founders term, I never have. The report says, get the data and figure out what works best. I cite the Founders term to show how far we have deviated, but you are essentially putting words in my mouth as I never call for going back to the Founders term. In fact, when I wrote the RSC’s report on copyright and we provided an actual term, that proposal was much longer than the Founders, so nice try.

    Lastly, people are talking quite extensively about codifying life + 70 in international treaty, so this is very topical.

    You’re analysis that this is “click-bait” is insane. I assure you, writing a report on copyright duration is not a good way to get clicks, I wrote it because it’s right, and I made almost no money for publishing it because there is minimal audience for any discussion on copyright issues. To claim that this is click-bait is just idiotic. I wrote an expose on how the post office killed a start-up, that went viral and got almost a million clicks, a report on copyright does not. If I was interested in click-bait, I’d write more post office type stories. That’s not the point, the point is to fix a major public policy problem.

    As far as having no professional experience, well I worked on two Presidential campaigns, worked for the House and Senate, have been a fellow with Yale Law’s ISP Program, and led the successful national campaign on cellphone unlocking. I may not have as much experience as some, but I think I have enough to offer something in this debate. Your tactic is a typical propaganda tool of special interests, you claim that you are the only one with the authority to speak on a topic because you’re the “expert” and you try to kick everyone else out of the arena.

    How about instead of complaining about my looks and age, you actually argue why you think life + 70 copyright makes any damn sense? Or do you not actually have an argument for that? How about you debate me in person on copyright term limits? I debated MPAA’s Ben Sheffner on copyright, I have no problem doing so, but you’d rather create straw men.

    • “You’re point about content creation not “receding” is beyond dumb.”

      YOUR.

    • David Newhoff

      Derek, your age and status is relevant only with regard to the fact that you have not worked in any capacity in the industries about which you presume to comment. And this only matters because rather than produce an idea or a policy suggestion that calmly acknowledges the truth about how terms got to where they are, you write what any amateur blogger has written for the past decade or more — Mickey Mouse, Happy Birthday, Jack Valenti. Had you proposed some specific suggestions or provided food for thought on policy, I very likely would not comment but would leave that to someone like Terry Hart, who is superior to both of us in his knowledge of the history of copyright and case law. When you choose, however, to write a culturally-biased editorial designed to repeat a false narrative for public consumption, that’s the kind of thing that gets my attention. I didn’t address your report because almost nobody reading your OpEd will either, and I think it’s disingenuous of you to pretend that the editorial itself isn’t exactly the propaganda piece that it is.

      If you write a piece that clearly articulates why you think Life +70 is bad for America and/or creators, then I bet someone will debate you or agree with you on exactly those points. And it shouldn’t be me because I’m not a copyright attorney or legal scholar. If your report is substantive, then your editorial ought to in some way be a summary of its main points. Instead, you cite dogeared anecdotes that admittedly make people grumpy but in themselves are very weak examples for supporting your position.

      Your looks are only relevant with regard to the fact that I believe we live in a time when young, hip and slightly iconoclastic helps drive clicks and views, even if the substance of what’s being said or reported lacks gravitas. That is a criticism of the media and not you personally. I’m not the expert or authority, Derek, and I’m in no position to kick anyone out of any arena. Like I said in my rebuttal, there are copyright proponents with vastly more experience than either of us, whose politics are irrelevant, and who might be inclined to agree with you about terms. But they find editorials like this one juvenile. It’s really up to you what you want to write about, but if you’re going to make a case for something, then make a case for it.

      All that said, I corrected the reference and link to the wrong editorial and pointed to Business Insider and credited you for pointing out the mistake. Thanks for that.

    • David Newhoff

      As for the proposed revisions to copyright terms in your report, I won’t presume to critique them from a legal scholar’s perspective, but they strike me as typically neo-con. So, at least there our conflict becomes legitimately ideological rather than my simply accusing you of being a dilettante. You want to strip copyright of any vestige that it is a civil liberty by requiring registration rather than maintaining it as an automatic right upon completion of a work. This appears to reduce the right merely to the practical while removing its soul, which changes the nature of the law considerably. And on the practical, you propose 12 years free followed by an optional 12 year renewal paid in the form of 1 percent of all US revenue derived during the first 12 years. For a conservative, that’s sounding very “distribution of wealth” to me, but what does that look like to an indie filmmaker?

      Let’s go crazy and say an indie filmmaker works on a project for two years and raises $1.5 million to make and distribute the film, which has yet to pay him anything. Let’s say its a pretty popular film and the filmmaker doesn’t get raped by piracy, which he will, and over those twelve years, this film earns $6 million U.S, which is $500k year, even though it won’t be earned that way. And your proposal is “revenue,” not after-cost profit or even post-tax, but revenue. So, if I’m reading you right, the indie filmmaker, no matter how much of that six million he has to pay out to investors, etc. over those 12 years, he must pay a fee of $60,000 to renew his copyright for another 12 years. Forget how oversimple I’ve made the filmmaker’s business, this premise appears to be at odds with conservative principles.

      I assume it’s predicated on Brito & Bell’s position that copyright is just a government handout, negating the idea that the works themselves are property. When I heard them articulate this at The Cato Institute — yes, I saw you there — I thought the ghost of Ayn Rand was going to rise up and choke them to death. That your proposal is hostile to artists is consistent with many a conservative view, but that it appears hostile to property and imposes what I can only describe as a new tax in order to secure a property right that has always been the law of the land sounds remarkably not conservative to my ear.

      So, you’re right when you say you don’t recommend returning to the Framers’ terms of 14, you recommend shaving two years off that and then making the cost of renewal prohibitive in as many cases as possible.

  • David–
    “To the contrary, copyright … also codifies the principle of fair use in the U.S., which happens to have the most liberal interpretation of that concept among countries that maintain copyright laws.”

    Thats not an argument in favor of copyright. But for copyright, we’d have no need for fair use. Your argument is essentially like saying that we never would’ve invented bulletproof vests if people didn’t shoot at one another, so therefore shooting at one another is good. While I don’t actually advocate for copyright abolition (unless there turns out to be no better option), and I love fair use, if we did abolish copyright, I would not even shed a tear for fair use.

    “the term of 14 years is as arbitrary and irrelevant to contemporary America as whatever it is Sarah Palin keeps babbling about muskets and militias”

    True! AFAICT the 14 year term (actually 14+14) came from having parity with older patent statutes, and in patents it came from apprenticeships lasting for 7 years; a 14 year term was long enough to train at least two successive groups of apprentices in the new technology.

    Any term we have now ought to be based on a serious economic study. The only such study I know of — feel free to point out others — was done by Rufus Pollock a few years back. IIRC, he came up with 15 years. The math is beyond me, unfortunately, and as I said, we’d want more objective research done, but it sounds like Khanna may be a hell of a lot closer to the mark than Congress or the usual suspects in the industry.

    “What that means is that the U.S., as one of the largest exporters of entertainment and information media in the world, was literally leaving money on the table relative to its trade partners; and it’s difficult to imagine a conservative advocating a position that would support losing revenue in that manner. ”

    Wrong. Even back in Twain’s day, the mechanism was well known: Publish simultaneously in the US and Canada, and you get all the benefits of the Berne term in Berne countries, and the US gets to enjoy having shorter terms and giving the finger to the Berne countries. Everybody wins. There was no need for us to join Berne, and we were not losing a penny abroad by staying out of it. Treaties really are used as a backdoor method to get legislation that lacks enough domestic popular support to just get passed on its own merits. It’s not a secret.

    “I’ve read it several times and cannot figure out why Khanna claims content owners would want to repeal the copyright clause unless he means they would seek to repeal only the phrase “for a limited time.””

    Two other reasons: First, repealing the part of the clause that vests copyrights initially in authors. Publishers liked the stationers copyright way more than the modern authorial copyright, and we already have generous (sometimes overgenerous — remember how the performing artists rebelled?) giveaways to publishers in the form of works made for hire.

    Second, by repealing the whole thing, you’d just put it into the field of the commerce clause, which some have claimed is already the basis of parts of 17 USC that don’t stand up to scrutiny through the lens of the copyright clause. This would give Congress even more freedom to act.

    “It’s a complex matter being discussed by serious people with many points of view and by a variety of stakeholders. And I am told by lawyers I know who have been the room with studio execs and the MPAA, that nobody is talking about extending terms. Meanwhile, the narrative that Hollywood alone holds Washington in the grip of its lobbyists has been outdated for quite some time, with those resources dwarfed by the expenditures of Google alone in its efforts to weaken copyright.”

    And as usual, as it has been for over a century, no one cares about the actual public interest. Even publicly-allied groups like libraries will only look to their own interests, but not go further. I have little regard for your “serious people” — how about we open it up to some votes. We could have every American vote on whether or not a service like Napster should be legal, for example. Care to try your odds?

    “The largest data suggesting copyright remains an incentive is that nations with copyright laws have produced vibrant, creative-sector economies that just so happen to coincide with expansion of free expression, and nations without copyright laws, haven’t.”

    There are no nations to speak of without copyright laws. Further, have you taken into account other factors? Increased literacy rates? Improvements in publishing technology? Increased leisure time? Better artificial lighting? Increased wealth among the poor and middle classes? Protections for free speech?

    The US produced a vibrant creative sector which just so happened to coincide with not granting copyrights to foreigners, which we didn’t bother to do until the end of the 19th century. And with not granting copyrights automatically, which we didn’t bother to do until late in the 20th century. And with far shorter terms than we have now. I don’t see you suggesting that we ought to go back to the pre-1909 legislation, or something similar to it. Certainly we don’t seem to have gotten more vibrant. True, new media have come along, but merely moving most of our works involving acting to the screen from the stage isn’t more vibrant. More vibrant would entail having playhouses and operas as bustling as they were in their golden age AND having people packing into movie palaces AND having 500 channels with everything on.

    ” I’m fascinated by this film “Escape from Tomorrow.” My prediction is that Disney, assessing this from a PR standpoint, won’t sue even if they feel they have a good case, but it certainly makes an interesting fair use story. ”

    Not really. What copyrights of Disney are implicated? Architectural copyrights? No; either there aren’t any, or they don’t survive 17 USC 120 (for which we can, to some extent, thank Batman). The costumed characters? They’re not copyrightable. Maybe the ambient soundtrack (Disney pipes music all over the parks) if it got into the finished film, but I don’t know if it did. Trespass in order to film it (they would not have been let in if it were known what they were doing) isn’t a copyright issue.

    “You want to strip copyright of any vestige that it is a civil liberty by requiring registration rather than maintaining it as an automatic right upon completion of a work.”

    Copyright isn’t a civil liberty. It directly conflicts with free speech; they can’t both be civil liberties. Copyright is more like a commercial regulation; if my town gives Comcast a temporary monopoly to provide cable TV service, they aren’t getting a civil liberty, just a government subsidy in the form of exclusivity.

    Further, a system of strict formalities is not only a traditional feature of US copyright law, it’s very useful for other reasons, such as distinguishing works that do and do not merit copyrights, providing constructive notice, increasing the collection of the Library of Congress, reducing transactional costs for potential licensing, etc.

    “And on the practical, you propose 12 years free followed by an optional 12 year renewal paid in the form of 1 percent of all US revenue derived during the first 12 years.”

    Yeah, I’ve seen that sort of thing before. The idea is to 1) use the copyright system to get revenue, and 2) to assign a more equitable value to the copyright (if the work has great worth because of the copyright, getting the copyright should demand a great payment; if the work is of minimal value, the copyright won’t break the bank). I don’t care for either. I merely want registrations and fees in order to cause authors to only get copyrights for those works which they feel merit copyrights, as evidenced by taking affirmative steps to get them. A simple form and a nominal $1 fee are fine IMO. If we want to raise money for the government, let’s increase capital gains taxes, add more income tax brackets at ever more progressive rates, and impose a wealth tax.

    “negating the idea that the works themselves are property”

    If that were true, we wouldn’t need copyrights. Copyrights are a means of simulating property in the context of works.

    “sounds remarkably not conservative to my ear.”

    Well, we may be at that interesting point of bipartisanship. I don’t fully agree with Khanna, and I’ll take his word for whether he’s a conservative or not, but he’s not as bad on this issue as the usual publishing interests, and I am tremendously liberal.

    • David Newhoff

      Well, good morning, Anonymous. I try to have a nice, quiet, copyright-issue-free start to a Sunday, and look…

      Let me first say that the substantive nature of your views on terms, etc. is the antithesis of the kind of editorial Khanna wrote, and that was the primary basis of my criticism. And to take one of your points out of order, the circus of nonsense on just about every issue now SOP across all media is just one of the reasons I wouldn’t want to put any one issue to a straight, popular vote. I consider direct democracy to be chaos, especially if what the people (including me) think they know about a subject is based on the 140-character attention span that passes for “the information age.” The illusion that social media obviates the need for representative government by creating a forum for referendum is one of the reasons I started writing this blog. For all its many warts, I think tossing out the republic would be disastrous, and we already see evidence of this. Substitute copyright for 2nd Amendment, and I direct your attention to Nevada or Palin’s recent speech to the NRA crowd. I know I’m getting into the weeds here, and not just because I haven’t had coffee yet, but the question of whether or not Web 2.0 is fostering a better-informed electorate intersects with the subject of copyright terms in a way that provides a frame of reference for discussion, in my opinion.

      Taking Internet tech out of the equation for a moment, if the primary value of creative works to the public is social value, meaning that most people will benefit through experiencing works and not through creating socially and economically valuable derivatives, I would argue that there isn’t a sharp distinction between the availability of works in the public domain and the availability of works still under copyright, particularly if we’re looking at works people actually want. Critics tend to talk about works under copyright as though they are under lock and key, that consumers don’t have access to them affordably or even freely. This was exemplified by Khanna himself when he tweeted to his followers that they should not read “The Great Gatsby” as a form of protest against the fact that it is not in the PD. Gatsby makes a pretty good example of a novel that can be found in so many forms, including a dogeared paperback probably sitting on your parents’ bookshelf, that it’s ridiculous to talk as though copyright has made this work “unavailable.”

      When we add Internet technology back into to the equation, I think we have to be very careful about defining the “public interest” vs the Google interest in scanning, consuming, and monetizing everything any human ever created. Concurrently, the public is just beginning to get a clue that the price of “free,” when Google does them a service like making PD works readily available, is a vast amount of personal, even intimate, information. And the public has not begun to really wrestle with this cost, so the economics at play are different, I think, than much of analysis being applied. When a work enters the PD in the digital age, it also becomes advertising fodder, and I don’t think we can say with certainty that the public is always served by this paradigm. Given that both actual literacy and cultural literacy appear to be on the wane here in everything-at-our-fingertips America, I am more than a little cynical that making more works public property faster will have real social benefit. This is because I don’t think it’s long copyright terms driving illiteracy so much as media overload and the slightly schtizy interactions fostered by these technologies. Some of your comments about “vibrancy” perhaps mirror these sentiments, even if we’re coming at it from different points of view, but my use of the word “vibrant” should not be taken to mean “ideal,” which is a matter of taste. I am generally referring to the fact that we have created economic strength predicated on creative works and, until recently, it was possible to create something unique and economically self-sustaining without having to achieve blockbuster status; but the threat to this strata of works gets into the issue of piracy and devaluation of works, which is a different topic, although not unrelated.

      Khanna will say, and has said, that works entering the PD sooner will produce more opportunities for more people. This, I believe is a red herring often repeated by the tech industry to elicit support from every hopeful fan-fic, remix artist, vlogger, etc. out there. And it’s not that none of those people have talent. But there’s no way we can add more “creators” to a market where lines of revenue have been choked off, diminished, and culturally driven down to pennies on the dollar, and call that an economic model. Meanwhile, while it’s likely that more content in the PD will enable some startup with yet another app to make himself and three other guys a pile of cash, that’s not an economic model either, and what are the odds their app really adds anything to the vibrancy of our culture as you or I would have it?

      I know I’m not responding to all of your comments, but I’m not convinced that copyright terms should only be looked at through an economic lens, or at least not too narrow a lens. Among my concerns is that it’s too easy for a special interest like Google to tell the people “they’re your works,” which plays well among us progressives in the same way Bush’s tax rebate played well among conservatives when he told them “it’s your money.” Millions cheered in anticipation of checks for $200 and didn’t seem to mind that billionaires would be getting checks for millions of dollars at the same time that $200 would be buying fewer groceries. Forgive me, but I see some parallels here. So, no I don’t want to put anything to a straight vote. 🙂

      Fair Use – I get what you’re saying about fair use not being necessary if there were no copyright, but your bullet proof vest analogy conjures an image that, as I understand it, can be misleading — that fair use is the opposite of copyright law rather than a part of it. And that was my point. You seem to be saying that if there were no copyright law, there would be no copyright law; and this is indisputable. The only reason I mentioned it in that sentence is because I know Khanna has made some very vague references to derivative works and other uses going back to his famous RSC memo, and the point of that sentence is that copyright still functions as a basis for artist-to-artist collaborations and negotiations and that the US has fairly liberal standards for fair use that are part of the legal fabric and not just a bunch of opinions. And fair use enables certain types of derivative works. There’s little doubt that more derivative works would exist without copyrights, at least for a while, but there is plenty of doubt as to whether or not this would ultimately lead to cannibalizing a whole sector of the economy.

      That copyright does or does not function like a civil liberty, as far as my interactions with IP professionals goes, is a matter of opinion. You have stated that you’re an IP attorney, and you certainly write respectful and interesting responses, but given your choice to remain anonymous, readers here have no frame of reference for your point of view. From my perspective, and that of some IP attorneys, copyright is not contradictory to free speech but is a powerful ally of free speech. I suspect, though, that our conflict here is truly ideological and that we’d go around in circles forever.

      As for Berne, you’re describing a work-around for American authors to acquire international protection, but this placed the US in a lame-duck role as a leader on copyright issues despite its leading role as a producer. Personally or ideologically, this may be a scenario you would applaud, but I’m not convinced that it’s good trade policy doctrine. You say, “Treaties really are used as a backdoor method to get legislation that lacks enough domestic popular support to just get passed on its own merits.” I hope you’ll forgive me for saying that sounds like a very broad oversimplification of both foreign and domestic policy.

      Regarding “Escape from Tomorrow,” yeah, I got caught up in its claims and hype, but I watched it last night, and no there will not be a suit despite the gimmicky counter on the film’s website showing how much time has passed “without Disney suing them.” The film very distinctly weaves around protected intellectual property. How much unapproved filming was done in the park is questionable, and no that would not be an IP issue anyway. There are several scenes that could have been shot “in secret,” but exteriors that would have been impossible to shoot that way were clearly done on a stage with green-screen composites. These were mediocre, either by design or by circumstance. So, no it is not interesting as a copyright story except for the manner in which its producers are using the false threat of suit as a marketing ploy.

      Oops: I meant to add this link to Terry Hart broadly addressing the idea that terms should certainly be finite, but that determining length isn’t as clear-cut as many will claim. http://www.copyhype.com/2010/10/does-length-matter/

  • David–
    “And to take one of your points out of order, the circus of nonsense on just about every issue now SOP across all media is just one of the reasons I wouldn’t want to put any one issue to a straight, popular vote. I consider direct democracy to be chaos, especially if what the people (including me) think they know about a subject is based on the 140-character attention span that passes for “the information age.'”

    Well, there’s nothing new under the sun, just think back to the ostracism of Aristides.

    Nevertheless, you said that we ought to have faith in the “serious people” now deciding what changes to make to the Copyright Act. But I just can’t take your serious people seriously. I do not trust them to produce a law that is wise, or just. Not only are they likely to not put into place such policies as I’d agree with in the pursuit of the public interest, I don’t trust them to care about the public interest one bit.

    This isn’t mere crankery; while the American system of government has always been meant to limit the potential for abuse of power and to permit abuses to be reined in and cured, few believe that it’s working anymore, in any respect. Certainly with regard to copyright, the government gave up its responsibilities well over a century ago, and has let private industry control public power since then.

    So put yourself in my shoes: I think that copyright is a good idea, but I think it ought to be implemented somewhat differently than it currently is. The changes I support would be opposed by almost any publisher, by many authors, and may or may not suit other parties, such as distributors, broadcasters, etc. If I put my faith in faithless people who already hold power due to the money and machinations of those who oppose me, I have no hope of success at all. Whatever the outcome of a referendum of the general public on the issue would be, at least I’d have a chance. So even though it might well produce an even worse result, I am driven to support such things out of desperation.

    This is the classic paradox of success. The publishing industries control copyright so thoroughly that there is nowhere for them to go but down. Either they’ll just lose, and who knows what we’ll get, or they’ll need to start making enough serious concessions so as to diminish the outrage of their opposition and keep things manageable. Really, this is beginning to happen all around us — who ever would’ve imagined that American fast food workers would go on strike? But here we are.

    “The illusion that social media obviates the need for representative government by creating a forum for referendum is one of the reasons I started writing this blog.”

    I never said that social media did that. Hell, other than the odd comment to blogs, or posts on other venues way back in the day, I don’t even do it. I don’t have a blog, or a Facebook or Twitter, or whatever the kids use these days.

    But representative government — or any form of government — is only tolerable insofar as it works. Right now a lot of people in the US will tell you that few if any representatives are doing a good job of representing their constituents. The real constituents that is: residents, citizens, and voters, and not just the 1%. If representatives fail to do their jobs, either they or the system that empowers them needs to be replaced. I don’t think that referendum by Tweet would be a good option, but as I said, it might be a better option than what we’ve got now. It really depends on how desperate matters become.

    “Taking Internet tech out of the equation for a moment, if the primary value of creative works to the public is social value, meaning that most people will benefit through experiencing works and not through creating socially and economically valuable derivatives, I would argue that there isn’t a sharp distinction between the availability of works in the public domain and the availability of works still under copyright, particularly if we’re looking at works people actually want.”

    No.

    First, your assumption for the argument is wrong anyway; derivatives are of great importance, not only because people can create their own, but because those feed back into the cycle of consumption. This is clear even for lawful derivatives, if you think about how many people watch the movie but never read the book the movie’s based on.

    Second, cost is a factor of availability which cannot be ignored. All that’s stopping me from flying to the Moon aboard a fabulously appointed rocket is cost, after all. But without billions upon billions of dollars burning a hole in my pocket, the Moon is totally outside of my reach. Likewise, without a similar sum of money, the world of works which but for copyright would be in the public domain are also out of reach. God knows, it’s only money that is keeping me from having my own personal British Library or Library of Congress, as my desire for this is resolute.

    Right now my personal library sits on shelves which cover most of a couple of walls in my home. But I carry around a list of things that I want all the time; once in a while, I can afford to get something. I get things from the library too, but they don’t always have everything, what they have isn’t always available for lending, and frankly I’d really rather have my own copies than have to depend on the library for everything. Clearly most people agree with that, which is why far more copies of works are typically made than there are libraries.

    The same impulse to have lots of works can be found in everyone, I think. I can’t think of a single person I know who had Napster available to them that didn’t build up a large collection of music. Sure, if they had the money, they could’ve bought copies of most of it (though some items are always real rarities). But who has that much money? And having it, who wants to spend it on that when it could be spent on things that can’t yet be reproduced at a near-zero marginal cost?

    Availability in a store, with a price tag, behind a sheet of glass, or on a shelf is clearly no substitute for having it for free.

    “Gatsby makes a pretty good example of a novel that can be found in so many forms, including a dogeared paperback probably sitting on your parents’ bookshelf, that it’s ridiculous to talk as though copyright has made this work ‘unavailable.'”

    I guarantee you that there are plenty of people in the world for whom it is utterly unattainable. Further, you aren’t really putting much work into your example here. The other day I wanted to read a copy of a book which I became aware of thanks to a Google Book search. The book was published only a few years ago, but is now out of print. There are no copies on Amazon or any of the other major online bookstores, either new or used. There appear to only three copies in libraries in this part of the country, none of which are even in this state, none of which are lending libraries, and the closest isn’t even open to members of the public. But the book was scanned by Google. But for copyright, I could’ve downloaded a pdf of it or something, as I have for a number of obscure public domain books. As it stands, I plan to try to contact the authors to see if they have any copies they could part with. It’s entirely possible that they do not! Authors usually aren’t involved in distribution, you know. And if they ask for too much, it won’t fit into my budget, making it one of those Moon books.

    “When we add Internet technology back into to the equation, I think we have to be very careful about defining the “public interest” vs the Google interest in scanning, consuming, and monetizing everything any human ever created. Concurrently, the public is just beginning to get a clue that the price of “free,” when Google does them a service like making PD works readily available, is a vast amount of personal, even intimate, information.”

    I’m certainly not married to Google. But they’re providing useful services. By all means, compete! Let the publishers make their own book search engine. No one is stopping them. And let’s regulate what information businesses can collect, what they can do with it, who they can share it with, and so forth. But right now I see the various groups that are opposing Book Search as feckless idiots. A new opportunity has opened up for them to serve their customers, but they’ve stood there doing nothing, and they’re all out of ideas.

    “When a work enters the PD in the digital age, it also becomes advertising fodder, and I don’t think we can say with certainty that the public is always served by this paradigm.”

    Block ads. Strip advertising out of works. Share it via the peer to peer methods that a certain group of somebodies keeps attacking through various means.

    Indeed, I’ve long advocated for a nice solution to this very issue. Legalize the otherwise infringing use of works, but only by natural persons, and only if they are acting in strongly noncommercial fashions. So Google would be out. Selling copies or access would be out. Ad supported anything would be out. Filesharing ratios would be out. Tip jars and tee shirts would be out. But inside of those constraints, people could copy, distribute, make derivatives, publicly perform or display, etc. There are enough people who would gladly operate at a loss — and they’d have to, as there deliberately would be no option to break even or profit — to make the system work. I guarantee it.

    It would also have serious ramifications on the industry. But I think we’d survive. And in any event, it is what people are generally trying to do now. Most people, I believe, see nothing wrong with piracy, and happily engage in it themselves; they only disapprove of commercial piracy, such as selling counterfeit DVDs on Canal Street.

    “Given that both actual literacy and cultural literacy appear to be on the wane here in everything-at-our-fingertips America, I am more than a little cynical that making more works public property faster will have real social benefit.”

    I’m confident that chaining books to lecterns is not going to help with that. Actual literacy can be improved. Cultural literacy is moderately subjective; if people’s tastes are for X instead of Y, so be it, even if that means that comic book movies make billions while operas go bankrupt. It’s not like that hasn’t happened before. And speaking of opera, you may like to read this, from an opera singer: http://noinsidevoice.wordpress.com/2014/04/12/opera-is-dead-long-live-opera/

    “This is because I don’t think it’s long copyright terms driving illiteracy so much as media overload and the slightly schtizy interactions fostered by these technologies.”

    Yeah yeah, TV rots your mind, jazz is the devil’s music, and Socrates didn’t like people to read because literate people tended not to develop really good memories (because as Sean Connery said, you write things down so that you don’t have to remember them).

    “I am generally referring to the fact that we have created economic strength predicated on creative works”

    No we have not. The economic strength you are referring to is false; it is stolen from the people who must shoulder the burden and suffer the embarrassment of a monopoly, to enrich the monopolist. There is certainly some strength in diffuse knowledge in the public domain, but probably not enough to get us to dictate copyright policy to all our trading partners, and then to turn around and use that to manipulate our own Congress.

    “until recently, it was possible to create something unique and economically self-sustaining without having to achieve blockbuster status”

    This is still possible. Your real problem lies not in piracy or the devaluation of works, but in competition and greed. If everyone goes to see a big action movie, they aren’t going to go see a small art movie. If everyone reads thinly disguised porn fanfic published in a book, they aren’t going to read an important yet complicated and difficult obscure novel. The lesson is that marketing works, but it costs money, more money than lesser works can justify. Plus, the publishers have bought into (or have been bought up by bigger companies that have bought into) the idea that they must maximize their profits. Spending less on works and their authors means more for the company. Concentrating on blockbusters produces better financial results, even though it means taking serious risks. It’s true that money has also dropped out of the system, but there’s clearly enough left to support the blockbuster model. The only thing keeping it tied up there is that the people involved want it that way.

    “Khanna will say, and has said, that works entering the PD sooner will produce more opportunities for more people.”

    Depends on how soon. Right now it’s effectively never, and it’s easy for people opposed to that to show that having works enter the public domain is a better option. Again, the publishers are being too greedy and it’s biting them in the ass. They’re no longer willing to so much as throw the other side a bone.

    “This, I believe is a red herring often repeated by the tech industry to elicit support from every hopeful fan-fic, remix artist, vlogger, etc. out there. And it’s not that none of those people have talent. But there’s no way we can add more “creators” to a market where lines of revenue have been choked off, diminished, and culturally driven down to pennies on the dollar, and call that an economic model.”

    The purpose of copyright is to increase the number of works created, published, and in the public domain as fully and as soon as possible. Not to provide a viable career for creators. Providing benefits for creators is strictly a second-order issue.

    “Meanwhile, while it’s likely that more content in the PD will enable some startup with yet another app to make himself and three other guys a pile of cash, that’s not an economic model either”

    Irony. That is precisely the model that authors use. As I’m sure I’ve pointed out before, most works are flops, and most authors are professional failures. Making a pile of cash from art is as likely as winning the lottery. This is true whether it’s a painting or a piece of software (which the Copyright Act defines as a literary work, as you may recall). Most of those apps don’t turn a profit either. The important thing is that authors are irrationally optimistic and keep trying, and that new authors replenish exhausted ones.

    “what are the odds their app really adds anything to the vibrancy of our culture”

    1:1. Copyright involves the quantity of works, not the quality. Any new works are good. There’s an issue as to how many new works are worth keeping old works out of the public domain in order to incentivize the creation of those new works, but generally the more the merrier.

    “There’s little doubt that more derivative works would exist without copyrights, at least for a while”

    For a while? They’re not going to vanish. At least not if our national libraries do their jobs for once. What you mean to say is that the rate of creation of original works may diminish. It won’t go to zero or below, as we know from history, but it may go down. Derivatives will too, a bit, but likely not so much.

    “copyright is not contradictory to free speech but is a powerful ally of free speech”

    Yes, I’ve read Eldred, but I don’t understand that argument in the least. Copyright may encourage some speech, but it does so at the expense of preventing lots of other speech. Censorship can’t be an ally of free speech. It might be tolerable, but it’s no civil liberty.

    “but this placed the US in a lame-duck role as a leader on copyright issues”

    In what way? And to what end? If we offered less protection than Berne, joining Berne is no way to get other states to offer less protection. Other states were protecting our works more than we protected theirs or our own, giving us a nice advantage. Even if we wanted to offer as much protection as Berne does, joining is still a bad idea so long as we can reap the benefits without being bound to a treaty that’s largely immutable by design.

    ““Treaties really are used as a backdoor method to get legislation that lacks enough domestic popular support to just get passed on its own merits.” I hope you’ll forgive me for saying that sounds like a very broad oversimplification of both foreign and domestic policy.”

    Not in the case of copyright, patent, and trademark treaties, I’m afraid. It’s well known there.

    “Oops: I meant to add this link to Terry Hart broadly addressing the idea that terms should certainly be finite, but that determining length isn’t as clear-cut as many will claim.”

    The Hart post you linked to was largely uninformative, telling me little more than that there is a dispute about terms. And as I’ve come to expect from Hart, he then seems to go on to say that it would be a bad idea to even try to solve anything; copyright is perfect as-is, or if anything, should be strengthened.

    The only interesting bit was a link to a paper concerning the number of works created under shorter and longer terms. Sadly, this was really nothing more than a literal counting of works. While at least it itself points out that it fails to consider any other factors other than term length (e.g. relevant tax incentives, changes in technology, changes in distribution and markets, etc.) it’s woefully incomplete.

    Pollock’s paper at least has some nuance to it, noting that the social value associated with each work and its copyright is a more complicated matter than merely that the work exists. I think I’m going to have to continue to treat Pollock’s work as the only serious work done on the issue of term length, but it was good to see another stab at it at least.

    Personally of course while terms are too long, there are several reforms I’d prioritize more highly. Terms just appear like a simple answer, and they are absurd, so they seem to get more attention than they ought to.

    • http://www.youtube.com/watch?v=rFdUD6U6hQc
      [youtube http://www.youtube.com/watch?v=rFdUD6U6hQc&w=433&h=438%5D
      The above is primarily about patents, but well worth a watch when you get the time. Many of your arguments are covered IMO

      • David Newhoff

        I attended that panel. Interesting stuff. And I know the folks at CPIP. It’s a good example of what I mean my “serious people” in contrast to Khanna. Personally, I agree with Judges Michel and Gajarasa that patent (and copyright) law requires fine tuning and fixing and disagree with Posner that trolling is so bad we need to overhaul or throw out the laws themselves. But I would never presume to suggest any of those guys lacks gravitas or experience.

    • David Newhoff

      Anonymous, I didn’t mean to abandon this thread, but it was getting long, and I have a lot on my plate. My big-picture response is that I simply reject the premise that copyrights on works are stopping access or derivatives anymore today than they were pre-Internet, which is the technology that started so much of this argument. I think it’s very easy for people who don’t work in any of these creative fields to imply the hypothetical flowering of cultural good that would proceed from the entry of more works into the public domain. But the truth is there are authors of works in every direction producing millions of projects right now — some derivative or even wholly dependent on existing works — and the reason most of these won’t attract huge audiences has nothing to do with copyrights. I’m not personally opposed to shortening terms per se, but I have yet to hear a realistic case that either cultural or economic value is derived by more works entering the public domain more rapidly. Are there specific exceptions? Always. But as a general rule, I think the belief that if we pour more content into the pool this will elevate society is both naive and a bit elitist. My slack jawed, science denying, barely literate fellow citizens are determined to stay that way because it’s their God given right as Americans dammit. Call me a cynic, but I don’t think having a couple of Bergman films enter the PD this year would help.

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