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Eldred Transcript, Bookmobile Experience 243

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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Eldred Transcript, Bookmobile Experience

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  • This will help me a lot with my paper i have to write for my 11th grade social studies class. But does anyone know where more info like this is? Whats another good site to other than the basic www.eff.org and atandard "anti-DMCA/RIAA/MPAA".

    Damn im lucky that crusing around on slashdot is homework.
  • by EricEldred ( 175470 ) on Saturday October 19, 2002 @02:14PM (#4485469) Homepage
    From http://www.corante.com/copyfight/
    Alderson Reporting Co., Inc., the Washington, D.C.-based company that has an exclusive contract to tape-record Supreme Court oral arguments and sell official transcripts, has recently [1997] decided to restrict buyers of the transcripts from posting them on the Web.


    • How can they legally do that to public records that must be available to everybody {american} who wants them?
      • from as far as i can tell this isn't the official transcript...this is a transcript taken by someone in the audience. the official transcript taken by the people employed by the supreme court will be available in a couple of months (i think) and those are uncopyrightable and you can do whatever with them.
        • by Jeremy Erwin ( 2054 ) on Saturday October 19, 2002 @05:54PM (#4486397) Journal
          Members of the public are not allowed to record the arguments. or even to take notes. Accredited journalists are allowed a bit more leeway, but only Alderson Reporting is allowed to transcribe or record.

          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.
    • Please, what bullshit.

      Righting down something someone else says doesn't give you any copyright over it.

      Things said in a public court are in the public domain. Any transcript of them is also in the public domain, as it is only a verbatum copy what was said in court.
      • The copyrighted materials are the formatted version sold by the company that has this. They most likely sell some type of pdf, html, or audio formats of the cases and those cannot be reproduced. Of course you cannot copyright the actual words of the justices.
        • by dh003i ( 203189 ) <`dh003i' `at' `gmail.com'> on Saturday October 19, 2002 @04:33PM (#4486078) Homepage Journal
          LOL, that's pretty misinformed, even for /.

          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.
          • This is done all the time in "official transcripts". The courts wont look down on this becuase they say that the distributor is allowed to recieve compensation for their work. Its not a big problem because you can still get it for free. Its not copy-righted like we normally think of "its mine dont touch it", more of a "you cannot copy THIS but the info is free".
          • by Wesley Felter ( 138342 ) <wesley@felter.org> on Saturday October 19, 2002 @04:52PM (#4486164) Homepage
            Putting public domain words into a new format does not suddenly make them copyrightable, nor mean that you own the copyright to it.

            IANAL, but WestLaw does exactly that, and there have been court cases supporting them.
            • No, WestLaw does not do exatly that. You can legally copy all the legal transcripts out of Westlaw that you want to. However WestLaw pays lawyers to annotate (notes, suggested cross references, etc) all the transcripts, and those are copyright. Further, to a real lawyer those notes are often more important than the transcripts.

            • IANAL, but WestLaw does exactly that, and there have been court cases supporting them.

              IANAL either, but I have done a fair amount of time in a law library or two. Westlaw has a patent on their keysite index system and copyright on the analyses they include with the record (I know, these analyses are quoted so often in court briefs that the copyright is questionable, but thats for another rant). The keysite index system makes it a lot easier to do legal research. Any one can take the text of the rulings themselves and use them any way they choose to. They are public domain. The keysite index system and analyses are not public domain.

              The real value of Westlaw is in the keysite index system and analyses provided. Nexus-Lexus also provides similarly useful tools in its numbered index system, analyses and Shepard service.

              Oh, and a quick online Lexus search of all Federal District Court cases for all available dates did not list a single copyright or patent case listing either West Group or NexusLexis as a plaintiff or defendant. I am curious, exactly what case are you referring to?
          • Putting public domain words into a new format does not suddenly make them copyrightable, nor mean that you own the copyright to it.

            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.
          • They don't hold copyright over the words.

            They do, however, hold copyright over the structure of the document. That's where WestLaw got off: their line numbering is copyright. You're free to publish your own... but not using their numbering scheme.

            Ditto for Alderson. They hold copyright over the structure -- ie.) the HTML or PDF or whatever formatting they have applied to the document.

            AFAIK, YMMV, etc.
      • It is not only a verbatum copy of what was said in court; there is significant effort involved in writing down and puzzling out what was said, figuring out (to the extent that the transcriber did figure out) who said what, and so forth. Remember that multiple people were speaking at the same time and interrupting each other (and on occasion, two justices started to ask questions at the same time).

        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.
        • Bullshit. I don't care if it took a significant amount of work to make a transcript. The transcript is a _copy_! The transcript can not be copyrighted, because it contains no original content. In other words, the transcripters did not add any original work.

          If they added commentary, then perhaps this could be copyrighted, but they did not. Merely identifying who said what in a conversation is not an original work and could not be considered such under even the most tortured of arguments.
  • Important To Note: (Score:3, Informative)

    by LISNews ( 150412 ) on Saturday October 19, 2002 @02:14PM (#4485471) Homepage
    It doesn't appear to be the "real" transcript, but rather a reconstruction from memory:

    "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]
  • yep (Score:2, Funny)

    by cr@ckwhore ( 165454 )
    Ahhh.. the bookmobile... isn't that the one where the driver goes around town in a rainbow colored jumpsuit, screwing chickens?

    I think we've got 'em Barbrady.

  • by Vinnie_333 ( 575483 ) on Saturday October 19, 2002 @02:24PM (#4485506)
    This is swaying off the specifics of the case a bit, but ... As someone who is a firm lover of art and literarure, as well as a believer in an author/artists ownership of their creation, I don't understand the belief that copyright should be extended past the creater's death. I'm assuming it started as income for the survivors. However, a window washer's widow does not continue to take in income from her late husbands previously washed windows. And children ... should probably learn how to earn their own living. I don't see why being the son of an author that had to work hard their whole life suddenly makes you able to sit on your ass your whole life.
    • by Anonymous Coward
      If you wash windows, you make money now. But in art and literature, a lot of times the money doesn't start rolling in until after you die...
    • by Arandir ( 19206 ) on Saturday October 19, 2002 @02:39PM (#4485566) Homepage Journal
      However, a window washer's widow does not continue to take in income from her late husbands previously washed windows.

      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?
      • The property of authors are their typewriters and library. The property of musicians are their instruments and assorted recording equipment.

        When the _INTELLECT_ that has created the work has vanished from this mortal coil, all rights to make exclusive profit from the work depart with it.

        So says I.
      • by armchairlinguist ( 580975 ) on Saturday October 19, 2002 @03:06PM (#4485669)
        Intellectual property is not like real property. It is a monopoly on distribution secured for limited times. Intellectual property is not "being inherited" when the copyright persists after death.

        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.
      • Well, there is an argument that the Constitution says Congress may secure copyright "to authors". You could argue that allowing the security to persist after their death violates this.
      • by GePS ( 543386 )
        However, a window washer's widow does not continue to take in income from her late husbands previously washed windows.

        No, but she does inherit the window washing business, including any inventory or tools, receivables, contracts, etc.


        So she inherits the window washing business, but she doesn't get paid unless she washes windows too. Giving copyrights to offpsring and then giving them money every time a work that they did not create is used is like paying the daughter of the window washer each time someone looks through windows her father washed. Property can be inherited, yes, but intellectual property cannot. The offpsring of a great author/artist does not inherit their ancestor's thoughts or revelations, merely the inclination and environment to do the same.
      • Property can be inherited. Intellectual property can be inherited as well.


        You seem to be making two arguments. The first assumes an exact equivalance between 'ideas' and 'material items'. In your example she's inheriting physical things - money, buldings, equipment. In the intellectual property example there is no 'thing'. The inheritance is government restriction on the use of an idea. I don't see this equivalence as given.
        The second, or lease example, just begs the question. I agree that if an inheritor has a contract with the government in the form of copyright protection that stipulates the lease is inheritable, it should be upheld. However, the question is whether the government should be signing these contracts (passing extended copyright laws) at all. I don't see this as given either.

        • In your example she's inheriting physical things - money, buldings, equipment.

          She's also inheriting non-material things, such as accounts receivable. Material property is a much different thing than intellectual property, but they are still both properties, and have certain basic attributes in common. If it is legitimate to sell or assign away one's copyright, then why is it not also legitimate to bequeath it to an heir?

          However, the question is whether the government should be signing these contracts (passing extended copyright laws) at all.

          My argument is NOT that any length of term is reasonable. Far from it. But according a reasonable fixed term to copyrights should extend to the heirs as well. For instance, I think 25 years with no extensions for a copyright is reasonable. If the author should die in year one, why should his or her heirs not inherit the remaining 24? The general public is no worse off than if the author had lived.

          Here's another reasonable term: 25 years or 12 years after the death of the author, which ever comes first.
          • Berne Convention (Score:3, Interesting)

            by yerricde ( 125198 )

            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...

            • 25 years (Score:3, Insightful)

              by zenyu ( 248067 )
              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.


              Did we sign the earlier Rome convention? I think we did, in which case we could go back to the pre-1976, 36 years + renewable for 36 years by the author and still have U.S. Copyrights recognized the world over(Clause 7). Not that it matters, WTO members must recognize each others copyrights, and IMF loans always specify such things, so that covers just about everyone except Antarctica.

              The Berne convention doesn't provide the same protection for Films, only 50 years after release. Just making that reform to US law could save a lot of films from decaying before they can be saved. For other works the convention specified life of author + 50 years, or 50 years for anonymous works, but countries don't have to extend copyrights if they signed the Rome treaty, and don't have honor a foreign country's copyright if it's expired there but not in your own country. So if a copyright expired in Angola after 20 years, we wouldn't have to extend it to life+70 here like we do with copyrights claimed in the US.
          • by Dun Malg ( 230075 ) on Saturday October 19, 2002 @08:06PM (#4487176) Homepage
            Material property is a much different thing than intellectual property, but they are still both properties

            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.
    • by t0rnt0pieces ( 594277 ) on Saturday October 19, 2002 @02:41PM (#4485570)
      I don't understand the belief that copyright should be extended past the creater's death.

      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.
      • by tongue ( 30814 ) on Saturday October 19, 2002 @02:59PM (#4485643) Homepage
        What's funny to me is how anyone can interpret the act of copyright extension as an attack on the first clause of that: "To promote the progress of science and useful arts..." its crystal clear to me that if it weren't for the fact that copyrights and patents give incentive to create, there would be no such thing in this country. Likewise, if copyrights did not expire in a limited time, there would be no incentive to create anew, since the revenues from the first creation would continue ad infinitum.
        • by dpilot ( 134227 ) on Saturday October 19, 2002 @04:07PM (#4485981) Homepage Journal
          Because the purpose behind copyright and patents is to get the works into the public domain, eventually. That way others can build on those works, in a continuation of progress.

          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.
        • that extending copyright and patent coverage doesn't do anything to increase the incentive to create. Really, count the number of books originally published in 1950, and count the number still being published 50+ years later. When you make this comparison, you'll realize that its such a tiny fraction of people being "helped" by these extensions, that they're more harm than good. How many of these people are actually companies?

          For patents, what is the value of a patent on the technology used by the 8088 processor today? Other than the coolness factor of owning the patent, continuing to extend an outdated patent does nothing to further the progress of science. All the patent is good for is to make it illegal for me to build an 8088, even as part of learning to build processors, in the pursuit of making scientific progress in building better processors. (I just picked this out of my head, I don't know whether there is an existing valid patent on the 8088 or not)
        • It's not copyright extension that is the issue. While it may be true that extensions should be carefully considered as to whether they do attack the first clause, it isn't being generalized that they -all- are.

          No, what is considered an attack on the first clause is retroactive extensions. Retroactive extensions are the mechanism for having perpetual copyright.
    • by SeanTobin ( 138474 ) <<byrdhuntr> <at> <hotmail.com>> on Saturday October 19, 2002 @02:43PM (#4485579)
      What if you were an inventor and had a great idea for a Gizzmo-matic. This will also make tons of money. Now, you can go ahead, and make it, copywright it, and either manufacture it or liscense it. And lets say the Gizzmo-matic makes you 100k/year in proffit for the rest of the copywright term (lets say it expires upon death). If you are 30 years old, and live to be 75, that's a large chunk of money. If you are 74.5, its not so much money. The thinking is with life+X years is that older inventors can still have a reson to create.

      Now, I know what you are thinking... why not create it for "the benefit of society" ... well, if you were creating it for the benefit of society, you wouldn't be copywrighting it anyway. Copywright is supposed to be an incentive to create... not just an incentive for younger people who can reap the rewards of thier creation to create.
    • by shatfield ( 199969 ) on Saturday October 19, 2002 @02:45PM (#4485587)
      Here's the problem, though -- most companies (Record Companies, Book Publishers, etc) will require the artist to sign away their copyrights to any works that they create to the company... and companies never die! So basically, a company, like Disney, can own the image of a rat for 50.. er.. 70 years.

      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?
    • 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

    • by Elwood P Dowd ( 16933 ) <judgmentalist@gmail.com> on Saturday October 19, 2002 @04:08PM (#4485984) Journal
      The correct answer to this question is so straightforward that I don't understand why it keeps getting asked.

      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.

    • If you read General Olson's (arguing the case against Lessig) defence or explanation of reasons why Congress should be allowed to extend copyrights to whatever time they see fit, he uses as justification that copyrights benefit not only the originator of the work, but publishers, disseminators, and etc., in effect an argument that as long as there is money to be made in a copyright, that copyright should be retained amd to hell with the public domain.

      Every day we choose between a world designed to optimize the ability to make and retain money, or a world where we all try to get along together as well as possible. Thank you Larry for helping to fight for my world.
  • by amstrok ( 618866 ) on Saturday October 19, 2002 @02:25PM (#4485516) Homepage
    Well, I arrived at 5:15am in line, waited till 9:30 when the first 50 people where let in to see the arguments. I was 54...so I didn't quite make it.

    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.
    • Don't forget, however that Lessig was Scalia's clerk. From reading the transcript, Scalia was very hard on Olsen. I think Scalia will be for Eldred, because he clearly "gets it".
  • by PaddyM ( 45763 ) on Saturday October 19, 2002 @02:34PM (#4485544) Homepage
    They forgot an EASY target. "Life of the author". So if you copyright some book, and then you cryogenically freeze yourself, you get the coypright for as long as you are alive, right? So then your children get to inherit that money for all time, while you're alive in stasis.
  • Wow (Score:2, Interesting)

    by .milfox ( 75510 )
    It's intresting how the justices ask each side hostile questions, probing the validity of the argument.

    I'm not into law. :P I often think there's a lot of twisting involved. But you can almost see the lines of argument and the points and counterpoints in this script.

    All I can say is 'bravo' to Lessig :P The judges seemed receptive during their questioning of the government, as the least.

    *crosses fingers*

    Well, hurrah for our side. Here goes nothing!
    • It's intresting how the justices ask each side hostile questions, probing the validity of the argument.

      I noticed that. Man, those guys take absolutely no shit from anyone in their courtroom!

    • I did read the whole thing btw.

      Well, I dont think that either side truely 'won' their arguments. However, I say the government guy scored alot fewer points than our guy. The gov guy's arguments took much bigger hits; the justices saw some pretty big problems there.
      • Remember that, as Lessig himself said, the oral arguments are only the tip of the iceberg. The real meat of the thing is in the opinions and other documents filed by the lawyers of both sides. The Q&A time provides opportunity for them to request clarifications, but most of their deliberations will be based on the printed pages. Prognosticating based on oral arguments alone can be misleading.
  • by Catiline ( 186878 ) <akrumbach@gmail.com> on Saturday October 19, 2002 @02:46PM (#4485592) Homepage Journal
    ...but my latest thoughts on-- and inspired by-- Eldred v. Ashcroft went to my journal [slashdot.org]. While I haven't finished reading the transcript, (I've only read through Lessig's first arguments) what I've read so far hasn't changed my thoughts one bit so I'm not posting them again here.

    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.
  • by dacarr ( 562277 ) on Saturday October 19, 2002 @02:50PM (#4485610) Homepage Journal
    OK, a few overblown comments here.

    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.

    • How about this scenario...

      When you create a work, you are essentially granted a limited monopoly on the work for X years. This is the deal that you have made with Congress (whether you knew it or not). This is why we have copyrights. So, you have the copyright for X years. You know this, and that's the deal. After X years, the work goes into the public domain for the benefit of the public.

      Now, what if Congress (after some prodding) says, no, I think that the copyright term should be Y years. You agreed to X years. You already made the deal. Do you deserve to have the Y-X upgrade?

      How does that alter your initial deal that you made. You said X was good enough for you, so why do you deserve Y years?

      That's the arguement. The biggest part of this (in my opinion) is the retroactiveness of the law. If you already agreed to a copyright of 50 years, what in the world says that you need to now have 70 years. For something that I create now, under current law, I have 70 years of copyright. 5 years from now Congress may decide that 70 is too short, so now the magic number is 100. I have no expectation that my limited monopoly will be protected for 100 years, I already agreed to 70. So I should only get 70.

      The problem with limiting things to the person or family or estate, is that most of the copyrights at issue are held by companies. Companies don't die or have a life expectancy (except if it is a dot-com, but anyway). Our Constitution says that there will be LIMITED terms on copyrights. Some of our framers were publishers and authors... they knew what they were doing. The other arguement is that if Congress has the ability to extend terms on copyrights from X to Y infinitely, then there is no gain for the public, so the public doesn't benefit from granting you an unlimited monopoly.

      There must be some limit.

      • While you can't place works into the public domain legally until their copyright terms expire, you can legally allow for unconditional use of your work at no cost. This essentially alows anyone to use the work for anything they choose to use to for at no cost without fear of legal action being taken. If you want to give you work to the public domain 70 years after your death, write it in your will. If congress extends the protection to 100 years, your estate will still have to allow for unconditional public use of your work after 70 years, assuming you consult with a lawyer and the language is clear enough to withstand a law suit by your estate.

        As for your corporations comment, they have a limited time of 96 years from date of publishing to protect their works. There is no "life of..." clause associated with works created for corporations or as a work for hire. After 96 years that's it. In know of one MAJOR publishing company that releases a large portion of their work to the public after only one year. A lot of the work likely has been researched further and updates to the articles have been written and resubmitted as new works to be published again.
    • by crucini ( 98210 ) on Saturday October 19, 2002 @04:18PM (#4486021)
      If I copyright something, I'd like my family to have something to remember me by, as arrogant as it may sound.

      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.
      • So let them. As this is personal copyright we're dealing with (remember, *corporate* copyright expires in 96 years after creation), it matters little to me, as any copyrighted works you or I create would still be our responsibility (or that of our respective estates post mortem) to adjust if we need to change copyright. Suppose they don't like Sony and want to move to, say, Hoover productions - it's within their rights.

        In short, the media's actions on this will ultimately have the side effect of being good for people who actually go through with the motions of having their works recorded for copyright. Again, it comes down to contractual crap. Believe what you will otherwise.

  • by bwt ( 68845 ) on Saturday October 19, 2002 @03:01PM (#4485653)
    I'm going to try my hand at Justice reading, based on my reading of the transcript.

    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 .. a penny on 1,000, or probably a lot less than that, frankly. So I can not only not imagine a person whose decision to write would be governed by such a thing, I cannot imagine a European who would come to America to copyright his work for such a reason. ... I mean, who are these people that are going to be moved by that incentive? "

    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.
    • by Dyolf Knip ( 165446 ) on Saturday October 19, 2002 @03:28PM (#4485794) Homepage
      I definitely agree with you on this. It's fairly evident that the Justices want to kick Congress in the teeth, but they're making sure Lessig gives them a Constitutional reason to do so that won't be overturned anytime soon.
      • It's fairly evident that the Justices want to kick Congress in the teeth, but they're making sure Lessig gives them a Constitutional reason to do so that won't be overturned anytime soon.

        Who, exactly, would do the overturning? Aren't they the Supreme Court? They could decide that skinning somebody alive for a traffic violation isn't cruel and unusual, and it would be by definition constitutional; they interpret the definition. Now, if Congress or the President didn't like their interpretation of the Constitution they can try and get an amendment passed, or appoint more sympathetic Justices. But they cannot overturn the Supreme Court.

        • Who, exactly, would do the overturning?

          I meant overturned by the Supreme Court itself, albeit with different members, at a later date. It's happened before. And given the kind of hard-on Congress seems to have about extending the duration and scope of copyrights, if I were a Justice I would want to base my decision on as unassailable an argument as possible.

          I have always got the impression that the SCotUS is quite good at remembering what their biggest job is all about, namely keeping Congress in check, and letting their personal opinions interfere as little as possible. I mean, just look at this: "JUSTICE O'CONNOR: Well, I could agree with you, in terms of policy, that this flies directly in the face of what the Framers had in mind, absolutely. But does it violate the Constitution?". Essentially, "I agree with you and think Congress did something stupid, but for me to help you, you've gotta provide a convincing argument that what they did was actually unconstitutional."

          Now, if Congress or the President didn't like their interpretation of the Constitution they can try and get an amendment passed

          Or just ignore them. Jackson did exactly that regarding the relocation of the Cherokee in the 1830's. His exact words were, "[Justice] John Marshall has made his decision; let him enforce it now if he can." A very good reminder that the whole game only works if everyone plays by the rules.

    • by Anonymous Coward
      I think you have misread Justice Souter.

      My mother argued in front of Souter frequently before he became a USSC Justice, and can say with assurance that he grills both sides pretty thoroughly and tries to pin them down on what their arguments are. His actual decision is usually based on precedent, and barring that original intent. So I think he may actually go for the argument "There is very little precedent here, so let's look at the Copyright Clause. It intends to encourage inventors and authors, and since the authorship has already happened, there's no need to encourage it now."

      He also is skeptical of Olson's argument, judging by the questions he asked. So don't write him off as a lost vote. If I knew copyright case law well, I would be able to more accurately predict him, since precedent is the only thing you can use to predict Justice Souter.
  • by bwt ( 68845 ) on Saturday October 19, 2002 @03:07PM (#4485674)
    This is really choice. I'm amazed it hasn't been covered before. Scalia delivers what I hope is a fatal blow to the Government's position, after being set up by Rehnquist and Kennedy.

    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.
  • This drives me nuts. His chief argument appears to be, "If you take 'limited time' to mean anything less than eternity, then Congress can do whatever the hell they want without interference from you silly Justices." Furthermore, this is the _exact_ same argument Valenti gave in his debate with Lessig last November.

    They honestly appear to think that knowing that my copyright will last 70 instead of 50 years after I'm dead will encourage me to produce more and outweight the ridiculous costs incurred by extending the copyright.

  • The Right to Copy (Score:4, Insightful)

    by argoff ( 142580 ) on Saturday October 19, 2002 @03:23PM (#4485753)

    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)

      by dreamword ( 197858 )
      The precise opposite "innate right" forms the basis of many theories of copyright. They call it the author's "moral right" to determine the fate of his work. This idea, for instance, forms the basis of France's copyright laws.

      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.

      • Well, I read the intro to moral rights, and even agree with a lot of it, because claiming that anothers works are mine would be like fraud. Other things like, defacing anothers persons work, are disrespectfull and I wouldn't want to encourage it - but there I think that is a freedom of speech issue that shouldn't be regulated under law.

        But what a lot of people don't understand is that restricting pure copying and distribution is really a form of slavery, because it is a form of controll. In the old days people tried to controll information by making it illegal to teach slaves to read, now they try to controll it by restricting peoples ability to copy. Either way, over the long run it has the same effect. Arguments like "I have moral rights over the works I created" sound very close logically to "I have moral rights over the slaves I bought." - this is not a cooncidence.

  • by geekotourist ( 80163 ) on Saturday October 19, 2002 @03:26PM (#4485780) Journal
    The Supreme Court evidently expects you to pay money to read it now [supremecourtus.gov], rather than waiting a few weeks/months. The SCofUS gives Alderson [aldersonreporting.com] a SCotUS recording monopoly and first dibs on publishing. Based on other transcript prices [aldersonreporting.com], you would pay about $200. As discussed on Copyfight [corante.com], a legal blog, Alderson doesn't allow purchasers to publish on the web. So while we can get next-day transcripts of late night TV shows, we're expected to wait weeks to read the arguments of our most influential legal employees. Thank you Aaron Swartz [aaronsw.com] for putting this up.
    • **Somebody** might have violate a non-disclosure contract (I certainly don't know that they did), but there is actually Supreme Court precedent that says that judicial decisions are public domain.

      Usually when a legal service publishes the decisions, they add some headers and indexing that allows them to copyright it. If you strip that off, then you are copying their protected elements, then you aren't violating copyright, but you might be violating a contract. Certainly nobody here agreed to any such contract, so we're all fine.
      • Well, IANAL and IANASCJ, and "violates copyright" is perhaps not exactly the right term, but I did want to call attention to barriers to getting this information quickly...

        The SCotUS gives a monopoly to Alderson on recording the arguments *in any format,* you can't take notes from the public gallery from what I've read. Alderson's transcripts are eventually put up on the SCotUS web site, but it takes a while. Meanwhile, Alderson allows other companies like Lexis Nexis to publish the transcripts for a fee, but the others cannot put it up on the web. From Copyfight's discussions the transcription went from LexisNexis to ??? to Aaron.

        I don't agree with this practice and think that the SCotUS should set up a non-profit to take care of transcriptions. Westlaw and others can still format materials for their own publications.

  • by dh003i ( 203189 ) <`dh003i' `at' `gmail.com'> on Saturday October 19, 2002 @03:44PM (#4485876) Homepage Journal
    Life + 70 is bullshit. For one thing, the vast vast majority of the profits from a work are reaped in the first few years it is on the market. Very very very few pieces of copyrighted material (be they music, books, movies, etc) will be making significant profit in 10 years.

    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.
    • 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.


      I disagree, there are so many cases on authors sitting on their works for years, if not decades, before they can get a publisher to print them its not even funny.

      In the 80s Kurt Vonneget's work quickly moved from the fringe and into academia. Many of his novels and short stories were decades old, if copyright lasted only 10 years he probably would not have seen a dime of his 2nd wave (or first depending on your POV) of popularity. That's seems pretty wrong to me.

      Any proposal that doesn't address the right to own work within your lifetime or at least for most of your lifetime is simply too extreme on the 'public interest' end as the current system is too extreme on the 'business interest' end. Just because Hollywood can make 99% of its money in ten years doesnt mean that those without Hollywood's incredible promotional resources can.
  • by bwt ( 68845 ) on Saturday October 19, 2002 @03:48PM (#4485902)
    Lawmeme has a poll on how you think it Eldred will come out. Read the transcript and vote [yale.edu].
  • The transcript is well worth reading.

    The clarity of the court's questioning was impressive. They found holes in both Lessig's and Olson's arguments. Lessig was able to minimize the holes to some extent, while Olson appeared tired or unprepared. Justice Breyer summed up the economic issue by citing the brief of the amici economists to illuminate just how Congress has achieved the "delicate balance" between content producers and the public: the content producer gets 99.8% of the value and the public gets 0.2%.

    I think it's pretty clear that the Justices who spoke find the copyright extension reprehensible and inconsistent with the Framers' goals. However, they will not strike it down unless there is a strong constitutional argument for doing so.

    Even if we lose the case, I'm glad the issues have been put on the table so clearly.
  • by deanc ( 2214 ) on Saturday October 19, 2002 @04:00PM (#4485951) Homepage
    Olsen's argument in favor of retroactive copyright extensions is telling in terms of who's side he's on.

    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)

    by bigdavex ( 155746 ) on Saturday October 19, 2002 @04:21PM (#4486031)
    It looked like the Justices were finding flaws in Lessig arguments, but then they seemed to be chewing up Olson.

    The frankness of these comments was great.


    JUSTICE BREYER: Why -- I mean, I think you have a point on this equity principle. I wonder, is there any review there? That is, suppose you have a statute, as this one arguably is, where 99.9 percent, many billions of dollars of benefits, are going to the existing holders of copyright on grounds of equity, and the effect of the statute in eliciting new works is near zero. I mean, that would seem -- where this equity idea is the camel and the production idea is the gnat, [*45] and is there any -- can we say something like that, or does Congress have total leeway in respect to --

    GENERAL OLSON: Well, it --

    JUSTICE BREYER: -- who they want to give the money to, basically?

  • by Anonymous Coward
    For what it's worth, I just received my November edition of MIT's Technology Review [technologyreview.com] in the mail a couple of days ago and there is a short opinion piece detailing the Eldred v. Ashcroft Supreme Court case. The article [technologyreview.com], by Seth Shulman, is very much against the extension of copyrights. To quote, "Congress stole the public's access ti its own cultural heritage by extending copyright protection to benefit a few big media companies. Fortunately, the public has the Constitution on its side." I hope he's right.
  • The Plain Truth (Score:4, Insightful)

    by Effugas ( 2378 ) on Saturday October 19, 2002 @04:44PM (#4486117) Homepage
    If it wasn't beneficial to existing creative entities to draw upon shared cultural history residing in the public domain, such creative entities wouldn't do so already.

    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
  • After reading the arguments, it's hard to imagine the court with rule totally in line with what the government wants...that only Congress gets to interpret what "limited times" means. In fact, it seems like they're agreeing that retroactive extensions SHOULD be wrong, but that it will upset too much existing law and cause major problems in the short term.

    It's fairly obvious that Conress isn't unrestricted by the wording.. They can't simply decide that all works past and future have a copyright term of 999,999,999 years, but the government seems to be arguing that Congress does have that authority. It will be really interesting to see what the court decides on as a test to guarantee that future changes to copyright law both promote science and the creative arts and only last for a limited time.

    I really get the gut feeling that in the future Congress will not have the authority to do retroactive extensions, and even this will be great news. At least we'll have unhindered access to most of our 20th century history and culture sometime in the 21st century. I may still be living when it's perfectly legal to stand in front of the Lincoln Memorial and recite the "I Have a Dream" speech without permission from MLK's decendents.

  • by Ektanoor ( 9949 ) on Saturday October 19, 2002 @05:12PM (#4486243) Journal
    Well the arguments of the petitioners do not seem to be well prepared. However O'Connor is deeply wrong on making its starting argument on the fact that there were several extensions to the law. This can be seen on the History of Russian Law. While Russian and Anglo-Saxon judicial systems deeply differ in practices, on cases concerning the Constitution they are amazingly similar. The case is that if some law can be unconstitutional, but the law remains in force until someone questions it.

    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.
    • Anglo-Saxon constitutions? Utter fantasy. The Anglo-Saxon kingdoms which eventually became the United Kingdom have never had, to this day, a written constitution. Parliament is sovereign and the courts may not overrule it.If you mean the constitution of a country to which a small group sailed away in the Mayflower (in a sulk as England insisted on relgious freedom) then you should say "American Constitution" and not pretend that it was handed down in tablets by Hengist and Horsa. FWIW when the UK saw the trouble that a written constitution gave to Canada they foreswore any such notion for themselves. The following link is to the standard work on English constitutional matters. Anglo-Saxon, mostly but we let the others benefit. www.socsci.mcmaster.ca/~econ/ugcm/3ll3/bagehot/con stitution.pdf

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