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

Blog

[Remik]

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

Re:Blog

[Zathrus]

Because the Supreme Court should not make policy. That is not it's job. It is only there to decide on constitutionality and the occasional Federal vs. State issues (which boil down to constitutionality as well).

Has the SC made policy previously? Yes. And it's generally bad when it happens, and acknowledged as being bad afterwards.

I don't like the decision, but I do agree with the reasoning behind it. It is a Congressional matter. And the precedent for the act is set back to the framing of the Constitution.

I may agree with much of what Breyer wrote, but he was wrong to do it from the bench. The majority opinion slams him on this, repeatedly, and in rather harsh language for the Supreme Court at that. Noting that one of your fellow justices writes based out of policy and not out of precedent or rule of law is harsh. It basically says "You're not being a judge".

What Lessig's blog states is correct in that it's now up to the citizens to get Congress to reform IP law. Which, realistically, is how it should've gone in the first place. It's not going to be an easy fight, but the fights that are worth it rarely are. And things may very well get worse before they get better... but that's how it often goes.

I agree that IP law is deeply broken. I don't agree that this was the right way to fix it.

Blogs

[Amsterdam Vallon]

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?

The LA Times Article

[Badgerman]

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.

Re:The LA Times Article

[Anonymous Coward]

Actually, the disgusting part about this piece is that it is factually misleading. She talks about how she has remastered and reorchestrated the works of her grandfather. This means that she has created a derivative work, which is copyrightable. She can protect that redone work of hers, confident that the improvement will incite people to purchase it.

Were the orginal to go to public domain, it would not harm the copyright of her derivative.

Lets put it in perspective. Were she complaining that his work was about to go to public domain and that no money would come to her over something she never put any work into, she would be a leech. However, she is adding value. This added value means that she should be confident in letting the older work to to public domain. She will still be able to make money, through her added value.

In the end, she's not actually gaining ANYTHING from the extension of copyright, only hampering fans of her grandfathers work from buying and selling it.

Misleading and emotional pieces like this make me more disgusted with the media every day.

Who is the public domain? All of us.

[uncoveror]

The US Supreme Court, in a 7-2 decision, just upheld the Sonny Bono Copyright Term Extension Act, an act posthumously named after the late congressman who had favored making copyrights last forever. That is supposed to be unconstitutional, as it says in Section 8, clause 8 of the US Constitution: "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." Over the years, this "limited time" has been extended again and again at the behest of the entertainment industry toward the obvious goal of perpetual copyright. When the High Court agreed to hear the challenge brought by Eric Eldred, publisher of an online library of Public Domain works, I had high hopes. I struggle now to find words adequate to express my disappointment.

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.

go suzzie ... go suzzie

[mark_lybarger]

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 mailed my Congresscritters

[Luyseyal]

I snail-mailed and e-mailed my Congresscritters yesterday. The short version of it is:

Thousands of books, films, and characters will be lost forever just so Disney and a few others can make some more money. Please require registration to keep a copyright on all works older than, say, 1950.

Something like that...
-l

Re:What really boggles the mind

[nosilA]

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

Biting editorial? WTF?

[Anonymous Coward]

The NYTimes has two distinct news stories on the decision (NYT1, NYT2), plus a biting editorial about the decision.

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.

Which Experiment?

[medcalf]

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!

Re:What really boggles the mind

[blincoln]

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.