Subject: RE: Copyright Extens.Case @ SCOTUS 10/9/02
From:
Genie
Date: 08 Oct 02 - 11:20 PM
Since this link does not seem to be working, here is the article I was trying to steer you to.
Genie
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
law. 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
copyrights? 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
protection. 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.
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sj
