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Appeals Court Rejects Copyright Extension Challenge
Today the U.S. Court of Appeals handed down a decision in the Eldred vs. Reno case, which challenged the most recent extension of copyright terms on the grounds that it violated the Constitution in several areas - that it violated the First Amendment by overbroadly restricting speech; that it gave protection to non-original works (since it retroactively applied to old, already-published works); and that the constant extensions of copyright terms were not a "limited Time" as required by the Constitution. The Court rejected all of these arguments. However, one of the three judges in the case wrote an interesting dissent, which at least holds out the hope that in some future case, skilled litigators may be able to convince the judiciary that permanent copyright is an unwarranted extension of Congress' powers.
From the Open Law db
Under the copyright regime existing before the Sonny Bono Act, works created by individuals, say J. D. Salinger or Elvis Presley, enjoyed protection for the life of their creators plus an additional 50 years. Works created by so-called "corporate authors," such as Disney and the New York Times, received protection for 75 years from the date of their creation. The Sonny Bono Act adds 20 years to both terms of protection, giving individual authors protection for life plus 70 years and corporate authors protection for 95 years. Thus, a symphony created by a 5 year-old modern Mozart who lives to be 85 will not be available in the public domain for the first 150 years of its existence. Eric Eldred and we at the Berkman Center think the Sonny Bono Act robs the American public of the rich and diverse public domain guaranteed by the Constitution.
"Me Ted"
BOSTON SUCKS!
There are limits on physical property. Property and inheritance taxes mean that you will constanty have to pay for whatever you own.
Well, duh, we all know that. And so do the judges. The problem is, copyright hasn't been extended to be permanent yet!
Even if, for all intents and purposes, it is far too long, it's still not permanent! And this is the problem. I personally agree that the current span of copyright is far too long. However, my opinions mean nothing legally. Face it, if they decided that copyright lasted a billion million years or whatever, it's still "limited."
When I first read of this case, my reaction was "tell me when they lose" because none of their arguments really hold water in my not-so-legally-binding opinion. This cannot be fought in court. This battle must be fought with the legislature. Write your congress-critter. Write editorials to your paper. Get people informed!
Trying to get this law overturned in the courts is the wrong way to go about it. Don't bug the judges about this - bug Congress. They write the laws. Fixing what the problems in copyright has to go through Congress. They extended copyright, they have the power to reduce it. Make it an issue. But don't fight this in the courts - it's well within Congress's right to make these kind of laws. It's a delegated power. So take the issue where it belongs - to the law makers.
You are in a maze of twisty little relative jumps, all alike.
Intellectual property is a construct; in nature, the public domain rules all and any idea which becomes understood by the public becomes the property of all. The purpose of patent and copyright protection is to promote the publication of these ideas by allowing temporary monopoly use. Progress in the useful arts includes returning things to the public domain so that others can build upon them. One thing's for certain: letting one company have a monopoly on a mouse 70 years after "Steamboat Willie" was aired has no relationship to progress.
--
Knowledge is power
Power corrupts
Study hard
Time is Nature's way of keeping everything from happening at once... the bitch.
This is false, because the categorical response to speech has always been to have more speech, which copyright prevents. Nevertheless, the Supreme Court made copyrights categorically immune from First Amendment attacks in United Video, Inc. v. FCC. That's the precedent, and the DC panel has refused to undermine it.
Similarly, the "limited times" response by the Court is absurd:
The Court's response to this argument? A meager reference to precedent in Feist Publications, Inc. v. Rural Telephone Service Co., controlling because of the Feist's court's failure even to account for the clause.
The principle of stare decisis is an important one in angloamerican law, but it's hardly an absolute rule. If precedents fail to allow for the manifestly correct verdict, then they should be overturned. It's that simple.
I take small consolation in the fact that this is merely a three-judge panel of the DC Court of Appeals and not the complete bench.
Read the rest of this comment...
I am not yet convinced one way or the other over the underlying issue involved in this case and seemingly everything else today: intellectually property. Content producers have to make some sort of compensation for their activities. Honor systems have not yet worked - witness Stephen King's experiment last year. Maybe once we start seeing micropayment system in place and more ubiquitous such schemes may pay off. I guess what I am unsure of is whether something should necessarily belong to the public domain simply because we want it. The idea that "data wants to be free" is so often promulgated by those who want to exploit resources like Napster that its credibility is diminished. One the other hand, the advances achieved by the Open Source community speak volumes about the creative capacity of the collective spirit, individuals working together to create a whole that is more than the some of the parts. I love free stuff, who doesn't, but I don't know that such a love dictates that things be free simply b/c we want them to be. Obviously what this is about is whether copyright should be extended, so it is a different beast, in some regards. However, this dicussion, the fight over Open Source (at least on MS's part its a fight), and the debate over Napster et al are all symptoms of a bigger issue. The sad thing is the gulf separating the two sides is ever widening. This struggle between conservative and liberal, if you will, is going to have far reaching consequences, beyond this issue, into medicine, space research, family planning, and beyond. Why is it that at the begining of the 21st century, the forces of yesterday are prevailing in so many ways?
There is no guarantee that the content has been read or understood.
One of the things that justified copyright in my mind is that it was meant to equate physical ownership of something tangible to ownership of something intangible.
If you invent a machine, you patent it, exploit it, and either someone invents something better or they dont. On the other hand, you create a cartoon character (an expression of thought), exploit it, someone else should try to outmarket you. Just as the machine will be obselete in however long it takes, so would the cartoon character by becoming public domain.
The thing is though that it seems unfair (for lack of a better term) to me to say that Disney should give up Mickey Mouse. He's still their bread and butter and seeing things like Mickey Chinese Food and Mickey Rolling Papers don't serve public interests. On the other hand, no one should own Mozart. If I want to produce a recital I shouldn't have to pay a licensing fee. I guess my point is that copyright is awfully subjective but it serves some purpose.
I'd have to say on some levels I agree with you but if I had to decide against permanent copyrights I would
"Me Ted"
BOSTON SUCKS!
We can own a physical object forever, I do not see why we cannot own an idea, like a Disney film or character, forever too.
You can't own anything forever. Sooner or later, you'll die.
Ownership is not an intrinsic property of a physical object, its something humans associate with it. Communism didn't 'fail' on its own merits so much as it did because of inept and twisted leaders in Russia. And when the USSR fell, it took the rest of the "Communist world" with it. However, if you look at china today, their economy is doing fine, despite they're 'communist' nature, but this is beside the point.
Capitalist systems are more 'intuitive' to humans, and they do work better then communist systems. The idea of property is just that, an idea, and nothing more. Having it, and believing in it makes our society run more smoothly then not having it.
Where is the evidence that society can't function well without a tight copyright/patent system? As far as I can see there are two fundamental differences between physical property and intellectual 'property'
+Instances of intellectual property can't be taken, only copied.
If I have an audio recording, and someone makes a copy, I'll still have my copy, I haven't lost anything, yeh maybe I had to work for it and they didn't, but I'm not a selfish person, It doesn't bother me. And there's always the issue that that particular person might not ever have even heard of the product, much less purchased it. When I pirate a copy of Adobe Photoshop, It isn't costing Adobe any money, because I couldn't have afforded it. Either way, none of my money would have ended up in their pockets.
+Most intellectual property isn't really needed
I'm pretty sure that most of here wouldn't be adversely affected by a lack of new Hollywood blockbusters, or the latest crap custom made for the glowing box. We don't really have a problem, here, we aren't really going to have a huge problem if the production of intellectual property slows down, and warnings of economic down don't make sense if you figure that people would just spend their money elsewhere. Teens might spend more money on clothes, or cars, or computer hardware, whatever. The money is still going to be spent. It will just be spent elsewhere.
And lets not forget that a lot of intellectual property is created for fun. Maybe without the commercial intent, it wouldn't be as high quality, but then again, commercial interests often pander to the lowest common denominator, and create pure garbage just because it sells. Without the motivator to sell, perhaps the quality will go up as people produce things they want to produce. I'd imagine that things like music and writing, which don't require a huge overhead would be just as prevalent now as ever.
Amber Yuan 2k A.D
"and dear god does this website suck now." -- CmdrTaco
At the same time, however, copyrights can encourage free speech by allowing authors the exclusive right to derive income from their works for a limited time. The legitimate purpose of copyright in a free society is to provide just this kind of encouragement. Any extension of copyright beyond the term needed to encourage free expression begins to act in restraint of such expression.
You make the argument that ownership is itself an intellectual idea, and that intellectual property is no different from physical property. Do you believe somehow that owning a pair of shoes is the same as owning the story of Romeo and Juliet?
When I buy a pair of shoes, I own that one pair of shoes. I don't own the rights to charge money to everyone who makes a pair of shoes that look like my shoes.
Patents, and trademarks may give me the right to restrict who can make shoes that look like mine, but these concepts restrict free trade in the same way as copyrights restrict free speech. They have value in that they encourage innovation, but beyond that, if someone buys the materials and builds a pair of shoes exactly like mine, they should be permitted to keep all the fruits of their labor.
Similarly, if someone wishes to write a new story based on Romeo and Juliet, they should not have to track down any living heirs to Shakespeare and negotiate intellectual property rights. Shakespeare had no expectation that he would own the rights to his works beyond his lifetime, and probably expected to be copied within a few years, if not months, of producing his work. A long copyright period would not have encouraged him to write more or better works.
Similarly, do you think any film or music company woould refrain from making CD or motion picture simply because they'd lose the rights in 20 years instead of 75? They make most of the money in the first couple of years anyway, and additional time is just a nice bonus in the rare cases where a work has lasting value.
Was mich nicht umbringt macht mich hungrig.
Next time with better arguments. Reading the court's ruling leads me to believe that the plaintiffs did a poor job of forming and presenting their arguments. They should have focused more on a couple of points that might have at least had a chance of making the court take a side and express an opinion on a real issue.
For example, I'd like to know how Congress thinks extending the copyright of an existing work encourages the creation of that work. I'd also like to know Congress' reasoning in determining that the extra 20 years would, in fact, "promote the progress of science and useful arts more than the previous term did." I think the government should have to explain itself, and this case did not ask the right questions to get useful answers from the government. If they try again in the future, I'd like to see them pursue these explanations.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
I would think that when someone says that something is to last for a limited time, it would be logical to conclude that by limited they would mean much less than the lifespan of an individual. If that time period was longer than the lifespan of an individual, then it is in effect an unlimited time period to those persons who live within that specific timeframe. That cannot be what they meant by "limited" when they wrote the constitution!
Sticking feathers up your butt does not make you a chicken - Tyler Durden
- Unfortunately, an appeals court failed to overturn copyright law.
- How can I trademark my project name? (At least this guy is trying to invent his own name, not take someone else's, although the precedent he cites was a case of flat-out infringement.)
- Yay! Orrin Hatch wants to restrict music copyrights.
- An interesting, if incoherent, piece about supercooling atoms with lasers.
- Oh, no! Someone lost a domain name that infringed on someone else's trademark! (I confess, I actually agree with the YRO crew on this one.)
- Some nothing about Mir
- A free ARM clone
- Mozilla totters along
- Oh, no! Napster users are facing prosecution in Belgium!
So, the majority of Slashdot is now devoted to demanding control of other people's creations? Am I alone in identifying with the physicists in the laser story who are actually creating something? Or, at least with the Swedish students who are legally copying someone else's creation?Not that I'm proposing we lie down and take whatever the world gives us -- that ruling that all domain names containing "referee" are off limits is genuinely outrageous. But where did all the hackers go?
It's not that you'd see "Mickey's Chinese Food" and "Mickey's Rolling Papers" (What are those?). It's that you'd be able to show Steamboat Willy anyplace you'd want.
The early movies, which are a part of our history and heritage would become public domain. Which is comparable to the idea anyone should be allowed to play Mozart.
The Doctor What (KF6VNC)
It's nice to have a judge see our side of it, though. (Slightly surprising, from David Sentelle--he's reputed to be quite right-wing, and I would have expected him to side with big business; I apologize to him for misjudging him so.)
A pity that both the opinion and the dissent repeated the canard that the act's purpose was to harmonize US copyright law with European copyright law--that was a lie from the get-go. Individual copyrights in Europe did extend 20 years longer than individual copyrights in the US--but corporate copyrights were five years shorter--70 years--and are now twenty-five years shorter. I guess neither the apellant nor the amici thought to mention that fact, and now it's in the judicial record where it can deceive law students for years to come. Too bad.
I donate dollar for dollar what I spend on RIAA/MPAA (movie viewings, movie rentals, cd's) to the EFF
Novel theory: Modern Man evolved from psychopath
For an author/creator: 50 years after their death - however, during those 50 years, that copyright must be held by an heir/spouse.
This way the people that should benefit from the royalties are the proper people.
For a corp (ie Disney): a use-it-or-lose-it 15-20 years after last use method. Okay...when was the last Mickey Mouse movie? 15 years after that, the mouse becomes public domain. My idea here is that if it is not a valuable enough property for them to use, then let the public have it.
While this would not help too much for something like Mickey, flash-in-the-pan things could benefit - like Roger Rabbit. When was the last thing that featured him (with new content)? IMDB says 1996 - with the Best Of, which I'll guess had some new content. So, in another 10 years he becomes the public's bunny.
However, the problem with this is that every 15 years or some, some obscure or older character will suddenly make a cameo appearance in a new title.
Perhaps the term should be longer though. In 1986, Aliens came out. That is still a very sellable title. Perhaps it should be 15 years from the last release date? At least that'd make it easier to get things on new formats as studios hurry to rush things out so they don't lose them.
> Once you own it, you shouldn't need to keep paying on it.
Which means you DON'T own it!
*cough allodial title cough*
Another solution is to become a corporate sole:
Gee, I wonder why the Queen is a corporate sole !
-- IANAEG - I am not an elder god.
While this is a legitamate argument, I find it ironic in this setting. How well would it fly if we were talking about gun law and someone brought up the phrasing and "specific purpose" given in the 2nd amendment (USC)? From my expereince here, I suspect not well.
Additionally, don't forget the 9th amendment (my personal favorite) which protects even those rights not spelled out in the document. The high court could easily find that even without the explicit language in the constitution that the right to control the fruits of your intellectual and creative labor should be "retained by the people".
Finally, on a personal note, my favorite artist was and is Harry Chapin. During his life, he set up a foundation called World Hunger Year to fight poverty in ameica and abroad (without the silly posing, he really did "fight hunger before it was cool".) AFAIK, royalies from the sales of his records, including those collections edited and published after his death continue to fund that foundation. That a man who cared deeply about something could have his the work of his life keep working years after his death is a good and beautiful thing (tm) and its hard for me to say "no, he should have lost rights to his work ten years or less after he did it and definitly terminate any control with his death" or whatever limited copyright means to this group. I also have intelectual reasons for supporting IP, but the emotional helps make it more relevant at times.
Kahuna Burger
...will work for Chick tracts...
A fully linked opinion is available on Findlaw at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?c ourt=DC&navby=case&no=995430A.
Acticle 1, Section 8 of the US Constitution grants Congress the power "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."
Extending copyrights - and patents for that matter - ad absurdium does not "promote the progress of science and the useful arts". In fact, it has just the opposite effect. A limited time to exclusively profit from one's work provides an added incentive to perform and publish creative work. (Although there is already an incentive without this added benefit, because if you don't publish your work, what have you really accomplished and who will know?) Providing extremely long periods of exclusive rights simply promotes the lining of people's pockets beyond any reasonable simple incentive.
This does not promote the progress of science or the "useful arts", but disincentivizes progress. For example, let's say you come up with a great idea for an invention or book or whatever that is based on somebody else's work. You would probably want to publish what you have come up with, but you might decide not to do so when you figure out that you will have to pay a royalty or licensing fee to the person who published the idea your work is based upon.
Plus, these ridiculously long copyrights and patents are anti-free market. It artificially inflates the price that a given idea or work would be worth if there were more than one source available. So, during the protected period of an invention's or creative work's life the price paid does not reflect it's true value or worth to society as a whole, or to those who would use it, but rather includes some value based solely on the exclusivity.
Extending copyrights (or patents) retroactively means that you are adding incentive to publish or share ideas to those who already decided that the previous incentive was sufficient - otherwise, why would they have published under the old laws. Since the Constitution only grants Congress the power to give copyright and patent protection "To promote the progress of science and the useful arts", retroactive extention of these protections is clearly unconstitutional.
The best law I've seen in dealing with this subject is Old-Testament law (and probably other laws from that period/area). What they do, is, instead of trying to give a precise description, is they give several for-instances, and let the human mind do what it does best - generalize. Instead of trying to write down the generalizations (which are never properly understood), you have several instances, and the situation-at-hand is matched against the given instances to find which it best correlates with. Some may find this archaic, but it is much better because it keeps the spirit of law much better. Now, there are always bad judges and poor interpretations, but this method of law I think gives the best framework.
Engineering and the Ultimate
In oral argument, though, the question of whether Plaintiffs had standing under the First Amendment to bring this challenge became a very big issue indeed, to the point that some were worried that the case might be lost on that ground.
While no real solace to the Plaintiffs here, the Court found that there was a sufficient nexus to the harm which Plaintiffs might suffer so that they did have standing to challenge CTEA. That part of the decision, which was unanimous, certainly can be helpful in other contexts relevant to the kinds of matters often discussed in YRO.
The government has offered no tenable theory as to how retrospective extension can promote the useful arts.
IIRC, the government doesn't have to, since the plaintiffs did not make a consistent case that promoting the useful arts had anything to do with a limitation of congressional power. This is unfortunate, because excepting the argument about limited terms, the other two arguments they placed forward were obviously ridiculous. Here's what the ruling says about their attempts to argue the limited term contention:
Here the plaintiffs run squarely up against our holding in Schnapper v. Foley, 667 F.2d 102, 112 (1981), in which we rejected the argument "that the introductory language of the Copyright Clause constitutes a limit on congressional power." The plaintiffs, however, disclaim any purpose to question the holding of Schnapper; indeed, they expressly acknowledge "that the preamble of the Copyright Clause is not a substantive limit on Congress' legislative power."
So everyone agrees that the preamble is not a limiting factor on Congress's power because the courts have previously ruled this to be so. I guess being lawyers, they must argue this way. However, to actually believe that the preamble doesn NOT limit congress's power is to believe the clause as written is sheer nonsense.
Literally speaking, 10^50 years is a "limited time", even though it exeeds the probable lifespan of the entire human race. The majority does admit that it is possible to challenge copyright extensions based on rationality, but not rationality to pursue the purpose of the copyright clause. If this is true, then the founders were blowing smoke out there ass when they used the word "limited", since any period can be used if it can be argued to serve any purpose, however limited and ultimately detrimental to public discourse.
Judge Sentelle's dissent is a masterful piece of legalistic quibbling that attempts to show that something that walks like a duck and quacks like a duck is not necessarily a duck. He argues that the preamble is not a preamble per se, but an explicit grant of power to Congress to "promote the useful arts." Congress if further granted the means to pursue this "By securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Thus Congress has no explicitly enumerated power to secure exclusive rights for an author, except as a means to promoting the useful arts.
This is actually a pretty good argument, except that it does not differ in any meaningful way from saying that the preamble is a limitation on the power of Congress to grant copyrights. If you accept that the preamble does not "limit" Congress power to secure monopolies for authors, you cannot also hold that Congress' powers are expressly enumerated in the constitution.
It looks to an outsider like a bloody mess, and it will probably take the Supreme Court to sort it out.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Bzzzt, sorry. Thanks for playing. The difference between physical property laws and intellections property laws is quite obvious. (I'll assume you meant property above, since there isn't such thing as a "physical copyright" law.)
Physical property laws exist to protect something that is naturally scarce. If you take the computer desk I built, I no longer have my desk. However, you're completely free to make your own computer desk, and to even make your desk exactly the same as mine. Maybe I worked hard to make it a really well designed computer desk, but you're free to take advantage of all my hard design work and make exact copies. If technology is developed that lets you easily make exact copies of my desk, I'm still out of luck. This is perfectly reasonable, since your creation of a desk hasn't taken my desk from me.
Now let's say I create something protected by intellectual property law. I think I'll write a novel. To an extent, physical property law still applies. If you steal my manuscript (and I didn't make a backup), I no longer have it. If we're treat physical and intellectual property similarly, why can't you make copies of my novel? After all, I'd still have my original. Copyright law creates an artificial restriction that limits what you can do.
Why not? Because ideas tend to propogate. The common phrase for this is "Information wants to be free." Information and ideas aren't alive, they don't really want anything, it's simply a quotable simplification of the fact that information tends toward freedom. Your seeing my desk doesn't give you a desk. However, your seeing my desk does give you the idea of my desk. Once you've seen my desk or novel, nothing I do can keep you from taking that idea away from you. Trying to restrict the spread of an idea runs against the natural tendencies of ideas (or more specifically, the natural tendencies of the humans holding those ideas). Granting "ownership" of an idea is granting ownership of ideas held in other people's heads. It's granting control over what other people can do. I, for one, don't want to live in a world where most of the stuff in my head in "owned" by someone else.
Copyright was created in the United States dispite all of these problems "to promote the progress of science and useful arts...." It was decided it was worth fighting the inevitable "for limited times" to this end. It was not an attempt to create an eternal privledge.
I think those who would extend copyright laws are trying to deny our freedoms. Copyright law gives other people control over what I can and cannot copy.
Search 2010 Gen Con events
> The division between physical copyright laws and intellectual copyright laws, is then a false dichotomy.
Nonsense. There are two major differences between physical property and intellectual property.
1) Physical property cannot easily be replicated. Hence, if you give someone else an object, you no longer have that object. Intellectual property can typically be replicated trivially. If I give someone else an idea, then I still have the idea. This is a critical distinction. The whole notion of right to life, liberty, and property exists in the context that you cannot casually be deprived of those things. Nobody's arguing that anything should be taken away from anybody. Disney can continue to use Mickey Mouse if the copyright lapses. They just wouldn't be able use the government to prevent others from using it as well.
2) The whole concept of intellectual property runs contrary to free speech, and by implication the concept of liberty. By granting permanent, exclusive license to an idea, government prevents others from using or sharing that idea freely, and that deprives individuals of their liberty. Intellectual property, unlike physical property is wholely and entirely a construct of the government.
If you refer to the Constitution, the intent was that copyright laws be finite in duration (much like patents). Since they admittedly restrict liberty, they are only defensible in that they promote the arts (the constitutionally stated purpose behind copyright law). As the dissenting opinion pointed out, extending the duration of copyright on works already created does nothing to stimulate the creation of those works (especially when the creator is already dead, as in the case of Walt Disney).
The real hypocrisy of Disney (the corporation) in this matter is that Disney has a history of making films based on works that have lapsed into the public domain (thereby sparing themselves the expense of buying film rights to copyrighted works in many cases). The concept of copyrighted works lapsing into the public domain is an old one, long predating Marx, and Disney has taken thorough advantage of it. They should be willing to give something back eventually.
I understand you're new around here. I suggest you read our Constitution before you start calling us all a bunch of Marxists.
I think that those who would limit intellectual copyright laws are trying to deny our freedoms, and imposing an unworkable and unfair solution.
Do you feel the same way about patents? Should they last forever? Doesn't allowing patents to expire infringe upon the freedom of the creators to continue to profit from their invention?
On a seperate tack, don't you think there should be some sort of time limit? Should William Shakespeare's descendants be making royalities off every copy of one of his plays sold? Or any movie based off one of his plays? Or how about Mozart's descendants getting paid any time one of his symphonies are performed?Before you answer that, consider that had those works not passed into the public domain years ago, it would be highly unlikely they would be as well know now... Their works would have been performed less, made into books/records/movies/whatnot less, etc.
Copyrights need to expire at some point. I'm not saying I know what the magic number is, but it needs to happen eventually.
I do not see why we cannot own an idea, like a disney film or character
Note that Mickey himself is a trademark... so his ownership isn't going to expire, regardless.
Josh Sisk
The plaintiffs are corporations, associations, and individuals who rely for their vocations or avocations upon works in the public domain: a non-profit association that distributes over the internet free electronic versions of books in the public domain; a company that reprints rare, out-of-print books that have entered the public domain; a vendor of sheet music and a choir director, who respectively sell and purchase music that is relatively inexpensive because it is in the public domain; and a company that preserves and restores old films and insofar as such works are not in the public domain, needs permission from their copyright holders -- who are often hard to find -- in order to exploit them.
The CTEA is but the latest in a series of congressional extensions of the copyright term, each of which has been made applicable both prospectively and retrospectively. In 1790 copytight term was established at 42 years. In 1909 it was extended to 56. Between 1962 and 1974 the Congress passed a series of laws that incrementally extended subsisting copyrights. In 1976 the term was drastically increased to the life of the author plus 50 years. The CTEA amends this scheme by adding 20 years to the term of every copyright.
The preamble "To promote the Progress of Science and useful Arts" does seem to establish a guideline for how to limit copyright. But the Schnapper ruling of 1981 rejected the argument "that the introductory language of the Copyright Clause constitutes a limit on congressional power." The plaintiffs did not dispute Schnapper. Therefore the court can't consider the argument that the preamble limits Congress's powers.
Even if the court could, it would still rule the same way. The CTEA is in line with the European Union, and that's "a powerful indication" that the CTEA is necessary and proper, since we love ABBA. So what if the EU is not bound by the Copyright Clause of our Constitution? The court believes that extending copyrights actually preserves works because it gives copyright owners a motivation to preserve them, and thus "promotes Progress."
In sum, we hold that the CTEA is a proper exercise of the Congress's power under the Copyright Clause. The plaintiffs' first amendment objection fails because they have no recognizable first amendment interest in the copyrighted works of others. Their objection that extending the term of a subsisting copyright violates the requirement of originality is stupid because something doesn't lose originality by being out of copyright. Duh.
Whatever wisdom or folly the plaintiffs may see in the particular "limited Times" for which the Congress has set the duration of copyrights, that decision is subject to judicial review only for rationality. This court is deferential to the judgment of the Congress, and the courts shouldn't stick their noses into it. This is no less true when the Congress modifies the term of an existing copyright than when it sets the term initially, and the plaintiffs -- as opposed to one of the amici -- do not dispute that the CTEA satisfies the preamble. Maybe if the plaintiffs actually argued this point -- which we think Schnapper indicates they'd lose -- before a full court, they'd have a case. Till then, fuck off.
Dissent by Judge Sentelle
I just want to say that I probably would have ruled against the plaintiffs too, but my fellow judges are nitwits, so I'm not going to agree with their reasoning.
Even though the plaintiffs didn't dispute Schnapper, an amicus brief did. When the other judges say they can't consider that argument, they're being asses. In fact, it's what amici are for. (As long as it's not introducing new issues, and merely arguing the same issues in a new way, it's fine.)
Also, I'm a strict constructionist (wassup, Dubya), and I don't think Congress can just go around passing laws as it damn well pleases. And these copyright extensions are effectively extending copyright indefinitely. The government has offered no tenable theory as to how retrospective extension can promote the useful arts.
I don't even think Schnapper is applicable in this case, because Schnapper dealt with limited questions related to the application of the copyright laws to works commissioned by the U.S. government. And what the fuck does the European Union have to do with our copyright law? Goddammit.
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Make mine methylphenidate.
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Make mine methylphenidate.
Re: #1, not precisely.
As I understand it there's quite a battle going on regarding treaties. Basically, can treaties self-execute as law when agreed to, or would Congress have to pass laws in the normal manner to bring the US into compliance with otherwise toothless treaties.
The issue is this: Constitutionally, the powers of the Executive and Legislative branches are limited. For example, only the House may propose an appropriations bill, and it may only become law if passed by majorities of the House and Senate, and signed or allowed to pass into law by the President.
So, if treaties can self-execute, could not the Senate and the President, without any input whatsoever from the House, agree to a treaty that levied a tax?
They have no Constitutional power to do so directly. What is at stake is their ability to do so indirectly.
I'm pretty firmly in the non-self-executing treaty camp. What parts of the government have no power to do on their own, they have no power to do through other means.
Treaties can have no actual binding force if no laws are passed enacting the provisions of the treaty. To do otherwise would be to place our soverignty in the hands of 2/3rds of the Senate, the President and foreign nations. Which would be highly unconstitutional.
This also implies however, that any treaty (or provision therof) which requires unconstitutional laws to be passed to enact them cannot take place. Thus, if the courts rule current copyright terms to be unconstitutionally long (they are IMHO, and I'm a frickin' artist!) those parts of the treaties (and any enacting laws) go to jail, go directly to jail, do not pass go and do not collect $200.
A few good ruling in the courts could bring the whole house down to acceptable and legal levels.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Just because something doesn't have a physical manifestation doesn't mean that it isn't worth anything. If I hack into my bank acount and "update" the balance, I haven't "taken anything" from anyone, it doesn't "cost anything" according to you....but the fact is that it does. It costs everyone else in the diminished value of their holdings. This is exactly analogous to you pirating an Adobe product because you don't want to pay for it; there IS a cost associated with stealing that software, in that it diminishes the value of others' work as well as the capital and educational investments made by the investors (and the programmers, marketers, educators, suppliers, etc...). The world would be a much less interesting and lively place to live if no one had any incentive to produce intellectually grounded works and expect compensation. Make no mistake, there would be much MUCH less intellectual output today if no one was compensated and their output wasn't protected. You may not like the fact that others are making money that you aren't, but that doesn't automatically make it acceptable for you to take it by force or other means.
Note that I am not defending the excesses that can occur under the current system....but just as I wouldn't advocate eliminating alcohol from society just because a small percentage of people abuse it, I can't condone violations of IP law just because a few IP owners abuse their position. To do so would in fact undermine the rights and protections we have in our modern world, not enhance them.
In an ideal world, maybe we wouldn't need IP law and IP protections...everything could be free because there would be no scarcity, and hence no need to enhance that scarcity to encourage production. But as long as there is scarcity in ANY part of our economy, losses in any OTHER part of the economy diminish the value of the whole. But then again, in an ideal world no one would be stealing tangible objects either...or killing, maiming, insulting, assaulting, etc. etc. etc.
Nothing personal, but that is roughly the worst reasoning I have ever heard. Just because one person decides to use the money he has gained through constitutionally shady means for a good purpose, does not make it right that he got that money in the first place. That's like saying, "Well, when that theif stole my car and sold it, he gave the money to the homeless, so it's okay." Umm, duh, it's not okay. It was *your* property, stolen, and just because the proceeds were given to a good cause doesn't make it right.
How does this relate directly to copyright law? People--big corporations and wealthy IP brokers--are *stealing* our property--our IP. Once copyright expires, the work becomes public domain--meaning it belongs to all of us, to the society and culture which inspired and nurtured it in the first place. So, people who extend copyright beyond constitutionally intended terms are *stealing* from our entire culture, from all of us. As a specific example, about six years ago the RIAA started demanding royalties from the Boy Scouts of America for singing popular campfire songs. These are songs which have been sung around the campfire for decades, some which my grandfather probably sung when he was a boy, which would have obviously been public domain and freely used if copyright had not been stretched and beaten into submission by organizations like the RIAA--and here, they were trying to extract royalty payments from the Boy Scouts! How much more evil and greedy can you get? Denying kids the opportunity to sing songs which had become part of our cultural heritage, unless they pay up. That is fucking disgusting, and attitudes like yours allow it to happen. You're well-meaning, but you lack understanding of the scope of this IP mess. Do you want everything ever written, sung, painted, or filmed to be copyrighted and forbidden to use and forbidden to become part of the public culture, until it's so old that it's too late for anyone to bother? Because, that's what we're in the process of doing. People are afraid to create things that are too closely inspired by works which may have been created fifty years ago, for fear of being sued for copyright infringement. Studios won't touch many things, and keep releasing tired retreads of movies they made forty years ago--and why not, it's still their IP, why innovate when you can just reach into the vault and mindlessly vomit something back up? The Boy Scouts and other ouh groups have to keep kids from singing copyrighted songs around the fire, or worry about paying royalties. That's sick. Our whole goddamned society is fucked up because of corporate greed like that.
"The more corrupt the state, the more numerous the laws."--Tacitus, *The Annals*
Honor systems have not yet worked - witness Stephen King's experiment last year
Check out the income/expense report at Stephen King's web page. He made $463,832.27. That's NET not gross. Sure that's peanuts for Stephen King but I'd say that's damn good for experiment #1. King tried to point this out to the publications that called it a failure, but they didn't publish his letters. Can you guess why?
Yeah this has nothing to do with copyright terms but I felt like pointing it out!
. If I hack into my bank account and "update" the balance, I haven't "taken anything" from anyone, it doesn't "cost anything" according to you
No, according to me you would have stolen money from the bank, duh. They might not know where it went, but they certainly wouldn't have it anymore.
IS a cost associated with stealing that software, in that it diminishes the value of others' work as well as the capital and educational bla, bla, bla, bla....
You use a lot of words here, and say nothing. My using Photoshop without paying for it doesn't diminish the value of the work done by Adobe in anyway unless I was going to pay for it. Whether I use the software or not has no effect on the value, the compensation, whatever.
Amber Yuan 2k A.D
"and dear god does this website suck now." -- CmdrTaco
The plaintiffs in Eldred v. Reno thank all those who participated in the debate about the constitutionality of copyright extension. We especially wish to thank our many supporters and those who gave the case direct aid (we haven't needed money, just brains). The Berkman Center for Law and Internet at Harvard Law School, Lawrence Lessig (now at Stanford), Charles Nesson, Jonathan Zittrain, and the law firm of Jones, Day, did an outstanding job of representing us pro bono against Bono.
We have not decided about an appeal. We will be discussing that this weekend, and we look forward to your ideas. You may direct them, on either side, in the OpenLaw forum, at http://eon.law.harvard.edu/openlaw/eldredvreno/.
Although we lost this particular case this time, the battle of strong "intellectual property rights" advocates against the freedom of the rest of us goes on. Cases such as the DeCSS cases and others demand our participation in deciding issues about how law and technology can get along. The issues have extended from copyrighting books now to copyrighting the human genome. Patents on AIDS drugs may meant life or death for many people in Africa who could never afford a computer.
It is important that we not get discouraged, but that we continue the good fight--we are right, we will eventually prevail, and your children will appreciate what you can do right now in this long struggle for freedom online. Thanks for taking part in this debate and discussion.
The basis of this claim is the supreme court's precedent Harper & Row vs Nation Enter.that explains how the regime of copyright itself respects and adequately safeguards the freedom of speech protected by the first amendment.
The court explains this inherent protection as residing in the distinction between non-copyrightable ideas and copyrightable concrete expression.
The court reasoning is self-contradictory. According to this line of reasoning
The first point makes an impossibly hard distinction between concrete words and ideas. Can I express the idea of Donald Duck without using the concrete expression "Donald Duck"? Try at home! Can I express the emotional force of using obscenities in a clean language?
The second point is both circular and self-contradictory. The court admits, pace itself, that there is some tension between the Constitution's copyright clause and the first ammendment.
It should follow that copyright is a restriction of speech ( otherwise, where the tension?). And therefore any statement that a copyright regime adequately safeguards free speech must come not from the principle of copyright (which is in tension with the free ammendment), but from the balance obtained in a particular application of copyright. In other words, the totality of copyright, the free use of ideas, the "fair use" doctrine, the time limits, etc., constitute a balance. Any act that changes that balance cannot possibly be sanctionned based on the constitutionality of the previously existing balance. Yet the court draw the opposite conclusion: the (untenable) distinction between ideas and expression has always been held to give adequate protection to free expression. Thus the court basicly says that an issue of fact, whether free expression is preserved by a particular act of congress, can be decided in principle without attending to the facts and to the particular act in question.
If we were to apply it to other laws, no law would ever fail. Since every law that affects constitutional balance ( security vs. privacy , free speech vs. harm , etc.) is passed on the background of a balance that has already been sanctionned as constitutional.
It almost seems pointless to argue. As Bush vs. Gore made plain, legal arguments are used as FUD to cover deep political symphaties. I bet that any research will discover that the majority has a record of protecting commercial interests and the dissenter has a record of protecting civil rights.
-- look, cheese ahoy!
There is a meaningful difference.
Physical property, once exchanged, is still held by only one person.
IP, on the other hand, can be given and kept at the same time since the cost of copying digital data is essentially zero, and once you have a perfect copy, I haven't had to give mine up to give it to you.
In other words, we are creating artificial scarcity to make *intellectual* property act more like physical property because that's what we're used to. This is, to put it mildly, extremely stupid.
Bryguy
microsoftword.mp3 - it doesn't care that they're not words...
Treaties must be approved by the Senate before they become effective, no matter what the President does.
Historical Example: The League of Nations Treaty, negotiated and signed by Woodrow Wilson. The Senate rejected it, and American never entered the League of Nations.
Once a treaty is executed and is approved of by the Senate, then it supercedes federal law, and state law in areas over which the federal government has power (Commerce, etc.)
144l. ph34r my 133t l3g4l 5k1lz!
The way copyright law is is that a person can restrict all other people from doing anything similar enough to what they have already done.
This is the way US copyright law works, becuase it was specifically intended as a short term attribute. Other copyright laws which started out long term tend to be far narrower in what is considered an "Infingement".
Similarly, if someone wishes to write a new story based on Romeo and Juliet, they should not have to track down any living heirs to Shakespeare and negotiate intellectual property rights. Shakespeare had no expectation that he would own the rights to his works beyond his lifetime, and probably expected to be copied within a few years, if not months, of producing his work.
Also Romeo and Juliet is simply a rehash of a pre-existing story anyway.
Similarly, do you think any film or music company woould refrain from making CD or motion picture simply because they'd lose the rights in 20 years instead of 75? They make most of the money in the first couple of years anyway, and additional time is just a nice bonus in the rare cases where a work has lasting value.
Sometimes even less. An even more silly example would be a newspaper. You also have situations such as commercial software companies which explicitally consider old versions "obsolete" after only a few years.
For example, the copyright of a book can be 5 years. While the copyright of a computer software might be 3 years.
Such a timescale also means that there will be copies to go into the public domain. With the current set up it's quite likely that in order to get anything into the public domain will need an acheologist. (Especially if it's been dumped in a landfil for 50 years.) Even if the media is robust enough will anyone be able to read it in even 20 years?
What gets me about copyright extension is that for popular artists, it creates a government handout for their estates and offspring. Why on earth should someone's children profit from continuing sales of their parent's works?
Or even grandchildren...
Depending how many of these copyrights actually belong to the original creator. Rather than having been sold to some publishing company.
You have that problem no matter what. This method gives you the benefit of how the brain works normally. Usually, the examples themselves limits the context of the law. The way you keep this from getting out of control is to appoint good judges, and, well, that has always been the case. This differences is, with U.S. law, its hard to tell what the lawmakers were thinking, and therefore hard to rule on what the law is trying to say. With "law-by-example", it is much easier for an honest judge to understand the intent of the law. A dishonest judge will not work well in either case.
Engineering and the Ultimate
Your straw man irritates my sinuses, so let's return to those thrilling days of yesteryear and read the actual argument in question:
(Emphasis added to make it a bit more obvious that the objection was is not to IP per se, but to the encroachment of IP into what had been the public domain.)/.
/. If the government wants us to respect the law, it should set a better example.
and who, exactly, are you?
Amber Yuan 2k A.D
"and dear god does this website suck now." -- CmdrTaco