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Shortening Copyright After Eldred Loss 31

SataiCam writes "Marci Hamilton has an article over at Findlaw.com covering potential options for getting a shorter copyright after the Eldred loss (or, more likely, keep this one from growing again). Clearly such a movement is an uphill battle, Hamilton does nothing to argue against that, but the options are there. It's an interesting read with some good points and a tone of "if you want it, go out and fight for it." I don't necessarily agree with all she says, but that's not surprising, she is using an AOL e-mail address, after all."
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Shortening Copyright After Eldred Loss

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  • by Chilltowner ( 647305 ) on Thursday February 13, 2003 @03:42PM (#5296939) Homepage Journal
    It's a really interesting idea to clarify the Copyright Clause with an amendment to the Constitution, but what should the amendment say? Should it lock in the terms to 50 years? What if future generations have the opportunity to shorten it further? Could it implement a much more rigorous system for expanding/contracting the terms? What is to be done about life-of-author terms for individuals vs. corporate terms? Is anyone else nervous about even entering the word "corporation" into the constitution, lest it be interpreted into whole new areas of corporate law (i.e. setting a constitutional precedent for the "rights" of corporations? IANAL, just curious about the possibilities and pitfalls.
    • by Ondo ( 187980 ) on Thursday February 13, 2003 @04:45PM (#5297445)
      IMO, an amendment should prevent retroactive changing of copyright lengths. If the point of copyright is to give people an incentive to publish, lengthening the time period after it has been published has no benefit, and shortening it afterwards seems like going back on a promise. Neither should be allowed.
    • Section 1

      Congress shall have no power to abridge the rights secured by any clause in the Constitution of the United States of America to protect the creative and useful works of inventors and artists. It shall possess no authority to limit, alter or remove protection of private property secured by any state, governing body subordinate to a state or autonomous territory under the jurisidiction of the United States Constitution. Furthermore Congress shall not be empowered to pass any law or support any public policy that restricts research into a useful endeavor regardless of whether public knowledge of the findings of said scientific inquiry would damage the rights secured to inventors and artists.

      Section 2

      The legal classification of copyrighted goods beyond the protection of those basic rights necessary to the protection of intellectual property shall be declared at the discession of each member state of the United States of America. Each state shall possess full regulatory power to determine the legality of modes of distribution of intellectual property that is sold within its borders so it can best protect the private property rights of its citizens.

      Section 3

      All intellectual property law addressing the creation of devices whose improper usage could lead to minor or serious violations of the law shall be judged by the law as to whether they have any legitimate legal uses. A single meaningful legal use shall constitute grounds to prohibit the restriction or banning of such goods and services. Any law that grants an extension to existing intellectual property's legal protection shall be considered an ex post facto law.

    • How about a restriction, simply applying any extensions only to new works. This prevents any selfish profiteering since no change to the law would have any effect for about 70 years. Any corporation genuinely feels that they have a right to their work in 96 years time or an artist who feels entitled to copyright 71 years after he dies is probably motivated by more than self interest.
  • Good Luck (Score:3, Insightful)

    by ResHippie ( 105522 ) on Thursday February 13, 2003 @03:50PM (#5297005)
    I think I've been reading too much about this stuff lately, but I have a hard time believing that the US Government would do anything that so explicitly hurts corporations without providing overwhelming benefit to citizens. It's clear that privacy is important to people, but copyright isn't a huge deal in everyday life.

    I guess I just don't have the energy to help reinstate a government "of the people, for the people, and by the people" because it would have to be done from without, not within. Don't allow politicians to accept donations from anyone/thing that doesn't have a right to vote. The barriers of entry to this system, like so many other things, prevent really new ideas from coming into it.
    • Re:Good Luck (Score:3, Insightful)

      by aaarrrgggh ( 9205 )
      I have a hard time believing that the US Government would do anything that so explicitly hurts corporations without providing overwhelming benefit to citizens.

      The whole point of the public domain isn't to make goods cheaper for the people, but to make those works which have become a part of our culture things that can be built upon by others.

      In that way, it can actually offer more benefit to corporations... just not the huge conglomerates.
    • I think I've been reading too much about this stuff lately, but I have a hard time believing that the US Government would do anything that so explicitly hurts corporations without providing overwhelming benefit to citizens. It's clear that privacy is important to people, but copyright isn't a huge deal in everyday life.

      Shortening copyright doesn't hurt the vast, vast majority of corporations at all, and it increases business opportunity for resellers of public domain works (more books published by more publishers, etc.). It only hurts a very, very few large cartels who happen to engage in a negative-sum game of locking down large swaths of our culture and preventing others, businesses and individuals alike, from participating.

      Furthermore, copyright most assuradle does affect all of our lives, very intimately, and were it ubiquitiously enforced (as will happen in the digital age if the recording and media cartels have their say), you would probably be shocked at the things you wouldn't be allowed to do, or would be required to pay in order to do.

      As an example, having friends invite additional friends to a party where music is playing, or a video is being shown on your television. That kills most large parties, from high school on up through middle age. Remember, public showing is defined as anyone not in your immediate circle of friends, so your good freind Joe's new girlfriend he brought doesn't (yet) fall into the category. Do not pass go, do not collect $200.

      The books we learn from, the music we hear, the television we watch, the songs we sing (including Happy Birthday and numerous Christmas Carols), the icons of our culture (Rudolph the Red Nosed Reindeer IIRC, and certainly Micky Mouse et. al.) are all privatly owned, copyrighted material.

      I guess I just don't have the energy to help reinstate a government "of the people, for the people, and by the people" because it would have to be done from without, not within.

      You, and the teaming masses just like you, are why we have become a plutocracy, and why our children may never know what a functioning democracy ever was. If people like yourself don't get off their asses and get involved in the political system, you will have only yourselves to blame when the jackboots come a-knocking. And, if the PATRIOT and PATRIOT II legislation is any indication, a-knocking they will certainly come.

      So get off your lazy (tired, whatever) ass and do something a little more constructive than bemoaning the "inevitable", which is only "inevitable" if you choose to make it so through your own inaction.

      Don't allow politicians to accept donations from anyone/thing that doesn't have a right to vote. The barriers of entry to this system, like so many other things, prevent really new ideas from coming into it.

      The get out there and promote your solution to the problem. Politicians do ultimately listen to votes, not dollars, but as long as people like yourself remain inactive dollars will equal votes. This relationship however vanishes quite quickly when the populace actually does get off their ass and take to the streets on a particular subject (consider Abortion, for example, and historically Civil Rights, the lower voting age, and the end of the Vietnam War as examples where public discontent trumped moneyed interests. Money only carries a politician when the people are passive and apathetic ... which is not a given unless folks like yourself choose to be.)
      • the icons of our culture (Rudolph the Red Nosed Reindeer IIRC, and certainly Micky Mouse et. al.) are all privatly owned, copyrighted material.

        Really? Here's why Mickey Mouse may have fallen into the public domain [asu.edu], not through copyright expiration but rather through lack of proper notice when notice was required.

        Politicians do ultimately listen to votes, not dollars, but as long as people like yourself remain inactive dollars will equal votes.

        Voting for candidates doesn't work if neither major party candidate represents my views ("don't blame me; I voted for Browne"). So how do I get one or more of the congressional candidates in my area to adopt any of my pet issues as a plank?

        • Really? Here's why Mickey Mouse may have fallen into the public domain [asu.edu], not through copyright expiration but rather through lack of proper notice when notice was required.

          The problem is a 70-odd year "failure to have proper notice" means that Disney and you are going to have a long battle, and if you have the money, you may win. What you'll win won't be worth the money, though. If it fell into the public domain through copyright expiration, you've got a solid clear case that might be worth fighting.
  • by dacarr ( 562277 ) on Thursday February 13, 2003 @03:54PM (#5297042) Homepage Journal
    Considering it is the US Constitution that establishes copyright limitations, perhaps our best (or only) bet in establishing the upper ceiling for copyright limit ceiling is a constitutional amendment. Nothing can really override that except for another amendment, if I remember my high school government (and middle school US History) classes correctly.
    • unfortunately it is rather unlikely that the US would pass this amendment. The equal rights amendment http://www.equalrightsamendment.org/ hasnt even passed, and that only guarantees women equal rights. 50 percent of the population is women, and this still hasn't passed since the 70's. Rich folk like the *AA's would never let anything changing the copyright happen.
  • Jefferson's quote (Score:4, Insightful)

    by hackwrench ( 573697 ) <hackwrench@hotmail.com> on Thursday February 13, 2003 @04:00PM (#5297096) Homepage Journal
    "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." Thomas Jefferson, Letter to Issac McPherson

    jefferson idea candle taper [google.com]
  • AOL? (Score:4, Insightful)

    by wzm ( 644503 ) on Thursday February 13, 2003 @04:11PM (#5297182) Homepage

    The submitter uses a hotmail address, and yet feels as though they can discount someones opinion by pointing out that they use AOL for email? Thats pretty lame, why not voice your disagreement by countering the authors points with your own.

    Elitism sucks, especially when its directed from sources who don't have much room to talk.

    • I think that comment is timothy's. For my take on the issue, read my comment [slashdot.org].
    • Re:AOL? (Score:5, Interesting)

      by SataiCam ( 466754 ) <rwennb5@nOSPAm.hotmail.com> on Thursday February 13, 2003 @06:20PM (#5298087) Journal
      I'm making apologies for the AOL comment. You're exactly right, I shouldn't have made it given my own use of hotmail and that I used AOL for many years. Cheap joke. I definitely regret it. I do respect Hamilton's opinions. She's a commentator on Writ that I look forward to reading no matter what stance she takes on an issue (I don't usually disagree with her anyhow).

      As for my disagreements in this case, they're minor. My summary didn't make it clear (and that's my fault) that I do agree with her for the most part. My biggest disagreement is her statement that harmonizing US copyright with the EU was a "good" reason for Congress to extend the term. It's a reason, but I don't think it's a good one. I don't think the length of the term was smart for the EU or the US, and just because the EU did it, doesn't mean we should jump of the same bridge (just as I believe that just because the US does something, doesn't mean anyone else should--or should be coerced to--do the same, but that's a commentary for another thread). I don't see the harmonization being as important as it was portrayed in the article.

      I also don't agree with her argument in her previous Writ article on Eldred that though bad policy, the CTEA was still constitutional (obviously, I don't agree with the majority of the Supreme Court either). I side Breyer, Stevens and Lessig here. Doesn't do me much good, but I still disagree. Granted, this point doesn't come up in the present article.

      All that said, as I posted originally, the article was interesting (so was her previous article), and had some good points. I like the "get up and do something about it if it pisses you off" tone. Even though we get that message from other Slashdotters every time stories like this get posted, it's refreshing to hear it from somewhere else.

      I also appreciate the idea that because we have harmonized with the EU now and created a status quo, that it will take both side of the pond working to reduce it. Of course, since most people I know concerned about copyright are here in the US, I don't even know if there's the same desire for a shorter copyright across the pond. I'd like to think support could be drummed up on both sides, but it's already paddling upstream to enact change on this side.

      Did my point of disagreement have anything to do with using AOL or not? No, not at all. Was my comment juvenile and uncalled for? Definitely. Do I regret it in light of being told I was an elitist? Yes. Should I be summarily flogged with a wet noodle and forced to edit badly written code for 3 nights with no sleep? Yeah, probably. My apologies to all I offended. I am an ass.

      • I also appreciate the idea that because we have harmonized with the EU now and created a status quo, that it will take both side of the pond working to reduce it.

        Unfortunately, the harmonization argument seems to be a one way street. Or do you think that harmonization will also make it harder for Congress to increase the term?

  • by gmhowell ( 26755 ) <gmhowell@gmail.com> on Thursday February 13, 2003 @04:31PM (#5297325) Homepage Journal
    Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her other columns on copyright and constitutional law can be found in the archive of her columns on this website. Her email is hamilton02@aol.com.

    Well, it looks to me like she has a bit more authority on which to discuss legal issues than either the poster or timothy (whoever ended with the snide comment). Perhaps she travels, so got AOL. Perhaps she has many business contacts who have the address, so hasn't changed it.

    In any event, her opinions on legal matters are more important than some random John Q. Dipshit such as yourself(ves).
    • Point taken. It was a snide remark on my part, and yes she's more qualified to talk about legal matters than me. Actually, I've read a lot of her work commentary and think a lot of her anyone who clerked for O'Connor is like a demi-god in my Universe.

      So yes, I was a jerk for making a cheap crack. Especially given that I have a hotmail address :)
  • I've never seen a good explanation of exactly what EU copyright law is. "Harmonization" is a popular argument for the extension, but opponents seem to gloss over that, and I've even seen it claimed that some works will go out of copyright in Europe before they do in the US.

    So, what exactly is the deal here?
    • As far as I can tell (it's harder to find information on than US law) EU copyright law is life+70, or publication+70 years for anonymous works. I think works for hire are still based on the life of the individual who created them.

      Logically, for harmonisation, US law should be the same. Disney might actually back this. Mickey Mouse would stay in copyright for 70 years after Walt Disney's death.
  • by Anonymous Coward
    You can tell it is the end of a hard day when you misread Marci Hamilton as Luke Hamill and think, "Luke leading the rebellion against long copyright terms, hell yea!".

  • Boycotts are notoriously ineffective at doing economic damage, but still good publicity. What to boycott?

    1) Pick your preferred term of copyright, say 26 years.
    2) Only buy/watch/listen to materials published in the last 26 years and works in the public domain (eg read penguin classics)

    The most effective things would be capital intensive (isn't that always the way?). Start a business that only sells things acceptable for the boycott and advertise as so. Book stores would have the best luck, books seem to hold their relevance longer. Or start a record store selling an awkward mix of classicial and pop, I suppose. A movie theater would be indistinguishable from a regular one, but you could promote it as boycott-friendly.

    If you want to be a purist you should narrow the boycott to public domain works, stick to books.
  • Eldred Act (Score:4, Interesting)

    by sleepingsquirrel ( 587025 ) <Greg.Buchholz@nO ... pingsquirrel.org> on Thursday February 13, 2003 @05:16PM (#5297640) Homepage Journal
    For another proposition (by none other than Mr. Lessig himself) on reducing the effects of long term copyrights, see the Eldred Act FAQ [stanford.edu]. The excutive summary...
    What have you proposed?

    We have proposed a tiny tax designed to move unused copyrighted work into the public domain.

    How would it work?

    Fifty years after a copyrighted work was published, a copyright owner would have to pay a tiny tax. That tax could be as low as $1. If the copyright owner does not pay that tax for three years in a row, then the copyright would be forfeited to the public domain. If the tax is paid, then the form would require the listing of a copyright agent--a person charged with receiving requests about that copyright. The Copyright Office would then make the listing of taxes paid, and copyright agents, available free of charge on their website.

  • Why don't we just propose that all copyrights are retroactively made non-transferable?

    Only the original creator of the content can benefit from his creation, not his heirs or beneficiaries (such as corporations).

    If the original creator dies, the work is automatically (and immediately) placed into public domain.

    This way, Congress can extend the terms of copyright as long as they want, if they still cared to...

    If we blindly accept their views that copyright is property, we'll lose every time.


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