Jeffrey Rosen on the Eldred case

Interesting and insightful commentary on Larry Lessig’s case against the CTEA. “In Congress, defenders of the CTEA came up with only one argument for how the act might promote creativity. They testified that the act could encourage major studios to digitize hit films from the ’20s and ’30s by extending their economic value. But this argument is not convincing. As the head of The Hal Roach Studio–the leading restorer of Laurel and Hardy and other films from the ’20s and ’30s–argued in a principled brief that clashed with his financial interests, the CTEA extends the copyright for 19,000 films made between 1923 and 1942. Of these, only 5,000 continue to earn royalties, which means that the remaining 14,000 have little economic value but are of great historical interest. Many of these are “orphan” films whose copyright holders are very difficult to track down today. The CTEA makes restorations of such films economically prohibitive by requiring nonprofit restorers to hire private detectives to track down the lost copyright holders for the music, the credits, and so forth. As a result, the orphan films will continue to rot unwatched in the Library of Congress. And even if the CTEA actually did increase the incentive to restore these films, as Congress unconvincingly concluded, the preservation of 14,000 films hardly justifies the removal of more than 400,000 other creative works–books, poems, songs, and photographs–from the public domain. ”