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<nettime> eldred v ashcroft - context
Paul D. Miller on Sun, 20 Oct 2002 07:23:55 +0200 (CEST)


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<nettime> eldred v ashcroft - context


A good reason to check out the Edred vs Ashcroft case is, of course, 
context. The weird thing is that if the case goes through, the gap 
between the actual practice of culture and the dyanmic engagement of 
laws that are actually supposed to condition "culture" in an 
information based economy like the U.S. will just get bigger and 
bigger, and at the end of the day, will render most laws like the 
Bono Act un-enforceable. To me it just makes one more case for a 
complete revision of the copyright laws as they stand... it's a 
serious money thing though, and they'll probably go with the cash on 
this one. In the short term it might make the companies some money, 
but it'll create a "chilling effect" on how people observe the law 
and its interaction with behavior... With over 133 million kazaa 
desktops (and a similar # of Morpheus based desktops) chiming in, I 
can only say its a matter of time before this kind of stance on 
copyright just simply implodes. The public reading of the Lessig 
transcripts in front of the Supreme Court Oct 9th will be available 
on Lawrence Lessig's website:
http://eldred.cc
sometime over the next couple of days.

Paul


some good context:
http://eon.law.harvard.edu/openlaw/eldredvreno/progress.html

and

www.fepproject.org/commentaries/eldredcomment.html

The Delicate Balance Between Copyright and Free Expression

By Marjorie Heins

The unlikely subject of copyright is shaping up as the biggest First 
Amendment battle in the Supreme Court next year. The reason: recent 
legislation has put copyright law on a collision course with artistic 
and intellectual freedom.

The 1998 "Sonny Bono Copyright Term Extension Act" stretched what was 
already a very long term of copyright protection. It did so at the 
behest of Disney and other large media companies. Under existing law, 
such treasured icons as Mickey Mouse, who first appeared on the scene 
in 1928, would have lost copyright protection and entered the public 
domain in 2003. Wanting to profit from reproductions of Mickey and 
his pals just a bit longer, Disney and its allies persuaded Congress 
to extend copyright by another 20 years.

The first copyright law, in 1790, gave authors and publishers 
monopoly power over their works' reproduction and sale for 14 years. 
This was consistent with the copyright clause of the Constitution, 
which authorizes Congress "to promote Science, and useful Arts, by 
securing for limited Times to Authors and Inventors the exclusive 
Right to their respective writings and discoveries." The 1790 law 
made the "exclusive Right" renewable for a second 14-year term.

Copyright was extended only once in the next 100 years (in 1831), and 
again only once in the following 50 (in 1909). But since the 1960s, 
Congress has stretched the "exclusive Right" 11 times - creating what 
is now an almost perpetual monopoly power for the companies that 
control the writings, films, and other artworks that their employees 
have created. Under the Sonny Bono Act (named for the now-deceased 
entertainer turned congressman), most copyrights held by corporations 
now extend for 95 years, while copyrights held by individuals extend 
for the author's life plus 70 years. Novels like The Great Gatsby, 
movies like The Jazz Singer, and cartoon characters like Pluto would 
have entered the public domain in the next few years if not for the 
Sonny Bono law.

Why does this matter? After all, copyright protection is thought 
essential in motivating artists and writers to create new work, and 
thus keep our culture exciting, contentious, and alive. But the 
public domain is also vital to culture, as the remarkable array of 
organizations that have filed friend-of-the-court briefs in Eldred v. 
Ashcroft, the case challenging the Sonny Bono law, attest. This bevy 
of writers, historians, librarians, film preservationists, 
constitutional scholars, and cultural groups have given the Supreme 
Court numerous examples of how important it is to take seriously the 
constitutional requirement of a "limited term."

The brief from the College Art Association and others concerned with 
the study and preservation of visual art is typical. It explains that 
scholars and teachers assembling texts and databases often cannot 
locate the owners of copyrights in educationally valuable letters, 
songs, and photographs (most of them have neither the time nor the 
financial resources even to embark on such quests). Without copyright 
permission, publishers generally won't include these materials, for 
fear of legal liability. The result, according to the CAA, are 
"gaping holes" in such compilations as The Video Encyclopedia of the 
Twentieth Century, a resource used by many researchers and teachers, 
or "Who Built America?," a CD-ROM series containing primary sources 
from the Depression Era.

In other instances, copyright holders can be found, but they refuse 
permission to reproduce works for frankly censorial reasons. The 
estate of Lorenz Hart will not allow "any biographer who mentions 
Hart's homosexuality" to reprint his lyrics, according to the CAA 
brief.

Jack Valenti of the Motion Picture Association of America (the MPAA) 
pushed hard for the Sonny Bono law by arguing that extended copyright 
protection is needed not only to motivate artists and writers, but to 
spur the preservation of films and other perishable works. The 
factual basis for his claims was dubious. Authors by definition don't 
have much urge to create after they are dead; and it's hardly likely 
that when alive, they will be more motivated if they know that their 
heirs will profit from their work for 70 years instead of the 
previous term of 50.

As for preservation, the briefs in Eldred demonstrate that for the 
most part, it's not the corporate holders of copyrights but 
independent scholars and archivists who are most likely to take steps 
to preserve our artistic heritage. They generally can't do so, 
however, unless the works are in the public domain. Multiple editions 
of good books - at cheaper prices and with a variety of supplementary 
material - also quickly appear once copyright exclusivity ends.

Copyright is always a balancing act - there are free expression 
interests on both sides of the equation. "No man but a blockhead ever 
wrote except for money," Samuel Johnson claimed; and the authors of 
our Constitution apparently agreed that some limited time during 
which authors can profit from their works is needed to spur 
production. But "limited" is the key word here, because all creative 
work is derived in part from what came before; and artists, critics, 
and parodists need to borrow from existing works in order to build or 
comment on them.

Copyright law has traditionally balanced these competing 
free-expression interests. The law distinguishes between "ideas" and 
"expression," for example. That is, it's understood that nobody can 
own or restrict the dissemination of facts or ideas. Copyright law 
only prohibits direct copying of the words, images, plots, or 
characters created by others.

Similarly, the doctrine of "first sale" in copyright law allows 
purchasers of books, photos, or other copyright-protected items to 
give or sell them to another, thereby enhancing the spread of 
knowledge. The ongoing battle over Internet file-sharing implicates 
free expression because media companies have encrypted the digital 
versions of their works, thus preventing first sale. (They also 
persuaded Congress, in the 1998 "Digital Millenium Copyright Act" or 
DMCA, to criminalize de-encryption software; but that is a subject 
for another essay.)

Copyright law also recognizes First Amendment values through the 
concept of "fair use," which allows copying for purposes of comment, 
scholarship, and parody. But it's often guesswork to predict where 
fair use ends and unlawful piracy begins; hence, such hotly fought 
battles as the recent litigation over The Wind Done Gone, novelist 
Alice Randall's sharply critical take on Margaret Mitchell's Gone 
With the Wind. The Mitchell estate would have refused Randall's 
borrowing even if she had asked permission, because it prohibits any 
works deriving from Gone With the Wind to mention homosexuality or 
interracial liaisons, and Randall's version does both. Although fair 
use eventually prevailed in Randall's case, it wasn't before a 
federal court ordered a halt to publication of The Wind Done Gone, 
and major sums were spent on lawyers' fees.

A fourth important safety valve for free expression in the world of 
copyright is of course the public domain. Which brings us back to 
Eldred v. Ashcroft.

Eric Eldred, the lead plaintiff in the case, began an online press in 
1995 to publish all manner of public domain works and distribute them 
to a global audience as only the Internet can do. Had the Sonny Bono 
Act not extended copyright for another 20 years, Eldred would have 
published Robert Frost's "New Hampshire," Sherwood Anderson's "Horses 
and Men," and numerous other literary works when they entered the 
public domain in 1999 and the years immediately after.

Lawrence Lessig, a Harvard Law professor at the time, undertook to 
represent Eldred in challenging the Sonny Bono law. It was the first 
time a constitutional challenge had been brought to copyright 
extension, and the courts made quick work of Lessig's claims. In 
February 2001, the D.C. Circuit Court of Appeals ruled that neither 
the opening words of the Copyright Clause ("to promote Science, and 
useful Arts") nor the language of "limited term" restricted Congress 
in deciding how long a "limited term" could be. (Mary Bono, Sonny's 
widow, had quoted Jack Valenti as saying that the term should be 
"forever less one day.")

The D.C. Circuit also rejected Lessig's First Amendment challenge to 
the Sonny Bono law, arguing that nobody has a "First Amendment 
interest in a copyrighted work." Since the law extended the copyright 
term for the works that Eldred wanted to publish, by definition he 
had no First Amendment interest in them, according to the court's 
circular reasoning.

By this time, though, the movement for free speech online had grown 
to include calls for free copying, free software, and fierce attacks 
on recent copyright legislation. Many librarians, writers, artists, 
and scholars were coming to understand the threats posed by copyright 
expansions like the Sonny Bono Act and the DMCA. When Lessig et al. 
asked the Supreme Court to review the D.C. Circuit ruling, they had 
an unusual and diverse group of supporters - leading copyright and 
constitutional law professors, the American Library Association, and 
other major groups concerned with art and scholarship.

Of course, this is an issue that splits the worlds of media and 
publishing. Some authors' groups favor expansive copyright 
protection. But a movement has clearly taken hold, and the notion 
that the First Amendment has no application at all to anything 
Congress chooses to do in the area of copyright has become 
increasingly unsettling. On February 9, 2002, in a move that took the 
industry by surprise, the Supreme Court granted review in Eldred. The 
legal questions it wanted the parties to address were: whether the 
D.C. Circuit erred in ruling that Congress had the power to extend 
the term of existing (as opposed to future) copyrights; and whether 
copyright law is "categorically immune" from First Amendment 
challenge.

On May 20, the Supreme Court received the plaintiffs' brief from 
Lessig and his co-counsel - among them, Stanford Law School's dean, 
Kathleen Sullivan, Jonathan Zittrain of Harvard's Berkman Center for 
Internet & Society, and ex-Reagan Administration Solicitor General 
Charles Fried. Fourteen supportive briefs poured in, with a total of 
141 signers ranging from the National Writers Union to the 
Association of American Physicians and Surgeons, from Computer 
Professionals for Social Responsibility to authors like William Gass 
and Ursula Leguin.

The government argues in defense of the law that the introductory 
words of the Copyright Clause are not a constitutional command. 
Likewise, it claims, Congress has discretion to decide what is a 
"limited term." And, on a less legalistic note, the Department of 
Justice says that the law is a justified effort to bring the U.S. 
copyright term into conformity with that of the European Union.

But all the Supreme Court needs to decide in Eldred is that the First 
Amendment applies to copyright legislation. It can then send the case 
back to the lower courts to determine if 95 years is so long that it 
defies any reasonable interpretation of "limited term" and in 
consequence, impoverishes free expression in the public domain.

For a thorough archive of materials relating to Eldred v. Reno, go to 
http://eldred.cc

June 3, 2002



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