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Eldred Transcript, Bookmobile Experience
Patrick writes "The transcript of the oral arguments in Eldred v. Ashcroft is now online." Such exciting lines as: "CHIEF JUSTICE REHNQUIST: Well, but you want more than that. You want the right to copy verbatim other people's books, don't you?". See previous stories about the oral arguments and Lessig's thoughts on them. chromatic writes "The O'Reilly Network has just published Richard Koman's Lessons from the Internet Bookmobile about his travels with Brewster Kahle to Eldred v. Ashcroft. I particularly like how he describes the universal positive reception."
It doesn't appear to be the "real" transcript, but rather a reconstruction from memory:
"Thanks to some friends, I've been able to get a copy of the Eldred case transcript. I've cleaned it up, added the names of the justices where possible (searching my memory, the responses in the text, and press reports) and HTMLized it."
That is a quote from the site it's posted on Here
http://thomas.loc.gov/
One of the best sites to keep yourself informed. This gives you the good and the bad.
Sites like the EFF, ACLU, RIAA and MPAA are good for getting differnt view points, but their information will always be slanted in one way or another. That's what lobying groups do.
In arguments it's good to know both sides of an issue but it's even better to look at the issue itself somtimes.
from as far as i can tell this isn't the official transcript...this is a transcript taken by someone in the audience. the official transcript taken by the people employed by the supreme court will be available in a couple of months (i think) and those are uncopyrightable and you can do whatever with them.
What if you were an inventor and had a great idea for a Gizzmo-matic. This will also make tons of money. Now, you can go ahead, and make it, copywright it, and either manufacture it or liscense it. And lets say the Gizzmo-matic makes you 100k/year in proffit for the rest of the copywright term (lets say it expires upon death). If you are 30 years old, and live to be 75, that's a large chunk of money. If you are 74.5, its not so much money. The thinking is with life+X years is that older inventors can still have a reson to create.
... well, if you were creating it for the benefit of society, you wouldn't be copywrighting it anyway. Copywright is supposed to be an incentive to create... not just an incentive for younger people who can reap the rewards of thier creation to create.
Now, I know what you are thinking... why not create it for "the benefit of society"
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Did you take a civics class in high school? This is exactly the purpose of the Supreme Court. This is exactly the purpose of the idea of checks and balances.
The federal government was not set up as a direct democracy. In theory, every branch must follow the Constitution. It's fantastically difficult to amend the Constitution for a reason.
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And in fact, they do exactly that for patents. What the hell is so special about copyrights that they need to last for 70 to 190 years (max human lifespan of 120 years + 70 years copyright)?
Dyolf Knip
The Supreme Court evidently expects you to pay money to read it now, rather than waiting a few weeks/months. The SCofUS gives Alderson a SCotUS recording monopoly and first dibs on publishing. Based on other transcript prices, you would pay about $200. As discussed on Copyfight, a legal blog, Alderson doesn't allow purchasers to publish on the web. So while we can get next-day transcripts of late night TV shows, we're expected to wait weeks to read the arguments of our most influential legal employees. Thank you Aaron Swartz for putting this up.
Lawmeme has a poll on how you think it Eldred will come out. Read the transcript and vote.
Remember that, as Lessig himself said, the oral arguments are only the tip of the iceberg. The real meat of the thing is in the opinions and other documents filed by the lawyers of both sides. The Q&A time provides opportunity for them to request clarifications, but most of their deliberations will be based on the printed pages. Prognosticating based on oral arguments alone can be misleading.
Editor Emeritus and Senior Writer, TeleRead.org
Putting public domain words into a new format does not suddenly make them copyrightable, nor mean that you own the copyright to it.
IANAL, but WestLaw does exactly that, and there have been court cases supporting them.
Members of the public are not allowed to record the arguments. or even to take notes. Accredited journalists are allowed a bit more leeway, but only Alderson Reporting is allowed to transcribe or record.
Moreover, Alderson gets a short period of exclusivity before the transcripts are posted to the supreme court website. Before this, a copy is deposited in the Supreme Court Library, but readers are not allowed to copy the document. You can purchase transcripts for ~$150 ($2.85/page?), but Alderson demands permission for all excerpting. ("Permission routinely granted for short excerpts.")
I think that the copies extant are probably derived from the appellants copy. I'm not sure whether Alderson plans to sue...
The Audio recording will not be available until late 2003.
This is a partial summary- I may contiue it in a future post. My comments are in parentheses.
A justice brings up the possibility that they are at a risk of disrupting previous copyright extensions, a process that seems have begun with the first act.
Lessig says that due to common law and the law of the individual states, the first act did not extend copyright more than it curtailed copyrights existing under prior law.
It is then pointed out by a justice that there have been several extensions since, even if the first act does not.
Lessig admits that in 1831 and 1909, Congress extended terms in a way that is inconsistent with the strongest possible interpretation of the Constitution that would aid him in winning his case. He then says that those extensions were never challenged in any court, apparently to suggest that since it had not withstood a real challenge, it might not be that sound, but a Justice point out that the reason that they were never challenged is that there might not be a basis for it.
Lessig points out that due to modern communications technology the circumstances has changed from that of previous copyright law which affected mainly commercial publishers so there was less of a need for scrutiny, even if there was a basis, and that this is the first time where the Court has been pointed to changed circumstances as a reason to reaffirm the Framers' values. He further attempts to show basis by bringing up that it's not the case that the earlier extensions were not questioned on constitutional grounds, citing an academic challenge, causing the Justice to clarify himself, that he was talking about court challenges, not academic challenges.
A justice says that regardless of changed circumstances or not, Lessig's basic theory, which on his argument would have been appropriate at any time historically, is that there at least has to be the possibility of a kind of a causal connection between the extension and the promotion or inducement for the creation of some subsequent work, and asks why does that interpretation of the Promotion Clause make more sense than an interpretation that says the Promotion Clause requires that there be a general scheme in place, which overall tends to promote or induce, and part of that scheme can be that at the discretion of Congress the period of protection is extended from time to time?
Lessig says that under the other interpretation of the Promotion Clause there is no limit to the ability of Congress to extend subsisting terms.
Then a justice asks whether the same thing applies to change of scope- whether Congress can decide to change the size of the net that catches derivative or resembling works of a copyrighted work, so to speak.
Lessig says no, because unless retrospective extensions are forbidden, it will eviscerate the meaning of "limited Times" which does not occur in the context of the scope of exclusive right, nor in the context of the power to secure.
Then a justice asks if Lessing's theory is true, would that mean that the court would also have to hold the 1976 act unconstitutional. The judge makes the claim that if the 1976 act were to be held unconstitutional, chaos would ensue. (which I doubt), Lessig says that under the theory as it's been advanced, the 1976 act would be unconstitutional. The judge says that maybe they should find another theory
Lessig says that the theory, which would advance the aim of limiting times in a way that is enforceable, is only applicable to the '98 act in the case presented, and would not necessarily be applicable under the '76 act for reasons that had been offered by the Government.
A justice asks if Lessig thinks it's at least arguable that the '76 act had various positive aspects to it in terms of the purpose of the Copyright Clause that this act lacks? Lessig says yes, and also that it fits into a severe disruption exception that had been demonstrated in an earlier case.
A justice says that implicit in all of this is that for all these years the act has impeded progress in science and the useful arts, and that he just doesn't see any empirical evidence for that.
Lessig says that this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws, so a empirical claim needs not be made.
A justice is confused between this argument and a secondary argument that there is a great First Amendment force that's being thwarted, and that the secondary arguement was the entire underpinning for the case.
Lessig clarifies that it it true that he is asserting, in light of the changed circumstances, that the opportunity to build upon works within the public domain is a fundamental First Amendment interest, and that the First Amendment values, the vital speech interest at stake of this case, is that the public domain be permitted as a source for cultivating work about our culture without unnecessary legal restriction. A justice states that Lessig wants more than that- he wants the right to copy works verbatim. (which would grant the access required to be a source for cultivating work)
Lessig says that he wants the right to copy verbatim works that should be in the public domain and would be in the public domain but for a statute that cannot be justified under ordinary First Amendment analysis or under a proper reading of the limits built into the Copyright Clause.
A justice drawing from the briefs, says that he can't see where "retroactivity-prospectivity" comes in on the First Amendment argument and if Lessig is saying that the time is too long, that the public domain should get this stuff sooner rather than later, would he explain how the "prospectivity-retrospective" line fits into the First Amendment claim?
Lessig says that the prospectivity matter should be deferred until the court decides whether the prospective and retrospective is severable, and we submit it's an easy case to show that it's not.
A justice finally gets that the First Amendment argument and the Copyright Clause argument are independent arguments.
A judge wants to take the First Amendment argument alone, and tie it into the retrospective-prospective distinction.
Lessig says that the strongest First Amendment argument is about the retrospective extension, because of a fundamental change that occurs when Congress extends subsisting copyrights, rather than when Congress legislates prospectively because when Congress legislates prospectively, it has no way to know who's going to benefit from its extension. It is simply evaluating what the term should be prospectively in a way that the Court should presume is legitimate under the First Amendment. However, when it legislates retrospectively, it has the effect of looking at particular authors and estates of authors who are before Congress asking for this extension, and it's choosing between these particular authors and the public at large. Maybe in exercising that choice in this case, Congress made an objective valuation of who would be in the best position to advance the interests of promoting the progress of science...
At this point a justice interrupts, saying that in Lessig's intermediate scrutiny test the Court would not be hypothesizing what might have been in Congress's mind. Lessig's First Amendment test is a stringent one. You have to have an important purpose, and the means that is use is necessarily tied to that purpose. If you take that position, I don't see how you make the retroactive-prospective line work.
Anglo-Saxon constitutions? Utter fantasy. The Anglo-Saxon kingdoms which eventually became the United Kingdom have never had, to this day, a written constitution. Parliament is sovereign and the courts may not overrule it.If you mean the constitution of a country to which a small group sailed away in the Mayflower (in a sulk as England insisted on relgious freedom) then you should say "American Constitution" and not pretend that it was handed down in tablets by Hengist and Horsa. FWIW when the UK saw the trouble that a written constitution gave to Canada they foreswore any such notion for themselves. The following link is to the standard work on English constitutional matters. Anglo-Saxon, mostly but we let the others benefit. www.socsci.mcmaster.ca/~econ/ugcm/3ll3/bagehot/con stitution.pdf
There were many more than just two extensions in recent times. IIRC, there were 11 since 1963. See the briefs for the exact number. Congress has not allowed any copyrights to expire since then.
Eldred's argument is that retrospective extensions are not constitutional since they don't conform to the limits of the Copyright Clause in the Constitution.
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IANAL, but WestLaw does exactly that, and there have been court cases supporting them.
IANAL either, but I have done a fair amount of time in a law library or two. Westlaw has a patent on their keysite index system and copyright on the analyses they include with the record (I know, these analyses are quoted so often in court briefs that the copyright is questionable, but thats for another rant). The keysite index system makes it a lot easier to do legal research. Any one can take the text of the rulings themselves and use them any way they choose to. They are public domain. The keysite index system and analyses are not public domain.
The real value of Westlaw is in the keysite index system and analyses provided. Nexus-Lexus also provides similarly useful tools in its numbered index system, analyses and Shepard service.
Oh, and a quick online Lexus search of all Federal District Court cases for all available dates did not list a single copyright or patent case listing either West Group or NexusLexis as a plaintiff or defendant. I am curious, exactly what case are you referring to?
yeah, i'm sure that government stuff can't be copyrighted. i am a grad student and i get 100% of my funding from nist and the nsf so technically i'm a government employee. normally when you publish a paper you have to sign over your rights to the paper to the journal who publishes it. however, since my publications are a product of government money i don't have any copyright to sign over. there are extra forms i need to fill out when i submit something to a journal so that they know that it's impossible to copyright that specific article.
likewise with the official government transcript from the supreme court...it's uncopyrightable.
Matthew Bender & Co. v. West Publishing Co., 42 U.S.P.Q.2d (BNA) 1930, 25 Media L. Rep. (BNA) 1856 (S.D.N.Y. 1997)
The case, being post-Feist, supports your view.
Become a FSF associate member before the low #s are used