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Author
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Comment
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swood
Unregistered User
(10/9/02 1:09:26 pm)
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Eldred vs. Ashcroft
I know a lot of people on the board are interested in copyright Today the Supreme Court is hearing a case attempting to overturn the 1998 Sunny Bono Copyright Extension Act on the grounds that it is un-Constitutional. This law, also known as the "Mickey Mouse" law, as Disney was behind the legislation, protects copyright up to 70 years after the death of the creator. Creations of corporations are protected for 95 years. If this law is overturned, copyright will only be protected up to 50 years after the death of the creator.
As someone who works with copyright a lot, I am really interested in the case and its implications. Even as a creative person who hopes to profit from my creations, I believe that current copyright law is designed for the profitablity of corporate entities rather than individuals.
The following link is to Eldred's site, which contains more about his part in the case and links to the most recent news.
eldred.cc/
I'm interested in the outcome and also your opinions about this case.
Sarah
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Jess
Unregistered User
(10/9/02 8:02:12 pm)
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Interesting case
I will be interested in reading the opinion. Were arguments heard today? Thanks.
Jess
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Janeyolen
Unregistered User
(10/10/02 5:07:32 am)
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My 2 cents
As a creator, I hold rather strong opinions on copyright. This is my family farm which I want to give to my children and grandchildren. So life plus 70 years seems right to me.
Jane
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Jess
Unregistered User
(10/10/02 5:59:17 am)
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Retroactive application
Jane and Sarah,
I think no one would argue that 70 v. 50 years is "fair" to the creator. I think the problem here is in part the retroactive application of the law. Whenever a law changes the positions of the parties retroactively there can be unforeseen consequences - sometimes huge consequences. As Jane points out so beautifully, this law is not just about dollars and cents.
Sarah, as a corporate attorney I can assure you that most corporations are small, closely-held family businesses. These businesses are set up to protect family members and employees from risks and to help with the distribution of income. Yes, large corporations with unrelated shareholders exist, but they are the exception.
Has anyone read the arguments?
Jess
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Jess
Unregistered User
(10/10/02 6:09:20 am)
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Transcripts
www.supremecourtus.gov/or...ripts.html
When available.
Jess
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Laura
McCaffrey
Registered User
(10/10/02 11:43:20 am)
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publisher's weekly news
For Publisher's Weekly's free story about what's been going on inside the courtroom, try:
publishersweekly.reviewsn...eakingNews
Laura Mc
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Zerothis
Registered User
(10/16/02 8:16:44 pm)
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Soulless
"A corporate executive's responsibility is to make as much money for the stockholders as possible" (Just check any corporate charter to confirm this)
A corporation has no duty to take care of the creator, the creator's family or the creation. In fact if the creation is no longer profitable it will be left to slowly rot, along with the creator and the creator's family. This right of the corporation to copy the creation is more valuable to corporation than the creation itself. And no one, including the creator nor his family, no matter their good intentions, is allowed by the corporation to archive or preserve copies of the creation because corporations see such archiving as a threat the corporations exclusive right to the creation, and by precedent, all the creations the corporation claims copyright too. So all creations of perishable media are extremely vulnerable if and when they are under corporate control. In order to protect the corporation's right, the corporation will willfully and actively destroy the creation to prevent it's unauthorized coping.
A corporation is an imaginary entity, existing on paper only and improperly declared personable by mere laws which are themselves just words on paper. Words on paper cannot create a living entity; how much less so words about words on paper? Would you trust Monsieur Puss to manage your creations after your death? Of course not, as cleaver as he is, he only exists on paper, he is not real. A corporation is less real than any character ever created in a fairy tale.
The right to reproduce art is best left to those who can love. The _person_ who created the art and the _person_ the creator chooses to entrust copyright to. No corporation lives, breaths or loves. No corporation has a soul. No corporation ever created anything. No corporation is wise nor foolish. Only _people_ such do.
I suggest reading (and understanding) Ecclesiastes before putting too much faith in the idea of having your creations last a single day after your death. And then, if one cannot know what a person will do with one's works after one's death, how much less so an imaginary entity?
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Janeyolen
Unregistered User
(10/17/02 2:35:38 am)
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Another model
I suggest you think about the creator who works hard at her creations to put bread on the table and who dies (suddenly or after a lengthy illness or by accident.) Should those creations not go on and feed her family? Or should they just be taken (stolen) by other folk to feed theirs while her family suffers?
You have taken the corporate model.
I am taking the single creator model.
They should never have been yoked together in the same bill.
Jane
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Jess
Unregistered User
(10/17/02 1:02:16 pm)
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Corporations monopolies, etc.
Yes, corporations duties are to the shareholders - to maximize profit. Period. End of story. But often maximizing profit for the shareholders means taking care of corporate assets. Not destroying them. When a corporation is held solely by family shareholders, they often understand the need to maximize long-term profit as opposed to short-term profit by keeping corporate assets in top shape - not by destroying them.
Entraprenuers often incorporate to protect their families from outside creditors, to aid in the distribution of income and to protect employees. They often retain control through a generation. Very occassionally, a controlling shareholder will be challenged about whether he is using business judgment or something else with respect to the corporation. (See the Ford case). If a reasonable argument can be made that something is good for the business, then it will most likely withstand a challenge. (See the Wrigley Field case) Very often, however, what is good for business is also good for the creations.
Copyrights create an artificial monopoly. The monopoly is created via fiat to reward the creator for his contribution. Hence, Jane is given a copyright on her work because we, as a society, value her contribution. Her monopoly power allows her to sell her work if there is a market for it and put food on the table and a roof over her head. The price that someone is willing to pay for her work is, at least in theory, dependent in part on the length of her monopoly. The longer the monopoly - the higher the price. She as a creator would like the longest monopoly possible. The public though would like to access her work for free as soon as possible. In other words it would like to shorten the length of her monopoly.
The question in the case, as I understand it, is whether the government can lengthen this artificial monopoly after the fact - after the price has been bargained for. This changes the positions of the parties, and one might argue damages one party - the public. It is argued that there exist copyrighted materials decaying for lack of corporate interest because the public cannot get to it. (One queries whether it is good for the corporation to allow these "assets" to decay if the public is so interested in them. Perhaps business judgment would suggest they should be sold or donated - for a tax right-off) At the same time, new relationships have sprung up over old works. Creators or rather holders of copyrights are also arguing reliance this time on the extended period. This makes it an interesting case.
I haven't read the arguments of the case completely. Jane makes a very good point about wanting to protect her family for the future. Some creators might very well put their copyright in the hands of an immortal corporation for this very reason. But we should also protect those that choose not to do so. The question though isn't whether a copyright should extend beyond the life of the creator (and for how long), but whether it should change it retroactively.
Jess
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Jess
Unregistered User
(10/17/02 1:24:44 pm)
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Sorry
Sorry about the length of the above.
Just getting into the First Amendment arguments.
Jess
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Jane Yolen
Unregistered User
(10/18/02 2:12:46 am)
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Pushed a hot button here
Frankly, speaking as a non-incorporated creative entity (and there are good reasons NOT to be incorporated), if there were no copyright and anyone could use my stories any time without payment to me and my heirs, I'd keep my stories in the drawer for the enjoyment of my kids and go get a real job!
Most writers (and artists) are paid little enough for their work. Without copyright, we would simply all be doing work for hire and the hirers would be making money off of our labor.
Or--here's a thought--the government could pay me for NOT writing stories! The farm model.
Jane
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Jess
Unregistered User
(10/18/02 6:03:19 am)
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Hot button
Jane,
No need to push the hot button. You are absolutely right about there being a very definite need for copyright AND very valid reasons for not incorporating. Taking the latter first, someone commented earlier about corporations being the only party to benefit from copyrights. I was merely trying to point out that the bulk of corporations were owned and controlled by either a single shareholder or families, who for their own reasons, felt that incorporation was the best model for them. I tried to point out those reasons. Clearly many creators choose not to incorporate too. Reasons are huge - the creator retains complete control; it is structurally informal; taxes may be lower, etc. Sorry, I didn't mean to suggest for one moment that everyone rush out and incorporate.
As for copyright, I don't think ANYONE is suggesting it should be done away with. It is such an important right - and as I point out our society values creators immensely - that the right is guaranteed in the Constitution!
The case is rather about what balance exists between the public's right to works and the creators' rights. What is the appropriate "time" frame? And should it be expandable retroactively. Because the time frame has been extended 11 times by Congress, Jane, you should feel comforted that our society values creators contributions more now than ever.
International copyright law, which in many cases was historically longer than the U.S., and the availability of information add spice to the case. It is interesting to note that the plaintiff argues that by continually extending the length of copyright that in essence there is no time limit. I am anxious to hear the Court's take on that. There also seem some pragmatic concerns which are expressed beautifully by another person above - tracking down owners, decaying media, etc.
I didn't quite slog through all the First Amendment arguments, but I hope to soon.
Again, sorry if I pushed a hot button. I am really reading this
as an objective observer. If the case were easy, it wouldn't be
going to the Supreme Court. Oh, and Jane, please don't put your
stories in your top drawer. I think I have enough in mine for both
of us - and yours are WAAAAY better.
Jess
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Jess
Unregistered User
(10/18/02 6:12:51 am)
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One other thought
Jane, my husband would point out that it is only corporate farmers
that really benefit from subsidies.
Jess
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Jane Yolen
Unregistered User
(10/18/02 12:04:28 pm)
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Shooting
Sorry if it sounded as if I were shooting the messenger! (This after having lunch with a colleague and discussing Netiquette with her!!!)
Jane <taking those mss. out of the drawer>
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Jess
Unregistered User
(10/18/02 3:03:11 pm)
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:)
Jane,
I actually was fine with your comments - no breach of Netiquette I observed. What is always so interesting is how emotional these types of issues are. There is no avoiding it when both parties have valid concerns. I am interested in your opinion as well as the other side. I had a law professor who used to say in cases like this that you hit the right balance when both parties felt like they had lost.
Jess
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Terri
Registered User
(10/19/02 6:00:03 pm)
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Re: :)
Jess, this is all fascinating. Thanks for explanation of what the current issues are regarding copyright law.
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Jess
Unregistered User
(10/20/02 1:08:42 pm)
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You are welcome
Terri,
I haven't scratched the surface, but you are welcome if it helps you to understand this a little better. The case is, from an intellectual standpoint, fascinating. As you can see from the comments of others, it also has a great impact on people - not just the copyrighted works - regardless of the outcome.
I hope to have an opportunity to finish my review of the arguments this week. I will try to put together an intellegent synopsis if people are really interested.
Jess
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Terri
Registered User
(10/20/02 11:03:27 pm)
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Re: You are welcome
Well I, for one, am interested!
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bee
Unregistered User
(10/26/02 10:08:02 am)
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The Constitution and Congressional Power
Hi Everyone. Usually I lurk here, but Eldred vs. Ashcroft is very interesting to me. Enough so that I did a little reasearch (though I am NOT a lawyer)...
All copyright power in the U.S. derives from 27 words in the Constitution:
"[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..."
I think it's fairly obvious that by repeatedly and retroactively extending copyright protection, Congress is flouting the Constitution and the intention of the founding fathers, which was to balance the rights of creators to benefit economically from their works and the right of the public to enjoy and benefit from intellectual knowledge.
So, how do you balance these rights? Jane Yolen makes an excellent point -- not only the creator, but the creator's direct heirs who are dependent on the creator's income, should benefit economically from the creator's works. Otherwise, there would be no new books or music, and that would be an incalculable loss.
In this light, some of the copyright extension laws passed over the years are quite fair. After all, life expectancy has increased greatly since the Contitution was signed, when works were protected for only 14 years, renewable for another 14 if the author was still alive.
However, the life-plus-50-years protection that was in place prior to the Sonny Bono Copyright Term Extension Act of 1998 would appear to be sufficient to protect creators and their children. Even if a creator died tragically young, 50 years' protection would support a creator's children well into self-sufficient adulthood.
Eric Eldred has said of the case, "This is not an instance of wanting to take money out of authors' pockets... The only people who will benefit from this act are distant heirs of the author and publishing companies."
Whereas, Mary Bono -- widow of Sonny Bono and his Congressional successor -- speaking on the floor of the U.S. House of Representatives, noted that "Sonny wanted the term of copyright protection to last forever", but since she was "informed by staff that such a change would violate the Constitution", Congress might consider Jack Valenti's proposal of a copyright term of "forever less one day". Jack Valenti is president of the Motion Picture Artists Association -- another corporate interest weighing in.
This childish, letter-of-the-law interpretation of "limited times" reveals quite clearly the motivation behind the 1998 Copyright Term Extension Act: To enrich corporations, not to protect creators or their heirs.
To me, the real issue is not whether life-plus-50 or life-plus-70 years of copyright protection is most fair to creators and their heirs. The issue is whether the Supreme Court will allow the Congress to use loopholes like "forever less one day" to circumvent the Constitution, our backbone and protection.
In other words, if the 1998 act is not successfully challenged, what happens in 2019 -- Life plus 90 years? And in 2039, life plus 110 years, all to protect a geriatric Mickey Mouse? Because I would venture to guess that in 2019, Disney and the MPAA will still have deep pockets, and the ear of certain Congress persons. If Disney has its way, the public domain will never grow by even one additional work. Ever.
Personally, I think it is a miracle that I can log on and, within a few minutes, be reading Pride and Prejudice or The Scarlet Letter or Tarzan the Untamed. Or, for that matter, the fairy tales of the Brothers Grimm, and the collections of Andrew Lang! Why not add to that list Hemingway's works, and A.A. Milne's, as Eric Eldred intended?
Then I can go out and spend my money on the latest Tartan Magic
book, or Midori Snyder's Hannah's Garden, which I want in the WORST
way. :D
Thoughts, anyone? Sorry to run on like this....
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