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Eldred Transcript, Bookmobile Experience
Posted by
michael
on Sat Oct 19, 2002 01:00 PM
from the horse's-mouth dept.
from the horse's-mouth dept.
Patrick writes "The transcript of the oral arguments in Eldred v. Ashcroft is now online." Such exciting lines as: "CHIEF JUSTICE REHNQUIST: Well, but you want more than that. You want the right to copy verbatim other people's books, don't you?". See previous stories about the oral arguments and Lessig's thoughts on them. chromatic writes "The O'Reilly Network has just published Richard Koman's Lessons from the Internet Bookmobile about his travels with Brewster Kahle to Eldred v. Ashcroft. I particularly like how he describes the universal positive reception."
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Locking up official records (Score:5, Interesting)
Re:Locking up official records (Score:3, Interesting)
Re:Locking up official records (Score:3, Informative)
Re:Locking up official records (Score:5, Informative)
Moreover, Alderson gets a short period of exclusivity before the transcripts are posted to the supreme court website. Before this, a copy is deposited in the Supreme Court Library, but readers are not allowed to copy the document. You can purchase transcripts for ~$150 ($2.85/page?), but Alderson demands permission for all excerpting. ("Permission routinely granted for short excerpts.")
I think that the copies extant are probably derived from the appellants copy. I'm not sure whether Alderson plans to sue...
The Audio recording will not be available until late 2003.
Parent
Re:Locking up official records (Score:3, Interesting)
On the other hand, they only get copyright on the transcript they took, not on other transcripts from other (or, possibly, the same) recording. The situation is similar to making maps, where the mapmaker gets copyright on the map but no rights to other maps of the same location made by other people who survey the location (rather than looking at the map).
Different transcripts of the same argument could be distinguished by the decisions made by the transcribers, which are unlikely to be exactly the same, with respect to punctuation, the overlapping of speach, exactly what was said (e.g., about a third of the way though, the transcript has someone say "you" when "your" must be what was intended; a different transcript would probably have "your" instead), and so forth.
Making a work in the public domain accessible to a larger audience due to a process involving effort and some creativity (or intelligence, which is essentially the same thing) is, in fact, a perfectly good way of getting copyright over your work (although not, of course, the original or similar works by other people), as it does "promote the useful arts and sciences", such as all of us who weren't there discussing the case.
Re:Locking up official records (Score:4, Insightful)
For something to be copyrightable, it has to be original; and for you to copyright it, you have to either be the creator or have a contract with the creator saying you own the copyright. Neither exists in this case.
Since these words were spoken at a public trial, they are all public domain.
Putting public domain words into a new format does not suddenly make them copyrightable, nor mean that you own the copyright to it. That's absurd. It would be like me taking a Michael Crichton book and reformatting it, then claiming some kind of copyright over it. Absolute non-sense.
Parent
Re:Locking up official records (Score:4, Informative)
IANAL, but WestLaw does exactly that, and there have been court cases supporting them.
Parent
Re:Locking up official records (Score:3, Interesting)
The law doesn't really agree with you. I think the cases were mostly decided on phone book suits. The information is not copyrighted, but any unique formatting that is innovative and creative can be. So you could copy the phone numbers and the names and addresses into your own "Yellow Book" but you couldn't Xerox it with new ads taped over the old ones and give it away because they might have just the right number of tabs and just the right font to make it better than anything you could produce by just copying the uncopyrightable information.
So you can retype those transcripts and sell those but someone prolly signed a contract saying they wouldn't do that for at least X number of months, so they could be in trouble for letting you see a copy without agreeing not to copy it.
Important To Note: (Score:3, Informative)
"Thanks to some friends, I've been able to get a copy of the Eldred case transcript. I've cleaned it up, added the names of the justices where possible (searching my memory, the responses in the text, and press reports) and HTMLized it."
That is a quote from the site it's posted on Here [aaronsw.com]
Re:Important To Note: (Score:4, Informative)
Parent
Copyright past author's death? (Score:5, Insightful)
Re:Copyright past author's death? (Score:5, Insightful)
No, but she does inherit the window washing business, including any inventory or tools, receivables, contracts, etc.
Property can be inherited. Intellectual property can be inherited as well. If you consider copyright a type of lease from the public, then why should not the widow inherit the remainder of the lease?
Parent
Re:Copyright past author's death? (Score:4, Insightful)
Why is the monopoly granted? To promote the progress of science and useful arts. No promotion of science and useful arts would seem to result from a person who didn't create any progress in the first place controlling a copyright on someone else's work.
Thus, I don't see how the extension of copyright after its holder's death as belonging to the original intent of the distribution monopoly.
Parent
Berne Convention (Score:3, Interesting)
For instance, I think 25 years with no extensions for a copyright is reasonable.
Reasonable, but also against the terms of the Berne Convention. Breaking the Berne treaty could get U.S. copyrights de-recognized all over the world.
Not that I agree with the details of the Berne Convention or anything...
Re:Copyright past author's death? (Score:4, Insightful)
Actually, the term "intellectual property" is a legal fiction made up in the mid-1800's in order to lend credence to the ludicrous notion that anyone can actually own an idea. They are not both called property because they have anything in common, the later was named property in order to give it the same attribute of "ownability" as the former. An idea, method, or string of words have nothing in common with a real, physical piece of property. Well, they do now, but only because of the aforementioned legal fiction.
Parent
Re:Copyright past author's death? (Score:5, Insightful)
Excellent point, I don't understand how this got started either. if you read what the constitution says [cornell.edu], "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;", no where in that passage does it mention the authors' and inventors' heirs. It seems pretty clear to me that any copyright law that sets the duration beyond a "limited time" within the author's lifetime should be unconstitutional. But that's just my interpretation.
Parent
Re:Copyright past author's death? (Score:4, Insightful)
Parent
Re:Copyright past author's death? (Score:5, Insightful)
The limited time monopoly granted by copyrights and patents is an inducement to the author/inventor to not keep the material secret.
The most creative people don't create because someone's dangling money in front of their noses. They create because they MUST, it's built-in drive. The money's there to give them more time to create, and to release those creations.
Show me something created purely for money, something that has none of that inbuilt *drive* behind it, and I'll show you most of modern American TV.
Parent
Re:Copyright past author's death? (Score:4, Informative)
Now, I know what you are thinking... why not create it for "the benefit of society"
Parent
Re:Copyright past author's death? (Score:5, Insightful)
Parent
Re:Copyright past author's death? (Score:3, Informative)
Re:Copyright past author's death? (Score:5, Insightful)
When we start getting close to the time that the rat will go into the public domain, Disney will then fill the coffers of whoever happens to have lied their way into Congress, and *bamf* it'll be 90 or even 100 years.
What Lessig is arguing for is to put an end to these perpetual term extensions... for how can something ever go into the public domain if you can just pay Congress to keep extending the terms?
Parent
Re:Copyright past author's death? (Score:3, Interesting)
I don't understand the belief that copyright should be extended past the creater's death.
This will sound extremist, but let's remember just how amoral some corporations are in their pursuit of profits. "It doesn't happen here," but our corporations do participate in flagrant human rights violations overseas.
Disclaimers aside, I think it reasonable that copyright extend either a fixed amount of time independent of the creator's death, or a fixed amount of time past his death, so that freeing a copyright would never be a motive for murder. Yes, it really does sound alarmist, but there you have it.
I personally would love to see us go back to a 28 year copyright (or, perhaps, a 14 year copyright, the first one automatic without registration, but then renewable for one or two more 14-year terms for a nominal registration fee). That would still allow creators ample time to get recompence for their work, but would also clearly be "limited". (Right now, even if Eldred v. Ashcroft wins, copyright terms are not "limited" on the timescale relevant to most of us, i.e. an adult human's life span.)
-Rob
Re:Copyright past author's death? (Score:5, Insightful)
I get a benefit right now from the copyright on my works that last longer than my life: I can sell those rights, and buy myself lunch. Income for the survivors is a red herring. In one of the first attempts to extend copyright, many people pointed to the example of Dante's granddaughter. Due to a number of misfortunes, she was destitute. Shouldn't we extend copyright, so that this sort of travesty can never happen again?
Of course, Dante's works, at that time, were covered by a perpetual copyright. This just didn't help his granddaughter because he had sold those rights to a publisher. Copyrights that last longer than Dante's life helped Dante, not his heirs.
The reason that it's so disappointing when people ask this question is that it shows they aren't thinking nearly hard enough about the problem. Because there's still a hole in my argument, but if you haven't gotten that far, you'll never see it: The value of the 70th year of income from my copyright is worth almost nothing today. Sure, someone might pay a million dollars for rights to a Tom Clancy novel 70 years from now. But Tom Clancy could get that million dollars by investing $20,000 in treasury bonds. That's a tiny fraction of the current value of the copyright. That indicates to me that Clancy does not create anything in order to get those royalties.
Parent
Re:Copyright past author's death? (Score:4, Interesting)
Good point. Things like this seem to show that copyrights should be granted for a fixed period of years, and not depend on that author's lifespan.
Parent
Funny story about Jack Valenti (Score:5, Interesting)
The guards told us to wait...in case there were openings, so the other 25 people waited in line. I had made friends with a few law students over the previous 4 hours...who were all in the same boat with me. About 9:40am, we were looking down the steps to the Supreme Court, and up hurriedly walks this stalky gentleman, with snuggly fitting pin striped suit, grey hair...just a little too long, slicked back. As he approached the front of the line...he sideglances the group of law students that I'm standing in line with but quickly looks away. He walks right up in front of us to the two guards and announces, with authority "I'm Jack Valenti (pause). I'm on Scalias list."
Wow...did we all really here that right? Yes we did. We laughed our tired laughs, joking that we thought Scalia was "on our side"...and silently wishing that we had snuck in behind this Man, famous in our small circle for his accurate prophetic visions.
Re:Funny story about Jack Valenti (Score:3, Interesting)
Already unlimited (Score:4, Funny)
Not to karma whore or anything... (Score:3, Insightful)
I do have to say this case has really made me see the truth behind the "kill all the lawers" jokes-- that most people don't want to live in a world of such detailed and precise thought. I, for one, will take the lawers and all the evils that go with them if it will get me away from the sloppiness of thought and/or expression that produced the DMCA and is pushing for Digital User Restriction Management in all our computers.
Wow, good show! [IANAL] (Score:4, Interesting)
That this is being challenged is a good thing. Like the justices said, nobody has ever challenged the extension of a copyright grant for any purpose. With the late Mr. Bono's bill going in for challenge, though, it tells me that people are thinking.
Or are they? That copyright grants even exist beyond the demise of an author is very likely a good thing. That somebody passes on should not necessarily cause an item to go public - for those who placed the meme into the culture there should be sort of a marker for them, even if it is controlled by their estate.
Remember, too, a copyright grant is not there solely for making money, or who "owns" the item, it only states who has the right to copy the item. That's it. You can copyright an item and give the world permission to copy it, you can copyright an item and state that only Simon and Schuster have the right to copy it, you can even grant sole copyright to your spouse! What any of those parties do with it is their business, they have the right to copy the item because they have copyright. Remember, on the forms that LOC provides, there is a primary author space and additional spaces for who may copy.
This is not to say however that it cannot be abused. I beileve Justin Timberlake of a particular boyband (N'Sync? BSB? What's the difference?) stated that he has yet to receive a royalty check. If he wrote the songs, that could be a problem, but last I checked royalties were outside of the scope of copyright per se - that's what contracts are for. (Correct me if I'm wrong, please.)
I would suggest letting the extension stand. If I copyright something, I'd like my family to have something to remember me by, as arrogant as it may sound. But perhaps a compromise - the estate must apply for the extension. Let it be granted like penny candy (IE, "Why would you like the extension?" "Why not?" "OK, here you go."), but you should have to get off of your duff and do something about it.
Identifying with the aggressor (Score:4, Insightful)
The core of the problem is that you are being invited to view copyright through the copyright-holder's eyes. The Framers didn't do that - they view themselves, correctly, as members of the public. And as representatives of the public, they wanted to offer potentially creative people an enticement, to coax their writings and inventions out of their heads and into the public domain. But between those two states (nonexistence, and complete ownership by the public) a temporary state of 'controlled copying' is allowed as an enticement. Not for the benefit of the creator, but for the benefit of the public.
Even if you write and publish a book every month, you're probably more affected by copyright as a member of the public than as an author. I know several authors. Most are unpublished. Those that are published get small advances which will probably never be earned back.
Imagine that we are a couple of peasants leaning on our hoes in a despotic society. The aging dictator is preparing to turn the country over to his son. I say, "Instead of getting a young dictator I wish we could have elections and a representative government." You say, "Just as my hoe is my only possession and I plan to leave it my son, the country belongs to the dictator, and he will leave it to his son. I wouldn't want to lose the right to give my son the means of supporting himself."
What's wrong with your argument? You've been tricked into identifying with someone who is in such a different position that the key issues are his wealth and power, rather than any theoretical alignment between you and him.
Likewise, copyright extension is driven by the entertainment industry. The idea of "authors" or "creators" is simply a respectable mask for a corporate power grab. But authors and potential authors are sometimes gullible enough to lend their support to such a grab.
Parent
Favorite Excerpts, Justice Predictions (Score:5, Interesting)
Scalia: 90% likelihood for ELDRED.
Explaination: Lessig was his clerk (there, I said it) and the following transcript quote shows the direction of his thoughs.
JUSTICE SCALIA: General Olson, you say that the functional equivalent of an unlimited time would be a violation, but that's precisely the argument that's being made by petitioners here, that a limited time which is extendable is the functionable, functional equivalent of an unlimited time, a limited time that 10 years from now can be extended, and then extended again, and extended again. Why -- their argument is precisely that, a limited time doesn't mean anything unless it means, once you have established the limit for works that have been created under that limit, that's the end.
STEVENS: 85% likelihood for ELDRED
Explaination: He seems to look at the "progress of science and arts" point of view. He views copyright as a quid-pro-quo between the public and the author. This dialogue seems very telling of his approach:
JUSTICE STEVENS: How did the example we just talked about, a patentee giving an extra 10 years on his -- how does that promote the progress of science?
GENERAL OLSON: Well, it may provide additional incentives for the patentee to exploit and promote and disseminate that particular work. With respect to creative works like works of art, books and that sort of thing, it may provide many ways --
JUSTICE STEVENS: I'm just concentrating on our patentee, and I'm wondering how that fits into the notion that there was a bargain in effect between the inventor and the Government that at a certain period of time it would become part of the public domain. It seems to me it's inconsistent with that.
O'Connor -- 80% likelihood for ELDRED.
Explaination: (to Lessig) "... this flies directly in the face of what the Framers had in mind, absolutely. But does it violate the Constitution?"
(to Olsen)
JUSTICE O'CONNOR: But it is hard to understand how, if the overall purpose of the Copyright Clause is to encourage creative work, how some retroactive extension could possibly do that. I -- one wonders what was in the minds of the Congress, even if somehow they didn't violate the clause. But if we affirm here, is there any limiting principle out there that would ever kick in?
She willl do exactly as Lessig urged her to do: adopt the simple principles articulated by Scalia above to give the founders intent life in their words.
She and Stevens were part of the majority in the Betamax case, so she'll feel very comfortable building common ground between him and Scalia.
BREYER 75% likelihood for ELDRED
JUSTICE BREYER: He looked at it as an economic argument and saw a big disconnect to the Constitutional purpose
"... in practical, economic terms I gather the difference between a copyright that lasts for 100 years, lasts for 1,000 years, lasts forever, is probably something less than
KENNEDY 60% Likelihood for ELDRED
He was somewhat hard to read, but I think he got the distinction between prospective and retrospective extension, and he seemed closely aligned with O'Connor in that he saw the law as a giveaway to favored special interests. He'll struggle somewhat with the foundation for Judicial Review, but he'll look to his right and see Scalia giving a convincing argument and he'll look to his left and see Stevens give a different convincing argument and he'll try to find a middle-ground of agreement.
I also thought it was a good sign that he seemed to be "helping out" Lessig by articulating a simple way they could distinguish 1976 from 1998. The dialogue below was also rather encouraging.
JUSTICE KENNEDY: In Victorian England you could buy a box seat for 900 years. There was serene complacency about their culture, and God bless them, but --
(Laughter.)
JUSTICE KENNEDY: I really think this is an important question and, as Justice O'Connor points out, if we have to ask what's the most plausible explanation for this rule, to reward existing vested interest or to stimulate new works, it seems to me that it's probably the former.
THOMAS: 75% Likelihood for ELDRED
He and Scalia almost always think alike. Thomas, more than any Justice thinks Congressional power must be limited. The only chance to lose him is if he and Rehnquist go off on the "Your client just wants to copy the work of others verbatim" line.
REHNQUIST: 50% Likelihood for ELDRED
Based on his questioning, he was not very sympathetic to letting Eldred just copy works verbatim. I'm not sure he really gets this case. Hopefully Scalia will convince him that it's about giving meaning to the textual limit on Congressional power and not about wanting to copy other peoples stuff. He's big on Constitutional limits, having authored the famous Lopez decision.
Rehnquist dissented in the Betamax case, so I definitely think he is losable here. His "you just want to copy verbatim" comment really troubled me, but he did participate in the three-on-one drubbing of Olsen that ended with Scalia's "functional equivalent" to unlimited times point.
SOUTER: 25% Likelihood for Eldred
Souter didn't seem to reveal very much, although at one point he seemed to be helping Olson articulate a nexus between retroactive extension and progress. That makes me nervous:
JUSTICE SOUTER: Okay, and is your argument that we should so find and hold against their retrospective argument, because there is some, at least plausible basis to say that there can be a causal connection between the retrospective extension and some benefit that can be traced to those particular works through the retrospective extension, like dissemination? Is that your argument?
The only possibly saving grace is that Souter later was trouble by the fact that he could extend this argument all the way to reclaiming old works from the public domain. He wanted a bright line rule, Olson was ready to give him one, but I think Souter was troubled by it a bit. The only way we get him is if Stevens and Breyer pull him in.
GINSBURG 15% Likelihood for ELDRED
I was most surprised by her. I thought she would be the classic liberal looking out for the public interest (the role Stevens seemed ready to actually fill). Instead she seemed like Miss "Necessary and Proper", meaning she was happy to let Congress do what they thought best.
She and Rehnquist seemed least able to grasp the import of the difference between retroactive and prospective extensions. She seemed not to see how she could strike backwards changes down but let forward changes stand.
I think it is a very good sign that Stevens and Scalia seem ready to go for Eldred. In my opinion, they are the two clearest thinkers on the court generally. Thomas will go along naturally with Scalia. Breyer seems like he's solidly on the Eldred side.
If I'm right, we need one more vote. Kennedy, O'Connor or Rehnquist could each provide it. Kennedy and O'Connor seemed ready to go. Rehnquist needs a little work. I'll take a risk and say that he'll join the majority once he sees it will tilt for Eldred, mainly so he can decide who writes the opinion.
My prediction: 7-2 for Eldred, Scalia or O'Connor writes for the court. Stevens adds a concurrance that Breyer joins. Souter agrees in part and dissents in larger part and Ginsburg dissents outright.
In the alternative, it will be 6-3 losing Rehnquist. In this case Stevens will definitely take the opinion (he has seniority I think and would decide to give it to himself). His opinion is probably the one I'd most like to see be the opinion of the Court.
A Scalia opinion in this case would be narrow but he would make it so obvious that this is illegal that people might wonder how it was ever an issue.
The way we lose is if we lose O'Connor and Kennedy. The only hope to get Rehnquist is to get one of them. It might fall apart and be 4-5 against us if O'Connor and Kennedy start listening to Souter about ways to promote progress with retro-active extensions. I'm just rather skeptical of that, but it *could* happen.
Anyway, enough with my thumb in the air.
Re:Favorite Excerpts, Justice Predictions (Score:4, Interesting)
Parent
Rehnquist-Kennedy-Scalia Beating on Olsen (Score:5, Insightful)
CHIEF JUSTICE REHNQUIST: Well, if Congress says we're going to grant this
copyright indefinitely, forever --
GENERAL OLSON: That would seem --
CHIEF JUSTICE REHNQUIST: -- that violates the limited term, does it not?
GENERAL OLSON: I acknowledge that. And anything that --
JUSTICE KENNEDY: In Victorian England you could buy a box seat for 900 years.
There was serene complacency about their culture, and God bless them, but --
(Laughter.)
JUSTICE KENNEDY: -- I really think this is an important question and, as
Justice O'Connor points out, if we have to ask what's the most plausible
explanation for this rule, to reward existing vested interest or to stimulate
new works, it seems to me that it's probably the former.
GENERAL OLSON: Well --
JUSTICE KENNEDY: I mean, we know that.
GENERAL OLSON: It is -- well, it -- let me say with respond -- in response to
both of those questions, an unlimited time would violate the Copyright Clause.
Something that was the functional equivalent of an unlimited time would violate
the Copyright Clause, but the Framers specifically did not put in numbers. They
had the opportunity to do that. Thomas Jefferson suggested that a number should
be put in. We submit that it would be -- even -- since the petitioners don't
suggest that it's an appropriate function of this Court, certainly in this
case, to pick a number, 133 years or something [*33] of that nature, but it is
quite clear that Congress from the Statute of Anne, 1710, we have 300 years of
history, of Congress thinking that it continues to benefit the process, not
just of the productivity, of the creation of the work itself, but the
dissemination of it to provide --
JUSTICE SCALIA: General Olson, you say that the functional equivalent of an
unlimited time would be a violation, but that's precisely the argument that's
being made by petitioners here, that a limited time which is extendable is the
functionable, functional equivalent of an unlimited time, a limited time that
10 years from now can be extended, and then extended again, and extended again.
Why -- their argument is precisely that, a limited time doesn't mean anything
unless it means, once you have established the limit for works that have been
created under that limit, that's the end.
The Right to Copy (Score:4, Insightful)
Alot of people don't understand that people have rights that exist oustide of government, and even more fail to understand that the right to copy is one of those.
Rights are not something defined by nations, great people, popular concent, or special agreement. They are defined by aspects of nature, aspects of existence. For example, I have the right to freedom of religion even if most the people I live with, the nation I'm in, and powerfull and prestigious leaders disagree. I have that right even if I don't want to have it.
Copying is one of those rights, not plaguerisim, not taking others people "real" property, not controlling other peoples speech, and not market share of information distribution. It is a natural and inherent thing people do from the day they're born incentive or not.
Re:The Right to Copy (Score:3, Informative)
For the most part, US laws don't recognize authors' moral rights, sticking purely to the economic aspects of copying.
For a really superb primer on authors' moral rights, see this Moral Rights Primer [harvard.edu].
I would take issue with your assertion that the right to copy information at will is an inalienable "human right". I might agree that the free pursuit of learning and knowledge could be an innate right, but the "free" in that formulation is "free as in freedom," not "free as in beer." Any formulation that makes it my innate, inalienable, human right to download Red Dragon MPEGs from Gnutella is probably more than a little skewed.
You reading this transcript violates copyright (Score:3, Informative)
Life + 70 is bullshit (Score:4, Interesting)
Another problem is the undetermined time of when a copyright expires. "Life" could mean 1 year, 10 years, 50 years, or 100 years, depending on how old the creator is when (s)he copyrighted his/her work, and on how healthy (s)he is. Copyrights should be a fixed time period. If they expire before the author dies or after (s)he dies, too bad.
These increases in copyright length have not increased productivity and creativity. No artist decides whether or not to create something depending on if (s)he will still own the copyright in 10, 20, 30, 50, or 100 years from now. 10 years would be plenty of time for creators to make significant profit on their creations... Almost all software is a complete non-factor 5 years after creation (how many still buy Windows 95? or Windows 98?...what about Descent 2 ('98)?). Almost all movies are a complete non-factor in terms of profit 20 years after their creation...Jaws, one of the best thrillers of all time, isn't a significant profit factor anymore...it wasn't a factor in 1990 either. Most music is a complete non-factor (again, in terms of profit) 10 years after its creation. How many people still buy stuff by Morris Day And The Time? What about Paula Abdul?
10 years is plenty of time for any work to make a profit; if something's going to make a profit, 99.9% of that profit is going to be made in the first 10 years. The only people who have something to worry about are people like Disney who have an interest in maintaining ownership over some stupid fucking cartoon character. For the few lazy companies or authors that are still resting on the fruits of one creation 10 years ago, I say to damn bad.
My scheme provides plenty of incentive to both young authors and old one's alike. Old author's will still get 10 years of protection; if they die, then the remainder of that term is set out to their family in their will.
If anything, my scheme provides MORE incentive for authors to create. An author can't just rest on his or her previous accomplishments, as they will only make him or her money for 10 years. Thus, my system provides incentive for authors to create new works more continuously.
The other benefit of my system is that works transfer to the public domain relatively quickly. This allows new authors to make use of the works of old authors, adding additional innovations to them, without having to worry about copyright problems. This allows for more circular innovation; that is, innovation which builds atop of previous innovation.
As one additional note, hopefully, the Supreme Court will rule retroactive copyright extensions unconstitutional, thus preventing this perpetual copyright extension. Hopefully, they will also rule excessively long (i.e., life + yy) copyright terms unconstitutional, as they are effectively indefinate and not limited.
Aside from duration, the other thing which needs changing in our copyright system is the scope of copyrights. The scope of copyrights has been blown way out of due proportion (refer to discussion by Lessig in The Future of Ideas). Now-a-days, if you make a movie and have a Nike symbol in the background in a scene, you have to clear that with Nike. What bullshit. There are other areas where the scope of copyrights is blatantly unjustified, and should be radically scaled back.
Of course, the real problem is the bribery and soft-money under-handed deals going on between the RIAA/MPAA and the Congress/Senate. The RIAA and MPAA basically pay to have the laws they want.
Lawmem Poll on Eldred Outcome (Score:3, Informative)
Olsen's strategy: The Big Business Defense (Score:3, Insightful)
The justices repeatedly hammered home the point that retroactive copyright extensions do not aid in the "creation of creative works" because works from, say, 30 years ago that benefit from an extension have already been created, so the law does not incent the old author if his copyright has been retroactively extended. (in fact, just the opposite... the old author is allowed to rest on his laurels given that he has another 30 years of royalties coming in, rather than write something new)
Olsen replies that the beneficiaries are the publishers and movie-distributors who gain and incentive to make more money from publishing given the retroactive extension... he's arguing that large businesses (not individual creators/inventors) are the ones who will benefit by congress's granting of monopoly power by retroactively extending copyrights.
What I don't understand is why noone made the argument that releasing works into the public domain will _encourage_ dissemination of works that were formerly copyrighted, because there will no longer be an hurdles to dissemination. The technology argument is a strong one-- that by applying copyright extensions retroactively, we _prevent_ the wide dissemination of information in an age where anyone can publish cheaply. We no longer need to provide extensions for large publishers because anyone can publish public domain works cheaply.
impressions (Score:3, Funny)
The frankness of these comments was great.
The Plain Truth (Score:4, Insightful)
As much as I don't want to accept that Mickey Mouse should enter the public domain, I can't help but notice that The Little Mermaid [ucsb.edu] has a bit more to her than shellfish and a talking crab sidekick.
In my mind, the bottom line is that every dollar Disney has ever made mining the public domain is concrete proof that there's value to having one. One could make the argument that a creation as actively maintained as Mickey Mouse should be granted a special exemption -- and I might even buy that, based on the idea that there's no sense dragging 20th century creative works into obscurity (and make no mistake, that's where they'll go!) so that one work might keep its trademarkability.
But I don't think it's possible to argue the public domain is useless. If it was, Disney Wouldn't Keep Using It.
Pop Art didn't begin with Warhol.
Yours Truly,
Dan Kaminsky
DoxPara Research
http://www.doxpara.com
From Russia with laws (Score:4, Insightful)
Frankly, there is something funny with Russian Constitution. The first one was created in 1918. It was a little clumsy and had several gaps but it was an historical difference between Imperial Russia and the new Russian state. Then came Soviet Union, its more reworked Constitution and finally the Stalin Constitution of 1936. It is a paradox but sincerly a fact - Stalin made the most perfect and complete Constitution of his time. Besides this corp of Law was so well elaborated that, for many years, it was taken as an example of how constitutions should be done.
However we all know Stalin as one of the biggest tyrants of History. Why? Because under the Constitution there were no laws supporting it. Stalin's Constitution was factually void because there was not a mechanism to check laws against it. The situation was so silly that, when Brezhnev changed the constitution, it did it by violating the old constitution and creating some piece of crap that some called American Constitution of the USSR (no offense people, but your Constitution is not useful for no one but you). Meanwhile, even this Propaganda Constitution was nearly void of action. Until 1993, Russian Constitutions were just pieces of paper. But in 1993, the Constitutional Court was formed and then many people started to give questions. And then, we started to see some cases very similar to O'Conner's arguments.
There were and still are laws that come from Soviet times. These laws were created, accepted, revised and changed many times. Some of these laws have more than 30 years life. Some of these laws are considered to be violating the Constitution. And you know what chaos is created? State organs that lived for tens of years under these laws, suddenly realize that they were violating the law and they should do things totally another way. So, sometimes we hear arguments that this law was here for so many years, everyone lived well with them and that there is no reason to change it. However the Constitutional Court is a final instance and no matter the pressure, it takes some rough resolutions.
Why I took this example? Well, for some, an outside view may make a new view to the situation. Also, I'm trying to show the possible consequences of what will happen if the system of constitutional control becomes void. Maybe the US will not have its Stalin, but something worse may happen.
Porbably the law has been broken since that nefarious year of 1790. It is possible that even the first Copyright law was voted with some violation of the Constitution. Maybe it was violated on one of these extensions. So, it is rather problematic for O'Connor to claim precedence of Law under this case. The Constitution is the Law that cannot accept precedence of any kind. A law either is constitutional or unconstitutional, no matter the acceptance, the revisions or the traditions (btw that's a position Russian Court clearly took on one matter). Frankly, that's an ideal that goes above nations and traditions, and that's the fundament for the existence of a Constitution. A Constitution can only term times in relation to itself, all other laws should go in accordance with constitutional terms no matter their lifetime, traditions or revisions. That's what some people call the dictatorship of the Fundamental Law. If it is turned void then other tiranny may substitute it.
Constitution is not the same body of law as the anglo-saxon traditional jurisprudence. If O'Connor will play with this, then either he will be burned to the stake or there will be many questions about the effectivness of the American Constitution.
Read the actual bills yourself (Score:4, Informative)
One of the best sites to keep yourself informed. This gives you the good and the bad.
Sites like the EFF, ACLU, RIAA and MPAA are good for getting differnt view points, but their information will always be slanted in one way or another. That's what lobying groups do.
In arguments it's good to know both sides of an issue but it's even better to look at the issue itself somtimes.
Parent
Re:This is a great recource... (Score:4, Funny)
That's funny, because Slashdot probably drops my productivity at work by at least 10%...
Parent
Re:Wrong or unconsitutional? (Score:4, Informative)
Did you take a civics class in high school? This is exactly the purpose of the Supreme Court. This is exactly the purpose of the idea of checks and balances.
The federal government was not set up as a direct democracy. In theory, every branch must follow the Constitution. It's fantastically difficult to amend the Constitution for a reason.
Parent
Re:What happens next? (Score:3, Informative)
I believe they can and occasionally do switch sides after reading the opinions, although you will almost never learn about their deliberations because they view them as very important to keep secret.
Based on my reading of the transcript, the Chief Justice might come down on either side. If he goes on the minority to affirm, then I'd guess Stevens will assign himself to write for the Court. If the Chief goes for Eldred, I'd guess Scalia or O'Connor might write for the Court.
They usually release opinions in the "big" cases at the end of their term, so it could be Summer 2003 before we know who won.
Re:looks good, kind of (Score:3, Informative)
Re:A good time limit? (Score:4, Interesting)
Congress needs the ability to change those limits based on changing economic climates in order to protect the balance between public interest and the promotion of science and the arts. Unfortunately, as Lessig argues, this power has been abused to create an effective perpetual copyright term under the guise of a limit.
Lessig argues that any extensions should apply only to new works because any discretion congress has in setting limits applies to the promotion of new works. Extending copyrights on existing works does no such thing. The government attempted to counter with the very weak argument that people who create works expect to be included in any such extensions. I would bet lots of money that not one single work has been created under that line of thought. NO ONE holds back on the creation of a work out of fear they will not be included in the next extension of copyrights. And NO ONE creates works today because they know they will be included in the next extension.
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Re:Summary? (Score:3, Informative)
A justice brings up the possibility that they are at a risk of disrupting previous copyright extensions, a process that seems have begun with the first act.
Lessig says that due to common law and the law of the individual states, the first act did not extend copyright more than it curtailed copyrights existing under prior law.
It is then pointed out by a justice that there have been several extensions since, even if the first act does not.
Lessig admits that in 1831 and 1909, Congress extended terms in a way that is inconsistent with the strongest possible interpretation of the Constitution that would aid him in winning his case. He then says that those extensions were never challenged in any court, apparently to suggest that since it had not withstood a real challenge, it might not be that sound, but a Justice point out that the reason that they were never challenged is that there might not be a basis for it.
Lessig points out that due to modern communications technology the circumstances has changed from that of previous copyright law which affected mainly commercial publishers so there was less of a need for scrutiny, even if there was a basis, and that this is the first time where the Court has been pointed to changed circumstances as a reason to reaffirm the Framers' values. He further attempts to show basis by bringing up that it's not the case that the earlier extensions were not questioned on constitutional grounds, citing an academic challenge, causing the Justice to clarify himself, that he was talking about court challenges, not academic challenges.
A justice says that regardless of changed circumstances or not, Lessig's basic theory, which on his argument would have been appropriate at any time historically, is that there at least has to be the possibility of a kind of a causal connection between the extension and the promotion or inducement for the creation of some subsequent work, and asks why does that interpretation of the Promotion Clause make more sense than an interpretation that says the Promotion Clause requires that there be a general scheme in place, which overall tends to promote or induce, and part of that scheme can be that at the discretion of Congress the period of protection is extended from time to time?
Lessig says that under the other interpretation of the Promotion Clause there is no limit to the ability of Congress to extend subsisting terms.
Then a justice asks whether the same thing applies to change of scope- whether Congress can decide to change the size of the net that catches derivative or resembling works of a copyrighted work, so to speak.
Lessig says no, because unless retrospective extensions are forbidden, it will eviscerate the meaning of "limited Times" which does not occur in the context of the scope of exclusive right, nor in the context of the power to secure.
Then a justice asks if Lessing's theory is true, would that mean that the court would also have to hold the 1976 act unconstitutional. The judge makes the claim that if the 1976 act were to be held unconstitutional, chaos would ensue. (which I doubt), Lessig says that under the theory as it's been advanced, the 1976 act would be unconstitutional. The judge says that maybe they should find another theory
Lessig says that the theory, which would advance the aim of limiting times in a way that is enforceable, is only applicable to the '98 act in the case presented, and would not necessarily be applicable under the '76 act for reasons that had been offered by the Government.
A justice asks if Lessig thinks it's at least arguable that the '76 act had various positive aspects to it in terms of the purpose of the Copyright Clause that this act lacks? Lessig says yes, and also that it fits into a severe disruption exception that had been demonstrated in an earlier case.
A justice says that implicit in all of this is that for all these years the act has impeded progress in science and the useful arts, and that he just doesn't see any empirical evidence for that.
Lessig says that this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws, so a empirical claim needs not be made.
A justice is confused between this argument and a secondary argument that there is a great First Amendment force that's being thwarted, and that the secondary arguement was the entire underpinning for the case.
Lessig clarifies that it it true that he is asserting, in light of the changed circumstances, that the opportunity to build upon works within the public domain is a fundamental First Amendment interest, and that the First Amendment values, the vital speech interest at stake of this case, is that the public domain be permitted as a source for cultivating work about our culture without unnecessary legal restriction. A justice states that Lessig wants more than that- he wants the right to copy works verbatim. (which would grant the access required to be a source for cultivating work)
Lessig says that he wants the right to copy verbatim works that should be in the public domain and would be in the public domain but for a statute that cannot be justified under ordinary First Amendment analysis or under a proper reading of the limits built into the Copyright Clause.
A justice drawing from the briefs, says that he can't see where "retroactivity-prospectivity" comes in on the First Amendment argument and if Lessig is saying that the time is too long, that the public domain should get this stuff sooner rather than later, would he explain how the "prospectivity-retrospective" line fits into the First Amendment claim?
Lessig says that the prospectivity matter should be deferred until the court decides whether the prospective and retrospective is severable, and we submit it's an easy case to show that it's not.
A justice finally gets that the First Amendment argument and the Copyright Clause argument are independent arguments.
A judge wants to take the First Amendment argument alone, and tie it into the retrospective-prospective distinction.
Lessig says that the strongest First Amendment argument is about the retrospective extension, because of a fundamental change that occurs when Congress extends subsisting copyrights, rather than when Congress legislates prospectively because when Congress legislates prospectively, it has no way to know who's going to benefit from its extension. It is simply evaluating what the term should be prospectively in a way that the Court should presume is legitimate under the First Amendment. However, when it legislates retrospectively, it has the effect of looking at particular authors and estates of authors who are before Congress asking for this extension, and it's choosing between these particular authors and the public at large. Maybe in exercising that choice in this case, Congress made an objective valuation of who would be in the best position to advance the interests of promoting the progress of science...
At this point a justice interrupts, saying that in Lessig's intermediate scrutiny test the Court would not be hypothesizing what might have been in Congress's mind. Lessig's First Amendment test is a stringent one. You have to have an important purpose, and the means that is use is necessarily tied to that purpose. If you take that position, I don't see how you make the retroactive-prospective line work.