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.

Comments

In case it gets /.'ed

[Fatal0E]

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"

Thumbnail summary of the dissent

[Tau Zero]

Judge Sentelle wrote:

The government has offered no tenable theory as to how retrospective extension can promote the useful arts.

This is the entire Achilles' Heel of the indefinite-copyright advocates; the grant of copyright exists for a specific purpose, and may not be legitimately used for any other (including and especially to allow wealthy people to extract monopoly rents from the populace).

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

Re:Thumbnail summary of the dissent

[ttyRazor]

Just take a look at abandonware to see how copyright helps promote the useful arts by preserving old works. Many arcade games and other software is clearly not being preserved, especially in its original form. There is clearly a demand for it, but copyright holders only seem willing to satisfy that with crappy retreads that have little to do with the original in actual gameplay.

The case, distilled:

[Chuck Flynn]

Massive copyright extensions don't infringe the first amendment, because copyright protects speech?

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:

Their idea is that the phrase
"limited Times" should be interpreted not literally but rather
as reaching only as far as is justified by the preambular
statement of purpose: If 50 years are enough to "promote
... Progress," then a grant of 70 years is unconstitutional.

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.

Synopsis of the ruling

[The Cunctator]

"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."

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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Bad reasoning.

[Sir_Winston]

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.

From the plaintiffs in Eldred v. Reno

[EricEldred]

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.