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Eldred Attracts Heavyweight Supporters 230

Posted by timothy
from the as-well-it-ought dept.
dipfan writes: "Opening briefs have now been filed with the Supreme Court for the Eldred v Ashcroft copyright case, arguing that the Sonny Bono Copyright Term Extension Act is unconstitutional. The anti-extension case has attracted some big name supporters, including Intel, and Nobel prize winning economist Milton Freidman, who argue it is "highly unlikely that the economic benefits from copyright extension" outweigh the additional costs, and that copyright extension reduces consumer welfare. (Previous coverage of the case on /. here and here)"
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Eldred Attracts Heavyweight Supporters

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  • I love it (Score:3, Insightful)

    by marshac (580242) on Wednesday May 22, 2002 @12:07PM (#3565943) Homepage
    "Congress shall have the power... To promote the progress of science and the useful arts, by securing for limited times to authors and inventors, the exclusive right to their respective writings and discoveries."

    So a limited time will now far exceed several generations. I can totaly see how this will benefit all the people of the good 'ol USA.

    Economic recovery, here we come!
  • by dinotrac (18304) on Wednesday May 22, 2002 @12:08PM (#3565948) Journal
    If this doesn't prevail before the Supremes, then all hope may be lost.

    The copyright extension can't reasonably be argued to server any Constitutionally argued purpose. After all, to be extended, the works in question had to be produced.

    Absent a time machine, how do you encourage the creation of something that's already been created?

    The only thing you can do is negate the other side of the deal: transfer of your work into the public domain.

    This is not even an issue of being for or against intellectual property. Congress used its Constitutinally provided powers to grant intellectual property to authors, but demanded consideration in return. That consideration was placement of works into the public domain after the author or subsequent copyright holder had been granted an adequate opportunity to exploit the work.

    We have delivered on our end of the bargain. The copyright holders must deliver on theirs.
    • If this doesn't prevail before the Supremes, then all hope may be lost.
      Is easy to win the Supremes over, just before they make a bad decision shout:

      "Stop! In the name of Love
      Before you break my heart"


      How could they resist...
    • Well, thankfully, Disney can't bribe the Justices with money for their reelection coffers.

      And what is Disney's business plan anyway? To have copyrights extended whenever Mickey Mouse risks becoming public domain?
      • Disney can't bribe them with money for their reelections, but it can bribe the Justices with money for their pockets. It's already been done -- Thomas' wife worked on the Bush campaign (no doubt a lucrative job) and he was a deciding vote in Bush v. Gore.

        That he didn't recuse himself shows a very serious lack of integrity among the Justices. Who knows what conflict of interest they'll allow next?

      • Well, thankfully, Disney can't bribe the Justices with money for their reelection coffers.

        They can however bribe justices with money, free movie showings, food, etc.

        And what is Disney's business plan anyway? To have copyrights extended whenever Mickey Mouse risks becoming public domain?

        The really ironic thing is that the early Mickey Mouse movies may well be public domain anyway. Since apparently Disney didn't comply with the copyright law en force in the 1920-30's.
    • > how do you encourage the creation of something that's already been created?

      This is addressed nicely in the ecomomists' brief. The Disney argument might go like this: "if we get this windfall, we'll spend it on new creative projects."

      The economists point out that if a profit-maximizing corporation had a potentially profitable project, they could seek funding from banks or investors. If the corporation has more money than profitable projects, they should invest those excess resources on something else.

      A starving artist, they acknowledge, might not be able to get the same kind of investment that Disney can get. But for the starving artist to get anything out of extension, they would have to already own a copyright that was about to expire. And that, they point out, is unlikely.
      • Well, that's nice, but increasing the profits of individual corporations has nothing to do with the goals of the Constitutional grant of authority.

        Besides, the result if ambiguous. If Disney loses a copyright to the public domain, who's to say others won't find additional and different ways to profit from the same material?

        The goal is to benefit the American people at large, not to enrich Disney or any other copyright holder.
  • by jdavidb (449077) on Wednesday May 22, 2002 @12:10PM (#3565971) Homepage Journal

    Also, the FSF filed a "friend of the court" brief [gnu.org], though if, like me, you are not a lawyer, you might rather just read the press release [gnu.org].

  • This sort of high-profile case is just crying out for a shown of public support. Do you think a couple of free software heavyweights could agree on a middle-of-the-road viewpoint on Copyright law (by which I mean somewhere other than abolish it) in a form that "open IP" supporters everywhere (or just in the US ;) ) could "sign" in an online show of support.

    The recent /. article on Copyright would probably been a good place to look for ideas ;)

    • It has been said a million times, online petitions are meaningless. Congress will only people to people from their district that calls/writes/faxes their beliefs. Anything online for the most part is ignored. And for this, I seriously doubt that the judge could be swayed in such a manner.
      • Re:Open Petition? (Score:4, Insightful)

        by Stonehand (71085) on Wednesday May 22, 2002 @01:00PM (#3566220) Homepage
        The justices had better not be swayed by petitions -- their job description includes interpreting the law as it is written, not as how anybody else (including the justices) thinks it should have been written.

        Even if the justices think that a law is a pathetic, weak, idiotic law -- if it's Constitutional and all, they need to uphold it as is. It's the other two branches' job to reflect the populace and consider bending to petitions.
  • Good quote (Score:4, Interesting)

    by Anonymous Coward on Wednesday May 22, 2002 @12:12PM (#3565980)
    Eben Moglen's brief for the FSF [fsf.org] has a great quote:

    ``Actually, Sonny [Bono] wanted the term of copyright protection to last forever.''
    --Rep. Mary Bono
    144 Cong. Rec. H9951 (daily ed. Oct. 7, 1998)
    • Re:Good quote (Score:3, Interesting)

      by AndroidCat (229562)
      Actually, Scientology wanted Sonny [Bono] to want the term of copyright protection to last forever. Otherwise Hubbard's stuff would eventually leak out into public domain. (Some already has due to slip-ups.)

      Although there were rumours that Sonny wanted out shortly before he went eXtreme tree-skiing.

    • Re:Good quote (Score:4, Insightful)

      by MadAhab (40080) <{slasher} {at} {ahab.com}> on Wednesday May 22, 2002 @03:11PM (#3567224) Homepage Journal
      Which is why it should be obvious that "forever" or Valenti's "forever minus a day" show the *INTENT* of granting copyright for UNLIMITED terms, which are, specifically, unconsitutional.

      Sure, it brings US copyright law more into harmony with Euro laws, but then again, Europeans have a history of supporting hereditary privilege, which is what "70 years past the death of the author" amounts to. It creates a trust fund for a select few to inherit, a privilege which they did nothing to earn, and it burdens current creators and entrepeneurs with supporting the children of their predecessors. To paraphrase Jefferson, it is a debt levied on the living by the dead. It's a very un-American and anti-democratic viewpoint. The addition of Milton Friedman's name should be a sign that being a rabid capitalist doesn't mean favoring corporate welfare of this sort; the CTEA takes away from the public domain and gives to the corporations without expecting anything in return.

      For the record, I have less of a problem with long terms on works for hire, but the next thing they'll try is "Copyright for as long as the corporation exists", clearly unconsititutional.

      • You're talking rubbish. It does nothing to bring it in to line with European copyright law, which already has shorter terms than the United States.

        As for ther "heriditary privilege", European nations now (for the first time in history) spend less on farm subsidies (taxes to donate to people who have land) than the United States.
        • Normally, I'm against economic supports and for sending manual labor overseas, but farming is essential to national defense. Of course, small-time farming isn't... I'm just saying I understand a reasonable amount of leeway.

          -l
          • The United Kingdom held out in two World Wars with an inability to supply food from its own farms. "National defence" is a conveninet and nonsensical excuse - much like painting pictures of bankrupt family farmers, when 80% of the US farm subsidy goes to the largest landowners. Try not to buy the hype.

            Of course, it may be that every man, woman, and child in the United States thinks they owe farmers $700 each; I certainly wish I could convince the government to shovel money at me based on being a landowner. You may not care the damage it does US relations with allied states. But you ought to.
            • I didn't buy any hype. I came up with that justification on my own since I don't buy the poor small-time farmer argument. The US probably pays farmers to kill more corn than necessary to feed the entire population... but I don't have numbers to back up that assertion. :-) My point is that while many fundamental industries (textiles, manufacturing, etc.) can and will move largely overseas where manual labor is cheaper, some of those industries are requisite for any serious long-term defense plan.

              No, they don't need handholding. Frankly, many of these farmers are terrible businessmen, sold on the old rustic ideal of the independent farmer. There needs to be a lot more consolidation across the industry. Farming collectives are nice, but they don't quite get there in terms of ROI. Farming must ultimately succumb to market forces, just like anything else. However, that doesn't change the fact that we need to keep enough farming local... and today, I don't know how much that is.

              Lastly, too much consolidation is a poor defense plan too. If all our food is grown in just Iowa or something, a few nukes could take out the entire supply. There just need to be some checks and balances.

              -l

        • You're talking rubbish. It does nothing to bring it in to line with European copyright law, which already has shorter terms than the United States.

          It's not just a matter of term, there is also the matter of scope. e.g. US copyright law has always been very draconian with respect to derived works. (Which wasn't an especially big issue where copyright was fairly short term anyway.)
          Up until 1988 UK copyright law, whilst fairly long term, tended not to view creating many derived works as potentially infringing. Indeed it would be perfectly possible to create something which was entirely derived from other works and meet the 1956 acts definition of "original". In 1956 the idea that creative works are often inspired by and derived from other works was apparenly well understood, at least in London.
          More recently we have had rounds of "harmonization", which appears to translate in taking the most extreme parts of copyright laws from all over the world and putting them all together.
  • by Black Aardvark House (541204) on Wednesday May 22, 2002 @12:13PM (#3565987)
    I have debated this hot topic on the Napster Forum at great length, with people ranging from typical ranters to a small record label owner.

    The biggest issue I have is with the duration of copyright. Originally set to last 14 to 28 years from date of creation, it now stands as 95 years from the death of the copyright owner. The latest lengthening (the Sonny Bono Act) might have to do with strong lobbying from Disney, as Mickey Mouse would have lost its copyright in 2004. And to extend it again, 20 years at a time only takes a mere act of Congress.

    On one hand, I'd like to see creators get just rewards for their work. But I disagree with a near-eternal guarantee, that might stifle creation in the future because current creative minds can rest on their laurels. In other words, they can stop working and continue to enjoy a revenue stream, while I need to keep working to get my next paycheck.
    • The biggest issue I have is with the duration of copyright. Originally set to last 14 to 28 years from date of creation, it now stands as 95 years from the death of the copyright owner.

      Is it 95 years? I thought it just went from 50 to 70. If it's 95 then I need to fix my sig.

    • > .. current creative minds can rest on their laurels.

      Or the creative minds' parents, or kids, or family, or employees .... some copyright holders can support armies of folks who 'eek out' (sarcasm) a living off the nepotistic returns of a ubiquitous (high use) and nearly expire-less copyright law.
    • Rest on their laurels? Hardly -- unless the work is of enduring quality. Even when something is of pretty lasting quality, such as MLK Jr's speeches (copyright strictly defended by the King family so they can make money selling King's image to be used in commercials, for instance), it's rarely going to be enough to justify stopping of work.

      I don't think Judy Blume's descendants are idly living out their days on royalties from "Superfudge", for instance, nor did Electronic Arts stop after the days of "Pinball Construction Set".

      If something IS so awe-inspiring that it'll really stand the test of time for ninety years, *shrug* I don't have a problem with that, especially with purely artistic works -- there's less public harm in, say, having a nigh-indefinitely copyrighted Mickey Mouse flick than there is in having an indefinitely-patented hypothetical rhinoviral cold vaccine. If Disney slams the door and people stop paying for Mickey Mouse, big deal -- it's only Mickey Mouse.
      • by Tackhead (54550) on Wednesday May 22, 2002 @01:24PM (#3566445)
        > If something IS so awe-inspiring that it'll really stand the test of time for ninety years, *shrug* I don't have a problem with that, especially with purely artistic works -- there's less public harm in, say, having a nigh-indefinitely copyrighted Mickey Mouse flick than there is in having an indefinitely-patented hypothetical rhinoviral cold vaccine.

        Which raises an interesting question.

        How come our laws are structured so that the guy who cures cancer has to make back his entire investment in 14 years, but RIAA and MPAA get to sponge for 90 years plus the life of the creator?

        If the rationale for these intellectual property "protections" is that they somehow promote innovation and investment, how did we conclude that a fucking cartoon mouse is deserving of 90+ years of protection, but a cure for cancer, only 14?

        • by Stonehand (71085) on Wednesday May 22, 2002 @01:47PM (#3566620) Homepage
          Well, one's a patent and one's a copyright. Patents might get less protection in general because they cover procedures and systems, which in some cases are useful or even critical for derivative work within a section.

          A writer, for instance, can probably get away with writing quite a bit without deriving from "Snow White", say -- there's nothing, besides constraints on imagination and effort, stopping a writer from designing his own distinct universe. And if they're REALLY creative, the universe might be so distinct that it won't involve axe-wielding dwarves, fair tree-loving elves with bows, and half-height people not named H*bbits to avoid the dreaded Lawyers of Mordor. Worst case? A creative work falls into oblivion, because the author refuses to license it to anybody else at prices that others will accept.

          But systems and methods have to work in reality -- there may not be another satisfactory way around a problem. If, for instance, somebody designs a KSR/RGB Mars-style "treatment" that improves longevity by fixing long-term accumulated genetic damage, restores telomeres, and so forth, then that's a huge amount of IP. Some of the necessary methods may be the only effective solutions. So a long, closely-held patent could be used to throttle potential research in that area. What if, say, a radical anti-"playing God" group set up shell companies to quietly purchase IP, or even set up a biotechnology firm for the sole purpose of blocking applications by winning the research race? Imagine if a group tried to blackmail the world with a patented, 90-year-protected cure to cancer? The threat to society's potential welfare is much worse than that of, say, withholding "Steamboat Willie".
          • a society is defined by its are and culture, not by its longgevity or its ability to surpace the optimum health level for a productive society.

            failing to place works of art and liturature and music inthe public domain for a period of time that is so damn long that my great grand children will be middle age before they can reap the societal benifits of its public domain status is rediculous and not healthy for society. by extending the copyright, you run into the 1930's books issue, and that is not healthy at all and does not provide benifit to anyone.
        • How come our laws are structured so that the guy who cures cancer has to make back his entire investment in 14 years, but RIAA and MPAA get to sponge for 90 years plus the life of the creator?

          The reason why is a matter of lobbying history...

          But consider that Copyright affords much less "protection" than Patent law.

          Like almost everyone here, I too hope that the extension is struck down, and more importantly a clear precident is set for future extensions,

          But the real evil of today's system, as some of the briefs pointed out, is that 100% of "written" works automatically receive copyright protection for the entire possible term. The previous system, where an application must be submitted and extensions must be granted was much more sensible, as many works immediately entered the public domain if the author did not feel the need for copyright (they couldn't later demand royalties when someone else makes a derivitive work from something they never intended to be profitable). Extensions also worked well to cause copyrighted works that were no longer "exploited" to enter the public domain, yet valuable works could remain protected. On of the briefs cites a study that only 15% of copyrights were extended. Today these simple and sensible proceedures have been lost.

        • How come our laws are structured so that the guy who cures cancer has to make back his entire investment in 14 years, but RIAA and MPAA get to sponge for 90 [sic] years plus the life of the creator?

          I presume that the practical reason is that there's a much stronger lobby for extending copyright terms than for extending patent terms. Although there are some companies and individuals who make a living building on newly expired copyrights, there isn't a huge industry doing so, so there isn't a powerful lobby trying to enforce strict limits on the length of copyright. OTOH, the holders of current copyrights have a strong interest in seeing them extended, making for a powerful pro-extension lobby.

          In contrast, the patent system is much more even. Just about every big company that depends heavily on patents to protect its inventions also struggles against other companies that hold patents on inventions it wants to use. That means that they can see both sides of the patent issue and are less likely to be strongly in favor of extending patent terms. Of course this isn't true of every business. My impression is that Big Pharma is much less dependent on the availability of others' patents, so they're one of the few industries that lobbies strongly in favor of longer patent terms.

        • How come our laws are structured so that the guy who cures cancer has to make back his entire investment in 14 years, but RIAA and MPAA get to sponge for 90 years plus the life of the creator?

          Patents have a shorter duration than copyrights because patents are broader than copyrights. Copyright prevents you from making unauthorized exact duplicates of, for example, a book. You are allowed to read the story and write *exactly* the same story yourself as long as you don't copy the story verbatim. You can use the same characters (though you might have to change their names), the same plot, etc. Further, Fair Use evenallows you to copy passages for various purposes. With patents, on the other hand, you're not allowed to make any device that conforms to the claims in the patent (it's the job of, first, the patent office and, later, the courts to determine if the claims are too broad to be valid, so there are some limitations there). There are no fair use exceptions and you cannot just read the patent and then go off and design and build your own device using the same principles. You can design a device that does the same thing in a completely different way but that is more difficult than the analogous situation with copyright.

          Because patents grant a more *powerful* monopoly, they also grant a *shorter* monopoly. Keep in mind that the idea of IP law is (or was, at least) to try to balance the creator's ability to profit with the public's ability to use new ideas without encumbrance. The ideal situation, from society's point of view, is a duration that is just barely long enough to incent creators to create and no longer.

          Of course, it should be utterly obvious to everyone that from the point of view of the creator trying to decide whether to, e.g., write a book, there is no practical difference between a 50-year monopoly and a 95-year monopoly.

    • Mickey Mouse would have lost its copyright

      To be more precise, Steamboat Willy (the first Micky cartoon) would have lost its copyright. Later works would lose their copyrights at later dates.

      Although given how much heavy duty recycling some of the 50+ year old Disney "classics" have gone through on VHS and DVD, I'm sure the company would love to keep on milking those for a few more generations. Although it looks like they're hedging their bets with all the derivative stuff lately -- Little Mermaid 2, Cinderella 2, Return To Neverland (aka Peter Pan 2), etc, etc.


  • Is it me but ever since mp3's it's like the entire world is an expert on copyright infringment. I remember teh days on slashdot when all teh articles were about supercooling my 300a. interesting paradigm shift.
    • True, and it makes perfect sense. The DMCA and its buddies are direct assaults on the concept of general purpose computing. If things continue on their present course, it will eventually be illegal for you to open the case of "your" computer, or use it in any other way that Disney or Microsoft disapproves of.
  • I'm hopeful (Score:5, Informative)

    by jms (11418) on Wednesday May 22, 2002 @12:24PM (#3566059)
    I read the opening brief last night and I'm overwhelmed by the quality of the work. The plaintiffs have, over the course of the trial and appeals, clarified and distilled the essence of their case. Their arguments are very persuasive, and the writing is superb.

    This is probably the most important copyright case of our generation. The government has characterized retroactive copyright extension as a "national tradition", and if this case fails, the result will be that Congress will be given the go-ahead to continue the "tradition", and the result will be perpetual copyright. The entire idea of a public domain of ideas will be destroyed.

    Eldred is our last, best chance to prevent perpetual copyright. It's a tremendous effort, the best contemporary legal writing that I've EVER seen. I urge all Slashdot readers to read through the opening brief. It should be required reading for anyone interested in the issues behind copyright extension.
    • <AOL>
      Me Too!
      </AOL>

      Seriously... I don't pretend to understand legalese, and yet this brief was a brilliant piece of work, obviously fitting the "DTD" for a legal brief, with all the appropriate legalese, yet understandable, direct, and clear. A masterful work by the attorneys!
    • This is probably the most important copyright case of our generation.

      At least until we manage to drag the DMCA (kicking and screaming) before the supreme court.

      And I agree, the opening brief [harvard.edu] is an excellent read even for non-lawyers. Highly recommended even for hackers allergic to legaleese.

      -
  • by Anonymous Coward on Wednesday May 22, 2002 @12:25PM (#3566065)
    I think the core of Eldred's case should focus not on Mickey Mouse, because as Valenti said, who cares if Mikey isn't in the public domain for another 1000 years. The argument should focus on the 10,027 books published in 1930, of which only 174 are still in print. Who is being harmed by these works being put into public domain ? Certainly Disney isn't hurt, nor the owners of the copyrights, since they aren't making any money anyway. We the people, thats who, each year there are less and less readable copies of these books. If these books are not put in the public domain, we are in real danger of loosing them. Project Gutenberg certainly isn't going to spend thousands of dollars to find out who owns a copyright, just to be told, no. As Lessig pointed out, it also stifles creativity, because no derivitive works can be done. He also pointed out two instances where an author has written a piece based on an older work, spent real money to find the copyright holder and been told NO, not, I will licence it to you for X amount of money, but NO. If we allow these extensions to stand, we get Mickey Mouse, if we don't let it stand, we get to preserve a whole body work for all time and we get a whole new body of work, which will never happen otherwise. This lawsuit should really be called Humanity vs Disney.
    • Umm, did you actually read the opening brief, it's [harvard.edu]
      here in case you haven't.

      I read the first 30 pages, it clearly focuses on the 3,350,000 copyright registrations between 1923 and 1942.

      As another poster has pointed out, the brief is excellent reading. Why don't you try it.
    • Excellent point. The purpose of copyrights was to balance the benefits for the individual and the rest of society. Derivation is the essence of progress in science and computer programming, and essential to artistic and literary creation. It is hard to imagine Brahms without Beethoven, or Herman Melville without free reign to rework Shakespeare. Would you trade music and literature like that in order to allow David Geffen profit from Nirvana albums at age 85? or Disney Corp exclusive right to Mickey?

      The 'individual' who benefits from current copyright law is likely to be a corporation, not the original creator, and that corporation is given great incentive to take the rewards out of the US for tax purposes, leaving society (and probably the original creator!) poorer in all respects. I find it hard to believe that this is what the framers had in mind.

      One reply here points out that Ayn Rand wanted copyrights of only 7 years, so that people would not 'rest on their laurels.' It's funny to contrast that with Sonny Bono, who wanted copyrights to last forever, at the same time that 'I Got You Babe' was undergoing its obligatory retro-revival in movies and TV.
      • One reply here points out that Ayn Rand wanted copyrights of only 7 years, so that people would not 'rest on their laurels.' It's funny to contrast that with Sonny Bono, who wanted copyrights to last forever, at the same time that 'I Got You Babe' was undergoing its obligatory retro-revival in movies and TV.
        Although he was a co-sponsor, they didn't change the name of the act until Sonny Bono skied into a tree and died. Then they could manipulate him for all he's worth.
  • by haaz (3346) on Wednesday May 22, 2002 @12:30PM (#3566098) Homepage
    Now I wish I hadn't snipped what Siva said about the Sonny Bono Act from the interview we did! [slashdot.org] Here it is:

    JH: "In your book, you refer to the DMCA as an example of what you call a "thick" copyright law. Can you explain the difference between "thick" copyright law and a "thin" law?"

    SV: "...One way to measure the thickness of a copyright law is to look at the duration of protection. If works enter the public domain before an author's life expectancy expires, then it's a thin and democratic system. If the duration of copyright protection is absurdly long and potentially indefinite, then it's way too thick.

    "JH: And the DMCA does this?

    "SV: Not exactly. The Sonny Bono Copyright Term Extension Act of 1998, which added 20 years to almost all active copyrights, does this. The Copyright Act of 1976 did this as well, but it took people a while to complain about it. Before THE 1976 ACT, copyright terms were for a fixed amouNt of time: 28 years per term, renewable once. Since the 1976 act, the term has been life of the author plus 50 years, and now 70 years. The Supreme Court will hear a case in the fall about the constitutionality of the Sonny Bono Act. And many of us on the public interest side of copyright debates are hoping that the justices revert to the first principles of American copyright: that copyright is meant to promote creativity and expression, not retard it. Copyright has become corrupted to such a degree that it's now an instrument of censorship, as Dmitri Sklyarov and Edward Felten can tell you."

    -- haaz, who will think twice before snipped for brevity's sake.
    • The Copyright Act of 1976 did this as well, but it took people a while to complain about it. Before THE 1976 ACT, copyright terms were for a fixed amouNt of time: 28 years per term, renewable once. Since the 1976 act, the term has been life of the author plus 50 years, and now 70 years.

      Linking copyright to the death of an author makes finding the copyright expirary date non obvious (especially for a lesser known author). Also linking copyright expiary to the author's death makes asasination a possibility. Whilst no person would wait 50-70 years a corporation might think on that timescale. It comes from the Bern convention, maybe the US could put it's well known habit of ignoring treaties to good use for once.

      Copyright has become corrupted to such a degree that it's now an instrument of censorship, as Dmitri Sklyarov and Edward Felten can tell you.

      Which is back to where it was 300 odd years ago. Except with CEO's rather than kings doing the censoring.
  • Who's who (Score:5, Informative)

    by MountainLogic (92466) on Wednesday May 22, 2002 @12:30PM (#3566100) Homepage
    It just boggles the mind to look at the list of folks filing AMICI CURIAE briefs in the Sonny Bono Copyright Term Extension Act case. Here is just a random sampling of the names:

    Eagle Forum/Phyllis Schlafly

    Milton Friedman

    Hal Roach Studios

    Intel

    Wendell Berry

    Ursula K. Leguin

    Barry Lopez

    Peter Matthiessen

    David Foster Wallace

    National Writers Union

    The United States Public Policy Committee for the Association of Computing Machinery

    Computer Professionals for Social Responsibility

    The Apache Software Foundation

    The Domain Name Rights Coalition

    The Center for The Public Domain

    Public Knowledge, The Digital Future Coalition

    The Public Domain Research Corporation

    The Center for Book Culture

    The Computer and Communications Industry Association

    The Consumer Electronics Association

    • We're doomed.

      Apart from Friedman, Hal Roach Studios, and Intel, the words "Coalition" and "Public" and "Foundation" appear too frequently in that list. We need more corporations and industry associations to file amicus briefs.

      But Friedman - wow. If anyone can convince the Supremes of the economic harm wrought by indefinite copyright, it'll be him. You go, Milt! (And happy birthday!)

      • Depends on who all is on the other side, but associations like CEA and NWU aren't small... CEA is one of the heavyweights of the industry associations - you're talking about virtually every single company that sells consumer electronics in the US. How big a market is that, exactly? We're talking about Sony, Phillips, Toshiba, GE, and so forth here. BIG MONEY. And, of course, Intel.

        Some of the individual names are noteworthy too - not just Friedman, but also well regarded authors like Le Guinn, Berry, and Matthiessen.

        The light at the end of the tunnel may be wavering, but it's not out. Yet.
        • We're talking about Sony, Phillips, Toshiba, GE, and so forth here.

          So sony with one N is against sonny with two N's? I was almost certain that Sony Music (an RIAA label) would support perpetual copyright.

          • Sony is one of the biggest corporations in the world. Does it really surprise you that different divisions have different objectives?

            Sony Electronics is certainly not for perpetual copyright.
    • Interesting that they've managed to get some heavyweight right-wring support as well, in the form of traditional conservatives like Schlafly and new right grandpappy Friedman.
    • Hal Roach Studios? Awesome. Maybe then we can get Weezer to promote some cool techno. Alfalfa to do some crooning in support of anti-RIAA activities and Buckwheat to ... just be Buckwheat.
    • It just boggles the mind to look at the list of folks filing AMICI CURIAE briefs in the Sonny Bono Copyright Term Extension Act case. Here is just a random sampling of the names:

      <snip>

      David Foster Wallace

      Oh, just great. Now the judges will die before they finish reading the briefs.

      Can anyone tell me if there is a 'win by default' ruling in court if no judges show up?

    • by msouth (10321)
      Yeah, ok, that's impressive, but we're talkin' Sonny Bono here--you're still going to have to come up with some pretty good stuff to counter that powerful a persona--plus he's practically a martyr, since God killed him in that freak accident as a joke about "life of the author plus X years".

      Has Milton Friedman ever had a top ten hit? I didn't think so. Try again, and get us some _real_ names. Get, say Wayne Newton on board, and we'll start paying attention.
  • Why is anyone bothering to fight against the copyright extension, anyway? If you listen to the copyright holders, you'd know that everying under the sun is just going to be stolen by copyright thieves anyway. Of course then you also have to wonder why they're so worried about extending the term of copyright if they believe that it's impossible to publish anything without having it stolen. Something doesn't add up here...

  • from what I understand, is derivitave works. The works of Motzart, Bethoven, and Shakespear, are all in the public domain. This means that all of their works are "fair game" when developing your own creative works.

    If you like the base key changes in a work by Motzart, or Bethoven, you are welcome to use it. Unless someone since then has used that same combination of key changes, and their music is not in the public domain.

    We have not seen quite the same situation in written works. Authors regularly steal story concepts from other books, file off the serial numbers, wrap them with new characters and locations, and publish it as a new story.

    While I sympathize with musicians who cringe at the thought of finding some other musician taking their song and changing one or two words and re-publishing it. In writing, that would be plagerism.

    On the other hand, if the creator of some work does not release the work to the public domain at some time, it will stifle creativity.

    I think that Spider Robinson pointed out the problem best, though I do not remember the story or the book I found it in. When musicians can't publish the music they create, because it contains "substantialy similar" parts, we will see a greater loss to society than just about any loss due to war.

    Then again, that's just my opinion. I can be wrong.

    -Rusty
  • There are several angles from which a decision can be approached:

    First and foremost, there is the one-liner in the Constitution. That one line can be picked apart and the syntax and semantics debated.

    Second, one can look for 'obvious' flaws in the existing (extended) law, and see if they (again 'obviously') flout the Constitution.

    Essentially, is the focus from the bottom-up or from current-law down. I hear a lot about 'strict constructionism' on the Court, and that would seem to me to favor the first, bottom-up approach.

    Beyond that, one can begin reading the thoughts of the framers of the Constitution. Any /. reader will be quite familiar with Thomas Jefferson's thoughts, but Alexander Hamilton's opposing views will also weigh in, here.Then there is also the interesting comparison with patents. AFAIK, patent terms have been 17 years from day 1, and haven't been lengthened. In fact, recent reform put the additional cap of 21 years from date of file, to rein in people who stalled their patents in-office in order to extend protection.
  • I read about 60% of the opening brief and I find it VERY convincing when it argues that retroactive extensions of copyright are unconstitutional.

    Does anyone know whether the various acts extending copyright have severability clauses in them? If not, does that mean that the extensions might be struck down entirely? That could be a bombshell.

    I would like to read some arguments submitted by Ashcroft/US on this matter, however.

    MM
    --
    • Does anyone know whether the various acts extending copyright have severability clauses in them? If not, does that mean that the extensions might be struck down entirely? That could be a bombshell.

      That's what Eldred et. al. are arguing. To quote from their brief:

      ... This Court should therefore strike down the retroactive aspect of the CTEA under the First Ammendment as well. And because the retroactive aspect of CTEA is inseverable from its prospective aspect, CTEA's entire extension should be set aside.

      I'm personally a bit dubious about this argument. It seems perfectly reasonable that the rules for future copyrights could be different from those for past copyrights. After all, the arguments being made are all about the unconstitutionality of extending copyrights retroactively, so future extensions should not be affected. Even if the law does not specifically include a severability clause, there's no fundamental reason that the prospective aspects can't be severable from the retrospective ones. I strongly doubt that the Supreme Court would strike down the whole law based on this idea.

  • Proposal (by me):
    You no longer need to send a copy of works to the Library of Congress in order to receive copyright, but it still needs to be done if you plan on publishing a large quantity, especially if you hope to legally protect the work. This is done, so that once it goes out of copyright, a copy will exist at the LOB so that it can be copied when it reaches public domain, and won't get lost.
    I propose that any software in which you expect legal protection of your copywrite, needs to not only be submitted to the LOB, but must include the source code. This source will be sealed away, from public view untill the copyright ends of course. But will be also accessable by a court order (not contestable by the copyright owner), to government agencies wishing to examine the security of any systems that are vital to government interest. These security reports then (excluding any source code, and given reasonable time for the copyright owners to fix the security hole) will be available to the public. The source code will also be accessable by a court order during any court cases involving the copyright holder in which it is deemed nesseary.
  • I think a very important question to ask here is, "Does anyone care?" I mean, seriously, ask Joe Schmoe on the street if this matters to them and chances are they will say no.

    To the STRONG majority of the world's population, Disney and Mickey Mouse go hand in hand. They wouldn't want to see the creators of South Park begin marketing Mickey Mouse cartoons. People draw an association between a work (be it a song, movie, etc.) and the creator of that work. That connection is important on a cultural level, even if people don't realize it. I'm sure if you asked people on the street, a majority of them would say that yes, a company/individual who creates something should retain ownership of it. It's human nature. If I build a deck on my house, I wouldn't want my neighbors thinking they could hold parties on it. It's MY deck. I created it, therefore I should retain ownership of it. Human nature tends to this belief.

    Would Disney (and other companies as well) have had much of its early material if it werent for the Brothers Grimm and other public-domain stories? No. But, that's not to say that 100 years from now the Earth will be devoid of any culture unless Disney releases Steamboat Willie into the public domain.
    • They wouldn't want to see the creators of South Park begin marketing Mickey Mouse cartoons.

      That's Not An Issue! "Mickey Mouse" is ALSO protected under Trademark law, which doesn't expire so long as it is "protected" by its owner. Someone trying to market "Mickey Mouse cartoons" (other than public-domain originals) without Disney's permission will find themselves in court on TRADEMARK violation, even if they aren't then infringing on "Copy"(Distribution)right any longer...

    • I was just thinking about this last night for some reason, using exactly your example.

      I think the difference here is that Mickey himself is a well known trademark of Disney - I don't think Steamboat Willie , per se, should be protected under copyright - it should be protected under trademark laws.

      So, in other words, let's say the next thing up is Cinderella, they would get zero protection after the copyright runs out (which could mean lot's of cheap videos on the market, for example), but people would have to stay away from Disney's trademark.

      Now, if in five years they change the trademark to something more modern, like Buzz Lightyear, then I believe any protection they got for Mickey should be gone.
      • This brings up another problem I have with this issue. Cinderella certainly isn't a Disney story. It's a fairy tale. Now, let's assume that Disney puts out a movie based upon a story they originated in-house. In 100-or-so years when the copyright expires, why isn't it just the STORY that becomes public domain? Why is it that Disney's "implementation" of the story has to become public domain.

        In my opinion, the story itself should be released to the public, but not necessarily Disney's version of it (i.e., your cheap videos statement) The company no doubt spent millions to develop the movie, so I don't feel it should become public domain. The story, however, should be and other studios should be allowed to retell it in their own way. Just a thought.
        • There are several different things that copyright allows a creator to restrict -- the right to create derived works, the right to public performances, the right to commercial sale, etc. Perhaps these should end at different times -- that is, the right to derived works should be "up for grabs" sooner (perhaps after just 15 years or so), well before the exclusive right to commercial reproduction runs out.

          This still has issues, though -- what about public performances? In the case of sheet music, for instance, I'd prefer that the public performance timeout be shorter than that for commercial reproduction; hence, after the shorter timeout orchestras that purchase sheet music to some number can then perform it only for the cost of that sheet music (for which the creator was compensated) but without having to license the public performance rights on top of it. Having the commercial redistribution rights only remain with the creator after the timeout of the work is licensed in a reasonable and non-descriminatory manner would be a Good Thing too.

          All that said, though, whether the company spent millions to develop the movie has no bearing on when it should become public domain. The company that develops the movie should be granted enough compensation (or a chance at enough compensation!) to encourage them to develop more movies, and nothing more. Anything in excess contradicts the stated purpose of copyright law, that being the promotion of science and the useful arts.
  • by MSG (12810) on Wednesday May 22, 2002 @01:31PM (#3566506)
    Being NAL as I am, I would like to see some discussion of how limited term copyright is expected to work in a future where copyright is enforced by perpetual technological means.

    As more information is published on digital media, DRM is becoming a means of enforcing the copyright on the information. However, I know of no DRM systems which provide for expriation of protection. So, while the legal protection may go away after the granted term, the data is still protected technologically. I wonder, what are the legal implications of this?

    Copyright was granted on the grounds that after the granted term, the information was to enter the public domain. If the information is designed by the distributors to never enter the public domain, does it still deserve copyright protection? It seems like this is analogous to patents vs. trade secrets where trade secrets have no legal protection because there is no obligation to disclose the way they work. You have to trade one for the other.
    • Well, my first inclination is to debate the "perpetual" standing you give DRM schemes. Given time, there is nothing you can do to protect anything heard or seen from being copied, DRM notwithstanding.

      I realize also, however, that thanks to the DMCA, such tactics are now illegal. However, if I remember correctly, fair-use rights imply nothing about tha actual feasability of making said legal copies. I.e., if Sony wants to release musc and movies in a totally new "in-house designed" format which is almost totally impossible to copy, they are welcome to. The problem with that sheme is that past expierience with such products has only lead to miserable failure on the market. No one wants to buy such items.

      It gets worse. Since the majority of the public does not care about the proceedings of this type of legislation/technology, the possiblity of such DRM schemes resurfacing is very alarming. Not necessarily because of the technological implications, but because no one would resist it, thereby leading to its grudging acceptance in the market.

      Your point with regards to copyright protection vs. perpetual protection is well-taken, and I believe you are correct. But I seriously doubt that congress or the courts would make the same distinction with the lobbyists breathing down their necks...


      We might be doomed here.
      --------------rhad
    • If the information is designed by the distributors to never enter the public domain, does it still deserve copyright protection? It seems like this is analogous to patents vs. trade secrets...

      Mein gott! If I'm not mistaken, you may have just found the perfect argument for the anti-protection crowd. Because Celene Dion's latest CD has a "technology-enforced" indefinite copyright, it loses all traditional copyright protection. Hmm, sounds like a feasable argument to me (but I too am NAL).

      Hmm, even stranger yet-- this may be the grounds upon which you can overturn the entirety of the DMCA. Must talk to lawer! << grabs at yellow pages >>
    • I know of no DRM systems which provide for expriation of protection.

      The Digital Millennium Copyright Act provides no protection against circumvention for works that have fallen into the public domain. From 17 USC 1201 [cornell.edu]: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title" (emphasis by yerricde). Works "protected under this title" include works under a subsisting copyright.

      This means it's lawful to sell DeCSS programs designed to decrypt the pre-1923 content on Charlie Chaplin DVDs. And without copyright term extensions, it would also be lawful to sell DeCSS programs designed to decrypt "Mickey's Early Years" and other pre-1946 content. (Actually, Mickey Mouse cartoons have fallen into the public domain due to a copyright notice flub-up [asu.edu].)

    • I agree, I have yet to see a DRM that allows for entry into the public domain.

      Even worse, many of the DRM systems won't even last until the copyright expires (even if copyrights lengths go back to some reasonable term). For example: those DIVX encoded DVDs are really useful now!

  • I hope that the same people who mocked the doctrine of "original intent", particularly with regards to the Second Amendment, aren't the ones promoting the Supreme Court's striking down copyright extension, an interpretation that relies precisely on the philosophy of ascertaining the intent of the framemakers of the Constitution. The "facts on the ground" are that the elected representatives of the people of the United States, both Congress and the President, have repeatedly within the past few decades agreed to extend copyright without any manifestation of widespread public protest. The opponents of copyright extension need to come up with something a little more substantial than an opinion that copyright extension damages the "public good".

    I suspect that of the groups and people submitting amicus briefs about the only ones with "clean hands" are Phyllis Schlafly and the Eagle Forum and Milton Friedman. Love them or hate them, people such as Phyllis Schlafly and Milton Friedman at least have consistency in their viewpoints, a true worldview and not opinions that bend with each passing intellectual fad.

    Phyllis Schlafly and Milton Friedman can argue with clear conscience that they have always been in the fight to limit the role of the federal government over the lives of the people, regardless of the issues. In contrast all of the NIMBY environmentalists and gun control advocates are merely carpetbaggers, passengers of convenience who the moment the issue is gone will revert to readvocating increased expansion of governmental authority and regulation. In essence the left-wing supporters of the movement to strike down the opinion of the elected representatives of the people are merely seeking to steal property for their own purposes, because they have no intellectual foundation for their critique of the current system.

    If the Constitution is merely a piece of paper to be reinterpreted as each generation sees fit, why shouldn't eternal copyright extension be a legitimate interpretation of this generation? If it is just as legitimate to question the applicability of the Second Amendment to today's society, why isn't it legitimate to question whether an 18th century understanding of copyright is not applicable to today's reality of mass media corporations continuously producing new works in new formats that the people have no problem paying for without visible public protest? See what happens once you decide to jettison the entire opinion of the past for the sake of expediency, it might just come back to bite you.
    • I hope that the same people who mocked the doctrine of "original intent", particularly with regards to the Second Amendment, aren't the ones promoting the Supreme Court's striking down copyright extension, an interpretation that relies precisely on the philosophy of ascertaining the intent of the framemakers of the Constitution.

      Simply because an original intent arguement is the one Lessig is using in this case, hardly makes it the only one. Since the current Supreme Court is dominated by strict constructionalists, it's just the best argument to use on that group of people.

      The opponents of copyright extension need to come up with something a little more substantial than an opinion that copyright extension damages the "public good".

      For this court, probably. But I can certainly make a logically coherent argument the copyright extension does damage the public good, and protecting that is important. Even miniarchists agree with this to a point, whether they realize it or not, they just think that as little government as possible *does* maximize the public good.

      Love them or hate them, people such as Phyllis Schlafly and Milton Friedman at least have consistency in their viewpoints, a true worldview and not opinions that bend with each passing intellectual fad.

      Yes, they have. And so have people like Eben Moglin and Jessica Litman.

      Phyllis Schlafly and Milton Friedman can argue with clear conscience that they have always been in the fight to limit the role of the federal government over the lives of the people, regardless of the issues.

      They sure have. But this is where you really go off the deep end of libertarianism/objectivism blindness. Here's a tip, not everyone bases their political philosophy on that government regulation is either all good or all bad.

      You criticize the left saying that they are inconsistent for supporting government regulation in one place, but not others. Did you ever stop to think that maybe the left doesn't view government regulation as inherently good or bad, but capable of being used for both? I concider myself liberal, and my take on government regulation is that it is a necessary evil. Does that confuse your oversimplified political spectrum?

      In contrast all of the NIMBY environmentalists and gun control advocates are merely carpetbaggers, passengers of convenience who the moment the issue is gone will revert to readvocating increased expansion of governmental authority and regulation.

      This is so flawed I don't know where to start. I can easily formulate a logically consistent position containing any combination of pro/anti environmental regulations, gun control and copyright extenstions. The world isn't so black and white, and people can hold many different views on important issues. To say that one can't be an environmentalist and against copyright extentions at the same time shows that your understanding of any political philosophy other than your own is virtually nonexistant.

      In essence the left-wing supporters of the movement to strike down the opinion of the elected representatives of the people are merely seeking to steal property for their own purposes, because they have no intellectual foundation for their critique of the current system.

      At this point, you've gone full-bore off the deep end, and continued to show you've never read a freaking thing about modern liberalism. If you had, you'd understand that free speech is very important to the left, and its primary argument against strong copyright laws lies in a pro-free speech basis. Try learning something about why people think a certain way before tarring them unfairly. I've read quite a bit about libertarianism, so I know not to strawman it like this.

      See what happens once you decide to jettison the entire opinion of the past for the sake of expediency, it might just come back to bite you.

      Sometimes the opinion of the past is good (short copyright terms), sometimes it's bad (slavery). Once again you show a blindness to the fact that life can't be so easily catagorized.

      To close, I disagree passionatly with the right-libertarian style philosophies on many issues, (The US health care system being one) but I'm happy to have them as allies on issues we can both agree on (free speech, copyright limits). Instead of criticizing a group of people who *agree* with your position, but just have have a different basis for the reasons why, why not accept them as allies. Just because you agree with an evil statist liberal like me on copyright, doesn't mean you have to be swung to my belief on socializing health care. :-)

    • The opponents of copyright extension need to come up with something a little more substantial than an opinion that copyright extension damages the "public good".

      The reason that the "public good" is being used is that the Constitution explicitly authorizes Congress to provide intellectual property rights inasmuch as they promote the progress of science and the useful arts. Retroactive copyright extension does not promote such progress, hence it is not Constitutional. This is a simple, clear and convincing argument, particularly after relevant evidence is provided regarding presence or lack of such promotion. The argument, at its core, is not with regard to the "public good" at present moment, but rather with regard to what the Constitution permits Congress to do. Construing it as anything otherwise is a flawed carciature of the true positions of those opposing the CTEA.
  • by sl956 (200477) on Wednesday May 22, 2002 @02:08PM (#3566751)
    From the list of signatories to the brief :

    George A. Akerlof
    Nobel Memorial Prize in Economic Sciences, 2001

    Kenneth J. Arrow
    Nobel Memorial Prize in Economic Sciences, 1972

    James M. Buchanan
    Nobel Memorial Prize in Economic Sciences, 1986

    Ronald H. Coase
    Nobel Memorial Prize in Economic Sciences, 1991

    Milton Friedman
    Nobel Memorial Prize in Economic Sciences, 1976

    Impressing!!!
  • Expost facto incentives like retroactive copyright extention obviously cannot influence creation. Even long copyright periods do little.

    I can add some quantification by running the numbers. A publisher is investing when they buy a copyright, and expects a return on their investment, usually expressed as a percentage per annum to compare with other investments like bonds or stocks.

    Consider a publisher who wants a 10% return rate, and is willing to pay 100 for a 20 year copyright on a given work. Then 25yrs is only 106, 40yrs 115, 100yrs and forever 117. But tastes change, and work may become irrelevant by events, so sales 20 years hence are very uncertain. The usual way of coping with the risk is to increase the rate of return. So try 30%, with 100 still for 20 years then even 100 years is only worth 100.5!

    Note that these analyses assume flat sales through the period, like for established continual sellers. For heavily front-loaded sales like most modern works, the premia fall by a large factor (5-10 times). And more for risky (high rates of return required) authors.

  • by non (130182) on Wednesday May 22, 2002 @02:20PM (#3566831) Homepage Journal
    i'll be wearing a mickey giving the finger tshirt!


    ___

  • Its all about the strictly mathematical definition of the word limited. In case the sequence of increments to the copyright is right, the resulting sum might be finite and thus the copyright will be limited term. But let's look at the sequence.

    One of the conditions for sum to be finite is for the sequence to converge to zero. But the sequence is not. Its not even constant, by all means it seems that its divergent and this means the resulting sum will be inifinite.

    This hints on intention, past record and dangerous trend in the congress that extrapolates into an infinite copyright if it won't be checked at some point.

  • by jmichaelg (148257) on Wednesday May 22, 2002 @04:27PM (#3567947) Journal
    A while back, there was an excellent article [kuro5hin.org] on Lord Macaulay's speech to the British Parliament. Macaulay lays out both a solid case for copyright and against unreasonable extensions to copyrights.

    The speech was made over 160 years ago.

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