Slashdot Mirror
Eldred Attracts Heavyweight Supporters
dipfan writes: "Opening briefs have now been filed with the Supreme Court for the Eldred v Ashcroft copyright case, arguing that the Sonny Bono Copyright Term Extension Act is unconstitutional. The anti-extension case has attracted some big name supporters, including Intel, and Nobel prize winning economist Milton Freidman, who argue it is "highly unlikely that the economic benefits from copyright extension" outweigh the additional costs, and that copyright extension reduces consumer welfare. (Previous coverage of the case on /. here and here)"
"Congress shall have the power... To promote the progress of science and the useful arts, by securing for limited times to authors and inventors, the exclusive right to their respective writings and discoveries."
So a limited time will now far exceed several generations. I can totaly see how this will benefit all the people of the good 'ol USA.
Economic recovery, here we come!
If this doesn't prevail before the Supremes, then all hope may be lost.
The copyright extension can't reasonably be argued to server any Constitutionally argued purpose. After all, to be extended, the works in question had to be produced.
Absent a time machine, how do you encourage the creation of something that's already been created?
The only thing you can do is negate the other side of the deal: transfer of your work into the public domain.
This is not even an issue of being for or against intellectual property. Congress used its Constitutinally provided powers to grant intellectual property to authors, but demanded consideration in return. That consideration was placement of works into the public domain after the author or subsequent copyright holder had been granted an adequate opportunity to exploit the work.
We have delivered on our end of the bargain. The copyright holders must deliver on theirs.
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.
from what I understand, is derivitave works. The works of Motzart, Bethoven, and Shakespear, are all in the public domain. This means that all of their works are "fair game" when developing your own creative works.
If you like the base key changes in a work by Motzart, or Bethoven, you are welcome to use it. Unless someone since then has used that same combination of key changes, and their music is not in the public domain.
We have not seen quite the same situation in written works. Authors regularly steal story concepts from other books, file off the serial numbers, wrap them with new characters and locations, and publish it as a new story.
While I sympathize with musicians who cringe at the thought of finding some other musician taking their song and changing one or two words and re-publishing it. In writing, that would be plagerism.
On the other hand, if the creator of some work does not release the work to the public domain at some time, it will stifle creativity.
I think that Spider Robinson pointed out the problem best, though I do not remember the story or the book I found it in. When musicians can't publish the music they create, because it contains "substantialy similar" parts, we will see a greater loss to society than just about any loss due to war.
Then again, that's just my opinion. I can be wrong.
-Rusty
You never know...
The justices had better not be swayed by petitions -- their job description includes interpreting the law as it is written, not as how anybody else (including the justices) thinks it should have been written.
Even if the justices think that a law is a pathetic, weak, idiotic law -- if it's Constitutional and all, they need to uphold it as is. It's the other two branches' job to reflect the populace and consider bending to petitions.
Only the dead have seen the end of war.
Which raises an interesting question.
How come our laws are structured so that the guy who cures cancer has to make back his entire investment in 14 years, but RIAA and MPAA get to sponge for 90 years plus the life of the creator?
If the rationale for these intellectual property "protections" is that they somehow promote innovation and investment, how did we conclude that a fucking cartoon mouse is deserving of 90+ years of protection, but a cure for cancer, only 14?
Theoretically, they get paid depending on their contracts, without which they shouldn't have transferred copyright. Of course, if there's a conspiracy among the labels to present only highly unfavorable contracts, then there's a bit of a problem.
The labels, of course, have a huge problem -- the public's tastes can be quite fickle, and advertising a new potential talent is likely quite expensive. Those costs have to be borne by somebody even if the music doesn't sell -- either because it's drek, or because the public simply didn't latch onto it in sufficient quantities to justify costs. I don't know what fraction of artists actually do well enough to justify marketing costs, but if it's low, ugh.
That means that, realistically, either the labels have to be extremely good at picking (or deliberately building bands -- for instance, composing new boy bands aimed specifically at female pre-teens and early teens, by choosing what they hope are photogenic young males of specific ages, et al, or choosing female artists according to jiggle factor and mid-riff exposure) bands, or artists should be willing to share the costs, because otherwise the marketing machines collapse.
And without marketing, many obscure artists won't have much of a chance. It may have worked for Wilco, but what happens when there are no major labels and everybody is in the same boat? Then there's no prevailing culture to be "counter-cultural" against; opposing the labels isn't anything special, because there aren't any. That means that bands trying Wilco's approach would no longer be entitled to free publicity because they're trying something different. End result: Probably many bands with smaller audiences and smaller releases driven by word of mouth.
Keep in mind that nobody's entitled to an income on only their own terms, no matter how much they think they deserve it. If an artist's work is niche, lousy, or underexposed -- then it doesn't matter how much he loves the music. Love != quality or appeal. I'm reminded of the Elaine character on "Seinfeld" -- she loved to dance, but only masochists would have paid to watch her at the Bolshoi. If an artist seems promising enough to get a favorable contract, however, more power to 'im.
Only the dead have seen the end of war.
Well, one's a patent and one's a copyright. Patents might get less protection in general because they cover procedures and systems, which in some cases are useful or even critical for derivative work within a section.
A writer, for instance, can probably get away with writing quite a bit without deriving from "Snow White", say -- there's nothing, besides constraints on imagination and effort, stopping a writer from designing his own distinct universe. And if they're REALLY creative, the universe might be so distinct that it won't involve axe-wielding dwarves, fair tree-loving elves with bows, and half-height people not named H*bbits to avoid the dreaded Lawyers of Mordor. Worst case? A creative work falls into oblivion, because the author refuses to license it to anybody else at prices that others will accept.
But systems and methods have to work in reality -- there may not be another satisfactory way around a problem. If, for instance, somebody designs a KSR/RGB Mars-style "treatment" that improves longevity by fixing long-term accumulated genetic damage, restores telomeres, and so forth, then that's a huge amount of IP. Some of the necessary methods may be the only effective solutions. So a long, closely-held patent could be used to throttle potential research in that area. What if, say, a radical anti-"playing God" group set up shell companies to quietly purchase IP, or even set up a biotechnology firm for the sole purpose of blocking applications by winning the research race? Imagine if a group tried to blackmail the world with a patented, 90-year-protected cure to cancer? The threat to society's potential welfare is much worse than that of, say, withholding "Steamboat Willie".
Only the dead have seen the end of war.
I realize also, however, that thanks to the DMCA, such tactics are now illegal. However, if I remember correctly, fair-use rights imply nothing about tha actual feasability of making said legal copies. I.e., if Sony wants to release musc and movies in a totally new "in-house designed" format which is almost totally impossible to copy, they are welcome to. The problem with that sheme is that past expierience with such products has only lead to miserable failure on the market. No one wants to buy such items.
It gets worse. Since the majority of the public does not care about the proceedings of this type of legislation/technology, the possiblity of such DRM schemes resurfacing is very alarming. Not necessarily because of the technological implications, but because no one would resist it, thereby leading to its grudging acceptance in the market.
Your point with regards to copyright protection vs. perpetual protection is well-taken, and I believe you are correct. But I seriously doubt that congress or the courts would make the same distinction with the lobbyists breathing down their necks...
We might be doomed here.
--------------rhad
Slashdot needs to interview Natalie Portman.
Sure, it brings US copyright law more into harmony with Euro laws, but then again, Europeans have a history of supporting hereditary privilege, which is what "70 years past the death of the author" amounts to. It creates a trust fund for a select few to inherit, a privilege which they did nothing to earn, and it burdens current creators and entrepeneurs with supporting the children of their predecessors. To paraphrase Jefferson, it is a debt levied on the living by the dead. It's a very un-American and anti-democratic viewpoint. The addition of Milton Friedman's name should be a sign that being a rabid capitalist doesn't mean favoring corporate welfare of this sort; the CTEA takes away from the public domain and gives to the corporations without expecting anything in return.
For the record, I have less of a problem with long terms on works for hire, but the next thing they'll try is "Copyright for as long as the corporation exists", clearly unconsititutional.
Expanding a vast wasteland since 1996.
I apologize if I didn't make myself clear. I was really addressing the statement that the intent of the author to release (or not release) a work into the public could osmehow curtail his/her copyrights.
To address the point you make, which is well taken, the DMCA states: No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The "title" here is title 17 of the US Code which covers copyright. Therefore, "works protected under this title" are, inherently, works which are still under copyright protection. Removing copyright technology of a work whose copyright has expired, therefore, would not violate the DMCA.
The author of the work, however, is not required to make his work easier to copy just because the copyright has expired. The law presumes that a work whose copyright has expired has been sufficiently exposed so that it will be "copyable". If the opposite was true, then the owner of a copyright over an unpublished work would be essentially compelled to publish it when the copyright expires. However, I am not minimizing your concern. This is a very valid concern which I had not thought about. It probably should have been addressed by the DMCA but wasn't.
I see the technology progressing to the point where the only available medium where a work whose copyright has expired is a protected digital file which cannot be copied. On the same token, it is the author's work and she is free to buplish it in whatever medium she wants. Bottom line is, you cannot force an author to publish a work in a a medium which is easy to copy.
I hope I've made my views on this clear