Beyond Eldred v. Ashcroft

I thought I'd grab up some of the many commentaries and responses to the Eldred decision. If you read only one of these links, see Lessig's blog. Jack Balkin, another law professor who contributed to the case, is discussing it in his blog. The NYTimes has two distinct news stories on the decision (NYT1, NYT2), plus a biting editorial about the decision. Copyright scholar Siva Vaidhyanathan has a piece in Salon. The LA Times posts one of the very few stories to present the decision in a positive light. Reason is one of several to mock the mouse.

Comments

Reg-Free NY Times Links

[Anonymous Coward]

20-Year Extension of Existing Copyrights Is Upheld

A Corporate Victory, but One That Raises Public Consciousness

The Coming of Copyright Perpetuity

Re:That's just for the US

[ThresholdRPG]

I wish that were true.

Unfortunately, ever since the Berne Convention intellectual property rights have become enmeshed across international borders.

The signatory nations have agreed to respect the intellectual property rights granted by the member nations. That effectively makes international copyright law the sum of the most restrictive versions.

Of course, if another country strongly disagrees with something, their enforcement could be minimal. That is really all we have to hope for.

RIghtly decided

[vinyl1]

The job of the Supreme Court is to implement and enforce the constitution. This document states that Congress has the authority to protect copyrights for a 'limited time'. Virtually any amount of time, provided it is explicitly named, can properly be called limited.

Whether this law is wise or not is another matter. If the Constitution prohibited Congress from passing unwise laws, the Supreme Court would be striking down laws as fast as Congress could pass them.

If you don't like it, the proper thing to do is complain to your representative in Congress. It these guys thought they'd lose even 1% of the vote by doing this, they'd turn around so fast you wouldn't see it.

Re:Blog

[Remik]

The current copyright term gives 99.8% of the return of a perpetual right, that is not in line with the mindset or the writings of the framers of the Constitution.

(Re)Read Breyer's opinion.

I also believe Ginsburg wholly misconstrued the 1st Amendment arguement. Read the Amicus brief filed by Burt Neuborne and the Con. Law professor. It reads like a text book on First Amendment jurisprudence. Almost every major decision in the history of Supreme Court First Amendment cases is shown to support a reversal of the Appeals Court's decision that "Copyrights are categorically immune from challenges under the First Amendment."

-R

Re:What really boggles the mind

[ChaosDiscord]

People can never create derivative works of disney characters for three reasons:

First, a derivative work can only be created by the original artist or someone they give permission to.

Well, at least until copyright expires. That is the entire point of the discussion. Once copyright expires I can make any sort of derivative work I like (Like Disney itself did when it made the Jungle Book 11 years after the copyright on the source material expired.

Second, the copyright on the original movies may expire but not on the artwork of the characters as long as Disney keeps using and changing them.

Copyright protects a specific concrete creation, not the concept. So while new Mickey works would have a new copyright start date, the old Mickey works do not. Once the copyright expires, I'm free to take a copy of "Steamboat Willie" and edit it into something, or study it carefully to learn how to draw Mickey, then draw (and sell) my own Mickey draws based on that knowledge.

Finally, Disney characters, such as Mickey Mouse, are also trademarked and therefore can never be used as long as Disney continues to maintain that Trademark. Trademarks never expire on their own accord.

This is true, and creates a fascinating new area for legal sorts to fight over. This clearly limits free speech in an area where something enters the public domain. It hasn't really come up before because prior to Mickey there hasn't been characters in copyright protected works which people wanted to reuse. One possibly defense is that you are allowed to use and reference trademarks as long as there is no possibility of someone confusing the source. This is why I can create a documentary on Disney, even using Disney's logos, even though Disney's copyright does cover the area of documentaries. It will be interesting to see how it plays out. Darn shame it will be at least twenty more years before it starts playing out.

Re:Copyrights vs. socialism

[ice cream koan]

This has got to be a troll, but i'll (briefly) reply.

Your line of reasoning seems to be to compare intellectual property with normal physical property, where in a socialist society, physical property is often nationalized, versus in a capitalistic society, where property belongs to its owner in perpetuity (except in certain situations, such as the right of eminent domain, but I digress...).

The reasoning is wrong because intellectual property is _not_ analogous to physical property in several very important ways:

1) Intellectual property is non-rivalrous. That is, unlike the car in your driveway, if you share a song, or the text of a book, or any intellectual property, you do not lose your ability to use it.

2) All creativity somewhat depends on the creativity of others who have come before. Are your ideas truly ever yours alone?

It is because of these two reasons (and others, i'm being very brief) that the framers of the constitution believed that the rights to intellectual property should not be in perpetuity.

There are certainly many other cases where the greater good of society as a whole is deemed to outway the "rights" of an individual to do whatever they please, hell, that is the basis of all laws really. In the case of copyright, the benefit to society of a striking a balance between creating a financial incentive for creators to produce new works, and making it possible for others to continue the "progress of the arts and sciences" is many times greater than the benefit produced by treating IP as other property, and allowing creators of works to forever control any derivative work (and everything, everything is derivative of something.) It has nothing to do with socialism.

can you explain "legislating from the bench"?

[Erris]

You say, It is a Congressional matter. And the precedent for the act is set back to the framing of the Constitution.

So you must not agree with Breyer's interpretation of the 1790 copyright "extention" not being retroactive at all but being necessary for the creation of US copyright? You must also not agree with the other dissenting opinion that sharply notes that copyright was designed for authors, not their hires or the rather insightful grasp of how this is a raw deal for everyone but current copyright holders?

Your primary beef here is that you think that restricting the will of congress as regards copyright is "legislating from the bench". That's pretty silly, given the long history of the court doing just that with copyright and patent law. This was a review of a law that congress passed that seems to violate the letter and spirit of the constition. It is the supreem court's duty to examine every law for consistency with the constitution as such inconsistency effectively ammends the constitution. Constitional amendments take much more effort and consent to pass than ordinary laws so no law may violate the constitution. Legislating from the bench generally involves creating whole new branches of law or prescribing specific action. This review would simply have tossed out Mickey Mouse's copyright protection. It would not have set up new offices for administrating that removal, it would not have required the raising of taxes or dictated their spending and it would not have created any kind of new laws. That's far from "legislating from the bench," and in fact it is exacly what the supreme court should do.