Saturday, January 17, 2015

Reprint: My post of January 18th, 2003 in response to the decision in Eldred v. Ashcroft.

The following was first posted on January 18th, 2003, in response to the Supreme Court's opinion in the case of Eldred v. Ashcroft.

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January 18, 2003 (Gregorian Lunar Almanac 2003, 1st Moon, 15th day)

Court to  Public:  "We lied, suckers!"


In its ruling in Eldred v. Ashcroft, the U.S. Supreme Court has said, in effect: "We lied, suckers.  Almost everything we ever said about the public purposes of copyright was just hot air."
I am amazed that the court showed disregard, not only of its own copyright jurisprudence, but of its own institutional self-interest.  The court could easily have remanded the case for a trial on the question of whether the Bono Act promotes progress more than it places monopoly burdens on the public (copyright clause balancing) or on the question of whether it promotes a significant government interest more than it burdens speech (first amendment balancing).  The lower courts would have gone through the motions of making this evaluation and upheld the Act.  Eldred would have appealed again, the Supreme Court would have denied certiorari the second time, and that would have been the end of Eldred's case.   But the court would have been more consistent with its existing copyright jurisprudence, and at the same time would more strongly have upheld their prerogatives of constitutional review of Congress's exercise of its limited powers.  It will be hard for future courts to strike down any future extensions of the copyright term without repudiating its decision in Eldred's case.

The Eldred opinion's ignorance, or cynical dismissal, of its earlier jurisprudence is made especially clear in footnote 18:

Justice Stevens' characterization of reward to the author as "a secondary consideration" of copyright law...understates the relationship between such rewards and the "Progresss of Science".  As we have explained, [t]he economic philosophy behind the [Copyright [C]lause...is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventers." Mazer v. Stein, 347 U.S. 201, 219 (1954).  Accordingly, "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge...The profit motive is the engine that ensures the progress of science."  American Geophysical Union v. Texaco Inc. 802 F. Supp.  1, 27 (SDNY 1992), aff'd, 60 F. 3d 913 (CA2 1994).  Rewarding authors for their creative labor and "promot[ing]...Progress" are thus complementary; as James Madison observed, in copyright "[t]he public good fully coincides...with the claims of individuals."  The Federalist No. 43...Justice Breyer's assertion that "copyright statutes must serve public, not private ends"...similarly misses the mark.  The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with incentive to pursue private ones.

In Madison's day it might have been possible to assert that the public good "fully coincid[ed] with the claims of individuals", because the scope of copyright did not then include derivative works; did not then include public displays and performances; and only lasted for 28 years at most.  Everything else Madison wrote about copyrights and patents shows that he is fully aware that copyright places burdens on the public, and that these burdens can, if they become heavy enough, destroy the coincidence between "the public good" and "the claims of individuals."  Justice Stevens's and Justice Breyer's statements are entirely consistent with the cases they site.  It is the court majority that "misses the mark", disregarding the clear spirit of the court's earlier copyright dicta and cynically citing Madison in a tendentious way.  Justice Stevens does not "understate the relationship between [the] rewards [conferred in the copyright monopoly] and the 'Progress of Science'".  It is the court majority that understates --indeed, all but ignores -- the relationship between the public domain and the "Progress of Science."

The effect of the Eldred ruling is that the Congress need never rationally weigh the burdens copyright places on the public.  The Constitution clearly presupposes that the expiration of copyright--the public domain, as we now call it--is the most important constitutional means of keeping copyright true to its purpose of promoting progress.  But though the Constitution gives the public domain pride of place in its text through the words "promote progress", "for authors", and "limited times", the court has stated that the 105th Congress's cynical dismissal of the public domain as worthless is not subject to constitutional review.

The court's rubber-stamp review of the Copyright Term Extension Act is the weakest standard of judical review ever proposed.  It is weaker even than the generous standard stated in McCullogh v. Maryland (17 U.S. 316), where Mr. Chief Justice Marshall declared that an act of Congress must be "plainly adapted" to their constitutional ends and "consist with the spirit" of the Constitution.  Courts are understandably reluctant to invalidate acts of Congrss for failing to comply with the spirit of the constitution.  But if any act of Congress fails to "consist with the spirit" of the article I power under which it is passed, it is the Bono Act.

The court then backpedals with the following bit of Pilatesque hand-washing:

The wisdom of Congress' action...is not within our province to second guess.

But as Mr. Justice Breyer pointed out in different words in his dissent, a want of reason in the legislative judgement is grounds for finding an act of Congress invalid.  An act that is unwise is by definition an act of folly; and folly must at some point rise to the level of the constitutionally unreasonable.  A fair court would at least have considered seriously the burdens that the CTEA places on the public.  One of the reasons I find the Eldred ruling is defective is that it scarcely even to acknowledges the existence of these burdens, much less their great weight.



Saturday, September 28, 2013

Happy Michaelmas, everyone!

Tomorrow is Michaelmas if your parish is named St. Michael's or St. Michael and All Angels.   Also if your parish is something like "Grace" and has adopted St. Michael as a patron. Otherwise you must wait until Monday.  Party on!

Mickle Mirth at Michaelmas, 2005:

The church in the picture, St. Michael's in Norman, Oklahoma, no longer has a medieval banquet as part of their patronal festivities.  Nowadays they have a fair, which was on Saturday last week.

Sunday, August 25, 2013

What the moon looks like now

A nice site provided by the U.S. Naval Observatory allows us to see the moon (in a manner of speaking) even when conditions do not favor naked-eye observation.

Saturday, February 11, 2012

Some of the ACTA's problems

In a post from a few months ago, Mike Masnick discusses one of the problems with the ACTA: It would require parties to punish "commercial scale" copyright infringement, which it then proceeds to define in an extremely vague and broad way. But the biggest problem is one he mentions here: It isn't that it would immediately change any U.S. laws or policies, but it would lock in the odious changes of 1998. Reducing the duration of copyright, or modifying the device and circumvention provisions of the DMCA, can be dismissed as "inconsistent with our international obligations" as long as we are a party to the ACTA.

Friday, February 3, 2012

Bill Patry: Right, as usual.

In all the swirl about SOPA, PIPA, ACTA, TPP, and C-11 and the technical issues these proposals raise, it is refreshing to see Bill Patry remind us that one of the most important things about copyrights is that they expire. (I have written about the same thing in a number of places, for example here and here). From the article:
When I was in private practice at a large law firm, a partner asked me to approach the estate of a famous playwright. My colleague was hoping to get permission to produce an abridged version of a play at his son's special education school.

The school was willing to pay the licensing fee, but the children were capable of only performing one act, not three. The production would be only before parents, not for any profit. After all this was explained to the estate, they subsequently refused permission and the money, insisting the children had to produce the play as written, or not at all.
I think that for published books, the 42-year term of copyright we enjoyed from the 1830s until 1909 was about right, but as noted in an earlier post, as a first step I would probably support a proposal to roll back the term of copyright in published books to a mere 75 years from publication, or 50 years from the death of the author, whichever is shorter.

Monday, January 30, 2012

Why I won't sign that petition

A petition has been submitted to the White House requesting that copyright duration be rolled back to a maximum of 56 years. I have long called for a shorter term of copyright, but I won't be signing this petition. That is because too much has happened since 1976 for it to be reasonable to ask for a single 28+28 year copyright term as we had for all published works under the 1909 act.

An important feature of the 1976 Act was the suppression of the common-law right of first publication in unpublished works. Careless writers called this old common-law right a "common-law copyright," and some insisted that it was perpetual, but this was an exaggeration. It was more accurate to state that it was a right of first publication, not a copyright, and that it was of indefinite duration. It could, indeed, last generations if carefully preserved. The 1976 Act abolished this right and replaced it with a statutory copyright in unpublished works, based on the life of the author. This is one feature of the 1976 Act that I consider worth preserving rather than rolling back. The petition submitted to the White House makes no mention of the distinction between published and unpublished works, and the difficulties of defining a term for unregistered unpublished works.

Also, it makes more sense now to have different copyright terms for different classes of works. Computer software source code, in particular, should have a much shorter term than books or songs.

Finally, as Mike Masnick points out, it is Congress that makes the law. A petition to the President should recognize this.

I might support a petition worded something like this:
The undersigned respectfully request that the President consider the following proposals for the amendment of the U.S. copyright law, and if he deem any of them "necessary and expedient", that he recommend them to the Congress in accordance with Article II, section 3 of the constitution; or, if he find any of them not to be necessary or expedient, that he reply to this petition in writing giving his reasons.

1. We request that the duration of copyright in published works by known authors (except for computer software source code, treated separately below) be reduced to a term of the lifetime of the author plus fifty years, but in no case to exceed seventy-five years from first publication; and that the duration of copyright in published works-for-hire and anonymous and pseudonymous published works be reduced to a term of seventy-five years from first publication. This change would be made without regard for the duration of copyright in the law of any other country, and without regard for any "rule of the shorter term" in any foreign law. Any international agreements that conflict with the proposal, to which the U.S. is a party, would be re-negotiated to conform to the new shorter term.

2. We request that the duration of copyright in computer software source-code to be reduced to a term of 25 years from creation. The Patent and Trademark office, or the Copyright Office, would be empowered to issue rules for computing a presumed date of creation when it cannot be determined from the text of the source code itself.

3. We request that the law be amended explicitly to state that the author's exclusive rights, once they have expired by operation of the law, become rights that are vested in the general public. An explicit statement is necessary due to the contemptuous and scornful tone toward the concept of publici juris works that was used by the U.S. supreme court in its Eldred and Golan decisions.

4. We request that the United States withdraw from the Berne Union.

Saturday, January 28, 2012

Yochai Benkler: Next steps after tactical victory on SOPA/PIPA.

Yochai Benkler has a good discussion of recent developments. He includes four proposals:

Legislatively re-instate the Sony doctrine and reverse Grokster. Technology developers should only be liable for copyright infringements by users if there are no substantial non-infringing uses of the technology.

Decriminalize copyright to pre-1998 levels: put the Golem to sleep. Return the definition of criminal copyright to require large scale copying for commercial gain; reduce the funding to criminal enforcement and reduce the presence of federal functionaries whose role is to hype and then combating the piracy threat. In particular, as calls to shrink the federal government abound, it is critical to include in every legislation downsizing the federal budget provisions that would defund and eliminate most of the burgeoning apparatus of multi-agency criminal enforcement of copyright. The most direct pathway to this will be in appropriation bills, to defund implementation of PRO-IP until a more balanced substantive approach can be worked out.

Create a fair use defense to the anticircumvention and antidevice provisions of the DMCA. Users should be exempt from DMCA liability if they propose, in good faith, to make a fair use of the encrypted materials. Decryption and circumvention providers should be exempt from liability on the model of the Sony doctrine, if there are “substantial non-infringing uses” for the circumvention technology or device they offer. This would fix a much older overreach by the industry, from 1998, that has been very slowly and imperfectly loosened by the Librarian of Congress under powers to exempt certain uses from liability.

Rein in the international trade pathway for copyright extension. Another pathway, similar to criminalization in the sense that it harnesses federal functionaries to help the industry, distinct in the set of functionaries it harnesses, has been international trade. Through a set of trade agreements, both bilateral and multilateral, the U.S. government has pursued the passage of requirements more stringent than it could itself pass in the U.S. The recent adoption of SOPA-like laws in Spain is one example, as is the notorious Anti Counterfeiting Trade Agreement (ACTA). We need a law that would prohibit secret negotiation of IP-related provisions in international agreements, and a law that prohibits the U.S. from entering agreements that require of ourselves or our trading partners more restrictions on the public domain than then-current U.S. law permits.


I would add, as always, reduce the duration of copyright in published works.