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Supreme Court hears Copyright challenge

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Declan McCullagh has filed a story on the copyright case and Linda Greenhouse reports for the NY Times (registration required).

Kwindla Hultman Kramer has posted her account of the arguments, SCOTUSBlog has a post by Supreme Court litigator Erik Jaffe (scroll down to 1:34 pm), and LawMeme has another account.

Salon has a journal on the trip of the Internet Archive’s Bookmobile to hear the oral arguments (which I wrote about earlier). Most of the 200 people who waited in line didn’t get in to attend the arguments.

Declan has photos taken outside the Supreme Court (there are also links to photos of the bookmobile). If you scroll down a bit on Lawrence Lessig‘s page, they are adding links to coverage and other accounts. And there is more at Google News. For more background, see the opposing copyright extension site.

In the story on the case on NPR this morning (the evening report will be here), Jack Velenti argues that studios wouldn’t restore films if they no longer hold the copyright. This ignores the fact that most of the studios have been awful at film preservation. If Bono is overturned, the studios would still have the resources and marketing skill to produce special edition DVDs which would outsell any cheap public domain editions. And it would allow the release of the many films which the studios would never release because they couldn’t make money from them.

An example is you can get a cheap public domain version of The Third Man on DVD for $6 or you can buy the far superior Criterion special edition from a restored print with extensive supplements for $36. Most who’ve seen the two DVDs will agree the Criterion version is well worth the extra $30 (there is also a restored Criterion special edition of the 39 Steps and a cheap public domain version).

Further perspective from David Streitfeld in the LA Times:

    Many Films Are Lost

    Only 20% of the films made in the 1920s still exist, according to the Library of Congress. Sometimes, destruction came at the hands of the studios, who wanted to salvage the valuable silver from the nitrate reels. In other cases, the films wasted away from simple neglect.

    An unknown but higher proportion of the era’s blockbusters, the full-length feature films, survive. Some are readily available, and some are available only with difficulty in secondhand versions. Many languish unseen in studio vaults, in the holdings of amateur and professional archivists and at the Library of Congress.

    Even Harold Lloyd’s “Safety Last,” which has the iconic scene of the hero dangling from a clock–probably the most famous image from the silent era–is generally unavailable.

    So are Michael Curtiz’s “Noah’s Ark” and Clarence Brown’s Klondike tale “The Trail of ’98,” both epics that were the “Titanic” of their day. Capra’s “Power of the Press,” starring Douglas Fairbanks Jr. as a cub newspaper reporter, also is highly regarded but extremely difficult, if not impossible, to see.

    The motion picture association’s brief takes direct aim at Agee’s assertions, saying it instead will “offer the Court a real-world perspective.”

    First of all, the brief says, the industry is doing all it can to preserve what still can be preserved.

    “Studios have started to devote millions of dollars each year to preservation and restoration,” the MPAA says.

    One acknowledged role of copyright is to act as incentive: The creator of a successful work enjoys certain benefits, usually financial, that inspire someone else to create. But if the studios don’t own the original works, the MPAA brief argues, they probably won’t be able to produce derivative works such as anniversary editions.

    An example cited in the brief is Warner Bros.’ 50th anniversary edition of Orson Welles’ “Citizen Kane,” which is not only restored but includes newsreel footage of the premiere and running commentary by director Peter Bogdanovich and critic Roger Ebert. Nor would Warner Bros. spend $350,000 to restore “Casablanca” if it didn’t own it, the motion picture association says. (To reacquaint the justices with these classics, the MPAA sent DVDs to the court.)

    “Petitioners,” the brief notes, “may take issue with this logic.”

    Boy, does he. The camera negative of “Citizen Kane” was rendered for its silver content in the mid-1970s, Agee said. It’s only because a Library of Congress vault custodian made a copy that Warner Bros. had first-generation material to restore.

    “The brief conveniently fails to note that all of these classic studio films which have supposedly been preserved have mainly been preserved at the taxpayer’s expense by the Library and the American Film Institute,” Agee said.

    At Universal Studios, silent films were burned whenever fuel was needed for a fire scene. Yet they still control the rights.

    A Call for Public Access

    Kevin Brownlow, an Englishman who is the leading historian of the silent era, believes that all silent films should have long ago entered the public domain.

    “These films are your history,” he said. “Quite apart from their value as entertainment, they present an image of America that isn’t just a period confection. It’s the real thing. This is the way people lived, the way they looked, and it’s absolutely priceless. To think it’s being allowed to rot is a cultural crime.”

    Still, Brownlow doesn’t think overturning the Bono Act will usher in a golden age of rediscovery.

    For one thing, there’s the problem of music.

    Many hobbyists who would want to reissue a treasured silent film couldn’t afford the full orchestral treatment it would demand. But at least the law’s removal would greatly ease the way for documentary makers.

    “We have to pay the studios absurd amounts, up to $10,000 a minute, to excerpt films they’ve forgotten they own,” Brownlow said.

    The historian immediately thought of one silent film he’d like to reissue if the Bono Act were struck down, but he was silent on what it is.

    “I’d better not mention the title. I have the only print of it,” Brownlow said. “The studio holds the rights, and they don’t want to do it themselves. So many minor works are hidden because of copyright.”

    Agee, too, has a few films he’d like to bring back, including “The Winning of Barbara Worth,” the last of the silent epic westerns that marked Gary Cooper’s debut.

    “There are so many silent movies that are in people’s basements,” Agee said. “They can’t show them and don’t know who owns them.”

    As for his Laurel and Hardy films, Agee acknowledged that Roach could face competition, but he’s confident that his studio’s clean, crisp versions would win out.

    Besides, he said, “Anything I lose, I could make up by putting out other films…. Even if I lost everything, I’d still be opposed to this law.”

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