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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.
I'd say that copyright lengths have been extended primarily because the copyright holders have lobied for it with great vigor. Corporations like Disney have obvious economic reasons for wanting copyrights extended. They want to make money on everything they can and don't want competition from someone else using public domain works that Disney created. (ie Disney doesn't want to compete with a new Mickey Mouse movie based off the Steam Boat Willy (sp?) cartoons.) From a greed standpoint it makes sense. Competition is by its very nature tough and everyone likes things to be easy if at all possible.
For non corporate copyright holders (I'm really speaking about families of deceased content creators) there is a sense that the work is "something special to our family." Recenty a family member of mine discovered that a long dead distant relative wrote a hymn that is now in the public domain because no one renewed the copyright.* Family members were actually distressed because they preceived that our family had lost something (despite the fact that no one had yet found a complete copy of the hymn). The hymn was pretty obscure and wasn't going to make anyone rich but people were concerned about the loss of a piece of our family history.
In a way this is a real case of the squeeky wheel gets the grease. While people advocating what I'd call "reasonable copyright lengths" have and do lobby I've never seen that they do it with the same vigor as the copyright holders. I'd also have to admit that copyright holders have arguments that sound pretty good. Companies can moan about "lost revenue" and "negative economic impact" while families have a great line with stories about "family history" and such. (Although I have mentioned families throughout this reply I think that most of the lobbying etc. is done by corporations as they have the most to lose.) While these arguments are, in my opinion, unsound they are convincing and there isn't a politician out there who wants to be seen as anti-economic or anti-family-history.
*Here I'm just repeating what I was told. I nevery bothered to verify any of this myself because I support short copyrights and am happy that the work is now in the public domoin.
Never disturb your enemy while he is busy making a mistake.
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.
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.
Get GW to declare him an enemy combatant. Poof! Life in jail, no attorney, no charges, no case, no judge, no rights. Maybe the "interrogators" will confuse him for a taliban and take him on a "special ride".
War is necrophilia.