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."

Comments

Not looking forward to the outcome

[lunenburg]

As much as I don't want it to happen, I'm 99% convinced that the Supreme Court will side with Disney, et al. I just don't see them actually taking a reasonable view of the Constitution and understanding that unlimited extensions equal an unlimited time.

And when they decide in Disney's favor, that will be a big flashing green light for Congress to sell out all other IP-related protections for the citizens without a second thought.

Say goodbye to the Public Domain. It was fun while it lasted. :-/

Re:Not looking forward to the outcome

[Moonshadow]

Sadly, I have to agree with you. These days, legal battles aren't about who's right, but who has more money to toss around. See the Nissan v. Nissan case.

This is a very disturbing trend we're seeing - the eradication of public domain and fair use rights through one-sided court battles. The question is, how long till a) there's a large scale backlash, or b) we have no fair use rights at all.

This is genuinely scary stuff.

Re:Not looking forward to the outcome

[Xeriar]

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.

Re:Not looking forward to the outcome

[Planesdragon]

understanding that unlimited extensions equal an unlimited time.

Nah. the SC just needs to decide what the absolute limit to "reasonable time" is, and state that as their interpretation.

And when they decide in Disney's favor, that will be a big flashing green light for Congress to sell out all other IP-related protections for the citizens without a second thought.

Come again? (are you saying that IP protections are good or that they're bad? Hard to grammatically determine your meaning, even if I can guess it.)

Let's look at the various forms of IP law:

Trademarks: Allready long-term, with required renewal and defense. No real problems there.

Patents: Limited term, no extension, and it makes "trade secrets" a matter of the public record after 20 (or so) years.

Copyright: Good side -> artists and authors don't have to be paranoid about their work being stolen by shady producers. (Bad contracts, yes, but not simple theft.) Bad side -> it lasts so darn long...

Personally, I predict that Disney et all will win, but the SC will render an opinion with language that implies or outright states that the current setup is the extreme maximum that should be permitted to copyright--or at least that it's approaching a constitionally breaching overextension.

Re:Not looking forward to the outcome

[neocon]

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.

Re:Not looking forward to the outcome

[poopsie]

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.

Um...Isn't looking to Jefferson for the definitive answer in effect having one generation control the next?

Re:Not looking forward to the outcome

[Moonshadow]

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.

Re:Not looking forward to the outcome

[dachshund]

For each case you can name where money comes out on top, I can name a case where the party with more money came out on bottom

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.

Re:Not looking forward to the outcome

[foobar104]

Um...Isn't looking to Jefferson for the definitive answer in effect having one generation control the next?

When I find somebody presently living who's as wise as Jefferson was, I'll listen to him. Until then, the dead white male trumps.

Re:Not looking forward to the outcome

[neocon]

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

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;

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.

Re:Not looking forward to the outcome

[catfood]

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.

Re:Not looking forward to the outcome

[dachshund]

The law isnt clearly illegal. The part of hte law about retroactivity may be illegal as you describe it. However, for new works, created today, the law is most likely valid.

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.

Re:Not looking forward to the outcome

[dachshund]

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?

Lighten up. You could just as easily look at a statement in the Plaintiffs' brief-- like "the decision of the [appeals court] ... was in plain error"-- and say, "if it was in plain error, why are we arguing about this now?" Of course, you'd be right, and you'd be missing the point-- it's just a manner of arguing.

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 ... 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.

To begin with, it has nothing to do with my happiness. That, as you say, must be satisfied through the political process. If Congress increased the copyright term for new works to 50,000 years, I would find that personally abhorrent. But it would be constitutional, and nobody's arguing that.

The problem with retroactive term modifications is nothing to do with the lengths of the term or the fact that the modifications have all been increases. It's the fact that Congress has been granted a power with clear limits, but have found a technical way to achieve unlimited power by sticking to the letter (rather than the spirit) of the law. From the plaintiffs' brief:

The limits of the Copyright Clause, like the limits of the Commerce Clause, are both express and "inherent in [the] text and constitutional context." Morrison, 529 U.S. at 619. As Judge Sentelle argued in dissent below, to determine their scope, a court must identify a "stopping point" to the enumerated power. [] If the government cannot articulate a practical stopping point to the expansion of Congress's power, then its understanding of that enumerated power is incomplete.

In this case, the government could identify no such stopping point. So long as each extension of copyright terms was itself fixed, the government argued that the constitutional requirement was met. That reading, Judge Sentelle rightly found, renders the constitutional restriction meaningless. "[T]here is no apparent substantive distiction between permanent protection and permanently available authority to extend originally limited protection." [] Indeed, as is demonstrated below [], the government's interpretation creates precisely the destructive incentives that the Framers were trying to avoid. Thus under the principle of enumeration, a different interpretation of "limited Times" is required-- one that forbids retroactive extensions of existing terms.

You're right that it's certainly possible to read the clause in the narrowest, legalistic sense possible. But to do so you would basically have to ignore the intent of the Framers, which was not compatible with a potentially unlimited copyright term through unlimited renewals.

Furthermore, Congress saying "this is the last extension we'll ever pass, really" is meaningless. This Congress has no legal authority to prevent future Congresses from passing further extensions. Only guidance from the Court can do that.

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.

Or even keeping the duration unlimited :)

You could just as easily make the following argument against that point of view: artists who created back in the 1920s could reasonably assume that their works would enter the public domain after a certain number of years (even if they or their heirs didn't care enough to do so explicitly). Therefore, a film-maker from that era had an expectation that his/her work might be free from restrictions before it completely degraded. Now, however, it's doomed to rot in a vault.

I don't argue that there are some limited arguments to be made that retroactive extensions might promote progress. For instance, giving Disney a few billion in extra copyright royalties could very well lead directly to the creation of new works that wouldn't have been created otherwise. What Lessig et al. argue is that a) Congress has other means by which it can insure these ends (tax relief, prospective term extensions, etc.), and that b) on balance, the benefits don't bear out such an imposition on speech as guaranteed by the First Amendment.

Incidentally, I'm very curious to see how this court rules on the First Amendment issue. The Appeals Court basically said that the First Amendment doesn't apply to copyright issues, and in support of this they referenced a case which may very well argue the opposite. Any way this comes down it may provide an instructive pile of precedents.

Oral?

[User 956]

Use of the word "Oral" is in violation of a recent Presidential order made on the request of John Ashcroft, shortly after he decided that the Supreme Court building was indecent.

Ashcroft v. ${Everyone}

[bay43270]

Having voted for a dead man, simply to see Ashcroft loose his Senate seat, I get a special feeling to see so many people (at least on paper) seem to be against Ashcroft. (I'm still waiting for Preditor v. Ashcroft and Aliens v. Ashcroft)

In retrospect, however, I wish he had won his re-election bid for Senate. He's doing much more harm now than he ever did as a Senator.

Lessig for Supreme Court?

[photon317]

We should all use some hacktivism points to start a grassroots campaign to get Lessig nominated by some party for a Supreme Court seat when one is up.

Re:Lessig for Supreme Court?

[syrupMatt]

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.

Gigantic Loophole of American System of Law

[syrupMatt]

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.

Re:Gigantic Loophole of American System of Law

[mr_teem]

It's not a loophole but there is a cyclic nature to the way that legislation is enacted, challenged, and refined. (And re-challenged, etc., etc.) This is a good thing.

Federal legislation is often broad-brushed and implemented with big clumsy fists. Sometimes it's not enough. Sometimes it is enough. Sometimes it's a little too much but it's tolerated. And sometimes, it really stops something that "outta be allowed". So we have Eldred v. Ashcroft saying that the copyright law extensions are now really too long to be sensible.

Given the relatively few cases the Supreme Court takes up, I think it's a really good sign that this one was. The corporations now have to hold their breath--you can't lobby the Supreme Court.
And, although there are plenty of experts that can speculate, it's hard to say whether they will uphold the existing legislation or declare it unconstitutional (and for what reasons). Whatever the outcome, there's a newly painted guidepost in U.S. intellectual property law to work with.

So where are the raw materials?

[yerricde]

After all, if there's no incentive for people to create things, nothing good will be created.

On the other hand, if there's no raw materials for people to create things, nothing good will be created. You can already start to see this happening in fields such as songwriting, where some songwriters are having trouble getting around the theoretical limit on the number of distinct melodies in the Western musical scale, which is fewer than 50,000.

Re:So where are the raw materials?

[richieb]

The 50,000 figure is a bit misleading. It's the number of distinct 4 note melodies possible with the 12 note western scale, without counting repetition that occur an octave apart.

Disney and Winnie the Pooh

[loggia]

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).

Re:Disney and Winnie the Pooh

[aronc]

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.

Mickey Mouse

[gpinzone]

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.

Re:Mickey Mouse

[clonebarkins]

Could someone explain how trademark could be used to control an article of expired copyright, E.G., Stram Boat Willie?

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:

• Steamboat Willie Goes To School
• Steamboat Johnnie (where instead of a squeaky mouse, the main character is a deep-voiced rat)
• The Steamboat Willie Cookbook
• etc.

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.

Re:Mickey Mouse

[Zathrus]

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.

Re:Mickey Mouse

[The Rizz]

the 1946 movie, "It's a Wonderful Life" has made millions for public and commercial teevee even though it lapsed into the public domain through oversight. it's certainly created more value than any of its comtemporary films that are still under copyright.

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

I thought this was a great quote...

[lobos]

From Levy article, "They can wrap it in the rhetoric of protecting copyright, but at the end of day they are trying to exert as much control over the marketplace as possible," says Greg Ballard, interim CEO of SonicBlue (which makes the Replay DVR.)

Another view

[eclectro]

From this report here the justicew seemed concerned with the "chaos" invalidating the CTEA would have on previoous copyright extensions.

NPR had come good coverage this morning

[MountainLogic]

Morning Edition

my notes on the oral arguments

[khkramer]

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.

Re:my notes on the oral arguments

[kalidasa]

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.

For Ginsburg, at least, this should all be old hat; her daughter who wrote one of the classic treatments of it in a Representations article about 10 years ago: J. C. Ginsburg, "Copyright Without Walls ? Speculations on Literary Property in the Library of the future", Representations,42. On the assumptions that one's own daughter's works should be canon, I imagine she's familiar with it.

See Jane C. Ginsburg's CV and this Ruth Bader Ginsburg Biography.

Re:my notes on the oral arguments

[NMerriam]

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.

Why Patents are 20 years and copyrights are 95

[asmithmd1]

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

Re:Why Patents are 20 years and copyrights are 95

[Stonehand]

Nope.

An patentable drug, system, or mechanism -- or lack of it -- might have a /huge/ impact on society. Not being able, however, to create a derivative work of, oh, "Steamboat Willie" doesn't really hurt anybody unless they're so uncreative and obsessed enough to only be capable of churning out SW-based crap. Ditto for most other creative works.

You could, actually, kill all the art and artistry in history, and society would still function -- albeit probably less happily. If you crippled medicine, engineering, and industry with 95-year limits and no compulsory licensing in the case of independent rediscovery, however, you'd still be living in -- at best, probably -- a wooden shack with no sanitation, and a dozen nasty strains of pathogens just waiting to infect you. That's a pretty big difference.

Re:Why Patents are 20 years and copyrights are 95

[jcw2112]

i sincerely hope that you are a troll...

the idea that a society can continue on in anything that resembles a healthy fashion without art or creative work is insane. would they continue to operate physically? perhaps. but i doubt it.

plenty of sociteties lasted quite well without aspirin, assembly lines or indoor plumbing but none that we know of have gone on without art.

I wish we had an extend by paying setup

[starseeker]

No, not for lobbyists. That's what we've got now. I mean the following:

Undoubtedly, Disney would stand to lose $$$$$$$ if Mickey Mouse were released from copyright, and it is in their interests to do whatever it takes to preserve it. I can in fact sympathize with that. It is a huge corporate symbol for them, and losing it would hurt bad.

But in order to keep Mickey Mouse, they utterly trash the copyright system, totally destroying the idea of public domain. Some would argue that this is intended, but I'm not quite that cynical. (Yet.)

Why can't we have a sliding scale, where if a corporation wants to hold onto copyright longer than the default, they pay some nontrivial amount of money every few years past the default time in order to renew. That way symbols like Mickey Mouse, which are still viable moneymakers for corporations, can be maintained as long as they are profitable. And anything which isn't lapses into the public domain. Why should that bother them? A few tens of thousands wouldn't even make Disney blink.

Really, I don't think we are out to grab Mickey Mouse away from Disney. What happened to finding a middle ground? I thought that's what American politics was all about.

"promote the progress of science and useful arts"

[sssmashy]

The Constitution specifies that "to promote the progress of science and useful arts," Congress should secure "for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

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.

Alice's Adventures in Wonderland is already PD

[yerricde]

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.

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If only the courts knew how to code

[_underSCORE]

"if a limited time is extended for a limited time then it remains a limited time,"

Yeah, guys, and this loop terminates:

int limitedTime = 14;

for ( int i=0;i<limitedTime;i++) {

System.out.println("Copyright Protected");

limitedTime += 50;

}

fools.

Re:If only the courts knew how to code

[iplayfast]

[quote]Yeah, guys, and this loop terminates:

int limitedTime = 14;
for ( int i=0;i<limitedTime;i++) {
System.out.println("Copyright Protected");
limitedTime += 50;
}
[/quote]

Actually that loop does terminate. The limitedTime variable is an int, which will wrap to a negative number.

Good thing you aren't in congress or you'd be making bad code into laws! :)

Re:If only the courts knew how to code

[Dirtside]

Yeah, but it won't wrap for two billion years, which is probably longer than a term of copyright really needs to be. :)

Pooh, not Mickey.

[yerricde]

Disney would stand to lose $$$$$$$ if Mickey Mouse were released from copyright

The Bono Act wasn't designed to preserve the monopoly on Mickey Mouse as much as it was designed to preserve the monopoly on nu-skool Winnie-the-Pooh (a relatively recent Disney creation) and old-skool Winnie the Pooh (to which Disney bought the rights from the Milne family). Disney makes much more annually from sales of Pooh merchandise than from sales of Mickey merchandise.

Why can't we have a sliding scale, where if a corporation wants to hold onto copyright longer than the default, they pay some nontrivial amount of money every few years past the default time in order to renew.

Others have proposed similar plans on both Slashdot and Kuro5hin. An interesting plan would make the renewal fees increase exponentially for every subsequent re-extension.

FREE THE BEAR!

New amendment

[Dan D.]

No one should be allowed to run for re-election if they *EVER* voted in a bill that became an unconstitutional law. The president should be impeached (even if he doesn't get kicked out) for signing a new law which violates the highest in this country. Signing an unconstitutional law into being should be just as high if not higher on the list than bonking Monkey Lewinski.

At the very least congress-persons should be suspended for a period immediately after. The state that loses their vote will think twice about being *stupid* in the future.

Of course it would make congress-persons think at least twice whether or not the lobby money is worth it, but they'd probably just up their sellout price.

Its not a checks and balances if anyone can do what they want until (and if ever) someone has enough money or time to actually fight a "silly" law. That's just chaos with an upper bounds.

Corporations are INsane on this one.

[Captain Rotundo]

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.

Re:Corporations are INsane on this one.

[stubear]

Your argument could turned against you you know. It's insane. Absolutely insane that you people have zero regard for artists rights, I have to admit, it disgusts me sometimes that I live in this society.

I'm not much of an Ashcroft fan ..

[cje]

.. 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.

TM: can't print Mickey's name on the box

[yerricde]

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."

I wonder why they didn't think of...

[DavidBrown]

...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.

Re:I wonder why they didn't think of...

[Luyseyal]

Because, apparently, exclusive rights are transferrable, i.e., they can be sold, given away, subjected to a Will, etc. I think it's silly, too, but...

-l

What TV does to you...

[jvmatthe]

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. ;^)

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! :^D

My take on copyright extensions

[crow]

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.)

Why is the government always so defensive?

[Dirtside]

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.)

Re:I don't understand ...

[clonebarkins]

If an author/creator/person has some intellectual property they should be able to set the bounds for how long after they die that property can be freely distributed.

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.

If that bound is set for forever and they want their kids to live off their Intellectual property then that's there decision. In the cases of companies owning the intellectual property, I believe it's totally up to them to drop the claim to the property and that they should be able to do this whenever they want.

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.

In the cases of companies owning the intellectual property, I believe it's totally up to them to drop the claim to the property and that they should be able to do this whenever they want.

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.

Anyway it seems like everyone is always making a big deal about getting stuff for free.

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.

It seems like the type of stuff they are talking about in this article (movies and photographs and books) can all be easily obtained off the Internet for free. And although the manner they are obtained of the Internet isn't exactly legal, like P2P mp3 downloads, it's pretty common.

What article are you talking about? What stuff exactly can be downloaded and where? I'm not clear on your point here.

And I'm not sure about everyone else but I haven't heard of too many cases where individuals were prosecuted for violating copyright laws.

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).

Re:European Copyright

[Amazing Quantum Man]

Theoretically, won't AOL still have the copyright on Europe,

Damn, that's some trick! I'd love to hold the copyright on an entire continent!

All your Europeans are belong to AOL!

I was there

[Roast Beef]

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.

Re:Bush's Newspeak?

[neocon]

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.

And you were wrong...

[dachshund]

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 argument is pretty straightforward. The court has ruled that where the Constitution grants a limited Congressional power, there must be a demonstrable limit to Congress's authority. The Supreme Court has made this ruling in the past.

In this case, there is no demonstrable limit. The government is arguing that it may extend copyright as many times as it wishes-- an unlimited number of times, if necessary. That interpretation clearly clashes with the straightforward requirement of "limited times". Thus there is no guaranteed limit on the power, and thus the law is not Constitutional. The notion of "reasonable" times doesn't really enter into it.

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.

You're going to have to fight that one out with the Framers. Clearly they did not feel that the political process provided a strong enough check on government power, so they wrote a strong constitution and created a Judicial branch to oversee it.

If you agree with my interpretation of "limited", the court has all the legal and moral authority it needs to rule against the law. If you don't, then you'll probably feel that it's a political issue. The court is in the process of making this determination, so let's not jump the gun.

Re:"promote the progress of science and useful art

[hey!]

IANACL, but it's my understanding that the intent with which a power is granted to a branch of government doesn't matter much. The problem is that the likely outcome of any given law is a matter of opinion. This is why we need legislatures to begin with: to decide what laws would be beneficial and which would be harmful. Clearly, the constitution does not intend to have congress pass bad laws, but it necessarily empowers them to do so. Once a power is in legislative hands, they can, in effect, use it for whatever purpose they want.

That's why arguments that say excessive copyright and patent terms retard progress don't carry much weight. It's often a matter of opinion; any particular law is likely to have mixed results. The courts don't want to get into the business of deciding what kinds of laws are beneficial -- just which ones are legal.

Copyright abuse opponents have to resort to careful parsing of the copyright clause to see if abusive copyright laws exceed the powers literally granted to congress. Lessig's approach is the most promising -- the clause doesn't say that congress has the power to modify copyright terms that have already been granted. I've heard other approaches, such as one judge who asserted that the nature of the power granted to congress was a specifically a power to promote progress. It's a bit of a stretch though. Accepting this argument brings the courts back into the business of judging whether a law is wise or not.

As much as we in the US revere it, the Constitution has over the years been proven to be pretty poorly drafted in many places. The copyright clause is a perfect example. Clearly the framers wanted copyright to be limited and their perosnal experience would have shown them that long copyrights are bad. At the time of the US Revolution, copyrights on literary works were perpetual and held by booksellers. If you wanted Paradise Lost, you paid Tonson's whatever Tonson's wanted to charge you, and you accepted a copy with whatever printing errors they didn't feel like correction. Clearly, the men of learning among the framers intended to remedy this situation by limiting the copyright term.

However, what they actually accomplished in article 2 was to effectively give Congress the power to grant perpetual copyrights. A term of a billion years is, literally speaking, limited, even though none of nor any of our descendents will ever see that term expire. Of course, such a law would be so obviously capricious and repulsive that the court would feel justified in stepping in.

The problem with gradual copyright extension is that it ever so gradually conditions us to accept the absurd. At the outset, a copyright term of seventy five years would have been absurd. However over the course of two hundred years, gradual encroachment has got us here. Most importantly, the term of a copyright is now a full human lifespan. That means few people alive have experienced having works they remember from their youth becoming part of the public domain.

Because of copyright extension, we have reached the point where the common person's experience doesn't provide him with any commonsensical checks on copyright terms at all.

It's extremely important that Mr. Lessig win his case.

Tax copyrights annually like real estate

[Paul Fernhout]

How about going one step further?

If copyrights are now effectively indefinite, copyright holders should have to pay taxes like real estate owners to keep works out of the public domain. A starting amount would be 3% per year of a self-assessed value, where anyone could pay the entire self-assessed value to the copyright owner to force the work to be placed immediately in the public domain.

Re:+1, Finally Gets the Fricken Point

[swb]

Here's the problem. Elections never end. Even after you win the November vote, you *have* to keep the election machinery oiled as well as start stockpiling cash *now* to meet the spending needs of the next session. What's a senate campaign cost? $2M average, $20M in places like NYC and Cal?

These kinds of costs (war chests, constant campaigning) are expensive. So you have to constantly solicit donors, aka special interests to get the money. They expect legislative concierge service, which they get.

I don't see any way out because the supply of congressional seats is limited to 535 total (100 sentate, 435 house), and we all know how supply-demand works. I'd guess the best thing to do would be to add 3 new senators per state and double the number of house reps. More seats = more representation @ lower cost.

Of course this would be a procedural nightmare in the congress, which could be worse than the problem it solves, but it would dilute the amount of money spent and increase representation.

Don't panic when the Supremes ask questions

[catfood]

khkramer's thoughtful and thorough summary said, in part:

In Lessig's opening -- which lasted about thirty seconds before he was cut off by Justice O'Connor -- he said that "this is not a case" about the "general power" that Congress has over copyrights, but about "specific limits."

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.

An argument ignored

[rossz]

The exact wording in the Constitution (Article I, Section 8):

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;

Something left out of the arguments entirely is who these exclusive rights are intended for. It didn't say anything about a family, publishing company or factory. It said specifically the exclusive rights are for the authors and inventors. As stated by the Supreme Court on numerous occassions, the Constitution means what it says. Therefore, any extensions that go beyond the life of the author or inventor is clearly unconstitutional.

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!).

What about his brief?

[Elwood P Dowd]

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?

Re:Bush's Newspeak?

[NumberSyx]

..you are aware that Bush has spoken strongly in favor of a strict `original intent' interpretation of the Constitution..

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.

Re:I thought this was funny...

[aronc]

From khkramer's summary, "Breyer joked that if Lessig's argument about 1998 applied equally to 1976, then he'd better find another argument. Everyonelaughed. (Everyone always laughed whenever a Justice made a joke.)"

I don't. Quite the opposite. If the justices are going to rule against the law because it would invalidate other laws, that's wrong. It shouldn't matter how many laws are effected when deciding if some particular legislation is or is not unconstitutional. Choosing to stay as-is because it would be difficult to fix the law is a horrible way to judge your current legal framework.

Re:Bush's Newspeak?

[NumberSyx]

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.

Was Rehnquist asleep?

[ethereal]

Chief Justice William H. Rehnquist seemed unsympathetic to those who want the law overturned.

"You want the right to copy people's works verbatim," he told Eldred's lawyer.

Why yes, sir, that's the whole point. That's what "public domain" means. Maybe if we can get past the knee-jerk incomprehension of "public domain", we can actually inject some sense into these proceedings. But probably not.

Frankly, I wonder if maybe he shouldn't have stuck with his other job as an impeachment court robes designer.

No real incentive to publish

[krouic]

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.

Re:Bush's Newspeak?

[neocon]

You make a lot of claims about USA PATRIOT here, none of which you back up with language from the act, but more generally, you don't explain how a bill which only extends to organized terrorism practices which were already ruled constitutional when they were employed against organized crime by the Kennedys forty years ago could be considered a new restriction on your rights.

The government may monitor religious and political groups without evidence of criminal activity.

Something which it could always do, but voluntarily refrained from doing (a mistake) after the Church Committee hearings. At no point was this illegal. It's important to note that what we are discussing here is observation of public announcements such as newspaper articles, web sites, and public speeches -- before this policy change, for example, it was against the rules for an FBI agent looking for al Qaeda to type `al Qaeda' into Google.

The government may search and seize Americans' papers and effects without probable cause to aid terrorism investigation.

Simply untrue. See the more extended discussion of this claim in the journal entry linked above.

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.

No, the government may seek a gag order from a judge in such cases, something which was already extensively done in RICO cases.

The government may monitor penal communications between attorneys and clients,

After notifying the suspect, with the supervision of a judge, etc. -- but this is a practice that began long before USA PATRIOT (and in fact USA PATRIOT says nothing on the matter), and, again, has been used in organized crime cases for decades -- just ask John Gotti's lawyer.

and deny lawyers to Americans accused of crimes.

Again, simply untrue. No American accused of a crime can be (or has been) denied a lawyer. Americans accused of waging war against the country can be held until the end of hostilities without being charged (see below), but this is a practice which has existed since the earliest days of the republic, and has been repeatedly upheld by the Supreme Court, most recently in 1942.

The government may jail Americans indefinitely without a trial.

This is the same charge as the previous one, and is equally untrue.

The government has closed once-public immigration hearings,

Something which could already be done (and was in a number of cases). Immigration to this country is a privilege, not a right, and the Constitution provides no guarantee that immigration hearings will be public.

secretly detained hundreds of people without charges

Not true -- provide a cite for this.

and has encouraged bureaucrats to resist requests for public records under the Freedom of Information Act.

Again, provide a cite for this.

The difference of course is we were at war in 1942.

Go read the decision in Quirin, which is linked above. The power to detain those caught attacking the US does not depend on a declared war being in effect, for reasons which should be obvious -- by your logic, had we captured any Japanese pilots during the attack on Pearl Harbor, we would have had to release them, since we did not declare war until the following day.

More generally speaking, the vast majority of the wars the US has fought in, from Jefferson's campaign against the Barbary Pirates through the Gulf War were not declared wars in the sense you discuss. Are you seriously suggesting that this means we did not take prisoners of war in any of them?