Or so reads the title of this Dan Gillmor column about the SCOTUS ruling on the Eldred vs. Ashcroft.
There have been several threads about copyright here, but I thought I’d start this thread here. Looks like the public domain will die to the degree that Disney lobbies congress.
sigh
Whatever. It was the right decision. The Court answered the question of whether the law was unconstitutional. Whether it’s good policy or not is not within the Court’s purview. Nor should it be.
Exactly. Th SCOTUS is not ruling whether the law is good or bad but whether it is constitutional. It is the prerrogative of the Congress to make laws whether good or bad, so long as they are constitutional.
I’ve never seen a single good argument as to how retroactive copyright extensions could be considered constitutional, given that they fly in the face of the whole point, which is “to promote the progress of science and useful arts.”
Mickey Mouse has already been created. Walt Disney drew him knowing full well that his copyright would only last 28 years (plus an optional 14). How in the world will adding yet another 20 years to Mickey’s life promote creativity? Will Walt unthaw - er, rise from his grave - and start making more cartoons?
If anything, retroactive extensions retard creativity. If Mickey became public domain and anyone in the world was allowed to use him, Disney Corp would need to bust their asses to make the highest quality product they could with him to attract brand loyalty - as an example, anyone can make Asprin, but tons of people still pay extra to buy Bayer because they have the impression that it’s a better product.
Yes, and the constitution provides the congress with powers to grant exclusive copyright for a limited time. Retroactively extending the copyright doesn’t fit that IMO (and the opinion of 2 of the SC justices, I might add).
Well, we can discuss copyrights but that’s a totally different issue and we recently had a thread on that. It is not an easy issue. I would say that if Disney makes a cartoon in 1950, the copyright for the cartoon should last about 33.33 years and then that cartoon is in the public domain. But, as long as Disney continues to produce Mickey Mouse cartoons, I have a problem with others making Mickey Mouse cartoons because there is a brand issue just like you are not allowed to make CocaCola. But I agree that copyrights last too long. I say 33.33 years from creation is a good period. No matter if the author dies or not, whether it is a company or an individual: 33.33 years is what you get and after that your product is in the public domain.
Well sailor, I actually agree that sounds about right. Somewhere around one generation seems right. In fact, the rule of 14 years with one 14 year extension sounds good to me as well (which is where it all started in the US).
First off, it’s not “retroactive.” The term extension only applies to copyrights in force. Had Congress passed a law that revived the copyright in a work that had fallen into the public domain, there would be a different question, but that’s not the statute at issue.
Second, while you may feel it’s not rational for an extension of existing copyrights to “promote the progress” etc. etc., the fact is that Congress came to a different decision. The question is, whose opinion is to be followed. Because Congress had not violated a separate check on its powers (such as the First or Fourteenth Amendment) in passing the amendment, the question becomes whether Congress had a rational basis for approving the extension in question. The answer is that they did. First, it would put U.S. works on equal footing with European works from the perspective of EU copyright law. This promotes the progress of useful arts by assuring that U.S.-created works will be given equal treatment in another major commercial jurisdiction. Second, extending the copyright might encourage the owners of those copyrights to restore fading paintings, decaying film, etc. It is better for the progress of the arts if these works are maintained instead of allowed to decay. Third, there is a fairly strong history (cited extensively by the Supreme Court) of Congress treating existing works under copyright and future works as equal for purposes of copyright term extensions.
Now, you may not agree with any of the above. Fine and dandy. Maybe you think these considerations are outweighed by considerations relating to the public domain (which, incidentally, is not mentioned anywhere in the Copyright Clause). But the point is that it is not the Supreme Court’s job to substitute its judgment for the judgment of Congress. Unless Congress has violated one of the separate checks on its powers (e.g. the First Amendment), its decisions as to what’s an appropriate non-perpetual copyright term is a matter well within legislative discretion. And entitled to a huge degree of deference. The Supreme Court does not reverse laws simply because they believe an alternate policy makes more sense or is more rationally related to the legislative power. They defer to Congress.
As they should. Last time I checked, I didn’t vote for anyone on the Supreme Court. I didn’t cast a ballot to put any of those people up there. I was never consulted about whether I want those people there. I did have a choice of a a slate of Congresspeople to represent my interests and to make laws. If they do something I don’t like, and enough other people feel the same way, they are gone. And they know this. The Supreme Court justices have (let’s all say it together now) life tenure. And they’re unelected. They don’t have to answer to anybody. So if they change laws simply because they don’t like them and would have done things another way, they are doing the thing that we elect legislatures to do, without having to be held accountable for it.
The Supreme Court ruled in the 60s that it was unconstitutional to change patent terms retroactively. I don’t see what’s so different about copyrights.
Mr2001, do you have a citation to that case? At around page 11 in the opinion, the Court suggests that Congress does have the power to retroactively extend patents.
Robb, Stevens’ dissent starts out thusly:
And from a footnote referring to that quote:
For reference… majority opinion, Stevens’ dissent, Breyer’s dissent.
Not that I’m a lawyer, but the Sears case dealt with Illinois law, while the current case deals with an act of Congress which might explain why the two cases are dissimilar in their rulings. This site’s analysis gives the following conclusion:
“Thus the patent system is one in which uniform federal standards are carefully used to promote invention while at the same time preserving free competition. . . . Obviously a State could not, consistently with the Supremacy Clause of the Constitution, . . . extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents. To do either would run counter to the policy of Congress of granting patents only to true inventions, and then only for a limited time. Just as a State cannot encroach upon the federal patent laws directly, it cannot, under some other law, such as that forbidding unfair competition, give protection of a kind that clashes with the objectives of the federal patent laws.”
Well, I am a lawyer, and an intellectual property lawyer to boot, and the distinction you have drawn between state power and federal power is exactly the difference. The federal government, which has exclusive jurisdiction over patents, can extend the life of patents in force or copyrights in force. A state cannot. It’s called pre-emption.
Sweet. Glad I got that right!
Once again, Vic Ferrari’s ultimately sensible solution to the copyright issue:
Copyright lasts for a set period of time free of charge, after which authors must pay a yearly – and ever increasing – fee to maintain the copyright on one of their works. This allows unpopular works into the public domain quickly, but lets companies hold on to profitable works for as long as they can afford.
“Retroactively” means “after the fact,” in this case, after the work has already been covered by copyright, not after the copyright has been expired.
The company better hope inflation keeps up with this increase. And J.K. Rowling better hope she dies before someone creates Potter-porn.
The two basic legal issues (as opposed to public policy issues, which fall outside the Court’s purview) are:
Does the “limited times” clause impose an upper limit on terms and/or a limit on retroactive term extension?
Does the “promote the progress” clause require a demonstrable benefit from a term extension?
On the first, I agree with the dissenting opinion that both the overall length (in its approach to the time periods which raise “doctrine of perpetuities” issues in the realm of real property) and the recent pattern of retroactive extension (which approaches “infinity by induction”) violate the intent of the “limited times” clause.
On the second, I don’t see any convincing way to render a decision without intruding into the public-policy realm and thereby intruding upon the prerogatives of Congress.