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The founding fathers had copyright right

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Inherent Vice
By Lucas Hilderbrand
Duke University Press, 352 pp.

One of the duties given to Congress in Article I of the Constitution is "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

What this means—contrary to many people's understandings of what copyrights are for—is that copyrights and patents don't simply exist to enrich their authors and inventors; rather, the idea is to allow these people to have "exclusive right" to created works "for limited times" only insofar as this is necessary "to promote the progress of science and useful arts." Copyright, in other words, is a means to an end, not an end in itself.

This original vision has surely been lost. The Copyright Act of 1790—the first passed by the U.S. Congress—set copyrights for a single term of 14 years, with renewal possible for a second term of 14 years if the author was still alive. Today copyrights last for the life of the author plus 70 years, which in practice means that almost nothing created during your lifetime will be out of copyright for as long as you or your children are alive. To take but one example, generously assuming Joss Whedon lives until he is 80, Buffy the Vampire Slayer (1997) will not enter the public domain until 2114—especially ironic given the show's own use of public domain works like Dracula.

Worse, it's not clear that anything currently under copyright will ever be allowed into the public domain; corporations like Disney have successfully lobbied for copyright extension whenever 1920s properties like Mickey Mouse have come anywhere close to losing protection.

University of California-Irvine professor Lucas Hilderbrand intervenes in this fraught legal situation with Inherent Vice: Bootleg Histories of Videotape and Copyright, a sort of love song to the VCR—one much needed in this age of YouTube. Hilderbrand's book tackles the rise and fall of the videotape from both technical and legal perspectives, looking at the way easy access to reproductive and storage technologies has forced changes in copyright law and in the principle of fair use, which allows people to use copyrighted material without payment for the purposes of art, comment, criticism or personal use.

This is necessarily a story that hinges on boundary cases, on the shadowy, the suspicious and the quasi-legal. In particular, pornography becomes unexpectedly central in this narrative, not only driving the success of the VHS format against the early Sony Betamax product but also helping to establish the "bootleg" aesthetic that, Hilderbrand argues, is videotape's most enduring legacy. Along the same lines, the book's most compelling chapter tells the sordid history of Superstar: The Karen Carpenter Story (1987), a short film from director Todd Haynes that depicts Carpenter's decline from anorexia using modified and mutilated Barbie dolls and which can no longer be distributed in any form due to a successful copyright lawsuit from Carpenter's brother and musical collaborator. For years since the lawsuit, Superstar has circulated only through copies of copies of copies; the versions of the film that now periodically appear on Google Video and YouTube are naturally drawn from these bootlegs as well.

Hilderbrand necessarily turns to YouTube in his conclusion, as the popularity of the site has posed as radical a challenge to copyright law as the original release of VHS. For all the lawsuits thrown at YouTube and Google by corporate owners of intellectual property, it is far from clear that these services have cost them any profit whatsoever, and in fact may amount to nothing more than free advertising. Performers like Jon Stewart and Stephen Colbert have made no secret of their fondness for YouTube, harkening back to the strong incitement-to-bootleg that ended every episode of that old 1990s cult classic, Mystery Science Theater 3000: "Keep circulating the tapes."

Hilderbrand presents a strong case that personal recording technologies (in both analog and digital forms) represent a crucial site for both political struggle and public action, even civil disobedience—implicitly warning that fair use is something that needs to be fought for or else it will be subsumed by copy-protection schemes and corporate enclosure. It's no wonder, then, that his own book has been issued under a Creative Commons license that allows for any non-commercial, non-derivative reproduction with attribution—a model for copyright and fair use that is far more in line with the original intent than the current Mickey Mouse politics of perpetual extension. For a long time, VHS was the front line in this struggle between the public good and private ownership—and though the fight may move to other formats, it will go on.


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