Copyright Clause Restoration Act of 2022

Missouri Senator (and my former Mizzou Law Colleague) Josh Hawley has introduced S.4171 a modest copyright proposal that would substantially reduce copyright term to 56 years (28 years if holder fails to timely file for renewal).  Current Copyright term is significantly longer and does not require renewal to stay in force.

  • Life of the author + 70 years.
  • For works-made-for-hire or anonymous works 95 years from first publication or 120 years from creation (whichever expires first).

The proposal is retroactive, but only if the owner fits has a market capitalization of $150 billion and operates in the industries of “Arts, Entertainment, and Recreation” or “Motion Pictures and Videos.”

Hawley Proposed Bill.  In the U.S., about 70 companies fit the market cap requirement, including Sen. Hawley’s stated target Disney.

 

92 thoughts on “Copyright Clause Restoration Act of 2022

  1. 19

    Because this applies to multiple companies and would put great works as “Forbidden Planet” and ‘20,000 Leagues under the Sea” into the public domain, it sounds like a good idea.
    I doubt any of these movies are a major income source.
    26 years seems like more than enough time for an artist to recoup their investment.

    1. 19.1

      +1

      And—the real issue that the anti-intellectual rights left wing Marxists don’t deny is that if the term were shorter, I’d bet that it would stimulate creativity. Artists could still own their copyright but would have to continue to create.

      Subtle to understand but what stimulates innovation is easy to get rights for what you did and the limited time of ownership.

      1. 19.1.1

        You forgot: strong enforcement.

        Easy to get is meaningless without the bite of enforcement.

      2. 19.1.2

        Hawley is a Communist! His attacks on capitalism shall not stand!

  2. 18

    OT, but Max asked about whether means + function claims are included in the specification and whether any patent office object to their inclusion. Below is the typical EPO objection.

    – Claim-like clauses must be deleted prior to grant. The term “claim-like clauses” means clauses present in the description which use claim language such as “according to the preceding clause”, “characterised in that”,… (GL FIV, 4.4). These “claim-like clauses’!* also include examples, embodiments or aspects presented as claim-like clauses. A simple conversion of these clauses into separate optional features will not be admitted, either.

  3. 17

    I sincerely wish politics would stay out of IP law. The copyright term should be set based an economic study as to what benefits the nation as a whole and not to engage in a political vendetta against Disney for support of gay rights. We are going to destroy our economy with this kind of political warfare since 90% of our economy in the US is IP. I saw this type of thing as a patent examiner when the examiner who issued the Netflix patent had to lobby Congress to keep his job after allowing a valid patent because it hurt Block Busters video rental stores. Altering IP laws for personal profit is just rank corruption and Sen. Hawley should face an ethics grievance and disbarment.

    1. 17.1

      “I sincerely wish politics would stay out of IP law.”

      This is anon level stupidity. Please don’t.

      1. 17.1.1

        Maybe you just didn’t bother reading before posting…

        Wouldn’t be the first time — won’t be the last.

    2. 17.2

      “I sincerely wish politics would stay out of IP law”

      This makes no sense, at least not in the context of our country’s system of government. “Do an economic study” isn’t some magic answer to everything because someone still has to decide what variables and outcomes matter most.

      I can’t believe I actually still have to explain this to adults on a professional legal blog after so many years but there we are.

      1. 17.2.1

        Ha I was typing just about the same thing at the same time.

        We should keep politics out of politics. Wait, what?

    3. 17.3

      Politics is the disposition of power and resources. It is inescapably entwined with law.

      Law does not exist on some utilitarian or Platonic plane where some properness or perfection may be perceived.

      1. 17.3.1

        Law does not exist on some utilitarian or Platonic plane where some properness or perfection may be perceived.

        How Neo-Liberal Post-Marxist of you.

        Also:

        How utterly false of you.

        Raw power is simply NOT any type of guiding principle.

        1. 17.3.1.1

          Yet raw power is what Trumpists like Hawley love to abuse

          1. 17.3.1.1.1

            Your post misses the point.

            And even as I denounce Hawley’s move, what exactly is an abuse of power that he does?

            Don’t confuse what you don’t like (and I don’t like) with “abuse of power.”

            1. 17.3.1.1.1.1

              For me, abuse of power by politicians is probably along the lines of how Examiners abuse their power; you know it when you see it, as the saying goes.

              1. 17.3.1.1.1.1.1

                I would definitely draw a distinction between abuse of power as a function of “don’t like” and true abuse of power — even for examiners.

                I have long posited that high quality examination — even if I do not like the fact that my claims have been well-rejected — is infinitely preferred to poor rejection (of any kind).

                The context here just does not lend itself to the point that you appear to want to make (in either direction).

                1. The point that I appear to want to make? I’m not sure I follow. I’m just giving my view on knowing abuse of power when I see it.

                2. I heard the “point” you asserted, but it just does not reach.

                  As I noted, there is a clear difference between “I don’t like” and “abuse of power.”

                  Saying “I know it when I see it” is not an equivalent to “because I say so.”

                  Maybe Say “what you see” and identify the supposed abuse.

    4. 17.4

      +1 to Jr.

    5. 17.5

      +1

  4. 16

    Where was Hawley’s outrage on this issue before the radical rightists turned on Disney?

    Hawley’s nothing but a spineless coward pandering to the lowest common denominators.

    1. 16.1

      + 1

    2. 16.2

      I have nothing but contempt for Sen. Hawley, but I do not think that it is especially helpful to judge a politician’s actions based on whether the politician’s motives are pure, or whether this vote is consistent with previous votes.

      A senatorial vote from impure motives counts exactly the same as a vote from pure motives. A senatorial vote that is inconsistent with previous votes counts exactly the same as a vote that is consistent with previous votes.

      Really, the right way to evaluate a senator’s position is “does this position align with my voter preferences or not?”. One needs to be willing to take “yes” for an answer if one hopes to get one’s policy preferences enacted into law.

      1. 16.2.1

        No – the Ends do NOT justify the Means,

        Especially in law.

        ANY lawyer should know better. – ANY other view is morally and ethically bankrupt.

      2. 16.2.2

        “I do not think that it is especially helpful to judge a politician’s actions based on whether the politician’s motives are pure, or whether this vote is consistent with previous votes.”

        This is a comment section on a legal blog, not a voting booth. It certainly is “helpful” for people to understand what lawmakers are doing AND why. That’s part of the purpose of the blog (I would think).

        1. 16.2.2.1

          Wow – here I am agreeing with Malcolm.

          1. 16.2.2.1.1

            I think just about everyone views Hawley as a douche on this issue.

  5. 15

    Off topic, but FYI, the CAFC today denied mandamus to the WDTX in In re Lab Corp. and to the EDTX in In re Bitfenix.

  6. 14

    Wow, you’re giving an insurrectionist attention for performative culture war shit-weaselry?

    That’s not what I come here for.

  7. 13

    Performative nonsense.

  8. 12

    This has zero chance of passing. The $150 billion mark cap corporations will make sure of that.

    1. 12.1

      Agreed – as tends to be more common nowadays, this is nothing more than virtue-signaling “performance art.”

      1. 12.1.1

        +1

  9. 11

    I am not sure having corporations that are more powerful than the government is a good thing. At least the Constitution constrains the federal government. Nothing constrains corporations.

    1. 11.1

      Actually the early cases on trusts says that the founding fathers thought that large corporations were a menace. That they should only be allowed to be so large.

    2. 11.2

      Especially since they’re people. 😉

      1. 11.2.1

        Juristic people — and the distinction is one of critical importance.

  10. 10

    His real purpose is to make people forget that he openly supported the Jan 6 insurrection.

    Now the guy is just f*cking Goofy.

    1. 10.1

      Define insurrection.

      How many have been charged with insurrection? They arrested almost 1000 people.

      1. 10.1.1

        You have to give No One credit he got to Trump with only one jump.

        Right now everything has to do with abortion and January 6th both of which are about Trump.

        In fact, my neighbor hasn’t mowed their grass in two weeks and I am sure it is because of Jan. 6th and Trump.

        1. 10.1.1.1

          Don’t forget to blame Putin. Got to blame Putin.

          And Racy ISM – got to blame Racy ISM too.

          And it’s all “systemic” too — gotta tear down the whole system.

          /s

        2. 10.1.1.2

          “In fact, my neighbor hasn’t mowed their grass in two weeks and I am sure it is because of Jan. 6th and Trump.”

          That is true.

        3. 10.1.1.3

          I would like to take this opportunity to remind everyone that Roe falling was yet another Promise Made, and Promise Kept, by one Donald Trump. Politician that delivers results. A real “results oriented” pres.

          1. 10.1.1.3.1

            Good point. Credit where due

            Actually, candidate Trump got a lot of grief for his list of judge-candidates, but I thought that this practice was really useful from my perspective as a voter. Going forward, I think that all presidential candidates should release such a list early in the campaign, just like candidate Trump did.

            1. 10.1.1.3.1.1

              I know right? And biden can’t even be bothered to cancel SOME student debt or do the min wage hike.

              1. 10.1.1.3.1.1.1

                It’s not Biden — it is whoever is pulling his strings.

                1. Trump’s strings were pulled by anyone who kissed his azz.

    2. 10.2

      that he openly supported the Jan 6 insurrection.

      Please stop drinking the kool-aid – you are embarrassing yourself.

      1. 10.2.1

        April 2021: link to vanityfair.com\

        Months later, the deadly January 6 attack is still reverberating on Capitol Hill, with Democrats and other lawmakers on edge, and some even reporting symptoms of post-traumatic stress disorder. “This is not something I ever expected to experience,” Congressman Dan Kildee said in an NBC News interview on Sunday, telling Hallie Jackson that viewing footage of the riot afterward “triggered an emotional and physical reaction” in him.

        But not every lawmaker is haunted by the insurrection. Some are faring quite nicely, in fact. Take Josh Hawley: the Missouri Republican, who with Ted Cruz helped lead Donald Trump’s effort to overturn his election loss in the Senate, has been on a fundraising tear since the 6th, parlaying his role as an instigator into a cash haul from the MAGA faithful. According to Politico, Hawley took in over $3 million in the first quarter of the year on nearly 60,000 donations—a huge spike compared to this time last cycle, when the freshman senator received just $43,000.
        …..

        May 2022: link to kansascity.com

        As abortion protests spread, Josh Hawley equates them with the Jan. 6 insurrection

        Anon, now it’s your turn to stop embarrassing yourself. You can start by not watching Fox News all day. It has turned your formerly exceptional brain into mush.

        1. 10.2.1.1

          I treat Fox with as much credibility as I treat CNN.

          That you still are crying “insurrection” tells all which of the two of us is drinking kool-aid.

          That would be you.

          1. 10.2.1.1.1

            That’s the problem. Fox is way less credible than CNN. Tucker Carlson still has the taste of Putin’s scrotum in his mouth.

        2. 10.2.1.2

          “Months later, the deadly January 6 attack is still reverberating on Capitol Hill, with Democrats and other lawmakers on edge, and some even reporting symptoms of post-traumatic stress disorder. ”

          Excellent, but not nearly as good as some good ol fashion tarrin n featherin.

          “But not every lawmaker is haunted by the insurrection. ”

          In other words there are a few leaders out there not afraid of their own overall constituency. That’s good, but probably not optimal.

          1. 10.2.1.2.1

            You have to discount any propensity for “Victimhood” as that is a pre-ordained desired result (and would be claimed no matter the precursors).

  11. 9

    Fifth Amendment…ever heard of it, Josh? Oh…only when you’re called to testify about January 6…RIGHT!

  12. 8

    The moneyed classes are hypersensitive to the faintest whiff of communism. Their tribal loyalty only goes so far. When showboating pencil-necked featherweight insurrectionists start making noises about substantial takings – takings on political whim- well…the capitalists tend to ensure such unserious people don’t have a lot of political friends. Let’s see who rallies to this idea other than the Gaetz’s and Green’s of this polity….

    1. 8.1

      Certainly what you describe has been the operative reality for a while now. Like Jon Chait, however, I am beginning to wonder how much longer that equilibrium can hold.

      1. 8.1.1

        The rich are like a keelboat…the harder they are pushed over, the harder they want to come back up. McConnell still does not have a senate majority in-hand, but assuming he has a narrow one (hardly foregone in 2022) the national ban won’t happen until after the next Presidential election in ’24. The Big Money won’t rest. It never does.

    2. 8.2

      “showboating pencil-necked featherweight insurrectionists ”

      Thanks Martin — my fav quote of the day.

      And in other news, Mickey Mouse is now running for Congress . . .

      1. 8.2.1

        Running for Congress? I thought Mickey Mouse BOUGHT Congress when the legislation amending the copyright provisions was enacted in the late 1990’s. Why run for a seat in a body you already own?

  13. 7

    Do you think its that some politicians don’t know they’re less powerful than Disney? Or do you think its that they know so well its not in danger of passing?

    1. 7.1

      I bet on #2.

    2. 7.2

      They also know they’re in no danger of their constituents ever expecting them to enforce later whatever they do manage to pass (e.g., abolition of Reedy Creek).

    3. 7.3

      I am not sure having corporations that are more powerful than the government is a good thing. At least the Constitution constrains the federal government. Nothing constrains corporations.

      1. 7.3.1

        Except the government, you mean, eh?

        (That is, when it escapes capture)

      2. 7.3.2

        Nothing constrains corporations.

        Not true. The market constrains corporations.

        It is definitely better for corporations (collectively) to be more powerful than the government. That just means that individual human preferences of everyone in society are taking precedence over the preferences of those few humans who run the government.

        1. 7.3.2.1

          “The market constrains corporations.”

          No, it doesn’t. The Great Recession is a perfect example of that.

  14. 6

    The U.S. would need to withdraw from the Berne Convention for the Protection of Literary and Artistic Works, wherein Art. 7 provides that parties in their national laws provide for a minimum term of protection of the life of the author (or last living co-author) plus 50 years after death, and 50 years from publication for anonymous or pseudonymous works. (Current U.S. law goes much further than that treaty minimum due largly to successful lobbying from the motion picture and sound recording industries.) In any case, if enacted we’d effectively be going back to pre-1976 conditions with respect to rights of American authors and publishers, or lack thereof, in other countries.

    1. 6.1

      Correction: I should have said pre-1989 conditions (not 1976), as that is the year the Berne Convention Implementation Act went into effect. However, it is unclear whether the alternative copyright treaties (such as the Universal Copyright Convention) are still in effect to give the U.S. any backup protections internationally, so it may actually be worse than simply pre-1989 conditions.

      I would also add that the proposed legislation would have an impact on our country’s compliance with the TRIPS Agreement, as Art. 12 and 14 provide for 50 year minimum copyright terms if not based on the life of the author.

      Despite appearances, this bill is not really a “modest” copyright proposal.

  15. 5

    Adding a renewal requirement where none previously existed, is un-American as well as pointless, adding only negative value as with any artificial burden. If they really want to be serious about expanding the reach, I’d suggest adding an examining corps and increasing filing fees into the $800 range or so. That way, you’d know you have a strong copyright.

    1. 5.1

      What does un-American mean here? The law has included a renewal provision for most of US history.

      1. 5.1.1

        Indeed. Mark Twain said that the only time he ever really made money on any of his books was when his copyrights would come up for renewal.

        1. 5.1.1.1

          Greg, I don’t think i’ts renewal per se – it’s that at 28 years copyright would revert back to the author. So even if as a young person the author sold rights in a book for little money or at a low royalty rate, if the book proved to be a big seller, the author could reclaim those rights later and make more money off the book that he otherwise would have made under the original terms of sale. Copyright reversion also happened in the last few years with some songwriter/singers’ works reverting back to them.

          1. 5.1.1.1.1

            Thanks for that clarification, Dan. I am probably only hazily remembering the Twain quote, which I read years ago, I do not know where.

      2. 5.1.2

        And, for most of that history, the US was an infamous haven for copyright piracy. The point of these kinds of formalities (especially wrt a hypothetical new requirement) is to trip up the little author and/or foreign author.

        1. 5.1.2.1

          The first is not tied to the second, but IS worthy to note, a la evolution of the China treatment of innovation protection.

    2. 5.2

      Why would a renewal requirement per se be pointless? If after 28 years the author thinks the work is worth something, he can pay a renewal fee. If it’s not worth the fee, the work can go into the public domain at that point. As Dennis notes, renewal at 28 years was a part of the US copyright regime for many years.

      There’s also the matter of copyright reversion, which has also been part of the US copyright scheme for much of its existence, see my comment at 5.1.1.1.

      As to raising fees, and having examiners – why? Traditionally the bar for copyright protection has been low, both substantively (the requirement being originality) and cost-wise. In view of what’s being protected, and the scope of protection, that seems reasonable. There isn’t really a need to examine for much beyond formalities. If the person submitting the registration copied from someone else, and the work proves to be valuable, you can be sure the validity of the registration will be challenged.

      If you have a quibble with some of the things that now receive copyright protection, that’s a different discussion.

  16. 4

    Got to love politics …. NOT. There are a lot of serious issues to be tackled in this country, and we get this?

    I’m curious, what is left of the libertarian wing of the Republican party these days?

    1. 4.1

      “I’m curious, what is left of the libertarian wing of the Republican party these days?”

      I didn’t leave the Democratic party, they left me.

      I didn’t leave the Republican party, they left me.

      Hello my fellow Libertarians!

      1. 4.1.1

        .. something about Overton windows and Musk’s stick figure meme with the radical Left sprinting ever more left comes to mind.

        1. 4.1.1.1

          That was one great chart.

          Fun watching the libs running through the streets screaming like banshees.

        2. 4.1.1.2

          A chart that has no basis in history. Has the left gone from center right to center left? Probably. Has the right gone from right to far right? Most definitely.

          1. 4.1.1.2.1

            Hahaha

            No basis?

            Total B$.

            I have actually shared the basis from someone who is an expert in that field: Dr. James Lindsay.

            I know more about your belief system than you do.

            1. 4.1.1.2.1.1

              Lol. James Lindsay is a far-right hack. You apparently, like Jon Snow, know nothing.

              1. 4.1.1.2.1.1.1

                Dr. Lindsay is not even on the Right.

                This shows only that the hack is you.

                Thanks for proving my point.

                1. Appearances on shows like Glenn Beck and a book that resurrects an old theory pushed by 30s-40s era No No Germans to excuse violence against their enemies would disagree.

                2. Actually reading of his material simply provides differently.

                  Maybe try to go to the source.

                  Who knows – you may actually learn something.

  17. 3

    I’m looking forward to all the anti-Hawley outrage for suggesting differentiated IP rights based on business type.

    1. 3.1

      Honestly, I oppose Hawley’s way of thinking, but I do not want to make the good to be the enemy of the perfect. If a senator is willing to arrive at the right outcome—even if for the wrong reasons—I do not see much upside to vituperating the motives. Politics is the art of the possible, and the secret to success in advancing public policy goals is to add people to your coalition, not refuse them because their motives are insufficiently pure.

      Of course, none of this probably matters, because Sen. Hawley’s bill is unlikely to go anywhere. I would be delighted, however, if he ended up accidentally succeeding in scaling back copyright term creep.

    2. 3.2

      Frankly, the most surprising thing is that he left Big “Tech” off the list.

      1. 3.2.1

        Not all that surprising – Big Tech is pretty much anti-protection anyway (they would rather compete on non-innovation factors).

        This being aimed at “C” really is a different domain than that of Big Tech.

        (and don’t get me started with the duplicity of “copyright is enough // copyright shouldn’t cover function”)

  18. 2

    No matter the politics involved, that particularly aimed retroactive portion is nonsense and need be stricken.

  19. 1

    Oh no, whatever shall we do?

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