One man's fight to save Public Domain (1 Viewer)

[Damin J Toell]

There is an ongoing challenge at the Supreme Court on the constitutionality of the continuing copyright extensions -- the current case specifically targets the Sony Bono Copyright Extension Act (also humorously known as the Mickey Mouse Act, as its main lobbyist -- Disney -- continually lobbies to extend copyrights through legal wranglings right about the time their rights to the Mouse would expire).

Although a ruling apparently isn't expected until July, given the general tone of oral arguments a few weeks back, I quite doubt that the Court will overturn the 1998 SBCTEA. While the Justices seemed to doubt the additional incentive from the 20-year term extensions, they seemed even more dubious of the proposition that the lack of an additional incentive was therefore Constitutionally fatal. I cannot imagine, at least, that Justices Rehnquist, Scalia, and Thomas would be of the opinion that, from a semantic standpoint at least, a 95-year/life+70-years term violates the grant of power as written in the Copyright Clause. Further, given the rather tenuous legal basis, in my view, upon which Lessig's claim is based (that extending pre-existing terms to any degree is not "limited" under the meaning of the Copyright Clause (for pure personal fun, I hope that Scalia writes an opinion that addresses that topic)), I doubt that many of the other 6 Justices will be swayed, either. But, hey, I'm no psychic and I could be reading my finger in the wind completely wrong.

DJ

 

[Ronald Epstein]

Folks,

I politely request that you be careful where
this discussion strays.

I am receiving complaints about the political
tone of this thread, but I am allowing the
discussion to continue only because I trust all
of you will walk the fine line and refrain from
turning the subject matter discussion into
something more political.

Thanks!!!

 

[Dana Fillhart]

So far it looks to be just a legal discussion and not a political one. Of course, there's a really *thin* line between discussing the legal ramifications of Intellectual Property and its political realities -- even harder to tell where that line is when you're discussing hopeful outcomes of a Supreme Court case.
I hope it's still okay to voice one's own opinion of the worth (or -- just as valuable an opinion -- the lack of worth) of IP laws. So far it's been civil (ok, my rant might've gone too far; I'm sorry for that), so hopefully the conversations about the value of/problems with IP laws will continue to be productive.
To respond to Damin's last point,
It is true that the Court has frequently interpreted the Constitution in a broader fashion than a literal translation would allow; in this case, it all boils down to what "securing for limited times" (Section 8 of Article 1) means from a legal-precedence standpoint.
There IS another portion of the Section, though, that is equally important -- "To promote the progress of science and useful arts". That *should* be the yardstick by which such legal boundaries have been crafted in the past, but I've no idea if that's been the case. If so, the Eldred case does have merit in showing that the *pattern* of extensions can be interpreted (in a legal sense) to violate the first portion of Section 8 (if not explicitly the second portion -- the "limited time" part). Admittedly, that burden of proof is on Lessig and the "plaintiffs", but the Court did agree to hear the case, which suggests they recognize there is some legal merit to their claim.
You have to recognize that the pattern of extensions seems very suspicious. Not everybody agrees -- from a legal viewpoint, not just a personal view -- that the current length of time is reasonable; 95 years is longer than the average lifespan of a human, and 75 years past the death of an author/inventor of IP seems to me to be tantamount to establishing a legal birthright to profit rather than "promot[ing] the progress of science and useful arts." 75 years is three generations, far beyond the scope of direct Constitutional intent of allowing temporary benefit to the IP-originator. Remember the fundamental purpose of IP: It is NOT to benefit the individuals who create (such a benefit is a desired effect, but not the express *purpose* of IP, from a Constitutional viewpoint). IP is expressly designed to promote the arts and sciences; the form of law it has taken is to grant a legal but limited monopoly to the IP-originator as an incentive to create; the monopoly is intended to be long enough to make it worthwhile for the IP-originator to expend the efforts to create/express his or her ideas, but not so long to the point that the basic Purpose ("To promote the progress of science and useful arts") is hindered. Such an incentive (the monopoly) is NOT a right.
To me it seems that that portion of Article 1 Section 8 is expressly violated when looking at the pattern of extensions to the IP laws. It is blatantly obvious that acts like the DMCA, CBDTPA, and IP term extensions directly interfere with the progress of sciences, not just on conceptual level, but on a practical application of personal liberty as well. The latter, though, is outside the scope of this discussion, but the former isn't, and I hold hope the Court recognizes the Constitutional problems recent laws have created.
July, eh? Guess these things move slowly! Probably for the best, though!

 

[Jan Strnad]

I just wanted to point out that the copyright expiration on, say, Mickey Mouse doesn't put the Mouse into public domain. You can't go out and make and distribute your own Mickey Mouse cartoons.

What would happen is, the oldest Mickey Mouse cartoons would go into public domain and anyone with a print could issue them on video. They couldn't even create new cover art featuring Mickey, but would have to limit themselves to frame blow-ups from the cartoons themselves.

Personally, I'd like to see these old cartoons go public domain. Disney doesn't make them available for various reasons (they are crudely animated and Mickey isn't the sweetheart he is today) and it's a shame to let them go unseen.

95 years seems long enough...more than long enough...to me.

Jan

 

[Dana Fillhart]

It does, Jan. By the fact that the oldest elements go into the public domain, you *could* create and distribute your own MM cartoons. Derivative works that are still protected prevent you from getting as specific as those derivative works, but the base that is now in the PD allows you to:

* Create a new derivate works from the base that go off in new directions
* Print T-shirts containing the Mouse without having to pay royalties to Disney
* Make and distribute videos of the original source now in the PD, without fear of litigation. You could put the source on KaZaa and Disney has no right to sue you over it (well, they'd probably threaten you with legal action under the DMCA, but they have no legal ground under the Copyright Act if the work you distribute is wholly in the PD).

Of course, this is all moot, because Disney manages to get the copyright term extended every time their oldest material is about to expire.

There is a detailed article, though, somewhere on the net, that explains that the Mouse is *already* in the PD -- some legal loophole where because Walt Disney did not probably sign certain documents within a certain time frame could be interpeted as forfeiture of copyright, but I don't know how well that argument would stand up in court.

 

[Brian LaRose]

I would agree that it appears that todays copyright law does not seem to promote creativity. By maintaining a short time frame for the monopoly, it was in the artists best financial interests to create as much content as possible with the patented idea. When that time frame is expanded, the need to produce works is arguably reduced. The need to be creative, the incentive, is no longer a driving force.
I also believe that viewing corporations the same as artists in regards to works has also been detrimental to promoting creativity. I just did a little search on the IMDB, reviewing how many films/appearances Mickey Mouse has made and when they were made. The majority of them were made between 1930 and 1950. Since then the appearances have been very few. How does sitting on a character for around 50 years promote progress? There does not seem to be a driving force to progress the character of Mickey Mouse at all. By preventing other authors from using the character, they have stifled the creativity of others. If Sir Arthur Conan Doyle had been born in this century with these laws would one of literatures most beloved characters, Sherlock Holmes, have appeared in the huge array of movies, tv shows, books, etc... that he has? But this leads me into the last part on my discussion.
In regards to the gentleman who said that "I definitely want my intellectual property rights to extend beyond my lifetime. [...] I'd hate to think that my death would put the book into public domain before I or my estate ever made a dime." I agree that your wife should get the royalties on the books that are sold, and should own the copyright on the book to prevent others from selling copies of it without royalties being passed to the estate. I do not agree that the estate should be able to control the characters/ideas contained in the book. If the estate is going to do nothing but use them as a source of revenue, they are not actively promoting the progress of the characters/ideas. Other individuals should be able to use them in their own stories while the estate still receives royalties from the original text.
This is just my two cents on the issue. I personally believe that treating corporations the same as individuals in regards to copyrights has not benefited any true artists out there. And as we can see from the current issues that are in the courts regarding the MPAA and RIAA, the corporations will continue to try to extend their reach into our homes and dictate what we can and cannot do with purchased products. I also do not prescribe to the idea that since current laws allow for these practices that we should all be complacent and allow them to continue. No laws are made in stone such that they are above the outcry of the public.
Brian La Rose

 

[TheLongshot]

The original uncut version of Fantasia... we'll never, ever see it, not in our lifetimes, if they keep extending the copyright laws.

Only if someone outside of Disney has a print of that. My understanding the version you talked about only made a brief appearance in the theaters when it originally came out. I'm not sure if there is a private owner that has that version.

Jason

 

[Damin J Toell]

I just wanted to point out that the copyright expiration on, say, Mickey Mouse doesn't put the Mouse into public domain. You can't go out and make and distribute your own Mickey Mouse cartoons.

The character/work issue is a difficult one that courts have struggled with numerous times. The general tone of rulings have been that once the first work goes into the public domain, the characters as they existed at that time do, too. Thusly, once Steamboat Willie goes into the public domain, the character of Mickey as he existed in that work should also go into the public domain. Distributors of a public domain video of that title would therefore be able to create new illustrations of Mickey for the cover, etc. Note, however, that modifications to the character that Disney did later on (e.g., adding pupils in 1940 for Fantasia) will still be theoretically copyrighted by them. It'll be a mess, but the litigation should make for fun reading by future law students.
DJ

 

[Adam Lenhardt]

Only if someone outside of Disney has a print of that. My understanding the version you talked about only made a brief appearance in the theaters when it originally came out. I'm not sure if there is a private owner that has that version.

Not sure the max. quality that it exists at in the public arena, but it's definitely out there, as I have seen it on a website.

 

[Seth Paxton]

removed by Seth

 

[Seth Paxton]

removed by Seth

 

[Seth Paxton]

I have no idea what a "medium transition" is (I'm assuming you've invented the term)

Alright, now this is just cocky and offensive. First of all it's not a "term" like some idiom or something that I had to invent. It's the English language and it's just 2 normal words used as part of a sentence that's rather quite specific.

Luckily, rather than rely on your insulting attitude that I had to make up apparent nonsense, I can consult a dictionary to verify that this odd "term" is actually just 2 normal words used together with a meaning that seems rather clear.

source - Merriam-Webster online

medium - a mode of artistic expression or communication

transition - a movement, development, or evolution from one form, stage, or style to another

and previously I used

translation - a change to a different substance, form, or appearance


What part of MODE (of artistic expression) CHANGE (to another form of expression) is freaking unclear?

I'm not sure why that's not a clear description of going from book to film or from written music to recorded music or even from a musical version of a book.


I'm walking away from this since that's the attitude that's going to be taken. I'll even edit out my last 2 posts because honestly I don't need to hear the response anymore.

 

[Dana Fillhart]

I stated above that the fundamental Constitutional purpose for IP is to promote the progress of science and useful arts; the yardstick for the time limit on the monopoly of an idea/invention should be measured against that ideal first, not first against the ability of the IP-originator to make a profit. The latter is the incentive, not the requisite end result. If the former is harmed by the latter because the time limit is either excessive or appears to be becoming perpetual, then the latter must be restricted.
Laws in this free-market society are not meant to guarantee either a birthright to profit or an endless profit stream (via, in this case, perpetuity of IP terms), yet the last few decades of ever-increasing IP-term extensions have twisted the intent of the Constitution around to make profit the requisite end result, and the promotion of the progress of science and useful arts a coincidence, when (or if) it does happen.
That doesn't mean that IP terms should be pushed all the way back to the first law of 14/14, but one must question whether the legal-backed birthright of a third-generation descendent of an IP-originator to profit 75 years after the death of his creative ancestor outweighs the Constitutional imperative of progressing science and arts.

 

[Dana Fillhart]

Seth, don't go away!
Your positions are articulated well enough for many of us, perhaps better than most of us, and they certainly have merit!
Stay and fight the good fight!

 

[Damin J Toell]

Alright, now this is just cocky and offensive.

Wow...uh...geez. Your use of "medium transition/translation" in CAPS indicated to me that it was some specific term that you were using in a special way that I was unfamiliar with. Further, I actually didn't realize that "medium" was meant as "media," but rather I thought you meant it as "middle position," as in some kind of partial transition (as opposed to some kind of "full transition" (a concept I was also similarly unfamiliar with, hence why I thought you were introducing a new concept of your own)). This was compounded by the fact that you included transferring a film to DVD in this category, which is nothing like adapting a book to a film to my mind since the work itself remains unchanged. Additionally, the terms I'm used to in the copyright context are "adaptation" (which I see used most often) and "derivative work" (which is generally used only by those familiar with legal jargon), so seeing an unfamiliar term set off in CAPS helped to make the intent of the term elusive to me. My expression of confusion was simply meant as just that, not to be "cocky and offensive" or representative of an "insulting attitude."

But, I guess it doesn't matter what I say anyway, since you "don't need to hear the response." I'm rather sorry to see a thread suddenly turn so vitriolic over a part of one sentence. Oh well.

DJ