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Copyright Extens.Case @ SCOTUS 10/9/02

08 Oct 02 - 01:13 PM (#799006)
Subject: Copyright Extens.Case @ SCOTUS 10/9/02
From: Genie

Tomorrow the Supreme Court Of The United States will hear legal challenges to the Sonny Bono extension [ad infinitum?] of copyright for works created/published in the US.

The issues being brought up in the challenges are discussed in the    Sonny Bono Copyright Extension thread, but I started this one to draw attention to the court's timetable.

I have heard discussions of the issues recently on PBS, and maybe there will be more public airing of them in the next few days.


08 Oct 02 - 05:43 PM (#799120)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: Genie

From: Law School in a Nutshell, Part 1
Posted by James Grimmelmann on Monday, September 30 @ 21:54:07 EDT

The Eldred v. Ashcroft... case... is scheduled for argument on October 9
Eric Eldred et al., petitioners: [are] asking the Supreme Court to overrule the lower court's decision and rule that retroactive copyright extensions are
[Main question] : does Congress have the power to extend copyright effectively forever, and doesn't the First Amendment have something to say on the topic?

"Well, actually, the Copyright Term Extension Act's blanket retroactive extension of existing copyright terms exceeds Congress's power under the Copyright
Clause." If they challenge you ... you can...tell them that "retroactively extended copyright terms are not 'limited'" and that "retroactively extended copyright terms
do not 'promote the progress of science.'"
Of course, the unconstitutionality that Eldred is concerned with is, to be honest, slightly subtle, so it's not wholly surprising that the district judge on the bottom
of the totem pole wasn't going to stick his neck out in getting to the constitutional queston on which the whole case hinges.
The entire case in Eldred is that a) the Copyright Clause doesn't let Congress extend copyright retroactively, and b) the First Amendment doesn't let Congress
extend copyright retroactively. And now you have, right in front of you, the Copyright Clause, the relevant piece of the First Amendment, and a citation to the
Sonny Bono act. ...


Why do I have the gnawing apprehension that this particular SCOTUS will come down, maybe 5-4, in favor of big business at the expense of the general
population? (Yes, many authors, artists, etc., are "little guys," but it is primarily the big business movie, TV, and recording industry folks who care about
copyrights being extended for 90 years after the death of the original artist or copyright holder and long after that artist expected the copyright protection to last
when s/he created the work-- in essence meaning nothing can be in public domain until most people no longer care about it --?)

Patents have much more limited duration, and "Eldred" will argue that the constitutional provisions were intended to limit copyrights similarly, rather than have
them extended retroactively and, thus, potentially indefinitely.

In case you want to read a bit more about the case without going through the whole previous thread, href="> click here/

08 Oct 02 - 10:18 PM (#799247)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: T in Oklahoma (Okiemockbird)

Good information can be found by following links from here. News articles, which are coming relatively thick and fast, can be found by going to and doing searches for "Eldred v. Ashcroft" and "Eldred vs. Ashcroft".

That's right, some people write "v." and some write "vs.", so if you use only one of the styles, you might miss articles that employ the other.


08 Oct 02 - 11:10 PM (#799269)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: Genie

Looks like my cut and paste left out part of the HTML code for that clicky.

click here

Thanks for those links, OkieM.

08 Oct 02 - 11:11 PM (#799272)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: Genie

Er ... click here

08 Oct 02 - 11:20 PM (#799276)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: Genie

Since this link does not seem to be working, here is the article I was trying to steer you to.

                   Free Mickey
                   Stanford Law Professor seeks to overturn
                   the Sonny Bono Copyright Extension Act

                   Hal Plotkin, Special to SF Gate
                                                                 Thursday, September 26, 2002

                   Opening arguments are set to begin early next
                   month in Eldred vs. Ashcroft, a landmark U.S.
                   Supreme Court case that will decide the future of
                   copyright law, including how and when artists and
                   writers can build upon the work of others.

                   At issue is the constitutionality of the Sonny Bono
                   Copyright Term Extension Act, which was enacted in
                   1998 with strong support from Hollywood's
                   politically powerful studios. The law extended the
                   length of copyrights for an additional 20 years (or
                   more in certain cases) and gave new protections to
                   corporations that own copyrights.

                   Opponents -- which include dozens of the nation's
                   leading law professors, several library groups, 17
                   prominent economists, and a coalition of both
                   liberal and conservative political action groups -- say
                   it serves no legitimate public purpose, violates the
                   clear intentions of our nation's founders regarding
                   copyrights and is unconstitutional.

                   To heighten public awareness of the importance of
                   the case an Internet bookmobile is set to depart San
                   Francisco next Monday on a trip that will bring it to
                   the steps of the Supreme Court building in
                   Washington, D.C., before arguments wrap up. The
                   van, which will be stopping at schools, libraries and
                   senior centers along the way, is equipped to provide
                   free high-speed access to thousands of literary and
                   artistic works that are already in the public domain.

                   Tens of thousands of additional books would have
                   come into the public domain (meaning their
                   copyrights would have expired) over the next few
                   years, but now they won't thanks to the Sonny Bono

                   The U.S. Constitution states:

                   "The Congress shall have power to promote the
                   progress of science and useful arts, by securing for
                   limited times to authors and inventors the exclusive
                   right to their respective writings and discoveries."

                   So when Congress passed, and President Clinton
                   signed, what turned out to be the latest of 11
                   consecutive extensions to the length of copyrights, it
                   raised a very important question: Exactly what does
                   the phrase "for limited times" mean?

                   It's this long overdue question that is about to get a
                   hearing before the high court, with Stanford Law
                   School's professor Larry Lessig, co-founder of
                   Creative Commons and author of "The Future of
                   Ideas," representing the lead plaintiff in the case,
                   Eric Eldred.

                   Eldred operates the Eldritch Press, which offers free
                   online access to a staggering array of published
                   material already in the public domain. Visitors to his
                   site, which include students from around the world,
                   can download everything from English translations
                   of works by Russian writer Anton Chekhov to an
                   early "Introduction to Zoology" written by the father
                   of science in Great Britain, T. H. Huxley. Eldred is
                   suing the federal government to obtain access to the
                   material that would have come into the public
                   domain were it not for the Sonny Bono Copyright
                   Extension Act.

                   The public derives obvious benefits from sites such
                   as Eldred's. Further extending copyrights, on the
                   other hand, enriches copyright owners but offers no
                   discernable benefits to the rest of us. That lack of
                   symmetry forms the heart of the case. The U.S.
                   Constitution specifically prohibits Congress from
                   limiting freedom of speech unless doing so serves a
                   clear and important public purpose (preventing
                   pranksters from yelling "fire" in a crowded theater is
                   the classic example).

                   To be sure, writers and artists need and deserve
                   continued copyright protection. But Eldred's legions
                   of backers maintain that the framers of our
                   constitution never intended to extend that
                   protection to the grandchildren of writers and
                   artists. They add that it's also pretty unlikely that
                   struggling artists would decide not to create
                   something today because their heirs 100 or more
                   years in the future won't be able to keep selling it.

                   What's really happened, they say, is that
                   corporations that outlive artists and creators have
                   won legal protections that are hurting everyone else.

                   The original decision made more than 200 years ago
                   to limit the length of copyrights was deliberate and
                   carefully considered. The goal, which was expressed
                   at the time in letters written by Thomas Jefferson
                   and others, was to allow newcomers to build on and
                   improve works produced by others, but only after the
                   original creators of those works were compensated
                   fairly for their efforts. The reason: Human progress
                   builds upon itself.

                   Take, for example, the invention of the wheel. It led
                   to countless other innovations: gears, flywheels,
                   wheelbarrows, bicycles and cars, to name just a few.
                   Although the wheel was an invention, copyrighted
                   literary and artistic works hold the same potential
                   for creating derivative works that benefit the public.
                   In the time since Frances Hodgson Burnett's classic
                   children's book "The Secret Garden" entered the
                   public domain in 1986, for example, it has, among
                   other products, spawned a movie, a musical, a
                   cabaret adaptation, a made-for-TV movie, a
                   cookbook, a CD-ROM, a second musical adaptation,
                   a stage play, a radio program, a reader's guide and a
                   video, according to a list compiled by Arizona State
                   University law professor Dennis Karjala. And that's
                   just one public domain property.

                   Little if any of the creative and economic activity
                   those productions unleashed would have taken place
                   if artists, writers and producers were not free to use,
                   embellish and improve upon the original.

                   So then, if the public domain is such a good thing,
                   what led to the latest extension in the length of

                   In two words: Mickey Mouse.

                   In the late 1990s The Disney Corporation was
                   panicked because the copyright on its famous rodent
                   was about to expire. So Disney assembled a group of
                   heavy hitters in the entertainment industry,
                   including Time Warner, DreamWorks SKG, the
                   Recording Industry Association of America and Sony
                   Corporation, which poured more than $6 million
                   into congressional campaign coffers. Congress
                   returned the favor by passing the new law, which it
                   absurdly named after the pop-singer
                   ex-Cher-partner-turned-politician who had just died
                   after crashing into a tree while skiing stoned on
                   Vicodin and Valium.

                   What makes this sorry tale even more ironic is that
                   the Disney Corporation's fortune was itself built
                   largely from commercially successful animated
                   reproductions of free public domain works from the
                   19th century, including Alice in Wonderland, Snow
                   White and the Seven Dwarfs, Pinocchio, Cinderella,
                   The Hunchback of Notre Dame, and The Jungle
                   Book. So what we have is a company that got rich
                   off the works of others that now doesn't want to let
                   anyone else play by those same rules.

                   Unfortunately, when it comes to copyrights,
                   changing the rules is par for the course.

                   In 1790, when copyrights were first enacted, they
                   lasted 14 years and could be extended for 14 more if
                   the writer was still living. The latest extension, in
                   1998, boosted that term by 20 additional years for
                   works copyrighted after January 1, 1923, while works
                   produced by individuals after 1978 got copyrights for
                   the life of the author plus 70 years (up from the
                   previous 50). Meanwhile, intellectual properties
                   made by or for corporations were given 95 years of

                   Based on actuarial tables, that means a new work
                   produced today by a 25-year-old would not fall into
                   the public domain until about 2127 (80-year life
                   expectancy, plus an additional 70 years).

                   What's even more mind-boggling is to think about
                   what might have happened if this same law had been
                   in effect during the last century. How many good
                   ideas that we now take for granted would not have
                   been developed, how many shows would never have
                   opened, how much recent social, artistic, literary
                   and scientific progress would not have occurred?

                   To take it a step further, just imagine if the idea was
                   extended to patents as well, as some have suggested.
                   Humanity would have had to wait an additional
                   century or longer for the advent of commercial
                   television because it was based, in part, on ideas
                   originally developed for radio. Likewise, airplanes
                   might still be on the drawing board, held back in
                   development because some inventor's grandchild tied
                   up access to an essential component they had no
                   role in creating.

                   The argument that professor Lessig will be making
                   next month is that what is at risk is nothing less
                   than society's right, embodied in our constitution, to
                   continue to develop and grow by building upon the
                   works of previous generations.

                   Regrettably, Congress has repeatedly shown that it is
                   willing to erode those rights in exchange for
                   campaign contributions.

                   Now, it's up to the Supreme Court. Let's hope that
                   at least five of the justices have taken time to read
                   the constitution they are sworn to uphold.

09 Oct 02 - 12:00 AM (#799293)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: Genie

Or try this one (from OkieM's link, but more direct):

U.S. Supreme Court to hear copyright challenge

09 Oct 02 - 12:22 PM (#799551)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02

Lawmeme has a preliminary report of the oral argument.

09 Oct 02 - 01:10 PM (#799585)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: Genie

Thanks, guest. Sounds like it may come out just the way I had expected -- unfortunately.

BTW, in an article I posted above it says "In the late 1990s The Disney Corporation was panicked because the copyright on its famous rodent was about to expire."

Lest folks tend to side with the Copyright Extension folks on the grounds that Mickey should not pass into the public domain, please note that Mickey Mouse has Trademark protection, which does not expire. The expiration of a copyright on, say, the old cartoons, would probably mean that folks could make and distribute copies without paying royalties. It would not mean that other folks could create new works using Mickey's (trademarked) image.

09 Oct 02 - 01:37 PM (#799614)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: McGrath of Harlow

Could someone explain how copyright works internationally? I mean, if some country, such as San Marino or the USA passes a law saying that copyright lasts for 75 years, 500 years, do people in any other country have to take a blind bit of notice of it? Unless they are exporting the publications in question into San Marino or the USA?

And how does all this apply to putting things on the net which some country has decided shouldn't be in public domain? Legal for the rest of us to put them up, but not legal for you to read them in San Marino or the USA?

09 Oct 02 - 01:48 PM (#799620)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: Bo Vandenberg

Respecting each other's copyright laws are one of the basic level treaty things between countries. Typically developed countries have their own laws but there is great pressure to toe the line with the most extream ie.. the US.

Most of the laws matter most in the markets that pay the most, with the possible exception of the internet which is so amorphous. Because businesses tend to work with an international mind set the US has very high influence.


09 Oct 02 - 02:01 PM (#799633)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02

The trademark on Mickey Mouse doesn't necessarily mean that no one will be able to make new Mickey Mouse cartoons. The traditional rationale for trademark law is to prevent "passing off". Uses of Mickey that didn't create confusion as to source might squeak by. Trademark law has somewhat evolved from its origins in preventing marketplace confusion. Some states have "dilution" laws that are seem to go beyond this, and the federal law has the Lanham Act. But it's not obvious beforehand (at least not to a non-lawyer like me) that making new Mickey Mouse comics, (using, not the evolved Mickey, but the 1920's Mickey after the copyrights in such early works as Plane Crazy and Steamboat Willy expire) would be trademark infringement in every single case.

10 Oct 02 - 01:03 PM (#800443)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02

A Canadian source with an interesting perspective. (Canada still has life+50).

10 Oct 02 - 07:03 PM (#800700)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: McGrath of Harlow

"Respecting each other's copyright laws are one of the basic level treaty things between countries."

But does that apply when a country changes the law that applied when the treaty was signed, and decides to extend copyright law for some ridiculously lengthy timescale?

10 Oct 02 - 08:58 PM (#800760)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: toadfrog

Interesting point, McGrath. How long do English copyrights run? The above Canadian site states that the purpose of the Bono law was to bring U.S. copyrights into line with European ones? Is there something I am missing here? Not that I necessarily agree with the Law, but why is it so out of line for the U.S. to conform its statute to yours?

10 Oct 02 - 10:37 PM (#800799)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: Genie

If Canada's law is "life + 50," then the "Bono" extension added 20 years beyond Canada's.


11 Oct 02 - 04:51 AM (#800902)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: Hrothgar

Australian law was life plus 50 years last time I looked.

11 Oct 02 - 09:57 AM (#801032)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02

toadfrog asks, "why is it so out of line for the U.S. to conform its statute to [Europe's]"

The CTEA is out of line because

(1) the European extension was itself a spoils-grab by powerful interests, (click here) using the Patricia case as a pretext. The problem of parallel imports into Germany could have been solved by other means than extending a perfectly reasonable life+50 copyright term. The German extension had been justified as a way to recover from wartime losses. This means, or should have meant, that it was always intended as a temporary departure from the Berne norm of life+50.

(2) the CTEA doesn't bring U.S. law in line with Europe's; authors of post-1978 works now get life+70 in the U.S. and throughout Europe. The terms are "harmonized" to this extent. But U.S. authors already had life+70 in Germany, due to an old treaty between the U.S. and Germany. And many important works are "works for hire" under U.S. law, a category that doesn't exist in Europe. There is no clear "harmonization" there. In some European countries, sound recordings aren't covered by copyright at all, but by "neighboring rights" which last for 50 years. The U.S. copyright on sound recordings was already 75 years. The CTEA has now extended it to 95, nearly twice as long as Europe's. (For more data on "harmonization", click here).

(3) the 95-year term for pre-1978 works, which were originally promised to the public after 56 years, a term that was then extended to 75 years, and has now been extended again to 95 years, is unreasonable on its face. Even if some other country had such a ridiculously long term, it wouldn't make it less ridiculous for the U.S. to adopt it.

11 Oct 02 - 10:00 AM (#801039)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02

"authors of post-1978 works now get life+70 in the U.S. and throughout Europe".

I should have said, "The E.U." Switzerland, I believe, still has life+50. Some Eastern European countries may have switched to life+70 (since they hope to join the E.U.) but others may not have.

11 Oct 02 - 10:02 AM (#801041)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02

"Authors of post-1978 works now get life+70 in the U.S. and throughout Europe".

Oops. That should be post-1977 works.

11 Oct 02 - 11:41 AM (#801132)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: toadfrog

Thanks, guest. All sounds correct. And of course, long copyrights on software could be an even bigger problem, although right now it's hard to imagine software not becoming obsolete in 5 years.

13 Oct 02 - 09:55 PM (#802560)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: T in Oklahoma (Okiemockbird)

Lawrence Lessig's own thoughts on last Wednesday's oral argument can be found here.

13 Oct 02 - 11:58 PM (#802593)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: Genie

toadfrog, as I understand it, the 'monkeywrench' that extended copyrights present is that copyright protection means not only can you not reproduce or sell someone's work without permission (and fees), but you cannnot produce works that are derivative of that work without similar permission and fees.

I'm told that if patents had been similarly protected in such a long-range fashion in the early part of the 20th C., we would not have TV, automobiles, computers, telephones, and many of the inventions we now take for granted. Even in the drun industry, for God's sake, patents expire after about 20 years. Imagine if you not only could not make aspirin but could not make other drugs that took aspirin as their impetus?

14 Oct 02 - 11:34 PM (#803245)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02

I take it you meant to say "drug industry," Genie?

15 Jan 03 - 04:06 PM (#867720)
Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From: Genie

Looks like SCOTUS ruled in favor of the Mouse.