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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."
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.
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
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.
Will I retire or break 10K?
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).
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.
Morning Edition
I was at the oral arguments this morning, and since I have press credentials, I was able to take lots of notes.
My summary tries to cover all of the main points the Justices raised in their questioning of both sides.
I was a bit discouraged by how much attention the Justices paid to problems with Lessig's Article I arguments, and how little -- none at all -- they paid to the claim he makes in the brief (and mentioned briefly during the questioning) that the birth of a new technology regime (the Internet) should have a profound impact on how we craft copyright law.
I don't think there's much grounds for guessing which way the court will go on this case. Certainly the people in the pressroom and in the lawyers' lounge today weren't making many predictions. Lessig's argument is so narrowly constructed, and the copyright clause of the constitution is both so clear in intent and non-specific in its wording, that the court really could go either way. Certainly four justices had to think the possibility is there to decide for the petitioners or the Court wouldn't have taken the case. But there was a lot of hard questioning of Lessig, today, and I didn't think he was able to definitively reframe any of the issues that the Justices were concerned about.
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
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.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
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.
they will never take Alice In Wonderland!
Correct. Alice's Adventures in Wonderland by Lewis Carroll has fallen into the public domain in the United States and is available through Project Gutenberg. Even if the Bono Act had been in effect since the time of its publication, the copyright would have expired in 1969 (1898 death of Carroll + 70 + end of the year) under the author rule or 1961 (1865 first publication + 95 + end of the year) under the work-for-hire/pre-1978 rule. But in the USA, copyright term extensions do not re-copyright works whose copyrights have already expired; thus, all works first published on or before December 31, 1922, are in the public domain in the USA.
The EU is a different matter; copyright law was revised to fit the terms in effect in Germany (life plus 70); works that had been in PD for quite some time fell under copyright once again. In addition, some European countries have granted extensions for works published before World War I, for works published before World War II, and for works published by authors who died in World War I or World War II.
Will I retire or break 10K?
Comment removed based on user account deletion
"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.
"This is not a company that appears to be bothered by ethical boundaries."
Attorney General Mike Hatch on Microsoft
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!
Will I retire or break 10K?
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
Could someone explain how trademark could be used to control an article of expired copyright
If and when the Bono Act is overturned: "Of course, you can sell copies of 'Steamboat Willie' and 'Plane Crazy', but you won't be able to print Mickey's name or likeness anywhere on the box."
Will I retire or break 10K?
...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
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.)
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.
An interesting smear, but you are aware that Bush has spoken strongly in favor of a strict `original intent' interpretation of the Constitution, and against such word games, right?
This is one of the largest factors differentiating the current administration from the previous one, by the way.
The 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.
khkramer's thoughtful and thorough summary said, in part:
Previously he'd written that he was troubled at the grilling the Justices gave Lessig. ISTR that O'Connor is known for doing that when she finds an argument particularly interesting and wants to know more about it. If in fact she was pushing Lessig to explain his case more precisely, that's a good sign.
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
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.
jello.
aka aron.
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.
Your right to not believe: Americans United for Separation of Church and