Lawrence Lessig's Personal Past and Supreme Court Future 136
Slyfox writes "Ever wonder how Lawrence Lessig became one of the most notable figures in the fight over free speech and intellectual property on the internet? Wired has an excellent article about Lawrence Lessig's life; it beginings with his start as a right-wing Republican, and continues by following the events of his life through law school, contributing to the Microsoft anti-trust case, and becoming a top cyberlaw expert. The article describes both his successes and failures, and it forshadows Lessig's biggest challenge yet: arguing Eldred v. Ashcroft before the US Supreme Court in October."
Eldred v. Ashcroft is semi-doomed (Score:3, Interesting)
However, I suspect the justices are mostly sympathetic to the idea that there is significant erosion going on, that an intention of the Constitution is deliberately being ignored. To that end, the opinions will hopefully have harsh words for the legislators who passed this law, and may even contain a veiled threat to further extensions.
Re:Eldred v. Ashcroft is semi-doomed (Score:4, Interesting)
But it was while surfing sites like LawMeme [yale.edu], GrepLaw [harvard.edu], and Copyfight [corante.com], among others that I thought about what might be the worst development to come out of this, from a copyright holder's standpoint.
You've got a whole generation of law students following along, rooting for Larry, and sharing his belief that copyright as currently constructed, only benefitting the holders, is wrong (Michael Hart's too-easily dismissed manifestoes [ibiblio.org], as the reporter condescendingly put it, echo this view).
And that same generation of law students may very well find a lot of other ways to beat up on the publishing industry (hint here: the industry's biggest market is schools, while prices are set rather high by a few players). It's quite possible that industry types will win the Eldred battle but lose the war.
We'll know soon enough.
Go get 'em, Larry.
When I grow up, I want to be a Karma Whore.
Re:Eldred v. Ashcroft is semi-doomed (Score:2, Interesting)
You are right that Lessig is arguing based on the retroactive nature of the law. His idea is good, and I hope it works, but the court of appeals was not sufficiently sympathetic. IIRC in their opinion the only limit they found applicable in the copyright clause of the Constitution was the "limited time" business -- and that they interpreted to mean the time had to be finite, but could be of arbitrary length.
In my opinion the problem is that the framers of the Constitution did not express themselves clearly enough, partly because of time+political constraints, and partly because the practice of law has changed. It is clear to me that the phrase "limited time" was supposed to have some meaning, but now it does not.
I guess that if the Supreme Court agrees that the retroactive aspect is problematic, they may only invalidate the law as applied to works produced before 1998. Which would not be optimal, but I am glad that there is opposition to this law.
The DMCA has at least raised some people's conciousness about copyright law. I remember that when this law was passed, it basically received no mention on Slashdot.
Lessig's story sounds like a good candidate... (Score:2, Interesting)
My prediction (Score:4, Interesting)
Majority decision(4 justices signing): Court of Appeals errored in deciding that the copyright law is immune from First Ammendment attack. Sent back to Court of Appeals for an actual trial
Minority supporting majority (2 justices signing): In addition to the majority statement, congress was incorrect in not considering the quid pro quo implied in the copyright section of the consitution. Giving to copyright holders, and not returning the favor to the public is inequitable and against the original intent of the signers.
Dissent (3 justices signing): What a bunch of quacks.. Congress can decide what limited means, what constitutes quid pro quo... Justices are writing the law... we love mickey mouse blah blah blah.
This is by far the most likely scenario. The copyright clause was written before the 1st ammendment, therefore ruling that it is immune from 1st ammendment analysis is quite wrong and getting 6 justices to agree on that should not be a problem. On the more general question of wether the law is invalid or not, the supreme court will not rule in general (although they will send very strong hints to lower courts), but sending it back to the lower court to reanalyze for first ammendment reasons is quite a good solution to the problem. In addition I suspect they will tell congress that they are being stupid and patents and copyrights were created under the same law, and giving 14 years to one, and 70 years + life of author to the other is rediculous.
If the Supreme court does say that the copyright laws are immune from first ammendment analysis it would contradict most of their previous rulings on the first ammendment. I feel this decision is basically open and shut on the 1st ammendment issue and a very long shot on the other 2 arguements.
Re:Eldred v. Ashcroft is semi-doomed (Score:4, Interesting)
In fact, if you read the brief, he does exactly that. The constitution makes provisions for both Free Speech and the types of protections that Patents and Copyright afford. This is not about Copyright being trumped by Free Speech. That would be like having two Popes trying to excommunicate each other. That could never happen...
This is how the brief petioning the Supreme Court to hear the case begins:
This case is about the limits on Congress' Copyright Clause power.
Not peripheral--rule against perpetuities (Score:4, Interesting)
Before you ever get to look at the 1st amendment issues and balancing, you have to look at the limited grant of power to Congress in the case of IP, period. I would have to comment that I am not even vaguely familiar with the history of decisions in this area, but I suspect at lot of effort has been made to engage in the "balancing" types of consideration that has preoccupied the courts for the last century. Lawyers tend to cover all bases in a brief, and the longest and most convoluted arguments, making up most of the page count of the brief may be just make-weight, in the sense you are trying to argue there is no great harm (balancing act) if you rule as I suggest in my first paragraph. Arguing both law and fact, if you will.
The first copyright monopoly was for 4 years, if I remember correctly. There are fundamental limits on Congress' powers in this area in the explicit wording of the constitution, and the evidence is that the first congress understood what was meant by those limits. There seem to be good arguments that Congress does not even have the power to give an artist copyright on the artist's own works for the period of the artist's own life!!! In any event, there is a profound legal principle that nothing may last forever, and to say that the Gershwin heirs or Disney Inc. (or the heirs of Elvis or John Lenin) have any residual rights to their work more than 21 years beyond their death (or after the creation of Mickey Mouse, in the case of the inanimate Disney) violates the common law rule against perpetuities, and thereby certainly violates the limited power of Congress to grant monopoly rights for limited terms.
Sorry about the AC.
Re:Screw trademarks... (Score:3, Interesting)
I know what USPTO stands for.
The solution is to charge for patents what they cost to grant, and then hire competent examiners. Less patent applications equals fewer bogus/frivolous patents. Maybe. Perhaps there might be some technical solution to finding prior art, I don't know.
FWIW, I could care less about the RIAA/MPAA. Consumers will pay for whatever they shovel regardless of how long they can exclusively shovel it. Abusive patents, which are sometimes enforced "retroactively", hurt industry and consumers at a deeper level. Absurd patents in a rabidly litigious society are much worse than some sweat shop making bootleg Mickey Mouse ears, IMO.
-B
Re:Getting others to fight for their freedom (Score:2, Interesting)
Intellectual Property, like flying pigs, cannot be found in nature.
True. Neither can representative government, property rights, or any of a hundred other necessary ingredients of a free and open society. Your point?
Re:Where Disney's Material Came From (Score:1, Interesting)
In the case of Disney, the point is they borrowed from the Grimm brothers' collection. The collection included works that were folkloric, but the Grimm's tellings of the stories were protected by copyright. Had the Bono Act been in effect, Disney could not have made such films Snow White or Cinderella without paying the publishers of the Grimm tales. Copyright law allows Disney to freely appropriate works from the public and gives the public nothing in return.
Congress has allowed Disney to craft legislation that protects the interests of Disney to the detriment of the public. Perhaps because there is no effective way to lobby for something as basic as Language or Storytelling or Discourse. The public is simply not being heard in Congress. The courts are needed to restore balance and defend the public interest, including the basic rights of free expression.
Re:Eldred v. Ashcroft is semi-doomed (Score:2, Interesting)
Actually, considering all of the RIAA's drivel about protecting the artists from copyright infringement by Napster users, they generally don't keep track of what songs bands play live (even huge multi-platinum bands) in the US. This means that even though artists are supposed to get royalties for performances of their songs, many times they never see them, or never even know their songs are being performed by other artists in the first place. As soon as someone releases a CD, though, I'm sure someone takes notice.
So write your own damn material. This glomming on to the creative and hard work of others under the guide of "free speech" is disgusting.
I tend to agree with you. However, there is some legitimacy to the argument when you consider the history of covers in music and transitioning pieces from one art form to another. While the vast majority of covers are just the same thing done by a different band, there are definite examples of people truly being creative with someone else's piece (though the original writer doesn't always like the results). Personally, if I had never heard Jimi Hendrix, I could absolutely say that I disliked everything Bob Dylan's ever done. Hendrix made it clear to me that Dylan was a good writer, though not a good performer (and, obviously, not everyone agrees with me).
hope he looses (not flame) (Score:3, Interesting)
The cause of all these problems is our own moral failure to see copyrights not as some type of incentive or property rights, but as the evil form of controll that they are. It reminds me of indentured servitude - it started out as short term, un-inheritable, for all races, and usually offered land at the end of the term. But unfortunately it set the seeds for a system of slavery that became unbearable and ripped the USA apart, now I see the same with "intellectual properties" - if we don't cut it off at the root, it will just come back to destroy us in another form.