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)"

Comments

If ever there was a case that should win.

[dinotrac]

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.

Re:If ever there was a case that should win.

[gowen]

If this doesn't prevail before the Supremes, then all hope may be lost.

Is easy to win the Supremes over, just before they make a bad decision shout:

"Stop! In the name of Love
Before you break my heart"

How could they resist...

Re:If ever there was a case that should win.

[Ian Bicking]

From this article:

Justice Clarence Thomas had an even more serious conflict of interest which violated federal law. His wife, Virginia Lamp Thomas, was (and is) gathering and processing applications for the Bush cabinet. Perversely, a Bush spokesman implied the charges were nothing more than veiled sexism. "Like many professional women, Mrs. Thomas should not be judged by her spouse," he said.

Mrs. Thomas, a former Republican Congressional aide, works for the Heritage Foundation (www.heritage.org). The conservative think-tank first made its first real mark in 1981 when it's Mandate for Leadership was adopted as the "bible" of the incoming Reagan Administration. Since then, the Heritage Foundation has been a cornerstone of Republican presidencies, strongly influencing everything from domestic policy to national security to the very structure of the government itself.

It also happens to enjoy a revolving-door relationship with US intelligence. Its Board of Trustees includes: Richard Mellon Scaife, the right-wing billionaire and Reagan-era propagandist who has personally bankrolled most of the "Clinton Scandal" industry; Holland H. Coors, beer heiress and trustee of the Adolph Coors Foundation, which helped fund the Contra war; Midge Dector, former chair of the anti-communist Committee for a Free World; and Frank Shakespeare, who served as Reagan's ambassador to the Vatican during the Lodge scandal, and director of Radio Free Europe.

In her own job at the Heritage Foundation, Mrs. Thomas has solicited resumes "for transition purposes" from the government oversight committees of Congress. By press time, no fewer than eight of Bush's top cabinet designees have worked for or have ties to the Heritage Foundation.

Despite all this, Mrs. Thomas sternly told the NY Times, "There is no conflict here." She explained that because she "rarely discusses" Court matters with her husband, there was no reason for Justice Thomas to recuse himself from the landmark Bush cases.

But again, the federal statutes are crystal clear that it is the relationship itself and not whether any "discussions" take place that determines when a justice is required to recuse himself. Despite the clear-cut violation, of course, Justice Thomas heard the case and voted with the majority in favor of his wife's ultimate patron.

So, to summarize: I don't know how much money she was making. But she was making money from a highly political job, where Bush's presidency would have a considerable impact. As someone else pointed out, Scalia's son was in a similar position.

That Thomas and Scalia should have recused themselves is absolutely obvious to me. And I don't say that just that it's Bush involved and I dislike him (as an aside, I never liked Gore either). The fact is that the court acted disgracefully in a very important ruling. You can't forget that -- it's not just the effect of the ruling, but that they have revealed that on truly tough cases (not just subtle, but personally tough for those Justices) they will not act fairly. They do not deserve respect, and they do not deserve to be given the benefit of the doubt. They only deserve that when there is no evidence to the contrary, but evidence has been presented, and we need to look at the evidence whenever it's present.

(Besides this, the volunteer premise is false: Bush's campaign was flush with money. What may have appeared to be volunteer work seldom was. Lots of people worked on that campaign for purely monetary reasons. Get-out-the-vote door-to-door campaigners were being done by employees. Phone soliciters were payed. Everyone was on the payrole. It was not some grassroots campaign done by true supporters. It was a corporate campaign, from top to bottom, for a corporate president. Sure, it had the appearance of legitimacy, but corporations learned to fake that a long time ago.)

GNU files amicus curiae brief

[jdavidb]

Also, the FSF filed a "friend of the court" brief, though if, like me, you are not a lawyer, you might rather just read the press release.

Good quote

[Anonymous Coward]

Eben Moglen's brief for the FSF has a great quote:

``Actually, Sonny [Bono] wanted the term of copyright protection to last forever.''
--Rep. Mary Bono
144 Cong. Rec. H9951 (daily ed. Oct. 7, 1998)

Re:Good quote

[MadAhab]

Which is why it should be obvious that "forever" or Valenti's "forever minus a day" show the *INTENT* of granting copyright for UNLIMITED terms, which are, specifically, unconsitutional.

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.

I hope copyright extensions get repealed

[Black Aardvark House]

I have debated this hot topic on the Napster Forum at great length, with people ranging from typical ranters to a small record label owner.

The biggest issue I have is with the duration of copyright. Originally set to last 14 to 28 years from date of creation, it now stands as 95 years from the death of the copyright owner. The latest lengthening (the Sonny Bono Act) might have to do with strong lobbying from Disney, as Mickey Mouse would have lost its copyright in 2004. And to extend it again, 20 years at a time only takes a mere act of Congress.

On one hand, I'd like to see creators get just rewards for their work. But I disagree with a near-eternal guarantee, that might stifle creation in the future because current creative minds can rest on their laurels. In other words, they can stop working and continue to enjoy a revenue stream, while I need to keep working to get my next paycheck.

Re:I hope copyright extensions get repealed

[Tackhead]

> If something IS so awe-inspiring that it'll really stand the test of time for ninety years, *shrug* I don't have a problem with that, especially with purely artistic works -- there's less public harm in, say, having a nigh-indefinitely copyrighted Mickey Mouse flick than there is in having an indefinitely-patented hypothetical rhinoviral cold vaccine.

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?

Re:I hope copyright extensions get repealed

[Stonehand]

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".

I'm hopeful

[jms]

I read the opening brief last night and I'm overwhelmed by the quality of the work. The plaintiffs have, over the course of the trial and appeals, clarified and distilled the essence of their case. Their arguments are very persuasive, and the writing is superb.

This is probably the most important copyright case of our generation. The government has characterized retroactive copyright extension as a "national tradition", and if this case fails, the result will be that Congress will be given the go-ahead to continue the "tradition", and the result will be perpetual copyright. The entire idea of a public domain of ideas will be destroyed.

Eldred is our last, best chance to prevent perpetual copyright. It's a tremendous effort, the best contemporary legal writing that I've EVER seen. I urge all Slashdot readers to read through the opening brief. It should be required reading for anyone interested in the issues behind copyright extension.

Mickey Mouse is not the issue

[Anonymous Coward]

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.

Siva Vaidhyanathan on the Sonny Bono Act

[haaz]

Now I wish I hadn't snipped what Siva said about the Sonny Bono Act from the interview we did! Here it is:

JH: "In your book, you refer to the DMCA as an example of what you call a "thick" copyright law. Can you explain the difference between "thick" copyright law and a "thin" law?"

SV: "...One way to measure the thickness of a copyright law is to look at the duration of protection. If works enter the public domain before an author's life expectancy expires, then it's a thin and democratic system. If the duration of copyright protection is absurdly long and potentially indefinite, then it's way too thick.

"JH: And the DMCA does this?

"SV: Not exactly. The Sonny Bono Copyright Term Extension Act of 1998, which added 20 years to almost all active copyrights, does this. The Copyright Act of 1976 did this as well, but it took people a while to complain about it. Before THE 1976 ACT, copyright terms were for a fixed amouNt of time: 28 years per term, renewable once. Since the 1976 act, the term has been life of the author plus 50 years, and now 70 years. The Supreme Court will hear a case in the fall about the constitutionality of the Sonny Bono Act. And many of us on the public interest side of copyright debates are hoping that the justices revert to the first principles of American copyright: that copyright is meant to promote creativity and expression, not retard it. Copyright has become corrupted to such a degree that it's now an instrument of censorship, as Dmitri Sklyarov and Edward Felten can tell you."

-- haaz, who will think twice before snipped for brevity's sake.

Who's who

[MountainLogic]

It just boggles the mind to look at the list of folks filing AMICI CURIAE briefs in the Sonny Bono Copyright Term Extension Act case. Here is just a random sampling of the names:

Eagle Forum/Phyllis Schlafly

Milton Friedman

Hal Roach Studios

Intel

Wendell Berry

Ursula K. Leguin

Barry Lopez

Peter Matthiessen

David Foster Wallace

National Writers Union

The United States Public Policy Committee for the Association of Computing Machinery

Computer Professionals for Social Responsibility

The Apache Software Foundation

The Domain Name Rights Coalition

The Center for The Public Domain

Public Knowledge, The Digital Future Coalition

The Public Domain Research Corporation

The Center for Book Culture

The Computer and Communications Industry Association

The Consumer Electronics Association

Re:Open Petition?

[Stonehand]

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.

DMCA and technologicly enforced copyright

[MSG]

Being NAL as I am, I would like to see some discussion of how limited term copyright is expected to work in a future where copyright is enforced by perpetual technological means.

As more information is published on digital media, DRM is becoming a means of enforcing the copyright on the information. However, I know of no DRM systems which provide for expriation of protection. So, while the legal protection may go away after the granted term, the data is still protected technologically. I wonder, what are the legal implications of this?

Copyright was granted on the grounds that after the granted term, the information was to enter the public domain. If the information is designed by the distributors to never enter the public domain, does it still deserve copyright protection? It seems like this is analogous to patents vs. trade secrets where trade secrets have no legal protection because there is no obligation to disclose the way they work. You have to trade one for the other.