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

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.

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.