Briefs in Eldred Case Against CTEA Online

EricEldred writes: "Legal briefs are now online, from the government and more friends of the Supreme Court, in the Eldred case against the Copyright Term Extension Act, at eldred.cc Also, a special edition of the Loyola of Los Angeles Law Review on the case is at llr.lls.edu. The case will be heard by the Supreme Court October 9th."

Comments

Now I finally understand...

[DJK]

Now I see why Clinton was splitting hairs with the meaning of 'sexual relations'.
And the meaning of the word 'is'.
It's the Lawyerly Thing To Do.

I got all bleary-eyed reading the part of the
Government's argument about "limited Times" and the
exact meaning of that phrase.

Geez.

Question

[Raul654]

The case goes before the court Oct. 9. How long until we actually hear a verdict? IIRC, the surpreme court usually waits until after they've heard every case on the docket before it announces its verdicts, and that could be sometime in 2003.

Summary of AOL Time Warner's arguments

[BoVLB]

The AOL Time-Warner brief points out that they are the largest copyright producer, and makes the following arguments:

• Vested interests - Revoking the CTEA extension of existing copyright would disrupt business models, including various mergers and other transactions that placed value on IP. AOL/TW is, of course, a prime example of such mergers. It is also argued that it would reduce the anticipated export revenue for the US. These arguably suggest that coyright extension is good for the US, but they don't address the constitutionality, and are thus moot for the Supreme Court.
• History of Copyright Law - Every law that established or extended copyright did so retrospectively; revoking the CTEA would cast doubt on other copyright laws. Neither point bears directly on whether such retrospective extension is constitutional. Clearly the plaintiffs are not required to attack all non-constitutional laws in the same action.
• Retrospective Extension Stimulates Creation - In the light of the increasing cost of production and distribution of movies and music, an enduring revenue stream from previous works is required as "seed corn"; hence, retrospective extention of copyright does stimulate the Arts, in as much as the same people and organizations will create repeatedly. This argument has some facial merit, but neglects the bootstrap issue in favour of business interests.
• The End Justifies the Means - The brief says that the specification of an end (promotion of Arts and Sciences) does not restrict the execution of the power to legislate copyright. It compares this to the ends specified for taxation (common defence and general welfare) and military (to execute the laws of the union, suppress insurrections, and repell invasions) and how much deference is given to Congress with respect to these.
• International Law - The CTEA apparently both harmonizes with and places the US competitively with respect to international law and convention. The brief fails to be specific about how this makes restrospective copyright extension constitutional.
• Ease of Copying - Apparently "economic analysis" implies that as the cost of copying goes down, the length of exclusive exploitation must go up. No justification is provided, and it does not bear on the constitutional issues anyway.

• In short, their brief does more to whine about their business interests that it does to address the consitutional issues.

Re:Summary of AOL Time Warner's arguments

[anthony_dipierro]

Revoking the CTEA extension of existing copyright would disrupt business models, including various mergers and other transactions that placed value on IP. AOL/TW is, of course, a prime example of such mergers. It is also argued that it would reduce the anticipated export revenue for the US. These arguably suggest that coyright extension is good for the US, but they don't address the constitutionality, and are thus moot for the Supreme Court.

Isn't avoiding the disruption of business models necessary and proper to promoting the progress of science and the useful arts?

Every law that established or extended copyright did so retrospectively; revoking the CTEA would cast doubt on other copyright laws. Neither point bears directly on whether such retrospective extension is constitutional. Clearly the plaintiffs are not required to attack all non-constitutional laws in the same action.

It goes to the intent of the framers. Do you think that the framers intended for retrospective copyright laws to be unconstitutional, then immediately went and voted in the first congress for a retrospective copyright law? That makes no sense.

In the light of the increasing cost of production and distribution of movies and music, an enduring revenue stream from previous works is required as "seed corn"; hence, retrospective extention of copyright does stimulate the Arts, in as much as the same people and organizations will create repeatedly. This argument has some facial merit, but neglects the bootstrap issue in favour of business interests.

Some facial merit is all that's needed. Congress makes the laws, not the Supreme Court, and if there is any reasonable way that Congress could come to the conclusion that this law is necessary and proper to promote the progress of science and the useful arts, then the Supreme Court must accepts Congress' determination.

The brief says that the specification of an end (promotion of Arts and Sciences) does not restrict the execution of the power to legislate copyright. It compares this to the ends specified for taxation (common defence and general welfare) and military (to execute the laws of the union, suppress insurrections, and repell invasions) and how much deference is given to Congress with respect to these.

That's a crappy argument, but if the government can show that the law could promote arts and sciences, then it's moot.

The CTEA apparently both harmonizes with and places the US competitively with respect to international law and convention. The brief fails to be specific about how this makes restrospective copyright extension constitutional.

I could see if the law only applied to foreign works, but in its current form, I agree. There's no reason these laws need to apply to our copyrighted works as well, even if it was legitimate to make an unconstitutional law just to follow a treaty.

In short, their brief does more to whine about their business interests that it does to address the consitutional issues.

I thought the brief did a good job at showing possible ways that retrospective copyright laws could be necessary and proper to promote the progress of science and the useful arts. This is really the key argument by Eldred. The rest of the Eldred argument is likewise whining about how copyright keeps getting extended over and over again.

Re:Summary of AOL Time Warner's arguments

[dvdeug]

It goes to the intent of the framers. Do you think that the framers intended for retrospective copyright laws to be unconstitutional, then immediately went and voted in the first congress for a retrospective copyright law?

But when the framers wrote a retrospective copyright law, it was because maps (in particular) were being held as trade secrets because of a lack of copyright protection. There's a big difference between giving people who currently holding their works as trade secrets a reason to release them and giving works already released by authors who won't be releasing any more an additional stay under copyright.

Re:Summary of AOL Time Warner's arguments

[anthony_dipierro]

There's a big difference between giving people who currently holding their works as trade secrets a reason to release them and giving works already released by authors who won't be releasing any more an additional stay under copyright.

Actually that brings up a key difference between the CTEA and the previous retrospective copyright extensions. Before January 1, 1978, works were not automatically protected by copyright, they needed to either be published or registered. Since 1978, all works are automatically copyrighted. So while the previous retrospective extensions may have served to provide incentives to publish previously unpublished and uncopyrighted works, that's not the case for the CTEA.

Of course, it could be argued that one purpose of the CTEA is to provide incentive to publish works which were created before 1976 but were never published. I mean, it's a stretch, but it's possible.

You make a very good point though about the first congress. I hope Eldred has already made that point, or is planning on it.

95 years

[bigsexyjoe]

This will extend the terms of copyright to 95 years for anonymous publications and the life of person plus 70 years for known authors and ect.

The supposed purpose is that it encourages speech. My question is: What do we know about the world in 95 years? How can we know what the effect of these laws will be?

Yes! We have no new melody!

[yerricde]

From http://llr.lls.edu/eldred/martin-original1.pdf:

The fact that creators of new works cannot merely re-use the expression contained in copyrighted work of others without permission forces them to be creative. Composers cannot rehash the melodies created by earlier composers, they must create their own new original melodies.

How is this possible? Case law states that copying four notes of another song's "hook" is enough to get a songwriter in trouble with copyright law, and that the standard for copying is not an exact match but merely substantial similarity. Another case that I've read somewhere states that there is no unprotected "idea" in music, only "expression".

Melodies are determined by the distances between adjacent notes in frequency (intervals) and in time (note duration). Four notes will contain three (interval, duration) distance vectors. Assume that the scale contains twelve distinct intervals and that a judge will distinguish three distinct note durations (eighth, quarter, and half); thus, there are 36 possible distance vectors from one note to the next, and 36 to the third power equals 46,656 distinct melodies. No other melodies are possible in the Western musical scale. If only one hundred songwriters in the world were to create one melody each week, they would run out of melodies within nine years.

"Melancholy Elephants" by Spider Robinson details the dire consequences of literally running out of new ideas.

"The Right to Read" by Richard M. Stallman is another interesting short story.

hohoho

[dark-br]

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