Mickey Mouse 1, intellectual commons 0

Mickey Mouse 1, intellectual commons 0

Posted Jan 19, 2003 20:44 UTC (Sun) by mrfredsmoothie (subscriber, #3100)
Parent article: Mickey Mouse 1, intellectual commons 0

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.

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