Posted on 01/15/2003 8:14:57 AM PST by general_re
Why? Do you think you (or your estate) will be collecting royalties on your works 100 years from now? More likely, this ruling will doom most works to permanent obscurity, since nobody else will be able to archive them. I don't see how this helps authors or publishers who aren't the size of Disney.
Petitioners do not challenge the life-plus-70-years time span itself. Whether 50 years is enough, or 70 years too much, they acknowledge, is not a judgment meet for this Court. Congress went awry, petitioners maintain, not with respect to newly created works, but in enlarging the term for published works with existing copyrights. The Limited Time in effect when a copyright is secured, petitioners urge, becomes the constitutional boundary, a clear line beyond the power of Congress to extend.To me and also it seems in some regard to the Justices dissenting this is an ex post facto law, even a theft.
Odd. One of my continual disappointments is how often it happens that the proposition that a particular law or governmental action is wrong is met with "hey, that's the system". I can't help but wonder how such people would have greeted the proposition that slavery was wrong and unjust in, say, 1850 or so. "Hey, that's the system."
More to the point, you're ducking the various questions I've posted. I don't blame you a bit. The answers are likely to be embarrassing.
Here we have people who want copyrights to expire sooner rather than later, and they want to argue that point regardless of the mechanism employed to change it. Here we see people who would croak if the Supreme Court had ruled in favor of Gore, who want the Court this time, and this time only, to re-write legislation to suit them. Why? Because they want the copyrights to expire, and the legislative debate did not go their way. So to Hell with judicial restraint and the proper mechanism for amending law, let's have the Court do it.
No, Nick. In addition to declining to address the issue of whether the law is just or unjust, you're wrong about the mechanism to boot. I don't want the Court to intervene "this one time only", in order to provide me with my preferred outcome. Instead, I expect and demand that they intervene every time that Congress oversteps its bounds, exactly as the Constitution intends they should.
You have, in one fell swoop, obviated the courts entirely. I ask again - what is the Supreme Court for, if not to address whether a particular legislative action is consistent with the Constitution? Does that not imply that occasionally they will find an action that does not accord with the Constitution, or are we to expect the Court to simply rubber-stamp everything that Congress, in its infinite wisdom, deems proper? Because if that's the case, let's stop screwing around and pretending that the courts are a meaningful institution in this country, and just abolish them altogether.
But I just can't help casting my eyes over Article III one more time, and remarking on how much it certainly looks like a check on Congress. If the founders did not intend for legislation from the bench, and I don't think they did, then they surely also did not intend Congress to act as an entirely plenipotentiary body, acting without limit in any area they see fit. And yet, Nick Danger posits exactly such a thing, with his "unelected philosopher kings" formulation. You have created a standard whereby it is simply impossible for the courts to act in any meaningful way to check Congressional action. I am sorry, but this is not the system of government we were bequeathed. The answer to your fears that the courts will do too much is not to create a system where they do absolutely nothing at all - you throw out the baby with the bathwater, and then throw up your hands and say "hey, that's the system". Except that, hey, that's not the system, and never has been.
I am, as I think I should, using this platform to argue that this law was wrong, and not consistent with the Constitution. Pointing out that they now ostensibly have the power to do something is not a magic wand, and waving it about does not suddenly transform bad laws into good, or wrong decisions into right ones.
Yes, I know, you explicitly disavowed the notion that the system would necessarily produce right and good decisions. The thing is, I'm sort of attached to the idea of right and good decisions - I'm just funny that way, I guess. And if the Supreme Court won't step in and do the very job we as a society have assigned to them, by restricting improper Congressional actions, then yes, I will live with it, until such time as I can correct the errors of Congress and the Court. But that is the job we have given the Court.
Understand something: I do not know what the right number is. I do not claim to have any divine wisdom on the subject.
Congratulations. Now you can sit down with the rest of us regular guys and chew the fat. I don't claim any "divine wisdom" on what the "right" number is, either. But I do have an opinion, and something akin to a reasoned argument to support my opinion. Abandoning all claims to judging what a "right" number is is tantamount to admitting that you have no idea what a "wrong" number is, or even if there is a "wrong" number. Pardon me, but I'm not quite so deferential as all that to the divinely inspired wisdom of Congress, when they decree that copyrights should last a hundred years, or a thousand, or a million - none of which you can rationally object to, given your stated position. I prefer to maintain some basis for objecting when I am of the opinion that Congress has done wrong, and the courts have failed to render the proper decision. To each his own, I suppose.
What would be an example of a legislative decision about copyright terms that isn't within Constitutional bounds?
Some judicial dueling ....
Ginsberg, in the "Majority" opinion:
And as we observe there is no cause to suspect that a purpose to evade "limited Times" prescription prompted Congress to adopt the CTEA.Breyer, in his erudite dissent:
I am not certain why the Court considers it relevant in this respect that nothing . . . warrants construction of the 1998 Act's 20-year term extension as a congressional attempt to evade or override the "limited Times" con- straint.Of course Congress did not intend to act unconstitutionally. But it may have sought to test the Constitution's limits. After all, the statute was named after a Member of Congress, who, the legislative history records, wanted the term of copyright protection to last forever. ... [Breyer cites statements of and attributions to Rep. Sonny Bono] ... statement of Rep. Hoke: "Why 70 years? Why not forever? Why not 150 years?" ... The Songwriters Guild suggested a perpetual term ... statement of Quincy Jones, "I'm particularly fascinated with Representative Hoke's statement, '[W]hy not forever?' ... [etc.]
And the statute ended up creating a term so long that were the vesting of 19th-century real property at issue it would typically violate the traditional rule against perpetuities. [That is the] traditional rule that estate must vest, if at all, within lives in being plus 21 years [The] modern statutory perpetuity term of 90 years, 5 years shorter than 95-year copyright terms.
Oh, that's just great. So Congress cannot change its own laws? Having passed a ten-year program of tax cuts last year, it will now be an ex post facto law if Congress votes now to accelerate these tax cuts, or extend them, or make them permanent? After all, this is people's property we're talking about. Last year Congress said you could keep your money until 2012, and now Bush wants them to make that permanent. How dare they? Your money belongs to the public after 2012; just ask the Democrats.
I am surprised that such an argument made it to the Supreme Court. The idea that the Congress cannot amend its own laws is ludicrous.
Ginsberg, for the "Majority":
As respondent describes, a key factor in the CTEA's passage was a 1993 European Union (EU) directive instructing EU members to establish a copyright term of life plus 70 years.
Justice Breyer, in dissent:
[T]he Court relies heavily for justification upon international uniformity of terms. Although it can be helpful to look to international norms and legal experience in understanding American law, in this case the justification based upon foreign rules is surprisingly weak. Those who claim that significant copyright-related benefits flow from greater international uniformity of terms point to the fact that the nations of the European Union have adopted a system of copyright terms uniform among themselves. And the extension before this Court implements a term of life plus 70 years that appears to conform with the European standard. But how does "uniformity" help to justify this statute? Despite appearances, the statute does not create a uniform American-European term with respect to the lion's share of the economically significant works that it affects -- all works made "for hire" and all existing works created prior to 1978. With respect to those works the American statute produces an extended term of 95 years while comparable European rights in "for hire" works last for periods that vary from 50 years to 70 years to life plus 70 years. Neither does the statute create uniformity with respect to anonymous or pseudonymous works. The statute does produce uniformity with respect to copyrights in new, post-1977 works attributed to natural persons. But these works constitute only a subset (likely a minority) of works that retain commercial value after 75 years.And the fact that uniformity comes so late, if at all, means that bringing American law into conformity with this particular aspect of European law will neither encourage creation nor benefit the long-dead author in any other important way.
No, this is a government-granted monopoly we're talking about.
So if you have an idea, I can't have the same one?
I don't hear anybody saying that. All I'm saying is that "wrong" (as opposed to unconstitutional) decisions by Congress are to be re-visited in Congress. The use of the courts as a super-legislature to win battles lost in the political arena has gone far enough already in my opinion. I'm sick of it, and I applaud the Supreme Court's willingness to not do it here.
And stop putting words in my mouth. I have not stated that the Court has no function. I just do not think that the Supreme Court of the United States needs to be meddling in picayune crap like whether a copyright ought to be for 5, 10, 50, or 100 years. What I want them to rule on is whether law enforcement -- or even worse a copyright holder -- has the right under the Constitution to conduct a warrantless search of my computer to see if I have any copyrighted works. That, at least, is a genuine Constitutional issue. The one in this case is a transparently trumped-up "constitutional issue" that should have been disposed of by some district court judge, probably by fining the disingenuous lawyer who tried to slip it past him.
I'm sure you are, so long as you get to decide what is right and good. I'm not sure I trust you though, so I'm not ready to make you king. I'd prefer you work through your elected representaives to change this law that you don't like. And if you lose, you lose.
Courts aside, it is patently obvious that this whole "constitutional" argument was backed into by people who started not with the Constitution, but with "how do we get this number we don't like changed?" They lost in Congress, so they went to Court with a stupid, trumped-up "Constitutional theory" that says that Congress cannot change its own laws. Well, they fell on their butts, and I'm not surprised.
Ideas are blancmange. Now that's mine.
Heh, very true. The key distinction is that physical property is scarce, while intellectual "property" isn't. Copyright laws create artificial scarcity in the belief that doing so will lead to more output; in fact that is the only reason such laws are permitted according to the Constitution. It's logically impossible for a retroactive copyright extension to result in increased incentives (well, until time travel is developed), so I fail to see how it's Constitutional.
Can Congress retroactively repeal the Reagan tax cuts and send you a bill for the last 20 years? Copyright is an agreement entered into between the author or publisher and the public. That agreement has now been altered after the fact.
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