Thursday, January 19

Eldred v. Ashcroft
Congress has now found a clever way to evade this simple constitutional command. By repeatedly extending the terms of existing copyrights—as it has eleven times in the past forty years    (See footnote 1) —Congress has adopted a practice that defeats the Framers’ plan by creating in practice an unlimited term.
b) Petitioners' Copyright Clause arguments, which rely on several novel readings of the Clause, are unpersuasive. Pp. 17-28. 
 (1) Nothing before this Court warrants construction of the CTEA's 20-year term extension as a congressional attempt to evade or override the "limited Times" constraint. Critically, petitioners fail to show how the CTEA crosses a constitutionally significant threshold with respect to "limited Times" that the 1831, 1909, and 1976 Acts did not. Those earlier Acts did not create perpetual copyrights, and neither does the CTEA. Pp. 18-19.

This analysis leads inexorably to the  conclusion that the statute cannot  be understood rationally to advance a constitutionally legitimate interest

So... currently, we have a lot of unrest, about copyright laws.  There was a court case disputing that the current copyright law (which protects copyright for 70 years after the death of an author) was constitutionally valid.  The court found the arguments being presented to be unpersuasive, though obviously some people had some reason to agree with those arguments.

One problem was that the arguments could have established a precedent saying that congress could only legislate a limited number of times.  That once a congress had "used up" their legislative action, future congresses would be stuck and not able to change the laws again.  But the whole point of congress is that they are the ones that can change the laws -- the court doesn't get to revoke that power.

And there wasn't really any other reasoning presented in Eldred v. Ashcroft.

And the court is obliged to issue narrow decisions, only resolving the dispute presented to them.  It's the job of the people presenting the disputes to bring up the relevant facts and issues.

Personally, I think that the law is unconstitutional.  But I don't see any argument in Eldred v. Ashcroft which presents what I feel is the key fact: copyright lasts longer than any reasonable person's working lifetime.

Consider this sequence of events:

A. Someone writes a story and copyrights it.
B. I am born
C. I die.
D. The copyright expires.

For me, there was obviously no limit on the time of that copyright.  There was never any time when I could have been legally allowed to do any creative work within the scope of the subject matter controlled by that copyright.

Why wasn't this issue raised in Eldred v. Ashcroft?  In part, I think, because this problem existed even before the bill that they were challenging.  The bill was upsetting, because it made a problem worse, but the bill itself was not the real problem, it was just another straw on the back of the camel.

So, I suppose I need to find any legal precedent which comes close to addressing what I have identified as the core problem: that new copyright terms are not limited terms for anyone that needs to comply with its terms.

But wait... the court is not the only avenue for remedy here.  If we can convince congress to change the law, that might also work.  Even better would be if we could convince congress to include some admission that the current state of affairs is bad.

But... so, ok: the current law is in place because of international treaty.  EU apparently has similar laws and on top of that they have a law that anyone that does not agree with their terms doesn't get any copyright protection in the EU.

Basically, we're just going along for the ride.  And, the parts of the constitution which cover treaties grant quite a bit of authority.  To some degree, treaties can override constitutional protections.  In essence, international conflicts are bad, and we do not want them.

But let's ignore that issue for a while.  It might well be that we can convince the court that the law is unconstitutional, but that would be hard.  It might well be that we can convince Congress that it's in our best interests to relax copyright terms, but they have to think about other countries also.  It might well be that we someone can take up this issue with other governments, but that introduces a whole new set of obstacles.  Instead, let's take a step back and look at the pragmatics of copyright, and of government.

In simplest terms:  Government is about making sure changes happen slowly and do not hurt too many people.

In simplest terms: Copyright is about keeping people from becoming too upset.

Copyright means different things to different people.  Copyright is a sort of "community understanding" and each body of activity which deals with copyright handles the boundaries of their issues differently.  Copyright on music performed live is treated differently from copyright on music performed over the radio and both are different from copyright on sculpture.  Some of these difference are reflected in the laws, but that's only a starting point.

One issue, here is that "copy" is an ambiguous abstraction.  You can nail it down within a particular realm of effort, but when the concepts change you can start to run into the ambiguities.

And, nowadays, we have a lot of concern over copying in the context of content which is "electromagnetic" in character.  Light, electronics, magnetic recordings... they are different from ink on paper.  If you have an image of something, you can see a copy of it by holding up a mirror.  For many modern purposes that mirror image is a valid copy.  But copyright was never meant to ban mirrors.

And that's just an illustration.  Then again, illustrations could be considered to be copies, depending on the field of effort.  But that's not really my point here.

My point is that every group of people is going to have their own ideas of what copyright means.  This means that there are limitations on the scope of copyright which are different from the constitutionally expressed concept of "limited time".

Fair Use is a major example of this kind of limitation.  And, currently, at least, the EU countries do not revoke U.S.A. copyrights because of Fair Use (even though the other countries do not allow this kind of limit within their borders).

So another possibility to explore is the concept of creating new limits on the nature of copyright -- on the concept of what copying is -- which might fit within scope of acceptability for large groups of people.

Because that's what this is all really about -- broad agreements about what's acceptable vs. what's too annoying to deal with.

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