Supreme Court Takes Up Scholars' Rights 190
schwit1 writes with this quote from the Chronicle of Higher Education:
"For 10 years, Lawrence Golan has been quietly waging a legal campaign to overturn a statute which makes it impossibly expensive for smaller orchestras to play certain pieces of music. Now the case is heading to the US Supreme Court. The high-stakes copyright showdown affects far more than sheet music. The outcome will touch a broad swath of academe for years to come, dictating what materials scholars can use in books and courses without jumping through legal hoops. The law Mr. Golan is trying to overturn has also hobbled libraries' efforts to digitize and share books, films, and music. The conductor's fight centers on the concept of the public domain, which scholars depend on for teaching and research. When a work enters the public domain, anyone can quote from it, copy it, share it, or republish it without seeking permission or paying royalties. The dispute that led to Golan v. Holder dates to 1994, when Congress passed a law that moved vast amounts of material from the public domain back behind the firewall of copyright protection. The Supreme Court is expected to decide the case during the term that begins in October."
sadly he is going to lose (Score:3)
Both the Copyright and the Supremacy clauses are working against him. Congress has the power to grant copyrights and in Eldred the Court said as long as they theoretically expire at some point in the future then all is well. Also, signed and ratified treaties are, along with the Constitution, the supreme law of the land. Yay for "harmonization."
Re:sadly he is going to lose (Score:5, Interesting)
As far as I know, copyright on works affected by the Eldred decision had not yet expired. I don't agree with the Eldred decision, but I think there's a big difference between extending the term of protection on copyrighted works and granting copyright on works that have entered the public domain. They're simply different issues.
As for treaties and the US Constitution both being considered "the supreme law of the land", such an observation does nothing to address how conflicts should be resolved when one bit of "supreme" law contradicts another bit of "supreme" law. I don't have much confidence in the US Supreme Court these days, but my hope is that any conflicts shall be resolved in favor of US citizens.
Re:sadly he is going to lose (Score:4, Interesting)
You're right that Eldred doesn't directly apply but it reveals the justices thinking. As the infamous Jack Valenti said before Eldred was decided, "Limited means whatever Congress says it means." I doubt much has changed since then.
I don't see how returning something to protection for a limited time conflicts with the copyright clause, perhaps you could elaborate.
Re:sadly he is going to lose (Score:4, Interesting)
That's a good question. I don't really have an answer except to say that restoring copyright on works for which the term of copyright has already expired makes "limited times" a meaningless concept. I realize that's basically the same line of reasoning used in Eldred, but my hope is that extending copyright on public domain works is outrageous enough that the justices will think straight for a change and recognize this.
Re:sadly he is going to lose (Score:5, Interesting)
It's also legally very problematic to retroactively revoke rights. If a work is in the public domain, you have the right to do what you want with it, including performing them publicly and creating derived works. If the work becomes copyrighted again, who owns the derived works? What happens if someone has bought and paid for the copyright to a derived work?
Re:sadly he is going to lose (Score:4, Funny)
If the work becomes copyrighted again, who owns the derived works?
uh, The Walt Disney Company?
ha, this question was a simple one :)
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All law, civil and criminal has some tie to rights, but this is about more than the general principle that such rights exist. As copyright was originally set up, it was all tort law, with no criminal penalties. As more and more copyright law has become criminal law, the ex-post facto situation applies as it always does in criminal law. It's a two step process - first bring some works back under copyright, and only then criminalise some actions involving those works, and by splitting it up into steps, law en
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> That's a good question. I don't really have an answer except to say that
> restoring copyright on works for which the term of copyright has already
> expired makes "limited times" a meaningless concept.
So does repeated retroactive extension. It's the same problem. It's the same mindset.
I see this stuff and I think of Scalia talking with Vader's voice: "I've altered the bargain. Pray that I don't alter it any further".
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I don't see how returning something to protection for a limited time conflicts with the copyright clause, perhaps you could elaborate.
Perhaps not, but try explaining how doing so "promotes the Progress of Science and useful Arts". Do you really think that the creator of something that has actually expired out of copyright into the public domain is going to start creating new works if his (very) old stuff is returned to copyright? In reality, even before the most recent extension of copyright terms it was more than likely that the original creator was long dead before the copyright expired.
Unfortunately, what will happen is that if this
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Copyright stopped having anything to do with promoting the progress of science and useful arts a long time ago.
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"Limited means whatever Congress says it means."
Unless it's the debt limit.
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Would this mean that there was more tat on the supermarket shelves?
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Could you please supply links to any of these studies?
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according to Rufus Pollock "around fifteen years [rufuspollock.org]", the footnote on page 3 points to Boldrin and Levine (2006) for the optimal length of 7 years.
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Thanks. From that PDF file: "As Png (2006) notes, there is a lack of empirical work on copyright generally. Existing estimates of optimal term are very sparse. Boldrin and Levine (2005) calibrate a macro-oriented model and derive a figure of 7 years for optimal term in the United States. (Akerlof et al., 2002) in an examination of the US Copyright Term Extension Act argue, simply on the basis of the discount rate, that a term of life plus seventy years
must be too long. By contrast, Liebowitz and Margolis (2
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Thanks for the research (too bad I can't read Japanese for the first link).
I believe the seven year claim; I just would like some more studies that backed it up. About twenty years was long enough in the age of the Pony Express; why should copyrights be longer now rather than shorter? And back then, the USA ignored foreign copyrights and patents, too.
Here is part of the bigger picture, which references research supposedly by the US Federal Reserve showing that performance is worse on tasks requiring creativ
Re:sadly he is going to lose (Score:5, Interesting)
Actually, there is fairly old case law that affirms that the Constitution trumps any treaty. I'm not sure whether that helps in this case, though, since it's unclear how much weight SCOTUS would actually give the "to promote the progress of science" clause in determining whether Congress has the power to place public domain works back into copyrighted status. Plus, there's the Commerce Clause to rain on everyone's parade yet again.
Personally, I think this would be more interestingly argued as an unconstitutional taking from the public without just compensation in violation of the fifth amendment.
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Especially since that is an argument as to why we can't un-do the recent copyright extensions. They have already been granted, and you can't take stuff away. With this argument, if the extensions stay then the public domain status also stays. Reinstating the copyright was an unconstitutional taking that has to be reversed.
Or, we could put
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Well, ex post facto laws and bills of attainders are interesting, but they do not apply here.
An ex post facto law would retroactively make it illegal to have performed or sold copies of a work during the time in which it was out of copyright. This law change did not do that.
Similarly, a bill of attainder is a bill that declares someone guilty of a crime and strips them of rights without a jury trial. This only does half of that, as it does not declare them guilty of a crime, but merely deprives them of pr
Re:sadly he is going to lose (Score:4, Interesting)
My take on things is not that congress simply has the power to grant copyrights, but that congress has the power to grant copyrights "to promote the Progress of Science and useful Arts". As in, if copyrights are granted for any other reason (e.g. to appease lobbyists or make any entity more money), it is an unconstitutional act.
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Too bad the Supreme Court doesn't care what your take on it is. All they care is how much power they can return to their masters without getting impeached.
Look at what they did in Al Kidd v Ashcroft. It plainly did not matter that Ashcroft's intent was explicitly forbidden by the law. And that was a unanimous decision. The Supreme Court cares about nothing but expanding government power.
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I think that this decision will tell us a lot a
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Well judging from the summary, the issue isn't copyright extension, but *retroactive* copyright extension. Taking a work that is *already* in the public domain away from the public domain entails many issues that don't arise when simply extending copyright. So one who believes in copyright extension might reasonably object to *retroactive* copyright extension. For example it restricts the property rights of people who, in good faith, make legal copies and derivative works while a work is in the public do
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We can judge how sincere the "original intent" crowd is by how they treat this issue.
The original intent crowd sincerely believes that the original intent of the Founding Fathers was to establish a corporate aristocracy.
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I'm going to go out on a limb... (Score:2)
Unless it involves the "b b but terrorists" legal cancer (You have no need to know about this, Citizen. Your betters will not abuse it), then it's 9-0.
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Also, what is your weird idea about terrorists legal cancer? For example, Rasul vs Bush [wikipedia.org] was a huge defense of
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Corporatism definitely [slashdot.org] crosses party [slashdot.org] lines in [slashdot.org] our gov't [wikipedia.org].
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No, it's 8-1 because there's no evident legal basis to overturn the lower courts. The judges decide on the law, they don't actually make it (though they're accused of it all the time). They can't just overturn properly created legislation that does not conflict with other legislation or treaties or the constitution. It will be interesting to see what sort of legal theory for overturning it will be presented (I don't think "too expensive for small guys" will cut it).
Re:I'm going to go out on a limb... (Score:4, Informative)
Thanks to the wonderful SCOTUSblog you can read [scotusblog.com] the opinion below, petition for cert, brief in opposition, petitioners reply, and the amicus briefs.
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It does "promote the progress". If have a 0.000000000000001% greater incentive to create a work of art, because I feel secure that my great great great great grandchildren will be more likely to hold copyright, then it's still an incentive.
The issue is one of costs and benefits, which the constitution doesn't mention (IIRC).
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It also denies progress. If I have to pay 10000000000% more to actually get educated what Art is and how it works and how former artists have done it, I'll might not be able to create any art at all.
What all those theorists about how copyright is an incentive forget, is that being confronted with Art is the greatest incentive of them all. No one will try to invent a song, if he has never heard a song. No one will try to write a novel, if he had never read one. No one will ever perform an act, if he has neve
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Re:I'm going to go out on a limb... (Score:5, Interesting)
No, it's 8-1 because there's no evident legal basis to overturn the lower courts.
There's enough legal basis to uphold or overturn anything that makes it in front of the Supreme Court. They decide based on their personal opinion, then pull legal basis that supports their opinion, ignoring all else. That's why the results of the case can often be correctly guessed before the case is even heard by the Supreme Court. And that's also why it's so important that parties stack the courts to force their opinion on everyone, regardless of the law. No, not all "activist judges" are Democrats. All the Republican judges are as well, they just happen to "activist" in the general direction of the nutjobs that run around screaming "activist judges."
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That this statement even has to be written down represents a miracle of political branding and propaganda.
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They are using activist as a synonym for liberal. Which works because liberals love to run around calling themselves activists.
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The reason that SCOTUS decisions can often be predicted is because law largely functions like computer code. Given these inputs, run through this set of logic gates, and it's likely that you'll get this output.
The thing that adds ambiguity is the same thing that intorduces problems in WIndows XP: support for legacy code. The US civil/criminal code is a HUGE beast, probably constituting as many "lines of code" as are in XP, but not all of the lines make sense in the modern environment. In some cases, these b
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The whole "limited" times thing is a pretty obvious legal basis.
The idea that there is "no basis" here for taking a more individualistic approach to the law is entirely bogus.
In fact, it is the "individualistic" aspects of the Constitution that are supposed to take precedence.
When Lawrence Lessig went to the supreme court (Score:4, Interesting)
So this time the professor has lots of evidence that actual damage is being done. It will be interesting to see if the court changes their opinion based on this new evidence.
Re:When Lawrence Lessig went to the supreme court (Score:5, Insightful)
Lessig answered in abstract terms because it is very, very difficult to quantify the cost of removing something from the public domain. It's easy to see the benefit: just count the revenue generated by the IP for the rights holder. I suspect that Golan is going to run into the problem of "I see that it is too expensive for you to play Prokovief. Why is that more important than Rightholder A making money off of his sheet music?" Damage might be there, but it is always put into the context of the benefit derived from the existence of the copyright. And he's going to lose that battle every time: because music in general is a big market, and therefore there is no need to play a particular piece - but an individual rightsholder derives direct benefits from the royalties of a particular piece that he/she can't derive from any other piece.
Sometimes, in the rush to quantify everything, we forget that part of what makes us a civilization is the culture that we have in common. What is the value of that? I don't know. What price is a life? I don't know either. Sometimes, abstract considerations are necessary to work around the morass that is the monetary valuation of a moral position.
Re:When Lawrence Lessig went to the supreme court (Score:5, Interesting)
With respect, I believe that Lessig also answered in abstract terms because he's a tenured professor with a strictly theoretical knowledge of the law, and (demonstrably) very little understanding of how courts and judges actually operate. Ultimately, his argument was reduced to "Aw, c'mon", and appropriately enough, his textbook knowledge has provided a textbook example of how not to argue a case.
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Re:In Lawrence Lessig's words (Score:2)
Re:When Lawrence Lessig went to the supreme court (Score:5, Insightful)
he's a tenured professor with a strictly theoretical knowledge of the law, and (demonstrably) very little understanding of how courts and judges actually operate
In other words, Lessig argued based on the law. The Supreme Court ignored all that and ruled the way that would please their cronies. There's no way to explain the behavior of the Supreme Court in the past decade that doesn't involve corruption.
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Bribes don't enter into it. It's all about old boys networks, and making sure the right people get in the right places to make the right decisions to benefit the right people. Their "rational" for their decision is nothing but misdirection.
You do realize you can have corruption without bribes right?
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What explanation besides corruption is there for decisions like Al Kidd v Ashcroft? Anyone who respects the rule of law must recognize that our leaders must be not above the law. How do you get a unanimous decision that makes our leaders exempt from the law, unless the Supreme Court is corrupt?
Those who think that was an honest decision are not just borderline insane, they're completely delusional.
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I think it's more likely that he screwed up by not anticipating this question. That's a blunder, of course, and may reflect a little hubris if he thought he had a couple of slam-dunk arguments. If he had a few minutes he probably could have come up with a concrete example, but you don't get a few minutes to think because hostile justices will continue peppering you with questions.
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Weird. I posted that article and nine years laster people are still linking to it.
Re:When Lawrence Lessig went to the supreme court (Score:5, Insightful)
"I see that it is too expensive for you to play Prokovief. Why is that more important than Rightholder A making money off of his sheet music?"
You're probably right that the judges will reason that way, but the proper answer to the above is:
"Granting Rightsholder A the right to make money from his sheet music does not produce any net benefits; it merely transfers money from the buyer to the rightsholder. The transfers need to stimulate production of new works to have a net benefit, and extending copyright on existing works doesn't qualify. Extending copyright on those works does, however, result in a net loss, since they have a hemming effect on the performance of said works, which means fewer people will be able to enjoy and benefit from them."
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Since the only damages the court will consider are monetary, it follows that rights and freedoms have no value and therefore can be ignored.
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http://newsone.com/nation/jothomas/clarence-thomas-reveal-wifes-earnings/ [newsone.com]
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You're conflating two different arguments here:
1. There's no actual harm to orchestras (untrue; and even if it can be argued that the harm is small in purely economic terms, it has a significant effect on academics, research and fine arts)
2. The smaller orchestras have no right to use music without paying (irrelevant, since that right was already granted to them by letting the works fall into the public domain, and taking it back at a later date is similar to confiscation)
You do understand that the issue he
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If I have just finished a month of work creating arrangements of Shostakovich's works for my orchestra next season, then I have just lost a that work. What does public domain mean, if not permanent?
the problem is Google (Score:5, Insightful)
Google, by trying to make money from old works through discriminatory deals with publishers and libraries, has attempted to monetise the public-domain and the nearly-public-domain on a massive scale. No longer is the path to public domain a path to moving ideas and their expression into the people's hands - it's now something that a sufficiently large corporation will try to wrestle control of for itself. The law thus has good reason to view old works as subject to all the usual competition and ownership rules as new works.
The people are as much to blame for their passivity, of course. We, through non-profits and libraries, should have been preparing to distribute old work on a massive scale - to make it clear that it belongs to the people and it is in our interests to hold onto it for our enjoyment. Instead, we lazily allow business to deal with it. We suffer the expected consequences.
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Had Google acted philanthropically, providing free public access to the raw data as works are digitised, that would be fine. And it might still benefit financially out of having the sheer resources to provide some impressive hosting of the works for end users.
But it didn't. It played its usual "information for all - but more information for us than for you" game. Publishers groups etc saw it for what it was and we all lost out.
Re:the problem is Google (Score:5, Insightful)
Had Google acted philanthropically, they couldn't have shown damage from being no longer allowed to do so. Copyright is about business, and to argue about copyright, you have to show a business case.
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Copyright was introduced to fight competition. Read about history of copyright. It had nothing to do with "promoting" or "enriching society".
There were times without copyright and there were plenty of music and other arts.
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So let's block it because they *might* benefit financially. There's no benefit to the public in having all those wonderful but not-worth-reprinting books from the 60's, 70's, 80's digitized and made available for very cheap if not free.
I'd LOVE to get my hands on a copy of T.J. Bass ("The Godwhale") or some of Thomas Burnett Swann's mythology stories, or the REST of Leonard Wibberley's "Mouse" books for my reader.
But no, it's much better that they just disappear from memory, from anyone even knowing they ex
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Google does not attempt to claim ownership of any of these works
Google is asserting that it offers the same access to materials (subject to duty of care) and their raw digitised forms that it has obtained for itself.
__ Yes
__ No
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The good news is it may not matter for creative work. Artists can choose to more
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The discriminatory deals were not Google's idea. The discriminatory deals were the REACTION OF THE PUBLISHERS to Google's attempts to make works more useful and more available including those for which the ownership of the works cannot be easily established.
Google certainly should not have a favored position. However, any favored position was merely a side effect of how middle men reacted to Google.
A more balanced law that acknowledges the problem of orphaned works in a meaningful way is sorely needed. Of c
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Just because something can be, it doesn't mean it is.
You might as well say, "Humans? Murderers." Are you a murderer?
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Good luck with that (Score:2)
"The Supreme Court is expected to decide the case during the term that begins in October."
This conductor is about to see fees double and copyright extensions triple, I suspect.
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Gotta have an enemy and there's one that isn't dangerous but can be portrayed as one. Keep the rabble arguing against themselves.
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Well, "Republican" is less accurate than "corporatist", but given that Republicans are the party of tax cuts for billionaires and a fuck-the-poor, fuck-the-needy mentality, you are more or less correct anyways.
Re:You have the right to be smeared. (Score:5, Insightful)
Like it has anything to do with republicans vs democrats. This is why your country is in such a shambles, the pretense that there is a left and right wing of in US politics and the incessant arguing over who is ruining the country. THEY BOTH ARE. This current debate is about media corporations, of course they will give money to whoever can help them make more money. Of course they don't care what label their puppets campaign under. By arguing about this you are causing the problem. STOP IT.
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Fox News (well, the parent company anyway) gave much more to Democrats than Republicans. Are you going to tell me that it proves that Rupert Murdoch is a liberal running the liberal Fox News? When even the most conservative ones give more to Democrats, you have to wonder what else is going on. Oh w
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Don't confuse the Talent side of the news/entertainment industry with the Business side. It's the Business side that which is ultimately in charge of that industry, and they are in bed with the Republican party. You'll find a similar dichotomy in many industries, where labor leans Democrat and management leans hard toward Republican.
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That was my first thought too, Dems are as bad with Entertainment Big-Business as the repubs are with Banking Big-Business, so I check wikipedia fully expecting Sonny Bono [wikipedia.org] to be a Democrat but I was surprised to learn that Bono was not only a Republican, but that he wanted the copyright term to be perpetual, then I saw he was a scientologist, who have been known for signing 1 billion year contracts. He couldn't have L-Ron's work falling out of protection now could he?
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The 1994 law was passed by a Democrat majority congress and signed by Clinton. Keep knocking back that dkos kool-aid, numpty.
Re:You have the right to be smeared. (Score:5, Informative)
Oh yeah, because when you think Entertainment Mogul - the first thing that comes to mind is a Republican? Are you on crack agin??
* Doug Morris, CEO Sony Music (Formerly CEO of Universal Music), Democrat: http://www.campaignmoney.com/political/contributions/douglas-morris.asp?cycle=08 [campaignmoney.com]
* Lucian Grainge, CEO Universal Music (Owned by Vivendi), Foreign. Democrat PAC: http://www.opensecrets.org/usearch/index.php?q=Universal+Music&sa=Search&cx=010677907462955562473%3Anlldkv0jvam&cof=FORID%3A11 [opensecrets.org]
* Roger Faxon, CEO EMI (Under ownership of Citigroup), Foreign. No open records of contributions
* Lyor Cohen, CEO Warner Music, Democrat: http://www.campaignmoney.com/political/contributions/lyor-cohen.asp?cycle=08 [campaignmoney.com]
(Foreigners can't make political contributions (at least not directly to campaigns), so I looked up PAC funding.)
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Re:US-centric (Score:4, Interesting)
I don't see a problem with articles about conditions in the USA, as long as they make clear they only pertain to US conditions. It only annoys me when someone assumes US conditions apply to the whole world, and I don't think articles (or summaries) here on Slashdot usually make that mistake.
I like to read a lot about US copyright law and foreign policy, because, like it or not, what they do affect things in my own country.
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The questions presented by the petitioners are whether the law violates the copyright clause and the first amendment. The prohibition on ex post facto is only mentioned in the petition in a footnote in reference to a reliance mentioned by the Gov't in Eldred's oral arguments. According to the opinion below, the legislation in question doesn't .
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Whoa, wait, what? Is it just because I haven't had any coffee yet? Or does that say that someone who created a work based on something that was public domain when it was created, would have to start paying the new rights holder after copyright is restored?
That seems to fly in the face of Ex-post Facto to me, r
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Its the Domesday book, (the spelling was different back then I guess)