Supreme Court Takes Up Scholars' Rights

schwit1 writes with this quote from the Chronicle of Higher Education: "For 10 years, Lawrence Golan has been quietly waging a legal campaign to overturn a statute which makes it impossibly expensive for smaller orchestras to play certain pieces of music. Now the case is heading to the US Supreme Court. The high-stakes copyright showdown affects far more than sheet music. The outcome will touch a broad swath of academe for years to come, dictating what materials scholars can use in books and courses without jumping through legal hoops. The law Mr. Golan is trying to overturn has also hobbled libraries' efforts to digitize and share books, films, and music. The conductor's fight centers on the concept of the public domain, which scholars depend on for teaching and research. When a work enters the public domain, anyone can quote from it, copy it, share it, or republish it without seeking permission or paying royalties. The dispute that led to Golan v. Holder dates to 1994, when Congress passed a law that moved vast amounts of material from the public domain back behind the firewall of copyright protection. The Supreme Court is expected to decide the case during the term that begins in October."

Comments

Re:You have the right to be smeared.

[vlad30]

It always seems that most in the entertainment/copyright type industry lean towards democrats. why is that if the republicans are protecting their business model ?

Re:US-centric

[phantomfive]

Yeah, I've always wondered why, in a site that exists mainly from user contributions, why those non-USians don't contribute more. Then we could get news from all around the world. It would be great. Why don't you do it?

sadly he is going to lose

[burris]

Both the Copyright and the Supremacy clauses are working against him. Congress has the power to grant copyrights and in Eldred the Court said as long as they theoretically expire at some point in the future then all is well. Also, signed and ratified treaties are, along with the Constitution, the supreme law of the land. Yay for "harmonization."

Re:sadly he is going to lose

[Adrian Lopez]

As far as I know, copyright on works affected by the Eldred decision had not yet expired. I don't agree with the Eldred decision, but I think there's a big difference between extending the term of protection on copyrighted works and granting copyright on works that have entered the public domain. They're simply different issues.

As for treaties and the US Constitution both being considered "the supreme law of the land", such an observation does nothing to address how conflicts should be resolved when one bit of "supreme" law contradicts another bit of "supreme" law. I don't have much confidence in the US Supreme Court these days, but my hope is that any conflicts shall be resolved in favor of US citizens.

Re:sadly he is going to lose

[burris]

You're right that Eldred doesn't directly apply but it reveals the justices thinking. As the infamous Jack Valenti said before Eldred was decided, "Limited means whatever Congress says it means." I doubt much has changed since then.

I don't see how returning something to protection for a limited time conflicts with the copyright clause, perhaps you could elaborate.

Re:sadly he is going to lose

[White Flame]

My take on things is not that congress simply has the power to grant copyrights, but that congress has the power to grant copyrights "to promote the Progress of Science and useful Arts". As in, if copyrights are granted for any other reason (e.g. to appease lobbyists or make any entity more money), it is an unconstitutional act.

Re:sadly he is going to lose

[Adrian Lopez]

I don't see how returning something to protection for a limited time conflicts with the copyright clause, perhaps you could elaborate.

That's a good question. I don't really have an answer except to say that restoring copyright on works for which the term of copyright has already expired makes "limited times" a meaningless concept. I realize that's basically the same line of reasoning used in Eldred, but my hope is that extending copyright on public domain works is outrageous enough that the justices will think straight for a change and recognize this.

Re:sadly he is going to lose

[Dachannien]

Actually, there is fairly old case law that affirms that the Constitution trumps any treaty. I'm not sure whether that helps in this case, though, since it's unclear how much weight SCOTUS would actually give the "to promote the progress of science" clause in determining whether Congress has the power to place public domain works back into copyrighted status. Plus, there's the Commerce Clause to rain on everyone's parade yet again.

Personally, I think this would be more interestingly argued as an unconstitutional taking from the public without just compensation in violation of the fifth amendment.

Re:sadly he is going to lose

[Lloyd_Bryant]

I don't see how returning something to protection for a limited time conflicts with the copyright clause, perhaps you could elaborate.

Perhaps not, but try explaining how doing so "promotes the Progress of Science and useful Arts". Do you really think that the creator of something that has actually expired out of copyright into the public domain is going to start creating new works if his (very) old stuff is returned to copyright? In reality, even before the most recent extension of copyright terms it was more than likely that the original creator was long dead before the copyright expired.

Unfortunately, what will happen is that if this point is even brought up, the Supreme Court will simply rule that this is a type of commercial regulation, and hence allowed under the all-powerful Commerce Clause.

Re:sadly he is going to lose

[metacell]

It's also legally very problematic to retroactively revoke rights. If a work is in the public domain, you have the right to do what you want with it, including performing them publicly and creating derived works. If the work becomes copyrighted again, who owns the derived works? What happens if someone has bought and paid for the copyright to a derived work?

Re:sadly he is going to lose

[Anonymous Coward]

The constitution says:

"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"

I believe that under common law at the time of writing the term "Limited Time" meant less than 99 years. This is why leases in treaties were always written for 99 years (Hong Kong, Panama, Subic Bay). Anything more than 99 years meant "forever."

I think the current copyright law in the US may be unconstitutional and all copyrights should expire after 99 years.

Re:sadly he is going to lose

[Attila Dimedici]

The thing is that there has been a change of four Justices since the Eldred ruling. I don't know how the new Justices will rule on this issue. I would expect Kagan and Sotomayer to rule against Golan, since they, generally, favor a very expansive interpretation of the Commerce clause. However, liberals are often anti-copyright, so they may surprise me. I have no idea how Roberts or Alito view copyright (in particular the copyright clause of the Constitution).
I think that this decision will tell us a lot about this Court.

Re:sadly he is going to lose

[Attila Dimedici]

That is interesting and if it is well enough documented I hope the lawyers arguing against this law bring it up. The conservative Justices on this Court are very receptive to "original intent" arguments. I think that even 99 years is way too long, but it would be nice to have a Supreme Court ruling that says that anything more than 99 years clearly exceeds "limited time" as understood by the Framers of the Constitution.

Re:sadly he is going to lose

[king neckbeard]

The commerce clause isn't involved with this at all, so an expansive view of it isn't relevant.

Re:sadly he is going to lose

[Hatta]

"Limited means whatever Congress says it means."

Unless it's the debt limit.

Re:sadly he is going to lose

[Hatta]

Too bad the Supreme Court doesn't care what your take on it is. All they care is how much power they can return to their masters without getting impeached.

Look at what they did in Al Kidd v Ashcroft. It plainly did not matter that Ashcroft's intent was explicitly forbidden by the law. And that was a unanimous decision. The Supreme Court cares about nothing but expanding government power.

Re:sadly he is going to lose

[rbrausse]

If the work becomes copyrighted again, who owns the derived works?

uh, The Walt Disney Company?

ha, this question was a simple one :)

Re:sadly he is going to lose

[hey!]

Well judging from the summary, the issue isn't copyright extension, but *retroactive* copyright extension. Taking a work that is *already* in the public domain away from the public domain entails many issues that don't arise when simply extending copyright. So one who believes in copyright extension might reasonably object to *retroactive* copyright extension. For example it restricts the property rights of people who, in good faith, make legal copies and derivative works while a work is in the public domain.

We can judge how sincere the "original intent" crowd is by how they treat this issue. I can't imagine that the framers ever intended for works to be removed from the public domain. Still, I suspect we'll see retroactive extension upheld, given that the two biggest logical extensions to Congress's Constitutional powers have already been accepted, namely (1) de facto perpetual copyright through unlimited rounds of copyright extension and (2) granting copyright to current copyright holders rather than to authors and inventors as explicitly granted in Article 1, Section 8. If you can accept that, that this in effect makes some public domain works to risky to use is a mere practical detail.

Re:sadly he is going to lose

[Artifakt]

All law, civil and criminal has some tie to rights, but this is about more than the general principle that such rights exist. As copyright was originally set up, it was all tort law, with no criminal penalties. As more and more copyright law has become criminal law, the ex-post facto situation applies as it always does in criminal law. It's a two step process - first bring some works back under copyright, and only then criminalise some actions involving those works, and by splitting it up into steps, law enforcement has found a way around the ex-post-facto clause in the constitution. IP law has become a wedge area for chipping away at one of the United States most fundamental protections against bad government.

Re:sadly he is going to lose

[dgatwood]

Well, ex post facto laws and bills of attainders are interesting, but they do not apply here.

An ex post facto law would retroactively make it illegal to have performed or sold copies of a work during the time in which it was out of copyright. This law change did not do that.

Similarly, a bill of attainder is a bill that declares someone guilty of a crime and strips them of rights without a jury trial. This only does half of that, as it does not declare them guilty of a crime, but merely deprives them of property (IP rights) and grants them to someone else. That somewhat narrower right has been upheld in SCOTUS decisions before, with Kelo v. City of New London being the canonical example.

It's actually the fourth amendment that applies here, not the ex post facto clause, nor the bill of attainder clause. What this law changed was future use of the work. This means that copies of the work that you recorded while it was not under copyright can no longer legally be sold or performed.

By any reasonable interpretation of the fourth amendment, this is an unwarranted, unreasonable seizure of property (intellectual property rights) held by thousands (if not millions) of people. Your right to continue to use sheet music that you own (music that you are physically in possession of) ceased to exist when this law was passed. Your right to play CDs, tapes, DVDs, and LPs that contain recordings of this music no longer exists. Your right to sell recordings of these works recorded during that era no longer exists (whether you are the performer or someone who previously acquired a copy) because doing so is considered criminal commercial violation of copyright.

In effect, the government came and seized every copy of this music, not by court trial, not by armed infiltration, but by signing a law. And afterwards, they gave that property, not to the public, not to a private company or individual for public use, but to an individual with the intent of preventing existing public use and extracting money in exchange for future public use. That's contrary to both the spirit and the letter of the fourth amendment by any reasonable standards. And that's the key to understanding why this case is neither like Eldred v. Ashcroft nor Kelo v. City of New London.

Re:sadly he is going to lose

[Hatta]

We can judge how sincere the "original intent" crowd is by how they treat this issue.

The original intent crowd sincerely believes that the original intent of the Founding Fathers was to establish a corporate aristocracy.

Re:sadly he is going to lose

[jedidiah]

> That's a good question. I don't really have an answer except to say that
> restoring copyright on works for which the term of copyright has already
> expired makes "limited times" a meaningless concept.

So does repeated retroactive extension. It's the same problem. It's the same mindset.

I see this stuff and I think of Scalia talking with Vader's voice: "I've altered the bargain. Pray that I don't alter it any further".

Re:sadly he is going to lose

[b4dc0d3r]

Personally, I think this would be more interestingly argued as an unconstitutional taking from the public without just compensation in violation of the fifth amendment.

Especially since that is an argument as to why we can't un-do the recent copyright extensions. They have already been granted, and you can't take stuff away. With this argument, if the extensions stay then the public domain status also stays. Reinstating the copyright was an unconstitutional taking that has to be reversed.

Or, we could put stuff back into copyright, and remove the copyright term extensions. But I doubt this would stand up.

Re:sadly he is going to lose

[operagost]

Unfortunately, I already created a post that was quite inferior to yours, and therefore cannot mod you up!

Re:sadly he is going to lose

[Shagg]

Copyright stopped having anything to do with promoting the progress of science and useful arts a long time ago.

Re:sadly he is going to lose

[budgenator]

What you're not seeing is that copyright protection is a governmental framework that is legally defined and enforced not only by the right's owner but by the government, and that this framework is a valuable consideration. This valuable consideration is paid for by the transfer of ownership to the public domain, which means that all people own the work equally. When a property is taken by the government, it has to be by purchase or by Eminent Domain, and per the Fifth Amendment to the us constitution

nor shall private property be taken for public use, without just compensation.

so I'm not sure that congress could take that property from the public even with just compensation because its for private use.

Re:sadly he is going to lose

[BranMan]

I've had the same point of view - even though it does little good. I figured it should have been argued before the SC that if I was born after a work was created, but my longest possible reasonable life expectancy was shorter than the copyright period, then it is, in fact, infinite (at least to me - I have no chance to create derivative works or share in benefit of it going into the public domain) . Further, if the copyright for a new book exceeds the lifespan of each and every human on the planet, how can you argue that it is 'limited' in any sane sense?

Re:sadly he is going to lose

[burris]

Congress anticipated this and the law has a provision for mandatory licensing for derivatives created before restoring Copyright. The terms can be set by a Federal court if necessary. I posted a quote from the 10th Circuit opinion.

Re:sadly he is going to lose

[metacell]

Thanks for the info.

It still creates a lot of uncertainty in the market, though - someone who uses public domain works in their own production, may suddenly find they have to pay licensing fees they didn't anticipate, and if they can't afford them, they'll have to cease distributing their own work and lose the time and money they invested into it. The rules change after the game has started, so to speak. The uncertainty may scare people away from using public domain works, which defeats the purpose of public domain.

Licensing fees tend to be a big problem for documentary producers (who use lots of photographs and film clips) and small film makers who want to include music in their production.

Re:sadly he is going to lose

[vgerclover]

If you restore copyright to works that where previously in the public domain, you are in effect revoking rights retroactively, something which no lawful nation can allow.

I'm going to go out on a limb...

[The Master Control P]

5-4 favoring the corporatists. That does seem to be the order of the day when it comes down to it.

Unless it involves the "b b but terrorists" legal cancer (You have no need to know about this, Citizen. Your betters will not abuse it), then it's 9-0.

Re:I'm going to go out on a limb...

[phantomfive]

This is the problem when you make stereotypical judgements of the supreme court based on the few cases you care to pay attention to. Last time there was a major copyright case, it was 7-2 favoring the 'corporatists' (and not even all corporations favor copyright; only the ones who benefit from copyright favor it). Of the two who opposed it, one was appointed by a democrat, and one by a republican.

Also, what is your weird idea about terrorists legal cancer? For example, Rasul vs Bush was a huge defense of the rights of prisoners......it says that all prisoners, even enemy combatants, have the right to Habeas Corpus, which is huge, and was of course opposed by the Bush administration. The supreme court takes more into consideration than 'left' or 'right,' you should look into it some time.

Re:I'm going to go out on a limb...

[airfoobar]

On these matters it's almost always 8-1. The 8 hold some stupid pro-corporate view that makes absolutely no sense, while the 1 dissenting opinion is what the other 8 should have gone for but didn't...

Re:I'm going to go out on a limb...

[Darinbob]

No, it's 8-1 because there's no evident legal basis to overturn the lower courts. The judges decide on the law, they don't actually make it (though they're accused of it all the time). They can't just overturn properly created legislation that does not conflict with other legislation or treaties or the constitution. It will be interesting to see what sort of legal theory for overturning it will be presented (I don't think "too expensive for small guys" will cut it).

Re:I'm going to go out on a limb...

[burris]

Thanks to the wonderful SCOTUSblog you can read the opinion below, petition for cert, brief in opposition, petitioners reply, and the amicus briefs.

Re:I'm going to go out on a limb...

[king neckbeard]

But it does conflict with the Constitution, and is thus not 'properly created legislation.' Moving works from the public domain can't conceivably 'promote the progress', and it arguably limits the free speech of others.

Re:I'm going to go out on a limb...

[wisty]

It does "promote the progress". If have a 0.000000000000001% greater incentive to create a work of art, because I feel secure that my great great great great grandchildren will be more likely to hold copyright, then it's still an incentive.

The issue is one of costs and benefits, which the constitution doesn't mention (IIRC).

Re:I'm going to go out on a limb...

[Sique]

It also denies progress. If I have to pay 10000000000% more to actually get educated what Art is and how it works and how former artists have done it, I'll might not be able to create any art at all.
What all those theorists about how copyright is an incentive forget, is that being confronted with Art is the greatest incentive of them all. No one will try to invent a song, if he has never heard a song. No one will try to write a novel, if he had never read one. No one will ever perform an act, if he has never seen someone else acting. And let me quote Isaac Newton, who in turn quoted John of Salisbury quoting Bernhard of Chartres: "If I have seen a little further it is by standing on the shoulders of Giants."

All Art and Culture is based on those shoulders. Copyright is fencing the shoulders and asking for an entrance fee, thus limiting the number of people who are able to see a little further.

Re:I'm going to go out on a limb...

[AK Marc]

No, it's 8-1 because there's no evident legal basis to overturn the lower courts.

There's enough legal basis to uphold or overturn anything that makes it in front of the Supreme Court. They decide based on their personal opinion, then pull legal basis that supports their opinion, ignoring all else. That's why the results of the case can often be correctly guessed before the case is even heard by the Supreme Court. And that's also why it's so important that parties stack the courts to force their opinion on everyone, regardless of the law. No, not all "activist judges" are Democrats. All the Republican judges are as well, they just happen to "activist" in the general direction of the nutjobs that run around screaming "activist judges."

Re:I'm going to go out on a limb...

[king neckbeard]

But you can't have more of an incentive to create a work after the fact, and the works in question under the URAA were foreign works that were created without any promise of US legal protection at the time of their creation. That argument might hold for the obscenely long duration of copyright on new works (although we ought to insist that changes to policy be evidence based) , but it doesn't hold for retroactive extensions (among the competent, anyway), and certainly doesn't hold for moving works out of the public domain.

Re:I'm going to go out on a limb...

[TheRaven64]

Actually, longer copyright terms mean that I have a lower incentive to create. My publisher can keep milking existing works for a long time, so they have less of an incentive to buy new things from me, and so I have less of an incentive to create them. This is less true in areas like software, where if you don't keep producing new features then eventually someone will independently create something independent, but software becomes obsolete long before copyright expires (no software has ever entered the public domain in the USA through copyright expiration, only through being incorrectly registered or through being explicitly released).

Re:I'm going to go out on a limb...

[dachshund]

No, not all "activist judges" are Democrats.

That this statement even has to be written down represents a miracle of political branding and propaganda.

Re:I'm going to go out on a limb...

[danlip]

They are using activist as a synonym for liberal. Which works because liberals love to run around calling themselves activists.

Re:I'm going to go out on a limb...

[locallyunscene]

He didn't say left or right or Republican or Democrat just corporatist. You used his comment on terrorism laws eroding our freedom as a shibboleth to avoid taking his comment at face value.

Corporatism definitely crosses party lines in our gov't.

Re:I'm going to go out on a limb...

[bitslinger_42]

The reason that SCOTUS decisions can often be predicted is because law largely functions like computer code. Given these inputs, run through this set of logic gates, and it's likely that you'll get this output.

The thing that adds ambiguity is the same thing that intorduces problems in WIndows XP: support for legacy code. The US civil/criminal code is a HUGE beast, probably constituting as many "lines of code" as are in XP, but not all of the lines make sense in the modern environment. In some cases, these bits of legacy code lead to legal decisiosn that, while logical given the inputs and code, are both unpopular and harmful.

Citizens United is a good example of this. While I'm pissed off at the result (i.e. essentially unregulated campaign contributions by corporations), it follows quite logically given the initial conditions of a) corporate personhood, and b) the necessity of assigning Constitutional rights to any person.

Personally, I'm pissed off about the whole corporate personhood thing, but since the SCOTUS has to start with that as existing precident, the syllogisim basically works out to be "people have a right to free speech, corporations are people, therefore corporations have a right to free speech". Unpopular, and harmful in the long-term, but completely predictable without any personal opinions on the part of the justices.

Re:I'm going to go out on a limb...

[jedidiah]

The whole "limited" times thing is a pretty obvious legal basis.

The idea that there is "no basis" here for taking a more individualistic approach to the law is entirely bogus.

In fact, it is the "individualistic" aspects of the Constitution that are supposed to take precedence.

Re:I'm going to go out on a limb...

[phantomfive]

Hating corporations to an irrational degree (I already pointed out the irrationality of his conclusions) plus thinking that the supreme court is in the pocket of some 1984 government conspiracy is a pretty strong sign of an irrational leftist. Not always, of course.

Re:I'm going to go out on a limb...

[beanyk]

I think you're ignoring part of the parent's point (which may not have been explicit). It's not just that the Supreme Court's decisions can be predicted beforehand, it's that the specific Justices' -votes- can be predicted beforehand.

If the law were really like a computer code, and the Supreme Court Justices were all rational, knowledgeable and honest, we would them to render identical opinions on every question; in fact, there would only have to be -one- judge. Since we may not trust one judge to be sufficiently knowledgeable, we have nine instead, and take a majority opinion.

But if you know that certain issues are going to split 5:4 or 6:3, with the -same- justices on the majority side each time, then there's a real problem. At least one of the sides is pushing a bias that has nothing to do with the law. At least one of the sides is failing in rationality, knowledge, or honesty; I suspect both are.

Re:I'm going to go out on a limb...

[Darinbob]

I think my point was not about the 5-4 decisions. In such cases it's more clear that there's a lot more legal give and take going on and the answer is not so clear cut. Thus personal opinions and bias will become more evident and you can predict which side a justice is on. But when you have an 8-1 decision then I don't think you can still point your finger to pro-corporate bias. It's interesting in some of these 7-2 or 8-1 cases to read some of the concurring opinions.

Re:I'm going to go out on a limb...

[AK Marc]

The dissenting opinions are always much more colorful.

Re:I'm going to go out on a limb...

[bhiestand]

No, it's 8-1 because there's no evident legal basis to overturn the lower courts. The judges decide on the law, they don't actually make it (though they're accused of it all the time).

That's not 100% true, and I'm sure you know it. An important function of the higher courts, particularly the US Supreme Court, is to figure out how to deal with gaps in the law. The law never covers every possible scenario, and the law isn't always coherent or consistent (and no, I don't give a damn what Weinrib says). There are obviously different schools of legal thought and jurisprudence, but it's not a stretch to say that judges really do create law or policy when they fill the gaps in existing law. They establish rules, precedents, and interpretations which change the legal reality in the country.

That said, "judicial activism" is just a term people use when they disagree with the outcome.

They can't just overturn properly created legislation that does not conflict with other legislation or treaties or the constitution.

No, but they can make some pretty dramatic over-reaches in their interpretations. Bush v Gore and Citizens United aren't isolated incidents.

It will be interesting to see what sort of legal theory for overturning it will be presented (I don't think "too expensive for small guys" will cut it).

I haven't bothered to read all the documents, but it seems the appeal and district court rulings hinged on whether the treaty violated freedom of expression and whether or not it was a content-neutral regulation of speech. Intermediary scrutiny says it doesn't. The cert petition rehashes the freedom of expression claim, challenges the ability of Congress to take remove works from public domain, etc. Of course you know that if you read the docs on scotusblog... P. 10 or so of the cert petition.

Re:I'm going to go out on a limb...

[AK Marc]

If they weren't all activist legislators, they wouldn't be running...

When Lawrence Lessig went to the supreme court

[phantomfive]

I remember reading that when Lawrence Lessig went to the supreme court to challenge copyright law, the court kept asking for examples of damage caused by the law, and Mr Lessig kept answering in abstract legal/constitutional principles. The court seemed to be of the opinion that, "if it's not hurting anyone, (and is benefiting copyright holders), there's no reason to change it."

So this time the professor has lots of evidence that actual damage is being done. It will be interesting to see if the court changes their opinion based on this new evidence.

Re:When Lawrence Lessig went to the supreme court

[phantomfive]

What are you even talking about? You realize that the Supreme Court is appointed for life, right? They don't get bribes, even in the name of campaign contributions. There is a reason we do it that way. Or do you know about bribes to the supreme court that we don't know about?

Re:When Lawrence Lessig went to the supreme court

[SuricouRaven]

It works the other way around: Those who havn't shown a career of consistant loyalty to the right people aren't going to get into the supreme court. Those people being the democratic or republican parties - which one just depends who is president at the time of appointment. Neither one can afford to appoint a judge that isn't going to advance the agenda of their party, because that's exactly what the other party will do regardless.

Re:When Lawrence Lessig went to the supreme court

[NeutronCowboy]

Lessig answered in abstract terms because it is very, very difficult to quantify the cost of removing something from the public domain. It's easy to see the benefit: just count the revenue generated by the IP for the rights holder. I suspect that Golan is going to run into the problem of "I see that it is too expensive for you to play Prokovief. Why is that more important than Rightholder A making money off of his sheet music?" Damage might be there, but it is always put into the context of the benefit derived from the existence of the copyright. And he's going to lose that battle every time: because music in general is a big market, and therefore there is no need to play a particular piece - but an individual rightsholder derives direct benefits from the royalties of a particular piece that he/she can't derive from any other piece.

Sometimes, in the rush to quantify everything, we forget that part of what makes us a civilization is the culture that we have in common. What is the value of that? I don't know. What price is a life? I don't know either. Sometimes, abstract considerations are necessary to work around the morass that is the monetary valuation of a moral position.

Re:When Lawrence Lessig went to the supreme court

[Rogerborg]

With respect, I believe that Lessig also answered in abstract terms because he's a tenured professor with a strictly theoretical knowledge of the law, and (demonstrably) very little understanding of how courts and judges actually operate. Ultimately, his argument was reduced to "Aw, c'mon", and appropriately enough, his textbook knowledge has provided a textbook example of how not to argue a case.

Re:When Lawrence Lessig went to the supreme court

[martin-boundary]

That's a nice theory, Rogerborg. In theory, you'd be right. But of course in practice, that's not nearly how it works...

Re:When Lawrence Lessig went to the supreme court

[chrismcb]

So this time the professor has lots of evidence that actual damage is being done. It will be interesting to see if the court changes their opinion based on this new evidence.

I'm failing to see the harm here. So small orchestra's can't play some music. So play some others. There are a lot of small groups across the country that can't do certain things because they can't afford the equipment. Are they being harmed? Perhaps the manufacturers should be sued to give these small groups the equipment?

Re:When Lawrence Lessig went to the supreme court

[metacell]

"I see that it is too expensive for you to play Prokovief. Why is that more important than Rightholder A making money off of his sheet music?"

You're probably right that the judges will reason that way, but the proper answer to the above is:

"Granting Rightsholder A the right to make money from his sheet music does not produce any net benefits; it merely transfers money from the buyer to the rightsholder. The transfers need to stimulate production of new works to have a net benefit, and extending copyright on existing works doesn't qualify. Extending copyright on those works does, however, result in a net loss, since they have a hemming effect on the performance of said works, which means fewer people will be able to enjoy and benefit from them."

Re:When Lawrence Lessig went to the supreme court

[metacell]

You're conflating two different arguments here:

1. There's no actual harm to orchestras (untrue; and even if it can be argued that the harm is small in purely economic terms, it has a significant effect on academics, research and fine arts)
2. The smaller orchestras have no right to use music without paying (irrelevant, since that right was already granted to them by letting the works fall into the public domain, and taking it back at a later date is similar to confiscation)

You do understand that the issue here is letting works fall into the public domain and than taking them back, don't you?

Re:When Lawrence Lessig went to the supreme court

[Smallpond]

http://newsone.com/nation/jothomas/clarence-thomas-reveal-wifes-earnings/

Re:When Lawrence Lessig went to the supreme court

[Hatta]

he's a tenured professor with a strictly theoretical knowledge of the law, and (demonstrably) very little understanding of how courts and judges actually operate

In other words, Lessig argued based on the law. The Supreme Court ignored all that and ruled the way that would please their cronies. There's no way to explain the behavior of the Supreme Court in the past decade that doesn't involve corruption.

Re:When Lawrence Lessig went to the supreme court

[Smallpond]

If I have just finished a month of work creating arrangements of Shostakovich's works for my orchestra next season, then I have just lost a that work. What does public domain mean, if not permanent?

Re:When Lawrence Lessig went to the supreme court

[hey!]

I think it's more likely that he screwed up by not anticipating this question. That's a blunder, of course, and may reflect a little hubris if he thought he had a couple of slam-dunk arguments. If he had a few minutes he probably could have come up with a concrete example, but you don't get a few minutes to think because hostile justices will continue peppering you with questions.

Re:When Lawrence Lessig went to the supreme court

[sgtrock]

In Lessig's own words:

But in February 2002, the Supreme Court surprised the world by granting our petition to review the D.C. Circuit opinion. Argument was set for October of 2002. The summer would be spent writing briefs and preparing for argument.

It is over a year later as I write these words. It is still astonishingly hard. If you know anything at all about this story, you know that we lost the appeal. And if you know something more than just the minimum, you probably think there was no way this case could have been won. After our defeat, I received literally thousands of missives by well-wishers and supporters, thanking me for my work on behalf of this noble but doomed cause. And none from this pile was more significant to me than the e-mail from my client, Eric Eldred.

But my client and these friends were wrong. This case could have been won. It should have been won. And no matter how hard I try to retell this story to myself, I can never escape believing that my own mistake lost it.

...

When the Chief Justice called me to begin my argument, I began where I intended to stay: on the question of the limits on Congress's power. This was a case about enumerated powers, I said, and whether those enumerated powers had any limit.

Justice O'Connor stopped me within one minute of my opening. The history was bothering her.

justice o'connor: Congress has extended the term so often through the years, and if you are right, don't we run the risk of upsetting previous extensions of time? I mean, this seems to be a practice that began with the very first act.

She was quite willing to concede "that this flies directly in the face of what the framers had in mind." But my response again and again was to emphasize limits on Congress's power.

mr. lessig: Well, if it flies in the face of what the framers had in mind, then the question is, is there a way of interpreting their words that gives effect to what they had in mind, and the answer is yes.

There were two points in this argument when I should have seen where the Court was going. The first was a question by Justice Kennedy, who observed,

justice kennedy: Well, I suppose implicit in the argument that the '76 act, too, should have been declared void, and that we might leave it alone because of the disruption, is that for all these years the act has impeded progress in science and the useful arts. I just don't see any empirical evidence for that.

Here follows my clear mistake. Like a professor correcting a student, I answered,

mr. lessig: Justice, we are not making an empirical claim at all. Nothing in our Copyright Clause claim hangs upon the empirical assertion about impeding progress. Our only argument is this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws.

That was a correct answer, but it wasn't the right answer. The right answer was instead that there was an obvious and profound harm. Any number of briefs had been written about it. He wanted to hear it. And here was the place Don Ayer's advice should have mattered. This was a softball; my answer was a swing and a miss.

Re:When Lawrence Lessig went to the supreme court

[alexo]

Since the only damages the court will consider are monetary, it follows that rights and freedoms have no value and therefore can be ignored.

Re:When Lawrence Lessig went to the supreme court

[phantomfive]

Once again, you have to be an idiot to come to these kinds of conclusions. I don't think you are an idiot, so your problem is you're drawing idiotic conclusions because you aren't actually considering all the evidence. Do you even know anything about the Supreme Court? They definitely consider things besides monetary damage, look at Rasul vs Bush for one example.

Re:When Lawrence Lessig went to the supreme court

[TheoMurpse]

I asked Lawrence Lessig once about the case when he spoke at UT. He told me that before he went to the Court, he talked to my (pretty authoritative) constitutional law professor at UT, Sandy Levinson, about the case. Apparently down on Lessig's chances, Levinson asked him, rhetorically, how often in the history of the Supreme Court has it ever come down against the money side.

I don't think it's the SCOTUS intentionally deciding for the moneyed folks so much as the government doing so and the SCOTUS being hesitant to overturn many things Congress does without pretty clear reasons.

And the arguments in Lessig's case were, as you said, in the abstract.

Re:When Lawrence Lessig went to the supreme court

[phantomfive]

What is with the weird conspiracy theories jumping out? They explain their rational for their decisions; just because it doesn't fit into your stupid preconceived notions of left and right (or what is right) doesn't mean they are being bribed. Unless you have evidence of them being bribed (I'm assuming that is what you meant when you said cronies), then I'm going to put you in the category of people who are more familiar with how Hollywood works than how the world works.

Re:When Lawrence Lessig went to the supreme court

[TheoMurpse]

Lessig did work as an elbow clerk for Posner on the 7th Circuit, and then Scalia on the Supreme Court. There are few people in this world who have a better understanding of how judges work than he, having spent two years working in chambers with them.

I myself clerked, and I learned a lot in the process (chief among them: most lawyers can't write for shit).

Re:When Lawrence Lessig went to the supreme court

[TheoMurpse]

The transfers need to stimulate production of new works to have a net benefit, and extending copyright on existing works doesn't qualify.

The SCOTUS addressed this specific point (wrongly, IMO) in the last big retroactive-copyright case. The majority's response was "when someone makes a work, they do so with the knowledge their copyright may be retroactively extended. Accordingly, retroactive copyright does sometimes induce more creation."

Re:When Lawrence Lessig went to the supreme court

[Hatta]

Bribes don't enter into it. It's all about old boys networks, and making sure the right people get in the right places to make the right decisions to benefit the right people. Their "rational" for their decision is nothing but misdirection.

You do realize you can have corruption without bribes right?

Re:When Lawrence Lessig went to the supreme court

[phantomfive]

I do realize you border on insane.

Re:When Lawrence Lessig went to the supreme court

[phantomfive]

As Mr Lessig himself mentioned, there have been many briefs written detailing the damages caused by extended copyright. He mainly failed to bring those up, and he felt quite bad about it.

Re:When Lawrence Lessig went to the supreme court

[phantomfive]

The thing about this is, as much as we talk about left/right in the media, neither one is a really meaningful label in the long term. There is no position held by either party that could not be help by the other within a few years. It won't be long and the Democrats will be opposing raising the debt limit. Soon the Republicans will be favoring gay marriage (otherwise they will lose too many elections). Democrats have already begun to move towards a pro-life stance, which was unthinkable twenty years ago.

Both parties have a real interest in getting people to think in a 'left-right' mode and dividing us; because that is an easy way to win an election against an incumbent. In reality Americans have much more in common, both on the left and on the right, than we have different.

Re:When Lawrence Lessig went to the supreme court

[Hatta]

What explanation besides corruption is there for decisions like Al Kidd v Ashcroft? Anyone who respects the rule of law must recognize that our leaders must be not above the law. How do you get a unanimous decision that makes our leaders exempt from the law, unless the Supreme Court is corrupt?

Those who think that was an honest decision are not just borderline insane, they're completely delusional.

Re:When Lawrence Lessig went to the supreme court

[Bob9113]

> Granting Rightsholder A the right to make money from his sheet music does not produce any net benefits; it merely transfers money from the buyer to the rightsholder.

Hear, Hear!

I've been noodling on this same thing recently. Another way to approach the same answer is by considering the foundation of the copyright supporter's hypothesis.

The fundamental hypothesis behind using the revenue from a copyrighted work as a measure of the value of that copyright is free market theory. In free market theory, the revenue generated by the sale of a good is an estimate of its value to society. The accuracy of that estimate is a function of the efficiency of the free market -- more efficient markets will more closely approximate the ideal market price and volume, and hence more accurately measure the true societal value of the good.

The problem with using revenue as a measure of the societal value of copyright, however, is that it is a fiat monopoly. Monopoly goods do not obey the rules of price theory. Specifically, the number of suppliers of a given good is not allowed to grow, which would enable competition to lower the observed price to match the cost of production. That is, of course, for a good reason. In creative works, the cost of reproduction is significantly lower than the cost of initial production.

It is for that reason that the fiat monopoly exists. To promote the progress of science and the useful arts, it is beneficial for government to inhibit the natural behavior of the free market in a way that induces revenue flow to the creators. That is a good thing.

However, it eliminates the ability to accurately estimate societal value by measuring revenue. The revenue in the copyright (and patent, and trademark) industry is not a measure of market efficient societal benefit. Every time an RIAA or MPAA representative uses sales and loss figures to support their case for expanding copyright enforcement, they are betraying their disdain for, or at least ignorance of, the free market and the principles behind using revenue as an estimate of societal value.

Re:When Lawrence Lessig went to the supreme court

[phantomfive]

Al Kidd v Ashcroft is a complicated case, and I don't have a strong understanding of the case law surrounding the issue, but as I see it, it came down to two decisions:

1) Limited immunity for Ashcroft, because there was no clear legal precedent in this case. This isn't controversial, that is, limited immunity in such cases has been the law for a long time, and in legal terms "it's been that way for a long time" is a justification for anything, and doesn't require a conspiracy to explain.

2) That warrants can't be challenged based on the intent of the government requesting them. Now this one could be bad; obviously if the power to arrest people is unchecked, it will be abused. My understanding of the decision (which could be wrong, as IANAL) is that the executive branch can ask to arrest whomever they want (that is, request a warrant for the arrest of said person), and it is up to the judicial branch to decide whether the warrant is valid or not. The judge doesn't have to grant the warrant if he thinks it is not justified. If anything, this can be seen as a power-grab by the judicial branch.

Clearly, Ashcroft wanted Al Kidd arrested and detained. I don't really know why.

Re:When Lawrence Lessig went to the supreme court

[metacell]

God, what a far-fetched argument. Uncertain future gains with unknown probabilities are practically worthless - you have no choice but to disregard them, since you can't calculate their expected value. And that's assuming the artist even considers the gains their works will generate far in the future, after their own death.

One of the principles of economy is that market rules need to be predictable and well-known for agents to act rationally on them. For example, the government can't give an incentive for people to build more houses by saying they *might* lower the housing tax some time in the future. Anyone who calculated with the tax break would take a risk, and that risk would also represent a cost to the builder.

Re:When Lawrence Lessig went to the supreme court

[hitmark]

Too bad the courts and legislators are all to willing to accept the industries fictitious numbers regarding losses, yet can not wrap their head around value of public domain...

Re:When Lawrence Lessig went to the supreme court

[metacell]

Well, obviously he was inspired to write the symphony because he knew, deep in his heart, that 50 years after his death a record company would still be able to sell records with his music with a decent profit.

Re:When Lawrence Lessig went to the supreme court

[TheoMurpse]

To be fair, the Constitution only explicitly prohibits indefinite copyright. It's almost as equally far-fetched to equate "Congress has extended copyright length retroactively one time" with "Congress is establishing indefinite copyright terms."

And that's really the only constitutional argument to make, aside from maybe a Takings Clause argument. I can't remember if a Takings Clause argument has ever been made, though. A quick search on Google reveals a few random blog commenters suggesting it (along with some misunderstandings of the law, so I doubt they're lawyers), and a search on Google Scholar cases and legal journal articles reveals nothing.

So actually it might be a fruitful topic for legal scholarship. I should email a former copyright prof of mine and see what he thinks. Maybe I could make an article out of this. Even though it's a rather stale topic, since SCOTUS hasn't ruled on retroactive copyright in over a decade I think.

Re:When Lawrence Lessig went to the supreme court

[TheoMurpse]

On second thought, I don't think the Takings Clause argument would work. The Takings Clause deals specifically with a transfer of private property for public use. A public domain work is probably by definition not private property.

The closest analogue I can think of is if the Federal Government sold federal lands to a private individual. That would seem to indicate it's OK to take public lands and transfer them to private individuals. However, there is just compensation there, in that the taxpayers in theory now have a smaller national debt after the sale, so I don't know whether it's that this case is (Takings Clause relevant + just compensation-->OK) or (Takings Clause irrelevant-->OK).

Re:When Lawrence Lessig went to the supreme court

[metacell]

To be fair, the Constitution only explicitly prohibits indefinite copyright.

Well, I'm not a lawyer, but the constitution states the purpose of copyright law must be to promote the arts, so presumably, if it's not at all suitable for that purpose, it's unconstitutional. Or is that taking the constitution's wording too far?

It's almost as equally far-fetched to equate "Congress has extended copyright length retroactively one time" with "Congress is establishing indefinite copyright terms."

Yes, that's not a good argument. If history repeats itself (which seems likely), the argument should carry somewhat more weight, though.

Re:When Lawrence Lessig went to the supreme court

[TheoMurpse]

Well, I'm not a lawyer, but the constitution states the purpose of copyright law must be to promote the arts, so presumably, if it's not at all suitable for that purpose, it's unconstitutional. Or is that taking the constitution's wording too far?

You're right. I honestly don't know what the hell I was thinking when I said the Constitution explicitly references the definitiveness of copyright terms. I was, in short, being a big fuckup when I wrote that. Let's chalk it up to carb shortage--I'm a weightlifter trying out this thing called a Cyclic Ketogenic Diet and my mind isn't working very well in the mornings. :) But more likely, I was just being stupid.

If history repeats itself (which seems likely), the argument should carry somewhat more weight, though.

Maybe, but I'm still not too sure. As a former math guy, the difference between a finite number of finite retroactive extensions and indefinite extension is chasmous (casmotic?). I want a damn adjective form of "chasm," dammit!

Re:When Lawrence Lessig went to the supreme court

[metacell]

Don't take it too hard :)

Re:When Lawrence Lessig went to the supreme court

[TheoMurpse]

Well, I'm something of a copyright lawyer ;)

Re:When Lawrence Lessig went to the supreme court

[Hatta]

The very concept of limited immunity is incompatible with the rule of law. If anything, those charged with upholding the law should suffer greater consequences when they abuse it.

Also "it's been that way for a long time" IS a conspiracy*. The entire legal profession has conspired, not in secret, but through tradition, to ignore that fundamental contradiction above.

When I say "corruption", you think shady back room deals. The reality is that evil is far more banal than that.

Re:When Lawrence Lessig went to the supreme court

[phantomfive]

The very concept of limited immunity is incompatible with the rule of law. If anything, those charged with upholding the law should suffer greater consequences when they abuse it.

You clearly know nothing about law. It is not fair to apply a law or standard retroactively where none existed before.

Also "it's been that way for a long time" IS a conspiracy*. The entire legal profession has conspired, not in secret, but through tradition, to ignore that fundamental contradiction above.

Yeah, I'll bet you were one of those people who thought Bush would declare martial law before the Obama election. Maybe you even were a truther. Once again, you seem to know more about Hollywood than about reality. Sorry.

One thing you are right about: Slashdot is rather unusable without noscript.

Re:When Lawrence Lessig went to the supreme court

[phantomfive]

Here's a beautiful example of how corruption works in the real world:

http://thehill.com/business-a-lobbying/165151-afl-cio-chief-amplifies-warning-to-democrats

This guy whose spent a bunch of money trying to buy off politicians, but in the end, he's left waving his cancelled check in frustration as the politicians go off and do other things. Politicians are willing to be bought, but only as far as the population will let them without taking away their votes. They'd rather have votes than money.

Which is why it's so important to have an informed populace. Politicians can (and some of them will) do whatever they want when the public isn't watching. It is up to us to pay attention.

Re:When Lawrence Lessig went to the supreme court

[Hatta]

Yeah, I'll bet you were one of those people who thought Bush would declare martial law before the Obama election. Maybe you even were a truther. Once again, you seem to know more about Hollywood than about reality. Sorry.

WTF are you even talking about?

Re:When Lawrence Lessig went to the supreme court

[JimFive]

Maybe, but I'm still not too sure. As a former math guy, the difference between a finite number of finite retroactive extensions and indefinite extension is [...] I want a damn adjective form of "chasm,"

Maybe, "chasmic"

Also, the law is not math. A single copyright extension is almost certainly acceptable, however by forcing the proponents to say "but it's just this once" a situation is created in which the next time the lawyers can point out the hypocracy to the court. Whether that ends up having any real bearing is yet to be seen.
--
JimFive

Re:When Lawrence Lessig went to the supreme court

[JimFive]

When you trade for equal value it's not immoral, but when one party profits because they are selling for more than item is worth then it's immoral.

It is not possible to sell an item for more than it is worth to the consumer.
--
JimFive

Re:When Lawrence Lessig went to the supreme court

[phantomfive]

You fit the profile of people who believe in conspiracy theories, and is out of touch with reality.

Re:When Lawrence Lessig went to the supreme court

[Hatta]

Nonsense. Did you miss the part where I said there aren't any shady back room deals? The problem with the Supreme Court isn't bribery, it is regulatory capture. This is a common phenomenon that happens to all sorts of government agencies. Why is it so crazy to think that it has happened to the Supreme Court?

If you can't understand how an institution can be corrupt without any money directly changing hands, that's your own naivete.

Re:When Lawrence Lessig went to the supreme court

[phantomfive]

Oh, that example wasn't a backroom deal, it was a guy waving his cached check openly! Regulatory capture....in this case you must be referring to the supreme court being 'captured' by the Executive branch. Fortunately, that was a scenario foreseen by the writers of the constitution, which is why it doesn't give the power of appointing judges to either the executive OR the legislative branch, it divides the power between the two.

That has happened to some degree, for example, when Roosevelt pushed a lot of his new programs through, it was after getting some of his guys on the court. It didn't work extremely well though, and his guy started showing some independence and opposing Roosevelt (darn supremes, once they're appointed you can't do much about them). So he made another plan to pack the court in his favor.

At that point, however, the most important check on government power came into play, with the American people opposing his plan, and it never succeeded.

With the design of the constitution, and the carefully divided powers, with checks and balances, the only way things can go REALLY wrong is if the voting public stop paying attention.

Re:US-centric

[zoloto]

That's like arguing why heise.de doesn't cater more to people outside of Germany. Get a grip.

the problem is Google

[Hazel Bergeron]

Google, by trying to make money from old works through discriminatory deals with publishers and libraries, has attempted to monetise the public-domain and the nearly-public-domain on a massive scale. No longer is the path to public domain a path to moving ideas and their expression into the people's hands - it's now something that a sufficiently large corporation will try to wrestle control of for itself. The law thus has good reason to view old works as subject to all the usual competition and ownership rules as new works.

The people are as much to blame for their passivity, of course. We, through non-profits and libraries, should have been preparing to distribute old work on a massive scale - to make it clear that it belongs to the people and it is in our interests to hold onto it for our enjoyment. Instead, we lazily allow business to deal with it. We suffer the expected consequences.

Re:the problem is Google

[Hazel Bergeron]

Just because something can be, it doesn't mean it is.

You might as well say, "Humans? Murderers." Are you a murderer?

Re:the problem is Google

[Rogerborg]

Agreed, although I was going to say that Google suggests a solution: you don't ask permission, you just do it, and damn their eyes. Make "rights" holders bring the cases and show how much they've been "damaged".

Re:the problem is Google

[Hazel Bergeron]

Had Google acted philanthropically, providing free public access to the raw data as works are digitised, that would be fine. And it might still benefit financially out of having the sheer resources to provide some impressive hosting of the works for end users.

But it didn't. It played its usual "information for all - but more information for us than for you" game. Publishers groups etc saw it for what it was and we all lost out.

Re:the problem is Google

[Sique]

Had Google acted philanthropically, they couldn't have shown damage from being no longer allowed to do so. Copyright is about business, and to argue about copyright, you have to show a business case.

Re:the problem is Google

[AK Marc]

But they are, by definition, tax havens. There's no reason to be legally defined as a non-profit except for the tax benefits. In fact, every for-profit corporation that doesn't pay dividends is non-profit at that point in time, just not legally defined as such because they can, at any time and without any repercussions, start paying dividends.

Re:the problem is Google

[king neckbeard]

Exceptions to copyright are not inherently about business, and at least nominally, copyright is about enriching society. One of the four factors in fair use is nature of use, which favors non-profit purposes somewhat.

Re:the problem is Google

[pacinpm]

Copyright was introduced to fight competition. Read about history of copyright. It had nothing to do with "promoting" or "enriching society".

There were times without copyright and there were plenty of music and other arts.

Re:the problem is Google

[king neckbeard]

I'm not saying it worked, and it appears that it never has, but the way the modern incarnation (the previous incarnation being pretty much just about censorship to benefit the church and crown) was sold was on the premise that granting limited monopolies to authors would benefit society. In the case of the US, the clause in the constitution that allows copyright is limited to the purpose of 'promoting the progress.'

Re:the problem is Google

[wygit]

So let's block it because they *might* benefit financially. There's no benefit to the public in having all those wonderful but not-worth-reprinting books from the 60's, 70's, 80's digitized and made available for very cheap if not free.

I'd LOVE to get my hands on a copy of T.J. Bass ("The Godwhale") or some of Thomas Burnett Swann's mythology stories, or the REST of Leonard Wibberley's "Mouse" books for my reader.

But no, it's much better that they just disappear from memory, from anyone even knowing they exist, isn't it?

Re:the problem is Google

[organgtool]

What in holy hell are you talking about? Google provides a service that makes works in the public domain accessible to more people. How is this a problem? Google does not attempt to claim ownership of any of these works and anyone is free to set up their own service that does the same thing. Regarding your claim about Google making deals with publishers for old works, what do you expect? The law is on the side of the publishers and many of these works may never make it to the public domain if Disney keeps extending copyright law. This whole post makes no sense - how did it get modded insightful?

Re:the problem is Google

[fermion]

As summary states, the problem predates Google. The problem is that we have redefined who should benefit from intellectual property. At one time it was the inventor and the children, so the limit on ownership was essentially two generations. Now it is the legal entity that owns it, which will never be allowed to completely disappear, so the time limit on ownership is essentially forever when compared to a human life span.

The good news is it may not matter for creative work. Artists can choose to more freely distribute work and corporate artists are learning being too strict leads to irrelevancy. Look at the Beatles catalog and the decision to allow it on iTunes. Thought it would never happen, until we realize that not being on iTunes means not existing for large number of people. In academic world, PLoS is pushing journals to be more open. To the current point, students will learn to play what they can afford, and other music will be lost.

Everything is fungible. Marketing creates need for a certain product/brand combination, but real and opportunity costs can quickly kill that perceived need, as we have seen with most of the formerly great US brands. Kids expect to be able to play with products for free. Content that does not allow this is going to fail. Even WSJ has nearly free content for students.

Re:the problem is Google

[jedidiah]

The discriminatory deals were not Google's idea. The discriminatory deals were the REACTION OF THE PUBLISHERS to Google's attempts to make works more useful and more available including those for which the ownership of the works cannot be easily established.

Google certainly should not have a favored position. However, any favored position was merely a side effect of how middle men reacted to Google.

A more balanced law that acknowledges the problem of orphaned works in a meaningful way is sorely needed. Of course publishers want it both ways and want their stuff treated like real property without any of the down sides including adverse possession.

Re:the problem is Google

[Hazel Bergeron]

Google does not attempt to claim ownership of any of these works

Google is asserting that it offers the same access to materials (subject to duty of care) and their raw digitised forms that it has obtained for itself.
__ Yes
__ No

Re:You have the right to be smeared.

[GrumblyStuff]

Gotta have an enemy and there's one that isn't dangerous but can be portrayed as one. Keep the rabble arguing against themselves.

Re:You have the right to be smeared.

[Anonymous Coward]

The 1994 law was passed by a Democrat majority congress and signed by Clinton. Keep knocking back that dkos kool-aid, numpty.

Re:You have the right to be smeared.

[Panaflex]

Oh yeah, because when you think Entertainment Mogul - the first thing that comes to mind is a Republican? Are you on crack agin??

* Doug Morris, CEO Sony Music (Formerly CEO of Universal Music), Democrat: http://www.campaignmoney.com/political/contributions/douglas-morris.asp?cycle=08

* Lucian Grainge, CEO Universal Music (Owned by Vivendi), Foreign. Democrat PAC: http://www.opensecrets.org/usearch/index.php?q=Universal+Music&sa=Search&cx=010677907462955562473%3Anlldkv0jvam&cof=FORID%3A11

* Roger Faxon, CEO EMI (Under ownership of Citigroup), Foreign. No open records of contributions

* Lyor Cohen, CEO Warner Music, Democrat: http://www.campaignmoney.com/political/contributions/lyor-cohen.asp?cycle=08

(Foreigners can't make political contributions (at least not directly to campaigns), so I looked up PAC funding.)

Re:Ex Post Facto Law?

[burris]

The questions presented by the petitioners are whether the law violates the copyright clause and the first amendment. The prohibition on ex post facto is only mentioned in the petition in a footnote in reference to a reliance mentioned by the Gov't in Eldred's oral arguments. According to the opinion below, the legislation in question doesn't .

It also interferes with the specific reliance interests Solicitor General Olson referred to in Eldred, because each Petitioner here relied on the Public Domain status of the works they performed, adapted or distributed. See Golan H, 501 F.3d at 1193.4

4 The difference between extending the term of existing copyrights and resurrecting copyrights in works that were
already part of the Public Domain parallels the distinction this Court has drawn in other contexts. This Court has, for instance,
recognized the legislature may extend the statute of limitations for criminal offenses without violating the Ex Post Facto Clause of the Constitution, but cannot revive time-barred prosecutions once the statute of limitations has run. See Stogner v. Califor- nia, 539 U.S. 607, 617-18 (2003). One of the bases for this distinction is the reliance interest that vests upon the expiration of the limitations period. See id. at 631-32. This Court has recognized a similar distinction in regard to the expiration of civil limitations periods. See id. at 632 (citing Chase Securities Corp. v. Donaldson, 325 U.S. 304, 312, n.8 (1945); William Danzer & Co. v. Gulf & Ship Island R. Co., 268 U.S. 633, 637 (1925)). If there is an important reliance interest in avoiding prosecution for criminal acts (Stogner) or civil liability for the illegal sale of securities (Chase Securities), the public’s reliance interest in maintaining the right to lawful expression should be greater still.

Also, the legislation in question protects people who created a derivative prior to restoration from being locked out entirely, from the 10th circuit opinion:

Section 514 provides further protections for reliance parties who, prior to restoration, created a derivative work4 that was based on a restored work. Under Section 514, “a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation . . . .” Id. 104A(d)(3)(A). If the parties are unable to agree on reasonable compensation, a federal court will determine the amount of compensation. See id. 104A(d)(3)(B).

Seems to me that Congress anticipated this type of challenge.

Re:US-centric

[metacell]

I don't see a problem with articles about conditions in the USA, as long as they make clear they only pertain to US conditions. It only annoys me when someone assumes US conditions apply to the whole world, and I don't think articles (or summaries) here on Slashdot usually make that mistake.

I like to read a lot about US copyright law and foreign policy, because, like it or not, what they do affect things in my own country.

Re:You have the right to be smeared.

[hairyfeet]

I'm sorry, but I'm afraid you have your ass kissing all mixed up! you see it is the democrats that blow the big media cock while it is the republicans that blow the defense contractors and multinationals! See how that works, and notice how neither side works for you anymore? That is what happens when even a congressional seat in a flyover state can easily cost 40 million plus. But if you'll look at your history your big media "forever minus a single day" copyright fuckfest are nearly always hosted by the Ds, it is just the Rs don't really give a shit either way, unless you could convince them a copyright could be used for abortions or something.

As for TFA? Good luck pal! The SCOTUS has been bought and paid for for several years now, and I doubt they are gonna throw away all that delicious bribe money now. Hell did anybody even do a damned thing about Thomas cashing all those checks through his wife? Nope, so while i wish him all the luck in the world I personally think he has about as much of a chance as getting lemonade with extra ice in hell.

Meaning of "limited"

[Lonewolf666]

It seems that the Supreme Court took a very literal interpretation of what "limited" means in Eldred. As in "any quantifiable, less than infinite time". Another interpretation would be "limited to a time that makes it worthwhile to create something, but not more than that". Which would take the "limited" more seriously.

Personally, I'm in favor of the latter and I think it would work out to MUCH shorter times. Say, 30 years from date of publication for copyrights. In case of patents, I'm not sure the current system is beneficial at all.

Re:Meaning of "limited"

[TheRaven64]

There have been several studies on the optimal length of copyright for encouraging people to produce new works, and I'm not aware of any that have concluded more than 15 years - most put it closer to 7. One of the interesting things about shorter copyright terms (and the reason that they are unlikely to happen) is that it shifts the balance of power towards the creators and away from the publisher, since it means that publishers need to constant flow of new material to remain relevant. With 70 years copyrights, a publisher can continue milking a work for as long as it's popular. With a 7 year copyright, they have to sell as many as they can in a short time, because after 7 years anyone can publish their own version, and they have to keep buying the rights to new works or they will be unable to compete with the public domain.

Re:Meaning of "limited"

[Stormthirst]

Would this mean that there was more tat on the supermarket shelves?

Re:Meaning of "limited"

[Paul Fernhout]

Could you please supply links to any of these studies?

Re:Meaning of "limited"

[Blahah]

I went looking for them...

These guys think indefinite copyright would maximise social welfare:
1. Optimal Copyright Length for Media Content: A Gundam Approach - http://www.jlea.jp/06kougai03.pdf
2. Optimal copyright length and ex post investment: a Mickey Mouse approach - http://mpra.ub.uni-muenchen.de/1551/
3. The Economic Structure of Intellectual Copyright Law (Landes & Powney 2003): http://books.google.com/books/about/The_economic_structure_of_intellectual_p.html?id=X-KkvbT6F4UC

The only thing I could find (in Google Scholar) recommending short-lived copyright was this CED report, The Special Problem of Digital Intellectual Property (see conclusion #5) - http://www.ced.org/images/library/reports/digital_economy/report_dcc.pdf

I's like to see links to those '7 year' studies too.

Re:Meaning of "limited"

[rbrausse]

according to Rufus Pollock "around fifteen years", the footnote on page 3 points to Boldrin and Levine (2006) for the optimal length of 7 years.

Re:Meaning of "limited"

[Paul Fernhout]

Thanks for the research (too bad I can't read Japanese for the first link).

I believe the seven year claim; I just would like some more studies that backed it up. About twenty years was long enough in the age of the Pony Express; why should copyrights be longer now rather than shorter? And back then, the USA ignored foreign copyrights and patents, too.

Here is part of the bigger picture, which references research supposedly by the US Federal Reserve showing that performance is worse on tasks requiring creativity if you pay for performance:
    "RSA Animate - Drive: The surprising truth about what motivates us "
    http://www.youtube.com/watch?v=u6XAPnuFjJc

See also:
    "Punished by Rewards: The Trouble with Gold Stars, Incentive Plans, A's, Praise, and Other Bribes"
    http://www.alfiekohn.org/books/pbr.htm
   

Re:Meaning of "limited"

[Paul Fernhout]

Thanks. From that PDF file: "As Png (2006) notes, there is a lack of empirical work on copyright generally. Existing estimates of optimal term are very sparse. Boldrin and Levine (2005) calibrate a macro-oriented model and derive a figure of 7 years for optimal term in the United States. (Akerlof et al., 2002) in an examination of the US Copyright Term Extension Act argue, simply on the basis of the discount rate, that a term of life plus seventy years
must be too long. By contrast, Liebowitz and Margolis (2005), argue that the current US term of life plus
70 years might not be too long â" though they too do not provide an explicit model."

This is the reference at the end of the paper: "Michele Boldrin and David Levine. IP and market size. Levineâ(TM)s Working Paper Archive 618897000000000836, UCLA Department of Economics, July 2005."

Boldrin's site, with a link there to the PDF file:
    http://www.micheleboldrin.com/research/innovation.html
    http://www.micheleboldrin.com/Papers/scalenew.pdf
"Intellectual property (IP) protection involves a trade-off between the undesirability of monopoly and the desirable encouragement of creation and innovation. Optimal policy depends on the quantitative strength of these two forces. We give a quantitative assessment of IP policy. We focus particularly on the scale of the market, showing that as it increases, due either to growth, or to the expansion of trade throughmtreaties, IP protection should be reduced."

  I could wonder if something like that is mentioned in here, too?
    http://www.thepublicdomain.org/

There are mentions there about the high cost to future creativity of extensive copyrights, because pretty much everything people create builds on previous works.

See also my other note in this thread referencing the biggest flaw in all this economic reasoning, that science shows creativity diminishes if work is done for gain
    "RSA Animate - Drive: The surprising truth about what motivates us"
    http://www.youtube.com/watch?v=u6XAPnuFjJc
   

Re:Meaning of "limited"

[coats]

NO

As a mathematician I claim to be professionally expert in the meaning of the word "limited". Working with limits is my profession.

In my nonhumble amd expert opinion, the Eldred decision took as fanciful a definition of "limited" as Bill Clinton did with his "It all depends upon what the meaning of 'is' is.".

Frankly, in Eldred the Supreme Court broke the Law of the Land.

Re:Meaning of "limited"

[budgenator]

The problem is really getting bad in Music, there are only so many permutations of tones and rhythms that are pleasant, sooner or later there will be no more music, everything usable will be copyrighted already.

Re:Meaning of "limited"

[shutdown -p now]

Personally, I advocate unbounded copyright terms, but with only by explicit period extension with a fee payable past the initial short period (1-2 years, say), with said fee increasing over time for any given work. If a work is not timely extended or the fee is not paid, it falls into public domain.

Thus, the creator can only retain copyright for as long as he can increasingly monetize it (meaning that there is demand for it); after its popularity peaks, it will eventually become economically unfeasible to maintain copyright on it. It is also "fair" in a sense that it means that work falls into PD, allowing creation and commercialization of derived works, only after the author himself cashed on the original idea to its full extent as determined by the market.

Re:You have the right to be smeared.

[AK Marc]

Copyright industry (newspapers, TV stations, even movie studios) are owned by Republicans more than Democrats. The actors may be more visible and more liberal, but don't ever get confused that the industry is Republican as much or more than Democratic.

Re:Ex Post Facto Law?

[NekSnappa]

a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation . . .

Whoa, wait, what? Is it just because I haven't had any coffee yet? Or does that say that someone who created a work based on something that was public domain when it was created, would have to start paying the new rights holder after copyright is restored?

That seems to fly in the face of Ex-post Facto to me, rather than display how it doesn't interfere with it.
Sigh...

Re:The law does not make anything expensive...

[king neckbeard]

Being priced out of range doesn't necessarily mean idiocy. What matters to publishers is the money they make, not how many copies they sell. If they sell 1/5 as many copies as 10 times the price, they have doubled their profit relative to reasonable pricing.

Lawrence Lessig

[brokeninside]

Yeah, it's not like Lessig ever clerked for high profile appellate judges like Richard Posner or supreme court justices like Scalia.

He doesn't really have any practical experience with the higher courts and how judges make up their mind.

Re:You have the right to be smeared.

[Moryath]

Well, "Republican" is less accurate than "corporatist", but given that Republicans are the party of tax cuts for billionaires and a fuck-the-poor, fuck-the-needy mentality, you are more or less correct anyways.

Re:You have the right to be smeared.

[Internetuser1248]

'I think the puppet on the right shares my beliefs.' 'I think the puppet on the left is more to my liking.'

Like it has anything to do with republicans vs democrats. This is why your country is in such a shambles, the pretense that there is a left and right wing of in US politics and the incessant arguing over who is ruining the country. THEY BOTH ARE. This current debate is about media corporations, of course they will give money to whoever can help them make more money. Of course they don't care what label their puppets campaign under. By arguing about this you are causing the problem. STOP IT.

Re:Text of the Doomsday book is still copyrighted

[rossdee]

Its the Domesday book, (the spelling was different back then I guess)

Re:You have the right to be smeared.

[AK Marc]

What does level of giving have to do with it? Perhaps they know the Republicans are pro-business and will support their position even if they don't fund them, so they instead funnel their bribes to Democrats?

Fox News (well, the parent company anyway) gave much more to Democrats than Republicans. Are you going to tell me that it proves that Rupert Murdoch is a liberal running the liberal Fox News? When even the most conservative ones give more to Democrats, you have to wonder what else is going on. Oh wait, the truth isn't what you are interested in. Instead you just like to insult people and quote meaningless statistics that are demonstrably the opposite of what you assert.

Re:You have the right to be smeared.

[tverbeek]

Don't confuse the Talent side of the news/entertainment industry with the Business side. It's the Business side that which is ultimately in charge of that industry, and they are in bed with the Republican party. You'll find a similar dichotomy in many industries, where labor leans Democrat and management leans hard toward Republican.

Good luck with that

[Legion303]

"The Supreme Court is expected to decide the case during the term that begins in October."

This conductor is about to see fees double and copyright extensions triple, I suspect.

Re:You have the right to be smeared.

[cromar]

+1 Insightful

RIAA Press Release

[Sentrion]

The RIAA has now commented on the case, again repeating their stance on copyright issues: "All your culture are belong to us."

Re:the answer was done to perfection before

[hey!]

Weird. I posted that article and nine years laster people are still linking to it.

Better idea

[operagost]

Return copyright back to the more reasonable terms of the 18th or 19th century. Then many older works will be in the public domain, and thus readily accessible for little cost. The absurdly long copyright terms are the problem; these workarounds are band-aids.

Re:You have the right to be smeared.

[SirAstral]

Yea but the general democrat says to fuck everyone, so long as everyone if getting fucked equally.

If you are for either of the party's you are a pawn and a sheep. And your arguments being against only one when both share equal shame reveal that you are not a part of the solution, you are a part of the problem.

Re:In Lawrence Lessig's words

[b4dc0d3r]

Here follows my clear mistake. Like a professor correcting a student, I answered,

        Justice, we are not making an empirical claim at all. Nothing in our copyright clause claim hangs upon the empirical assertion about impeding progress. Our only argument is, this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws.

That was a correct answer, but it wasn't the right answer. The right answer was to say that there was an obvious and profound harm. Any number of briefs had been written about it. Kennedy wanted to hear it. And here was where Don Ayer's advice should have mattered. This was a softball; my answer was a swing and a miss.

http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp

Re:You have the right to be smeared.

[budgenator]

That was my first thought too, Dems are as bad with Entertainment Big-Business as the repubs are with Banking Big-Business, so I check wikipedia fully expecting Sonny Bono to be a Democrat but I was surprised to learn that Bono was not only a Republican, but that he wanted the copyright term to be perpetual, then I saw he was a scientologist, who have been known for signing 1 billion year contracts. He couldn't have L-Ron's work falling out of protection now could he?

Who votes how?

[coats]

However, liberals are often anti-copyright, so they may surprise me.

Interestingly enough, the two Justices who got the Eldred decision right were Breyer on the left and Thomas on the right...

Re:tax

[metacell]

It's very short-sighted to think that way - if the government needs more tax money, it's better to just increase the income tax by a fraction of a percent, and not ruin a part of the economy along the way.

The entertainment industry is very small in terms of its share of the GNP - the industry is only important because free culture and free speech have significant indirect effects on a nation.

What was the 1994 law?

[serutan]

The article mentions a 1994 law that removed works from the public domain, but doesn't name the law. I've been searching online but can find nothing about a copyright law change in the U.S. in 1994. How is this not a well-known thing? I would like to read about it and what was the rationale behind it. Retroactively removing material from the public domain, as was done en masse in the Bono Act, strikes me as the most sinister type of copyright legislation.

Re:Ex Post Facto Law?

[burris]

As someone pointed out in another thread, it would only be an ex post facto law if it criminalized use during the period that the work was in the public domain, prior to the law coming into effect.

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[naisi]

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Re:US-centric

[metacell]

I just said I'm NOT complaining...

Re:US-centric

[tehcyder]

Then don't browse a US centric site you dumb cunt. I swear, you eurofaggots will complain about anything if you can pin it on the US.

There's a difference between being US-centric and refusing to acknwledge the existence of anything non-US in the world.