Posted on 01/15/2003 8:14:57 AM PST by general_re
WASHINGTON - The Supreme Court on Wednesday upheld longstanding copyrights designed to protect the profits of songs, books and cartoon characters, a huge victory for Disney and other companies.
The 7-2 ruling, while not unexpected, was a blow to Internet publishers and others who wanted to make old books available online and use the likenesses of a Mickey Mouse cartoon and other old creations without paying high royalties.
Hundreds of thousands of books, movies and songs were close to being released into the public domain when Congress extended the copyright by 20 years in 1998.
Justices said the copyright extension, named for the late Rep. Sonny Bono, R-Calif., was not unconstitutional.
The Constitution "gives Congress wide leeway to prescribe `limited times' for copyright protection and allows Congress to secure the same level and duration of protection for all copyright holders, present and future," Justice Ruth Bader Ginsburg (news - web sites) said from the bench.
A contrary ruling would have cost entertainment giants like The Walt Disney Co. and AOL Time Warner Inc. hundreds of millions of dollars. AOL Time Warner had said that would threaten copyrights for such movies as "Casablanca," "The Wizard of Oz" and "Gone With the Wind."
Also at risk of expiration was protection for the version of Mickey Mouse portrayed in Disney's earliest films, such as 1928's "Steamboat Willie."
Congress passed the copyright law after heavy lobbying from companies with lucrative copyrights.
U.S. Constitution, Article 1, Section 8, Powers of Congress.
The Congress shall have the power ...
8. 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:
Does "limited times: imply a lifetime? 2 lifetimes? I don't think so. Notice the implication that the author and inventor get exclusive rights. If "limited times" mean longer than a lifetime, why not say "and descendants" in there?
The useful arts -- meaning technical and engineering. The Founders did NOT include the "arts" as we use that term today, meaning "fine" arts, or fictional writings, or even journalism.
"To promote" parallels the form "To promote the general Welfare" in the Preamble, from which it may be inferred that "promoting the useful arts and sciences" is a method of promoting the general welfare. That is, what is to the common benefot of all and favors none prejudicially. Promoting useful ideas and knowledge is part of the general welfare.
It is hard to make that case for a cartoon, a song, a piece of music. Oh, they give pleasure, relief and serenity at times, but that is not at the level of knowing how to solder one piece of tin to another, nor how to properly care for cattle, nor to the level of clear constant value in a good map.
The public constraints of copyright to literature and music have grown from almost nothing to the major pratical portion of copyright. The push for yet more contraints on the public by grants of copyright began late in the 19th century and has continued unabated, if not strengthed. Here is a part of a timeline from a British site:
This is the one ground on which the length recited in a particular law, taken in isolation, (as opposed to an established pattern of infinity-by-induction) would raise a Constitutional question.
IMO, the most reasonable interpretation of original intent is that "limited time" means "within the bounds of common-law perpetuities doctrine". This point was raised in dissent, and I do not believe that it was adequately addressed by the majority. At least this position provides a principled rationale for saying that, no, Congress can't pass a google-year term even though 10^100 is still "limited" in a technical sense.
The Court Majority, as attributed to Ginsberg, makes hay of the difference between "limited" and "certain" time periods. If merely "limited", the Majority majestically reasons, why then any post-facto change may be made as long as some limit continues to be made, say a change from 14 years to 28 years. Still limited. The Majority mocks any reading of "limited" as nuanced to or like to "fixed" (that is "end date certain"). The Majority pulls quotes from dictionaries of the early period to support its case.
Ginsberg, the Majority:
Petitioners' argument essentially reads into the text of the Copyright Clause the command that a time prescription, once set, becomes forever "fixed" or "inalterable". The word "limited", however, does not convey a meaning so constricted. At the time of the Framing, that word meant what it means today: "confine[d] within certain bounds, restrain[ed], or circumscribe[d]". S. Johnson, A Dictionary of the English Language (7th ed. 1785); see T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) ("confine[d] within cer- tain bounds"); Webster's Third New International Diction- ary 1312 (1976) ("confined within limits"; "restricted in extent, number, or duration"). Thus understood, a time span appropriately "limited" as applied to future copyrights does not automatically cease to be "limited" when applied to existing copyrights.Yet even the very scanty evidence available from the Constitutional Convention suggests that "limited" may have been considered a fair substitute for "certain", thus that fixed end date implyed by "certain times" may nuance the Founders' agreed use of the term "limited times":
According to James Madison's notes, David Brearley suggested the final wording of the clause to the Constitutional Convention on September 5, 1787, speaking for the Committee on Unfinished Business. Brearley did so in response to Madison's suggestion "[t]o secure to literary authors their copyrights for a limited time," and also to two suggestions by Charles C. Pinckney: "[t]o grant patents for useful inventions," and "[t]o secure to authors exclusive rights for a certain time." We have no record of any discussion about the clause. There was no debate on the floor of the Constitutional Convention, and minutes of the committee deliberations, if made, have not survived.(Source: The Intersection of the Intellectual Property and Commerce Clauses of the Constitution: Beyond a Critique of Shakespeare Co. v. Silstar Corp. , Malla Pollack, Harvard Law)
...The purpose is to promote the progress of science and useful arts; but the actual power is to secure for limited times the exclusive right to inventions and discoveries. The Constitution says the times must be limited, but that, IMHO, gives Congress wide latitude to decide what those times should be. As long as Congress makes a determination, however stupid or corrupt, that lengthening the span of copyrights aids progress, the Courts, IMHO, should not be second guessing them.I suppose greater minds can explain, but I'm mystified as to why so much fuss over "limited" and so little concern for "promotion of the arts and sciences." Only Breyer mentioned it, it seems (see bvw's #59), and without context. These words are only meaningful if together. Argument over "limited" is doomed, for there's no answer to it -- symantically. Rather, "limited" in the context of "useful" becomes tangible. Could we not, for example, weigh the dust on unused protected works and see if it adds up to more pennies than Disney's market cap?
Whatever the Court's and the Congress' view, there can be no argument that current copyright law promotes the arts and sciences any more than the original law. With these ceaseless extensions the law has effectively re-written the Constitution to say that copyright is to promote franchising of the arts and sciencs.
Here's a real world example. In a history I wrote I desired to quote passages from several works that were written in the 1930s by actors to the area of my study. These works are owned by major publishers. I submitted my requests, and got back inane restrictions on the use. The fee was the least of it. (Another example: for a History Channel interview I had to sign away all rights to it for perpetuity and for all the universe. No kidding, that's what they asked for. I made them re-write it to specify Mars, as well). When I chased down copyright owned by individuals, the only demand asked was for a copy of my book. Guess what got dropped from my history?
Certainly authors have a greater sense of how to "promote the arts and sciences" than do publishers. But there's more to it: the authors also understood that free use of their works would give those works greater value, and give greater value from those works to society.
Now, respecting the rights of a publisher to its works, I submit that the law has enhanced these rights to monopolistic, restraint-first behavior. History, however small this contribution may have been, has suffered. Every imperfection, no matter how small, destroys the perfection of the universe.
A question to the entertainment industry (and Congress): what's the difference between losing Mickey and Bogey to the public domain now, or in another fifty years? For copyright owners, dollars. "To promote the arts and sciences," less than zero.
*bumping FreedomCalls's #133*
Judicial resolution of what "limited times" means is a lot less hairy than judicial resolution of what "promotion of the arts and sciences" means. The former can be considered in the light of historical evidence (e.g. common law doctrines of "perpetuity", previous extensions which may indicate that the extension currently under review is part of an "infinity by induction" pattern). The latter is almost impossible to weigh without delving into public-policy questions which are more properly directed to the elected branches of government.
The problem here is that bureaucracies find it easier to say "no" than to say "yes", because the former answer is far less likely to make future trouble for the bureaucrat who signs the paperwork.
Judicial resolution of what "limited times" means is a lot less hairy than judicial resolution of what "promotion of the arts and sciences" means.I'm suggesting the two elements be weighed together. Neither is tangible alone. Together, one sees what "limited" means. If the Court knows porn without specifically defining it, it ought be able to comprehend the limits of usefulness in copyright.
Regarding my example, you wrote,
The problem here is that bureaucracies find it easier to say "no" than to say "yes", because the former answer is far less likely to make future trouble for the bureaucrat who signs the paperwork.Bureaucracies, then, violate the purpose of copyright.
Justice Breyer is trying to legislate from the bench again.
First off, any term which may be extended without limit is not a limitted term. If Congress had made the copyright of all works published after tomorrow last 120 years, that would be annoyingly long, but would still be "limitted" if I could know that everything published tomorrow would become public domain on January 1, 2123.
The new Copyright Abomination, however, doesn't just do that: it also renders what were formerly finite copyright terms infinite. If I saw someone's work published January 1, 1918, I could have known that it would become public domain no later than January 1, 1975. Until, that is, the date got pushed back to January 1, 1976. Then January 1, 2004. And now January 1, 2024, where the date will remain until late 2023, when the date will be pushed back to January 1, 2039. Where it will remain for 25 years until it gets pushed back to January 1, 2069. Of course, by then works will have been released in slightly-modified (and protected under new copyright) form; for most works, no certifiably-150-year-old copies will exist, so there won't be any need to extend copyrights after that.
BTW, am I the only person who finds repulsive the idea of providing a substantial copyright term to works which are neither registered nor labeled with a copyright date? The elimination of the labeling requirement in the 1976 copyright act (without any registration requirement for unlabeled works) effectively not only blocks new material from entering the public domain, but effectively permanently removes much older material from the public domain as well.
Answer me two questions, if you would:
In a jury trial, a judge is generally required to accept a jury's finding of guilt, but is required to overturn it if there is no plausible way that a reasonable jury could have reached it.
If Congress were to extend the term of copyright for new works from life+75 to life+150, it's plausible that that might spur the development of more new works. I don't think it would, but one could argue that it's plausible. By contrast, I see no even-remotely-plausible way that extending the copyright on existing works would have such an effect.
BTW, one point which someone else made which I think bears repeating: nearly all worthwhile creative endeavors borrow from the public domain; reasonable copyright terms encourage the derivation of new creative works from the old, which can then--after copyright expires--rejoin the public domain to fuel further creative endeavors.
Also, BTW, as a pracitcal measure, how do these new super-extended copyright terms compare with the life expectancies of existing media? As copyright laws seek to make archiving more difficult or impossible, what is the likelihood of anyone being able to own intact copies of any work by the time it enters the public domain?
Books printed on quality ragstock are good for hundreds of years, but books on pulp paper are barely good a century. Movie film probably isn't good that long, and most computer media certainly aren't. Even if someone does manage to archive a work long enough to enter the public domain, how will one be able to prove that one's copy is of the public domain original and not just an artificially-degraded copy of a re-copyrighted "restoration"?
One key facet of liberals in academia is that they wish to encourage people to stop building on past achievement and start building "from scratch", supposedly in the name of freedom. Look at www.artrenewal.org for more insight on this.
I just realized that one of the functions of these increasingly-endless copyrights is to ensure that by the time a work enters the public domain and can legally be built upon, few if any people will be alive who really understand how that work built upon the past and would in turn be able to build upon it [it's also likely that by then there will be few if any good copies still in existence]. The essense of liberals' evil goals in academia.
I'm not a lawyer, and I don't know. However, at present I understand there is a set date, absent further legislative action.
it's plausible, though doubtful, that extending the copyright given to new works will provide additional incentives for people to produce them. I can see no even-remotely-plausible way that extending the copyrights on already-existing works will have such an effect.Can you suggest any?
The reasons that have been given are
The Justices Scalia and Thomas have showed far more ability to define the more ambiguous term "reasonable" with regard to searches than with something far more amenable to definition as "limited Times".
Copyright terms are limited.
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