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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.
I stand in a sort of perverse awe, trying to grasp the 'reasoning' of Justice Ginsburg's opinion...utterly perplexed as to how six other justices signed their names to it when they had the exact text of how the ruling should have come down by Justice Breyer's hand.
I want there to be some good that comes out of Eldred, but right now I'm very disillusioned. So, I'm following Lessig's advice and turning to blogging. Let your opinions be known.
-R
Is sharing a journal of all your daily thoughts and emotions the best strategy to employ in order to win a court case as a lawyer?
Reply or e-mail; don't vaguely moderate. Ex-O'Reilly/MIT employee, now a full-time Google employee.
The LA Times Article was a gag-inducing personal piece. I loved how the law is supposedly for little people and their legacy:
To quote the woman in the article, about her grandfather's films:
"I'm happy that people won't be able to take his art and show it in a way that would diminish or hurt it, or put it in a way that he wouldn't have wanted," she said.
From what I can tell, she's mainly worried about people selling tapes on EBay. How horrible. People VIEWING AN ACTORS FILMS! I'm sure that's the last thing he wanted.
I'm glad this woman cares for his legacy. I commend her work. But in the bigger picture, her win is the loss for many of us. I'm sure in 20 years, when the companies go to congress asking for a longer copyright extention, there will be some other justifications.
But in the end, I'd rather see a legacy for all. No man stands tall except on the shoulders of others.
"The Sage treasures Unity and measures all things by it" - Lao Tzu
Except for Justices Breyer and Stevens, the Supreme Court has sold out. They have given their Nihil Obstat to perpetual copyright, and ignored the Constitution, no matter what they say in Justice Ginsburg's majority opinion. We can expect another Copyright Term Extension Act every twenty years. Citing this precedent, the Supreme Court will do nothing about it. I guess I should have expected as much from the Supreme Court that decided to throw out the results of the 2000 election, and coronate Bush.
Soon, no one but historians will know what the public domain even was. We are all the public domain, and have all been robbed. An idea once expressed belongs to us, and is only on loan to copyright holders. Now, the loan can last forever. Copyrights frequently do not even go to the artists, scientists, and inventors who do the actual creating, but to parasites who exploit them. From now on, as the public domain, we should all engage in "piracy" as a form of civil disobedience, and take back what rightfully belongs to us. To hell with unjust laws that the corporations bribed Congress into passing, and bribed 7 of the 9 Supreme Court Justices into upholding. We, the public domain, must declare them null and void, and ignore them.
Imagine that the perpetual copyrights the corporations have created always existed. The King James Version of the Bible would be copyrighted. To print copies of it, you would need permission from the British Crown, or at least the Church of England, and would also have to pay them royalties. The KJV is so widely published because it is in the public domain, and anyone who wishes to may make copies of it. Now, nothing created after 1923 may ever belong to us all in this manner again.
It seems that Government of the people by the people and for the people has perished from the earth. We are left with government of the people by the corporations and for the corporations. I challenge Congress or the Supreme Court to prove me wrong.
The Uncoveror: It's the real news.
No, but they've already lost the court case. What's needed now is for the general public to become more aware of the issues at hand and a journal is one way of doing that.
Suzanne Lloyd has spent the last four years refurbishing her legacy: 26 films made by her grandfather, silent film star Harold Lloyd. She has spent millions on digitally restored prints and full orchestrations.
now i'm sure suzzie has worked hard for her digitally remastered films, but just because they were grandpa's films doesn't mean they're hers. it's been said over and over and over again. usefull art and science... to the creator... for limited times... NOT to the creator's grandchildren for decades to come for century old media.
I snail-mailed and e-mailed my Congresscritters yesterday. The short version of it is:
Something like that...
-l
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What has the congress done for the people... Most of the recent laws that were passed are all in someway or other benefits only the corporations. Looks like they are taking over the congress.
This is not the important question in their minds. The question is how much will their current profits suffer if much material is released into the public domain. This seems at first glance to be the same question, but think about it for a moment. If you could watch, for free, movies from the 1930's, would you pay to watch fewer movies from the 80's and 90's? Would you buy as new movies from '01 and '02? If people could make derivative works featuring the early Disney characters, would you necessarily watch the new ones produced by Disney?
The reasons that the public domain is valuable to us are the very same reasons why the new content producers fear it.
-Alison
The chances of a pro-Eldred decision from the Court were always slim. The contest has always needed to be waged in the political arena: Convince enough people that this issue is so important that it ought to determine which Congressional candidates they vote for. That will be very difficult -- most Americans have more pressing needs than shortening copyright duration -- but it's the only way to go.
(It's telling that the Court went out of its way to explicitly state that the Constitution's grant of powers to Congress doesn't mean that Congress will always legislate wisely. Obviously, the Court is telling us that they won't declare a law unconstitutional just because lots of people think it's a bad law. They're right about that. )
-- Slashdot: When Public Access TV Says "No"
Like all laws, copyright law is a contract between members of the public. The agreement of copyright is that when someone creates something original, the rest of us are obliged to respect the copyright and pay fees for copies of the work for a limited time. At the end of that time, we the people will own the work.
It's the same as when you sign a mortgage contract. You agree to pay $xxx/month for 30 years and then the house belongs to you. It would be insane for Congress to come along 28 years later and decide that, because that house is still valuable to the mortgage company, your 30-year mortgage is suddenly an 80-year mortgage. The contract you signed 28 years ago is void, and instead of 2 more years of payments ahead of you, you have 52, then they'll do the same thing.
Yes, that would be insane. But the Congress doesn't think so and the Supreme Court doesn't think so. And that, my friends, is "government of the people, by the people, and for the people," as Americans accept it today.
If people could make derivative works featuring the early Disney characters
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.
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.
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.
Disney is more concerned with not being able to re-release their movies every twenty years and then locking them up again. This is what they have done in the past and it creates a new revenue stream each time because collectors always want the latest version.
Allow me to summarize this "biting editorial":
1) The Supreme Court's decision that extensions to copyright were constitutional really just favored copyright holders. Holy fuck, no kidding?
2) Even the defense didn't really think that the laws Congress passed would be declared unconstitutional, but they still tried.
3) The public benefits from public domain. Also, an unsupported assertion about how the public domain is a "great democratic seedbed of artistic creation" is put forward. A fine sentiment, whatever, still nothing "biting".
4) The author concludes that this is a setback for the public domain, and adds some doom and gloom nonsense about how it's the beginning of the end for it.
Come on, people. Is this what "biting" has come to mean these days? No fucking way.
"Biting" would have been to call Lawrence Lessig a bumbling idiot for presenting such a ridiculously weak case to the Supreme Court. "Biting" would have been to further berate him for his self-serving commentary that basically boils down to "well, gosh, I knew I wouldn't win but I had to try. Ain't I such a great person for trying? Now, it's your turn. You go fix the problem."
What a chode. Opponents of the DMCA and other copyright extensions had a great chance to make a compelling argument about the benefits of the public domain, and Lessig fucks it up. How many similar cases do you think will make it before the Supremes now? That's right, ZERO. It's called a precedent and it now works against us. Thanks, Lawrence.
Moving on to other potential targets, a "biting" editorial could also have noted that Disney, who has drawn heavily from public domain, is downright reprehensible for refusing to give anything back.
Similarly "biting" remarks could have indicated that the Disney films which drew most heavily from public domain material (Beauty and the Beast, the Little Mermaid) have been enormously successful, while those which come from the febrile, impotent imaginations of the hacks at Disney (Pocahantas, many others ad nauseaum) tend to do quite poorly.
One might also "bitingly" observe that if Disney would just throw these harebrained plots back into the public domain pool and let them profit from others' efforts for a decade or so, by the time Disney ripped them off once more they might be halfway watchable.
Such a "biting" editorial could also have targeted those jackals in Congress who routinely sell out the public's interest in these matters to Disney and other megacorporations. Fuck you, Senator Hollings.
I prefer a little more bite in my "biting" editorials, thanks all the same.
Here's a tip, Michael: if you're going to throw in snide, jackass remarks and unsolicited observations, at least do everyone the courtesy of making them reasonably intelligent.
"Biting editorial" my gangrenous left testicle.
The NYTimes editorial characterizes public domain as an experiment, and criticizes the decision for making it likely to end. The reality is the opposite: property rights to ideas and expressions were an experiment. The natural law is that you can only take property if by "taking" property, you deprive the owner of the use of the property. For example, if I steal your car, or your money, they are not available to you to use. Except in the most colloquial sense, I can't "steal" an idea, or a tune, or a movie plot, because doing so does not remove it from the use of its originator. It is a shame that we Americans on the whole appear to have basically come to believe that our best interest is served by simply giving up any hope of having individual Rights and Liberties in favor of having the government infantilize us - sorry, care for us. Bleah!
-- Two men say they're Jesus. One of them must be wrong. - Dire Straits
First, a derivative work can only be created by the original artist or someone they give permission to.
So Disney got permission from Robert Louis Stevenson to make Treasure Planet?
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.
What's your point? All that means is that it's okay to use the older image and derivations of it, but not the newer one(s).
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.
The name may be trademarked, but the image isn't.
"...always new atoms but always doing the same dance, remembering what the dance was yesterday." -Richard Feynman
If you see Ron Jeremy in a Mickey suit, there isn't any real chance that anyone's going to just assume it's a Disney movie. Nobody is getting confused about who is trying to sell them the movie. Nobody is going to draw a false inference about the quality of the movie, or be surprised. I can't imagine someone mistakenly thinking, "Oh my god, this movie isn't what I expected at all. Disney ripped me off!" Thus, such use would not conflict with the purpose of trademark.
If an act does not conflict with the purpose of a law, then it should not be prohibited by that law.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
So let's drive Disney and their trademark out of business, if that's what's required to recover our rights. I for one haven't bought anything even remotely disney-related in years. The last film I saw by them was Toy Story (a while ago). Vote with your wallets :-)
Daniel
Carpe Diem
At this point and for the near future, I suspect that getting the copyright situation corrected will be pretty much impossible. But maybe there is something we can hope for, a form of copyright reform that doesn't cross Disney too badly.
Proposed: The owner of a copyright must be actively engaged in "use" (publication, distribution, derivation, etc) of the work, or it goes into the public domain after a period of 14 years. (The original copyright term)
Unfortunately it "allows" Disney to keep their works effectivly eternal. But at least it minimizes collateral damage. Disney's IP isn't that big a chunk, it's all of the other stuff that gets taken out of the public domain in Disney's quest to keep Steamboat Willie that's the real crying shame.
Really, my suggestion to be an official sanction for the "abandonware" concept and applies it more generally. In Disney's interest, it keeps works going into the public domain for them to harvest. To Disney's dismay, it forces them to do something about, "Song of the South." OTOH, it also gives them an out, because it lets them release it and pass the blame onto new copyright law.
From what I understand, copyright law allows libraries to copy during the last 20 years of the copyright. IMHO, there are two problems with this. First off, we don't really know when the last 20 years are, because none of us doubt that there will be another extension when Steamboat Willie's copyright next threatens to expire. Second, nobody is served by allowing a work to languish for the extra 50-70 years under allowed under current law, compared to my proposal. The public isn't served, and since the work has been abandoned, the copyright holder isn't being served, either. Perhaps we can question exactly *how* "promotion of the arts and sciences" are being served by eternity-minus-one-day copyrights on active works, but on inactive works it clearly isn't.
The living have better things to do than to continue hating the dead.
Granted, the fact that the **AAs have a tremendous amount of power in other countries, but as recent rulings in other countries have shown, their courts are more willing to protect the rights of individuals over the rights of corporations. So while we may lose the battle here in the States, the "world war" may have a far different outcome.
It's all about control. The idea is that when they finally do re-release "Pinocchio" they will throw all sorts of useless added scenes and everybody will flock to the theatre to see it and the store to buy it. After all, miss it now and don't see it again for 20 years.
It is a business plan that really only Disney can pull off because of their "American Icon" status. If Pinocchi ever reaches Public Domain, though, it is all over because anybody can get the original. The silly thing is that Disney has peopled so brainwashed that they probably could still sell the public domain movie just like Barnes and Noble still sells Public Domain books.
There are four major candiadates for worst bas guy here, and I'm curious who would pick which (and i have my own ideas):
Now, whatever you think of the Court, they're the only one in the list that didn't act of financial interest. My guess is the majority simply did not take the interests of the petitioners seriously, and vaguely relied on what's left of fair use to sweep up.
The Disneys greedily acted in the interest of profit, which is exactly what they're supposed to do in capitalism; their shareholders could rightly toss them out for taking a pass on billions in revenue. Arguably they only exploited the opportunities available, assuming they didn't outright bribe anyone. Remember, soft money regulation is a recent accomplishment.
The President
Sorry to be cynical (unlike Congress), as no one has mentioned it, but it did not hurt that the act was named after a tragically dead Congressman/singer and sponsored by his widow.
I blame the Congress first, last, and foremost. It should have been obvious that the extension was not in the public interest. I don't know how well anyone lobbied against the act, but the politicians should have taken a close look at a decision involving billions of dollars and backed by a handful of very wealthy sponsors. That Congress has so many members makes it difficult to focus on whom to blame. That they passed the act by voice vote (I didn't know you could do that) during a time of national distraction was a craven and venal act.
I'm not saying I'm surprised Congress didn't do a better job. Which brings us to the vital need to get money out of politics.
So there. Talk amongst yourselves.
It is absolutely necessary to interpret the meaning behind what is said in the constitution. When this is done, people often accuse a judge of "legislating from the bench." But what if Congress had passed an extension of 100 billion years? This, according to the literal language of the Constitution, counts as "limited". If the judges agree that 100 billion years is too long, then the extension not only has to be limited, but effectively limited. This obligates the judges to decide what is an "effective" limit.
There is no hard and fast rule, so the judges have to decide. The Constitution makes it necessary to decide exactly what "limited" should mean, and it does not grant this power to Congress. What "limited" is interpreted to mean will have a drastic impact on what counts as Constitutional or not, but this does not imply that the SC can avoid making this decision. They are obligated to make this decision. In fact, they have made the decision. Their decision is that even an extension of 100 billion years would be permissible.
Now, something that most people miss is that there is a very easy way to weasle out of this. The Constitution says that Congress "may create limited monopolies." It never says what Congress cannot do. But again, the intention of the framers is paramount. The people writing the Constitution enumerated an ability of Congress. Taken literally, there is no limit applied to this ability. But they clearly intended there to be a limit to this ability. If no attempt is made to divine the intentions of the founders, then SC will leave themselves with very little work.
I am not as disillusioned as some are here. I think that the SC has done something interesting which is not to draw a line-- to simply say that Congress did this because they wanted to have uniform standards with the EU. This is not an issue of perpetual copyrights to the court at this point.
:-)
If in twenty years, they extend copyrights again, then it should be abundently clear to the courts that this is going on, then they might overturn both.
I agree with you that the SC is trying to avoid making policy, and that they were simply not convinced that this was an attempt to circumvent the "limited times" clause. Maybe next time.
However, the real problem is not one that CAM be solved in the courts-- if we had won, we would still have excessively LONG copyright terms. This MUST be solved by going to Congress. This means that any time a proposal os floated, to call, visit, and/or write your congressmen (remember to do this to all three). Also organize, publish, and otherwise educate people as to why copyrights, while necessary, currently are afforded too long a term. Organize, educate, activate, and then we win.
LedgerSMB: Open source Accounting/ERP
Posted on a message board, after Suzanne announces DVD will not be available yet (emphasis mine)
And another:
It goes on and on. A lot of Harold Lloyd fans are feeling stiffed by the trust, it seems.
I would be naive IF I HAD ACTUALLY SAID THAT. Of course they pay taxes, which President Bush and others would like repealed.
Such a restored work is a derivative of the original and therefor gets a brand-new copyright.
How many movies are rotting away right now because the copyright owners won't let anyone digitize or restore them and yet won't do it themselves?
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
This is not a good reason for extending copyrights, and it betrays the fact that our dialogue on copyrights is entirely reversed from where it should be.
It is first of all an incredibly tenuous assertion that nobody would go to the trouble of restoring these films without the ability to make a buck from them. For instance, the Academy of Motion Picture Arts and Sciences has recently begun to work on preservation of our film heritage as part of their educational and cultural activities.
Many films could be saved from decay by educational institutions.
Second of all, even if it were true that nobody would restore such films without a monetary incentive, there is no reason to believe that
the author and/or his heirs should be the only
ones to benefit. I think it is pretty safe
to say that the market for Harold Lloyd's films
would be large, and if they had reverted into the
public domain, some publisher could step in and
make a fairly good chunk of change off the restoration and pressing of DVDs. If his films
reverted to the public domain, the market would
take over and inexpensive versions of Lloyd's films would be widely available for the public to
enjoy.
The situation now is the same as if all the
films had been lost in a fire: everyone is deprived of a significant contributor to early
film. You can hardly blame his heirs for trying
to make a buck, but arguing that it is the best
of all possible outcomes seems horrendously naive.
There is much pleasure to be gained in useless knowledge.