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Eldred vs. Ashcroft
Sylver Dragon writes "Business week has a story about Eldred v. Ashcroft. Seems that Eldred wants to put some of Robert Frost's works on the web, but, sadly, those were copyrighted. What makes this more interesting, is that the works would have become public domain, had congress not extended the length of copyright after an artists death. So now, the Supreme court must decide if congress overstepped the bounds of the constutional provisions for copyright laws, when they made the last extension. With any luck, the Supreme Court will choose the "road less traveled."" The plaintiffs have a webpage with much information.
I noticed that one of the other plantiffs listed on the webpage is Dover. I have bought quite a few of their books in the past. They are great, mostly reprints of old texts bound in paperback and sold dirt-cheap. Their cheap price but good quality makes them a great additional reference for when you have to go through calculus, physics, etc. The extension of the copyright most likely means they have fewer choices for books they can print. That's too bad.
Why do the copyrights have to be so long anyway? If a creator of a work dies lets their heirs control what can be done with the item, those heirs will likely be dead before the copyright will be up. At this rate someone could have died durring WWII and their copyright on their works would still be good.
Just a thought.
Moreover, the CTEA's backers say, the question of whether the law is good policy is entirely different from whether its action is constitutional. When has it ever been illegal for Congress to pass bad laws?
Gotta love logic like that- you can't take this to court since it deals with Congress's ability to pass bad laws!III.IIVIVIXIIVIVIIIVVIIIIXVIIIXIIIIIIIIVIIIIVVIII
While I support the Eldred/Lessig position, this Business Week article doesn't really tell us anything new or interesting about this case that hasn't been seen here before.
In fact, it's overblown. This case is hardly "a case to define the digital age" as the article has it. This is an argument about whether Congress can extend legacy copyright from 50 to 70 years after the death of the holder. So if the government wins, what changes? Nothing. The European Union changed its copyright term to 70 years throughout the EU back in the mid-1990s, and I don't see that it's made much difference. If corporations are going to lose "billions in lost revenue" then they will 20 years down the road instead.
The copyright laws apply to all media and performance styles. Digital is but a small part of all the possible media consequences, of course, although it will get more important.
The worrying implication, I suppose one could make, is that if the CTEA is waved through, then the way is open for Congress to keep punting out the copyright envelope out further and further (perhaps to protect Mickey Mouse) - 100 years, 120 years, why not 150 years? Sadly, that's not the direct issue in this case.
The article is also confused about copyright of works themselves and other issues, such as format, editing, translation and so on. The Adobe issue the article mentions isn't about Middlemarch's copyright (which has unambiguously expired) but about proprietary formats - anyone in the world can buy a old copy of Middlemarch, sit down and type it out and post it on their website or print it off. As for Aristotle's Politics - someone has to translate that into English (for example), and edit it, and maybe do footnotes and an introduction. That's different than the underlying copyright of the work itself. But Business Week doesn't clock that.
But what I really fail to see is that somehow, if Eldred et al win, this has implications for the DMCA. These issues are so different that there isn't an obvious connection from one to the other (except that both the CTEA and DMCA suck generally). Copyright issues involving software and so on are much more akin to pharmaceuticals and medicine than books and poems - but that's really another story. I can see there's a global connection - Congress having a constitutional imperative to pass copyright laws that promote "science and useful arts". But that's going to require a case by case, or an act by act, resolution, whether Eldred wins or not. Traditionally, the Supreme Court sends those type of issues back to Congress to decide, and that's probably what will happen here, so don't hold your breath.
Wasn't there a study of what was in print in 1925 that is still in print now show something along the lines of 30 works out of 10,000?
If there was incentive to restore and disseminate works, wouldn't this have been a lot higher?
The case of HP Lovecraft's fiction seems to confirm that current copyright laws do defeat the aim of promoting new works.
Lovecraft wrote wierd ficton up to his death in 1937. In his fiction, he develops what has become known as the "Cthulhu Mythos", an outlook and setting for cosmic horror. During his lifetime, he actively sought collaboration with others to work with this "mythos", and extend it.
Because of when he wrote much of his fiction, and due to details concerning how his estate handled the copyright of his body of work, much, if not all, of his fiction is today in public domain.
Partly because of how he actively sought other authors of wierd fiction to participate and extend his mythos, and partly because of the fact that his work is still in public domain, there have been very tangible results:
Many years ago, I loaned out all my Lovecraft books, and inevitably, no longer have them. When I recently underwent a hankering to re-read these great stories, I downloaded them into my visor using Plucker. I've also gone out and restocked my library with printed versions of Lovecraft's works.
From this small sampling, I think it's very clear that Lovecraft's openess and the copyright status of his works have truly encouraged people to keep creating and building on his foundation.
There is a staggering number of books which are under copyright, but have long since gone out of print. How much knowledge is unavailable because of this, and how many new works which could have been built or inspired by them were never created?
I shudder to think that it would be quite possible that Lovecraft could today be out of print because of copyright. Had others not built on his work, I doubt as many people who are fans of his work would have had the chance to be exposed to him, and thus preclude demand for his fiction.
All one has to do is hit the right keys at the right time and the instrument plays itself. - Johann Sebastian Bach
According to the government, if they can come up with just one reason that retroactive copyright extension promotes progress, the law is constitutional.
They also have to show that the law is not unconstitutional under the First Amendment.
By extending copyrights, congress is allowing large copyright holders to continue generating revenue from old works. The copyright holders then invest that revenue in new marginal and high risk works.
Maybe. And maybe is probably enough, because ties go to the defendent.
Historical practice confirms that "Limited Times" does not mean a single, inalterable, limited time. Every single copyright extension has extended the copyright of existing works.
That's irrelevant as to whether or not copyright law which does not "promote the progress" of science and arts is constitutional.
The CTEA's application to existing works increases incentives for copyright holders to restore and disseminate their works.
As opposed to increasing incentives for everyone to restore and disseminate their works. I don't buy it.
The CTEA's impact on international trade promotes progress in the United States.
You need to be more specific there. How does this promote the progress of science and useful arts in the US?
The CTEA is not part of a string of infinite expansions, but rather a means to harmonize copyright with the European Union.
Harmonizing with the EU is not a valid reason to pass an unconstitutional law.
If the CTEA is limited in regards to future works, it must necessarily be limited as it applies to existing works as well.
Why? The argument is that "limited" means limited to that which promotes the progress of science and useful arts. Just because the CTEA WRT future works arguably promotes progress, that doesn't imply that the retrospective parts do. Further, it doesn't go to the First Amendment part of the argument, for the same reasons.
Thomas Jefferson signed the 1808 and 1809 patent term extensions into law, and James Madison signed the 1815 patent term extension into law. Thus the nation's founders never meant "limited times" to mean "unalterable limited times".
Eldred is not arguing that "limited times" means "unalterable limited times." Your strawman is irrelevant.
Let me note that I still think it's about 50/50 here, based upon your argument #1 and similar ones like it. Actually the best argument I've heard is that this law encourages those who have created works in the past that are protected under trade secret law to publish those works. The problem is that while it seems obvious to me that this retrospective extension is not going to promote the progress of science or the useful arts, the fact of the matter is maybe it could. And that's enough, because it's the job of Congress to make that decision, not the job of the Supreme Court.
All of that said, the Appeals Court seemed to have made a terrible mistake by saying that copyright law is "categorically immune from challenge under the First Amendment." I think there's a good chance that the case will at least be remanded back with instructions to consider the First Amendment issues.
I'm sorry, I was calculating based on life+70 years, but I've seen some other posts assuming life+90. In that case, not only will most citizens never see the freedom of works made before their birth, most citizen's CHILDREN will never see those works either.
Can you imagine walking into a store in your 60s and paying $18 (2002 equivalent, scale for inflation) for some music that was copyrighted before your parents were born? Does that fit your definition of "limited copyright"?
Again, sorry for replying to myself.
Although he seems to be doing both...
Remember the oregon assisted suicide?
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Remember that Mickey Mouse is also a trademark of Disney, and that Trademarks do not have the same expiration requirements that copyrights have. Disney could use their trademarks to prevent new works from being made with Mickey Mouse or Goofy's likeness.
How can the parent post be modded as "Informative"?!
It's nothing but a slanted, myopic and imbalanced view of economic policy that quite delibrately ignores all evidence except that which supports the author's point-- that all Democrats are "Marxist". (Do I hear a McCarthy-esque "Communist!" witch-hunt in the offing?)
I'm going to try to keep my disagreement civil, and point out the actual context in which the prior poster cited the Democrats' Marxist planks. Here goes:
1. Abolition of private property and the application of all rent to public purpose.
You cite the War on Drugs as simply a Democratic excuse for the government to appropriate property for the purpose of a more centralized society. Go ahead and do the math for me, and tell me what percentage of land in the US is owned by the public... that's right, I thought so. Furthermore, you may note also that the War on Drugs was most strongly persecuted by a Republican administration (Reagan in the 80s... remember D.A.R.E?) So I hardly think that it can all have been part of some Democratic Marxist master plan.
2. A heavy progressive or graduated income tax.
Again, go check your numbers. The US has one of the lowest tax rates among industrialized countries... witness all the European countries as examples of how much wealth the US government leaves to individual industrialists. Furthermore, in a Marxist system the progressive/graduated income tax is used to redistribute wealth from the rich to the poor. And don't even give me some crock about welfare... we spend a large portion of our collected income tax on a) making the giant bureaucracy that runs our country work, and b) national defense. Again, your skewed interpretation of the facts betrays little knowledge of where your tax money actually goes.
3. Abolition of all rights of inheritance
Here, I have to admit you have a valid point. Inheritance rights have eroded somewhat in the form of higher inheritance taxes and such. However, you'll note that one of the planks on which Bush ran was the reduction of the inheritance taxes. Of course, he hasn't been able to push that through Congress because nobody else wants to alienate all of the voting masses who DON'T have an inheritance. Democracy's a bitch, eh?
4. Confiscation of the property of all emigrants and rebels
You cite the 1997 Crime/Terrorist bill as an example of Democratic repression... may I use the USA PATRIOT act as a counter-example? I can hardly think of any such repressionistic law in our nation's history... and it was passed into law by a Republican administration. With regard to property seizure by the Department of Urban Development, well, I bet you certainly enjoy the convenience of having a superhighway to get from City(A) to City(B). Don't kid yourself; without property seizue by the government (beginning way back in the Eisenhower administration, BTW- was he a Democrat? Nope, sorry...) those superhighways wouldn't be there.
5. Centralization of credit in the hands of the state, by means of a national bank with state capital and an exclusive monopoly.
Again, you clearly misinterpret the function of one of our most important economic institutions. The Federal Reserve's job is to print our national currency and set the rate at which it is lent to the biggest banks. It is the glue that holds our nation's economy together. Can you imagine if every state printed it's own money? They used to do so, a couple hundred years ago. Would you like to have to change a Virginian dollar for a New York dollar? What would the exchange rate be? What would happen when your Montana money was worth less than you thought it would be in Vegas? Would you try your luck in California? As for the Fed's role as the instrument of monetary policy, look at the effects of runaway inflation on some countries in South America and tell me you're not happy to have Greenspan up in that room agonizing over how to set interest rates. Or maybe you'd rather pay $4,576.82 for a loaf of bread tomorrow?
6. Centralization of the means of communication and transportation in the hands of the State
Maybe you forgot that the government SUBSIDIZED those railroads? That they wouldn't exist if it weren't for the millions of dollars that the government spent to persuade private companies to install them? I should think they have some right to regulate them, since they initiated their construction in the first place. And perhaps you didn't realize this either, but the telecommunications industry is a monopoly-based one... the only kind of company that can survive is the one that owns ALL the lines and equipment because only then is it cost-effective to route phone calls and data signals across the entire nation. The FCC exists to keep Verizon (or whomever your local telephone provider is) from ass-raping you on your phone bill. Don't start making stuff up about how the FCC own and control all telecommunication in our country; they don't own a damn thing and all they do is provide some regulations so the giant phone and TV companies don't bleed their customers dry and interfere with each other's air frequencies. If it weren't for the FCC, you'd pay $1,000/month for telephone service and television and radio as we know it would not exist because any local jock could simply use the airwaves for whatever he felt like. (You don't have to like the TV/Radio industries, but you can't deny that we all are better off than we would be without them...)
7. Extension of factories and instruments of production owned by the State, the bringing into cultivation of waste lands, and the improvement of the soil generally in accordance with a common plan.
Here you rattle off a lengthy list of all sorts of government organizations that apparently, in your mind, regulate and control industries in accordance with a common plan. What common plan would that be? The organizations you mentioned all exist basically to rubber-stamp documents okaying corporations plans for industry. The only substantive article under the purview of most of those departments you mentioned is the ability to require an environmental impact study... maybe you'd rather they simply began logging the woods behind your house and dumping in your well without one? Do you really believe that all of those alphabet-soup type organizations are actually part of some Stalinist Five-Year Plan? Come on... for a while, you were raising interesting points, but that just makes you sound like some lunatic conspiracy theorist type, (are you?) and does nothing at all to illustrate your point, (which was, I believe, that the Democratic party is a bunch of Marxist constitution-shredders, right?)
8. Equal liablity of all to labor. Establishment of Industrial armies, especially for agriculture.
Okay, now you've drawn a connection between the national debt and your own individual personal debt. This is a common fallacy... there is none. The national debt has been growing since around 1820, IIRC. Personal debt has only become a problem in the last ten years with the growing availability of credit cards to anyone with a pulse. In fact, the last time our country wasn't in debt, the greatest depression of the pre-Civil War era immediately followed. While some would argue the point, such great economic leaders of our country like Alexander Hamilton believe that a controlled national debt was essential to keep the economy functioning. (You do know that he was one of the founding fathers and the very first Secretary of the Treasury, right?) That was wayyy before Marx, by the way...
And you seem to somehow associate the DESIRE of women to work (remember the whole equality of the sexes movement in the 70s?) with the Marxist Democrats, as well. I hate to break it to you, but those feminists, man, they want to work... they want the right to be drafted... it's an equality thing. If you want to tell them that they can't have total equality with men because it's too "Marxist", well then be my guest... personally, I'd rather not get kicked in the balls by my girlfriend, though. I wish you the best of luck in that one.
9. Combination of agriculture with manufacturing industries; gradual abolition of the distinction between town and country by a more equable distribution of the population over the country.
You cite a bunch of random-ass laws and don't say what their effect has been. You're suggesting that these zoning acts have been enacted to redistribute people evenly around the country and this somehow ties in with Democratic Marxism. Except that you might want to note that the Democratic power base is actually mostly located in cities (especially Californian cities & New York, Boston, etc.). Why on earth would they want to break up their biggest electorate and distribute them to rural districts all across the country?
Oh, and that whole nexus of agriculture and manufacturing... that's called the Industrial Revolution, and it, too, started well before Marx did. It's what puts food on your table every night and gives you time to post on Slashdot rather than growing it all yourself. And you can't blame the Democrats for that. (You can blame some guy from England who smuggled over some blueprints for the first textile mill in the 1800s, though, if you want to go back in time to yell at him or kick his ass, maybe.)
10. Free education for all children in government schools. Abolition of children's factory labor in its present form. Combination of education with industrial production, etc. etc.
If you want to complain about the public education system, then complain that it's not educating our children ENOUGH to become good democratic citizens. Don't complain about it's existence and chalk it up to some Marxist conspiracy. Or do you really believe that individual parents are capable of educating their children well enough to become productive citizens in today's economy? Most parents want their children to go FARTHER than they did in life... the next rung of education, a higher position in life, call it what you will but you can't go any farther than your Dad if he's the only one teaching you.
I normally don't post at all, but I felt your comments were so off-base and clearly biased, slanted and unbalanced (and I was so infuriated that they were moderated "Informative"!) that I felt compelled to respond. I hope to read your counterarguments soon. (Don't just be lame and flame me because I disagree with you!)
-d
Umm, I believe the courts can decide that something passed by congress is unconstitutional Jack. The courts can pass judgement on any law that comes before them and strike it down if they please.
Higher Logics: where programming meets science.
Look at this brief from the Eldred v. Reno case (start at paragraph 61). In 1961, copyright lasted 28 years and could be renewed for another 28 years (56 years total). So works published in 1905 entered the public domain in 1961. From 1962 to 1976, congress enacted ten copyright extensions. Every one of those extensions applied retroactively. At all times during those 14 years, copyright extended back to 1906. In 1976, copyright lasted 75 years (or the life of the author plus 50 years). So works published in 1906 began appearing in the public domain in 1981.
First, you should read the briefs on this case (I have read both the Petitioners--Lessig's--and the Respondents--the Government).
Second, there are two arguments here:
1. Do retroactive copyrights violate the copyright clause of the U.S. Constitution?
2. Is copyright law subject to first amendment restrictions?
The argument is that "limited" means limited to that which promotes the progress of science and useful arts.
That is Eldred's argument, but it is not a foregone conclusion that the SCOTUS will buy it. In fact, the supremes give quite a bit of deference to past congressional practices, and as the government points out (respondent brief p. 11), every copyright law passed by congress (starting in 1790) has retroactively extended terms.
Does a retroactive extension promote science? Government brief on p.28-37 gives several arguments that it does. Look it up first, please, then we can argue details.
Eldred is not arguing that "limited times" means "unalterable limited times." Your strawman is irrelevant.
In fact, Eldred argues (petitioners brief, p.18) that limited=inalterable, but the government says limited=not infinite. What will the justices say?
The lower courts will quickly suspend the new law based on the SCOTUS striking of CTEA, thus preventing enforcement until it reaches the supreme court--if it ever gets there. Thus a precedent is set against a new similar law, and, practically speaking, it won't be enforced.
Just as a point of clarification, typically authors sell publishing rights to a publisher. They don't actually sell or transfer the copyright. Likewise, they can sell adaptation rights to a movie studio, in which case the studio would control the copyright on any film based on the original work, but would not control the author's original copyright on his own work.
I don't agree that copyright "is there to protect authors' ownership." The Constitution says nothing about authors "owning" their work. Copyright is explicitly described as a privilege, and a limited one at that, not a grant of ownership. It is a mechanism whereby authors or other creators can profit from their endeavors, in the manner described above. If their creations were truly the property of the creators, then there would be no need for copyright protection at all -- authors and their heirs would own their books forever, period, just like as anyone who builds a piece of furniture owns it and passes it along from generation to generation. This is the irony of the Sonny Bono CTEA and, really, of Sonny's position on the matter. Sonny thought copyrights should be treated as real property; in that sense, Sonny didn't believe in copyright at all. The whole purpose of copyright was to distinguish intellectual and creative work from real property, while still providing a profit incentive to creators. By coming perilously close to treating copyright as real property, in effect CTEA invalidates what copyright was created to accomplish.
--Michael
"No live organism can continue for long to exist sanely under conditions of absolute reality;..."
Which means that retorical skills are going to be at a premium. The judges are going to be making a decision based on the quality of the arguments that are put before them, so having a convincing argument may be more important than one that necessarily hits the legal fine points. One strong analogy could be worth more than 10 pages of case citations.
There's no point in questioning authority if you aren't going to listen to the answers.