The U.S. Supreme Court has ruled, 7-2, that the Sonny Bono copyright
extension act is not unconstitutional. All challenges to that law have
been rejected, and the law is allowed to stand. Mickey Mouse need not fear
being pushed into the public domain anytime soon.
The majority opinion (available in PDF
format) was written by Justice Ginsberg. The majority found that the
phrase "limited time" in the U.S. Constitution doesn't mean that the time
has to be reasonable; the vision of "forever minus one day" copyright terms
is just fine with these people. The interpretation of "limited time" is
left entirely to the discretion of Congress; the courts have nothing to
In sum, we find that the CTEA is a rational enactment; we are not
at liberty to second-guess congressinoal determinations and policy
judgement of this order, however debatable or arguably unwise they
There was also, according to the majority, no restraint to free
expression to be concerned about. End of case.
Justice Stevens wrote a
dissent arguing that the extension of existing copyrights can not be
constitutional. He pointedly does not look at the more general issue of
copyright extension, arguing that is not the case that the plaintiffs
He also points out that, in the last eighty years, the
only work to enter the public domain is that which was copyrighted in
1923. He concludes:
By failing to protect the public interest in free access to the
products of inventive and artistic genius - indeed, by virtually
ignoring the central purpose of the Copyright/Patent Clause - the
Court has quitclaimed to Congress its principal responsibility in
this area of the law. Fairly read, the Court has stated that
Congress' actions under the Copyright/Patent Clause are, for all
intents and purposes, judicially unreviewable. That result cannot
be squared with the basic tenets of our constitutional structure.
separate dissent was written by Justice Breyer, who took a much greater
interest in the issue of whether copyright extension actually serves to
"promote the progress of science" as specified in the Constitution. He
doesn't believe that copyright extension will cause more works to be
The extension will not act as an economic spur encouraging authors
to create new works.... No potential author can reasonably believe
that he has more than a tiny chance of writing a classic that will
survive commercially long enough for the copyright extension to
matter....What monitarily motivated Melville would not realize that
he could do better for his grandchildren by putting a few dollars
into an interest-bearing bank account?
Justice Breyer also takes a look at the first amendment (freedom of
expression) arguments, and finds them worthy of rather more consideration
than they got from the Court majority.
His conclusion is clear and straightforward:
This statute will cause serious expression-related harm. It will
likely restrict traditional dissemination of copyrighted works. It
will likely inhibit new forms of dissemination through the use of
new technology.... It is easy to understand how the statute might
benefit the private financial interests of corporations or heirs
who own existing copyrights. But I cannot find any
constitutionally legitimate, copyright-related way in which the
statute will benefit the public. Indeed, with respect to existing
works, the serious public harm and the virtually nonexistent public
benefit could not be more clear.
Unfortunately, two voices of relative reason were not sufficient to sway
the Supreme Court, and copyright extension remains the law of the land.
There can be no doubt that those behind this law (and various other
expansions of intellectual property rights) will push for more in the
future. It also seems clear that there will be no help from the courts in
fighting this push. As far as the courts are concerned, Congress can do
what it wants in this area.
That leaves only one option open for those who would fight for the
intellectual commons - trying to talk some sense into the legislative
branch. There are signs that the general awareness of the problematic side
of copyright expansion is growing.
This case, even in defeat, has been a step in the right direction.
Lawrence Lessig did an outstanding job in arguing the case before the
Supreme Court; as a result, far more people know (and care) about copyright
issues now than before.
With a redoubled effort, it should yet be possible to put an end to the
unending expansion of copyright power.
It will not be easy, though, to say the least.
Comments (6 posted)
The word is out: the music industry and "technology companies" have come to
an agreement on anti-piracy legislation. Could it be that the
determination of the technology industry to serve the needs of its
customers has brought the copyright fights to a reasonable conclusion? We
know better than that.
The "technology companies" in this case are made up of the Business Software Alliance (best known for its
software licensing raids on companies) and the Computer Systems Policy Project, a lobbying
group made up of IBM, Intel, HP, and others. The agreement between these
groups and the RIAA says, essentially:
- The groups involved will oppose any governmental mandates requiring
digital rights management features in digital devices. The CBDTPA,
thus, has lost the support of the RIAA.
- These groups will also oppose any governmental expansion of the rights
of users of copyrighted materials. According to the
CSPP release, "Both industries stated their support for
private and federal enforcement against copyright infringers as well
as unilateral technical protection measures and they agreed that
legislation should not limit the effectiveness of such
In other words, the RIAA has come to the conclusion that the status quo is
good enough, that whatever DRM schemes it has in mind will work, and the
best thing to do is to get the government out of the picture before any
pesky ideas about fair use, first sale, and other longstanding aspects of
copyright law make any more headway. The technology companies, with luck,
are freed from having to be the industry's policeman, and are thus happy to
sign on. It's a nice, smoke-filled-room deal; nobody felt any real need to
consult with the people who actually buy and use copyrighted materials.
This, of course, is how copyright law has been made in the U.S. for a long
This deal is not entirely bad; it isolates the motion picture industry and
makes unpleasant legislation like the CBDTPA more unlikely to pass. But it
also makes things harder for DMCA reform and other useful measures. The
truly interesting thing with this agreement, though, is that it seems that
the RIAA has concluded that it has more to lose than to gain from increased
legislative attention to copyright issues. The increasing copyright
backlash, perhaps, has given them a bit of a scare. What we should really
conclude from this "historic" agreement is that, Supreme Court
disappointments notwithstanding, the copyright message is beginning to get
Comments (2 posted)
A couple of new Digital Millennium Copyright Act cases have come up over
the last week. Neither one involves Linux or free software, but both show
the broad reach of this law, and how the DMCA could be used against Linux
in the future.
The first case is a lawsuit by Lexmark against Static Control Components.
Lexmark printers talk to installed toner cartridges via a proprietary
protocol; the printer will refuse to use cartridges which do not speak this
protocol. According to Lexmarks's
complaint (PDF format), this mechanism "protects consumers to ensure
that they are using genuine Lexmark toner cartridges." It also, of course,
protects Lexmark's revenue stream by ensuring that consumers are
"protected" from buying cheaper toner cartridges from another
A company called SMARTEK sells chips which can successfully perform the
handshake with Lexmark printers, and thus allow "unauthorized" toner
cartridges to be used. Lexmark has two distinct gripes with this product.
First, they claim, the SMARTEK chip contains a copy of code from Lexmark's
own chip; this, if true, would be a straightforward copyright violation.
But Lexmark also claims that, regardless of the provenance of the code, the
SMARTEK chip circumvents Lexmark's technical measures which control access
to the software running in the printer itself. And that, of course, is a
This claim may seem like a bit of a stretch, but Ed Felten's
remarks on the case are worth a read:
Clearly, Lexmark is being creative in their interpretation of the
DMCA. But their arguments are not ridiculous. The purpose of the
DMCA was to ban certain types of interoperation. And the DMCA
intentionally did more than just to strengthen the traditional
rights of copyright holders -- it created new categories of
rights. Lexmark will not be laughed out of court.
A similar case has been brought forward (late last year) by the Chamberlain
manufacturer of automatic garage door openers. Chamberlain's remote
openers use a sort of one-time password scheme to defend against playback
attacks, which is certainly a worthwhile goal. Of course, this scheme also
makes it difficult for competitors to make and sell remotes which will work
with Chamberlain's openers.
Unfortunately for Chamberlain, a company called Skylink figured out how to
do it. Chamberlain's complaint
(PDF format), "the Skylink transmitter circumvents the protective
measure of Chamberlain's copyrighted rolling code computer program in the
receiver wherein the homeowner can gain unauthorized access to such
computer program." The owner, in other words, is gaining unauthorized
access to his garage door opener, which he thought he had bought, to
(without authorization) open his own door, which he thought was part of his
This case, too, will probably not be laughed out of court.
One of the nice features of Linux, of course, is interoperability.
Developers of the Linux kernel and applications have, over the years, put a
great deal of effort into making Linux work with just about any other
system - hardware or software - that they could. Interoperability is one
of the big selling points of the Linux system.
It is increasingly clear, however, that the DMCA allows vendors to make
interoperability a crime simply by saying so. There can be no doubt that
this "feature" of the DMCA will see increasing use in the future, and that
Linux users will feel its bite.
Comments (none posted)
[This article was contributed by LWN reader Joe
on Wednesday that it had filed for bankruptcy
protection on Monday, January 13. The company filed for protection in France,
a "declaration de cessation des paiements," which is similar to filing
Chapter 11 bankruptcy in the United States.
MandrakeSoft currently has a debt load of about €2 million, or about $2.1
million U.S. The company will be able to continue operations, albeit under the
direction of a court-appointed administrator. According to Gaël Duval, the co-founder of MandrakeSoft, the Mandrake development team is still on the job and
will continue to release new products. "We're nearly at break-even and the
business is growing every month. We do everything possible to ensure the best
future for Mandrake. Users shouldn't be concerned. There will be future
The company is not the first Linux distributor to file for bankruptcy
protection. Stormix Technologies debuted its Debian-based Storm Linux
distribution in late 1999 and had filed for bankruptcy by January of 2001. The
Vancouver-based company never recovered, and users of Storm Linux were left
high and dry. Since Storm Linux contained a good deal of proprietary software,
there was no way for users to continue development of the distribution on their
own. Mandrake Linux users, at least, need not fear that problem.
The signs of monetary difficulties have been there for some time now. The
company went public at the end of July, 2001 and raised a total of €4.3
million. Since that time, MandrakeSoft has issued several calls for user
contributions, in the form of subscriptions to its Mandrake Users Club, to
keep the company
afloat on its way to profitability. The Mandrake Users Club offers a
few perks, like the ability to vote on new packages, but hasn't been enough to
lure the majority of Mandrake users into contributing.
Whether users should pour in cash now or wait and see whether MandrakeSoft
pulls through is up to them, according to Duval. "If they want to boost our
development, they should sign up." Duval says that it is unlikely that
MandrakeSoft won't emerge from bankruptcy, but even if the company distributing
Mandrake fails the distribution can go on. "Mandrake Linux is 100% Free
Software so there are good chances that the project could continue."
The news of MandrakeSoft's bankruptcy filing is sure to reignite the debate
over whether a company can make a profit on a product that is purely Free
Software. There's no question that the number of people who buy Mandrake
products or contribute money through the Mandrake Users' Club are far surpassed
by the number of users who download and use Mandrake Linux without contributing
money to the project.
Consolidation in the Linux distribution market seems inevitable. Still, it
is unfortunate that MandrakeSoft, with its strong commitment to free
software, has found itself in this situation. We can only hope that the
bankruptcy process goes well, and MandrakeSoft is able to keep on serving
its users for many years to come.
Comments (8 posted)
Page editor: Jonathan Corbet
Inside this week's LWN.net Weekly Edition
- Security: Closing off cross-site scripting holes; new vulnerabilities in ethereal, imp, and mod_php.
- Kernel: 2.6.0-test coming?; more module work
- Distributions: New distributions: Ark Linux, LinuxInstall.org, Yoper and Zool
- Development: PowerDNS 2.9.4, M Resources, Analog version 5.31, Ecasound 2.2.0,
JACK Rack 1.1.1, Mozilla 1.0.2, LyX 1.2.3, PythonCAD release 2,
GCC precompiled header implementation, PEAR Out of Beta!,
Guido interview, Final Alpha of KDevelop 3.0.
- Press: Linux and politics at CES, disruptive technologies,
The Cathedral IN the Bazaar, CES reviews, SCO seeks Linux fee issues,
fear the Penguin, DMCA and the toner market, Torsten Rahn and Everaldo Coelho
interview, Kevin Mitnick's 'lost' bio.
- Announcements: MandrakeSoft bankruptcy, Nokia's J2ME Developer's Suite,
Mason Book online, Open Source Digest Issue 1, Emerging Tech
Conference, Samba XP 2003 CFP, FOSDEM 2003 seeks money, YAPC::NA::2003 CFP,
XML 2002 coverage.
- Letters: Version numbers