Mickey Mouse 1, intellectual commons 0 [LWN.net]

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 add.

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 may be.

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 brought forward. 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.

A 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 created:

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.

(Log in to post comments)

Mickey Mouse 1, intellectual commons 0

Posted Jan 16, 2003 19:19 UTC (Thu) by filteredperception (subscriber, #5692) [Link]

Once again, the people are shown that their is no "higher power" which will save them from the people they themselves elected.

The sad fact is that no matter how many "intellectuals" are aware of the detriment of copyright extensions, there are far more people who don't see the real impact on their own lives, and are more likely to be swayed by television commercials for a politition.

Until you educate and convince the people, it matters not how rational or correct your arguments are. Such is the double edged sword of democracy.

Personally I tend to agree with the supreme courts reading of the constitution. It wasn't their place to help the idiots who voted for those who created the stupid law in the first place. Let them enjoy the fruits of their stupidity. I may be just a bit cynical, because I haven't seen the supreme court coming to the aid of those folks who get abducted and imprisoned for the "crime" of growing a plant and smoking it. I have long since relegated myself to blaming the voters, since that is where the primary responsability for stupid laws lay.

-dmc

Mickey Mouse 1, intellectual commons 0

Posted Jan 18, 2003 5:11 UTC (Sat) by Peter (guest, #1127) [Link]

the court made the right decision is that it is the **Congress** which is empowered to make this decision.

I've thought about that one too (I tend to be a constructionist (and an unapologetic Scalia fan)) but I thought Prof. Lessig made a very good argument: that if the Court cannot say "xxx years is too long", no matter the value of xxx, then the phrase "for a limited Time" is meaningless.

The other reason the Court has a right to be involved is the First Amendment issue. I admit I didn't see the relevance at first, but with the erosion of what is considered fair use, and the expansion of what is considered derivative works, copyright law can increasingly be used to chill and gag speech. The Court opinion gives a nod to this (striking down the appeals court declaration that copyright law is "categorically" immune to First Amendment challenges) but plays down its importance, perhaps either not realising or choosing to ignore what the DMCA has done in that arena.

If we don't like the laws, lets elect legislators who will change them. That's democracy.

You mean representative democracy, and the biggest problem with it is that it is too coarse-grained. It's not like copyright law is the only issue I think about when going to the polls. That's why I'm also a Federalist. State and local governments offer me (the voter) better choices and more transparency. In my book, Washington DC is just there to keep down the chaos - you know, print the money, deliver the mail and wage war against terrorism^W^W.

Mickey Mouse 1, intellectual commons 0

Posted Jan 19, 2003 20:44 UTC (Sun) by mrfredsmoothie (subscriber, #3100) [Link]

That is really a horrible mischaracterization of the majority opinion that I don't believe serves the Linux/Free Software community well at all in fairly arming them w/ good ammunition for rational argument about the serious Constitutional and Legislative issues facing us.

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 add... There was also, according to the majority, no restraint to free expression to be concerned about. End of case.

No. The court didn't say that "forever minus a day" or any other "unreasonable" time was OK. They said that the extension in the CTEA was consistent with earlier extensions to copyright or patent terms (goverened by the same Constitutional clause) -- one of which was signed into law by one of the drafters of the constitution, and that there was no evidence that the CTEA was part of a congressional pattern of extensions aimed at sneaking in a perpetual term for copyrighted works, since the purpose was harmonizing US copyright terms with recently adopted terms in the EU.

With regard to the free speech issues, the court felt that existing free speech protections embodied in the difference between ideas and their expression, and traditional (and USSC-upheld) notions of fair use are sufficient to ensure that the extended terms in CTEA don't have a chilling effect on discourse. Of course, the DMCA -- to use the Court's words -- "alter[s] the traditional contours of copyright protection" and has drastically changed the ability of people to exercise their traditional ability to put copyrighted material to "fair use." But Eldred vs. Ashcroft was NOT a case about the DMCA.

That is a separate challenge, which can only be helped by the Court's First Amendment analysis in this case as others have pointed out.

No, the majority opinion simply balances the concerns of "monopolies of any kind are bad", "monopolies on expression stifle free expression" and "the founders specified a balance of power between branches of government which is a cornerstone of our democratic system" than the dissenters did, putting more weight on the latter. Given the entire legislative and judicial history of copyright & patent extension in this country, even if one doesn't like the result -- as I don't -- it would be unfair to imply the that majority didn't carefully consider the issues or were in any way remiss in this decision.

What people in the Linux/Free Software community should take away from this decision, IMHO, is that a) Congress, through the combinination of the CTEA, DMCA, the proposed CBDTPA and Berman bills, is eroding traditional notions of the Public Domain and Fair Use, and that this ruling, while dissappointing, affirmed them (however weakly); and b) we as citizens need to be proactive in defending those traditions, and focuss our engeries on Congress -- through supporting the efforts of people like Boucher and Lofgren.