Lessig's Thoughts On Eldred v. Ashcroft Arguments 268
yokem_55 writes "Lawrence Lessig has updated his blog giving his thoughts on how the oral arguments for Eldred vs. Ashcroft went before the Supreme Court on Wednesday. He discusses the goals and methods he used in framing his arguments to convince the court to overturn the Sony Bono Copyright Term Extension Act, how he felt he did in presenting his arguments, and also provides some analysis on how he thinks the court might rule."
What a case (Score:2, Interesting)
All of this just causes people to look for ways to violate copyrights. Talk about inverse psychology. People will do whatever it is forbidden because it's tempting
Re:What a case (Score:3, Insightful)
Most corporations would completely disregard the environment since it costs them money to keep it clean (but anti environmental practices give them bad PR, so they only mostly disregard it). Disney and co disregard the public domain because instead of a nice fuzzy feeling they'd rather have their cold hard cash, even if it's just a bit. Remember that scene in Fight Club where Cornelius is on the airplane telling some woman about how auto companies measure the cost of settlements to keep quiet a problem with their cars that kills people versus the price that fixing them all would cost? That doesn't seem so far off (remember Firestone?).
My point is that companies don't care squat about the public good. If anything gives them an additional cent, they won't care about the side effects. Since Disney stands to gain an extra couple of cents based on these laws they don't mind about us losing some works forever that won't be preserved.
Public domain doesn't benefit Disney? (Score:4, Interesting)
Of course, when it comes time for Disney to give something back to the commons from which they've drawn so much, it's "different".
Re:What a case (Score:5, Insightful)
The problem with Disney's views is that they're shortsighted- even for Disney. As people have routinely pointed out, Disney has been very aggressive about using public domain as a source for its works- i.e. Snow White, Sleeping Beauty, etc. That means that they could probably profit more than anyone else if the public domain was expanded. Yes, they'd lose the rights to Steamboat Willy, but how much money are they actually making from that? OTOH, Winnie the Pooh would be out of copyright pretty soon, so they wouldn't have to pay royalties to A.A. Milne's heirs for the use of Pooh. How many great movies could be made based on the works of Faulkner, Hemmingway, and the like that are currently being kept under copyright by the term extensions? How great would it be to be able to use Gershwin's music as a background score without having to pay his heirs for it? Why can't Disney see the advantages to them of being able to take advantage of the new works that would be going into the public domain?
Re:What a case (Score:5, Interesting)
Somebody well-funded like the Walt Disney company can pay those royalties, or, if the royalties demanded are outrageous, spend some time and money looking for alternatives. An upstart on a much lower budget might be hampered far more if the copyrights remain.
Re:What a case (Score:3, Insightful)
Everything they do comes from that. Great works are great works. Given a little honesty on Disney Corporations part, I would be willing to bet that the economics of creating great works to build their business on is just a bit tougher than building on those works already created.
Sure, there are the occasional original works, but by and large, the really good stories, and I mean ones that people can identify with, are those that lie just far enough in the past that they can be used a source material while being just familiar enough that people are interested by name alone.
Everyone knows about the stories that Disney likes to retell. This is where the power is for them. Early in school you were told about Pocahontas right? So was I and everyone else that has gone to school which basically means everyone. Now think back to those early years... Do you recall any of your imaginative images of that story? I can, though not well. Now combine that imagery with your young impressionable mind and the importance and intrigue generated by your teacher.
Now forward 30 years or so and see the name again attached to a new attractive movie. You are already sold!
Disney would profit from additional works, but so would others. Right now there are almost *zero* names associated with this particular form of entertainment. Should others begin the art, the Disney name would be diluted. Given how much investment and profit is tied to that, they will do anything to prevent that from happening...
Clearly not a 'maybe' but a must! (From the Disney point of view.)
Its getting slashdotted (Score:2, Informative)
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from the front line
So there's an extraordinary (and extraordinarily interesting) range of reporting about the argument before the Court. As I was on the front line, let me add a bit more. My hope in doing this is to put this in a bit of context, and to highlight at least what we should be looking for. (EV predicts a 6-3 victory, which is significant, because he and I have a bet, and he took the other side.)
Aaron reports Brewster's statement to him that "it was a dance for which I don't know the steps." That's close. I think the better analogy for someone viewing an oral argument for the first time is the first time you see a cricket match. There are some moves you are certain you know are bad (a swing and a miss); but there's lots that plays into something you can't quite get till you know the context of the game. Here, then, the context of the game, as well as the moves from last Wednesday.
the aim
Our aim from the start was to get this Court to view this case in the same frame that they viewed another important line of cases limiting Congress's power -- the commerce clause. In those cases, the Court has said, ours is a constitution of enumerated powers (i.e., the only powers congress has are the powers the constitution gives it); it follows that Congress's power must therefore be interpreted in a way that is limited; in the context of the Commerce Power, the government had argued for a standard (Congress can regulate anything that "affects" interstate commerce) that essentially meant it had no limit; therefore, in a line of cases beginning with Lopez, the Court said we need a different interpretation of "commerce" that actually recognizes limits. Limits, not control of Congress's discretion. Congress has discretion within the limits set by the constitution; but it has no discretion over what, or where, the limits sit.
We want the Court to think in the same way about the Copyright Clause. As Judge Sentelle argued in dissent in the Court of Appeals, the Copyright Clause too is an enumerated power. It too therefore must have limits. But under the government's interpretation of that clause, "limited times" has no limits. Under its interpretation, Congress has a perpetual power to extend subsisting terms. Thus, under the Lopez-line of reasoning, that interpretation must be wrong. Instead, we wanted the court to adopt one of the plain meanings of the term "limited" (limited as in limited edition print) that would also produce an effective limit on Congress's power (that it could not extend existing terms) and would also achieve the ends that the framers sought to achieve (no continuing incentive of Congress to reward, as the Supreme Court said in Graham, "court favorites," but instead to create an incentive for "new" creativity only).
Now that strategy was controversial from the start, especially because some of our natural allies (Stevens, Souter, Breyer) were so strongly opposed to the Lopez line of cases. But our call early on in this case was that they could be brought around to see that even if they oppose the results in Lopez, there was no reason to oppose the same reasoning in this case. Indeed, they could use this case to show why they were right in Lopez: They could argue that unlike the Copyright Clause, the Commerce Clause has no express limitation built into it; unlike the Copyright Clause, the limit the Court has found is wholly implied; thus, they could say, it is not appropriate to imply limits where not expressed. But, they could also say, where a limit is plainly express (as it is in the copyright clause, which is one of only six clauses in Article I, sec. 8 (the part of the constitution with the core grants of power to Congress) that expressly limits a grant of power (the others are clauses 1, 12, 15, 16, 17)), then it is appropriate for the Court to find a way to enforce those limits. In other words, they could write, "for the reasons given in Lopez, you were wrong in Lopez, but it would be right to limit Congress here."
the fear
The greatest fear we had about this strategy (beyond the backfiring point) was that it all presupposed that the Court got it. It presupposed that the Court understood the problem with extensions of existing terms; that it understood the harm that would do to the internet, and the ability of people to build on the internet; that it saw the law as useless. And before the argument we struggled over and over again with how best to focus the Court on the costs, if in fact they didn't get it.
the argument
(1) The most important first indication that was absolutely clear from the argument is that our fear was misplaced. The Court clearly got it. Though the other side had written literally 300 pages trying to show all the good CTEA did (and pronounce it like it is a disease -- sateeeya), the Court hadn't bought any of it. Congress was not acting to promote progress, it was acting to reward "court favorites." The only question the Court was struggling with is whether it has the power to do anything about it.
Now pause for a second to think about how important and good this struggle is. First: It is a rare but valuable exercise for any branch of government to worry about the scope of its own power. And the greatest virtue the Court exercises is the virtue of self-restraint. This is a reason to respect the Court, not criticize it (though how they exercise their restraint, or where, can be criticized, as I suggest below). But the general idea that it will restrain itself, despite believing a law is stupid, is a feature, not a bug in our constitutional tradition.
And second: that they are struggling with this question of restraint means they clearly get the problem. They are motivated to do the right thing; they are resisting the right thing for the right reasons. Both sides are good.
(2) Though it took some hammering, they clearly understood by the end of my argument the dynamic of the argument that we were making. I said, over and over again, that we were advancing an interpretation of "limited times" that had the virtue of actually imposing limits, because otherwise the clause would have no limits. The aim, and I think effect, was to repeat this idea so many times that they had in their heads a simple picture: There was a way to read "limited" so that Congress would not have unlimited power.
Thus, for example, when I said that limited should be read like "limited edition print," Justice Souter interrupted to say that this was a different kind of case (not a contract, etc.), and I said, yes, but we are simply showing you that there is a plain meaning of the term "limited" that actually produces a limit. He's a very careful justice; he got the point, as did the court by the end. That's not to say he bought it, but he clearly gets the dynamic of the argument: if you believe you must impose a limit on Congress's power, here's a way to impose that limit.
(3) The government then helped us immensely by simply confirming what we had said: under their theory of the case, there was no constitutional limit on Congress's power to extend terms; it was always a matter of Congress's discretion. Congress could perpetually extend existing terms; it could even extend a copyright to works within the public domain.
The Court clearly did not like this answer. They had bought the idea that the Constitution intended there to be a limit; the government's interpretation meant that this was a limit that was solely a matter of legislative grace. (Compare: "Under our written Constitution the limitation of congressional authority is not solely a matter of legislative grace.") They were not comfortable with the idea that they would simply say that though the constitution expressly limits Congress's power, it is Congress that gets to say what that limit is.
(4) This gave me the opening I wanted in the rebuttal to say: On the government's view, the Copyright Clause means Congress has total discretion; but that is plainly inconsistent with 125 years of Supreme Court authority. The very first time the Supreme Court ever struck down a law of Congress because it exceeded a particular grant of power in Article I, sec. 8, was in 1879 in a Copyright Clause Case. Since that time, the Court has repeatedly and unanimously imposed limits on Congress's power in the name of Copyright Clause. All of those limits so far have been implied limits. The Court has held that of all the "authors" and "writings" that might be granted copyright, only those that are "original" are allowed copyright; and it has held that of all the inventions or writings that can get patent or copyright protection, only works that are not in the public domain can get the benefit of the copyright and patent clause protection. Both of these limits are implied. Yet here, with the only express limit on Congress's Copyright Clause power, the government was arguing that in effect, the limit was limitless. This, I argued, is fundamentally inconsistent with this 125 year history, and shows the government must be wrong in its view.
(5) Finally, the government's repeated invocation of the "delicate balance" that Congress has struck became too much to ignore by the end. My final point before the Court is ultimately the most compelling politically, though not directly relevant to the constitutional argument: Under the current term of 95 years, under the most conservative assumptions about royalty income and interest rates, the current term gives authors 99.8% of the value of a perpetual term. Put differently, the current "delicate balance" between author and the public is 99.8% to the author,
after thoughts and advice on interpretation (read: clues on the game)
Lots of people have made tons of noise about what the court asked questions about and what it did not ask questions about. In my experience, this is not an indicator of anything. One hour is an extraordinarily small amount of time to consider the issues in this case. They ask question about things that need to be discussed. They let go things that they get from the briefs. When I clerked, oral argument was irrelevant to 90% of the cases; that is because they do their work based on the writing, and unlike most branches of government, they actually do their work.
That said, there was lots I was unhappy we didn't get more of a chance to discuss. Here's an enumeration of what's open and what we've got to win.
(1) 1790 Act: We lose if they are not careful about the interpretation of the 1790 Act. We need the originalists; we therefore need to defeat the government's claim that "CTEA = the 1790 Act." The arguments here are not even close if you pay attention to the history. It is simply and absolutely false to say that the 1790 Act "undoubtedly extended existing terms" as the government says. The 1790 Act (1) did not extend any term (since there was no federal term before 1790); (2) it did not, on balance, effectively extend existing terms (because the law at the time included both state common law and statutory law granting copyrights, and while it may have extended the term of the works protected by the state statutes, it shortened the term of works protected under the common law); and finally (3) even for works protected under the state statute, 3 states expressly stated they didn't mean their statute to displace the common law. Thus, it is more likely the 1790 Act shortened, not lengthened, terms.
That conclusion is supported by the numbers reported by William Maher. He actually counted the number of copyrights granted to works published before 1790. Of the 21,000 works published between 1790 and 1800, we have record of just 699 copyrights. Of the 699 copyrights, only 12 are for works published before 1790. Of the 12, 5 are for works protected by state statute. The remaining 7 were presumptively protected by the common law. Thus, of the records we have, the majority of terms were plainly shortened, rather than lengthened. And the clearest reading of what the framers thought they were doing was simply moving to a new federal regime, and ending the continuing effect of the old state regime.
We need to win this point. Of all the arguments in this case, it is the only one that I am 100% certain of (the rest I'm at 99.8%). But it wasn't discussed much, which creates lots of anxiety.
(2) The Lopez-Eldred link: The other point that seemed lost on the Chief Justice was that this was a Lopez case -- or more importantly, it was a Lopez-plus case. If the Commerce Clause must be interpreted to imply limits, then the Copyright Clause must be interpreted to give effect to express limits. There is no principled way to distinguish them, except to say that between the two, it is the Copyright Clause that more clearly demands judicial enforcement of its limits. Yet the Chief Justice (author of Lopez and this line of authority) didn't seem to recognize the link. If it is not made, then again, we lose. Yet of all the parts of this that will be hardest to accept, it would be a decision that is inconsistent in just this way that would be worst. What possible reason of principle could there be for restricting Congress when it comes to federalism interests, but not when it comes to the public domain, except the ugly reasons? For someone who must teach constitutional law every year, this is the part I fear most.
(3) Which Bright Line: Justices Souter and Scalia were trying to figure out which bright line made most sense: that Congress can't restore copyright to works in the public domain, or that Congress can't extend the term of existing copyrights. The obvious question which no one asked is: Why do we expect works will be allowed to pass into the public domain again? Look at the pattern:
The effect of term extension is to toll (stop) the passing of works into the public domain. In the first 100 years of the republic, the public domain was tolled like this for only 14 years (14%). In the next 50 years, the public domain was tolled for 14 years again (28%). But when CTEA expires, the public domain will have been tolled for 39 out of 55 years, or 70% of the time since 1962. If the Supreme Court says ok to this, then why would anyone expect 70% won't become 100%? The line that says Congress can't restore copyrights to works in the public domain may be bright, but it is in a very dim world indeed.
final thoughts
I am obviously extremely happy with where we are. The Court is struggling with the right issue; they are motivated to get the right answer; they have a clear and simple way to give the right answer; the government has made it very hard to accept its answer. It is always hard to get the Court to strike a law of Congress, but this law is so universally flawed, and the case against it is so universally strong, that I continue to be confident that the Court could choose to strike the law.
I am obviously also unhappy with those "swings-and-a-miss" that happened in the argument. As I said before the argument, if we win it will be because 4 years of activism by many many people have changed the public's view about the importance of these issues. But as someone who believes this the rare case where the law, properly and carefully read, yields one right answer, there is no way I will ever be able to escape the thought that if we lose, it is because I am not the advocate that some could have been. It is the particular hell for lawyers that after an argument, we live in the purgatory of constantly reliving the argument. Every night since Wednesday I have awoken in the middle of the night, to spend the rest of the night reanswering Justice Ginsburg, or asking Chief Justice Rehnquist just how he could distingiush Commerce from Copyright. The kind words of so many notwithstanding, I know and have always known I am not Larry Tribe, or Kathleen Sullivan. And if, after getting this so close to the right result, I have lost this by not being them, then I am not quite sure how I will live with that fact.
So please, no more of the bullshit about "rockstars" or "visionary." I've lived this struggle every moment of the last 4 years; it will take a long time for me to escape it, especially if we don't prevail. I want to turn my head elsewhere, and my heart elsewhere too. So I apologize if I don't follow up on this, or the arguments this might begin. Please, in the spirit of the best of this sphere, carry these argument along, and correct the many mistakes I have made. But I need a night when the limits of this lawyer don't keep this lawyer awake.
I am grateful to an extraordinary number of people, most importantly, Eric Eldred, but also the hundreds who have worked on this case, the people, like Lisa, who slept out at the court to watch this argument, and Brewster who drove across the country to teach the lessons -- too many to count. If we have won, it is your work that has made this happen. That the press chooses to focus differently does not change that fact. At least this space can speak the truth about this fact.
Peace, quiet, and may terms be limited.
posted on [ Oct 13 02 at 4:51 AM ] to [ eldred.cc ] [ 13 Comments ]
keeping focus
Tomorrow the Supreme Court will hear arguments in Eldred v. Ashcroft. In the past weeks, and especially the past week, I've received an extraordinary amount of mail, ranging from wishes of good luck, to demands that I "win." And as well has the press been extraordinary. (Check out Google's cool new service for a list. Even Declan is reporting the story, if only to report that the Ayn Rand Institute has pronounced me a Marxist (along with Milton Friedman, Ronald Coase, James Buchanan and Phyllis Schlafly I assume.)).
When we brought this case 4 years ago, there were many allies who said that there was no way we could win. The reason they were right four years ago is that the world did not yet see how important these issues are, and just what's at stake. In four years, that has changed. Not because we brought this case, or because of anything I've done in this case, but because of an extraordinary number of people who have been pushing to make this issue understandable.
It is extremely hard to win a case like this. I have given it everything I have, and I believe we are right, and have a good shot in showing it. But the important lesson from the attention this case is getting now is this: There is an extraordinary passion and energy out there for the ideals that Eric Eldred and others represent, and that if we do something to push these ideas, we can have an effect.
Thank you for the extraordinary outpouring of support. But please, regardless of what happens here, let us not lose the momentum. Freeing culture is what our framers did; we can do it again, regardless of what 5 justices on the Supreme Court say.
posted on [ Oct 9 02 at 5:09 AM ] to [ eldred.cc ] [ 18 Comments ]
Gotta love this line. . . (Score:3, Funny)
Patents, patents, patents ... (Score:2, Offtopic)
Re:Copyright, copyright, copyright ... (Score:2)
The Court has held that of all the "authors" and "writings" that might be granted copyright, only those that are "original" are allowed copyright; and it has held that of all the inventions or writings that can get patent or copyright protection, only works that are not in the public domain can get the benefit of the copyright and patent clause protection.
OK. It's a technicality and I'm just teasing. But in all seriousness, I remember the days when developers could spend the bulk of their time developing. The overhead introduced (as an ancillary effect of copyright-omania / patent-omania) to avoid inadvertently stepping on patents/copyrights is an increasingly negative pull on innovation. I often wonder if an essential member of any development team of the future will be a lawyer.
Re:Copyright, copyright, copyright ... (Score:2)
I often wonder if an essential member of any development team of the future will be a lawyer.
They already are if you intend to release to the public or sell whatever you're creating.
Quick Summary. Read me. (Score:4, Informative)
Remember that just because a law is "bad" and horribly unbalanced towards lobbists doesn't make it illegal unless there is some specific legal reason the law is unconstitutional.
Basically, Eldred is arguing that because we have a Constitution of enumerated powers (Congress can only do what the constitution specifically allows), that the power to extend copyright must be limited. In other words, the Constitution grants Congress specific powers. If Congress continually extends copyright, than it has unlimited power (which the Constitution doesn't give it).
So far it seems the court is buying this argument. The court seems to be unsure though if it has any power to do anything about it. This is good news to Lessig, because it means the court buys the limited power argument.
The case was also helped by a government bumble. The government argued that there is no constitutional limit on the ability of Congress to extend copyright, thus the extention was legal. This actually helped Eldred because the court did not like this view at all. The court did not support the idea that the constitution limits the powers of Congress, but that Congress gets to set what the limits are. In effect, the government proved Eldred's point themselves.
So there is a fighting chance that Eldred might win. Everyone say a big thanks to people like Lessig who are fighting hard for the public's right to the "creative commons".
To quote Lessig:
"Peace, quiet, and may terms be limited."
Good points - and elaboration (Score:5, Informative)
Remember that just because a law is "bad" and horribly unbalanced towards lobbists doesn't make it illegal unless there is some specific legal reason the law is unconstitutional.
Exactly right - and the Supreme Court would be correct in maintaining a law passed entirely by lobbyists over the objections of 90% of the American people. Why? Because the Constitution doesn't prevent it. And in the U.S., there is no law higher than the Constitution. Immoral, yes, but illegal, no.
I even think this is necessary - because think of the opposite. How many laws were passed with the support of 90% of the people over the objections of lobbyists? Answer: a whole bunch of important ones. Taft-Hartley (sp?) on labor laws, Sherman Antitrust, Amendment 19 (?) (women voting). If we want the people to overrule lobbyists sometimes, we need to let lobbyists overrule us sometimes - because the people can always re-elect a more favorable Congress.
So far it seems the court is buying [the limited powers] argument. The court seems to be unsure though if it has any power to do anything about it. This is good news to Lessig, because it means the court buys the limited power argument.
It's actually a very good thing the court is unsure if it has power. In fact, the court almost ALWAYS asks if it has power to intervene... you'll notice that since the court rejects upwards of 90% of the cases appealed to them. A big part of those appeals are cases where the court doesn't feel it should issue a ruling.
Another example, the Florida election stuff. That debacle was an example of the Court deciding it DID have power (and deciding very quickly, and without much justification). IMO, a more correct ruling would have been to just say that "how a state runs its elections is its own business" and just refuse the matter entirely. This was basically the minority opinion. I'm not arguing the merits or outcome of the decision (I would have remanded it with instructions for a re-hearing, but I'm not a Supreme), but most of the mess occurred because the Court jumped too quickly into an area it shouldn't have entered.
Perhaps the Court even feels burned because of the Florida voting episode, and is trying to be extraordinarily cautious with its power (and even more so because more eyes are looking for faults!)
The case was also helped by a government bumble. The government argued that there is no constitutional limit on the ability of Congress to extend copyright, thus the extention was legal. This actually helped Eldred because the court did not like this view at all. The court did not support the idea that the constitution limits the powers of Congress, but that Congress gets to set what the limits are. In effect, the government proved Eldred's point themselves.
As much as the Court hates giving itself power, it likes giving someone else power even less. A better argument might have been that there is a limit but Congress should determine it; but instead, the government chose to try to defend the whole thing. It almost feels like they're giving the case away. Thus: I'm watching carefully to see if someone responds to "an erosion of copyright law" by introducing a new, draconian law with overwhelming support. Cyncial, yes, but I'm very cynical when politicians are involved.
Very good summary, my complements to you good sir.
Dancing With Joy (Score:3, Insightful)
Now, I realize that Lessig might be tooting his own horn here, but I also think that (given previous indicators of his stance) he is being honest with his audience. The race is over, all that's left is for the judges to examine the photo finish. In fact, Lessig even says he's worried, but I don't have much of a fear. To quote from his summary:
I am obviously extremely happy with where we are. The Court is struggling with the right issue; they are motivated to get the right answer; they have a clear and simple way to give the right answer; the government has made it very hard to accept its answer. It is always hard to get the Court to strike a law of Congress, but this law is so universally flawed, and the case against it is so universally strong, that I continue to be confident that the Court could choose to strike the law.
Yep, it looks like things are getting better. Heck, after this take an eBook or DVD with (newly added) public domain material on it and you've got a potental DMCA breaker.
Re:Dancing With Joy (Score:2, Insightful)
I hardly think he is tooting his own horn, either - if anything he is trying to spread the thanks. He distinctly says I'm not a 'visionary' or a 'rock star', just a (albeit influential) cog in the movement. It is this humility that is motivating me to go to law school - so this technologist can fight the good fight with the necessary tools.
That said, here is the constitution excerpt:
"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;"
How the government can believe that limited can be unlimited up to congress' discretion is laughable. Especially considering Jefferson's views on patents and copyrights. 'limited' means 'limited for a reasonable time', and 95 years or howmuchsoever after the death of the author is totally unreasonable.
Re:Dancing With Joy (Score:2)
Thanks.
Re:Dancing With Joy (Score:4, Informative)
The text of the opinion is here [cornell.edu]
As I posted on Lawmeme in response to a similar question, here's what Lopez is and why it's important to Eldred:
The most interesting part of the article (Score:4, Insightful)
It is the particular hell for lawyers that after an argument, we live in the purgatory of constantly reliving the argument. Every night since Wednesday I have awoken in the middle of the night, to spend the rest of the night reanswering Justice Ginsburg, or asking Chief Justice Rehnquist just how he could distingiush Commerce from Copyright. The kind words of so many notwithstanding, I know and have always known I am not Larry Tribe, or Kathleen Sullivan. And if, after getting this so close to the right result, I have lost this by not being them, then I am not quite sure how I will live with that fact.
I guess with lawyers, it isn't a game anymore. It takes years to go through the courts, and reversals are rare. You lose, and you lose
Re:The most interesting part of the article (Score:4, Insightful)
But he's giving more than they would or could to this and other causes, and his smart and zealous advocacy is more than we (the people) could really have hoped for. If we lose, it won't be because of the oral argument. This is really a case that gets decided on the briefs, IMHO. And goddamn, are those briefs good.
Re:The most interesting part of the article (Score:2)
who are Sullivan and Tribe and what makes
them special?
Re:The most interesting part of the article (Score:4, Informative)
Kathleen Sullivan is currently the dean of Stanford Law School, where Lessig teaches. She was listed as one of the attorneys who worked on the brief in the Eldred case. She's a well-known Constitutional Law scholar. And other than the fact that, with Gerald Gunther, she's put together a damn fine casebook that I've once again emerged from briefly, I don't know too much else. She's a very well-respected first amendment scholar, but not a mass media figure at all (hence my comparison to Dershowitz). She was a lead lawyer in the DeCSS case and in a host of other Supreme Court cases. For all the rest of the details, including a 21-page CV, go here [stanford.edu].
Larry Tribe is another very well-respected professor of constitutional law. He's taught at Harvard Law School since 1968, and his book American Constitutional Law is generally regarded as really, really important (seems to be quoted a lot by all sorts of judges, by Sullivan and Gunther in their casebook, and elsewhere). He seems to be basically the most highly respected con law professor in the country. Keep in mind we're talking about Laurence Tribe, the professor, not Lawrence Tribe, the judge. He is also, more than anyone, the man who "borked" Robert Bork, and a very experienced practitioner before the Supreme Court. Google him for more info; it's everywhere.
Note that Sullivan, Tribe, and Lessig are all in the same business: teaching constitutional law. That's what Lessig teaches at Stanford, not anything directly IP-related. This spring, he's teaching Con Law I and "Law and Virtual Worlds". Thus, it's natural for him to compare himself to Sullivan and Tribe, two of his most respected colleagues in his subject area: con law profs who argue before the Supreme Court in important cases.
Re:The most interesting part of the article (Score:2, Interesting)
Interesting that you note that Sullivan is not a mass media figure. At Stanford, people joke about Justice Sullivan -- it seems to the student body that she wants desperately to be on the Supreme Court. I think she'd like to be a mass media figure, if that could help her get on the bench.
BTW, I had Sullivan & Gunther's casebook for con law in law school -- I hated it. Somehow, Gunther and/or Sullivan forgot what paragraphs are. Very tiring to read pages upon pages with no paragraph breaks. Good selection of cases, though.
Re:The most interesting part of the article (Score:2)
B) The surpreme court has reversed itself on occasion. Plessy vs Fergeson was overturned by Brown vs. Board of education.
And the CTEA is (IMHO and IANAL) more obviously unconstitutional - retroactive copyrights are more clearly a violation of the constitution than the DMCA.
It was not the writring of a confident advocate (Score:4, Interesting)
As for the earlier comments about how Lessig should not be revealing his hand in published writings regarding his arguments while a decision still hasn't been handed down, you have to realize that he is not presenting some novel new argument here. There is little need for secrecy here since these arguments have been bandied about the net for the past 4 years. In oral arguments it is not so much the content but the persuasive power of the orator delivering the argument that counts. Most have expressed concern about Lessig's oratory so let's hope he's correct in his observations when he says: All we can do now though is wait for the decision to be handed down. Lessig dis make one other observation that struck me as vary telling. That is, the court is unlikely to deliver a broad decision here. If they choose to discount Lessig's arguments they are still unlikely to be comfortable saying that "though the constitution expressly limits Congress's power, it is Congress that gets to say what that limit is." which is esentially what they'd be saying if their decision goes against the apellant.
--CTH
worried (Score:5, Insightful)
I'm personally surprised at the economic analysis of authors vs. public, in that the current "delicate balance" gives about 0.2% of the value of the work back to the public, with the author (or really, the copyright holder) retaining the other 99.8%. That's so screwed up it's not funny. I kind of wonder what it would take (in terms of length of copyright) to get that down to a 50-50 split. However, it's been like this for a while, and I don't know if the Court really wants that to change, or, if they do decide to act, exactly how much change they're going to affect.
I dunno. I feel for Lessig (as I can empathize w/ him regarding the doubts of his performance), and I hope for his sake and the public's, that the government loses.
Re:50-50 point (Score:3, Interesting)
Here's a scheme I would encourage Congress to adopt:
- Establish an initial copyright term of 10 years, automatically extended to all new works.
- Allow a large number of 10-year copyright extensions, maybe 15-20 at most.
- Establish a copyright extension fee, which would start at a nominal cost of $1 for the first extension.
- For each additional extension, require an extension fee of 10 times the previous extension fee. ($10 for the second, $100 for the third, $1000 for the fourth, etc.)
- A fixed filing fee would also apply to cover administrative costs.
- Allow these extensions to be "purchased" at any time before the copyright expires. For example, a new work could be immediately protected for 50 years by registering the copyright immediately with 4 extensions, for a cost of $1111 in extension fees, plus the fixed filing fee.
- The fixed filing fee would not be multiplied exponentially nor by the number of extensions being registered at once.
- The filing fees would help fund the Copyright Office itself, but the extension fees would go directly into the general treasury of the United States, in order to benefit the public in exchange for withholding the work from the public domain longer.
- Beyond the automatic 10-year period, lay the burden of finding the copyright holders on those who want to maintain their copyrights, to reduce the societal cost of searching for copyright holders. Specifically, require copyright holders to maintain current contact information (perhaps with several possible contacts) with the Copyright Office (updated electronically, preferably) and require transfers of ownership to be registered as well.
- If a potential licensee cannot contact the copyright holder, allow them to file a claim of abandonment with the Copyright Office, for a small fee, if any. The Copyright Office would then attempt to contact the copyright holder to verify the registration, and publish lists of copyright holders who are unreachable.
- After a sufficient period of time (a year or two after publication), the Copyright Office would declare a copyright abandoned, and void the copyright (thereby placing the work into the public domain early) if the registration remains uncorrected. (This would be irreversible, but could not happen during the initial 10-year automatic copyright period.)
I believe this scheme would be fair and effective. Everyone would get automatic protection for 10 years, which should usually be enough anyhow. Longer periods of copyright protection would be available; anyone could afford 30 years of protection ($11), which is longer than the original maximum copyright duration of 28 years. Anyone drawing still drawing a profit after 30 years could probably afford to extend if further for a while. Large corporations would have an advantage for their money; they could easily afford 50 years ($1,111) or 60 years ($11,111) upfront for a work that looks profitable, or maybe even 70 years ($111,111) for an expensive work (like a multimillion-dollar movie) if they want that kind of protection. Of course they could start with 40-50 years and wait to see if the revenue streams are truly sustainable enough to justify extending the copyright.For extremely valuable copyrights (like Winnie the Pooh), Disney might find it worthwhile to pay for the 7th extension ($1,000,000) to 80 years, or the 8th extension ($10,000,000) to 90 years. But if the 9th extension ($100,000,000) to 100 years doesn't dissuade them, the 10th extension ($1,000,000,000) to 110 years probably would. Eventually, it would become too expensive to maintain even a valuable copyright, but they would have a more-than-fair opportunity to exploit the work for many years first. Meanwhile, as the public waits for the valuable copyright to finally fall into the public domain, the increasing fees would benefit the public.
I think this is a win-win proposition -- many works are of relatively little interest after 10 years, so registration would be a hassle only for the few which need more protection. 30-50 years of protection would be within easy reach, while 80-100 years would be possible but expensive. Eventually, the work would be guaranteed to enter the public domain, sooner or later.
There would be another benefit to this system -- if the extension fees become a revenue stream to the government, they won't feel inclined to keep giving away free extensions to Disney's lobbyists. If Disney wants to keep raking in billions of dollars for Winnie the Pooh for decade after decade, let them pay dearly for it, and the public can benefit from the cash while waiting for the copyright to eventually expire. Meanwhile, most copyrights would expire much sooner, because nobody is likely to pay to keep extending the copyrights on nonprofitable works...
All too interesting.... (Score:4, Insightful)
If these "heroes" are not interested in limiting government power, why the hell are they held in such high regard by a /. commnunity that places such importance on individual freedom?
Re:All too interesting.... (Score:5, Insightful)
Re:All too interesting.... (Score:2)
Re:All too interesting.... (Score:3, Interesting)
Limiting govt power in and of itself isn't inherently a "good" or "bad" thing. It just depends on the circumstances in which it's done - for example, giving the Govt the ability to take firearms away from convicted felons might contradict a constitutional amendment, but in the scheme of things, it may be better for society.
It boils down to context, I guess.
-- james
It is amassing to me (Score:2, Insightful)
they see the public domain as a system the steal works legaly fromt he creators....
they just don't get it.
and part of the problem is that hollywood has mushed that idea into there heads.
it is a very sad situation
Re:It is amassing to me (Score:5, Insightful)
I laughed at my father years ago in my leftist youth when he told me an old quote variously attributed to Churchill, Clemanceau, Shaw, Russell, and Disraeli:
Any man who is not a socialist at age 20 has no heart.
Any man who is still a socialist at age 40 has no head.
One day, you, too will not get it either.
Re:It is amassing to me (Score:2)
who do you have?
How would life be different? (Score:5, Insightful)
I have lived my entire life in a period where termination of a copyright is a non-existent thing. This situation is 'normal' to us because we have never experienced life without it. We never think to check up on if a copyright has expired so that we can make a derivative work... we just assume that we can't use it because it hasn't expired. The very idea of making a derivative work has simply become unthinkable... in a very literal sense.
We all know that tomorrow's ideas build on yesterday's. Since the wording of the constitution is apparently open to interpretation in this case, I hope the court considers the potential benefits to the populous of freeing these works. I hope the court does not find the idea 'unthinkable' just because it is the familiar status quo.
Re:How would life be different? (Score:3, Informative)
Re:How would life be different? (Score:4, Interesting)
Actually, sheet music itself is a vigorously enforced area of Copyright. There are many ways to write the same essential tune, just like the Perl motto of There Is More Than One Way To Do It. Sheet music authors (and player piano roll creators before them) rabidly protect against their unauthorized reproduction.
Think of the sheet music as an image which represents the music. The older sheets may in fact be turned out to public domain by now, but anything printed since the 50s is just as locked up as Winnie the Pooh drawings and Elvis Presley recordings.
Re:How would life be different? (Score:4, Informative)
Just as a slightly off-topic tangent, there is a fairly good source of public domain classical sheet music available here [sheetmusicarchive.net]. I especially like the quote from Beethoven at the top. It sounds like he was an Open Source advocate nearly 200 years before our current movement began.
Expired... but for how long? (Score:3)
That is what is the most obscene thing about the extension, IMHO. Republication of several volumes which have long been out-of-print because it made no economic sense for the IP holder (the cost of tracking down the heirs could easily exceed the physical costs of a low volume publication run!) have been forced to be suspended with no renumeration to the parties who had already spent good money to prepare for publication of the material once it entered the public domain, for absolutely no benefit to anyone except that it protected a few corporate logos.
Quick, when was the last time Mickey Mouse appeared in a Disney animation? I think there was a short released with one of the animated films a few years ago, but before that you would have to go back to the 50s. When was the last time Steamboat Willie appeared in any theater outside of the Disney theme parks? Mickey is still protected as a trademark, but you can't credibly claim that the early works still need copyright protection.
Re:Expired... but for how long? (Score:2)
I believe it was a different extension, and it only applies to works by foreigners that failed to fulfil certain technicalities of US law at the time. Which, IMO, is fair; it's reasonable to ask Americans to take whatever random actions it takes to get copyright in American, but to ask everyone to jump through hoops (different for each country) is not acceptable.
Re:Expired... but for how long? (Score:4, Informative)
This is part of the Bern Convention. This is an international treaty on Copyright policy. The policy favors inherited royalties (lifetime plus 50 years) on all works, and sets a standard for which works are still covered by copyright. Realistically, it clears up if heirs should still recieve royalties.
The US would have to break from the Bern Convention for meaningful copyright reform, though we only signed on in the last two decades. This itself is pretty encumberant, but it's the least of our troubles. The US is also a member state of the WIPO and WTO, each of which have the power to repeal (without popular vote) laws which impeed international trade. Google for the Clean Air Act.
Thanks to Larry Lessig (Score:5, Interesting)
No doubt all of us will agonize over what we could have done better. But in the last four years we have raised the level of debate significantly on the role of copyright in the digital age. Today it would likely be impossible for legislation such as the CTEA to be passed.
What we need to do now is transfer some of the momentum from the Eldred case toward fighting some of the bad legislation beginning with the DMCA and including the Coble bills. After the Eldred decision, we can plan our next moves for new legislation that promotes the public interest.
Please support the public domain now by freely publishing your own ideas from your own website. Make new derivative works by digitizing works that are now in the public domain. Support the EFF, EPIC, Public Knowledge, Creative Commons, and Project Gutenberg and other online libraries.
And thanks for your support in all this!
No, thank *you* (Score:5, Insightful)
Regardless of the outcome, you have raised this issue in the media and finally people are starting to become aware of the awesome power of the copyright holders and the great potential of the public domain that may be lost if it weren't for you.
I do have a vested interest: I put a lot of poetry (Dickinson, Poe, St. Vincent Millay [if you win
Thanks.
After they win... (Score:3, Interesting)
A little thanks to Lessig, and a little fsck you to Disney.
Re:After they win... (Score:4, Insightful)
Walt Disney, creator of those early Mickey Mouse works, has no individual rights left. He's dead. You're promoting the "rights" of a huge corporation to use government power to grant themselves a continued monopoly on the use of 75-year-old cartoons. Some "rights."
Authors have no inherent "individual right" to the use of their ideas. Copyright is not a right like the right to free speech and physical property. Copyright is a bargain: to promote the progress of science and the useful arts, government grants short, limited monopolies for the commercial uses of certain types of art. To claim that perpetual, posthumous control over your ideas is a natural right is absurd.
Congress represents the people (Score:4, Insightful)
This is why the Supreme Court is hesitant to overturn such laws, because there is another check on unjust laws, namely the ballot box. It is only when Congress is overstepping its bounds in a matter where the people support them that the Court is really needed to step in. When the majority takes on too much power and infringes on the rights of the minority, the Supreme Court can act to limit these excesses.
But this does not seem to be what is happening in the case of copyright extensions. It's not like there's a powerless minority whose rights are being infringed by policies supported by the majority of the American people. Rather, these copyright extensions are technical matters that most people simply don't care about. They aren't important enough to make or break a Congressman's career.
What needs to happen is that this has to be solved in the political arena. People who think that copyright policy should be changed need to convince others of that fact, to get them interested in the dispute, to attract supporters and political power. Then they can convince Congress to change its policies.
This issue is a simply and fundamentally a matter of politics. The dispute needs to be resolved in the political arena. It may seem easier to convince 9 members of the Supreme Court than the American people. But ultimately it will be more just and more fair to effect change by convincing people, the American people, that these changes are worthwhile.
We have a representative government, but that doesn't mean that everything they do is what you personally would want. What it does mean is that you can try to convince people that your ideas are good, and if you get enough support, the government will go along. That is the proper course for political change in a representative democracy.
Re:Congress represents the people (Score:2, Interesting)
Not so. Just as history is replete with documented reasons why socialism is a long term failure, it is also replete with reasons why democracy is also a failure.
Humanity is, on whole, a nasty affair.
First, the masses are out to get something for nothing. Those without jobs will vote for the likes of national health care based on a tax they don't pay. I believe the quote is "The downfall of democracy comes when the population discovers they control the purse strings."
Second, the masses generally feel that "it's not their problem". If it doesn't affect them personally, and tangibly, they simply don't care and will accept the status-quo.
Third, the masses generally assume that any activity that they don't participate in themselves, isn't worthy of others either.
In combination, the notion that the electorate can, or will, "fix" a government gone awry is simply preposterous.
Germany was a democracy -- Hitler still happend.
Unfortunately, the authors of the Constitution hadn't had the experience of history to know these were the facts.
Re:Congress represents the people (Score:3, Insightful)
Man, how naive can you get?
Look at the voter turnout figures and start talking to people. You'll find that there is very little confidence in our elected officials on the part of the electorate. Most people don't bother to vote anymore because they feel that there's nobody good to vote for anymore.
And the politicians know this. They like this. They know that they only chance anyone has of getting in office is by getting sufficient exposure that the people who do vote know about them, and that the only way to do that is through the mass media. But the mass media is owned by large corporations whose only concern is raking in the cash. For the media, money is the only language worth speaking and the only one they'll listen to.
And what entities in this country now have most of the money? The large corporations, if you haven't guessed it. Those large corporations that don't directly own the media outlets will of course have deals going with those that do, to make sure that only the candidates that are reasonably favorable to their desires will get any real media exposure, much less favorable exposure.
This works because you can't elect someone you don't know anything about. You and other people might randomly vote for such a candidate, but such a candidate can't win because the votes of people who vote randomly will be distributed more or less evenly amongst the unknown candidates (of which there are quite a few).
And so the bottom line is that the politicians don't listen to the people anymore, except when what the people are saying happens to coincide with what their corporate masters are saying. When there's a conflict, the corporations win.
This explains the DMCA. It explains the CTEA. It explains the airline bailout. It explains why corporations were able to get away with bamboozling their investors for so long. It explains the FCC's behavior. And it nicely explains the foreign policy decisions of the United States.
You can ignore all this and continue to believe that the U.S. is the shining beacon of peace and democracy in the world. But you do so at your peril, especially in light of the recent incursions on the rights and freedoms of the people (such as the current policy of the government to indefinitely detain, on a whim, anyone it decides to label an "enemy combatant").
meaning of limited (Score:3, Insightful)
I think the example of the use of the word limited as in 'limited print edition' is a good one.
To spell it out
someone produces 100 prints in a 'limited edition'
sometime later they say this is still a limited edition but we are going to produce another 100 prints - now it is a limited edition of only 200 prints
again, further down the road they produce another 100 prints but maintain it is still a 'limited edition'
seen in this way their use of 'limited' is obviously bogus - and the analogy carries directly to how the congress is interpreting the use of the term 'limited' in the copyright clause
Mr Lessig: Thank You!! (& Don't Beat Yourself (Score:2, Insightful)
Dear Mr. Lessig:
Thanks for all your work in helping to provide a better future America, by trying to right (some of) the wrongs that Congress has recently committed. Even if we lose, you have forever changed my impression of lawyers with your two popular books and your work on this case.
As an engineer, I thought lawyers could only be a heinous lecherous drain on society; after seeing your work, I now admit that I was wrong. I'm happy to learn that there is some good in everybody (and quite a bit in you!), even in lawyers.
Keep on fighting the good fight! Don't despair if we lose this battle. There are many more battles ahead (such as the DMCA) for which we desperately need your help. Please stay in the game. Until the last liberty-loving American has given up and emmigrated to a more free society, and while there are many who are too poor to escape the tyranny, we still need you!
Thank you from the bottom of my heart,
Name Withheld (because there are no benefits to associating my name with this noble cause, and many liabilities.)
Economist article on Lessig (Score:3, Informative)
Free Mickey Mouse [economist.com] is the Economist's story on Lessig, subtitled "Lawrence Lessig wants less copyright protection, including for Disney's famous rodent". Good article.
It begins as follows:
Ayn Rand Institute Says Lessig is a "Marxist" (Score:5, Interesting)
Re:Ayn Rand Institute Says Lessig is a "Marxist" (Score:3, Insightful)
The irony is, in a world with indefinate copyright, Rand could have been sued for making unauthorised use of Atlas.
What a neat entry (Score:3, Insightful)
If I didn't agree with Lessig about most everything he's arguing, I'd call him a hopeless sophist, using flattery and reciporical(sp?) reasoning to draw the court into his camp. As it stands, I'm glad we have such a great speaker and convincing logician taking _our_ side for once.
Re:not smart... (Score:5, Insightful)
In reality, Lessig could publish all of his notes from the case and let the opposition interview him for a week to get all the juicy tidbits and it wouldn't matter a hill of beans -- it's like asking a coach about his superbowl strategy the day after the game is played.
All said, I think that Lessig played a pretty good game here and gave "us" (as in "we the people") pretty much our best possible shot here. People who think he "lost" the Supreme Court arguement just because the justices gave him a hard time are obviously not framiliar with the Court in general.
That said, I'm not sure that the Court will side with Lessig simply because, IMO, Congress isn't really in violation of the Constitution. Really, this is a fight that needs to be taken to the Congress, which just won't happen until the American people (again, "we the people") take some interest in the machinations of their government.
Re:not smart... (Score:3, Interesting)
Except that the DoJ has admitted that in their case they see congress having total discression of the "limited time" that a copyright has. So, this looks a lot like saying limit of x as x goes to infinity would be supported here by their argument
Whether or not the court strike down the law, it will be interesting to see how they interpret this limit in general.
And a quick comment-- Whether or not we win this battle, we need to be thankful for Lessig because he has devoted 4 years to this fight and without him, the fight might not have begun or be carried as far as it has been. If we lose here, we are in for a long fight, outside the courts, though activism, legislators, etc.
Re:Eldred is gonna lose. (Score:5, Insightful)
So the framers specifically state their intent in giving Congress this power. A trillion years may be a limited time, but it cannot be reasonably seen as a promotion of the "Progress of Science and useful Arts".
The idea here is that even the stuff before that first comma is important. Lessig et al. argue that, by extending copyright over too long a time, you're actually doing more harm (aka, arresting spin-offs and adaptations) than good (convincing creators to create by making it financially attractive).
So it's not black and white. You absolutely cannot cimply ignore any of the words or phrases in the Constitution.
Furthermore... (Score:2, Insightful)
ie: if you say it's 10 yeras, but 8 years from now extend it to 20, then 2 yeras before it's up extend it to 30, and before that is up, extend it to 75, etcetera, is it really limited? Could you not do this indefinately and still technically say "there is a limit"?
Re:Eldred is gonna lose. (Score:2, Interesting)
Who gets to decide what it takes to "promote", and what exactly "limited" means?
Congress, the Court?
Or, maybe you and I?
If Congress is doing wrong by the people, it is their RESPONSIBLITY to vote them out. Or so the story goes.
Fact is, the majority of voters are flat out stupid. Sad, but true.
Here's how stupid they are. I was at a party, 20 people or so. A friend underwent radiation for cancer and was told to stay away from their kids for 3-4 days. By the end of the arguments, the clear majority of the attendee's were convinced the reason was the kids would "get" radiation. Fact is, radiation kills the immune system and kids are loaded with germs.
That's a fairly clear insight into the way the "majority" of America "thinks". There's a reason propaganda works so well.
Sad to say, but the American system is broken and neither "judicial restraint" nor the people's recall of "congressional grace" (voting them out when they've gone evil on us) isn't going to save us.
Re:Eldred is gonna lose. (Score:4, Interesting)
Well the Court *can*.
What they'd do is establish a logical "test" which could be applied to decide what constitutes promotion (probably be called the Eldred Test). A good example of this is the Lemon Test, written by Justice Warren Burger in Lemon v. Kurtzman (1971), which can be applied to any future law concerning (in this case) school prayer.
Re:Eldred is gonna lose. (Score:3, Interesting)
Section 8, Clause 8: 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;
What this says to me is that copyrights should be non-transferable. No signing away copyright to some big corporation unless you're doing "work for fire". This, and a sane policy that recognizes that authors don't have any incentive to create Writings and Discoveries after they're dead, would pretty much wrap it all up.
Re:Eldred is gonna lose. (Score:5, Informative)
Interesting, but totally off-base.
Consider the memoirs of U.S. Grant. Their are considered to be a model for military memoirs, and he wrote them while he was dying of throat cancer. He did so with the specific intent of restoring his family fortune (lost in bad business deals) and providing for his family.
That alone demonstrates that heirs should be allowed copyright protection for a limited time.
Re:Eldred is gonna lose. (Score:3, Insightful)
Re:Eldred is gonna lose. (Score:2)
Re:Eldred is gonna lose. (Score:2)
The only remaining right to be transferred is the right to create derivative works. Clearly, forbidding anyone but the original author to create derivative works would only cause harm. Furthermore, no one would want to create a derivative work without a contract specifying that they are the only ones making a particular type of derivative work. No one would want to make Terminator 3 unless they were sure that no one else was also making a different Terminator 3 at the same time. So, supposing I also sell the exclusive right to create derivative works to my publisher, I have now effectively transferred my copyright to my publisher. Which of the above steps do you think should be illegalized?
comma (Score:2)
The idea here is that even the stuff before that first comma is important. Lessig et al. argue that, by extending copyright over too long a time, you're actually doing more harm (aka, arresting spin-offs and adaptations) than good (convincing creators to create by making it financially attractive).
So it's not black and white. You absolutely cannot cimply ignore any of the words or phrases in the Constitution.
Careful! Next thing you know, we'll have to pay attention to stuff after a comma as well, and then we'll all get to tote guns! ;)
Re:Eldred is gonna lose. (Score:4, Informative)
As you say, this is an off-topic thread, of course.
I think the idea behind "well-regulated" might mean that the people (whoever they are) MUST be in control of the militia. That is to say, the 2nd ammendment in no way justifies private armies, but is designed to encourage every able-bodied man (or person, nowadays) to take seriously his (or her) obligation to defend the country against hostile takeover.
Here is a URL to a (pro-gun) discussion of this idea:
http://www.2asisters.org/unabridged.htm [2asisters.org]
Since I admit that this is off-topic, and posted with "No Score +1 bonus," and since this is a reply to a reply to a reply, and thus will not be read by many people, please don't mod me down!
MM
Re:The problem with Lessing.... (Score:5, Insightful)
See the dilemna here? While you may argue that the RIAA and MPAA are evil (as they are), and that a lot of CDs these days are made according to a formula and forced down are throats (as many are), the fact is that there is much quality content created as books, audio CDs, movies, and software, that takes a large initial investment in order to create. If some company spends $8 million creating a piece of software then how are they going to recoup their profits if OfficeMax is selling $1 copies in the store in three days?
This is my argument for why limited copyrights are needed. But, it would be very nice if they only existed for perhaps 20 or 30 years.
Re:The problem with Lessing.... (Score:2, Redundant)
Lessig himself calls for limited copyrights, not abolishing them. You are actually in complete agreement with him.
So what again is the problem with Lessig?
Re:The problem with Lessing.... (Score:5, Insightful)
I think Lessig did a great job, but I'm a little worried that the case will fail for being too conservative by limiting the challenge to the CTEA alone. The constitution can easily be read to be even more restrictive if you understand "...securing for limited Times to Authors and Inventors the exclusive Right..." to mean that the time is to be limited from the relative perspective of the creator, not an absolute term.
This is in keeping with the original limits which were well within an average lifespan (granted, a work produced less than 14 years before an authors death might seem unlimited but in most practical cases copyright would expire during their lifetime). Today, copyright is extended exclusively (and transferably) to an author for an unlimited time from their perspective (as long as they live), to their children for a nearly unlimited time (most if not their entire life) and, barring further extensions, only their grandchildren are likely to hold copyright for long but limited time. From another perspective, anything produced during my lifetime will never enter the public domain before I die. As far as I'm concerned, to me this is an unlimited term.
Now I highly doubt that the supreme court would role back all of the earlier laws, even if they prove to be unconstitutional, but Lessig's argument can be thought of as providing a welcome compromise that limits the need to meddle with the less recent past. My worry is that they will accept the Lessig argument as the most extreme case and seek a lesser comprimise such as limiting future extensions without repealing CTEA.
Re:The problem with Lessing.... (Score:3, Insightful)
My worry is that they will accept the Lessig argument as the most extreme case and seek a lesser comprimise such as limiting future extensions without repealing CTEA.
More likely, they'll just say that Congress can pass all the extensions they like, but they can't make them retrospective.
I think this was Lessig's exact point in his explanation of the term "limited" as in "limited edition print". The "limited" in "limited edition print" means that a specific limit on the number of prints was made when the prints were created, and that no more will ever be made. Similarly, Lessig is saying that copyright should be given to an author (and heirs, etc.) for a specific period of time, defined when the work is published, and that no extensions for that work should ever be allowed.
In this way, the Court doesn't set a maximum on the length of copyright terms (that being Congress' prerogative), but does insure that there are defined limits to copyright duration.
What will this mean in practice? IMO, it means that the CTEA's copyright durations will stand forever, barring some legislative action to reduce them. Why? Because no corporation has long enough vision to bother pushing for terms longer than we already have. It would be effort that would only help some guy 100 years from now, and would have zero effect on the company or the stock price today or next year.
No, the only reason the big entertainment industry dollars were pushing for the CTEA extensions was because they wanted that retrospective extension. If the Court strikes down Congress' ability to do that, then there will be no interest in lengthening the terms further.
Re:The problem with Lessing.... (Score:4, Insightful)
You're indulging in extremes where there is plenty of middle ground (as Congress has mapped out in its periodic lengthening of the copyright term). The topic of Eldred vs. Ashcroft is not concerned with abolishing copyright, it's taking the Sonny Bono/Disney Act (CTEA) to task for defining Congress' power over copyright extensions as being effectively unlimited where the Constitution specifically states that Congress' powers are to be, in fact, limited.
You go on an on about evil and bootlegs and then recant your thesis with a statement on your preference for copyright terms. There is no dilemma as you state it here, except in Constitutional terms. Try to stay on topic, this isn't Usenet.
Re:The problem with Lessing.... (Score:5, Insightful)
My argument is that without copyrights, goods that cost money won't get produced to begin with. How can you free a DVD that doesn't exist? Without copyrights you'd force material to be free and thus keep lots from being created. With copyrights, creators have a financial incentive to create, and so their work will be created. How would you like if all the movies we had to watch were GPLed videos? All TV stations would be financed by public donations, and with public goods there is no way of excluding freeloaders.
Re:The problem with Lessing.... (Score:2)
Which is why until the advent of modern copyright law, nobody was producing any goods that cost money?
Re:The problem with Lessing.... (Score:2)
Music Hall and the like were incredibly popular before television and there were some pretty talented performers. Today, there are still live shows and live comedians, but the economics are different.
Music Hall couldn't compete with TV any more than portrait painters could compete with the camera, but such painters still exist and the public gets along just as well.
If economics change the ground rules and Hollywood can no longer justify spending $20mn on some kind of block buster will we all be poorer? Somehow I doubt it.
Re:The problem with Lessing.... (Score:3, Interesting)
Re:The problem with Lessing.... (Score:2)
Not true. The existence of a strong commercial alternative greatly slows down the development and adoption of a Free alternative.
Re:The problem with Lessing.... (Score:2)
As for motives, well, actors and directors have a habit of being handsomely paid for big movies. Do you think Keanu Reeves works for free? Were the computers they needed for the effects just contributed to the project? Did some property owner, just for the sake of making movies, give free permission to use his land and equipment? The whole process requires money. You can't pay your suppliers with a smile or your own happiness, after all...
Re:The problem with Lessing.... (Score:5, Insightful)
This is true as far as it goes; however, it ignores the other mechanism in existence which guaranteed the livelihood of those renaissance artists whom we remember today: patronage.
Respected artists and philosophers of the renaissance didn't have to work, because some rich noble or institution supported them, or because they were already independently wealthy. I know that this doesn't apply to all artists of that era, but to a significant minority.
This also ignores another issue. Let's suppose that the RIAA, etc. didn't exist. That I produced a work of art accompanied by a license of my own composition in which I requested that you didn't distribute my creation, and deleted it from your HD after 24 hours unless you paid me $5.
Wouldn't I have the right to do that? Does an artist who chooses a digital medium automatically forfeit rights that a sculpture in bronze or clay doesn't?
I we expect the GPL to be honored, then what about the rights of artists who choose to be protected by copyright law? I mean, the RIAA aside, doesn't Metalicca have the right to choose which license they distribute their wares (not warez) under?
No problem with Lessing.... (Score:2)
How do you know? My understanding is what motivated most the people in these ventures wasn't a guaranteed monopoly, but rather it's own value?
It doesn't matter, since you cannot prove the reverse either. I'm willing the accept the idea that people are more motivated by the creative process than any monitary reward, but you can't prove that copyright is unnecessary for the authors of creative works to be paid for their work. If you choose to place all of your work under open/free terms, then by all means do, and feel free to advocate the same to others, but don't tell all authors everywhere that they must give up all copyright. Why? Because you say? Was somebody appointed dictator when I wasn't looking?
The fact is that copyright exists, and for the US it is explicitely mentioned in the constitution. The legal framework that supoorts the GPL is based on copyright as well. You can't have one without the other.
There is no sense in which the arguments made in this case weaken the prospects for free software. To try to go the purist route with this is counterproductive, and IMHO stomps all over the right of individuals to choose. Lesig and people close to him support the Creative Commons [creativecommons.org] and actively encourages people to release works under open/free licenses. You should know who you are talking about before criticizing.
Re:The problem with Lessing.... (Score:2, Insightful)
Not really. Artists and others may still create works, that's pretty much a given. It would just never make it to the general viewing public to be exploited by anyone who wants to make a buck off it.
Your comparison to the Rennaisance is a bad one. At that time people didn't have the means to make unlimited and exact copies of the works being created. The work had the value it did because it was severely limited to a quantity of one. It didn't need copyright protection because it couldn't be copied the way works can be today.
Re:The problem with Lessig.... (Score:2, Insightful)
But without that guarantee, the value of those works is drastically reduced. It's not at all unlikely that that without this protection, the projected returns from any of these undertakings would not have been sufficient to get any of them off the ground in the first place.
Look, your argument is based off a false premise: that people won't create without copyright monopolies, bullshit - the entire renissance happend without copyrights.
And of course the very information age we're trying to protect here is what makes copyrights more significant now than during the Renaissance - there were no tools of mass reproduction at the time beyond the printing press. Thus the potential loss of value was, therefore, much less. How worried do you think da Vinci was that an army of forgers would devote themselves to repainting copies of the Mona Lisa? Getting paid for the original was more than enough
And as for the argument that GPL software shows that software will get written with or without copyrights... time to risk the Ire Of Slashdot:
How much really innovative software has been produced under some form of copyleft? That is to say, software filling or even creating a previously unoccupied niche? Linux is a UNIX-alike; Gimp is a Photoshop-alike; etc. The real innovation open source is usually credited with is the licensing model itself, and its strength is that of many eyes looking at a known problem. Since the stated purpose of copyright is to encourage innovation, I'd love to be able to come up with such an example, but I am personally at a loss. Anyone got any suggestions?
Re:The problem with Lessing.... (Score:2)
I think you are missing something very important. The success of Linux is TOTALLY dependent on copyright. I Linus had not GPL'd Linux, then would not have gone anywhere. Remember Linux IS copyrighted using the GPL.
Re:The problem with Lessing.... (Score:2)
Because in many forms it is effectivley impossible to be published if you don't. This isn't quite the case yet with novels, but it certainly is with music. No label will sign you without you giving up your copyright. And until about 10 years ago it was the case in the comic field as well. You either have to live with self publishing or give the corp the whole shabang.
Re:The problem with Lessing.... (Score:4, Interesting)
The founders had envisioned a world were copyrights are a tradeoff - for a particular works, certain freedoms allowed under other parts of the constitution (suich as the 1st ammendment) do not apply, in order to encourage them to create. But after a time, they go into the public domain. It might be old, but it sounds like solid reasoning to me.
Now, I agree that it has since been distorted. What we need (IMO) is repeal of those unconstituional retroactive copyright extensions, a shorter term for future copyrights, and (similiar to Russia) a law on the books making it illegal to create fair-use proof works.
Re:The problem with Lessing.... (Score:2, Insightful)
Ok, then explain this to me - if there were no copyrights, how would authors/musicians/artists/etc make money?
Perhaps through concerts or public display. But this point is part of the problem, the end goal is not to make money for XYZ, but rather to maximize benefit to society. It is an unfair question like in the past how do the poor cotton farm owners make money without slavery? Well, stop trying to exercise rights you don't have and we can discuss it.
The founders had envisioned a world were copyrights are a tradeoff - for a particular works, certain freedoms allowed under other parts of the constitution (suich as the 1st ammendment) do not apply, in order to encourage them to create. But after a time, they go into the public domain. It might be old, but it sounds like solid reasoning to me.
It might have looked reasonable at a time where an encyclopedia of knowledge couldn't be transfered and coppied to every point on the planet in less than 30 seconds, but not today
Now, I agree that it has since been distorted. What we need (IMO) is repeal of those unconstituional retroactive copyright extensions, a shorter term for future copyrights, and (similiar to Russia) a law on the books making it illegal to create fair-use proof works
Oh and another thing about slavery, is that it started out as short term indentured servitude for blacks and whites that could not be inherited. After the term you got freedom and your own property. Sounded like a good deal, accept there was one problem, it planted the seed for a system that was outright evil and caused a lot of damage in the long run for America.
Re:The problem with Lessing.... (Score:3, Insightful)
Perhaps through concerts or public display. But this point is part of the problem, the end goal is not to make money for XYZ, but rather to maximize benefit to society. It is an unfair question like in the past how do the poor cotton farm owners make money without slavery? Well, stop trying to exercise rights you don't have and we can discuss it.
I hate to burst your bubble, but having people do their job for the benefit of society is a hallmark of socialism, and has been conclusively proven not to work, except under very special conditions. If there was no money to be made from writing books, very few would write them.
The founders had envisioned a world were copyrights are a tradeoff - for a particular work, certain freedoms allowed under other parts of the constitution (such as the 1st ammendment) do not apply, in order to encourage them to create. But after a time, they go into the public domain. It might be old, but it sounds like solid reasoning to me.
It might have looked reasonable at a time where an encyclopedia of knowledge couldn't be transfered and coppied to every point on the planet in less than 30 seconds, but not today
As one of today's articles pointed out, works hold their value for a shorter period of time nowadays. So I guess the simple solution is to shorten the length for which their copyright apply. That not withstanding, the founders' theory still holds.
Now, I agree that it has since been distorted. What we need (IMO) is repeal of those unconstituional retroactive copyright extensions, a shorter term for future copyrights, and (similiar to Russia) a law on the books making it illegal to create fair-use proof works
Oh and another thing about slavery, is that it started out as short term indentured servitude for blacks and whites that could not be inherited. After the term you got freedom and your own property. Sounded like a good deal, accept there was one problem, it planted the seed for a system that was outright evil and caused a lot of damage in the long run for America.
You make a valid point. Indentured servitude (a valid, morally-neutral arragement), while helping to bring early settlers to America, decayed into something more evil. However, abolishing copyrights is like killing the patient to cure the disease. If you do it, you kill off 98% of the industries that depend on copyrights. [Please, please, prove me and show how the *AA can continue to make anywhere near it's current money without copyrights] In this case, the way to prevent decay is to take the money out of congress, so that commercial interests like the *AA can't exert undue influence.
Re:The problem with Lessing.... (Score:2)
I hate to burst your bubble, but having people do their job for the benefit of society is a hallmark of socialism, and has been conclusively proven not to work, except under very special conditions. If there was no money to be made from writing books, very few would write them
Yes, but just because I can copy something does not mean that I advocate forcing people to create that something. By copying I am not forcing anybody to do anything.
First off, copyrights place massive restrictions across all of society on what people can duplicate and make. IMHO, you should prove that imposing them is beneficial. I'm not asking to impose anything, just to copy freely without threat of harm or punishment. It goes back to the analogy ... proove the plantation masters and America will be as well off without slavery? Well stop imposing it, and then we can talk about it
Re:The problem with Lessing.... (Score:2)
Yes, but just because I can copy something does not mean that I advocate forcing people to create that something. By copying I am not forcing anybody to do anything.
I'm sorry, I don't understand your point. Nobody is being forced to create anything. Copyrights create a financial incentive to work, without which, very few works would be created. As I said before, no copyright protection inevitably means few works created.
First off, copyrights place massive restrictions across all of society on what people can duplicate and make. IMHO, you should prove that imposing them is beneficial. I'm not asking to impose anything, just to copy freely without threat of harm or punishment. It goes back to the analogy
The benefit of "imposing" copyrights is the 'other' 98% of works that are created because of the financial incentive copyrights give. Allowing people to freely copy works would essentially abolish copyrights and kill the finincial incentive. With no monetary benefit from creating works, very few people would choose to do it. (Just look how many OSS developers there are compared out of the total number of developers in the world, I think that is a good analogy) It is a fundemental of economics that gift economies are never as large as monetary ones.
More (Score:2)
The benefit of "imposing" copyrights is the 'other' 98% of works that are created because of the financial incentive copyrights give. Allowing people to freely copy works would essentially abolish copyrights and kill the finincial incentive. With no monetary benefit from creating works, very few people would choose to do it. (Just look how many OSS developers there are compared out of the total number of developers in the world, I think that is a good analogy) It is a fundemental of economics that gift economies are never as large as monetary ones.
Software has few sunk costs. All you need to create it (besides a working knowledge of programming) is a computer. Books, music, and movies has progressively MUCH MUCH higher sunk costs. Who is going to produce a quality movie for $50 million and expect no return. That is why the idea of abolishing copyrights is absurd.
Re:The problem with Lessing.... (Score:2)
That's the problem. We're not that far away from a world where John Doe has the technical means to duplicate at low cost, and the knee-jerk reaction from the industry is that We Need DRM!
I happen to think that copyright is a good idea, but that the current implementation is buggy. A financial incentive must be preserved in the digital world, but how can we do that without creating a DRM nightmare?
One option is to find alternative methods of funding instead of pay-per-copy. Say, for example, that publishers go to a subscription system. I'm not optimistic, though, because it seems likely that most of those models won't generate a reasonable amount of income.
With no monetary benefit from creating works, very few people would choose to do it. (Just look how many OSS developers there are compared out of the total number of developers in the world, I think that is a good analogy) It is a fundemental of economics that gift economies are never as large as monetary ones.
OSS is not really a strict gift economy, since it doesn't remove the secondary commercial incentives. A simple example is IBM. IBM wants to sell hardware and services, so it is in their commercial interest that Linux runs on their hardware and has the features their customers ask for (and also the added benefit that MS has less power over IBM when there is an alternative platform in the marketplace). Still, removing the direct monetary incentive does have an obvious effect on what kind of software that is developed as OSS - general desktop software is one of the weaker areas of OSS.
Also, secondary incentives is probably stronger in the software market than in, say, music and movies.
The problem with red herrings and straw men.... (Score:3, Insightful)
Re:The problem with Lessing.... (Score:2)
Re:The problem with Lessing.... (Score:2, Offtopic)
---Oh and another thing about slavery, is that it started out as short term indentured servitude for blacks and whites that could not be inherited. After the term you got freedom and your own property. Sounded like a good deal, except (grammar correction) there was one problem, it planted the seed for a system that was outright evil and caused a lot of damage in the long run for America.
I see indentured servants as nothing wrong at all. A richer person paid full a pooer person's full voyage to North America, in price of 7-10 years work. I see that is no different than the situation of credit cards today. They "give" you money, but you end up paying in the long run. If you mention bancurupcy courts, I'll add that the courts end up taking stuff from you to pay your creditors.
Still, promised work and slavery are two totally different things. Slavery has been around since the beginning of the human race, and will always be around. After wars, the citizens of a country were considered slaves (revert back to Art of War, by Sun Tzu for how to treat war slaves) The US had a slightly different view of things as we saw 1 race as a slave pool. We paid Nigeria (dont they seem to keep popping up in nefariuous schemes, ne?), Congo, and other Africa costal countries for bounty. The Black Men SOLD EACH OTHER. We just happened to buy them, as did Europe, but the stigma of "war slaves" held there.
Still, how did slavery set the seeds of evil in our country? If you're reffering to the Civil War, that was a war about States Rights. Not Slavery. That choice involved slavery, along with other various details, but was mainly an argument about the power of states over national. I am directly for everybody (not just citizens) here in the US having the same Bill of Rights, along with the 3 freedons, but in the case of the Civil war, I'd have sided with the South. In terms of military and currency, that was the national's job. The rest should have been with the states.
I did go a bit off-topic, but I think that problems with our laws go back further than a few years. They all coincide at some points.. I'm figuring I did piss a whole bunch of people off. Too bad. I speak my mind about things like this.
slavery tangent (Score:2)
I really didn't want to go off on the slavery tangent because slavery was so much more brutal than restricting someones ability to copy. But at the same time, this restricton is getting out of controll to the point of destroying freedom od speech. I think we seriously need to re-evaluate it.
Another thing about copyrights is that if people want to support them, then fine. But arguments like we have no incentive, I put money and effort into making them, how will such and such make money, the industry in America is good from it, etc .... were all hashed out about another false property right, slavery. I have no incentive to grow cotton.... look at the wealth in the south it created .... how will the plantation masters make the same .... they put so much money into buying and training them...
Cmon, I tired of the same BS logic PLEASE GIVE ME A REAL REASON FOR COPYRIGHTS
Re:The problem with Lessing.... (Score:2)
yes, slavery existed for forever, it even exists now in many parts of the world, but my point was that in America was just because it happened for forever, and just because it seemed nice in some forms, did not prevent us from falling into a major disaster.
Re:The problem with Lessing.... (Score:2, Interesting)
By whom? you might ask... by the big *media houses* - by the very people you are complaining about right now.
Without copyright laws, an artist has no way to prosecute these people for stealing the fruit of their labor. An artist is an artist; not a well-entrenched CD/DVD stamping factory.
It is only through copyright laws that we can hope that the artist will receive some benefit from the reproduction of their works. Just because the current _implementation_ is broken doesn't imply that the _idea_ is unsound...
Unless you believe that physical goods (e.g. wheat, potatos, silicon chips) which actually take less effort *per item* to produce should also be freely "available"...
Re:The problem with Lessing.... (Score:2, Interesting)
If there wasn't any copyright you would write your novel, print a shit load of copies distribute them fast and cheap. Grab your money run and write another. Just like now there would companys that would do just this for a cut of your book sales. You won't get a million bucks for that 400 page novel, but you can make a living. Most artist before 1900 didn't get rich, some didn't even make enough to live on the same goes for artist today. That doesn't stop them from creating new works. Most stuff won't be pirated, just the very popular stuff. If books, CDs, ect. are distributed cheaply enough the pirates won't be able to make enough money to be profitable. Today this is possiable, if you remove the roadblocks the MPAA and RIAA put up. If you had a good album you just send a copy to the radio station and they play it, it costs them nothing and you get a lot of exposure.
After all that I must say I'm not one of these people that hate the copyright law. I think it's needed for a limited time, but it's just getting outta hand. I've always liked the 14 years with a one time extension of 14 years. If you can't make money with that, then you should get a job at McDonalds.
Re:The problem with Lessing.... (Score:2)
Re:Wondering... (Score:3, Informative)
Re:Wondering... (Score:3, Insightful)