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Disney Wins, Eldred (and everyone else) Loses
hondo77 writes "In a 7-2 decision, The Supreme Court gave Disney what they wanted. Story just broke, no details yet." They're talking about the Eldred case, recently argued before the Supreme Court and mentioned on Slashdot many times. The upshot is that no works produced in the United States after the 1920's will ever go out of copyright. Opinions: Majority opinion, Stevens' dissent, Breyer's dissent.
Well, not "ever" as it currently stands, but because they've extended the copyright several times in the past century to the point that it's pretty much beyond our lifetimes, and the Court has now said that such machinations are legal, we can expect never to see copyrights expire again.
Assumptively, the Supreme Court said "It's not unconstitutional for such a law to pass, and if you don't like it, go pass a different law." Which is entirely correct, we could always have legislation in the future to reverse this.... but don't hold your copy of Steamboat Willy at the duplicator anytime soon.
Yes, ever.
The point about this judgement is that it creates a firm precedent for extending copyright. Therefore, copyright can be extended again next time it starts to run out. It will always be in the interests of Disney et al to keep their copyrights; therefore, it may well be that no copyright will ever expire again, any more.
This is *one* of the reasons that this judgement is such a setback for the Forces o'Good (tm).
Please do not assume that just because civil rights people are getting riled up, they must automatically be getting riled up about nothing.
The judiciary is certainly the least venial of the three branches of the US government. It is sad to see it going the way of the executive and legislative brances, but there ya go.
Whence? Hence. Whither? Thither.
Disney has now succeeded in preventing anyone from doing to Mickey Mouse what Disney did to Quasimodo. Way to go dickheads.
Insanity is the last line of defence for the master diplomat. But you have to lay the groundwork early.
Excuse me, but when the money was invested in these movies in the 1920's, 1930's, etc., it was done with full knowledge that eventually the copyright would expire and revenue from these works would dwindle. The same thing holds true for Mickey Mouse and every other work made. Just because it still has value even today does not change that fact. The whole thing is ridiculous.
I can understand how extending the copyright on new works could be considered constitutional -- this is a case where that great document was far too vague, unfortunately -- but retroactively extending them surely is unconstitutional. When you acquire that copyright and publish your work, it is like entering into an irrevocable contract with society that you will release this to the public domain in X years (at least, that is how I see it). There should be no whining about past works that will fall out of protection. Create more works under the new, longer protection if you want, but don't extend all existing works.
Yes, but the full clause in Article I, Section 8, states that the legislature's power is: "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;"
Authors and inventors, which I interpret to mean the actual author or inventor, not the great-grandchildren of the author or inventor, or future sharholders in a corporation that descended from the author or inventor or purchased the rights from the author or inventor.
Am I misinterpreting the scope here??
Read the history of the story.
The problem was the handling of the extension. The extension is retroactive. That is the part that they ruled constitutional.
The upside to the media companies is that in another 20 years, they can lobby for another 20 year extension and it too will be constitutional. And then repeat that forever.
It means that the media companies don't have to give anything back to the public, if they lobby well enough. The Constitution says that congress can define how long the terms of copyrights are for. This basically means that they can make it a ludicrous amount of time.
"If we knew what we were doing, it wouldn't be called research." - Einstein
Every year more money is spent on elections - and we all know where that money is coming from. I heard a lobbyist on public radio a few days ago say outright that their goal is to either make a representative feel beholden to them or else afraid of them. They didn't even bother to spin it at all or try to make it sound remotely democratic, that is how confident these people are, and why not?
And the supreme irony is that the majority of people seem oblivious to the reality that the partisan divide is one hundred percent in favor of this situation. The electorate in the USA has been divided and conquered. Libertarians are out there fighting for the Republican side, while the Republicans are busy fighting abortion on every available front to satisfy their Christian Right pro-life contingent. Drug law reform advocates back the Democrats, who have been responsible for some of the most draconian, insane, prison-filling mandatory minimum drug laws on the books -all so they could prop up a "tough on crime" image. Above all, everybody studiously ignores the fact that nearly every member of Congress is busy producing two products: payback legislation for their special interest funders and bullshit rhetoric to keep their apparently braindead supporters on the hook. And year after year after year after year the issue of campaign finance legislation gets floated - and then all but the most minimal provisions get shot down, and what's left gets busily sued to smithereens.
And still you can log onto slashdot every day of the week and watch the spectacle of Republicans bickering with Democrats, liberals having it out with conservatives. Well here's the news of the day, sheep: the people who can afford real influence are laughing all the way to the bank. Democracy is an experiment that's failing because an informed, committed, active voting public is not something you can build into a constitution - and without that people get exactly the government they deserve.
It Is the Nature of Information to Transgress Artificial Boundaries
I'm niether a lawyer or American, but...
I believe that companies in the U.S. (and to varying degrees elsewhere) have most of the rights of human beings. I think there are even people who consider that a 'feature', not a bug in the legal system.
Anyway, for the purposes of copyright, the author can be a company.
It is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail. - Abraham Maslow
Let me see... Now after I write my multi-million selling super blockbuster best-sellers, I can make sure that all my heirs and assigns (and maybe even my own personal immortal corporation) can keep profiting from my works forever...and ever...and ever... My Boswell will never have to work a day in his (or her) life! We're all set!
...especially not the general public.
But wait... Suppose I don't write mega-super-uber blockbuster bestsellers, and my work (like 99% of all authors' work) remains steadily mid-list after I die. Judging by current trends, ever-lengthening copyrights mean only one thing: I languish in obscurity forever...and ever...and ever...and nobody gets rich...
(We are so many, but they are so rich.)
Hmm...immortality for the priveledged few; death and obscurity for the rest. Maybe not such good news after all.
I'm not a geek, I'm just a clever script.
I believe the worlds oldest company would be Stora (From Falun, Sweden), which was founded about 1000 years ago, I also believe you'll find very few people that have reached 1000 years.
Point is, Companies/Corporations don't have a limited lifespan, they can live for nearly forever and keep trying to change legislation for a very very long time, that's one reason I think that businesses should not be considered to be individuals/humans/persons.
Wax-Museum Fire Results In Hundreds Of New Danny DeVito Statues
Treasure Fucking Planet.
How hypocritical can you get?
J.R.R. Tolkien's family doesn't have the right to own copyright on the Lord of the Ring's. Why? Why should his work become public domain? What gives you the right to it?
Because it's a derivative work. I'm not just trolling. Consider all the fairy tales and kid stories that went into the Lord of the Rings, eh? Many elements derive from previous stories.
Take Gandalf, for example. He's a shootin' image of Moses, if you ask me. Leading his people around with a big staff in front of him, performing miracles.
Frodo being chosen to carry the ring? Come on! The only things Tolkien did to the whole mess was to string the elements together (basic engineering) and add characterization (albeit 2-dimensional).
Face it, this work of Fantasy which is considered the Sun Source of All Fantasy is a derivative work that derives from many of the fairy tales we learn while we're growing up. Why should Tolkien be attributed ownership of such a collection of Fairy Tales?
This is like the GNU/Linux argument. Why should Linus be given sole credit to a work when all he added was the kernel?
Furthermore, if Tolkien was given a monopoly over the stories he wrote, and he was able to prevent further derivative works, he wouldn't be the father of fantasy, because Fantasy as a genre would have been squelched!
Same goes for science fiction. If Jules Vernes hadn't been able to string together elements from stories he may or may not have read (from Edgar Allen Poe, possibly, or others), would science fiction have become the genre it is today?
Like what I said? You might like my music
Sure he does. But his family isn't him.
What gives his family the right to it? They didn't write it. He earned money with the books, and passed that on to them, and they have every right to it. That's where "right" stops. After that they're just guileless beneficiaries of a system designed to enrich corporations, not families of authors. They can write their own books if they want.
If I own a store, I can pass the physical assets on to my family, but when I die, they have to come up with the intangibles (goodwill, friendly chat with customers, ongoing interaction with the broader public) on their own.
If I'm on a basketball team, and I die, my family doesn't get "rights" to my starting center position. They just inherit my money.
"Patriotism is your conviction that this country is superior to all other countries because you were born in it." -- GBS
Bryer:
Stevens: Full text can be found on Lawrence Lessig his Blog.The only thing that may be able stop the slide is advancing technology that eventually acts as some sort of deus ex machina.
Sig:
Navy nuke sub lifestyle?
I am really disappointed with this decision, but not because Disney gets to keep Mickey locked up.
In the past, copyroghts had to be renewed in order to get the full term. The American people would have really benefitted from the requirement to renew copyrights.
The main advantage this would give us is that people or corporations that really want to protect their IP can protect it, but the stuff that is no longer widely marketable would end up being freed.
In my opinion, this would have given us the best of both worlds: companies or people who can make money off their property are allowed to, while the rest of us would be allowed to mine the rich layers of no longer commercially viable material.
As one poster pointed out already, what happens to the Katzenjammer Kids?
I have always been fascinated by early films and cartoons, for example, and I hate to think that we might lose many of these films because our government will not allow the the type of low-budget or even volunteer effort that would be needed to make this happen!
I think that the preservationists of "Old Time Radio" are a great example of how this would work. Radio plays were not protected by copyright until the 1960s. Because of this, there is a ton of public domain material available from the "Golden Age of Radio" that provides a lot of insight into US culture at that time. Broadcasts from the years of WWII are particularly interesting because the entertainment itself was often part of the war effort. If these works were still protected under copyright, it is likely that no one would be able to profit from them reasonably, and therefore the public probably wouldn't have access.
I'm not worried about Mickey, because Disney will take care of him, at least as long as they can keep squeezing dimes out of him. But there is a lot of stuff out there that should be protected (from decay, that is), and the copyright holders may not care enough (or be financially able) to save them! I think that's the real problem, and we might have been able to fix it if the Supreme Court had ruled differently.
Well, lets close down the corporation then. Inform the employees that they no longer have a job. 10,000 employees: What? We're getting laid off? Stupid system...
Nobody is proposing to take away all property rights or other rights of corporations. This is just about copyright extensions. If Disney will go broke because they loose their very oldest of the old copyrights, then they should go broke as this demonstrates a tremendous proverty of creativity there.
I'll see your senator, and I'll raise you two judges.
Ever hear of Cinderella? Sleeping Beauty?
The quotation you used was taken out of context. Stories like the aforementioned two were written long before Walt Disney was a struggling Hollywood cartoonist. His point was that Disney "interpreted" stories written long ago and made millions, but if someone 80 years from now were to write a movie derived from a Disney original, then they would be sued. There is irony inherent in that idea, as you can see.
You are right about Mickey Mouse being an original idea, but HE WASN'T TALKING ABOUT MICKEY MOUSE.
Case study:
Did you see Treasure Planet? Yeah, me neither, I heard it was horrible. But either way, Treasure Island was a book written by Robert Louis Stevenson in 1883. 114 years from now, if my great-great grandchild wanted to write The Lion King in space (the only discernable difference between Treasure Island and Treasure Planet), Disney would NEVER give them the right to make it, and would sue the pants off them if they tried.
--- What
The Yahoo story seemed to grant the assumption that old, popular works like "Casablanca" and "The Wizard of Oz" need continued copyright protection. Now, I would normally argue even this point, but let's accept it. After all, these works are still valuable to their current owners.
The question is, how valuable?
For every work of art from the 20's and 30's that is still a major money maker, there are probably a thousand works which have already exhausted their value to the copyright holder. There's not sufficient interest to make it worthwhile to market it. But these works could still be valuable sources for new ideas and inspirations, historical research, and what not.
Is it worth locking up these thousands of works, making republication illegal even as the originals are ravaged by time, just to protect the few works which still provide a revenue stream?
Hell no. But if we have to strike a compromise in order to enrich the public domain and save the vast majority of our cultural heritage, then I propose this:
Repeal the CTEA. In its place, set up a system where the original copyright term applies to every work, but that term can be extended for any given work.
Since I believe in the importance of the public domain, extending the copyright on a work shouldn't be a trivial proposition. Copyright holders should be charged a fee that mirrors its value to the public; say, 1-2% of all profits attributable to the work in question over its lifetime. My reasoning is, if a copyright holder doesn't expect to make even that much from the work over the next twenty years, then revoking the copyright doesn't significantly hurt the copyright holder.
If an all-or-nothing approach ends up getting us nothing, then we have to find some sort of middle ground. This strikes me as a reasonable way to protect the interests of the public. Copyright holders can still hold onto those works they deem valuable, while denying them the ability to sit on works they have no interest in actively maintaining.
You want the truthiness? You can't handle the truthiness!
The side effect of this ruling is that it will reduce the diversity of works over the long term. Most books and music that are published never get a lot of circulation and aren't valuable enough to be worth publishing over the long term. These works slowly degrade over time and become unavailable in the future. Will you be able to play the CD you buy today in 90+ years? No. So unless somebody makes an extroridnary effort to archive this material in the hope that EVENTUALLY it will become legal to copy it, much of it will cease to exist.
The result of this is that in the future, we will find that the historical media we have available to us will be only those things that have ongoing popularity enough to warrant their continual republication. Think about this, in 90 years, you'll still be able to buy the Beatles greatest hits, but you won't be able to buy MC Hammer's greatest hits. You might think, "well who'd want to buy that anyhow", but it's a part of our culture that will forever be lost. Nobody will be able to go back and say, "what the hell were they thinking?" because for all intents and purposes it will have never existed.
Now, granted, forgetting that MC Hammer ever existed might not be the greatest tragedy to face our culture. But think about how many books are being written about 9/11 and the coming Gulf War II (the Wrath of Bush). How many of those will be preserved for history? Historians will go back and only get a limited perspective on events and judge them differently because of that limitation. This is the process that allows the victor to write the history.
Maybe what we need to do with copyright is alter how it works slightly. Instead of it being a fixed term for all works, what about varying the term based on how recently it was actively published. So, if you publish a book and don't run new printings for 20 years, the book goes into the public domain. This way, over time the most popular and high grossing copyrighted material would be preserved for it's money making ability. The lower popularity material would be preserved through the free ability to copy amongst those with an interest in it.
The risk here isn't that we'll never get to make free copies of Mickey, but rather that a vast collection of works will simply cease to exist from publishing neglect. This extension of copyright insures that a greater volume of work will disintegrate from neglect before it can be perserved in the free copying environment of the public domain.
This sig has been temporarily disconnected or is no longer in service
I think It's just about time for civil disobediance. Treat all works published more than fourteen years ago as if they were in the public domain. Do so openly and publically.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
I wrote this just a few days ago. Looks like I spoke too soon, but I thought some of you might find it interesting. It's linked from my blog page, also (http://www.krose.org/~krose/blogs/).
Most of the public doesn't understand exactly what their rights are regarding pre-recorded media, such as DVD movies and music CD's. I suspect a large part of this stems from the fact that most people don't understand why they are given legal protection.
That legal protection stems entirely from a choice made by the Founders to protect creative works from unauthorized use. The constitution says that
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
which led to the development of patents, copyrights, and trademarks. Thus, you, as one of The People, are the source of this protection; and the reason you should support that protection is that it promotes the progress of science and useful arts by encouraging innovation.
As a result, there needs to be some balance in the enforcement of copyright. As copyright was intended primarily to increase the size of the public domain---the potential to make profit is merely an incentive to this end---it must be the case that copyright be enforced in a way that does not injure the public for the benefit of a few.
This balance has, over the past century, been tipped in favor of the content producers and owners and against The People little by little. Among the most recent and egregious examples are the Sonny Bono Copyright Extension Act, which retroactively increased the term of copyrights to the lifetime of the author plus seventy years, and the Digital Millennium Copyright Act (DMCA), which makes it a felony to bypass technological protections to view content in a way not authorized by the content owner, to provide access to the disabled, or even to access public domain content!
As a result of the slowly changing laws regarding copyright, people have begun to believe that protected works are property in the traditional sense; hence, the appearance of the phrase "intellectual property" to describe copyrighted works. This, I believe, is the most poignant reason why there has been little public outcry against the erosion of the Founders' intended protection of the public interest.
Creative works are not property. A CD (the disc itself), a car, a piece of land, a pair of socks, your toenail clippings---these are property. A band's recording of Smoke on the Water, the musical description of Smoke on the Water---these are creative works and therefore not property. The difference is a very clear and natural one: property consists of tangible things, i.e., those made of matter, which are naturally defensible since the owner would need to be deprived of their use for another to take them, while creative works are those things that have a zero marginal cost of reproduction, i.e., ideas, which are not naturally defensible since someone can take them without in any way reducing the creator's ability to continue using them.
The Founders did not intend for creative works to be "owned" in perpetuity by an individual's family or a corporation; rather, they intended for these works to pass into the public domain after a short period of time (originally 20 years), whereupon they would benefit all of The People. It is arguable (and, in fact, such a case contending so is before the federal courts) that a copyright term of lifetime plus seventy years goes far beyond Congress's constitutional ability to provide protection for creative works for "limited times" in order "to promote the progress of science and the useful arts" by their granting a copyright term that denies the public the benefit of these works for a virtually unlimited period for the sole purpose of enriching well-connected corporate interests, while simultaneously effecting no incentive for the heirs of successful individual creators to do any creating themselves.
The aforementioned corporate interests, as embodied in the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA), have in turn promoted a mindset that any use not explicitly authorized by the content owners is not only immoral but illegal: this includes ripping CD's you own and encoding them as MP3's to your own hard drive and copying them to your iPod or Rio to listen to while on the subway; viewing DVD's under Linux using an "unauthorized" player; and burning a mix CD for one of your friends. Despite what the RIAA, MPAA, and their ilk might tell you, such activities are clearly "fair use" as defined by the courts, and are protected rights; however, under the DMCA, these acts are likely to be de-facto illegal due to the need for users to bypass technological protections to get at the actual content (although the courts have not yet ruled on these points).
I am not arguing that giving a CD to 250,000 of your "closest friends" on Kazaa is fair use; however, I would argue that the mere act of downloading a couple of songs from the internet (no matter the source) in order to sample them before buying the CD is fair use and therefore protected.
The Congress appears to be split on this issue. While they passed the DMCA in 1998, recent attempts to pass even more restrictive business-model protection acts such as Senator Fritz Hollings' (D-Disney) CBDTPA have been stalled, due in large measure to the opposition of Rick Boucher (D-VA) and the work of groups such as DigitalConsumer and the Electronic Frontier Foundation, all of whom are worthy of your support.
It is time that the balance was tipped back toward The People. Given the nearly unlimited power of our national government and the increasing unlikelihood that the courts and the Congress will begin to again follow the original intent of our constitution, this will take education and effort. You can begin by signalling your support to the groups above and by calling your representatives and telling them that you support fair use instead and oppose government protection of outdated business models. Yet there is no substitute for spreading the word: only when our representatives encounter widespread opposition from the public will the blood money of the content owners pale in comparison to the wrath of the voters.
Andy Grove of Intel best summed up the desires of the media giants when he asked:
Is it the responsibility of the world at large to protect an industry whose business model is facing a strategic challenge? Or is it up to the entertainment industry to adapt to a new technical reality and a new set of consumers who want to take advantage of it?
[ home ]
I don't think either Stevens or Breyer would agree with your assessment of their arguments. Both of them (though Stevens moreso than Breyer) consider abiding by the constitution as their primary purpose.
Breyer's argument is the weaker of the two because he gives the most strength to the "promote the progress of science" part of the statute. He argues that even the extension on copyrights for new works fails the constitutional requirements for "limited times" and promotion of the "progress of science." He makes a convincing argument that the courts have an obligation to set limits on what "limited times" means, and then spends a lot of time arguing that life of the author plus 70 years is so long as to fail the "limited times" requirement. He makes a reasonable argument that the courts do have the obligation to set limits (they're the ones who have to strike down a law that extends copyright to life of the author plus 10,000 years,) but fails to fully convince at least me that the current extension is so grossly out of balance that it crosses the line between being merely poorly conceived to being unconstitutional.
To understand Stevens' argument (which is substantially more convincing thand Breyer's) it is necessary to understand the majority opinion. The Ginsburg opinion seems to rely primarily on early patent cases and the existence of previous copyright term extensions by congress to decide that the framers did not intend the reading of the copyright clause that Eldred requests. Their argument primarily rests on three things: the Copyright Act of 1790, which established copyrights in the United States, a number of individual patent extensions passed between 1790 and 1875, and the Copyright Act of 1831, which was the first extension of copyright terms on existing works. From these, as well as continued congressional practice in extending copyrights on existing works, the court concludes that in both the framers' and in the modern legal framework, the CTEA is constitutional.
Stevens argues that the constitution, not early congressional actions must be the basis of our law, and that many of the actions that the majority uses to support retroactive extensions either don't apply or are blatantly unconstitutional. The copyright act of 1790, he argues, does not apply in this case because, while it did give copyright protection to existing works, did so in the context of establishing a national system of copyrights, and the founders were keenly aware of the difference between this establishment of copyrights and the extension of existing ones. Many of the patent extensions used as evidence of the framers intent were blatently unconstitutional extensions of patents on inventions that had already entered the public domain, and so are unconvincing as a basis for modern case law. The copyright extension act of 1831 cannot be used to derive the framers' intent because none of the original delgates were in the 1831 congress. Further, the 1831 act was based on a view of copyright judged unconstitutional in the 1834 case of Wheaton v. Peters. All of this goes to show that the historical precedent for constitutionality of the extension of copyrights is inconclusive at best.
Stevens further points out that protection against ex post facto laws should protect the interests of both the patentee and the public with respect to copyrights. Just as congress should be unable to shorten the term of existing copyrights (thus harming the patentee), they should also be unable to extend the term of existing copyrights (thus harming the public.)
The point of all this is to show that both Stevens and Breyer very much had the constitution in mind when forming their opinions, and they are based on reasonable interpretation of the text. Stevens makes it very clear that he considers congressional practice an inappropriate way of deciding constitutionality and is not uncomfortable with the possibility of this decision putting previous copyright term extensions on similar shaky ground, if they are indeed unconstitutional. Breyer's arguments are less clear on this, and he seems to go out of his way to show how the copyright term extinsions in 1976 could have served a constitutional purpose, while the current statute does not. This interchange makes me wonder whether some of the other justices' opinions were based primarily on a desire not to unravel 170 years worth of copyright term extension acts.