Sat 17 Sep 2005 05:24:40 PM PDT
Obscenity (and indecency and violence) and copyright
Although current law doesn't provide for any different treatment for obscene, indecent, or, might I add, violent works, there's no reason why Congress couldn't fix the law to make it so. After all, copyright is just a government subsidy program, as Stewart Baker writes in a Wall Street Journal op-ed, and Congress has the power to apply it as Congress sees fit. The First Amendment keeps Congress from banning naughty works altogether, but the Constitution doesn't mandate Congress to give anyone a copyright, and it certainly doesn't require Congress to create a corporate welfare program for gonzo dot com. "So if conservatives really want Janet Jackson’s attention, not to mention MTV’s, they should stop lobbying the FCC and start asking why obscene and indecent performances should be given 95 years of statutory protection," Mr. Baker writes.
Congress might make noise about naughty copyrighted works but they have a big hammer in their toolbox—copyright law—that they're not even talking about using. Why give the copyright industries a blanket subsidy to make any old nasty thing when, for those works that don't promote the progress of science and useful arts, you could cut the copyright back to a year or two?
Making the copyright term shorter for obscene, indecent, or violent works would tend to redirect investment out of producing them, toward more beneficial uses. And incenting people to move private-sector investments around is one of the reasons that government subsidy programs exist in the first place. Congress shouldn't pick and choose which authors to subsidize? Congress picks and chooses private interests to receive subsidies all the time.
So enough with the pointless committee hearings about sex and violence in the media. Time to get the big hammer out and get ready to use it.