Slashdot Mirror
Eldred v. Ashcroft Oral Arguments
PMuse and others wrote in about the oral arguments held today in the Eldred v. Ashcroft case challenging the most recent 20-year retroactive extension of copyright terms. Google News will cover the mainstream news stories about it; transcripts of the arguments will eventually be posted; but as I write this the only first-hand reports appear to be LawMeme and the Associated Press. Reader McSpew adds a link to a piece by Steven Levy explaining the importance of Eldred v. Ashcroft and what's really at stake. Update: 10/09 19:12 GMT by T : khkramer links to his own summary of the arguments, writing "I have press credentials
at the court, so I was able to take notes
during the argument, and in the summary I tried to cover
all of the major issues that the Justices
asked about."
"The Court's current contract Courtroom reporter, Alderson Reporting Company, provides transcripts of oral arguments for posting on this Website within 10-15 days after the transcripts are complete."
Hard to comment when the transcripts are at least 2 weeks out. Vapor transcripts!
FYI, just in case anyone did not know, Disney is embroiled in a massive lawsuit over its use of Winnie the Pooh. Basically, they want to keep the billion dollars they have made in Pooh merchandise and films and not cough up to the estate that originally owned the rights (Disney says they meet their agreed upon obligations).
The president nominates justices for the supreme court. Do you see him nominating a leftist to something which will probably be his longest lasting legacy, the stacking of the supreme court?
No matter the grassroots campaign, it might raise some notice, but you are falling on deaf (<cheap obvious joke>okay, and dumb </cheap obvious joke>) ears.
"Moving through the masses like a fish through water." syrup
From this report here the justicew seemed concerned with the "chaos" invalidating the CTEA would have on previoous copyright extensions.
Take the cheese to sickbay, the doctor should see it as soon as possible - B'Elanna Torres, "Learning Curve"
Morning Edition
I was at the oral arguments this morning, and since I have press credentials, I was able to take lots of notes.
My summary tries to cover all of the main points the Justices raised in their questioning of both sides.
I was a bit discouraged by how much attention the Justices paid to problems with Lessig's Article I arguments, and how little -- none at all -- they paid to the claim he makes in the brief (and mentioned briefly during the questioning) that the birth of a new technology regime (the Internet) should have a profound impact on how we craft copyright law.
I don't think there's much grounds for guessing which way the court will go on this case. Certainly the people in the pressroom and in the lawyers' lounge today weren't making many predictions. Lessig's argument is so narrowly constructed, and the copyright clause of the constitution is both so clear in intent and non-specific in its wording, that the court really could go either way. Certainly four justices had to think the possibility is there to decide for the petitioners or the Court wouldn't have taken the case. But there was a lot of hard questioning of Lessig, today, and I didn't think he was able to definitively reframe any of the issues that the Justices were concerned about.
On the otherhand, can anyone explain exactly why Ashcroft was choosen as the defendent?
Because he's the U.S. Attorney General. From 1993-2000, Janet Reno's name was on all cases of vs. the federal government. As in, Eldred vs. Reno.
Ooh, a sarcasm detector. Oh, that's a real useful invention.
they will never take Alice In Wonderland!
Correct. Alice's Adventures in Wonderland by Lewis Carroll has fallen into the public domain in the United States and is available through Project Gutenberg. Even if the Bono Act had been in effect since the time of its publication, the copyright would have expired in 1969 (1898 death of Carroll + 70 + end of the year) under the author rule or 1961 (1865 first publication + 95 + end of the year) under the work-for-hire/pre-1978 rule. But in the USA, copyright term extensions do not re-copyright works whose copyrights have already expired; thus, all works first published on or before December 31, 1922, are in the public domain in the USA.
The EU is a different matter; copyright law was revised to fit the terms in effect in Germany (life plus 70); works that had been in PD for quite some time fell under copyright once again. In addition, some European countries have granted extensions for works published before World War I, for works published before World War II, and for works published by authors who died in World War I or World War II.
Will I retire or break 10K?
Comment removed based on user account deletion
No, I don't believe that the Supreme Court must rely on Congress to do anything in this case (much less police itself). The issue before the Supreme Court is whether this particular law is in violation of the Constitution. There are particular requirements of Congress in order for them to change the Constitution and they cannot do that by the simple passage of a law. Hence, if the Supreme Court deems that the law under its review is in violation of the Constitution, the law is struck down. Congress can choose to pass another law that does not violate the constitution in the way the previous law did. In crafting that law, they would rely on the written opinions that accompanied the Supreme Court decision. And that new law might eventually end up back under review of the Supreme Court.
Typically, the Supreme Court is very picky about the cases it decides to review because they want a clear outcome that won't result in another law passed by Congress and addressing the same issue right back in their laps for review.
But no, they're not relying on Congress for anything.
How can we afford to ever sleep
So sound again
--ebtg
Sigh, this one keeps being repeated, even though the Washington Post story that it comes from has been completely discredited.
I know that a press assistant putting a blue cloth backdrop behind the AG when he speaks to provide better photos isn't as funny a story, but hey, the truth isn't always as amusing as fiction.
Yup. The current Attorney General is always listed as the defendant in such cases -- indeed this case started out as `Eldred vs. Reno'.
Could someone explain how trademark could be used to control an article of expired copyright
If and when the Bono Act is overturned: "Of course, you can sell copies of 'Steamboat Willie' and 'Plane Crazy', but you won't be able to print Mickey's name or likeness anywhere on the box."
Will I retire or break 10K?
...Disney would stand to lose $$$$$$$ if Mickey Mouse were released from copyright...
Wrong. Mickey Mouse is TRADEMARKED, it's different from copyright. You won't ever get the right to use Mickey Mouse, no matter what the outcome of the case is.
Disclaimer: IANAL
Basically, my understanding is that the Mickey Mouse that's in Steamboat Willie would fall into the public domain. If you notice, Steamboat Mickey and Modern Mickey (i.e., the Mickey you see and hear today) look a lot different.
It seems to me that you could use Steamboat Willie any way you want, so long as you don't extract Mickey out of the picture and use him in any way that would infringe upon Trademark Mickey -- that is, in such a way as to make people think that what you are providing is sanctioned by Eisner et al.
Of course, the advantage of the copyright expiring on Steamboat Willie isn't merely that you can use it as is, but that you can now use it to make derivative works, such as:
I've never actually seen all of Steamboat Willie (just snippets), and I have another question: Is Mickey Mouse ever mentioned in the credits (or anywhere else)? I mean, I realize we all know it's Mickey, but without specific delineation, and since Mickey now looks so different from Mickey then, there could be some interesting arguments made if Mickey is not mentioned specifically in Steamboat Willie itself. Just curious.
"The evil of the world is made possible by nothing but the sanction you give it." -- Ayn Rand
Ok, let's conjecture that the Supreme Court finds for Eldred and (at the very least) removes the retroactive copyright extention.
Steamboat Willie passes into the public domain. The Micky Mouse character is still protected by trademark, and incidentilly the modern representation of the mouse is still copyrighted since it's far more recent than the charactiture that was in the 1928 short.
So what does this mean? It means that you can make as many copies of the short as you want. You can edit the short or make other derivative works from it - maybe further down the river, or a prequel, or whatever. You can even use the images from the short in another short or movie - even a pornographic one.
But if you tried to use the Mickey Mouse name then Disney would sue your ass off. Because that is still trademarked and will be for the rest of eternity (or until nobody gives a crap about it, whichever comes first).
Most of Disney's, Valenti's, and the government's arguments fall apart because of this. The loss of control is minimal. And nothing prevents the Disney corporation from still selling Steamboat Willie -- the only difference there is that they're not the only ones who can sell it (or give it away, or whatever).
Valenti claims that the greatest resource the studios have is their film library. Even if you agree with that, most people would agree that the value of a 70 year old movie is close to zero. Yes, there are rare exceptions -- Gone With the Wind, Wizard of Oz, Citizen Kane, Casablanca. And in those exceptions the studio has been generating revenue for 70 years. Isn't that enough? Have they not been paid for their investment and innovation?
The key thing to remember is that all intellectual property laws are a creation of our system. Copyrights, patents, trademarks, etc. grant the inventor rights that did not exist otherwise. Without them they would default to having no protection at all. I think few people would argue that some protection does stimulate invention and innovation. However the flip side can also be argued - that too much protection stifles the very creation that was desired. Which is essentially what the current lawsuit boils down to.
To be trite, because our Constitution says that works can (note that it doesn't say they must) be copyrighted for "limited times" and "to promote the progress of Science and the useful Arts". For more explanation, read on.
The assumption you're making is that the author/creator made the work in a total vaccuum and has relied on nothing else to create whatever it is they made. However, in reality anyone who creates a piece of "intellectual property" has relied upon years and years of hard work by other people, and they have taken information and tactics from a rich and readily-available public domain. While their work may be fresh in a new and ingenuitive way, it still relies on stories, histories, facts, and even languages that were developed long before that person ever thought of anything of the sort.
The Founders of our country realized that it was necessary to encourage people to create new things, so they provided for copyrights to give people a limited monopoly over the things they create. However, the founders also realized the fact that "there is nothing new under the sun", and that subsequent people should be able to use that one creator's works/ideas just as he used the works/ideas of people who created things before him.
But that bound isn't set forever, despite the late Sonny Bono's desires. It's bound for limited times. And another thing I'd like to bring up, which I haven't seen much of at all, is the fact that the Constitution states that Congress may secure copyrights "for the author" -- not for his/her kids, or for their grandkids, or their great grand-neice twice removed. It seems to me right there that any law which says copyright can go past the life of an author is unconstitutional.
This is totally stupid. Thomas Jefferson believed companies should not even be considered entities unto themselves, and warned us that we'd be screwed if they did (hmmm, wonder when that's gonna happen). To look at one of the big ones involved in this whole issue, Disney, you can easily see that they have taken almost every single one of their stories directly from the public domain, bastardized it, and then slapped a copyright on it themselves so nobody else could use it. Being one of the biggest supporters of the Sonny Bono Copyright Term Extension Act, Disney obviously feels it has more of a right than anybody else to keep this stuff, which was public domain material to begin with, unto itself.
So what's you're point. Do you like paying for everything? Besides, it's not just about getting stuff for free, but about not abusing our right to have a rich and readily-available public domain -- a right which was envisioned by our Founding Fathers and enshrined in our Constitution.
What article are you talking about? What stuff exactly can be downloaded and where? I'm not clear on your point here.
Now you're just being ridiculous. People are sent "cease and desist" letters all the time by the MPAA and RIAA. Just do a search on these pages, or do a Google search. If you intend "prosecute" to mean with a federal attorney and all that crap, then perhaps you're right, but this is just as much prosecution, with even less due process than normal (which isn't much to begin with).
"The evil of the world is made possible by nothing but the sanction you give it." -- Ayn Rand
My comments, also posted on my web site:
This was my first time at oral arguments, so I have to admit I don't have anything to compare them to. For example, I felt that the Justices were harder on Theodore Olson (Solicitor General, argued the case for the Government) than they were on Larry Lessig (lawyer for the petitioners). This may just be because the justices know him better, though. To make my life even more difficult, the seat I was assigned had a nice fat column between me and everybody of significance. I could see the back of Justice Ginsburg's chair before she sat down. I was able to identify some of the Justices from their voices, but it was difficult. Oh, Declan McCullagh was there in a leather jacket. Didn't wear it to the courtroom, though. He'll probably have pictures up on his site later today, and I've got a couple I'll put up here.
On to the case: the first question came from Justice O'Connor, asking about the previous copyright extensions, which had not been challenged. Prof. Lessig pointed out that the 1790 Copyright law established a copyright for works already existing, but that was the first time such a law had been passed here -- before that existing works had no Federal copyright protection. That made the protection different from the extensions passed in the following years. Justices O'Connor and Rehnquist proceeded to press him on the significance that even the following extensions were unchallenged, and during Olson's time he pointed this out, saying that the petitioners therefore had a heavy burden challenging a law that had essentially stood for centuries. Prof. Lessig's response was that there has been a fundamental change, even since the copyright term changes made in 1976. In 1976, the copyright affected mainly commercial copyright producers and distributors, and they were the ones who benefitted from the laws. Now, however, the popularization of the Internet has made copyright an issue for many people. As an example, the primary petitioner in this case, Mr. Eldred, publishes public domain books on his web site, and he does it for free. Such a thing was unheard of in 1976. Mr. Eldred is only hurt by this copyright extension: he sees no benefit. The 1976 law would be unconstitutional if challenged now, but no one was seriously injured by it when it was passed, so it went unchallenged.
A sense I got from several justices was that they didn't approve of the copyright terms, but didn't see a Constitutional argument against them. Justice O'Connor came right out and said, "I can find a lot of fault with what Congress did here," and Justice Breyer, when questioning Olson, cited some numbers showing how much money copyright owners gained from the extended terms, compared to the losses to the public due to copyright restrictions. The counter argument was that copyright terms provide an incentive for distributors to preserve their works. While it was conceded by Lessig that Congress could not grant a copyright on a work currently in the public domain, Congress could grant an extended term conditioned on a promise to preserve and actively distribute a work. This would allow works for which the copyright owner could not be identified (such as many of those sought by Mr. Eldred) to pass into the public domain.
While I generally felt that the Justices were harder on Olson, they didn't seem to be too happy with the Consitutional arguments given by the petitioners. One point they did seem to like, and pressed Olson repeatedly with, was that, if the preambular part of the Copyright Clause is not read to be a limitation on copyright terms, and if the word "limited" does not mean "fixed" or "immutable," is there any limit on Congress's power to extend copyright terms? Olson's reponse was to point out that that is not the issue before this court, and I have to agree. While the Court is certainly free to say that the Congress's extensions are subject to judicial review on the grounds that "limited" need be reasonable or something like that, and establish some guidelines for that review, it has not been asked to do that in this case. More importantly, despite the Justices' feelings that there should be judicial review, lack of an explicit Constitutional limit on Congress's interpretation of "limited" does not create that power for the Court. It simply may be the case that Congress has the power to extend it however long it wants, as long as it is not "unlimited." The recourse for that, of course, is elections. Olson pointed out that the Framers had the power to put a specific length of time in the Constitution, and Jefferson actually encouraged it, but they eventually chose not to; they chose to give that power to Congress.
Lessig cited a figure he claimed a group of economists calculated: the current copyright terms give copyright owners 99.8% of the benefits they would get under a perpetual term. I would guess that assumes the benefits converge, although I'm no economist. I'm also no Supreme Court scholar, but my gut feeling right now is that the Court is going to strike down CTEA and establish some guidelines for what is an acceptable copyright term. I personally don't agree from a Constitutional standpoint. We'll find out in a couple of months, I suppose.
That movie actually has the value it does specifically because it fell out of copyright.
That movie was a massive flop, losing the studio money and sitting unused in a vault for years and years until the copyright ran out.
Fast-forward a few years - TV stations are swamped with royalty payments for their shows, and need something to put on during the Christmas season. Someone notices this crappy little film that nobody really liked or remembers... but it's royalty-free, so we're gonna play it constantly to fill airtime. (Heck, it's even directed by Frank Capra and stars James Stewart and Donna Reed, so it might even pull a small audience.)
Now fast-forward to a few years later - everyone in the US has seen that show dozens of times every year at Christmas. Watching it has become a tradition... Suddenly it's no longer that crappy little film, but one of the most popular Christmas classics of all time.
If It's a Wonderful Life had remained in copyright, it would have been lost with all those other barely-remembered movies from the 1940s.
--The Rizz
"The more things change, the more they remain insane." --Johnny Carson
An interesting smear, but you are aware that Bush has spoken strongly in favor of a strict `original intent' interpretation of the Constitution, and against such word games, right?
This is one of the largest factors differentiating the current administration from the previous one, by the way.
The Oliver North / bin Laden story is an urban legend, see the snopes page on this. It's debunked by North personally. He did make a reference to being threatened by a terrorist, but it was Abu Nidal, not Osama bin Laden, who was on OUR side back then.
All movements for social change begin as missions, evolve into businesses, and end up as rackets.
khkramer's thoughtful and thorough summary said, in part:
Previously he'd written that he was troubled at the grilling the Justices gave Lessig. ISTR that O'Connor is known for doing that when she finds an argument particularly interesting and wants to know more about it. If in fact she was pushing Lessig to explain his case more precisely, that's a good sign.
At the linked summary, it sounds like Lessig failed to address an essential portion of his argument. According to his reply brief, there is a huge difference between an equally applied retroactive extension and an equally applied proactive extension. He suggests, with references, that court precedent has shown that a retroactive extension requires a quid-pro-quo. If the law said copyrights were only extended for people that gave congress $5, or republished the work, or *something*, then the law would fly. Since there's no exchange, the law breaks judicial precedent.
I have *no* idea if this argument is correct. Please do not rely on my description of it. Read the brief (they're not hard to read at all). Is there a lawyer out there that can tell us if his quid-pro-quo argument is obviously valid, obviously wrong, or open for debate?
Does it make a difference if an essential point is only made in a brief, but not in oral arguments?
Am I misunderstanding the argument, or how it applies?
There are no trails. There are no trees out here.
Eric Eldred, et al. v. John D. Ashcroft, Attorney General
Woopty Doo Basil, what does it all mean?!
# Amicus - Petitioner:
# Intel Corporation (Merits) [PDF]
Woopty Doo Basil, what does it all mean?!