I like her already

Why Hollywood Should be very Nervous about Elena Kagan.
--Because she believes in fair use.

Update 4/22/2011: The link has moved to : http://www.hollywoodreporter.com/blogs/thr-esq/hollywood-nervous-elena-kagan-63877

Mr. Justice Stevens

Mr. Justice Stevens, in his long service on the Supreme Court, has written many opinions and dissents. But it is his dissent in Eldred v. Ashcroft that is my favorite. Stevens' starting point was that Congress's power to grant "exclusive rights" for "limited times" to "authors and inventors" for "their" writings and discoveries arises from the a single clause in the constitution, so that many of the principles that the court has developed in its patent-law jurisprudence to protect the public from excessive monopoly must apply to copyright law as well.

The court majority in that case had nothing but scorn and contempt for Stevens' dissent, expressed in Footnote 18 of the Court's opinion:

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.

But as I wrote at the time, it was the majority, not the dissenters, who "understated" important aspects of copyright theory, and "missed the mark" in its analysis:

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."

For completeness' sake, here is a link to Mr. Justice Breyer's dissent in the same case.

The new health-care law

The infant mortality rate in some of the rural counties of Oklahoma is shockingly high. If there is anything in the new law that, properly implemented, will bring these rates down, then that provision of the new law is to be welcomed.

Public Knowledge's 5-point plan for copyright reform

Public Knowledge has released a five-point plan for copyright reform that they intend to be the basis of a legislative proposal. The pillars of this plan are:

1) strengthen fair use, including reforming outrageously high statutory damages, which deter innovation and creativity;

2) reform the DMCA to permit circumvention of digital locks for lawful purposes;

3) update the limitations and exceptions to copyright protection to better conform with how digital technologies work;

4) provide recourse for people and companies who are recklessly accused of copyright infringement and who are recklessly sent improper DMCA take-down notices; and

5) streamline arcane music licensing laws to encourage new and better business models for selling music.

Before anything, though, else we need a shorter copyright term. I would consider duration to be implicit in point 3, limitations on copyright. But it is not clear that the folks at Public Knowledge think so. In this article, for example, under "What are the limits of copyright?", they mention only limitations on copyright's scope-- fair use and first sale. Duration is mentioned under the heading "why do we have copyright?" So it seems that the folks at public knowledge don't consider a shorter term of copyright to be part of their 5-point plan, even implicitly. What a disappointment.

Ice storm!

While not quite as heavy as the ice storm of December 2007, the sleet that fell on central Oklahoma this past Thursday was heavy enough. It was followed by several inches of snow.

Merry Christmas, everyone!

Happy Thanksgiving, everyone!

Connecticut, 1665:

[A] solemne day of Thanksgiving to be kept throwout this Colony on the last Wednesday of November, to returne praise to God for his great mercy to us in the continuation of our liberties and priviledges both Civill and Ecclesiastick; and for our peace and preventing those troubles that we feard by forreigne enemies; and for the blessings in the fruits of the earth and the generall health in the plantations.
   --J. Hammond Trumbull, Ed., The Public Records of the Colony of Connecticut from 1665 to 1678, P.A. Brown, Hartford, 1852, page 26.

Oklahoma, 2009: The blessings continue.