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Patents The Courts

Retiring Justice John Paul Stevens's Impact On IP Law 106

Posted by kdawson
from the long-shadow dept.
Pickens writes "Corporate Counsel recounts the profound legacy of Supreme Court Justice John Paul Stevens, author of the majority opinion in what some consider the most important copyright ruling of all time — the 1984 Betamax decision (Sony v. Universal City Studios) that established that consumers have a personal 'fair use' right to make copies of copyrighted material for non-commercial use. Justice Stevens's contribution to the ultimate decision in Betamax extended well beyond writing the opinion. The justices' initial debates in the case make it clear that Stevens was the only one of the nine (PDF) who believed that the 'fair use' doctrine gave consumers a right to make personal copies of copyrighted content for home use. It was his negotiating skill that pulled together the five-vote majority allowing home video recorders to be sold and used without interference from copyright holders. An IP litigator is quoted: 'The ruling that making a single copy for yourself of a broadcast movie was fair use ... that was truly huge, and was a point on which the court was deeply divided.' So the next time you're TiVo-ing an episode of your favorite show, remember to give a quick thanks to Justice Stevens; and let's hope that whoever President Obama appoints to replace him will follow in Stevens's footsteps and defend Fair Use, not corporate copyright interests." The review also touches on Stevens's "patent skepticism," which may be on display when the court delivers its eagerly awaited Bilski ruling.
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Retiring Justice John Paul Stevens's Impact On IP Law

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  • Right (Score:2, Funny)

    by kyrio (1091003)

    "and let's hope that whoever President Obama appoints to replace him will follow in Stevens's footsteps and defend Fair Use, not corporate copyright interests."

    That's what's going to happen.

    • Re:Right (Score:5, Informative)

      by walt-sjc (145127) on Sunday April 18, 2010 @07:46AM (#31886536)

      "Golden Boy" Obama has surrounded himself with ex-lawyers from the RIAA / MPAA. Good luck on getting a good appointee.
      http://www.osnews.com/story/23002/Obama_Sides_with_RIAA_MPAA_Backs_ACTA [osnews.com]

      • by Hatta (162192)

        Who exactly are you quoting when you say "Golden boy"?

      • Indeed (Score:1, Informative)

        by Anonymous Coward

        FTA: let's hope that whoever President Obama appoints to replace him will follow in Stevens's footsteps and defend Fair Use, not corporate copyright interests.

        HA HA HA HA HA HA HA HA HA HA HA!!!

        I needed a good laugh. Thanks.

  • by ciaran_o_riordan (662132) on Sunday April 18, 2010 @07:18AM (#31886432) Homepage

    It's probably a very good thing that Bilski is being written while Stevens is still there. He was involved in all the previous subject matter cases, and the Supreme Court never said software was patentable in those. They also said a bunch of useful things like that math isn't patentable, and that putting instructions such as software onto a computer was a "mere clerical" act.

  • As a network analyst, I care more about the IP laws as defined by http://www.ietf.org/rfc.html [ietf.org]
    (TCP/IP in case anyone missed the joke)
    Wouldn't it be great if real life laws were codified by RFCs?

    • by hey! (33014) on Sunday April 18, 2010 @07:35AM (#31886496) Homepage Journal

      Oh, I didn't miss the joke. I'm still a little fuzzy on the humor.

    • by bkpark (1253468)

      Wouldn't it be great if real life laws were codified by RFCs?

      Real laws by "requests for comments" (RFC)? That sounds like either despotism (by pimply CS grad students) or anarchy. I don't care for either.

      As much as current democracy/Congress is likened to sausage making, I think this sausage is far preferable to that mess.

      • Re: (Score:2, Informative)

        by Jah-Wren Ryel (80510)

        Real laws by "requests for comments" (RFC)? That sounds like either despotism (by pimply CS grad students) or anarchy. I don't care for either.

        As much as current democracy/Congress is likened to sausage making, I think this sausage is far preferable to that mess

        Sucks to be ignorant, doesn't it?

        One of the best things about RFCs is that, whenever possible, the final draft is defined by the results obtained from multiple prototype implementations. Versus the current system of law making in Congress which is more about the demagoguery of professional bullshit artists than it is about empirical results.

    • Re: (Score:3, Funny)

      by Cyberax (705495)

      Black helicopters are dispatched. Please, don't leave the area, citizen.

      TCP/IP now stands for Trusted Computer Platform / Intellectual Property.

    • I think we need something along the lines of what you do with kids when they have to split something like pie. One of them cuts it in half, but the other one gets to decide which half they get. Therefore the kid making the cut has a great incentive to be fair. I'm not sure how you would do that in politics, though.

      • by mpeskett (1221084)
        For IP law, we could let the RIAA write out a list of rights that copyright owners should have, then the public get to decide whether copyrights belong to the artists and corporations or to the public domain.
  • One man's game (Score:3, Insightful)

    by gzipped_tar (1151931) on Sunday April 18, 2010 @07:28AM (#31886454) Journal

    Last time I checked, the USA is supposed to be some kind of a democracy. Therefore, instead of hoping for a Wise Person getting appointed, why not use the democracy-ishness and get your stuff fixed?

    • Re: (Score:3, Informative)

      In the USA, the President appoints judges, and the senate votes for or against those nominations. Sadly, the Obama administration has ties to Hollywood, and will probably appoint another anti-consumer judge...and the senate, under Democrat control, is not likely to vote against such a judge.

      You could say the democracy is broken.
      • The senate is not likely to vote against such a judge based on those criteria at all. Let's face it: a nominee's ideas on IP law are going to be the last worries during confirmation proceedings. It's "degree of judicial activism" on the right. I don't know what it is on the left. Haven't heard the buzzwords from that side just yet.
      • by DesScorp (410532)

        "You could say the democracy is broken."

        And you'd be wrong, because the vast majority of the population aren't Slashdot geeks, and thus the majority is indifferent to copyright law. The status quo is just fine with them. That means they're uninterested, not that democracy is broken. Convincing them to care is YOUR job, not some judges.

    • Re: (Score:2, Redundant)

      Better check again, than. The US is a Constitutional Federal Republic (representative government created and limited by a Constitution), not a democracy (mob rule).

      • Re:One man's game (Score:5, Insightful)

        by mindstormpt (728974) on Sunday April 18, 2010 @07:52AM (#31886558) Homepage

        You, as many slashdot users, seem to be a bit confused on the meaning of the word democracy. The concept you seem to be referring to is that of direct democracy. Most democracies today are representative democracies, in which the "rule of the people" is carried out by their elected representatives. It is not at odds with the concept of republic: most western countries are republics (of varied kinds), and they're all (all that I can think of) democratic.

        • Re: (Score:3, Interesting)

          by shaitand (626655)

          I always did love the democratic republic or representative democracy angle. It's a great way of trying to dupe people into thinking the nation is ruled by people.

          Of course the reality is that people have little to no power in the current United States therefore it isn't a democracy at all, direct or otherwise.

          • Re: (Score:3, Funny)

            by Lakitu (136170)

            It really did work! I was under the impression that every country was ruled by people of some kind, even if few in number.

            What exactly is running all these countries? Aliens? Lions? Something that passes the turing test?

            • Re: (Score:3, Funny)

              by shaitand (626655)

              Not all of us group politicians and their overlords in with humans.

            • by selven (1556643)

              Servant 1: Ok, let's fire up the machine. Bring us the list of world news so it can make an informed decision.

              Servant 2: Here you go. (passes paper to Servant 1)

              (Servant 1 feeds paper into machine)

              Servant 1: Ok, here goes. Let's see how it responds to the scandal in the UN.

              (shredder noise heard)

              (d20 heard bouncing around inside)

              Servant 2: Look, the answers are coming out.

              Servant 1: (grabs output) Ok, let's see.

              Servant 2: Continue oppressing citizens. Send missiles into Pacific Ocean, near Japan. Put resourc

        • Re: (Score:1, Insightful)

          by Anonymous Coward

          most western countries are republics (of varied kinds), and they're all (all that I can think of) democratic.

          Yeah well, except for the minor "western" countries that aren't such as:
          UK
          Spain
          Canada
          Australia
          New Zealand
          Sweden
          Norway
          Denmark
          The Netherlands

          • Those are constitutional monarchies where the monarch is a figurehead and the parliament holds all the legislative power, plus the power to establish an executive branch. So the effect isn't much different from a democratic republic.
        • by jedidiah (1196)

          No. The term Democracy is usually abused by the ignorant or those with a willfully deceitful agenda.

          There is indeed a difference between a Democracy and a Republic.

          The Republic addresses the scaling issues of the Democracy.

          The term Democracy is used because we tend to hope that the character of it remains as we address the pragmatic issues with implementing it for 300 or 500 million people.

          • The Republic addresses the scaling issues of the Democracy.

            The term Democracy is used because we tend to hope that the character of it remains as we address the pragmatic issues with implementing it for 300 or 500 million people.

            I'd like the think that the Internet is one step on the way to making direct Democracy feasible again even with hundreds of millions of people. Perhaps we could all be "present to vote" virtually and make our voices heard directly.

            It would be a huge undertaking, but I think it's a goal worth striving for.

            • It would be a huge undertaking, but I think it's a goal worth striving for.

              Why? The masses are uninformed, easily swayed sheep without the time or resources necessary to properly investigate any given piece of legislation. not only that, but most of them wouldn't vote anyway. I'm not saying a republic is perfect, but its still better than what a direct democracy would be.

            • Even Machiavelli knew that democracies didn't work once you scaled them up. It doesn't matter what technologies you introduce to help make the world "smaller", mob rule (democracy) is not good. It's simple-majority rules with no minority rights. The major benefit of a republic is that the minority not only gets to be heard, but often time gets what it needs, too.

      • Thank you for getting that point right. I see so many comments that misconstrue the point, and unfortunately many of those come from politicians. More disheartening is that so many of the people in the US have become convinced we are a democracy, and are often vehemently opposed to anyone telling the truth.
        • Thank you and no kidding. Look at how I've been modded down as redundant while the OP got modded up as Insightful. What?! That's ok, though. I know this is /. and stuff isn't supposed to make sense.

    • Re:One man's game (Score:4, Insightful)

      by WrongSizeGlass (838941) on Sunday April 18, 2010 @07:38AM (#31886508)

      Last time I checked, the USA is supposed to be some kind of a democracy. Therefore, instead of hoping for a Wise Person getting appointed, why not use the democracy-ishness and get your stuff fixed?

      We kinda-sorta already do. One of many metrics used to measure a potential presidential candidate is the type of Supreme Court Justice(s) he/she might nominate for appointment. Their judicial appointments are reviewed if they were a governor, and their votes on federal and/or Supreme Court appointments are reviewed if they were a senator. Some Independent voters, as well as "undecideds", consider a candidate's positions on abortion rights, gun rights, civil rights, etc, and the type of Justice they will nominate, when choosing who to vote for.

      • by shaitand (626655)

        In order for that to qualify as democracy-ishness wouldn't the people electing those candidates be a bare minimum? The electorial votes elect presidents, individual citizens don't get a vote. Even if they did, the diebold voting machines are rigged.

    • I've been following US politics for ~ the last 2 years and have repeatedly observed that political change now occurs when Corporate groups buy off large numbers of politicians who then do their bidding.

      Any Democratic or popular reactions / movements have to counter that especially if ANY of their goals are opposed by the Corporate lobby. I suspect this could be done either of 2 ways: the movement would have to represent an overwhelming majority, threatening opponents re-elections or the movement would have

      • by youngone (975102)
        There is a third way too. It tends to involve guns and people getting killed, but eventually it will probably have to happen for the United States to get back towards some sort of Democratic government.
  • by WrongSizeGlass (838941) on Sunday April 18, 2010 @07:29AM (#31886456)
    ... to make a "fair use" copy of Justice Stevens (non-betamax, of course) ;-)

    I'd love to hear his take on DRM, ACTA and this crap [slashdot.org].
    • Re: (Score:1, Insightful)

      by Anonymous Coward

      Obama will replace him with someone anti "fair use". He was put on the throne by the media, and they will now be calling in favors. Expect IP law to get a lot worse for the consumer.

  • Well, Obama's first appointment, Sotomayor, was another corporate-friendly judge, so we can expect the same from his next appointment. Which, with Bush appointments gives the court a solid ant-citizen/pro-corporate majority. Expect more confirmation of corporate abominations like the DMCA and ACTA.
    • Re: (Score:3, Insightful)

      by SplicerNYC (1782242)
      Sadly, I don't doubt this at all. The entertainment industry has invested heavily in the Democratic Party hoping for support for their draconian wishlist. We're moving in the wrong direction here especially when it comes to the concept of fair-use and copyrights. The notion of the public domain is becoming extinct in practice as perpetual copyrights are put into place for corporations that hoard them.
  • by gink1 (1654993) on Sunday April 18, 2010 @08:05AM (#31886588)

    I'm sure this will be said far better by others, but an unbiased, non-Corporatist appointment by Obama is a pipe dream!

    Obama is a ardent Corporatist which you can see by his "Health Care" Bill, the bailouts and his undying advocacy for all RIAA, MPAA and Big Media causes (ACTA for one).

    This Court is already a Corporatist court (Corporate Money = Free Speech ruling) and the next appointment will merely cement that.

  • Property vs Rights (Score:5, Insightful)

    by Doc Ruby (173196) on Sunday April 18, 2010 @08:15AM (#31886618) Homepage Journal

    The people need the 21st Century Supreme Court to properly decide the correct balance between property rights and all kinds of other rights, like speech and other expression. And to decide correctly what is actual property and what is just a temporary government monopoly. To recognize that progress in science and the useful arts is promoted when our rights other than a synthetic "copyright" govern the market.

    Or we can keep the 20th Century property privilege that the surviving old members of the Court find every excuse to protect.

    We will see just how much change Obama truly brings. Or whether he's just a corporatist, who protects the only "right" a corporate person could possibly have: maximizing property and the power that comes with it.

  • Stevens's "patent skepticism"

    I thought someone else had patented skepticism. Does he have a license to use it?

  • by mark-t (151149) <markt@@@lynx...bc...ca> on Sunday April 18, 2010 @08:54AM (#31886776) Journal

    ... that making a personal use copy of a work should be considered fair use.

    Consider that even when one might happen to simply mentally remember their experience of a movie, they are, in essence, creating a temporal copy of that experience for themselves, and quite arguably even a derivative work of it, yet under any notion that unauthorized personal use copies of copyrighted works would not be fair use, simply by _THINKING_, one can be breaking the law.

    Regardless of the enforceability aspects that come into play with this sort of thing, I find that anything which might make what a person could happen to think against the law, even if only by technicality, or else a violation of anybody else's rights to be nothing short of an abomination.

    As an aside, I abhor patents on computer algorithms for the same reason.

    • by mark-t (151149)

      Okay, it's bad form to reply to ones own post, but I'm genuinely curious here... how does my above post qualify as a troll?

      I'm not objecting to being modded down, per se, but I'm wondering what I said in the above post that somebody thought I was trying to troll.

  • Now more than ever, it's vital we pay attention to the candidates the Obama Administration puts forward.

    In light of VP Joe 'Hollywood' Biden's unbridled support by and for media industries and the Administration's inability to take a principled stand against the financial, insurance or pharmaceutical lobbyists, as well as its apparent pursuit of unbridled Executive power, it's dubious that the candidates we see coming from this White House will be equal to the chair being vacated by Justice Stevens.

    If you

  • by aronschatz (570456) on Sunday April 18, 2010 @09:36AM (#31886958) Homepage

    I see posts that are advocating legislation from the bench. This is not the purpose of the court. The court is only there to decide the constitutionality of an issue. They are not there to do anything more.

    If you don't like the law, you need to petition congress... UNLESS the law is unconstitutional, then you can take it to the courts.

    • Re: (Score:3, Insightful)

      by hibiki_r (649814)

      But that's the point: 'limited time to promote the science and the arts'. Our case is that copyrights aren't limited, and that their length, and the retroactiveness of the extensions, doesn't really fit what the constitution states, as a very long copyright term hinders creativity more than it promotes it.

      Same thing for patents: What one can do with the same patent term 100 years ago is so much less than you can do now, that in fact keeping the patent length the same is effectively an extension.

      Ah, if Lessi

    • Re: (Score:3, Insightful)

      by jedidiah (1196)

      I dunno...

      I think it's the courts job to declare that "limited times" does not infact mean continual retroactive increase in terms.

      It's the courts explicit job to interpret new laws in light of "THE LAW". They aren't just spectators. They are equal partners in governance.

      People like to belittle this fact and also tend to neglect that "legislating from the bench" is what judges in the common law system do. The Judiciary serves an important role in our government with our system their power shouldn't be so ca

    • Marbury v. Madison made legislating from the bench the main purpose of the court.

  • by butlerm (3112) on Sunday April 18, 2010 @09:42AM (#31886994)

    The justices' initial debates in the case make it clear that Stevens was the only one of the nine who believed that the 'fair use' doctrine gave consumers a right to make personal copies of copyrighted content for home use

    That is a bit of an overstatement, don't you think? Recording an over the air broadcast for later viewing is not quite the same thing as exchanging bootleg copies of Photoshop, etc. There doesn't appear to be any indication that Justice Stevens endorsed the latter.

  • We are screwed.

  • Obama might find a liberal like Stevens who can replace his ideological position, but where's he going to someone with the negotiation skill, influence, and ...oh yes... seniority to make liberal opinions and liberal majorities happen?

  • Mr Roger's testimony also helped Stevens writer the majority opinion about Video Taping : http://en.wikipedia.org/wiki/Fred_Rogers#Mister_Rogers_and_the_VCR [slashdot.org]

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