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.

Comments

Darn..

[Frank of Earth]

.. I wish there were some good sites to read about Robert Frost

or if you want to take the road less travelled

Fewer cheap books?

[LinuxInDallas]

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.

From the webpage...

[GreyWolf3000]

Legal Documents

In this section, we have collected the legal documents involved in the case. The case began in a federal district court. We appealed the decision of the district court to the Court of Appeals for the D.C. Circuit. That court's decision is now before the Supreme Court. Click on a link below to read the briefs and decisions at each state.

District Court (Jan 1999-Oct 1999)
Court Of Appeals (May 2000-July 2001)
Supreme Court (Oct 2001-present)

How You Can Help

Contribute to the Eldred Legal Defense Fund

While the lawyers in Eldred v. Ashcroft are donating their time, litigation before the United States Supreme Court is still expensive. Your donation, however large or small, can support our fight to preserve the public domain.
If you would like to contribute, please send a check to:

Eldred Legal Defense Fund
c/o Carinne Johnson
Stanford Law School
Crown Quadrangle
559 Nathan Abbott Way
Stanford, CA 94305-8610

Attach a logo to your web page

If you'd like to help spread awareness, take one of these sample buttons, save it to your site, and use the sample code provided to link back to this site.

The logos are on this page.

Excellent Wired article

[Murphy(c)]

There is and excellent Wired article, that touches the subject.
It gives you the idea of why they had to go with a "low profile" like Eldred and not some one like Michael Hartthe of the Gutenberg project.

Really an interresting read.
Murphy(c)

Related

[GigsVT]

This is probably the best collection of public domain poetry. Enjoy.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Whats wrong with this law?

[Raul654]

Except that the circuit court disagrees with you. In that case (it was an appeal of an earlier one) the judge did state explicitely that the incrimental expansions, done retroactively, (a) do not inspire the artists to create more (Walt Disney sure doesn't benefit) and (b) when taken together, they *are* indefinite. It is the natural state of things that their copyrights should expire. Copyrights should be expiring every year. In fact, they aren't. Nothing has entered the public domain this way in *decades.*

Re:Whats wrong with this law?

[GigsVT]

It extended the law by set amount of time, not indefinately, which means that the "limited time" clause is still literally true.

So if they extended it to 1000 years, it would still be constitutional?

discoveries- aka, published words and inventions - not digital representations of movies, music, cartoons,

I know you know better, but confusing copyright and patents is not a good thing to do when discussing this stuff. Scientific facts also cannot be patented, which most things that qualify as "discoveries" would be.

TCEA is a valid law by way of the Constitution, even if it is harmful

Is it? I think it goes against the clear spirit and meaning of the constitution. That's what the supreme court is there for anyway, to interpert the meaning of the constitution.

A much better way to make this unjust law go away is through Congress

That would be nice, but it is mostly the same congress that passed it, why would they change their mind now?

Re:Whats wrong with this law?

[Corgha]

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

This is giving Congress the right to regulate copyright, essentially.

I think the argument would be that retroactive extension of copyright does not satisfy the phrase "to promote", because of the rather obvious temporal properties of causality. You cannot promote the occurrence of something that occurred in the past.

There is also the matter that repeated retroactive extensions, each one happening shortly before Mickey Mouse expires, do not really satisfy the phrase "limited Times".

The Constitution does not say "To do whatever they like, by securing to Authors and Inventors and the Corporations that employ them the exclusive Right to their respective Writings and Discoveries" -- it does not grant Congress the right to regulate copyright as they see fit, but instead gives specific indication of the circumstances under which this legislative restraint on speech and trade is to be allowed.

Re:Whats wrong with this law?

[dreamword]

Agreed that this should go away through Congress. However, the constitutional case against it isn't as weak as you suggest.

As Lessig, Sullivan, et al.'s brief notes, the argument is not that Congress doesn't have the right to regulate copyright, but that the clause imposes limits:

• "To promote the Progress of Science and useful Arts" -- The key word here is "progress." While it can be said that handing a pile of cash to Disney and RIAA/MPAA members will lead them to produce more content (since they have a pile of money), the petitioners say this isn't good enough. They say that promoting progress can't be done just by handing piles of money to, say, Gershwin's estate, at the public's expense, since Gershwin's estate can't do anything for progress, since Gershwin's dead.
  
• "For limited times" -- True, 90 years is a limited time. However, there has to be a limit to Congress's power to extend otherwise the time wouldn't be limited. And if there is a limit, we've reached or exceeded it. The retroactive portion of the CTEA really pushes the outside of any reasonable definition of "limited".
  

There's no doubt that copyright fosters invention and discovery. We're not talking about abolishing copyright itself. We're just saying that handing out a longer copyright for a piece of progress that's already completed can't possibly foster invention or discovery, especially when most of these windfalls are going to corporations representing the works of dead guys.

-- Dreamword
(Becoming a common law fan more and more each day)

Promoting progress through copyright extension

[smiff]

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 argue that the constitution does not restrict congress at all. Here are some arguments taken from the defendants legal briefs:

1. 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.
2. 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.
3. The CTEA's application to existing works increases incentives for copyright holders to restore and disseminate their works.
4. The CTEA's impact on international trade promotes progress in the United States.
5. The CTEA is not part of a string of infinite expansions, but rather a means to harmonize copyright with the European Union. "In an era of multinational publishers and instantaneous electronic transmission, harmonization in this regard has obvious practical benefits"
6. If the CTEA is limited in regards to future works, it must necessarily be limited as it applies to existing works as well.
7. 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".

Re:Promoting progress through copyright extension

[sqlrob]

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?

Re:Promoting progress through copyright extension

[anthony_dipierro]

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.

Re:Promoting progress through copyright extension

[nathanh]

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".

Lessig isn't arguing that the "limited times" should be unalterable in the sense that you are presenting. He's arguing that once a work is created the expiry-time for that work should be unalterable. Lessig says that if the creator accepted X years copyright protection before creating the work, then a retroactive copyright extension to X+N years does not (and cannot) encourage the creator to create more work or better work. There is no value to society from retroactive copyright extension.

Re:Promoting progress through copyright extension

[Nathaniel]

Sure seems like it, at first anyway.

My guess is that the legal viewpoint would be that if the extension to copyright occurs before the violation of that extended copyright, it isn't an ex post facto law, because the law existed before the violation of the law.

The real problem here is that <sarcasm>our representatives</sarcasm> are giving away something we value for free, presumably because they are being compensated for doing so by the industry to whom they are giving the gift of copyright extension.

The only surprise here is that heads aren't rolling yet.

Re:Copyright Length

[broken_bones]

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.

Excellent briefs

[Saib0t]

If you have a bit of time on your hands, reading the briefs can be an englightening experience.
Both are written in "plain english" that any of the slashdot readers should be able to understand.

I'm not going to discuss them, the article on wired does that, partially...

For those interested, the links are:
Reply Brief for the Petitioners and
Government Response Brief

Re:Question for slashdot

[theCoder]

From the article, it sounds like their case is pretty weak. They pretty much say that the law is a bad law, but that's OK since there's nothing stopping Congress from making bad laws (they're right, but I don't think that's a great argument). They also contend that it's not for the courts to decide what's appropriate copyright law. I'd bet there's more than one justice that wouldn't take too kindly to that :)

Unfortunately, the defenders do have the Constitution on their side. Hopefully the Court will look at the trend of copyright extensions that effectively turn "limited" into "unlimited". Or they might question the retroactivity of the law (Congress isn't supposed to make retroactive laws). Or maybe they'll pull a Roe v. Wade and stike down the law just beacuse they don't like it :)

Best line ever!

[hrieke]

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!

Is this really "to define the digital age"?

[dipfan]

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.

Re:Eldred is very stupid.

[fmayhar]

Sigh. This post proves that being a member of Mensa isn't an indicator of intelligence.

"I would accept any copyright extensions if they serve to protect Micky Mouse and Goofy."

So you would accept perpetual copyright just so Disney can continue to profit from the work of a dead man, forever? You must be kidding. I certainly hope you're kidding.

The whole point is that new creation is very often based on old creation, viz Cinderella, Snow White, et al. These days, all these copyright extensions do is protect the profit of the corporations.

Heinlein said (as quoted by Yale Law in Top Ten New Copyright Crimes,

There has grown up in the minds of certain groups in this country the notion that because a man or a corporation has made a profit out of the public for a number of years , the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary public interest. This strange doctrine is not supported by statute nor common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped ,or turned back, for their private benefit.

This pretty much says it all. What is a copyright extension but "turning back the clock?" I'm keeping my fingers crossed that the Supremes will follow the intent of the framers of the Constitution, rather than pandering to those in Congress who are in the pockets of those who have a vested interest in keeping the laws as they are, or worse.

The Los Angeles Times has a very good article about this whole thing, with particular emphasis on Lessig and on the historical perspective (this debate goes back more than two hundred years); find it here.

Literature/fiction as open source

[rakeswell]

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:

• Authors are still contributing to and developing his mythos,
• A pnp game company has based an RPG on his works (Call of Cthulhu), which has inducted so many new people to HPL's works (including me),
• Movies are made (though poorly), based on his works,
• and most importanly, people are still reading Lovecraft's fiction -- and it's available online, and in print.

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.

Re:Question for slashdot

[Raul654]

They're already one step closer to that than you think. One of the circuit court judges said explicetely that incrimental+retroactive changes in copyright law have made it, essentially, indefinite. The other side of the arguement is that there has always been a quid-pro-quo in copyright: the author benefits from being given a temporary monopoly (this is his incentive to create), while the public benefits from the author's wisdom. But with retroactive expansions, there *is* no quid-pro-quo, therefore it does not promote the "arts and useful sciences", therefore it is unconstitutional.

lost revenue

[Kenshiro]

I love creative arguments:
" And it would be a grand defeat for corporations, which claim they would forfeit billions in lost revenues."

And if Congress doesn't let me pass this bill requiring each of the earth's 6 billion inhabitants pay me an annual tax of $1, I stand to lose billions!

(a nice portion of which I'll hand over to lawmakers who see things my way...)

When suing the Government...

[yerricde]

How exactly did they suggest Ashcroft is behind this?

The U.S. Constitution prohibits people from suing Congress. So if you want a federal law invalidated, you sue the current Attorney General in his or her official capacity as Attorney General to get an injunction against enforcing the law.

Re:Ashcroft Strikes Again

[Proaxiom]

The original name of the suit was "Eldred vs. Reno", but was renamed with the administration change.

It's not like Reno had much to do with it either, though. Congress passed the bill into law. At the time it was dubbed the Sonny Bono Copyright Term Extension Act, as he and later his widow pushed for it. Bono was actually in favour of unlimited copyright terms, but that is prohibited by the US constitution.

Changing the facts to fit the theory

[Safety Cap]

Quiet, you!

Do not introduce the chaos of factual numbers into the discussion!

Re:Now taking bets:

[Proaxiom]

I don't think you've look at the questions the Supreme Court will be examining.

There are two:
1. Did the D.C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?
2. Is a law that extends the term of existing copyrights 'categorically immune from challenge under the first amendment'?

Note that neither question would strike down the entire act. The first, if they agreed (and many think it is likely they will agree), would strike down the retroactive portion of the law. The second only asserts it is possible to strike down the law through such a challenge, because the D.C. Circuit said it was not.

windfalls are not an incentive to invest

[stevenj]

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.

There is an amicus brief by 17 economists (including Nobel prizewinners) explaining why that argument is wrong, and also refuting other supposed incentives for new works from copyright extensions. (In fact, they argue that copyright extension forms a disincentive to new works by expanding the monopoly on building-block materials.) An excerpt:

One might argue that the windfall to authors of existing copyrights has a positive consequence, by providing them with more resources for additional creative projects. However, this argument ignores the profit maximization decision of a producer, which takes into account the producer's cost of capital for a given investment. In general, a profit-maximizing producer should fund the set of projects that have an expected return equal to or greater than their cost of capital. If a producer lacks the cash on hand to fund a profitable project, the producer can secure additional funding from financial institutions or investors. If the producer has resources remaining, after funding all the projects whose expected returns are higher than the cost of capital, this remainder should be invested elsewhere, not in sub-par projects that happen to be available to the firm. If a producer pursues the same set of projects in any event, then its incentives will not be improved from the mere fact of a windfall from consumers.

Yes, because you have no bananas.

[yerricde]

Quite being lazy and write your own book.

For books, that may be possible, but for musical works, I'm not so sure. The standard for copying under United States copyright law is substantial similarity, and courts have found that matching four notes of another song's hook is more than enough to make one melody substantially similar to another (Handel v. Silver). To match four notes, given that what key they're played in is irrelevant, you have to match the pitch interval from one note to the next, and the time interval from one note to the next. There are fewer than 50,000 possible melodic hooks (read this page for details).

So how is it possible to write a song without stepping on somebody else's copyright?

Re:my $0.02

[ASyndicate]

Although he seems to be doing both...

Remember the oregon assisted suicide?

Re:Protests

[anthony_dipierro]

Is anyone planning to go to the Supreme Court on October 9 to let the Justices know their opinion?

Yeah, the lawyers.

Re:Whats wrong with this law?

[rgmoore]

It extended the law by set amount of time, not indefinately, which means that the "limited time" clause is still literally true.

Lessig actually had a very interesting counter-argument for this point. His argument was that in a legal sense, limited means not only finite but also for a fixed time. If you allow retrospective extensions, the time is no longer limited because it can be extended indefinitely. He argues from a standard legal position, that when a lawyer is given an extension for his case, the time is no longer limited. I'm not sure if that's actually a standard usage, but if it is then it's a very strong counterargument.

Re:Should stuff *ever* enter the public domain?

[An Onerous Coward]

There are problems with this line of reasoning. Copyright law isn't a codification of some obvious "natural right" to have control of your creative works after your death. In fact, it's a rather arbitrary set of laws that was put in place to protect creators from the worst effects of the cheapness of copying information.

Copyright law is vital, because it provides a great deal of incentive to creators, allowing them to profit from their work. But the purpose isn't to ensure creative people a livelihood, but to ensure that the marketplace of ideas is continually being resupplied and enriched.

Public domain is also a vital part of the equation. I believe that all ideas ultimately belong in the public domain, and the only argument is over what sort of delay is most effective in cultivating new ideas. The reason for this is simple: No person, no matter how creative, has ever given more to the marketplace of ideas than he or she received from it. Every work, no matter how original or unique, was inspired or influenced by ideas that did not belong to the author of the work.

For any person or group of people to say that it's right for them to have sole ownership of their own ideas until the sun goes nova is simply unethical. They're benefitting from the seething collection of memes that makes up our culture, while minimizing their own contribution to that culture.

Disney's willingness to use public domain works like "The Hunchback of Notre Dame" and the Grimm Brothers' stories, and then lock up the resulting ideas for what increasingly looks to be an unlimited time, is just one of the more obviously hypocritical examples of copyright run amok. Another example would be a play called, "The Wind Done Gone," which was a satire of "Gone With the Wind" as told by Scarlett's black slaves. The estate successfully sued because they'd taken the time to fill out the copyright renewal form every twenty-five years. In other words, an idea was never allowed into the marketplace of ideas, in order to protect the revenue stream to the great grandchildren of a creative person.

Ideas aren't physical property, and to imply--as you seem to be doing--that a creator like Robert Frost has a clear right to his or her ideas for as long as he has living descendants is simply untenable. If we treat ideas as physical property, we will end up in a world where you cannot create anything of significance without paying royalties to thousands of people who were fortunate enough to have a creative ancestor.

Do creators deserve to benefit from their work? Certainly. But for their entire lives, and at the expense of the health of our overall culture? No. Creators can certainly recoup their investment within 20 or 30 years, if their ideas have any value at all. I find it ludicrous that anyone at all is actually motivated by the idea of receiving royalty checks hundreds of years after his or her death, and I find it even more ludicrous that this additional motivation provides more benefit to society than the release of these works to the public domain.

Re:Devil's advoacte

[Alsee]

But I still can't resist the urge to play devil's advocate

In that case I'll just play devil swatter, chuckle

The royalties...help pay...to produce new musical works.

True, in that manner it could promote progress. I can't find the link at the moment, but I'm pretty sure that is "an unearned transfer of money by government fiat". Better known as a tax. I think it doesn't fly for that reason.

According to a mathematician, infinity is still a limit.

While I often bemoan the fact that there isn't a single scientist, programmer, or mathematician in the entirety of the US government, that works to our benefit in this case. The word "limited" is present, and for legal purposes it is required to be interpreted in a reasonable and MEANINGFUL sense. If it had no effect then they wouldn't have bothered including it.

There is absolutely nothing in the constitution to say exactly what the meaning of "limited" is, and unless they can dodge the question the court has no recourse except to substitute their own best judgement. They get to define it any way they like. On this point we can toss the lawbooks out the window, it's all about getting the judges to be sympathetic to our position.

-

Re:Eldred is very stupid.

[alangmead]

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.

Government's position flawed

[dh003i]

Another slashdot user posted a summary of the government's defense of the CTEA. Unfortunately, every one of the government's points is completely invalid.

1. 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.

Please. How much profit can be generated from something 70 years ago? On the scale things today, its next to nothing, if anything at all. And there's no gaurantee that even if they do profit, they'll use that profit to invest in the creation of new works. If the government is to make a point like this, it should be the rule, not the exception. It is the rule that the vast majority of copyright holders will not make either trivial or no profits from this; and its heads or tails as to whether they'll use it to invest in new works.

2. 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.

Historical practices also confirm that we should enslave African Americans and burn witches at the stake. The point? Simply because something was done in the past does not make it proper or constitutional. The USSC ruled that it was constitutional for our government to keep innocent Japanese citizens locked up in camps without due cause; that hardly made it constititutional. In short, this is an is-ought fallacy. This is the way things are/were, so this is the way they should be. Anyone that buys this argument shouldn't have passed law-school.

Lets just look at what it says and obviously means, "Limited Times". Meaning that eventually, the copyright will expire. If congress continues retroactively extending the lengths of copyrights, then copyrights will never expire and works will never enter the public domain, as has been the case for decades; works should be entering the public domain continuously. Also, I highly doubt the founding father's meant "Limited Times" to mean life + 75 years. A long copyright term is effectively indefinate from our perspective; Limited Times does not mean its constitutional for Congress to extend copyrights retroactively to last a millenium. For one thing, thats an infinite copyright term from the perspective of us mortals; for another, even shorter terms like 100 years may be effectively infinite, as we have no gaurantee the US will even exist in 100 years.

3. The CTEA's application to existing works increases incentives for copyright holders to restore and disseminate their works.

Firstly, this incentive is minimum since there is hardly no profit in it at all. From a profit perspective, author's time would be better spent creating new works, as opposed to restorign old one's. In fact, its undesireable that authors devote considerable time to restoring work; think of what Lucas could have done if he hadn't wasted his and our time making his miserable revised Star Wars IV, V, and VI?

Secondly, without the CTEA, many many other people would restore these works and publish them (the works being public domain). People would do it for free, as Project Gutenberg would have done. There is a stronger net motivation for all of us to restore an old work, because we care about artistic merit; than for the typical author, because (s)he's concerned with doing something profitable.

4. The CTEA's impact on international trade promotes progress in the United States.

That's so vague and unsubstantiated that responding to it is impossible. However, I doubt the CTEA will have any significant impact on international trade.

5. The CTEA is not part of a string of infinite expansions, but rather a means to harmonize copyright with the European Union. "In an era of multinational publishers and instantaneous electronic transmission, harmonization in this regard has obvious practical benefits"

Firstly, history shows this is part of a string of a series of infinite expansions; this is but the latest retroactive copyright extension. Why should we trust what congress says? In 70 more years, they'll pass another extension act to "harmonize" with Europe and again make the same absurd claims. In short, we can't take Congress at its word that this isn't one in a series of infinite expansions. Secondly, this harmonization stuff is bullshit. Simply because Europe does things backwards, so should we? If Europe extends copyrights to last a million years, we should do so as well for the sake of "harmonization"? This is obviously another fallacy -- ad-populum. Simply because something is popular (i.e., unreasonably long copyright terms) does not mean it should be adapted. This is like saying "we should steal and lie and cheat because everyone else is doing so and if we don't we'll be taken advantage of"; this is hardly a moral justification, but rather a rationalization. Its essentially saying two wrongs make a right. -1 + -1 somehow equals +1 according to the government; no, it equals -2.

6. If the CTEA is limited in regards to future works, it must necessarily be limited as it applies to existing works as well.

Considering the CTEA singly, yes. However, the CTEA must be considered together with all of the other copyright extensions; a work has not entered the public domain in decades. Clearly, Congress will continue extending copyrights retroactively forever, or until Disney stops lobbying them to (w/c is never).

7. 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".

Yes, but i doubt that those extensions were retroactive. Furthermore, they would be mortified at the latest trend of retroactive extension after retroactive extension. Jefferson and Madison never wanted there to be an entire decade where no works entered the public domain.

Again, this is another fallacy. I don't know what the name of this one is, but in effect its "I'm right by association". Because famous/admired/etc figure X agrees with me, I must be right.

Essentially, Congress is on a slippery slope to what is effectively infinite copyright terms, from our perspective. They have continually retroactively extended copyrights; the pattern is clear, and its safe to infer that in another 70 years, they'll pass another piece of legislation like the CTEA. Its true that a slippery slope is a fallacy if unsupported. However, in light of obvious trends and other evidence, its not. We see slippery slopes everywhere. Look at computer programming; code has steadily gotten sloppier and sloppier. Look at university tuitions, which have continually been increased year after year, the increases being far in excess of inflation; not so long ago, $10,000 got you into the most expensive colleges; now, its $30,000. Its safe to say that at some point in the future (probably soone than we imagine), it'll be $100,000. Similarly with congress and copyright exetensions. Congress has always found some pathetic faulty reason to retroactively extend copyrights; they will continue to do so unless stopped by the courts.

Aside from that, there is somthing fundamentally wrong and (I argue) unconstitutional about retroactive laws. In the case of criminal laws, its clearly a violation of people's rights; its obviously a violation of people's rights if congress illegalizes cigaratte smoking and then arrests all the people who've ever smoked a cigaratte in their life. In the case of copyright extensions, it is essentially the government renigging on an agreement with the people. Basically, copyright laws are an agreement between the people, the government, and copyright holders that "we the people will pay taxes to support your copyright rights, and will pay for those works according to market price while they're protected; in exchange, in X years, those works will fall into the public domain". What the government's doing is continually changing both the scope of copyright protection, and the duration, retroactively; it would be like me writing up a contract with you saying that you'll pay me $500 to do something, and then -- without your consent -- changing that figure to $1,000.

My argument is essentially that (1) In all cases, retroactive laws are unconstitutional; (2) Copyright protections of Life + 70 years are effectively unlimited from the public's point of view, as no one will life the life of an author plus 70 years.

yeah, all Democrats are communists

[commodoresloat]

And it's a good thing, too. Now, if you don't mind, I'm going to call Tom Daschle and Joe Lieberman to discuss plans for socialist revolution. I hear Lloyd Bentsen has a good blueprint for the violent overthrow of the government. And you should hear Al Gore wax poetic about the withering away of the state!

The audacity of Valenti!

[naasking]

I can't believe he actually said this!

"I am a great admirer of Larry Lessig," says Jack Valenti, Hollywood's master lobbyist. "But Congress has the power to say what 'limited' is. It's there, it's unambiguous. Fifty-five men in Philadelphia decided it, and there's no way a court can overrule that."

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.

Re:The audacity of Valenti!

[sconeu]

Can we get the courts to declare Jack Valenti to be unconstitutional?

Re:The audacity of Valenti!

[Malcontent]

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".

Re:The audacity of Valenti!

[epeus]

As I said on my weblog:

Been there, done that, made the T-shirt.
Lets look at it another way. Can you defend Hollywood movies as 'Science' or 'useful Arts'? Please enumerate their uses.

Can you explain how coloured celluloid is 'writing or discoveries'?

Constitutional literalism cuts both ways, Jack.

Re:Eldred is very stupid.

[dbrutus]

Companies like Disney, Pixar, et al. have the choice to do derivative works or original ones. The original ones are very much more hit and miss than old reliable favorites and there is a natural tendency to go more and more the safe, derivative route. This does not optimally promote the progress of the arts and sciences. By, on a well known schedule, eliminating the monopoly after a period of time it shifts the equation more towards original works and promotes greater progress.

If Disney can't cut it, can't take its huge pile of cash and make a new character to replace its old, now public domain revenue streams, it doesn't deserve to survive. I think the creative people at Disney could do it, why don't you?

Ex post facto

[achurch]

So what, exactly, prevents Congress from doing what I describe above?

Public domain. If the law is struck down, then at least some material (that which would have lapsed into public domain under the previous law) will, in fact, become public domain. And once that happens, it will be perfectly legal to make as many copies as you want--and Congress and the copyright cartel can't touch you. Even if laws were passed such as you suggest, they couldn't apply to material that had already entered the public domain; that would be ex post facto, because it was public domain when it was copied in the first place.

That wouldn't, of course, prevent another CTEA from being passed that applied to works still under copyright at that point, but that doesn't mean it would necessarily pass judicial scrutiny. I could also see Congress attempt to ban the future copying of works whose copyright had lapsed due to the court decision, but I strongly suspect such a law would be thrown out as soon as it was challenged. In any case, the courts aren't stupid, and they wouldn't take kindly to Congress trying to get around them; I could see a decision after two or three times around that "copyright extensions for any reason are invalid".