Lessig's Thoughts On Eldred v. Ashcroft Arguments

yokem_55 writes "Lawrence Lessig has updated his blog giving his thoughts on how the oral arguments for Eldred vs. Ashcroft went before the Supreme Court on Wednesday. He discusses the goals and methods he used in framing his arguments to convince the court to overturn the Sony Bono Copyright Term Extension Act, how he felt he did in presenting his arguments, and also provides some analysis on how he thinks the court might rule."

Comments

Re:The problem with Lessing....

[Raul654]

Ok, then explain this to me - if there were no copyrights, how would authors/musicians/artists/etc make money?

The founders had envisioned a world were copyrights are a tradeoff - for a particular works, certain freedoms allowed under other parts of the constitution (suich as the 1st ammendment) do not apply, in order to encourage them to create. But after a time, they go into the public domain. It might be old, but it sounds like solid reasoning to me.

Now, I agree that it has since been distorted. What we need (IMO) is repeal of those unconstituional retroactive copyright extensions, a shorter term for future copyrights, and (similiar to Russia) a law on the books making it illegal to create fair-use proof works.

Re:Eldred is gonna lose.

[Skyshadow]

Who gets to decide what it takes to "promote", and what exactly "limited" means?

Well the Court *can*.

What they'd do is establish a logical "test" which could be applied to decide what constitutes promotion (probably be called the Eldred Test). A good example of this is the Lemon Test, written by Justice Warren Burger in Lemon v. Kurtzman (1971), which can be applied to any future law concerning (in this case) school prayer.

Thanks to Larry Lessig

[EricEldred]

As the lead plaintiff in the case, I want to extend my greatest appreciation to Larry Lessig for taking on this case and arguing it so skillfully before the Supreme Court.

No doubt all of us will agonize over what we could have done better. But in the last four years we have raised the level of debate significantly on the role of copyright in the digital age. Today it would likely be impossible for legislation such as the CTEA to be passed.

What we need to do now is transfer some of the momentum from the Eldred case toward fighting some of the bad legislation beginning with the DMCA and including the Coble bills. After the Eldred decision, we can plan our next moves for new legislation that promotes the public interest.

Please support the public domain now by freely publishing your own ideas from your own website. Make new derivative works by digitizing works that are now in the public domain. Support the EFF, EPIC, Public Knowledge, Creative Commons, and Project Gutenberg and other online libraries.

And thanks for your support in all this!

Public domain doesn't benefit Disney?

[Spamalamadingdong]

Disney's made huge piles of cash off of the public domain. Look at what they raked in on Victor Hugo's work (the Hunchback of Notre Dame) after it went out of copyright. Ditto with Snow White and a pile of other, older works.

Of course, when it comes time for Disney to give something back to the commons from which they've drawn so much, it's "different".

After they win...

[Murdock037]

...Somebody ought to put together a little DVD collection of the earliest Mickey Mouse shorts that would now be public domain. And donate proceeds to the EFF.

A little thanks to Lessig, and a little fsck you to Disney.

Re:Eldred is gonna lose.

[joenobody]

Section 8, Clause 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;

What this says to me is that copyrights should be non-transferable. No signing away copyright to some big corporation unless you're doing "work for fire". This, and a sane policy that recognizes that authors don't have any incentive to create Writings and Discoveries after they're dead, would pretty much wrap it all up.

Re:not smart...

[einhverfr]

IMO, Congress isn't really in violation of the Constitution.

Except that the DoJ has admitted that in their case they see congress having total discression of the "limited time" that a copyright has. So, this looks a lot like saying limit of x as x goes to infinity would be supported here by their argument ;)

Whether or not the court strike down the law, it will be interesting to see how they interpret this limit in general.

And a quick comment-- Whether or not we win this battle, we need to be thankful for Lessig because he has devoted 4 years to this fight and without him, the fight might not have begun or be carried as far as it has been. If we lose here, we are in for a long fight, outside the courts, though activism, legislators, etc.

Re:What a case

[Stonehand]

Maybe it's a tactical decision.

Somebody well-funded like the Walt Disney company can pay those royalties, or, if the royalties demanded are outrageous, spend some time and money looking for alternatives. An upstart on a much lower budget might be hampered far more if the copyrights remain.

Re:The problem with Lessing....

[Tony-A]

The time horizon which determines what does and what does not get made is more like a year or two, certainly less than a decade. You don't really think any producer is going to decide what to do based on a 75-year payout, do you?

Ayn Rand Institute Says Lessig is a "Marxist"

[ink]

For those wondering about lessig's mention of the Ayn Rand thing:

From: Ayn Rand Institute Media davidh@aynrand.org
Date: Mon Oct 7, 2002 8:10:04 PM US/Eastern
To: Op-ed.list@heroic.aynrand.org
Subject: WOULD-BE INTELLECTUAL VANDALS GET THEIR DAY IN THE SUPREME COURT

Op-Ed from the Ayn Rand Institute

WOULD-BE INTELLECTUAL VANDALS GET THEIR DAY IN THE SUPREME COURT

Those who are spearheading the current legal challenge to the copyright law favor intellectual cannibalism masquerading as creativity and free speech.

By Amy Peikoff, J.D.

In 1998 Congress, pursuant to its Constitutional power to determine the duration of federal copyright protection, passed a law extending the term of that protection by 20 years. This law brought United States copyright protection in line with that already afforded in Europe. In addition, as the average life expectancy in the United States now exceeds 70 years, the law brings copyright protection in line with the legal vehicle for the posthumous control of tangible property--the law of testamentary trusts, which bases the term of such control on a human lifespan.

Despite the reasonableness of this law, Stanford professor Lawrence Lessig is spearheading a legal challenge to it, culminating in his argument before the Supreme Court this Wednesday. Lessig, who seems to have become, in the words of New York Times writer Amy Harmon, "a rock star for the digital liberties set," is expected to argue that the law is "overly restrictive of the free-speech rights of would-be users of copyrighted material that previously would have been in the public domain."

In recent decades we have already seen the "right to free speech" extended to mean the "right" to be provided with a free platform for one's speech. Anyone who dares to be successful enough to own a property where the public enjoys gathering--e.g., a shopping mall--is for that reason compelled to allow people to speak on that property. "Free" speech thus means: free of any need to earn one's own physical instrumentalities or audience, or even to pay for the right to borrow someone else's achievements.

Lessig would have the Supreme Court extend this perversion of free speech to mean: free of any need to pay for the borrowing of someone else's greatest achievement: original thought. Or worse: free of any need sufficiently to digest that original thought so as to be able to put it into one's own words. Appropriating and parroting the creation of others is now, according to Lessig, "free speech."

Lessig and his allies try to downplay what they are doing by making it an issue of finances. They say things like, "the copyright law used to restrict only big business, which is fine--but now it restricts anyone who has access to the Internet." "Only 2 percent of works protected by copyright," they go on, "create a regular stream of income for their creators." Translation: only a small minority of "non-little" people will be hurt by repealing this law, so why not do it? This attack on money, success and big business--no doubt another symptom of the "Enron" era--is shameful and Marxist. How is the Court, as Lessig demands, to "balance the interests" of original thinkers against those for whom "creativity" consists of cannibalizing--and even vandalizing--the products of others' thought?

The government is expected to argue--properly--that the Supreme Court cannot arbitrarily impose a definition of "limited times." In other words, the power to set an appropriate time period for copyright protection lies with Congress. Congress has clearly been reasonable in its exercise of that power.

The other main argument offered by supporters of the 1998 law is that, in the long run, the law will promote creative work, and thus the national welfare, by offering higher profits to those who invest in it. This argument--based on the "public good" standard--is intellectually bankrupt and doomed to failure. Opponents simply counter that more creativity will be fostered by allowing people to obtain and build upon existing works. Many "conservatives," such as Milton Friedman, use the same "public good" standard to argue that the incremental economic payoff provided by the 1998 law is not significant enough to encourage creativity.

Anyone who raises the standard of the "public good" in this context had better be ready to have his rights in any field adjudicated according to the latest iteration of Jeremy Bentham's utilitarian calculus. In practice, this means according to the premises, preferences, and whims of the judge sitting before him.

An artist or intellectual is often not only or even primarily concerned to reap the monetary benefits of his works; in addition, he wants to be sure that the integrity of the work is protected against mutilation as long as possible. This is especially true if the work conveys an important artistic or philosophic message. If those in the "digital liberties set" plan to have a field day with others' works of creative genius--bastardizing them into whatever fragments they find appealing, adding any distorting content they choose, then blasting the results all over the internet--what is the point of trying to convey to the world one's own vital viewpoint? What is the reward offered for trying painstakingly to create one's vision of truth or of the ideal universe, and to invite readers to share in it, if our nation's highest court gives Lessig's gang a formal sanction to practice intellectual vandalism on the finished product?

Amy Peikoff, J.D., is a senior writer for the Ayn Rand Institute in Irvine, CA. The Ayn Rand Institute promotes the philosophy of Ayn Rand, author of Atlas Shrugged and The Fountainhead.

Re:How would life be different?

[Speare]

Actually, sheet music itself is a vigorously enforced area of Copyright. There are many ways to write the same essential tune, just like the Perl motto of There Is More Than One Way To Do It. Sheet music authors (and player piano roll creators before them) rabidly protect against their unauthorized reproduction.

Think of the sheet music as an image which represents the music. The older sheets may in fact be turned out to public domain by now, but anything printed since the 50s is just as locked up as Winnie the Pooh drawings and Elvis Presley recordings.