Case Western Reserve law review [0008-7262] 53.605 (2003). This is a copy of the proceedings from a symposium held at Case Western Law Review in the Spring of 2003 about the Law, Technology and the Arts, specifically copyright in the digital age in the wake of the Tasini decision. All articles in the issue are pertinent, and the one entitled Pennies for Their Thoughts pertains specifically to writers.

 

However, I found the comments of Duke Law Schol professor, David Lange, (A Comment on New York Times v. Tasini), especially intriguing. Lange, who at the time of the symposium, had just finished a term as a Trustee of the Copyright Society of the United States, suggests that "we could, in fact, live without copyright altogether." Defining copyright as "very often just an excuse for preserving outmoded business plans in industries that might profitably benefit from change," Lange presents the Grateful Dead model as a panacea to the increasingly litigious climate of copyright in today's world.He reminisces about Dead concerts at which audience members were actually invited to plug their recording equipment directly into the Dead's own sound system to upgrade the quality of the tape they were encouraged to record and share. He quotes Jerry Garcia as saying, "Once we've played it, it's yours." The Dead, in short, made money hand over fist, without concern for copyright for their performances. Lange's point, is that "it is possible generally for good musicians to be productive artists and to make money without having a copyright."

 

Lange contrasts this "authentic experience" with today's Hollywood climate, in which, he says, "good people do not work at all. . .the simple central truth about the motion picture industry is that copyright sustains a production habititat in the industry that is fundamentally antithetical to the success of individual creativity."

 

He urges consideration of Justice Ginsburg's suggestion that authors adopt the policy of licensing their works, even going as far as suggesting that this is what is meant by the fair use clause of the existing law. "It seems perfectly clear from the texts that fair use is an entitlement superior to the exclusive rights in copyright and not the other way around." Given this, Lange finds that it is entirely possible that the fair use claimant might in the future be obliged to pay for this right and this is a way to circumvent the lawyer-intensive world of licensing. He urges movement toward a "regime in which appropriation, rather than proprietorship would become the central norm," a realm in which the "public domain plays an increasingly important role."

 

i tend to think his argument is more likely to succeed than the one that urges increased scrutiny of moral rights in a country that traditionally does not place any value on these intangible qualities.