Wednesday, October 23, 2002

ELDRED VS. ASHCROFT UPDATE: LawMeme sends us over to, which is the case's official site--I didn't know cases had sites, but here it is. They also point out Jeffrey Rosen in The New Republic on Eldred, who hits 'em where it hurts:

Decades from now Rehnquist and his conservative colleagues will be remembered above all for their decisions restricting Congress's power. These decisions have been legitimately criticized for being based more on an abstract devotion to states' rights than on the text and history of the Constitution. Now the Court has before it a law that is constitutionally offensive on every level: It clashes with the explicit limits on Congress's power set out in the text and original understanding of the copyright clause, it represents a naked transfer of wealth to a handful of greedy heirs of pop-culture icons from the '20s, and it threatens to constrict public domain on the Internet for generations to come. If the Court sets limits on Congress's power in the context of commerce but not in the context of copyright, the only difference would be one of political perspective. If there ever were a case in which it makes sense to hope that the conservatives are true to their purported strict constructionist principles, this is it.

And there's this:

But far from being persuaded by Lessig's argument, Chief Justice Rehnquist suggested it was unprecedented. "Every morning," Lessig recalls, "I wake up with an image of the Chief Justice in my head saying, `Well, counsel, maybe the fact that nobody raised this question for one hundred fifty years indicates that there is no issue here.'" But there are, Lessig notes, several reasons that no one has challenged retrospective copyright extensions in the past. In the eighteenth century "exclusive rights" in intellectual property meant only the right to print and publish. Today, by contrast, thanks to a vast expansion of copyright protections in 1976, a single copyright includes the right to control derivative works, public performances, and display rights. When copyright only regulated commercial publishers, there was no reason to object to a retrospective copyright extension because publishers, on balance, benefited from the extension more than they were harmed by it. By contrast, in the Internet age, every citizen is a potential publisher, and every publication on the Internet runs the risk of clashing with the tangle of rights that copyright law now protects. Today, a retrospective copyright extension benefits a handful of commercial publishers who hold the most valuable copyrights--such as Disney and AOL--but it harms the millions of citizens, scholars, librarians, and students who want to use historical material in ways that aren't commercially viable.

Go Larry go! Whose blog (in addition to having tons of Eldred stuff) directs us all to Aaron Swartz's blog who sends us to this list of books you cannot read in these United States, because you're not paying for them. Like with all those roms to obsolete video games you can't download to play on your computer because somebody conceivably could make money off them. Right.

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