Book pages 223 through 228.

Copyrights for Laurel and Hardy films are owned by Hal Roach Studios for which Michael Agee is the chairman.  Despite directly benefiting from the Copyright Term Extension Act (CTEA), Agee opposes the legislation.  Even though Roach sells thousands of DVDs and video cassettes of these films, few of what they own still has any commercial value.  The works sit in a vault, and even though what doesn't presently have value could be deemed valuable by the owners of the vault, the commercial benefits from the works must surpass the costs of making the work available for distribution in order for this to happen.

We cannot know the benefits described above, but we can know the costs.  Today, film restoration, which used to cost thousands of dollars, can be done for hundreds.  This leaves most costs to the hiring of lawyers, who are presently necessary in order to find and secure rights from the many copyright owners of a film.  Thus the process of restoration for the preservation of film is time consuming and costly, and unfortunately it can be argued that the benefits do not outweigh the costs.  Therefore we wait until the copyrights expire to restore them, but because these old films were produced on nitrate-based stock, by the time the term expires, the stock will have dissolved and there will be nothing left to restore.

This death of old film and creative works is the death of future works.  Even is someone chooses to wait until the end of a copyright term to create a derivative work, the original work from which the person wishes to derive will no longer physically exist, making the creation of the derivative work quite difficult.  Today we have digital copies of work with a much longer lifespan; however, if big media companies continue to push for term extensions such as the CTEA, works may never pass into the public domain and new works with potentially high commercial value as well as creativity will never be produced.

Once a work has entered the public domain, the original owner no longer has rights over it.  This clause of copyright law has proven challenging as past copyright holders have attempted to reclaim their rights when it becomes suddenly convenient.  This is the subject of the U.S. Supreme Court case Dastar Corp. v. Twentieth Century Fox Film Corp.

In 1948, Fox obtained rights to create a television series called Crusade in Europe based on a book written by Eisenhower and published by Doubleday.  Doubleday renewed the copyright to the book in 1975; however, Fox chose not to renew their copyright on the series, which thus entered public domain in 1977.  Dastar then took the series in 1995, edited and manipulated them, and repackaged them.  They sold the new videos and credited Dastar employees as producers and not the original book or TV series.

Fox sued in 1998, attesting that Dastar had infringed on copyright and had "passed off" the work as their own.  The district court found for Fox and awarded it double Dalstar's profits.  Finally, the U.S. Supreme Court reversed the decision of the district court and another appeals court.  In an 8-0 ruling, the court reasoned that once a work passes into the public domain, anyone in the public may do anything he or she wishes with it and does not have to attribute the author.

This court ruling helps promote creativity somewhat by assuring artists that anything in the public domain is fair game for their use in future works.  However, there is still the fear that someone might try to claim rights, and often the potential battle isn't worth it.  In addition, copyrights today, thanks to extensions, are so long that producers and publishers don't need to renew copyrights because they last well over the death of the author.  Once again, the copyright monster scares small companies from creating for fear of infringement.

In the world of copyright law, there is currently a major debate over whether or not the already granted extensions of copyrights are beneficial or detrimental to the creative process, and whether or not these extensions should continue to be made.  Up to this point, lawyers have successfully defended copyright extensions as being "good for the arts" by preventing "dilutions" of artists' works.  However, as Lawrence Lessig comments in the article, "[The media companies] have used their power to protect themselves against innovation, which is exactly what the copyright was originally set up to guard against."

If it weren't for the ability to borrow and manipulate, half of Disney's iconic figures that we as a society hold so close to our hearts, such as Mickey Mouse and Snow White, would never have existed.  And the direction in which copyright is presently going could prevent the creation of future icons.  As Lessig makes point of, artists should be compensated for their works, but such ridiculously long extensions of copyright are only hurting society.  If these extensions had existed a hundred years ago, Disney would never have been able to create Steamboat Willie from Buster Keaton's Steamboat Bill Jr., nor would we ever have been able to enjoy Snow White or Cinderella, both clearly borrowed from the stories and tales of the Borthers Grimm.

This article clearly relates to the argument that copyright can and is hurting creativity.  As it was originally intended, copyright was enacted to protect the creative process, not diminish it.  However, its direction today is butchering creativity.  Just because something is borrowed from an older work to create a new one doesn't mean that the creator of the new work doesn't have any original ideas of his own incorporated into the work.  Thus, Lessig and colleague Eric Eldred are fighting to take back the public domain and reconvert it into a lawyer-free zone.  In Lessig's words, he's trying to "Free Mickey."

In this article, David G. Post comments on Lawrence Lessig's Free Culture and his statements concerning copyright and creativity.  As is pointed out, copyright's original intention was to safeguard creativity by assuring creators that their works would be protected from replication.  It made a creator the owner of his or her creation and gave him or her complete control over what would be done with the work.  The assurance that this copyright provides in a way gives authors an incentive to create.

With regards to the other argument concerning creativity and copyright, the one in which it is claimed that copyright limits creativity, Lessig states that copyright law has, until now, for the most part "steer[ed] a middle course" and remained balanced by protecting the rights of today's creators and simultaneously limiting these rights so that the next generation is free to borrow what they want from the previous.  However, Post tells of what is currently happening and states that copyright has "swollen to gargantuan proportions" and no longer resembles, not even closely, what it originally was.

Lessig's contention for why copyright is killing creativity is that power is now concentrated in the few hands of the big media companies.  Post does not agree with this for lack of evidence and denies Lessig's substantiation of a few anecdotes.  However, with reference to film, this claim is not far from true.  Film production companies are now few in number, and even those that we believe are small indie companies are in fact owned by Fox 20^th Century, Miramax, Paramount, or MGM.  Even those movies that we believe are far from being under the influence of big media are in reality being dictated by the same big names and the same big money that your average major Hollywood production is.

In the end, whether Post agrees with this claim of Lessig's or not, he praises the author's attempts and goes as far as to say that one beginning to study copyright could "do much worse than to start with Lessig's book."