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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."
If the Supreme Court were so sure of their position as you are, they wouldn't have taken the case in the first place.
I think they'll overturn the ever-extending copyright rulings of the lower courts.
The fact is that even if the Supreme Court agrees with the idea that unlimited extension means unlimited time, it must turn to Congress to police itself and enact a "limit on limits" for copyright extension (unless, of course, there is a constituional ammendmant in the works, which i dont see happening in this climate).
However, once the matter goes back to Congress, we are presented with the same problem yet again. Congress now can pass a placation act which will satisfy the Supreme Courts demand, and then in the future extend the "limit on limits". Its a giant loophole whereas they are not actually extending the limits themselves, merely the amount of times the limits can be extended. IANAL, but there is a term for this kind of layered system of laws.
In such a case another lawsuit may be brought, but what will the climate of the Supreme Court be at that point, after another x amount of years of corporate lobbying (or, for the positive thinking, of lobbying for the public domain)? A corporation thinking in the long term is probably not worried at all.
"Moving through the masses like a fish through water." syrup
The first link listed at Google News is this slashdot article. Thats funny, looping links.
-- 4 8 15 16 23 42
Before anyone starts up with the Mickey Mouse issue, this only affects the copyright on the "Steamboat Willie" cartoon itself, not the MM character. Mickey Mouse is a protected TRADEMARK and will continue to be protected under trademark law FOREVER.
I was there this morning and in the hours before we were finally let in many discusions of the issues took place. I have always wondered why copyrights have been extended from the original 28 years, while patents have remained almost unchanged at 20 years. Of course the answer comes down to money. There are competeing monied interests on both sides of the patent issue, while the public domain is not contributing anything to congressmen to hold the expansion of copyright in check
Free cell phone tracking
I would disagree. When the Supreme Court finds the wording of the Constitution too vague, they look at the intent of the Founding Fathers, of whom Thomas Jefforson was quite clear on the issue - that one generation shall not have control over the next.
My fingers are crossed, of course, but I am more hopeful.
I am a science fantasy fan
It seems that the original intent of "copyrighting", as specified in the Constitution, has been mostly abandoned in the current debate. The writers of the Constitution weren't really concerned with the economic aspects and the rights of capitalists as they were with the welfare of society as a whole.
Ted Olson's case seems to be mostly based in the economic rights of corporations and creators in our capitalist economy. The Supreme Court, who are supposed to use the Constitution as the final arbiter in their decisions, are mostly concerned with legal precedents and the equity of past and present copyright holders.
Does society really benefit from a given legal entity (Disney Corp., for example) holding the rights to a cartoon mouse for eternity? Call me a socialist, but it seems to me that the welfare of society should be given at least an equal consideration to the individual rights of copyright-holders. That's what the founding fathers intended in the constitution, where "economic rights" are secondary to the "natural rights" of mankind.
This is a very good point -- and is an example of why it is so important to have strict constructivist judges on the Supreme Court. As long as it is understood that the Founders meant something by the words they put on paper, it is possible to say that the law means something. There may still be plenty of disagreements as to what the Founders meant, but they can generally be resolved. When the Constitution does need to `evolve', or `change', this can be done through the mechanism the Founders provided for it to do so -- Constitutional Ammendments.
In contrast, if we take the increasingly common, but frightening, view that the Constitution is a `living document', whose meaning `evolves' with the times, then the Constitution can be constantly reinterpreted to mean whatever each generation of judges think it would be best for society for it to mean.
Some may be willing to trust that this reinterpretation will always be done honestly, without reference to special interests, ideological aims, or corrupt goals, but IMHO it is much better for the stability of our system of government that we not make such trust the basis of the rule of law.
The yahoo article had some quote from AOL saying somehting about its copyrights on "Gone with the WInd" and "The Wizard of Oz" would be "threatened". as if thats a bad bad thing. THAT'S THE WHOLE POINT for crying out loud.
Its insane. Absolutly insane that these people have zero regard for anything but themselves, I have to admitt, it disgusts me sometimes that I live in this society.
.. but this case really has nothing to do with him. It was originally filed as Eldred v. Reno. The reason that the defendant was Reno (and is now Ashcroft) is because as United States Attorney General, (s)he is the one who is (presumably) responsible for making sure that the law(s) in question will be enforced.
This has nothing to do with personal statements or actions that have been made by either Reno or Ashcroft.
We're going down, in a spiral to the ground
...arging that the statute violates the Fifth Amendment prohibition against government takings without just compensation?
Here's the theory: Because of existing copyright law, whenever a creator creates a work, the creator brings into being a bundle of property rights, analogous to the various rights associated with the ownership of real property. Essentially, the copyright is divided into two interests:
1. A present interest owned by the creator of the work (and his assignees) for the duration of the period set forth in copyright law; and
2. A future interest in the public domain.
By extending copyright retroactively, Congress is taking a property right away from the public domain without any compensation in violation of the takings clause of the Fifth Amendment.
There are hurdles to cross, such as whether or not the "public domain" has any rights. In the alternative, I would argue that the public domain is held in trust by the government for all the people, in the same way that the area between high tide and low tide is held in the public trust, and apply the law related to public trust land to the public domain rights created by copyright.
144l. ph34r my 133t l3g4l 5k1lz!
Man, I've got the Law & Order blues...I want to hear the judges' decision NOW! If Jack McCoy had argued this case, instead of Lessig, I'm sure the Supes would be back in like 30 minutes with their decision. ;^)
:^D
Ah well. At least cable is showing L&O every hour on the hour nowadays, so I can get home and get a fix then. GET 'EM JACK!
Curmudgeon Gamer: Not happy
I'm not talking so much about the laws themselves as the precedents of interpretation of those laws set by the courts. Precedent is an amazingly powerful tool in today's legal system, and while laws are passed, it's up to the courts to determine their scope and applicability when those laws are questioned. The outcome of those cases can have a massive effect on the future of our rights. If the courts today favor corporate interests over personal rights today, then in 10 years, a judge will look at this case and say "based on the ruling in case X, I find the defendent guilty of offense Y through precedent Z".
This isn't about 1 ruling - it's about precedent.
You answer this yourself at the end of your report:
The one non-obvious tack Olson's argument took was to continually emphasize that the "promot[ing] progress" language wasn't intended to apply just to authorship, but also to distribution. Making things widely available required that publishers have a strong economic interest in the copyright system. By implication, the 1998 law was intended to promote progress by strengthening publishers' interest.
Obviously, the Internet does change everything with respect to cost of distribution and drastically lowering the threshold of economic incentive necessary to insure distribution. If anything, the Internet means a historical level of distribution can be maintained while diminishing publishers' interests. Strengthening their interests should only be necessary if the cost of distribution goes up, not down.
If I were on the Supreme Court, I suspect I would want to rule that the big problem is the retroactive aspect of the extension. If a retroactive change is allowed, then the limit on copyrights isn't limited. Then there's the question of what's reasonable. More precisely, what is reasonable may change with time (hence, it's not fixed in the Constitution), but shouldn't the definition of "reasonable" be based on the time when the work was created?
I don't see the Supreme Court getting into an argument with Congress over what is reasonable, so for new works, I wouldn't overturn the new limit. (I would instead work to overturn Congress at the ballot box, but that's another issue.)
Things enter culture, Superman, Hulk Hogan, these things are household names, with stories that are now apart of the american culture, which means forever, someone would own our culture.
:))
I could never think that a world Bach, or Shakespeare were always benefitting someone financely somewhere, where you couldn't listen to Bach, or read Shakespeare without paying royaltes to there great-great uncles, who have little to no relationship to the work in question.
Plus this also limits derived works. Metallica uses Bach, Mozart, and other classical themes in all of there earlier works, and many authors also take characters from other works, look at Pip from South Park...These are definitly copyright infringments, but should these offense be illegal?
Taking someone elses work, or parts of there work, either for inspiration, or to accent your work, is a part of the human expression. Fan works, or pieces that are inspired by other works should not be subjected to archane copy laws. Its ok for an artist to use what is around them socially, like superman, and add that to their work, because superman is a part of who that artist is, and by extending copywrite law, we limit the amout of expression that artist has...
thank you
(sorry for the rant, and for the horrible english
~~~
Click here, you know you wanna!
I imagine it's a matter of pride, just like for most humans, but why is it that no matter *what* the issue that someone's suing them over, the government always insists that it is absolutely right, and could not be wrong? Even the Executive Branch does this, when it's their job to enforce laws, not make them (Congress) or determine their rightness (SCOTUS). I remember seeing a quote from a DEA executive, saying that the DEA was opposed to any weakening of drug laws. Not that he was opposed, the DEA was opposed. Why is the DEA concerned about whether the laws change? Their job is to enforce existing laws, whatever they may be; there is no good reason for them to oppose changes in the law. (Naturally, they oppose any changes in the law that will make them have less power.)
"Destroy science and religion. Science would re-emerge exactly the same; but not religion." - Penn Jillette, paraphrased
Well, sure. Our justice system isn't 100% broken, but that's hardly a defense. If someone who's clearly in the wrong can triumph even 10% of the time simply because they've got lots of resources, then something's badly wrong; you don't need to see a 100% success rate before you cry foul.
Courts are meant to be restrained. They are meant to take the word of the people (aka CONGRESS) unless the law is illegal
Congress is also meant to be restrained. If it wasn't, the Framers wouldn't have written in so many checks and balances on its power. The constitution would be a whole lot shorter.
Personally, I think the unlimited ability to retroactively extend copyright spits on the notion of "limited times", both as the Framers intended it and as the Court has previously ruled on such constitutional limitations (ie, if you can't point to a concrete limit on a Congressional power, you can't call it "limited".)
Therefore the law is clearly illegal. And from that point, there's not much else to say to your argument.
Don't be discouraged by tough questioning -- experienced court-watchers have said that they frequently give a harder time to the side they agree with, in part to see how well the arguments hold up and to ensure that they are comfortable they have examined any flaws well enough to rule in an unbiased manner.
Recursive: Adj. See Recursive.
It is certainly correct that there can be long-standing disagreements over the Founders' intent -- that's why we need a Supreme Court, so that such disagreements can be resolved. If we move to a system where the Constitution is a `living document', however, any disagreement over the law is grounds for court action, however, and chaos ensues.
To use the current case as an example, it is pretty clear that there is room for argument as to what the Founders meant by a `limited Times' when they said
but it is equally clear that an argument that the Constitution has to `evolve' to `meet the times' by interpreting `for limited Times' as `forever' would be out of line.They are probably being harder on Lessig because they are highly sympathetic-- and until the transcript comes out, we really won't a good account of the actual event. The Court also seems concerned that they can't cash out the retroactive bits of CTEA without nullifying the whole law, which is really scary to them since it means that they are *removing* years from the copyright on works created after 1998. They are also concerned that this current case would affect a 1976 law (and I have to ask why *that* particular retro-extension has never been challenged!).
Also, please remember that a lot of very important voices in this debate have all filed briefs with the Court in order to make persuasive arguments on behalf of one side or the other. The whole case hardly comes down to a debate held in under an hour and a half.
Small issue here: Disney Corp. does not create. People create, artists create. People that work for Disney Corp. create, Walt Disney did create. The company does not.
jello.
aka aron.
Judges seem to have a tendency to reject overly literal interpretations that defy common sense.
I believe it was one of Eldred's briefs that said something like: by calling for "limited" copyright terms, the Founders couldn't have possibly meant this, because they never would have chosen that wording. They might have written "...blah blah exclusive rights for a duration of Congress's chusing..." or some such. Yes, strictly and mathematically speaking if you add a "limited" extension to a "limited" term you will still have a "limited" term, but that's a pedantic reading that no reasonable person would think of as the most obvious way to understand the text.
It would be like literally reading all the male pronouns in the Constitution in order to draw the conclusion that no woman should be allowed to serve in federal elected office. It's defensible only in the twisted logic of someone with an unhealthy agenda but makes no sense in a reasonable context.
I agree with you. Lawrence Lessig and the plaintiffs agree with you. Nobody is saying that Congress can't set any term they want for new works. Hell, the plaintiffs' brief makes that clear. However, Congress can't retroactively extend copyright terms, which is the crux of the case.
Now here's the problem: the way the law is written, if you throw out one portion (the retroactive extensions), the rest of the law can't stand on its own. I don't purport to understand the full legal reasoning-- it's pretty arcane-- but it has something to do with severability and the court having to substantially rewrite law in order to make the changes (and courts don't like to do that.)
Plaintiffs aren't saying that the court shouldn't do that if it wants to-- all they're saying is that they want to throw away the retroactive part. Period. If Congress wants to meet tomorrow and extend the protection for new works to say, a million years, they could do so without fear of legal challenges.
No, no. See, if money were the deciding factor, or even a factor at all, then you'd expect to see the side with the most money winning over 50% of the time.
You've sent statistics into a place where they just don't want to be. Here's an example that might clear things up: if a group of people goes to our legal system arguing that the United States is on the continent of Africa, they should see a 0% success rate. Anything other than a 0% success rate indicates that there's a problem with our system. You don't have to see a 100% or even a 50% rate in order to realize that something is wrong.
Now let's imagine that some percentage (say 10%) of the US-is-in-Africa plaintiffs are prevailing. Now it might be informative to look at the winners of this ridiculous case and see what percentage are wealthy. And if a huge percentage were, you'd have some evidence that maybe things weren't working right.
What you're doing is saying "well, sure 100 wealthy people won on the 'US-is-in-Africa' argument, but look over here; at least 100 poor people won on the 'US-is-in-North-America' argument. Since we've got just as many poor people winning as rich people, the system is clearly not broken." Overlooking the fact that the folks who won the second argument won it because they were right, while the folks who won on the first argument won despite the fact that they were wrong.
I'm not saying that every rich person has a bad case. I am saying that I believe there have been a fairly large number of cases where one side prevailed despite the fact that they had a crap case-- but simply had the legal resources to win out. Your argument-- that poor people sometimes win their cases too-- doesn't address this.
One problem is when a copyright is made in the name of a corporation which has a theoretically unlimited lifespan. If the Supreme Court ruled that the maximum length of a copyright is the lifespan of the author, then you would see a mad rush to copyright everything in the name of a business. This would have to be prevented as it is an attempt to bypass a Constitutional limit.
My personal solution is to automatically assign the lifespan of the current CEO of the business when the copyright is filed in the corporation's name - and changing the original name is not allowed. Most of them are old bastards who will die in 20 years from overwork or within 5 years during a prison gang rape (that was a joke - so laugh!).
-- Will program for bandwidth
And yet he signed the US Patriot Act, which directly spits on the Constitution in so many ways. Has he vetoed anything since he's been in office ? or is he going to be known from here on out as George "Rubber Stamp" Bush.
"Our products just aren't engineered for security,"
-Brian Valentine,VP in charge of MS Windows Development
Excuse me, but how did you arrive at "clearly illegal"?
I suppose I shouldn't expect much from someone who writes "Therefore the law is clearly illegal".
So, if it's all so clear, why the debate? Why isn't it over? I'm strongly against the increase in copyright, but I'll fight it in the November elections. I don't believe the US Supreme Court would be within it's bounds to declare that law unconstitutional.
The US Constitution includes the copyright clause , but doesn't specify a limit, rather states that any such grant must be limited. So, it seems apparent to me that the framers intended for Congress to modify the duration. Modifying the duration implies the ability to decrease or increase the duration. It seems we've only had increases, but I don't see anything unconstitutional about that (I do see something wrong with that maybe, and like I said, elections in November). Would you be happier if Congress decided: "OK, this is the last increase ever. We're fixing the copyright term at 50,000 years". That's limited.
Oh, and as for promoting progress? That should be for Congress to decide as well. Retrospective extensions can't promote progress you say? Interesting point, but flawed. When you are going to produce a work, you know that copyright duration can be changed, either up or down. You might be more likely to produce the work if the U.S. has a long history of keeping the duration high. That seems similar to the argument that "Why don't we just erase everyone's debt?". Sure, we could, but nobody would trust Congress afterward, and nobody would ever invest or loan money in the U.S. again. I'm not saying it's always helpful to retrospectively increase the duration of copyright, but it can be. That's for Congress to decide.
Get out and vote, or campaign for the reps you want. If everyone spent an almost insignificant amount of their income supporting "good" candidates, that's way more than special interests could possibly spend. Or you could also boycott corporations that pay for bad legislation.
Social scientists are inspired by theories; scientists are humbled by facts.
Abdullah al-Muhajir (you don't call Muhammad Ali `Cassius Clay', do you?) is being held as an enemy combatant, something which has nothing at all to do with USA PATRIOT
On the contrary, the suspension of Habeaus Corpus and the passing of the US Patriot act are symptoms of the same disease. The following is my list symptoms of an erroding Democracy.
Freedom of association: The government may monitor religious and political groups without evidence of criminal activity.
Right to liberty: Americans may be jailed without being charged or being able to confront witnesses against them.
Freedom from unreasonable searches: The government may search and seize Americans' papers and effects without probable cause to aid terrorism investigation.
Freedom of speech: The government may prosecute librarians, telecommunication company officials and anyone else who reveals they have received a subpoena for records related to the terrorism investigation.
Right to legal representation: The government may monitor penal communications between attorneys and clients, and deny lawyers to Americans accused of crimes.
Right to a speedy and public trial: The government may jail Americans indefinitely without a trial.
Freedom of information: The government has closed once-public immigration hearings, secretly detained hundreds of people without charges, and has encouraged bureaucrats to resist requests for public records under the Freedom of Information Act.
Read This , it goes into more detail.
a practice which was upheld most recently in the 1942 US Supreme Court case Ex Parte Quirin.
The difference of course is we were at war in 1942. Regardless of what GW Bush says, we are not at war, Article 1, Section 8, Clause 11 of the Constitution gives Congress the power to declare war, not the President or FoxNews. GW Bush will have to do better than "He's a bad man" to convince me that Abdullah al-Muhajir deserves to be held without trial or access to a lawyer or his family.
"Our products just aren't engineered for security,"
-Brian Valentine,VP in charge of MS Windows Development
Most of the works concerned be the recent copyright extension have no commercial value. Their copyright owners would lose money if they wanted to publish and distribute them. But as there is no cost incurred by keeping the copyright and not releasing these works to the public domain, they prefer keeping it in the hypothetical case it would regain value in the future (like for instance Hollywood producing a movie based on an obscure pulp hero of the 30's).
So basically, the copyright extension gives no incentive to the owner either to publish or to release these works in the public domain, having the net effect of depriving the public access to the vast majority of the works concerned by the extension. IMHO, this has the exact contrary effect of what the Constitution expected. It locks the vast majority of work from the public to protect the revenue of the fews that are commercially viable.
A fair law would allow such an extension, but it would also force the copyright owners to periodically publish and distribute their works. Failure to do so would automatically put the works in the public domain.
This would benefit the public by making these works available, either through the usual commercial channels or from the public domain, while the copyright owner would still be able to get revenue from the works that are still commercially viable.