Against Intellectual Monopoly

inefficient,
insulting, and unjust as patents are. They are as inefficient as patents, because it is painfully obvious from theory, historical facts, and current data that we
would lose scarcely an iota of artistic and cultural productions if copyright
were completely and instantaneously abolished. They are more insulting
than patents, because the repeated retroactive extensions of copyright terms
pushed by the Disney Corporation make a mockery - or a Mickey Mouse,
if you like - of the U.S. Constitution's allowance of "limited times" for
patents and copyrights. They are as unjust as patents, because the wealth
of copyright-protected media stars cries in the face of the embarrassing
quality of their products and their support for such causes as fighting
pharmaceutical monopolies over AIDS drugs.

Everlasting Copyright
    When we left the U.S. publishing industry, despite the limited copyright for
U.S. authors, it was a thriving competitive environment. As is so often the
case, the story has a sad continuation when the original innovators grew
into fat, stagnant monopolists:
    A critical shift in the political balance occurred in the 1880s as the older American
publishing houses on the east coast began to see their profits eroding in the face of
a new generation of mass penny-press publishers, expanding especially in the midwestern states, who undercut their costs and reached yet wider markets. In the face
of this challenge the older houses reshaped their business strategies and their arguments about intellectual property. They now realized that they would be better positioned than the new generation of publishers to sign exclusive copyright agreements
with foreign authors that would be enforceable within the United States. The signing
of the Berne Convention in Europe in 1886 added further momentum to a shift in
the views of major publishing houses like Harper's and Scribner, who recognized the
advantage of the movement for American adherence to some form of international
agreement, at least with England. American theologians, including the Reverend
Isaac Funk, now denounced the "national sin of literary piracy" (which had allowed
him to make his fortune on his pirated "Life of Jesus") as a violation of the seventh
commandment. And their voices resounded on the floor of Congress. Although
Congress refused to sign the Berne Convention on the grounds that American law
did not recognize authors' natural rights, in 1891 an international agreement with
England for reciprocal copyright protection was finally signed by Congress.2
    This was the beginning of the everlasting expansion and increase in
copyright. The monopolists put further screws to the public with another
major revision of the U.S. Copyright Act in 1909. This broadened the scope
of categories protected to include all works of authorship. The copyright
term had been fourteen years with a possible renewal of fourteen years
until 1831, when it was extended to twenty-eight years plus a fourteen-year
renewal. The 1909 act further extended the renewal period to twenty-eight years. Today, the length of copyright term is ninety-five years for works for
hire, and the life of the author plus seventy years otherwise. In addition to
these increases in the length of copyright term, media lobbyists have succeeded in recent years in enormously increasing the penalties for copyright
violations, now a criminal as well as a civil offense. Additional laws are being
pushed, ranging from mandating hardware protection in general-purpose
computing equipment - something we will later describe as a policy blunder - to allowing large media corporations to hack into computers without
legal liability, which could better be described as criminal insanity.

    We might well begin by asking how well the 1909 revision of copyright
worked. Did it increase the rate at which books and other copyrightable
new products were produced in the United States? Apparently not. Even
abstracting from the general increase in literacy over the century, the increase
in the registrations of literary works per population ratio is miniscule in the
forty years following the 1909 act as shown in the table below.3

    Is this exceptional? No, it is not. Scherer's work on eighteenth- and
nineteenth-century classical music, showed that the adoption of copyright
did not increase and possibly reduced the output of classical music composers. Moreover, beginning in 1919, the length