Glen attacks the idea that the preservation of old existing works can serve as a rationale for retroactive copyright extensions, one of the main points at issue in the forthcoming case of Eldred v. Ashcroft. Now, I’m pretty gung ho in favor of the Eldred side here — and not just because Ashcroft’s on the other. But it seems like there might be a limited set of cases for which this rationale works. So, indulge me in a bit of devil’s advocacy…

Consider old movies on celluloid. Sure, there’s still a market for Casablanca, but plenty of these guys are never going to be worth printing to DVD or tape. However, as streaming movies online becomes the primary mode of content delivery, the owner of these old film reels might find that, over time, they can recoup the initial cost of scanning in these old films for stream on demand. At a few cents, or maybe a buck a pop, perhaps you could, over time, get enough people interested in at least some of these to make it worthwhile. Especially if a few prove to be cult classics once they’re reintroduced, but it’s hard to know in advance which will reach that status. Or, to take a slightly more mundane example, consider Project Gutenberg. They’re gradually digitizing old books that have fallen into the public domain on a volunteer basis. It’s a great service, and if I can slip out of devil’s advocate mode for a minute, I wouldn’t actually want to see it cut short, since in the long run I think it’s better to have these works diffused to the widest possible audience. However, you’ll note that the process there is much more slow than with the production of new e-books. If we pretend for a moment that copy protectection on e-books is anything other than a farce, we could say it’s because publishers can afford to hire someone to scan or type in new works, because they can anticipate a future income stream from the e-books. Unlike a new derivative based on a public domain work — say, Disney’s The Hunchback of Notre Dame — the digitized version of something in the public domain would rather clearly not be newly copyrightable.

So, in short, the retro-extension argument isn’t totally non-existent. But I still say Free the Mouse.

Update: Glen’s response seems right, though I think the scenario I describe — significant format-shifting cost, low/zero cost replication, and no copyrightable transformation in the shift — is a bit more common than Glen supposes. The big one, as I suggested above, is film on celluloid — especially since there may only be one high quality master in a studio vault somewhere. Though I suppose it’s difficult to think of many others that wouldn’t gradually be taken care of by a peer-production shift, a-la Gutenberg, though perhaps a good deal more gradually than would be optimal. Maybe large old archives — stock photos, microfiche libraries, that sort of thing. The most interesting point he raises, though, is that it (rather ironically) means that it may be most desirable to extend copyright only on rather old works. That is, the marginal value of extending recent and yet-to-be-produced works by another 10 or 20 years will be virtually nil… well, except to the copyright holder, of course. Whereas the value of adding another decade to an about-to-expire old movie or phonograph record may be quite high, as it provides a motive to digitize (effectively preserving forever) the work instead of letting it degrade & possibly be lost. So insofar as the extension is indiscriminate, rather than targeted at providing format shifting incentives for these “got to get over the hump” works, as Glen observes, Eldred still has a good case. Oh, yeah, check out Jerry Brito’s piece on Eldred.