Is there a constitutional limit on copyright terms? (Supreme Court case)

[David_Simmons]

*Originally posted by RTFirefly *
**
It seems inconceivable to me that when the Founders decided to protect intellectual property for a ‘limited time’, they didn’t mean limited relative to the natural yardstick of the typical human life. **

The problem with this argument is that the Founders meant a “limited time” as Congress decides what constitutes a “limited time.” If they had meant some other definition of “limited time” they would have said so.

[flertbert]

If copyright is allowed to go into perpetuity and retroactive royalty payments are required, then who get’s Plato’s royalties?

Only slightly kidding. While it’s most likely impossible to trace Plato’s descendants there are other folks out there who can point to this or that person being their ancestor and demand a royalty. Throw in cases like Thomas Jefferson/Sally Hemmings where its not 100% clear what the familial connection is, and it complicates things even further. Plus, I can’t imagine that the payout to any individual person would be meaningful, but I can imagine that the total payout would be enormously huge.

emarkp, how do you define a “nominal fee”?

[Zoff]

I received an e-mail about oral arguments in Eldred. I’ll post the gist of the e-mail. Justices O’Connor, Scalia, and Breyer questioned whether a “limited time” that is extendable is the same thing as a perpetual copyright.

However, Justice Breyer also wondered about the effect of declaring the Bono extension unconstitutional. Would that also render all the previous extensions unconstitutional?

[Robb]

Briefs to the Supreme Court on the case can be found here.

bring your reading glasses.

[erislover]

I don’t see what the problem of a lifetime copyright is. RTFirefly mentions this:

Suppose, as a thought experiment, you start at zero and gradually extend the length of the term of copyright. Two things happen for each additional year you lengthen the protection by: (1) the incentive to future Authors (in the broad sense intended here) increases - rapidly at first, then gradually less over time; (2) the ability of future Authors to build on the works of earlier Authors is reduced by virtue of being postponed.

I agree with point (1), sort of self-evident; but I don’t see the reasoning behind point 2.

In what sense is someone violating current copyright laws now building on previous works? I want to know what we’re missing here.

[ed]

In what sense is someone violating current copyright laws now building on previous works? I want to know what we’re missing here.

Well, let’s take the most common example. The only reason we have the Disney corporation is because of acts that are now illegal. Call them “building” on, call them “stealing”, or whatever. The fact is, it was part of free enterprise to take the common culture and reuse it for your own ends, and that has been turned illegal.

Larry Lessig says it much better than I, so I’m going to quote a portion from his presentation (which I linked above):

Here’s my favorite example, here: 1928, my hero, Walt Disney, created this extraordinary work, the birth of Mickey Mouse in the form of Steamboat Willie. **But what you probably don’t recognize about Steamboat Willie and his emergence into Mickey Mouse is that in 1928, Walt Disney, to use the language of the Disney Corporation today, “stole” Willie from Buster Keaton’s “Steamboat Bill.” **

It was a parody, a take-off; it was built upon Steamboat Bill. Steamboat Bill was produced in 1928, no waiting 14 years–just take it, rip, mix, and burn, as he did to produce the Disney empire. This was his character. Walt always parroted feature-length mainstream films to produce the Disney empire, and we see the product of this. This is the Disney Corporation: taking works in the public domain, and not even in the public domain, and turning them into vastly greater, new creativity.

• Pinocchio
• Cinderella
• Alice In Wonderland
• 20,000 Leagues Under the Sea
• Johny Appleseed
• Sleepy Hollow
• Paul Bunyon
• Sleeping Beauty
• Jungle Book
• The Little Mermaid
• Beauty and the Beast
• Hunchback of Notre Dame
• Mulan

They took the works of this guy, these guys, the Brothers Grimm, who you think are probably great authors on their own. They produce these horrible stories, these fairy tales, which anybody should keep their children far from because they’re utterly bloody and moralistic stories, and are not the sort of thing that children should see, but they were retold for us by the Disney Corporation. Now the Disney Corporation could do this because that culture lived in a commons, an intellectual commons, a cultural commons, where people could freely take and build. It was a lawyer-free zone.

It was culture, which you didn’t need the permission of someone else to take and build upon. That was the character of creativity at the birth of the last century. It was built upon a constitutional requirement that protection be for limited times, and it was originally limited. Fourteen years, if the author lived, then 28, then in 1831 it went to 42, then in 1909 it went to 56, and then magically, starting in 1962, look–no hands, the term expands.

Eleven times in the last 40 years it has been extended for existing works–not just for new works that are going to be created, but existing works. The most recent is the Sonny Bono copyright term extension act. Those of us who love it know it as the Mickey Mouse protection act, which of course [means] every time Mickey is about to pass through the public domain, copyright terms are extended. The meaning of this pattern is absolutely clear to those who pay to produce it. The meaning is: No one can do to the Disney Corporation what Walt Disney did to the Brothers Grimm. That though we had a culture where people could take and build upon what went before, that’s over. There is no such thing as the public domain in the minds of those who have produced these 11 extensions these last 40 years because now culture is owned.

Emphasis mine.

[Enderw24]

Ed I listened to Lessig when you linked to him a few days ago. It was very interesting and informative. But I tend to take a step back from anyone that would paint the entire legal profession with the same Evil brush.
Lessig seems to make fun of those wanting a broadened sense of fair use because in his mind it should ALL be fair use. Well that’s just wonderful. But copyrights are there for a reason. You want life + 50 instead of life + 70? You want life instead of life + 50? OK. But copyrights are there for a reason.
Lessig is living in a fantasy world greater than the Walt Disney palace if he believes otherwise. Without a way to protect those who have created something new, there will be nothing new save for the truly altruistic among society who contribute for contribution’s sake.

[Ms2001]

*Originally posted by Enderw24 *
**Without a way to protect those who have created something new, there will be nothing new save for the truly altruistic among society who contribute for contribution’s sake. **

That sure hasn’t stopped free software.

[ed]

I’m going to avoid getting into a debate over Lessig himself. His point, as quoted above, is not that copyrights (and in the broader scope, patents) are worthless. His point is twofold:

• Extending copyrights right before they expire is not limited. It’s not “life + 50” vs. “life + 70”, or whatever. What’s happening now is the equivalent of “forever minus a day.” Do you honestly think they won’t continue the trend, and that we’ve finally settled on “life + 70?” How many times do they extend it before we admit that it’s really a violation of “limited”?

• More important to this case (and the OP), extending them retroactively has no purpose whatsoever other than to protect the interests of people who have already profited from copyrights, who (because of the “life + X” algorithm) are guaranteed to not be contributing any more. As noted before, retroactively adding 20 years to George Gershwin’s music isn’t going to motivate him to do anything: he’s already dead.

Lessig seems to make fun of those wanting a broadened sense of fair use because in his mind it should ALL be fair use.

I’m not sure why you think this. Lessig “makes fun” of people harping on fair use because it’s not the real issue. The real issue is unregulated use. I’m assuming you got that from this bit:

Here’s a simple copyright lesson: Law regulates copies. What’s that mean? Well, before the Internet, think of this as a world of all possible uses of a copyrighted work. Most of them are unregulated. … To read is not a fair use; it’s an unregulated use. To give it to someone is not a fair use; it’s unregulated. To sell it, to sleep on top of it, to do any of these things with this text is unregulated. Now, in the center of this unregulated use, there is a small bit of stuff regulated by the copyright law; for example, publishing the book–that’s regulated. And then within this small range of things regulated by copyright law, there’s this tiny band before the Internet of stuff we call fair use: Uses that otherwise would be regulated but that the law says you can engage in without the permission of anybody else. For example, quoting a text in another text–that’s a copy, but it’s a still fair use. That means the world was divided into three camps, not two: Unregulated uses, regulated uses that were fair use, and the quintessential copyright world. Three categories.

Enter the Internet. Every act is a copy, which means all of these unregulated uses disappear. Presumptively, everything you do on your machine on the network is a regulated use. And now it forces us into this tiny little category of arguing about, “What about the fair uses? What about the fair uses?” Fu… I would say the word, but I won’t: To hell with the fair uses. What about the unregulated uses we had of culture before this massive expansion of control? Now, unregulated uses disappear, we argue about fair use, and they find a way to remove fair use, right?

He’s not saying everything should be free, he’s saying we’ve been forced into arguing the wrong issue. Once they have us haggling over “fair use”, it’s easy enough for the DMCA to come along and take that away from us.

[ElwoodCuse]

The way copyright law in this country works is out of control. It’s getting to the point where big companies like the RIAA can threaten our rights under fair use (by trying to prevent us from making mp3s from CDs we legally own).

Parody is another level of copyright law that is useless. For example, recently Something Awful has had to take down two of their Photoshop contests due to legal threats from Jim Henson Inc and Ask Jeeves. Neither of these C&D orders would hold up in a court of law, but these big companies can afford more lawyers than Rich “Lowtax” Kyanka can. Why have the law if it can be abused by big companies?

I would love for this law to get overturned, but I’m not holding my breath.

[I_am_Sparticus]

*Originally posted by flertbert *
**If copyright is allowed to go into perpetuity and retroactive royalty payments are required, then who get’s Plato’s royalties?

Only slightly kidding. While it’s most likely impossible to trace Plato’s descendants there are other folks out there who can point to this or that person being their ancestor and demand a royalty. Throw in cases like Thomas Jefferson/Sally Hemmings where its not 100% clear what the familial connection is, and it complicates things even further. Plus, I can’t imagine that the payout to any individual person would be meaningful, but I can imagine that the total payout would be enormously huge.

emarkp, how do you define a “nominal fee”? **

Plato’s descendants? Not meaning to completely suck into a hijack, but Plato, having no lineal heirs, left his school to his idiot nephew, pissing off his star pupil, Aristotle, who then started his own school.

[happyheathen]

OK, as long as it is not intented as a hijack…

[Musicat]

OK, IANAL, but here’s my 2-cents. It seems clear that the Constitution intended copyright rights to be limited, not perpetual. And I don’t think a very-long, but not infinite term can be used as a <wink-wink> loophole.

This means that congress can set limits, but not so long as to function as unlimited.

So how long is that? 14 years? 99 years? Somewhere in between?

If I were sitting on the court, I would declare the present law unconstitutional, but send it back to Congress to establish a more reasonable time frame with the above guidelines.

And if I were in Congress, rather than plucking a number out of a hat, I would decide the length based on what would best “promote the useful arts” as the Constitution says. Might be a bit subjective, tho.

[Wumpus]

RTFirefly: If you’re in favor of limited copyright length, I wouldn’t go dragging the human lifespan into it. Indeed, the human lifespan has been used by proponents of the Bono act: they argue that copyrights should be extended since the human lifespan has gotten longer during the last century. (They need to be longer, goes the theory, to provide for the long-lived children of the copyright creator. Never mind that the vast majority of copyrights are only going to generate enough royalties to buy the creator’s children a couple of extra bags of groceries.)

It’s a very interesting case with a lot of Constitutional meat on it. I suspect the Court is going to let Congress off with a “We’re on to you!” warning, though.

Vic Ferrari, some economists have been advocating a system similar to the one you propose for some time now (but with lower fees.) I think the German patent stystem already works this way.

[Azael]

Justice Ginsberg’s majority opinion

Justice Stevens’ dissenting opinion

Justice Breyer’s dissenting opinion

Guess I am not suprised. There is a definite historical trend with regard to the growth of copyright protections… but who needs innovation anyway?

[Max_Torque]

As usual, I find myself in agreement with Justice Stevens.

[even_sven]

I don’t know if I am allowed to post this, since some of this art is indeed illegal, but the Illegal Art Exhibition has some pretty good examples of what kind of art people are making that violates copyright laws. Superstar is a particular favorite of film teachers, who hold secret screenings and lectures about it. I think it’s rediculous that students arn’t technically allowed to view and analyze this very interesting piece, despite the fact that it undoubtably exists, and there is a lot to learn from it.

[Cervaise]

The Constitution grants Congress the right to define the period of intellectual property ownership up to any finite duration. Therefore, the Supreme Court can never disallow any extension passed by Congress, because, logically, it’s always going to be a finite period. Eight hundred thousand years from now, Chief Justice Morlock will reject the Eloi claim on the basis that eight hundred thousand years is not equal to infinity.

[Musicat]

Cervaise, that seems to be the Court’s reasoning. “For limited times,” the wording used in the Constitution, can now be indefinitely extended without challenge. Can you imagine a new bill in Congress that adds another 50 years to existing copyrights? This decision seems to give the green light to such a proposal.

My guess is that if this procedure continues for another hundred years or so, it will become the “Plessy v. Ferguson” of decisions and the Supremes will eventually call a halt to it.

[mswas]

I personally think that Copyright’s are a necessary evil, however they are an evil.

Let me say this:
Your descendants should have NO RIGHTS WHATSOEVER to your copyright. The copyright is there to protect YOUR innovation, if you are dead, then you are clearly no longer going to be innovating. If your innovation made enough money for you to leave that to your children then that’s fine. However, as a computer consultant, I do not expect that my children will be benefitting from my work outside of any money that I save and invest for them. In fact, I am going to have a nominal at best inheritance, but I’ll do just fine in society, so why are the children of copyright holder’s any different? Why SHOULD they get any use of their parental copyright?

I think the original 14+14 is ideal until we live in a society where all intellectual property is public domain. I think now it’s even more important that copyrights be shorter because information is moving at a much more rapid pace, we have more and more innovation in a much shorter time span, so let’s not muddy that up by having draconian copyright measures enacted to promote Corporate Hegemony.

Erek