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:not smart...

[Skyshadow]

Except, of course, we're talking about law and not poker.

In reality, Lessig could publish all of his notes from the case and let the opposition interview him for a week to get all the juicy tidbits and it wouldn't matter a hill of beans -- it's like asking a coach about his superbowl strategy the day after the game is played.

All said, I think that Lessig played a pretty good game here and gave "us" (as in "we the people") pretty much our best possible shot here. People who think he "lost" the Supreme Court arguement just because the justices gave him a hard time are obviously not framiliar with the Court in general.

That said, I'm not sure that the Court will side with Lessig simply because, IMO, Congress isn't really in violation of the Constitution. Really, this is a fight that needs to be taken to the Congress, which just won't happen until the American people (again, "we the people") take some interest in the machinations of their government.

Re:Eldred is gonna lose.

[Skyshadow]

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;

So the framers specifically state their intent in giving Congress this power. A trillion years may be a limited time, but it cannot be reasonably seen as a promotion of the "Progress of Science and useful Arts".

The idea here is that even the stuff before that first comma is important. Lessig et al. argue that, by extending copyright over too long a time, you're actually doing more harm (aka, arresting spin-offs and adaptations) than good (convincing creators to create by making it financially attractive).

So it's not black and white. You absolutely cannot cimply ignore any of the words or phrases in the Constitution.

Re:The problem with Lessing....

[I Want GNU!]

I'm sorry, I hate perpetual copyrights as much as you do, but I completely disagree that they are the problem. Imagine a world without copyrights. A movie is created, and instantly people with professional equipment are in there getting cam copies of the movie. They sell it in legitimate stores. More copies are made. A DVD is released, and since it is very easy to make a perfect copy, these are made. There are sold in legitimate stores, as this is perfectly legal. A CD is released, and perfect copies are made and sold for $1 each in stores. Software is made and immediately sold for the cost of the media in stores.

See the dilemna here? While you may argue that the RIAA and MPAA are evil (as they are), and that a lot of CDs these days are made according to a formula and forced down are throats (as many are), the fact is that there is much quality content created as books, audio CDs, movies, and software, that takes a large initial investment in order to create. If some company spends $8 million creating a piece of software then how are they going to recoup their profits if OfficeMax is selling $1 copies in the store in three days?

This is my argument for why limited copyrights are needed. But, it would be very nice if they only existed for perhaps 20 or 30 years.

Re:The problem with Lessing....

[I Want GNU!]

No, that's not my point. With copyright terms allowed, things like Photoshop, 3D Studio Max, Blade Runner, The Matrix, and Dr. Strangelove get produced. GPL software is good in addition but this will get produced either way. You can argue that there is GPL software that does the same things as many other goods, but without copyright virtually all movies created in the last century would not have been created, or at least not as well. They wouldn't have the money to support the budgets they have, to buy their expensive SteadyCams to shoot them with and the film (which is very expensive), and their video editing studios. The educational videos wouldn't be made without public money since companies wouldn't make a profit on them.

My argument is that without copyrights, goods that cost money won't get produced to begin with. How can you free a DVD that doesn't exist? Without copyrights you'd force material to be free and thus keep lots from being created. With copyrights, creators have a financial incentive to create, and so their work will be created. How would you like if all the movies we had to watch were GPLed videos? All TV stations would be financed by public donations, and with public goods there is no way of excluding freeloaders.

How would life be different?

[A non moose cow]

Until I started following this issue I had never considered the 'length of copyright' laws, but did always wonder who had the 'rights' to classical music and Shakespeare, etc.

I have lived my entire life in a period where termination of a copyright is a non-existent thing. This situation is 'normal' to us because we have never experienced life without it. We never think to check up on if a copyright has expired so that we can make a derivative work... we just assume that we can't use it because it hasn't expired. The very idea of making a derivative work has simply become unthinkable... in a very literal sense.

We all know that tomorrow's ideas build on yesterday's. Since the wording of the constitution is apparently open to interpretation in this case, I hope the court considers the potential benefits to the populous of freeing these works. I hope the court does not find the idea 'unthinkable' just because it is the familiar status quo.

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!

No, thank *you*

[InterruptDescriptorT]

Actually, it is you whom we ought to thank, firstly for all the work you are doing with the library and also for pressing the case and having the tenacity to take it all the way to the Supremes.

Regardless of the outcome, you have raised this issue in the media and finally people are starting to become aware of the awesome power of the copyright holders and the great potential of the public domain that may be lost if it weren't for you.

I do have a vested interest: I put a lot of poetry (Dickinson, Poe, St. Vincent Millay [if you win :-)]) to music in a modern setting, bringing the great works to a whole new audience. If you win, and I sincerely hope you do, then it benefits not just you, not me, but everybody.

Thanks.

Re:What a case

[glandauer]

The problem with Disney's views is that they're shortsighted- even for Disney. As people have routinely pointed out, Disney has been very aggressive about using public domain as a source for its works- i.e. Snow White, Sleeping Beauty, etc. That means that they could probably profit more than anyone else if the public domain was expanded. Yes, they'd lose the rights to Steamboat Willy, but how much money are they actually making from that? OTOH, Winnie the Pooh would be out of copyright pretty soon, so they wouldn't have to pay royalties to A.A. Milne's heirs for the use of Pooh. How many great movies could be made based on the works of Faulkner, Hemmingway, and the like that are currently being kept under copyright by the term extensions? How great would it be to be able to use Gershwin's music as a background score without having to pay his heirs for it? Why can't Disney see the advantages to them of being able to take advantage of the new works that would be going into the public domain?

Re:It is amassing to me

[Skjellifetti]

You are right. We, the ignorant public, just don't get it. Someone worked very hard to write the music, book, whatever. You did nothing. And yet you believe that you are entitled to the benefits of that work without paying anything for those benefits. Nope, we just don't get it.

I laughed at my father years ago in my leftist youth when he told me an old quote variously attributed to Churchill, Clemanceau, Shaw, Russell, and Disraeli:

Any man who is not a socialist at age 20 has no heart.
Any man who is still a socialist at age 40 has no head.

One day, you, too will not get it either.

Good points - and elaboration

[kscguru]

VERY good pints, though I think I might comment/elaborate on a few of them.

Remember that just because a law is "bad" and horribly unbalanced towards lobbists doesn't make it illegal unless there is some specific legal reason the law is unconstitutional.

Exactly right - and the Supreme Court would be correct in maintaining a law passed entirely by lobbyists over the objections of 90% of the American people. Why? Because the Constitution doesn't prevent it. And in the U.S., there is no law higher than the Constitution. Immoral, yes, but illegal, no.

I even think this is necessary - because think of the opposite. How many laws were passed with the support of 90% of the people over the objections of lobbyists? Answer: a whole bunch of important ones. Taft-Hartley (sp?) on labor laws, Sherman Antitrust, Amendment 19 (?) (women voting). If we want the people to overrule lobbyists sometimes, we need to let lobbyists overrule us sometimes - because the people can always re-elect a more favorable Congress.

So far it seems the court is buying [the limited powers] argument. The court seems to be unsure though if it has any power to do anything about it. This is good news to Lessig, because it means the court buys the limited power argument.

It's actually a very good thing the court is unsure if it has power. In fact, the court almost ALWAYS asks if it has power to intervene... you'll notice that since the court rejects upwards of 90% of the cases appealed to them. A big part of those appeals are cases where the court doesn't feel it should issue a ruling.

Another example, the Florida election stuff. That debacle was an example of the Court deciding it DID have power (and deciding very quickly, and without much justification). IMO, a more correct ruling would have been to just say that "how a state runs its elections is its own business" and just refuse the matter entirely. This was basically the minority opinion. I'm not arguing the merits or outcome of the decision (I would have remanded it with instructions for a re-hearing, but I'm not a Supreme), but most of the mess occurred because the Court jumped too quickly into an area it shouldn't have entered.

Perhaps the Court even feels burned because of the Florida voting episode, and is trying to be extraordinarily cautious with its power (and even more so because more eyes are looking for faults!)

The case was also helped by a government bumble. The government argued that there is no constitutional limit on the ability of Congress to extend copyright, thus the extention was legal. This actually helped Eldred because the court did not like this view at all. The court did not support the idea that the constitution limits the powers of Congress, but that Congress gets to set what the limits are. In effect, the government proved Eldred's point themselves.

As much as the Court hates giving itself power, it likes giving someone else power even less. A better argument might have been that there is a limit but Congress should determine it; but instead, the government chose to try to defend the whole thing. It almost feels like they're giving the case away. Thus: I'm watching carefully to see if someone responds to "an erosion of copyright law" by introducing a new, draconian law with overwhelming support. Cyncial, yes, but I'm very cynical when politicians are involved.

Very good summary, my complements to you good sir.

Re:The problem with Lessing....

[Chasuk]

...the entire renissance happend without copyrights.

This is true as far as it goes; however, it ignores the other mechanism in existence which guaranteed the livelihood of those renaissance artists whom we remember today: patronage.

Respected artists and philosophers of the renaissance didn't have to work, because some rich noble or institution supported them, or because they were already independently wealthy. I know that this doesn't apply to all artists of that era, but to a significant minority.

This also ignores another issue. Let's suppose that the RIAA, etc. didn't exist. That I produced a work of art accompanied by a license of my own composition in which I requested that you didn't distribute my creation, and deleted it from your HD after 24 hours unless you paid me $5.

Wouldn't I have the right to do that? Does an artist who chooses a digital medium automatically forfeit rights that a sculpture in bronze or clay doesn't?

I we expect the GPL to be honored, then what about the rights of artists who choose to be protected by copyright law? I mean, the RIAA aside, doesn't Metalicca have the right to choose which license they distribute their wares (not warez) under?

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....

[WEFUNK]

...it would be very nice if they only existed for perhaps 20 or 30 years.

I think Lessig did a great job, but I'm a little worried that the case will fail for being too conservative by limiting the challenge to the CTEA alone. The constitution can easily be read to be even more restrictive if you understand "...securing for limited Times to Authors and Inventors the exclusive Right..." to mean that the time is to be limited from the relative perspective of the creator, not an absolute term.

This is in keeping with the original limits which were well within an average lifespan (granted, a work produced less than 14 years before an authors death might seem unlimited but in most practical cases copyright would expire during their lifetime). Today, copyright is extended exclusively (and transferably) to an author for an unlimited time from their perspective (as long as they live), to their children for a nearly unlimited time (most if not their entire life) and, barring further extensions, only their grandchildren are likely to hold copyright for long but limited time. From another perspective, anything produced during my lifetime will never enter the public domain before I die. As far as I'm concerned, to me this is an unlimited term.

Now I highly doubt that the supreme court would role back all of the earlier laws, even if they prove to be unconstitutional, but Lessig's argument can be thought of as providing a welcome compromise that limits the need to meddle with the less recent past. My worry is that they will accept the Lessig argument as the most extreme case and seek a lesser comprimise such as limiting future extensions without repealing CTEA.

Re:Eldred is gonna lose.

[Skyshadow]

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.

Interesting, but totally off-base.

Consider the memoirs of U.S. Grant. Their are considered to be a model for military memoirs, and he wrote them while he was dying of throat cancer. He did so with the specific intent of restoring his family fortune (lost in bad business deals) and providing for his family.

That alone demonstrates that heirs should be allowed copyright protection for a limited time.

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.