Eldred Attracts Heavyweight Supporters

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)"

GNU files amicus curiae brief

[jdavidb]

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].

I'm hopeful

[jms]

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.

Who's who

[MountainLogic]

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

Re:Problem...

[wendy]

Eldred's arguments are focused on the retroactive extension, but the petitioners also argue that the provisions are "inseverable" -- if the Court strikes down the extension of existing copyrights, it should strike the whole law, including the extension of future copyrights.

(The arguments against severability are that Congress wouldn't have passed just the future extension, all the lobbying was for the extension of existing works, and the Court shouldn't be in the business of rewriting flawed legislation.)

Re:If ever there was a case that should win.

[Ian Bicking]

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?

Re:If ever there was a case that should win.

[Col. Klink (retired)]

> 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.

Excellent read on copyright at k5

[jmichaelg]

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.

Re:If ever there was a case that should win.

[Ian Bicking]

From this article [supersphere.com]:

Justice Clarence Thomas had an even more serious conflict of interest which violated federal law. His wife, Virginia Lamp Thomas, was (and is) gathering and processing applications for the Bush cabinet. Perversely, a Bush spokesman implied the charges were nothing more than veiled sexism. "Like many professional women, Mrs. Thomas should not be judged by her spouse," he said.

Mrs. Thomas, a former Republican Congressional aide, works for the Heritage Foundation (www.heritage.org). The conservative think-tank first made its first real mark in 1981 when it's Mandate for Leadership was adopted as the "bible" of the incoming Reagan Administration. Since then, the Heritage Foundation has been a cornerstone of Republican presidencies, strongly influencing everything from domestic policy to national security to the very structure of the government itself.

It also happens to enjoy a revolving-door relationship with US intelligence. Its Board of Trustees includes: Richard Mellon Scaife, the right-wing billionaire and Reagan-era propagandist who has personally bankrolled most of the "Clinton Scandal" industry; Holland H. Coors, beer heiress and trustee of the Adolph Coors Foundation, which helped fund the Contra war; Midge Dector, former chair of the anti-communist Committee for a Free World; and Frank Shakespeare, who served as Reagan's ambassador to the Vatican during the Lodge scandal, and director of Radio Free Europe.

In her own job at the Heritage Foundation, Mrs. Thomas has solicited resumes "for transition purposes" from the government oversight committees of Congress. By press time, no fewer than eight of Bush's top cabinet designees have worked for or have ties to the Heritage Foundation.

Despite all this, Mrs. Thomas sternly told the NY Times, "There is no conflict here." She explained that because she "rarely discusses" Court matters with her husband, there was no reason for Justice Thomas to recuse himself from the landmark Bush cases.

But again, the federal statutes are crystal clear that it is the relationship itself and not whether any "discussions" take place that determines when a justice is required to recuse himself. Despite the clear-cut violation, of course, Justice Thomas heard the case and voted with the majority in favor of his wife's ultimate patron.

So, to summarize: I don't know how much money she was making. But she was making money from a highly political job, where Bush's presidency would have a considerable impact. As someone else pointed out, Scalia's son was in a similar position.

That Thomas and Scalia should have recused themselves is absolutely obvious to me. And I don't say that just that it's Bush involved and I dislike him (as an aside, I never liked Gore either). The fact is that the court acted disgracefully in a very important ruling. You can't forget that -- it's not just the effect of the ruling, but that they have revealed that on truly tough cases (not just subtle, but personally tough for those Justices) they will not act fairly. They do not deserve respect, and they do not deserve to be given the benefit of the doubt. They only deserve that when there is no evidence to the contrary, but evidence has been presented, and we need to look at the evidence whenever it's present.

(Besides this, the volunteer premise is false: Bush's campaign was flush with money. What may have appeared to be volunteer work seldom was. Lots of people worked on that campaign for purely monetary reasons. Get-out-the-vote door-to-door campaigners were being done by employees. Phone soliciters were payed. Everyone was on the payrole. It was not some grassroots campaign done by true supporters. It was a corporate campaign, from top to bottom, for a corporate president. Sure, it had the appearance of legitimacy, but corporations learned to fake that a long time ago.)

DMCA doesn't protect PD works

[yerricde]

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].)