[acs236]

The problem with Lessig's argument is that he fails to explain how 95 years is not a "limited time" while 75 years is. Whether or not it's good copyright policy to extend copyright this long is irrelevant, because Lessig (essentially) is asking the court to overturn the CTEA on Constitutional grounds. The Constitution says that congress can extend copyright to authors for limited times. The REAL constitutional problem is that the CTEA does not provide a means for an author, who previously terminated the copyright assignment to take advantage of an earlier extension, to again terminate a transfer to take advantage of the extra 20 years provided by the CTEA. Under this circumstance, the extension benefits assignees and not authors, contrary to the words of the Constitution.

I agree with you that the CTEA is bad policy, but I don't see how it's unconstitutional.

 

[lucien]

Quote:

The Copyright and Patent Clause confers upon Congress the power: 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. {U.S. CONST. art. I, § 8, cl. 8.}

The problem is not the time period itself. The problem is that the constitution says 'limited times', and Lessig's point is that by continually extending it, without a guarantee that it will not continue to be extended, the net result is perpetual copyright.

Hence, the law is unconstitutional.

 

[acs236]

I agree that if Congress was to continually extend the copyright term in perpetuity there would be a violation of the Copyright clause of the Constituion. The question is whether Congress' extensions thusfar can truly be characterized in this way. This seems to be a question of line drawing. At what point does copyright extension become akin to perpetual copyright? I'm not sure of the precise line, but I don't think the Supreme Court will feel comfortable drawing it at this point. I think the Court will probable err on the side of constitutionality, because it is up to the legislators to make policy, not the Court.

Of course, I think Congress' actions have been foolish. I would shorten the copyright terms and make them dependent on the medium. (i.e., the copyright on computer software should be 5 years or so).

This being said, predicting what the Supreme Court will do is a foolish exercise. We'll know soon enough.

 

[lucien]

true, things get rolling on the case this week, so we shouldn't have to wait too much longer.

you know, it never occurs to me that the courts aren't allowed to make laws. it's obvious i know, but i think somewhere deep down i still feel the courts are more qualified in some ways than congress. you know, not so many lobby groups buying justices and all.

of course, i'm probably kidding myself about that as well.

given the number of extensions, and their incredible (but entirely coincidental

) relationship with a certain mr m. mouse, i can't help but expect that they will continue to be granted every time minnie's fave rodent gets close to going public. not an original thought, but hey -- when the truth is staring you in the face...


making copyrights dependent on the medium doesn't sound like a good idea to me though. perhaps the type of work. but writing is writing, whether in a book, on a computer, or read aloud on audio CD.

 

[shivohum]

Quote:

I agree with you that the CTEA is bad policy, but I don't see how it's unconstitutional.

The problem as I understand it is not the length of the extension, it is the fact that the extension applies RETROACTIVELY to previously copyrighted works. The copyright clause says that copyright may be granted "to promote the progress of science and useful arts," and Lessig's argument is that extending copyright on previously-created material cannot possibly create or strengthen any incentives for future creation. Indeed the fact that this material doesn't go into the public domain actually hinders new creation and infringes 1st amendment rights.

 

[lucien]

excellent point shivohum -- somehow i missed that part of the argument entirely.

[rubs hands together] well, the case is looking stronger all the time. mu ha ha ha ha!!

i for one will dance a jig for disney when i finally see them lose a court case related to intellectual property.


so does anyone know what happens if eldred wins? are the laws reversed, so anything that is currently protected becomes public, or are they grandfathered somehow to protect the businesses?

 

[acs236]

Lucien, I mispoke when I said that perhaps copyright duration should be dependent on the medium -- I meant the type of work.

Shivohum, thanks for joining in, I was beginning to think Lucien and I scared everyone way.

As for "to promote the progress of science and useful arts" -- commonly referred to as the "preamble" to the Copyright clause --there is much dispute as to whether it should be read as a substantive restriction on the power of congress, or if it is merely guiding language. Further, a strict reading of the language could mean that congress can only enact copyright protection for the precise time that is needed to promote the creation of works. Any greather time would, under this reading, be outside the power of congress to enact. However, it also makes sense to read the preamble as merely dictating a purpose, and not restricting congress' power. In short, is this language meant to be a restriction?

Also, it could be argued, though I suggest only quite weakly, that extending copyright terms retroactively could promote the progress of science (which, btw, has long been interpretted broadly to include creation of art). To use the copyright devil as an example, let's assume that a janitor as Disney finds an extremely old Mickey Mouse cartoon, that even predates Steamboat Willy (sorry if my Disney history is off). The Disney lawyers determine that the copyright on this newly discovered cartoon lapsed last year. Further, the quality is so low that it would take a substantial investment to restore the print. Disney would have no incentive to do any of this, because they probably wouldn't be able to turn a profit on the cartoon, and thus may let it continue to collect dust. My extending the copyright term retroactively, congress would provide Disney an incentive to bring to market this Mickey Mouse cartoon.

As for the CTEA, it was supposedly passed to match the copyright term for the European Union (I might be getting the facts slightly wrong, this is from memory). Apparently, the EU extended the term of copyright, but with the following condition. A member country was required to enforce a copyright from the shorter of (a) the term that would be granted to the work had it been first published in such country or (b) the term of protection granted to the work in its country of origin. The more I think about it, the more I'm certain I'm getting this wrong, but it is well published and you should be able to find information if you're interested. Unfortunately I'm not an home right now and can't look it up myself. However, the general gist is that U.S. works were getting less protection than their European counterparts, so congress lengethened the copyright term to even it out.