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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.
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.
"We shall party like the Greeks of old! You know the ones I mean." - HedonismBot
Well, I arrived at 5:15am in line, waited till 9:30 when the first 50 people where let in to see the arguments. I was 54...so I didn't quite make it.
The guards told us to wait...in case there were openings, so the other 25 people waited in line. I had made friends with a few law students over the previous 4 hours...who were all in the same boat with me. About 9:40am, we were looking down the steps to the Supreme Court, and up hurriedly walks this stalky gentleman, with snuggly fitting pin striped suit, grey hair...just a little too long, slicked back. As he approached the front of the line...he sideglances the group of law students that I'm standing in line with but quickly looks away. He walks right up in front of us to the two guards and announces, with authority "I'm Jack Valenti (pause). I'm on Scalias list."
Wow...did we all really here that right? Yes we did. We laughed our tired laughs, joking that we thought Scalia was "on our side"...and silently wishing that we had snuck in behind this Man, famous in our small circle for his accurate prophetic visions.
*** MAKE A STAND. NOW!
They forgot an EASY target. "Life of the author". So if you copyright some book, and then you cryogenically freeze yourself, you get the coypright for as long as you are alive, right? So then your children get to inherit that money for all time, while you're alive in stasis.
...but my latest thoughts on-- and inspired by-- Eldred v. Ashcroft went to my journal. While I haven't finished reading the transcript, (I've only read through Lessig's first arguments) what I've read so far hasn't changed my thoughts one bit so I'm not posting them again here.
I do have to say this case has really made me see the truth behind the "kill all the lawers" jokes-- that most people don't want to live in a world of such detailed and precise thought. I, for one, will take the lawers and all the evils that go with them if it will get me away from the sloppiness of thought and/or expression that produced the DMCA and is pushing for Digital User Restriction Management in all our computers.
Do you like Japanese imports?
Damn im lucky that crusing around on slashdot is homework.
That's funny, because Slashdot probably drops my productivity at work by at least 10%...
Robots are everywhere, and they eat old people's medicine for fuel.
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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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.
Life + 70 is bullshit. For one thing, the vast vast majority of the profits from a work are reaped in the first few years it is on the market. Very very very few pieces of copyrighted material (be they music, books, movies, etc) will be making significant profit in 10 years.
Another problem is the undetermined time of when a copyright expires. "Life" could mean 1 year, 10 years, 50 years, or 100 years, depending on how old the creator is when (s)he copyrighted his/her work, and on how healthy (s)he is. Copyrights should be a fixed time period. If they expire before the author dies or after (s)he dies, too bad.
These increases in copyright length have not increased productivity and creativity. No artist decides whether or not to create something depending on if (s)he will still own the copyright in 10, 20, 30, 50, or 100 years from now. 10 years would be plenty of time for creators to make significant profit on their creations... Almost all software is a complete non-factor 5 years after creation (how many still buy Windows 95? or Windows 98?...what about Descent 2 ('98)?). Almost all movies are a complete non-factor in terms of profit 20 years after their creation...Jaws, one of the best thrillers of all time, isn't a significant profit factor anymore...it wasn't a factor in 1990 either. Most music is a complete non-factor (again, in terms of profit) 10 years after its creation. How many people still buy stuff by Morris Day And The Time? What about Paula Abdul?
10 years is plenty of time for any work to make a profit; if something's going to make a profit, 99.9% of that profit is going to be made in the first 10 years. The only people who have something to worry about are people like Disney who have an interest in maintaining ownership over some stupid fucking cartoon character. For the few lazy companies or authors that are still resting on the fruits of one creation 10 years ago, I say to damn bad.
My scheme provides plenty of incentive to both young authors and old one's alike. Old author's will still get 10 years of protection; if they die, then the remainder of that term is set out to their family in their will.
If anything, my scheme provides MORE incentive for authors to create. An author can't just rest on his or her previous accomplishments, as they will only make him or her money for 10 years. Thus, my system provides incentive for authors to create new works more continuously.
The other benefit of my system is that works transfer to the public domain relatively quickly. This allows new authors to make use of the works of old authors, adding additional innovations to them, without having to worry about copyright problems. This allows for more circular innovation; that is, innovation which builds atop of previous innovation.
As one additional note, hopefully, the Supreme Court will rule retroactive copyright extensions unconstitutional, thus preventing this perpetual copyright extension. Hopefully, they will also rule excessively long (i.e., life + yy) copyright terms unconstitutional, as they are effectively indefinate and not limited.
Aside from duration, the other thing which needs changing in our copyright system is the scope of copyrights. The scope of copyrights has been blown way out of due proportion (refer to discussion by Lessig in The Future of Ideas). Now-a-days, if you make a movie and have a Nike symbol in the background in a scene, you have to clear that with Nike. What bullshit. There are other areas where the scope of copyrights is blatantly unjustified, and should be radically scaled back.
Of course, the real problem is the bribery and soft-money under-handed deals going on between the RIAA/MPAA and the Congress/Senate. The RIAA and MPAA basically pay to have the laws they want.
social sciences can never use experience to verify their statemen
Lawmeme has a poll on how you think it Eldred will come out. Read the transcript and vote.
Olsen's argument in favor of retroactive copyright extensions is telling in terms of who's side he's on.
The justices repeatedly hammered home the point that retroactive copyright extensions do not aid in the "creation of creative works" because works from, say, 30 years ago that benefit from an extension have already been created, so the law does not incent the old author if his copyright has been retroactively extended. (in fact, just the opposite... the old author is allowed to rest on his laurels given that he has another 30 years of royalties coming in, rather than write something new)
Olsen replies that the beneficiaries are the publishers and movie-distributors who gain and incentive to make more money from publishing given the retroactive extension... he's arguing that large businesses (not individual creators/inventors) are the ones who will benefit by congress's granting of monopoly power by retroactively extending copyrights.
What I don't understand is why noone made the argument that releasing works into the public domain will _encourage_ dissemination of works that were formerly copyrighted, because there will no longer be an hurdles to dissemination. The technology argument is a strong one-- that by applying copyright extensions retroactively, we _prevent_ the wide dissemination of information in an age where anyone can publish cheaply. We no longer need to provide extensions for large publishers because anyone can publish public domain works cheaply.
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
The frankness of these comments was great.
-Dave
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
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.
Congress needs the ability to change those limits based on changing economic climates in order to protect the balance between public interest and the promotion of science and the arts. Unfortunately, as Lessig argues, this power has been abused to create an effective perpetual copyright term under the guise of a limit.
Lessig argues that any extensions should apply only to new works because any discretion congress has in setting limits applies to the promotion of new works. Extending copyrights on existing works does no such thing. The government attempted to counter with the very weak argument that people who create works expect to be included in any such extensions. I would bet lots of money that not one single work has been created under that line of thought. NO ONE holds back on the creation of a work out of fear they will not be included in the next extension of copyrights. And NO ONE creates works today because they know they will be included in the next extension.
For instance, I think 25 years with no extensions for a copyright is reasonable.
Reasonable, but also against the terms of the Berne Convention. Breaking the Berne treaty could get U.S. copyrights de-recognized all over the world.
Not that I agree with the details of the Berne Convention or anything...
Will I retire or break 10K?
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.
Reasonable, but also against the terms of the Berne Convention. Breaking the Berne treaty could get U.S. copyrights de-recognized all over the world.
Did we sign the earlier Rome convention? I think we did, in which case we could go back to the pre-1976, 36 years + renewable for 36 years by the author and still have U.S. Copyrights recognized the world over(Clause 7). Not that it matters, WTO members must recognize each others copyrights, and IMF loans always specify such things, so that covers just about everyone except Antarctica.
The Berne convention doesn't provide the same protection for Films, only 50 years after release. Just making that reform to US law could save a lot of films from decaying before they can be saved. For other works the convention specified life of author + 50 years, or 50 years for anonymous works, but countries don't have to extend copyrights if they signed the Rome treaty, and don't have honor a foreign country's copyright if it's expired there but not in your own country. So if a copyright expired in Angola after 20 years, we wouldn't have to extend it to life+70 here like we do with copyrights claimed in the US.
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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