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fundamentally weaken the opportunity for new creators to create. Creativity
depends upon the owners of creativity having less than perfect
control.
Organizations such as the MPAA, whose board includes the most
powerful of the old guard, have little interest, their rhetoric notwithstanding,
in assuring that the new can displace them. No organization
does. No person does. (Ask me about tenure, for example.) But what’s
good for the MPAA is not necessarily good for America. A society that
defends the ideals of free culture must preserve precisely the opportunity
for new creativity to threaten the old.
To get just a hint that there is something fundamentally wrong in
Valenti’s argument, we need look no further than the United States
Constitution itself.
The framers of our Constitution loved “property.” Indeed, so
strongly did they love property that they built into the Constitution an
important requirement. If the government takes your property—if it
condemns your house, or acquires a slice of land from your farm—it is
required, under the Fifth Amendment’s “Takings Clause,” to pay you
“just compensation” for that taking. The Constitution thus guarantees
that property is, in a certain sense, sacred. It cannot ever be taken from
the property owner unless the government pays for the privilege.
Yet the very same Constitution speaks very differently about what
Valenti calls “creative property.” In the clause granting Congress the
power to create “creative property,” the Constitution requires that after
a “limited time,” Congress take back the rights that it has granted and
set the “creative property” free to the public domain. Yet when Congress
does this, when the expiration of a copyright term “takes” your
copyright and turns it over to the public domain, Congress does not
have any obligation to pay “just compensation” for this “taking.” Instead,
the same Constitution that requires compensation for your land
“PROPERTY” 119