Slashdot Mirror
Supreme Court Accepts Eldred Case
Patrick Fitzgerald writes: "The Supreme Court agreed Tuesday to intervene in a fight over copyrights, deciding whether Congress has sided too heavily with writers and other inventors. The outcome will determine when hundreds of thousands of books, songs and movies will be freely available on the Internet or in digital libraries." Openlaw's Eldred v. Ashcroft page has more information about the case, which seeks to challenge the most recent retroactive extension of copyright terms.
Sig: What Happened To The Censorware Project (censorware.org)
My thoughts are that a corporate copyright should last for 50 years, and that an individual copyright should last for the lifetime of the author plus 20 years. Any copyright that was ever owned by a corporation shall always be classified as a corporate copyright.
Fifty years is plenty long enough for a corporation to reap its rewards, and an individual should be entitled to rewards for his entire lifetime. We wouldn't want copyrights to end at an author's death, because then an industry would spring up for bumping off authors of important works.
There should also be provisions for abandonment. For example, if a copyrighted work is not available for sale (including for $0.00) from its copyright holder to the public for a total of ten years, then it is considered to be abandoned.
Many scholars in the legal community have taken to referring to the Sonny Bono Act as the Mickey Mouse Protection Act, reflecting the fact that every time major corporate interests in IP (such as Disney's in its early content) threaten to fall into the public domain, these interests run to Congress for another extension.
Of course, this wasn't really about bringing us in line with EU directives; it was just a convenient cover to save Mickey's ass. Hence, you can bet your bottom dollar that in twenty years, when the most recent extension runs out, the IP lobbyists will once again descend on Capital Hill.
What this case is all about is whether this is unconstitutional. Activists like Prof. Lessig and others have argued that the Copyright Clause of the Constitution is limited by the First Amendment. Because IP rights have to be granted in the name of "advancing progress", there's a real question about whether or not giving Disney another two decades of revenues advances anyone's interests but their own.
Also, because the Constitution only grants authors rights for "limited times", granting an unlimited number of extensions, (20 years, every 20 years) constitutes a grant of an unlimited right.
And I don't think anyone needs to be a lawyer to figure that one out.
It may be cold, but at least it's clear.
Fortunately most of the people perceived as right wingers are also strict constuctionists. Scalia is one of the more right wing of the justices but he's very much a strict constuctionist. If you look at what the constitution lays out for copyright protection, it sets a very clear balance between copyright owners and the public. He's probably somebody would strike down the concept of fair use without a second thought, but if you look at the literal wording of the constitution this is what it says congress has the right to do:
"To promote the progress of science and useful arts, by securing for limited times to authors and invetors the exclusive right to their respective writings and discoveries"
The first part of this phrase is the key to victory. There's no evidence that the items being retroactively considered for copyright extension will have any benefit to the progess of science and useful arts. If anything they are guaranteeing that items that might otherwise be useful to that progress by being released in to the public domain are being allowed to decay beyond the possibility of recovery.
Ultimately it's going to depend on where the balance is struck by the court. Technically speaking the terms of copyright are still limited even under the Sonny Bono extension. It's just a question of how far can congress go before it's violating the first part of the clause.
My feeling is that the supreme court may rule that newly created works may have this extension applied to them, but that there should be no retro-active application. Since this law is to incent production of creative works, it's very hard to suggest this is needed to incent already created works. Such a ruling would maintain the spirit of the law, assuming that they don't believe that the term of copyright has breached the threshold of being limited.
This sig has been temporarily disconnected or is no longer in service
Copyright should not depend upon the lifespan of the producer. Life +20, for instance, means the possible equal of a corporate copyright if the author is 50 or younger. What if the author is 90 and on his deathbed upon publication? That means the work only qualifies for a 20 year copyright.
Or, here is another case. Your great grandfather was a famous writer. Your parents never did anything with the property where his house was, but when you inherited it, you went up there and found a first draft, never been published, masterpiece. But it has been far more than 20 years since he died and publishers refuse to publish it because it is already public domain. Which gives you NO financial incentive to see the work published.
All works should have the same set copyright period. I'd pick 20 years (the same period patents enjoy.)
Don't just complain - DO something about it!
I think the core of Eldred's case should focus not on Mickey Mouse, because as Valenti said, who cares if Mikey isn't in the public domain for another 1000 years. The argument should focus on the 10,027 books published in 1930, of which only 174 are still in print. Who is being harmed by these works being put into public domain ? Certainly Disney isn't hurt, nor the owners of the copyrights, since they aren't making any money anyway. We the people, thats who, each year there are less and less readable copies of these books. If these books are not put in the public domain, we are in real danger of loosing them. Project Gutenberg certainly isn't going to spend thousands of dollars to find out who owns a copyright, just to be told, no. As Lessig pointed out, it also stifles creativity, because no derivitive works can be done. He also pointed out two instances where an author has written a piece based on an older work, spent real money to find the copyright holder and been told NO, not, I will licence it to you for X amount of money, but NO. If we allow these extensions to stand, we get Mickey Mouse, if we don't let it stand, we get to preserve a whole body work for all time and we get a whole new body of work, which will never happen otherwise. This lawsuit should really be called Humanity vs Disney.
Fascism should more properly be called corporatism, since it is the merger of state and corporate power - Benito Mussoli
It's very interesting to note how the AP story spins the issue. The very first sentence:
The Supreme Court agreed Tuesday to intervene in a fight over copyrights, deciding whether Congress has sided too heavily with writers and other inventors. [Emphasis mine.]
The phrase "writers and inventers" conjures up images of individuals, working alone, and immediately draws our sympathy. The fact is, that the major beneficiaries of the law are corporations, a fact that never comes out in the article. And, of course, "inventors" is completely irrelevent, since inventions are covered by patent law, not copyright.
Indeed, the article's favoring of the status quo shows up even more when they note that the Bono law brings us "in line with the EU," (those Europeans, always hip and up to date), and their characterization of the supporters of repeal as "businesses that specialize in former copyrighted material," (clearly a group that leeches off of those writers and, um, inventors.)
I don't know who'll win the war, but in the propaganda battle, Lessig et al, doesn't seem to have a chance.
I am often in disagreement with the most zealous anti-intellectual property sentiments found on this board. Perhaps because my livelyhood depends on my ability to copyright and sell the reproduction rights of my work (graphic design and illustration). Copyright and patent protections are important to protect financial interests of the creators and inventors in society. Information may "want to be free" but until food, clothing, shelter and a college education for my kids is free too I want to get paid. If you make my information "free" you will get a letter from my lawyer (I've had one company attempt to "liberate" illustrations I did even before the net. They just photocopied product illustrations I had done for their competitor & put them in their own ads.)
But, the current length of copyright protection is obnoxious - and counter-productive. 70 years past the life of the author has nothing to do with encouraging or protecting creativity and invention. It has to do with protecting the interests of estates and corporations that do nothing creative at all but live off of the efforts of some long dead ancestor. Most of the time these buzzards, in their efforts to get the last scrap of meat off the carcass basterdize and demean great works of art. How many times have you heard of an estate or corporation (usually a publisher) doing something with a work of art that must surely have the artist rolling over in his grave.
Name one communist system that was based on free dissemination of knowledge.
Your argument relies on the belief as copyright as a natural property right, but this is very difficult to credibly argue. Communism is based on sharing of resources because those resources are scarce.
Knowledge is not scarce. In fact the more you share it, the more of it there is for everybody.
Rarely, if ever, is a great work supressed or lost. Most often the works *ARE* available to any and everyone.
How would you know how many great works have been lost?
What was Lessig's number? Something like 10,000 books were published in 1929, and around 1% are still in print.
shouldn't I be able to enjoy the spoils and decide the future of that great work?
You can if you want. Just don't share it with anybody. Then you have absolute rights over that work. But the second you give it to someone else, they can do what they want with it.
That is how natural rights and natural law work. Our law allows you limited time copyright, designed for the sole reason of encouraging further work. There is no notion of being able to control your work for some 'just' and 'fair' reason. That would you be restricting the rights of others.
Shouldn't I be able to go to my grave, comforted by the fact that my magnum opus will provide for my children's future?
No. They should have to work for themselves. Why should we support a system that encourages laziness?
>
>All works should have the same set copyright period. I'd pick 20 years (the same period patents enjoy.)
(Side note - I agree with your "should have the same copyright period" comment)
Where I differ with you is the "no incentive to publish" bit. That's what's changed in the past 30 years.
There once was a time when "publish" meant "spend a lot of money printing dead trees, or shining light through acetate films onto photosensitive compounds". Today, that family could see to it that the masterpiece was "published" by spending an hour scanning the document through some OCR software and posting it to USENET.
As for Mickey Rat, Disney could still use trademark law to sue the fsck out of anyone selling Mickey merchandise, or making new Mickey cartoons, by saying "Mickey is a trademark of Disney, Inc."
All that shortening the copyright term to 20 years would do allow you to say "Click here to download an MPEG of Steamboat Willie, ca. 1928".
Disney could still make new Rat products, they could still make money selling Rat products back to the '80s. Hell, they could still make money selling a "Limited Edition DVD of Steamboat Willie". (Want the DVD? Buy it from them. Just want the video stream? Download it from some d00d who copied it.)
The other Good Reason (IMNSHO) for shortening copyright terms is because, for intellectual property, there's no longer any substantial difference difference between the aims of copyright and patent law.
Both were intended to give inventors temporary monopolies in order to promote invention/innovation/science/art. But today, they're treated radically differently.
Patent: I'm Mr. Pfizer, and I invented Viagra. Here's my patent application, which shows you how to make your own. In exchange for sharing my discovery with the world, the government grants me a 17-year monopoly on producing it. Until that time is up, you gotta buy it from us, or pay us royalties to let you make it yourself. After 17 years, you can make a generic version all by yourself, and we'll have to compete on price. We're willing to do that because we think we can make back our R&D costs in 17 years.
Copyright: Here's my song! Here's my movie! Here's my program! I tell everyone how to replicate it by distributing the bitstream on shiny plastic disks. In return, the government gives me a 75-year-plus-life-of-creator monopoly on those bits? What the fsck?
If the company that invents a cure for AIDS is expected to make their money back in 17 years, why can't we ask the same of the company that markets big-titted lip-syncing chicks and goddamn cartoon mice?
The government's case in Eldred v. Ashcroft depends on at least three lies. We need to expose them and debate the real issues in order to have an informed public decide on proper copyright law.
1. CTEA "harmonizes" U.S. law with the E.U. No--it is not possible to have the same copyright term as the E.U.'s, because until 1976 term was measured from first publication, not from author's death, in the U.S. but not the E.U. The 1998 retroactive extension was not harmonization. In any event, E.U. term still differs substantially in works for hire, film productions, and anonymous works. As an example, a work first published in 1923 might be in the public domain in the U.S. if not renewed, but protected until 70 years after death if author was European. No way to harmonize this--it is just protectionism for U.S. works in Europe, for which the U.S. public pays.
2. Perpetual or lengthy terms are needed in order to preserve old films and other material. Not so--currently, film studios don't preserve even all the films they own copyright on--you see ads on TV where they try to collect money from the public for preservation. In fact, two plaintiffs in Eldred v. Ashcroft are film preservation groups who argue that the term extension makes it impossble from them to find copyright owners in order to preserve old films.
3. Authors benefit from longer terms. No--the difference between 50 years after death and 70 years is not enough incentive to cause anyone to write a book now. See the brief by Berkeley economist Hal Varian at http://openlaw.org/eldredvreno.
We assert that the ones who benefit from the CTEA are large corporations not authors--they are the ones who lobbied for the bill and paid large sums to campaigns of legislators to buy the bill.
The ones who will be hurt if we fail are authors who wish to prepare works that are derivative or try to enjoy fair use of existing works. And the public will not enjoy the fruits of their publication--innovation will be stifled if the public domain is privatized. The Internet now and the next Internet, whatever it will be, will be threatened--instead, big corporations will own all content and license our popular culture to us as pay-per-view.
Let's apply some government moderated capitalism here.
Copyrights are obviously valuable, otherwise corporations would not be prepared to spend so much defending them. However, they cost nothing to create. The government is missing an obvious source of revenue here - simply tax the ownership of a published copyrighted work that is itself sold. If you don't pay the tax, it becomes public domain. Copyrights for free items would be free of this tax.
To add spice, double the tax each year the copyright runs. For example:
Tax in year 1 - 1 cent
Tax in year 2 - 2 cents
Tax in year 3 - 4 cents
...you know where this is going.
An up-front fee (or pre-payment of tax) of $10.23 protects your copyright for 10 years.
An up front fee of $327.67 preserves your copyright for 15 years.
But you can see that after 25 years, the next fee is $335,544.32 - you need a serious income to preserve the copyright. If you don't pay, it becomes public domain.
You get the opportunity to profit. The government gets a revenue stream, and items become public domain after a reasonable time.
Obviously, the starting point and the exponential could be varied, but explaining it with a pile of pennies and a chessboard - move one square per year and double the number of pennies - keeps it simple. The fees in the early years are very reasonable, encouraging people to profit from their work quickly.
Problems?
This line intentionally left..uh..blank?
Why?
It's not a frivilous question. Creators can produce work for hire, and copyrights can be bought and sold. Copyright is a "thing", a commodity that can be traded like any other. There's no reason to end / extend it to match the creator's lifetime. What if they sell rights for forty years with a reversion clause, then die five minutes later? How long do the purchaser's rights last? Forty years? Twenty years past the creator's death? Their own lifetime plus twenty? The lifetime of their corporation?
Copyright law is in a big old mess as it is, what with work for hire and corporate ownership screwing up the notion of when it should expire. Then there's the convoluted issue of copyrights of images of artifacts (see how many claims of copyright you can find for images of the Bayeux tapestry, for example). Copyright laws need to be simplified and unified.
First, copy rights in all media need to be unified. That means no distinction between music, still pictures, moving pictures, images of art (interpretive or otherwise), or text. One law for all.
Second, one law for all needs to be applied to the rights. Copyright is a "thing". It can be bought and sold. Duration should not depend on who owns the rights. The clock should start ticking the moment the work is created, and it should stop after a fixed time, regardless of who owns the rights at that time.
Third, shorter terms. Twenty years is reasonable. Yes, that would punish some creators, but the vast majority of work is forgotten within twenty years. We're talking about punishing a small minority, admittedly the people who make the very best content.
But isn't the best content exactly the sort that should be entering the public domain?
There's an argument to be made that if you shorten terms, cynical creators might deliberately produce content that's designed to be disposable and not last the test of time. I refer you to my earlier point: we're already swamped with mediocre, disposable content. The best people will continue to create the best content for the best reason of all: because they want to, not because they think that they'll still be raking in royalties in fifty years time.
Incidentally, I'm an author. And I still think 20 years is a reasonable duration. Five years is a good run for most books. Translations in other territories can extend that, but, hey, a translation is an interpretive derivation; it's only common sense courtesy among publishers that ensures that most authors are paid for translations right now!
I've thought this through, by the way. If I write a book that's good enough to be remembered in 20 years time, and if Hollywood decides to make a $500 million film of it and to not pay me a penny for it, then I could live with that. The one right I would want to retain would be the right to be credited as the original author. If I can't leverage that publicity to make a killing on the chat show circuit, or to sell a new bunch of books, then that's nobody's fault but my own.
If you were blocking sigs, you wouldn't have to read this.
We the plaintiffs of Eldred v. Ashcroft don't need money now, but you can support in other ways.
Add your informed discussion to OpenLaw at http://openlaw.org/eldredvreno and help us prepare legal briefs.
Read up on copyright law and the case there so you are better informed, then communicate with your friends. Write your local newspaper editor.
Support online books! See http://www.eldritchpress.org/support.html
Join and send money to the Electronic Freedom Foundation: http://www.eff.org
What is to keep a MegaCorp from stockpiling authors to keep their copyrights intact. I envision an X-Files room under corpHQ with rows of authors, poets and musicians in cryotubes with hearts beating once a minute. "See, they are still alive!"
SD
âoeWho knew something as harmless as willful ignorance could end up having real consequences?â