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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 wish there were some good sites to read about Robert Frost
or if you want to take the road less travelled
Live web cams
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)
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.*
To make laws that man cannot, and will not obey, serves to bring all law into contempt.
--E.C. Stanton
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.
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:
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)
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
One shall speak only if what one has to say is more beautiful than silence
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.
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...)
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.
Will I retire or break 10K?
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.
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.
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:
If a thing is not diminished by being shared, it is not rightly owned if it is only owned & not shared. S. Augustine
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?
Will I retire or break 10K?
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.
There's no point in questioning authority if you aren't going to listen to the answers.
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.
You want the truthiness? You can't handle the truthiness!
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.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
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.
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.
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.
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.
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. 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). 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.
social sciences can never use experience to verify their statemen