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Eldred vs. Ashcroft 310

Posted by michael from the steamboat-shenanigans dept.
Sylver Dragon writes "Business week has a story about Eldred v. Ashcroft. Seems that Eldred wants to put some of Robert Frost's works on the web, but, sadly, those were copyrighted. What makes this more interesting, is that the works would have become public domain, had congress not extended the length of copyright after an artists death. So now, the Supreme court must decide if congress overstepped the bounds of the constutional provisions for copyright laws, when they made the last extension. With any luck, the Supreme Court will choose the "road less traveled."" The plaintiffs have a webpage with much information.
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Eldred vs. Ashcroft More

Eldred vs. Ashcroft

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  • Darn.. (Score:5, Funny)

    by Frank of Earth ( 126705 ) <frank AT fperkins DOT com> on Saturday September 28, 2002 @12:50PM (#4350345) Homepage Journal
    .. I wish there were some good sites [google.com] to read about Robert Frost [google.com]

    or if you want to take the road less travelled [alltheweb.com]

  • Fewer cheap books? (Score:4, Interesting)

    by LinuxInDallas ( 73952 ) on Saturday September 28, 2002 @12:51PM (#4350348)
    I noticed that one of the other plantiffs listed on the webpage is Dover. I have bought quite a few of their books in the past. They are great, mostly reprints of old texts bound in paperback and sold dirt-cheap. Their cheap price but good quality makes them a great additional reference for when you have to go through calculus, physics, etc. The extension of the copyright most likely means they have fewer choices for books they can print. That's too bad.

  • BookMobile (Score:2, Informative)

    by Anonymous Coward
    Brewster Kahle from the Internet Archive has a 'side project' called the BookMobile which leaves San Francisco on Monday to travel across the US to Washington DC.

    His arrival in DC is scheduled to coincide with the Supreme Court hearings. More details at :

    http://webdev.archive.org/texts/bookmobile.php

  • From the webpage... (Score:4, Informative)

    by GreyWolf3000 ( 468618 ) on Saturday September 28, 2002 @12:53PM (#4350360) Journal
    Legal Documents

    In this section, we have collected the legal documents involved in the case. The case began in a federal district court. We appealed the decision of the district court to the Court of Appeals for the D.C. Circuit. That court's decision is now before the Supreme Court. Click on a link below to read the briefs and decisions at each state.

    District Court (Jan 1999-Oct 1999) [eldred.cc]
    Court Of Appeals (May 2000-July 2001) [eldred.cc]
    Supreme Court (Oct 2001-present) [eldred.cc]

    How You Can Help

    Contribute to the Eldred Legal Defense Fund

    While the lawyers in Eldred v. Ashcroft are donating their time, litigation before the United States Supreme Court is still expensive. Your donation, however large or small, can support our fight to preserve the public domain.
    If you would like to contribute, please send a check to:

    Eldred Legal Defense Fund

    c/o Carinne Johnson
    Stanford Law School
    Crown Quadrangle
    559 Nathan Abbott Way
    Stanford, CA 94305-8610

    Attach a logo to your web page

    If you'd like to help spread awareness, take one of these sample buttons, save it to your site, and use the sample code provided to link back to this site.

    The logos are on this [eldred.cc] page.

  • Excellent Wired article (Score:5, Informative)

    by Murphy(c) ( 41125 ) on Saturday September 28, 2002 @12:53PM (#4350361)
    There is and excellent Wired article [wired.com], that touches the subject.
    It gives you the idea of why they had to go with a "low profile" like Eldred and not some one like Michael Hartthe of the Gutenberg project.

    Really an interresting read.
    Murphy(c)
    • I can't believe he actually said this!
      "I am a great admirer of Larry Lessig," says Jack Valenti, Hollywood's master lobbyist. "But Congress has the power to say what 'limited' is. It's there, it's unambiguous. Fifty-five men in Philadelphia decided it, and there's no way a court can overrule that."

      Umm, I believe the courts can decide that something passed by congress is unconstitutional Jack. The courts can pass judgement on any law that comes before them and strike it down if they please.

  • Copyright Length (Score:2, Interesting)

    by Student_Tech ( 66719 )
    Why do the copyrights have to be so long anyway? If a creator of a work dies lets their heirs control what can be done with the item, those heirs will likely be dead before the copyright will be up. At this rate someone could have died durring WWII and their copyright on their works would still be good.

    Just a thought.

    • Re:Copyright Length (Score:4, Interesting)

      by broken_bones ( 307900 ) on Saturday September 28, 2002 @01:31PM (#4350500)
      I'd say that copyright lengths have been extended primarily because the copyright holders have lobied for it with great vigor. Corporations like Disney have obvious economic reasons for wanting copyrights extended. They want to make money on everything they can and don't want competition from someone else using public domain works that Disney created. (ie Disney doesn't want to compete with a new Mickey Mouse movie based off the Steam Boat Willy (sp?) cartoons.) From a greed standpoint it makes sense. Competition is by its very nature tough and everyone likes things to be easy if at all possible.

      For non corporate copyright holders (I'm really speaking about families of deceased content creators) there is a sense that the work is "something special to our family." Recenty a family member of mine discovered that a long dead distant relative wrote a hymn that is now in the public domain because no one renewed the copyright.* Family members were actually distressed because they preceived that our family had lost something (despite the fact that no one had yet found a complete copy of the hymn). The hymn was pretty obscure and wasn't going to make anyone rich but people were concerned about the loss of a piece of our family history.

      In a way this is a real case of the squeeky wheel gets the grease. While people advocating what I'd call "reasonable copyright lengths" have and do lobby I've never seen that they do it with the same vigor as the copyright holders. I'd also have to admit that copyright holders have arguments that sound pretty good. Companies can moan about "lost revenue" and "negative economic impact" while families have a great line with stories about "family history" and such. (Although I have mentioned families throughout this reply I think that most of the lobbying etc. is done by corporations as they have the most to lose.) While these arguments are, in my opinion, unsound they are convincing and there isn't a politician out there who wants to be seen as anti-economic or anti-family-history.

      *Here I'm just repeating what I was told. I nevery bothered to verify any of this myself because I support short copyrights and am happy that the work is now in the public domoin.
    • "At this rate someone could have died durring WWII"

      WWII was less than 60 years ago, so we've already reached that point. Try WWI.

  • Related (Score:4, Informative)

    by GigsVT ( 208848 ) on Saturday September 28, 2002 @12:55PM (#4350369) Journal
    This [utoronto.ca] is probably the best collection of public domain poetry. Enjoy.
  • Supreme Court upholds copyright extension vs. Supreme Court rejects copyright extension

    Shall we start the odds at 1:1000000?

    "All your judgements are belong to us"

    • Re:Now taking bets: (Score:5, Insightful)

      by Proaxiom ( 544639 ) on Saturday September 28, 2002 @02:25PM (#4350738)
      I don't think you've look at the questions the Supreme Court will be examining.

      There are two:
      1. Did the D.C. Circuit err in holding that Congress has the power under the Copyright Clause to extend retroactively the term of existing copyrights?
      2. Is a law that extends the term of existing copyrights 'categorically immune from challenge under the first amendment'?

      Note that neither question would strike down the entire act. The first, if they agreed (and many think it is likely they will agree), would strike down the retroactive portion of the law. The second only asserts it is possible to strike down the law through such a challenge, because the D.C. Circuit said it was not.

  • Comment removed (Score:3, Insightful)

    by account_deleted ( 4530225 ) on Saturday September 28, 2002 @12:57PM (#4350376)
    Comment removed based on user account deletion

    • Re:Whats wrong with this law? (Score:5, Insightful)

      by Raul654 ( 453029 ) on Saturday September 28, 2002 @01:03PM (#4350398) Homepage
      Except that the circuit court disagrees with you. In that case (it was an appeal of an earlier one) the judge did state explicitely that the incrimental expansions, done retroactively, (a) do not inspire the artists to create more (Walt Disney sure doesn't benefit) and (b) when taken together, they *are* indefinite. It is the natural state of things that their copyrights should expire. Copyrights should be expiring every year. In fact, they aren't. Nothing has entered the public domain this way in *decades.*
    • It extended the law by set amount of time, not indefinately, which means that the "limited time" clause is still literally true.

      So if they extended it to 1000 years, it would still be constitutional?

      discoveries- aka, published words and inventions - not digital representations of movies, music, cartoons,

      I know you know better, but confusing copyright and patents is not a good thing to do when discussing this stuff. Scientific facts also cannot be patented, which most things that qualify as "discoveries" would be.

      TCEA is a valid law by way of the Constitution, even if it is harmful

      Is it? I think it goes against the clear spirit and meaning of the constitution. That's what the supreme court is there for anyway, to interpert the meaning of the constitution.

      A much better way to make this unjust law go away is through Congress

      That would be nice, but it is mostly the same congress that passed it, why would they change their mind now?
      • Comment removed based on user account deletion
        • Would it?

          *Limited* times. With respect to a human lifetime, 1000 years is not limited.

          Nothing has fallen out of copyright since almost 50 years before I was born. How is that limited?
          • While I agree with your cause, your statement is wrong. Sorry if this is nitpicking, but when it comes to legal semantics, you want to be as precise as possible.

            Works can enter the public domain 2 ways -

            1) Authors can wave it at anytime before it expires (and this does happen a lot, just check out the baen free library [baen.com]).

            2) Works continued to enter the public domain (via expired copyrights) up until the first of a series of copyright extensions in 1961. The statement "Nothing written within 50 years of my being born has had its copyright expire" would be correct, but yours is not.
          • Psuedo-Limited. As soon as the additions are likely to run out, they will add more.

            (o/t) The 1000 year thing - I highly doubt that the empire that is the United States will even be around in another thousand years. All states of greed and corruption will die eventually. Even if it remains the United States it must be in a different form. More like a world government will be there then (hopefully a good one)
        • > So if they extended it to 1000 years, it would still be constitutional?
          Sadly, yes.

          Maybe congress should try to push it a little farther. The next law could extend the copyright for (as my old calculus professor would put it) "a large, but finite, amount of time".

          IOW, too large to represent with any number system, but technically not actually infinity. Who knows, it could still satisfy the constitutional mandate for a "limit".

        • So if they extended it to 1000 years, it would still be constitutional?

          Sadly, yes.


          I think the Supreme Court will agree that the writers of the Constitution meant "limited" in the human sense, not the mathematical sense.

    • Is it provable in a court of law that extending the duration of copyright by this set amount of time promotes the progress of science and useful arts, or are promoted just as much by the previous duration?

    • Re:Whats wrong with this law? (Score:5, Insightful)

      by Corgha ( 60478 ) on Saturday September 28, 2002 @01:16PM (#4350445)
      To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

      This is giving Congress the right to regulate copyright, essentially.


      I think the argument would be that retroactive extension of copyright does not satisfy the phrase "to promote", because of the rather obvious temporal properties of causality. You cannot promote the occurrence of something that occurred in the past.

      There is also the matter that repeated retroactive extensions, each one happening shortly before Mickey Mouse expires, do not really satisfy the phrase "limited Times".

      The Constitution does not say "To do whatever they like, by securing to Authors and Inventors and the Corporations that employ them the exclusive Right to their respective Writings and Discoveries" -- it does not grant Congress the right to regulate copyright as they see fit, but instead gives specific indication of the circumstances under which this legislative restraint on speech and trade is to be allowed.

      • There's also the point that the exclusive rights are secured *to the authors* for a limited time. Now that does not preclude the author from selling this right to a publisher. But the extension of copyright does not grant anything to the author, who is dead. Perhaps the descendents of the author could sue the publisher, saying that when the author sold his copyright interest he received payment for the 50 years (or whatever) outstanding, but never received any payment for these extra years which Congress is creating. Instead of the 20 years accruing to Disney or whoever, they should be granted to the authors' descendants.

        (If copyright extension is to be granted at all, which I'd hope not - giving extra monopolies to descendents of long-dead authors is a sucky idea and not really any better than subsidizing Disney.)

    • Re:Whats wrong with this law? (Score:5, Informative)

      by dreamword ( 197858 ) on Saturday September 28, 2002 @01:19PM (#4350455) Homepage
      Agreed that this should go away through Congress. However, the constitutional case against it isn't as weak as you suggest.

      As Lessig, Sullivan, et al.'s brief [harvard.edu] notes, the argument is not that Congress doesn't have the right to regulate copyright, but that the clause imposes limits:
      • "To promote the Progress of Science and useful Arts" -- The key word here is "progress." While it can be said that handing a pile of cash to Disney and RIAA/MPAA members will lead them to produce more content (since they have a pile of money), the petitioners say this isn't good enough. They say that promoting progress can't be done just by handing piles of money to, say, Gershwin's estate, at the public's expense, since Gershwin's estate can't do anything for progress, since Gershwin's dead.
      • "For limited times" -- True, 90 years is a limited time. However, there has to be a limit to Congress's power to extend otherwise the time wouldn't be limited. And if there is a limit, we've reached or exceeded it. The retroactive portion of the CTEA really pushes the outside of any reasonable definition of "limited".

      There's no doubt that copyright fosters invention and discovery. We're not talking about abolishing copyright itself. We're just saying that handing out a longer copyright for a piece of progress that's already completed can't possibly foster invention or discovery, especially when most of these windfalls are going to corporations representing the works of dead guys.

      -- Dreamword
      (Becoming a common law fan more and more each day)

      • Don't get me wrong; I hate the Bono Act [pineight.com] as much as anybody else here. But I still can't resist the urge to play devil's advocate:

        Gershwin's estate can't do anything for progress

        Wrong. The royalties from "Rhapsody in Blue" help pay for the education of those named in Gershwin's last will and testament, so that they can go to music school and eventually continue to produce new musical works.

        The retroactive portion of the CTEA really pushes the outside of any reasonable definition of "limited".

        According to a mathematician, infinity is still a limit. Positive infinity is the limit of 1/x as x approaches 0 from the positive side.

        • Wrong. The royalties from "Rhapsody in Blue" help pay for the education of those named in Gershwin's last will and testament, so that they can go to music school and eventually continue to produce new musical works.

          Another point of view: at some point, it's time to quit coasting on Daddy's legacy and either do something cool yourself, or get a real job.

        • Re:Devil's advoacte (Score:5, Insightful)

          by Alsee ( 515537 ) on Saturday September 28, 2002 @03:24PM (#4350930) Homepage
          But I still can't resist the urge to play devil's advocate

          In that case I'll just play devil swatter, chuckle

          The royalties...help pay...to produce new musical works.

          True, in that manner it could promote progress. I can't find the link at the moment, but I'm pretty sure that is "an unearned transfer of money by government fiat". Better known as a tax. I think it doesn't fly for that reason.

          According to a mathematician, infinity is still a limit.

          While I often bemoan the fact that there isn't a single scientist, programmer, or mathematician in the entirety of the US government, that works to our benefit in this case. The word "limited" is present, and for legal purposes it is required to be interpreted in a reasonable and MEANINGFUL sense. If it had no effect then they wouldn't have bothered including it.

          There is absolutely nothing in the constitution to say exactly what the meaning of "limited" is, and unless they can dodge the question the court has no recourse except to substitute their own best judgement. They get to define it any way they like. On this point we can toss the lawbooks out the window, it's all about getting the judges to be sympathetic to our position.

          -
    • "Limited time" is terribly vague, but "To promote the Progress of Science and useful Arts," is clear. Extending copyright so that a corporation which did not create a work, can continue to rake in bucks, and prevent artists from producing similar works, does not promote the progress of Science and the useful Arts It stifles those things. Arguing this point may serve the public domain better than arguing over what "limited time" meant.

    • Re:Whats wrong with this law? (Score:5, Insightful)

      by rgmoore ( 133276 ) <glandauer@charter.net> on Saturday September 28, 2002 @02:53PM (#4350847) Homepage
      It extended the law by set amount of time, not indefinately, which means that the "limited time" clause is still literally true.

      Lessig actually had a very interesting counter-argument for this point. His argument was that in a legal sense, limited means not only finite but also for a fixed time. If you allow retrospective extensions, the time is no longer limited because it can be extended indefinitely. He argues from a standard legal position, that when a lawyer is given an extension for his case, the time is no longer limited. I'm not sure if that's actually a standard usage, but if it is then it's a very strong counterargument.

  • Is anyone planning to go to the Supreme Court on October 9 to let the Justices know their opinion?
    • Haha, sorry. I am actually not too far away, and had thought about it, but all the seats are usually gobbled up very quickly. I found out on a trip there about 5 years ago that they only set aside a few dozen for the general public anyway. (All the rest of the seats are reserved for participants and amicus observers) So unless you feel like tailgating the night before so you get in line early (god, this sounds like a star wars movie) I doubt you are going to get a seat. Plus, even if you do get in, they are anal about absoluste silence from the public.

    • Re:Protests (Score:2, Informative)

      by avandesande ( 143899 )
      The justices are not supposed to care what your opinion is. There duty is to interperet the law.

    • Re:Protests (Score:4, Funny)

      by anthony_dipierro ( 543308 ) on Saturday September 28, 2002 @02:50PM (#4350836) Journal

      Is anyone planning to go to the Supreme Court on October 9 to let the Justices know their opinion?

      Yeah, the lawyers.

  • Every google search I've tried has come up with websites that either are put up either by the plantif or someone who filed an amicus brief in favor of the plantiff. Can anyone find something in support of Asscr^H^H^H^H^H^H err, Ashcroft?
    • From the article, it sounds like their case is pretty weak. They pretty much say that the law is a bad law, but that's OK since there's nothing stopping Congress from making bad laws (they're right, but I don't think that's a great argument). They also contend that it's not for the courts to decide what's appropriate copyright law. I'd bet there's more than one justice that wouldn't take too kindly to that :)

      Unfortunately, the defenders do have the Constitution on their side. Hopefully the Court will look at the trend of copyright extensions that effectively turn "limited" into "unlimited". Or they might question the retroactivity of the law (Congress isn't supposed to make retroactive laws). Or maybe they'll pull a Roe v. Wade and stike down the law just beacuse they don't like it :)
      • They're already one step closer to that than you think. One of the circuit court judges said explicetely that incrimental+retroactive changes in copyright law have made it, essentially, indefinite. The other side of the arguement is that there has always been a quid-pro-quo in copyright: the author benefits from being given a temporary monopoly (this is his incentive to create), while the public benefits from the author's wisdom. But with retroactive expansions, there *is* no quid-pro-quo, therefore it does not promote the "arts and useful sciences", therefore it is unconstitutional.
        • It's just that this time it's between Disney and Congress.

          The fact that we have to expend so much time and effort just to get the legal system to recognize such an obvious injustice points back to the fact that the government is in need of fundamental reform. Get the money out of campaigns and the courts would never have to entertain such a travesty.

    • Sure, there are a few friends of the court briefs for the defense. The one I found interesting was from Dr. Seuss Enterprises, et al [harvard.edu]...

      Their argument is that by extending copyright, the holders have been able to release the property in formats that did not exist or might not have been possible at the time of the original writing. Siting in particular the film adapatation of the Grinch and its subsequent release on DVD. They also mention derivative works in the form of CD-ROM games.

      Now, there's no great argument that someone couldn't or wouldn't take a public domain source and create similar treatments. After all, part of Edred's argument is that the bulk of Disney's early feature work was based on Bros. Grimm fairy tales, and Disney Corp. has had no problem exploting new forms of media with material that's a few hundred years old...

  • That's not the title (Score:2, Offtopic)

    by Hatter ( 3985 )
    The title of the poem you're thinking of is "The Road Not Taken." It would also be a good idea for you to re-read the poem, there's more meaning to it than most pick up on the first read. Frost's poetry is deceptively simple sometimes.

    Care [bartleby.com] to [poets.org] read [wsu.edu] it [freehosting.net]?

    • The title of the poem you're thinking of is "The Road Not Taken." It would also be a good idea for you to re-read the poem

      Er... maybe you should re-read the poem. The last stanza in particular. That's where the quote comes from.

      -Rob

  • Promoting progress through copyright extension (Score:5, Informative)

    by smiff ( 578693 ) on Saturday September 28, 2002 @01:20PM (#4350458)
    According to the government, if they can come up with just one reason that retroactive copyright extension promotes progress, the law is constitutional. They also argue that the constitution does not restrict congress at all. Here are some arguments taken from the defendants legal briefs:
    1. By extending copyrights, congress is allowing large copyright holders to continue generating revenue from old works. The copyright holders then invest that revenue in new marginal and high risk works.
    2. Historical practice confirms that "Limited Times" does not mean a single, inalterable, limited time. Every single copyright extension has extended the copyright of existing works.
    3. The CTEA's application to existing works increases incentives for copyright holders to restore and disseminate their works.
    4. The CTEA's impact on international trade promotes progress in the United States.
    5. The CTEA is not part of a string of infinite expansions, but rather a means to harmonize copyright with the European Union. "In an era of multinational publishers and instantaneous electronic transmission, harmonization in this regard has obvious practical benefits"
    6. If the CTEA is limited in regards to future works, it must necessarily be limited as it applies to existing works as well.
    7. Thomas Jefferson signed the 1808 and 1809 patent term extensions into law, and James Madison signed the 1815 patent term extension into law. Thus the nation's founders never meant "limited times" to mean "unalterable limited times".

    • Re:Promoting progress through copyright extension (Score:5, Interesting)

      by sqlrob ( 173498 ) on Saturday September 28, 2002 @01:49PM (#4350577)
      Wasn't there a study of what was in print in 1925 that is still in print now show something along the lines of 30 works out of 10,000?

      If there was incentive to restore and disseminate works, wouldn't this have been a lot higher?

    • Re:Promoting progress through copyright extension (Score:4, Interesting)

      by anthony_dipierro ( 543308 ) on Saturday September 28, 2002 @02:17PM (#4350701) Journal

      According to the government, if they can come up with just one reason that retroactive copyright extension promotes progress, the law is constitutional.

      They also have to show that the law is not unconstitutional under the First Amendment.

      By extending copyrights, congress is allowing large copyright holders to continue generating revenue from old works. The copyright holders then invest that revenue in new marginal and high risk works.

      Maybe. And maybe is probably enough, because ties go to the defendent.

      Historical practice confirms that "Limited Times" does not mean a single, inalterable, limited time. Every single copyright extension has extended the copyright of existing works.

      That's irrelevant as to whether or not copyright law which does not "promote the progress" of science and arts is constitutional.

      The CTEA's application to existing works increases incentives for copyright holders to restore and disseminate their works.

      As opposed to increasing incentives for everyone to restore and disseminate their works. I don't buy it.

      The CTEA's impact on international trade promotes progress in the United States.

      You need to be more specific there. How does this promote the progress of science and useful arts in the US?

      The CTEA is not part of a string of infinite expansions, but rather a means to harmonize copyright with the European Union.

      Harmonizing with the EU is not a valid reason to pass an unconstitutional law.

      If the CTEA is limited in regards to future works, it must necessarily be limited as it applies to existing works as well.

      Why? The argument is that "limited" means limited to that which promotes the progress of science and useful arts. Just because the CTEA WRT future works arguably promotes progress, that doesn't imply that the retrospective parts do. Further, it doesn't go to the First Amendment part of the argument, for the same reasons.

      Thomas Jefferson signed the 1808 and 1809 patent term extensions into law, and James Madison signed the 1815 patent term extension into law. Thus the nation's founders never meant "limited times" to mean "unalterable limited times".

      Eldred is not arguing that "limited times" means "unalterable limited times." Your strawman is irrelevant.

      Let me note that I still think it's about 50/50 here, based upon your argument #1 and similar ones like it. Actually the best argument I've heard is that this law encourages those who have created works in the past that are protected under trade secret law to publish those works. The problem is that while it seems obvious to me that this retrospective extension is not going to promote the progress of science or the useful arts, the fact of the matter is maybe it could. And that's enough, because it's the job of Congress to make that decision, not the job of the Supreme Court.

      All of that said, the Appeals Court seemed to have made a terrible mistake by saying that copyright law is "categorically immune from challenge under the First Amendment." I think there's a good chance that the case will at least be remanded back with instructions to consider the First Amendment issues.

      • Actually the best argument I've heard is that this law encourages those who have created works in the past that are protected under trade secret law to publish those works.

        You're right, this seems to be the only argument that might hold any merit, even though (at best) any impact on progress is probably very marginal (if there is any at all). But it also depends on the legal interpretation of "promoting progress". If something was invented or created by a company 70 years ago but never released it might be argued that extending copyright will encourage the owner to publish this material rather than letting it sit in a vault forever. However, isn't this really just dissemination of the work, not actual progress? While extending the copyright might give the owner economic encouragement to share the work and thus arguably promote the state of the art available to the public, I would argue that any progress took place 70 years ago but was just never released. Also, from a practical point of view, anything sitting in the vault for so long likely has such a limited value that they may be more inclined to give it away. Companies may even be hesitant to bother releasing these things to the public right now because they fall into a bit of a grey area - not worth supporting, but also not worth making public domain before their time because users may find it complicated to tell whether it really is public domain or not. They may even have liability issues in some cases.

        As an aside, the argument that extended copyrights add no incentive to create is strongly supported in the official court documents by a number of leading economists, including just about every notable living American Nobel prize winner. Everyone with an interest in IP should read these documents as this case is probably the most significant copyright/IP case ever. Even if they lose (which will only mean that is the language of the law is found to be consistent with recent interpretation) I hope this case will bring awareness to the fact that our modern interpretation of IP as a right is in absolute contridiction to the original intentions of the US founding fathers.

    • windfalls are not an incentive to invest (Score:5, Insightful)

      by stevenj ( 9583 ) <stevenj@@@alum...mit...edu> on Saturday September 28, 2002 @02:29PM (#4350749) Homepage
      By extending copyrights, congress is allowing large copyright holders to continue generating revenue from old works. The copyright holders then invest that revenue in new marginal and high risk works.

      There is an amicus brief by 17 economists [harvard.edu] (including Nobel prizewinners) explaining why that argument is wrong, and also refuting other supposed incentives for new works from copyright extensions. (In fact, they argue that copyright extension forms a disincentive to new works by expanding the monopoly on building-block materials.) An excerpt:

      One might argue that the windfall to authors of existing copyrights has a positive consequence, by providing them with more resources for additional creative projects. However, this argument ignores the profit maximization decision of a producer, which takes into account the producer's cost of capital for a given investment. In general, a profit-maximizing producer should fund the set of projects that have an expected return equal to or greater than their cost of capital. If a producer lacks the cash on hand to fund a profitable project, the producer can secure additional funding from financial institutions or investors. If the producer has resources remaining, after funding all the projects whose expected returns are higher than the cost of capital, this remainder should be invested elsewhere, not in sub-par projects that happen to be available to the firm. If a producer pursues the same set of projects in any event, then its incentives will not be improved from the mere fact of a windfall from consumers.
    • * Every single copyright extension has extended the copyright of existing works.

      Did you paraphrase that, or is that how they actually wrote it in their legal brief?

      I hope the latter, because a statment as horribly circular that could poison the judjes against their entire case :)

      -
      • * Every single copyright extension has extended the copyright of existing works.

        a statment as horribly circular that could poison the judjes against their entire case

        Why is that circular? You can extend the length of copyright in general without extending it for existing workds.

    • Re:Promoting progress through copyright extension (Score:4, Informative)

      by nathanh ( 1214 ) on Saturday September 28, 2002 @05:27PM (#4351310) Homepage
      Thomas Jefferson signed the 1808 and 1809 patent term extensions into law, and James Madison signed the 1815 patent term extension into law. Thus the nation's founders never meant "limited times" to mean "unalterable limited times".

      Lessig isn't arguing that the "limited times" should be unalterable in the sense that you are presenting. He's arguing that once a work is created the expiry-time for that work should be unalterable. Lessig says that if the creator accepted X years copyright protection before creating the work, then a retroactive copyright extension to X+N years does not (and cannot) encourage the creator to create more work or better work. There is no value to society from retroactive copyright extension.

  • Excellent briefs (Score:5, Informative)

    by Saib0t ( 204692 ) <saibot@h[ ]eria-mud.org ['esp' in gap]> on Saturday September 28, 2002 @01:33PM (#4350510)
    If you have a bit of time on your hands, reading the briefs can be an englightening experience.
    Both are written in "plain english" that any of the slashdot readers should be able to understand.

    I'm not going to discuss them, the article on wired does that, partially...

    For those interested, the links are:
    Reply Brief for the Petitioners [harvard.edu] and
    Government Response Brief [harvard.edu]

    • I second that; often times when a court case is brought up here, much of the reasoning in the brief (or relevant court finding) is ignored, and even many of the +5 comments fall into the most basic category of opposition. They often say something like "the RIAA/M$/corporations" are somehow in control of everything and are pushing unconstitutional laws and are influencing the tech-unsavvy opinions of the judges.

      The truth is that the judges are very, very smart people, and even if you disagree with them. briefs and findings of facts and such provide a more insight and lead to better debates.

  • Best line ever! (Score:3, Interesting)

    by hrieke ( 126185 ) on Saturday September 28, 2002 @01:37PM (#4350532) Homepage

    Moreover, the CTEA's backers say, the question of whether the law is good policy is entirely different from whether its action is constitutional. When has it ever been illegal for Congress to pass bad laws?

    Gotta love logic like that- you can't take this to court since it deals with Congress's ability to pass bad laws!
    • I think the meat of their argument is that it's an obviously bad law, and they would have the best chance if they could get it overturned on those grounds. Unfortunately I don't think the semantics of our legal system will allow them to get at the heart of the matter. Instead they have to argue that congress is not constitutionally allowed to make such a law. I'm not familiar enough with the law to predict the outcome of that, but it seems a lot less likely to go in their favor.
      • No no, keep in mind that the surpreme court overturns good laws occasionally too. (Good, depending on your political orientation) But I agree with the grandparent to this post - that the courts should only look at the constitutionality of laws, and not whether or not they are good (that is not their purpose)
        • Can't the courts decide if a law follows the spirit of the constitution, so to speak? Yes, constitutionally Congress has the right to pass things like the Sonny Bono Copyright Term Extension Act [216.239.35.100]... but do you think preserving the copyright for a cartoon mouse [disney.com] created by a man who is long since dead is what our founding fathers had in mind? Copyright laws were created both to give the author/artist incentive to create new works *and* to ensure at some point new works could be created based on older stuff.

          This is exactly how disney became so popular, by using the work of authors that had gone into the public domain! Snow White [pitt.edu], Cinderella [ucalgary.ca], The Little Mermaid [gilead.org.il] are just a few examples of older works that Disney has used.

          Now Disney, and other huge corporations like Sony etc. are trying to make sure that no one else can do what they have done. This, to me at least (I am not a Supreme Court Justice) goes against the spirit of the constitution. From the SFGate Story [sfgate.com]:The original decision made more than 200 years ago to limit the length of copyrights was deliberate and carefully considered. The goal, which was expressed at the time in letters written by Thomas Jefferson and others, was to allow newcomers to build on and improve works produced by others, but only after the original creators of those works were compensated fairly for their efforts. The reason: Human progress builds upon itself."

          These companies are trying to stop progress, and trying to stop other from doing to them what they did to the brothers Grimm, Hans Christian Anderson, and Victor Hugo. [online-literature.com]
          • I agree that it is ironic that disney wants to prevent others from doing exactly what it did. But that is irrelavent. When you say , constitutionally Congress has the right to pass things like the Sonny Bono Copyright Term Extension Act, I disagree. Retroactive copyrights are *not* constitutional (see one of my others posts for the reasoning). How much the court takes the "spririt" of the law into consideration depends on how stricly you want to interpret it. Just thank god Robert Bork is there now.
            • Just thank god Robert Bork IS NOT there now. Holy crap, what a horrible typo to make.
            • Yes, you are correct. After further reading on my part, it would seem the retroactive part is plainly unconstitutional. Striking down one part of the act will not affect the rest of it unfortunately. As far as whether the irony is relevant or not, I'm not sure I would agree with you. I am hoping that possibly the fact that Disney pushed this will help to point out the fact that this greatly harms the ability to create new works from old material. Time will tell I guess.
      • Blockquoth the poster:

        I think the meat of their argument is that it's an obviously bad law, and they would have the best chance if they could get it overturned on those grounds

        Well, "bad law" has two meanings:

        "Not truly suited to advancing the public interest"

        "Unconstitutional"
        The Supreme Court is empowered to rule only on the latter. The purpose of a legislature is make the laws and to fix laws not fulfilling the public interest -- that's why we have elections, so that people can express their views and pick legislators who will tune the laws to the public's melody. The purpose of judicial review is to make sure everyone's playing by the rules -- that no one has subverted the protections of the Constitution. That's why the justices aren't elected -- to provide some immunity to the winds of political debate.

  • No doubt, the public policy of well-monied interests getting special treatment granted to them by Congress every so many years at the expense of the public domain is of dubious value to society. No doubt, the "social contract" between authors and the public that is Copyright hardly requires such overreaching. To the contrary, the Sony Bono bill was bad law, bad policy and generally bad bad bad.

    That isn't the question in Eldred v. Ashcroft. Here, the question is whether it is unconstitutional. I say this, because I would like my colleagues on Slashdot to realize the high likelihood that the Supreme Court may not opt to overturn this law, and can do so with the highest appreciation for all of these concerns. Deference of the judiciary to the Congress to make decisions, even bad decisions, is the rule, and it is highly likely that the rule will be followed in any given case.

    But here, as the various briefs filed on both sides might indicate [eldred.cc], the issues are far from trivial. I would commend to my colleages a careful reading of ALL the briefs, and all the issues before concluding that the Supreme Court has an easy call to "do the right thing." Legally, it is far from obvious that Eldred has the best of the argument.

    In short, the vitreol may more properly be directed to the Congress that chose to pass the law than to the Court that may merely conclude that it is not its province to reverse a lousy decision made by the Legislative and Executive branches.

  • Is this really "to define the digital age"? (Score:5, Interesting)

    by dipfan ( 192591 ) on Saturday September 28, 2002 @01:40PM (#4350544) Homepage
    While I support the Eldred/Lessig position, this Business Week article doesn't really tell us anything new or interesting about this case that hasn't been seen here before.

    In fact, it's overblown. This case is hardly "a case to define the digital age" as the article has it. This is an argument about whether Congress can extend legacy copyright from 50 to 70 years after the death of the holder. So if the government wins, what changes? Nothing. The European Union changed its copyright term to 70 years throughout the EU back in the mid-1990s, and I don't see that it's made much difference. If corporations are going to lose "billions in lost revenue" then they will 20 years down the road instead.

    The copyright laws apply to all media and performance styles. Digital is but a small part of all the possible media consequences, of course, although it will get more important.

    The worrying implication, I suppose one could make, is that if the CTEA is waved through, then the way is open for Congress to keep punting out the copyright envelope out further and further (perhaps to protect Mickey Mouse) - 100 years, 120 years, why not 150 years? Sadly, that's not the direct issue in this case.

    The article is also confused about copyright of works themselves and other issues, such as format, editing, translation and so on. The Adobe issue the article mentions isn't about Middlemarch's copyright (which has unambiguously expired) but about proprietary formats - anyone in the world can buy a old copy of Middlemarch, sit down and type it out and post it on their website or print it off. As for Aristotle's Politics - someone has to translate that into English (for example), and edit it, and maybe do footnotes and an introduction. That's different than the underlying copyright of the work itself. But Business Week doesn't clock that.

    But what I really fail to see is that somehow, if Eldred et al win, this has implications for the DMCA. These issues are so different that there isn't an obvious connection from one to the other (except that both the CTEA and DMCA suck generally). Copyright issues involving software and so on are much more akin to pharmaceuticals and medicine than books and poems - but that's really another story. I can see there's a global connection - Congress having a constitutional imperative to pass copyright laws that promote "science and useful arts". But that's going to require a case by case, or an act by act, resolution, whether Eldred wins or not. Traditionally, the Supreme Court sends those type of issues back to Congress to decide, and that's probably what will happen here, so don't hold your breath.

    • There is one way I can see for this to affect the DMCA. If the copyright extension law is overturned, all that would need to be done would be to find a DVD containing a film that subsequently entered the public domain (Steamboat Willy, anybody).

      I believe that in that case it may be possible for a skilled lawyer to show that the DMCA was unconstitutional since there is no provision in it for removing access restrictions from works which subsequently enter the public domain. But as usual IANAL, YMMV, etc.

  • Literature/fiction as open source (Score:4, Interesting)

    by rakeswell ( 538134 ) on Saturday September 28, 2002 @01:55PM (#4350600) Homepage

    The case of HP Lovecraft's fiction seems to confirm that current copyright laws do defeat the aim of promoting new works.

    Lovecraft wrote wierd ficton up to his death in 1937. In his fiction, he develops what has become known as the "Cthulhu Mythos", an outlook and setting for cosmic horror. During his lifetime, he actively sought collaboration with others to work with this "mythos", and extend it.

    Because of when he wrote much of his fiction, and due to details concerning how his estate handled the copyright of his body of work [gizmology.net], much, if not all, of his fiction is today in public domain.

    Partly because of how he actively sought other authors of wierd fiction to participate and extend his mythos, and partly because of the fact that his work is still in public domain, there have been very tangible results:

    • Authors are still contributing to and developing his mythos,
    • A pnp game company has based an RPG on his works (Call of Cthulhu [chaosium.com]), which has inducted so many new people to HPL's works (including me),
    • Movies are made (though poorly), based on his works,
    • and most importanly, people are still reading Lovecraft's fiction -- and it's available online [gizmology.net], and in print.

    Many years ago, I loaned out all my Lovecraft books, and inevitably, no longer have them. When I recently underwent a hankering to re-read these great stories, I downloaded them into my visor using Plucker. I've also gone out and restocked my library with printed versions of Lovecraft's works.

    From this small sampling, I think it's very clear that Lovecraft's openess and the copyright status of his works have truly encouraged people to keep creating and building on his foundation.

    There is a staggering number of books which are under copyright, but have long since gone out of print. How much knowledge is unavailable because of this, and how many new works which could have been built or inspired by them were never created?

    I shudder to think that it would be quite possible that Lovecraft could today be out of print because of copyright. Had others not built on his work, I doubt as many people who are fans of his work would have had the chance to be exposed to him, and thus preclude demand for his fiction.

  • lost revenue (Score:5, Funny)

    by Kenshiro ( 6045 ) on Saturday September 28, 2002 @01:58PM (#4350617)
    I love creative arguments:
    " And it would be a grand defeat for corporations, which claim they would forfeit billions in lost revenues."

    And if Congress doesn't let me pass this bill requiring each of the earth's 6 billion inhabitants pay me an annual tax of $1, I stand to lose billions!

    (a nice portion of which I'll hand over to lawmakers who see things my way...)
  • If I remember correctly, I was taught the copyright laws were there to allow the creator of "some thing" to prevent big faceless corporations from making a mint without passing along some of their good fortune.

    It seems to me that copyright laws are becoming a a method of allowing big faceless corporations to screw the public out of as much money as possible.

    The government counters that the 1998 Act promotes the arts by protecting their economic value, thereby fostering greater incentives to create.

    What a load of fetid dingoes kidneys. I've never met anybody with a creative flair who does it for the money.

  • Government's position flawed (Score:5, Insightful)

    by dh003i ( 203189 ) <`dh003i' `at' `gmail.com'> on Saturday September 28, 2002 @04:10PM (#4351082) Homepage Journal
    Another slashdot user posted a summary of the government's defense of the CTEA. Unfortunately, every one of the government's points is completely invalid.
    1. By extending copyrights, congress is allowing large copyright holders to continue generating revenue from old works. The copyright holders then invest that revenue in new marginal and high risk works.
    Please. How much profit can be generated from something 70 years ago? On the scale things today, its next to nothing, if anything at all. And there's no gaurantee that even if they do profit, they'll use that profit to invest in the creation of new works. If the government is to make a point like this, it should be the rule, not the exception. It is the rule that the vast majority of copyright holders will not make either trivial or no profits from this; and its heads or tails as to whether they'll use it to invest in new works.
    2. Historical practice confirms that "Limited Times" does not mean a single, inalterable, limited time. Every single copyright extension has extended the copyright of existing works.
    Historical practices also confirm that we should enslave African Americans and burn witches at the stake. The point? Simply because something was done in the past does not make it proper or constitutional. The USSC ruled that it was constitutional for our government to keep innocent Japanese citizens locked up in camps without due cause; that hardly made it constititutional. In short, this is an is-ought fallacy. This is the way things are/were, so this is the way they should be. Anyone that buys this argument shouldn't have passed law-school.

    Lets just look at what it says and obviously means, "Limited Times". Meaning that eventually, the copyright will expire. If congress continues retroactively extending the lengths of copyrights, then copyrights will never expire and works will never enter the public domain, as has been the case for decades; works should be entering the public domain continuously. Also, I highly doubt the founding father's meant "Limited Times" to mean life + 75 years. A long copyright term is effectively indefinate from our perspective; Limited Times does not mean its constitutional for Congress to extend copyrights retroactively to last a millenium. For one thing, thats an infinite copyright term from the perspective of us mortals; for another, even shorter terms like 100 years may be effectively infinite, as we have no gaurantee the US will even exist in 100 years.
    3. The CTEA's application to existing works increases incentives for copyright holders to restore and disseminate their works.
    Firstly, this incentive is minimum since there is hardly no profit in it at all. From a profit perspective, author's time would be better spent creating new works, as opposed to restorign old one's. In fact, its undesireable that authors devote considerable time to restoring work; think of what Lucas could have done if he hadn't wasted his and our time making his miserable revised Star Wars IV, V, and VI?

    Secondly, without the CTEA, many many other people would restore these works and publish them (the works being public domain). People would do it for free, as Project Gutenberg would have done. There is a stronger net motivation for all of us to restore an old work, because we care about artistic merit; than for the typical author, because (s)he's concerned with doing something profitable.
    4. The CTEA's impact on international trade promotes progress in the United States.
    That's so vague and unsubstantiated that responding to it is impossible. However, I doubt the CTEA will have any significant impact on international trade.
    5. The CTEA is not part of a string of infinite expansions, but rather a means to harmonize copyright with the European Union. "In an era of multinational publishers and instantaneous electronic transmission, harmonization in this regard has obvious practical benefits"
    Firstly, history shows this is part of a string of a series of infinite expansions; this is but the latest retroactive copyright extension. Why should we trust what congress says? In 70 more years, they'll pass another extension act to "harmonize" with Europe and again make the same absurd claims. In short, we can't take Congress at its word that this isn't one in a series of infinite expansions. Secondly, this harmonization stuff is bullshit. Simply because Europe does things backwards, so should we? If Europe extends copyrights to last a million years, we should do so as well for the sake of "harmonization"? This is obviously another fallacy -- ad-populum. Simply because something is popular (i.e., unreasonably long copyright terms) does not mean it should be adapted. This is like saying "we should steal and lie and cheat because everyone else is doing so and if we don't we'll be taken advantage of"; this is hardly a moral justification, but rather a rationalization. Its essentially saying two wrongs make a right. -1 + -1 somehow equals +1 according to the government; no, it equals -2.
    6. If the CTEA is limited in regards to future works, it must necessarily be limited as it applies to existing works as well.
    Considering the CTEA singly, yes. However, the CTEA must be considered together with all of the other copyright extensions; a work has not entered the public domain in decades. Clearly, Congress will continue extending copyrights retroactively forever, or until Disney stops lobbying them to (w/c is never).
    7. Thomas Jefferson signed the 1808 and 1809 patent term extensions into law, and James Madison signed the 1815 patent term extension into law. Thus the nation's founders never meant "limited times" to mean "unalterable limited times".
    Yes, but i doubt that those extensions were retroactive. Furthermore, they would be mortified at the latest trend of retroactive extension after retroactive extension. Jefferson and Madison never wanted there to be an entire decade where no works entered the public domain.

    Again, this is another fallacy. I don't know what the name of this one is, but in effect its "I'm right by association". Because famous/admired/etc figure X agrees with me, I must be right.

    Essentially, Congress is on a slippery slope to what is effectively infinite copyright terms, from our perspective. They have continually retroactively extended copyrights; the pattern is clear, and its safe to infer that in another 70 years, they'll pass another piece of legislation like the CTEA. Its true that a slippery slope is a fallacy if unsupported. However, in light of obvious trends and other evidence, its not. We see slippery slopes everywhere. Look at computer programming; code has steadily gotten sloppier and sloppier. Look at university tuitions, which have continually been increased year after year, the increases being far in excess of inflation; not so long ago, $10,000 got you into the most expensive colleges; now, its $30,000. Its safe to say that at some point in the future (probably soone than we imagine), it'll be $100,000. Similarly with congress and copyright exetensions. Congress has always found some pathetic faulty reason to retroactively extend copyrights; they will continue to do so unless stopped by the courts.

    Aside from that, there is somthing fundamentally wrong and (I argue) unconstitutional about retroactive laws. In the case of criminal laws, its clearly a violation of people's rights; its obviously a violation of people's rights if congress illegalizes cigaratte smoking and then arrests all the people who've ever smoked a cigaratte in their life. In the case of copyright extensions, it is essentially the government renigging on an agreement with the people. Basically, copyright laws are an agreement between the people, the government, and copyright holders that "we the people will pay taxes to support your copyright rights, and will pay for those works according to market price while they're protected; in exchange, in X years, those works will fall into the public domain". What the government's doing is continually changing both the scope of copyright protection, and the duration, retroactively; it would be like me writing up a contract with you saying that you'll pay me $500 to do something, and then -- without your consent -- changing that figure to $1,000.

    My argument is essentially that (1) In all cases, retroactive laws are unconstitutional; (2) Copyright protections of Life + 70 years are effectively unlimited from the public's point of view, as no one will life the life of an author plus 70 years.

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