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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
Million Dollar Duck (1971) A fairy tale comes to life in this wild Disney comedy about a family whose pet duck, after being exposed to radiation, acquires the ability to lay eggs with solid gold yolks, sending the U.S. Treasury Department into a tizzy. Stars Dean Jones, Joe Flynn, Sandy Duncan, Tony Roberts.
try { do() || do_not(); } catch (JediException err) { yoda(err); }
20-Year Extension of Existing Copyrights Is Upheld
A Corporate Victory, but One That Raises Public Consciousness
The Coming of Copyright Perpetuity
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.
What boggles the mind is how little this really benefits the corporations. With rare exceptions (Snow White, Happy Birthday, and Gershwin), what percentage of content revenues come from old material? For record companies, a good year comes from a big hit created that year, not the old stuff.
Ooh, a sarcasm detector. Oh, that's a real useful invention.
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.
When your really think about it, the fact that they are trying to prevent stories from enterring the public domain is even more hypocritical.
Light cup, beer drink, thin so chain, neck turtle fat, man I won't say it again
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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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.
Like the one where the shrink finishes examining Minnie, and comes out and tells Mickey that he can't find any evidence that she is mentally ill. Mickey then says, "Aw, shucks, doc, I didn't say she was crazy, I said she was fucking Goofy! ha HA!" (drumroll)
You are not the customer.
1st off, the moral and historical foundation of property derives from the fact that not everybody can use something at the same time, not from monopolies granted by a king in return for not publishing bad things about the monarchy
2nd, copyrights are a fraud in that they don't help creators that much. Often you'll hear it cried from the rooftops that the artist is king and that anybody who finds a need to copy is a self centered brat that offers nothing of value to society. Perhaps this is intentional as to distract from the fact that for every artist that makes it big, 10000 are in dirt poverty.
3rd, they are worthless as a free market property right. If I said I had no incentive to grow apples unless I could plant them in your yard, or I said that I had no incentive to grow cotton without owning slaves on the plantation - people would see it as the worthless arguments that they are, but if I say I have no incentive to bring things into the public domain without a copyright monopoly - they just take it on faith, they don't even question it. If the govt gave someone a monopoly on growing peaches and then called it free market because he could buy and sell shares of that monopoly - people would see it for what it is, a fraud. The same is true with copyrights. Since peoples activities have a natural limit in supply and demand, and not information, it is the activities that should be equated to market value and not information.
4th, information is so easy to copy and manipulate that we are quickly reaching a point where either all of it must be controlled or none of it. The copyright industries know that and so should you.
The "other" CTEA challange is Golan v. Ashcroft which has been on hold while Eldred v. Ashcroft was being decided.
The CTEA took some works which were previously in the Public Domain in the US and restored their Copyright. Golan, a conductor, lost the use of some compositions which were formerly in the PD in the US. This case will now procede.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
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.
-Michael
Threshold RPG
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.
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
What I can never get over is how incredibly inexpensive it is for these companies to massively influence legislation. From another excellent Reason article, linked from that marsupial interview:
Say it with me in your best Dr. Evil accent: "One *thousand* dollars!". And from Disney's bank account? Boy, that's gotta smart. For that matter, why are the legislators and parties affected in the least by these paltry sums? They may not be paid huge salaries, but they can't be that broke. If this is all it takes to get laws passed, perhaps all we need to do is take up a collection. Even I can afford $1000 for some juicy bill.
(The same thing impressed me with the Salt Lake City / IOC scandal - so you can get your own Olympics for a few pizzas now?).
Napster-to-go says "Fill and refill your compatible MP3 player", which is a lie. It's not MP3. It's WMA with DRM.
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.
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.
"When I was in school, I cheated on my metaphysics exam: I looked into the soul of the boy sitting next to me"
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.
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.
As a European, can I just say thanks a lot?
This means that we can look forward to corresponding legislation on climate change, the international criminal court, gun control etc. right?
Or is it maybe that big-business sponsored WTO programs are the real driving force here, and not a desire to match European practice at all?
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.
DMCA, Hollings, Palladium. What might have sounded like paranoia is now common sense.