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."

Comments

Copyright past author's death?

[Vinnie_333]

This is swaying off the specifics of the case a bit, but ... As someone who is a firm lover of art and literarure, as well as a believer in an author/artists ownership of their creation, I don't understand the belief that copyright should be extended past the creater's death. I'm assuming it started as income for the survivors. However, a window washer's widow does not continue to take in income from her late husbands previously washed windows. And children ... should probably learn how to earn their own living. I don't see why being the son of an author that had to work hard their whole life suddenly makes you able to sit on your ass your whole life.

Re:Copyright past author's death?

[Arandir]

However, a window washer's widow does not continue to take in income from her late husbands previously washed windows.

No, but she does inherit the window washing business, including any inventory or tools, receivables, contracts, etc.

Property can be inherited. Intellectual property can be inherited as well. If you consider copyright a type of lease from the public, then why should not the widow inherit the remainder of the lease?

Re:Copyright past author's death?

[t0rnt0pieces]

I don't understand the belief that copyright should be extended past the creater's death.

Excellent point, I don't understand how this got started either. if you read what the constitution says, "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;", no where in that passage does it mention the authors' and inventors' heirs. It seems pretty clear to me that any copyright law that sets the duration beyond a "limited time" within the author's lifetime should be unconstitutional. But that's just my interpretation.

Re:Copyright past author's death?

[shatfield]

Here's the problem, though -- most companies (Record Companies, Book Publishers, etc) will require the artist to sign away their copyrights to any works that they create to the company... and companies never die! So basically, a company, like Disney, can own the image of a rat for 50.. er.. 70 years.

When we start getting close to the time that the rat will go into the public domain, Disney will then fill the coffers of whoever happens to have lied their way into Congress, and *bamf* it'll be 90 or even 100 years.

What Lessig is arguing for is to put an end to these perpetual term extensions... for how can something ever go into the public domain if you can just pay Congress to keep extending the terms?

Re:Copyright past author's death?

[naasking]

Why not just make it one limited time, ie. 50 years period. Thus, the inventor and his estate each benefit 50 years of accrued benefit.

Re:Copyright past author's death?

[tongue]

What's funny to me is how anyone can interpret the act of copyright extension as an attack on the first clause of that: "To promote the progress of science and useful arts..." its crystal clear to me that if it weren't for the fact that copyrights and patents give incentive to create, there would be no such thing in this country. Likewise, if copyrights did not expire in a limited time, there would be no incentive to create anew, since the revenues from the first creation would continue ad infinitum.

Re:Copyright past author's death?

[armchairlinguist]

Intellectual property is not like real property. It is a monopoly on distribution secured for limited times. Intellectual property is not "being inherited" when the copyright persists after death.

Why is the monopoly granted? To promote the progress of science and useful arts. No promotion of science and useful arts would seem to result from a person who didn't create any progress in the first place controlling a copyright on someone else's work.

Thus, I don't see how the extension of copyright after its holder's death as belonging to the original intent of the distribution monopoly.

Re:Copyright past author's death?

[dpilot]

Because the purpose behind copyright and patents is to get the works into the public domain, eventually. That way others can build on those works, in a continuation of progress.

The limited time monopoly granted by copyrights and patents is an inducement to the author/inventor to not keep the material secret.

The most creative people don't create because someone's dangling money in front of their noses. They create because they MUST, it's built-in drive. The money's there to give them more time to create, and to release those creations.

Show me something created purely for money, something that has none of that inbuilt *drive* behind it, and I'll show you most of modern American TV.

Re:Copyright past author's death?

[Elwood P Dowd]

The correct answer to this question is so straightforward that I don't understand why it keeps getting asked.

I get a benefit right now from the copyright on my works that last longer than my life: I can sell those rights, and buy myself lunch. Income for the survivors is a red herring. In one of the first attempts to extend copyright, many people pointed to the example of Dante's granddaughter. Due to a number of misfortunes, she was destitute. Shouldn't we extend copyright, so that this sort of travesty can never happen again?

Of course, Dante's works, at that time, were covered by a perpetual copyright. This just didn't help his granddaughter because he had sold those rights to a publisher. Copyrights that last longer than Dante's life helped Dante, not his heirs.

The reason that it's so disappointing when people ask this question is that it shows they aren't thinking nearly hard enough about the problem. Because there's still a hole in my argument, but if you haven't gotten that far, you'll never see it: The value of the 70th year of income from my copyright is worth almost nothing today. Sure, someone might pay a million dollars for rights to a Tom Clancy novel 70 years from now. But Tom Clancy could get that million dollars by investing $20,000 in treasury bonds. That's a tiny fraction of the current value of the copyright. That indicates to me that Clancy does not create anything in order to get those royalties.

Re:Copyright past author's death?

[Dun Malg]

Material property is a much different thing than intellectual property, but they are still both properties

Actually, the term "intellectual property" is a legal fiction made up in the mid-1800's in order to lend credence to the ludicrous notion that anyone can actually own an idea. They are not both called property because they have anything in common, the later was named property in order to give it the same attribute of "ownability" as the former. An idea, method, or string of words have nothing in common with a real, physical piece of property. Well, they do now, but only because of the aforementioned legal fiction.

Re:Locking up official records

[dh003i]

LOL, that's pretty misinformed, even for /.

For something to be copyrightable, it has to be original; and for you to copyright it, you have to either be the creator or have a contract with the creator saying you own the copyright. Neither exists in this case.

Since these words were spoken at a public trial, they are all public domain.

Putting public domain words into a new format does not suddenly make them copyrightable, nor mean that you own the copyright to it. That's absurd. It would be like me taking a Michael Crichton book and reformatting it, then claiming some kind of copyright over it. Absolute non-sense.

The Plain Truth

[Effugas]

If it wasn't beneficial to existing creative entities to draw upon shared cultural history residing in the public domain, such creative entities wouldn't do so already.

As much as I don't want to accept that Mickey Mouse should enter the public domain, I can't help but notice that The Little Mermaid has a bit more to her than shellfish and a talking crab sidekick.

In my mind, the bottom line is that every dollar Disney has ever made mining the public domain is concrete proof that there's value to having one. One could make the argument that a creation as actively maintained as Mickey Mouse should be granted a special exemption -- and I might even buy that, based on the idea that there's no sense dragging 20th century creative works into obscurity (and make no mistake, that's where they'll go!) so that one work might keep its trademarkability.

But I don't think it's possible to argue the public domain is useless. If it was, Disney Wouldn't Keep Using It.

Pop Art didn't begin with Warhol.

Yours Truly,

Dan Kaminsky
DoxPara Research
http://www.doxpara.com

From Russia with laws

[Ektanoor]

Well the arguments of the petitioners do not seem to be well prepared. However O'Connor is deeply wrong on making its starting argument on the fact that there were several extensions to the law. This can be seen on the History of Russian Law. While Russian and Anglo-Saxon judicial systems deeply differ in practices, on cases concerning the Constitution they are amazingly similar. The case is that if some law can be unconstitutional, but the law remains in force until someone questions it.

Frankly, there is something funny with Russian Constitution. The first one was created in 1918. It was a little clumsy and had several gaps but it was an historical difference between Imperial Russia and the new Russian state. Then came Soviet Union, its more reworked Constitution and finally the Stalin Constitution of 1936. It is a paradox but sincerly a fact - Stalin made the most perfect and complete Constitution of his time. Besides this corp of Law was so well elaborated that, for many years, it was taken as an example of how constitutions should be done.

However we all know Stalin as one of the biggest tyrants of History. Why? Because under the Constitution there were no laws supporting it. Stalin's Constitution was factually void because there was not a mechanism to check laws against it. The situation was so silly that, when Brezhnev changed the constitution, it did it by violating the old constitution and creating some piece of crap that some called American Constitution of the USSR (no offense people, but your Constitution is not useful for no one but you). Meanwhile, even this Propaganda Constitution was nearly void of action. Until 1993, Russian Constitutions were just pieces of paper. But in 1993, the Constitutional Court was formed and then many people started to give questions. And then, we started to see some cases very similar to O'Conner's arguments.

There were and still are laws that come from Soviet times. These laws were created, accepted, revised and changed many times. Some of these laws have more than 30 years life. Some of these laws are considered to be violating the Constitution. And you know what chaos is created? State organs that lived for tens of years under these laws, suddenly realize that they were violating the law and they should do things totally another way. So, sometimes we hear arguments that this law was here for so many years, everyone lived well with them and that there is no reason to change it. However the Constitutional Court is a final instance and no matter the pressure, it takes some rough resolutions.

Why I took this example? Well, for some, an outside view may make a new view to the situation. Also, I'm trying to show the possible consequences of what will happen if the system of constitutional control becomes void. Maybe the US will not have its Stalin, but something worse may happen.

Porbably the law has been broken since that nefarious year of 1790. It is possible that even the first Copyright law was voted with some violation of the Constitution. Maybe it was violated on one of these extensions. So, it is rather problematic for O'Connor to claim precedence of Law under this case. The Constitution is the Law that cannot accept precedence of any kind. A law either is constitutional or unconstitutional, no matter the acceptance, the revisions or the traditions (btw that's a position Russian Court clearly took on one matter). Frankly, that's an ideal that goes above nations and traditions, and that's the fundament for the existence of a Constitution. A Constitution can only term times in relation to itself, all other laws should go in accordance with constitutional terms no matter their lifetime, traditions or revisions. That's what some people call the dictatorship of the Fundamental Law. If it is turned void then other tiranny may substitute it.

Constitution is not the same body of law as the anglo-saxon traditional jurisprudence. If O'Connor will play with this, then either he will be burned to the stake or there will be many questions about the effectivness of the American Constitution.