[dvd-discuss] Eldred Amicus

["Michael A Rolenz" <Michael.A.Rolenz(at)aero.org>]

As I suspected, someone would notice that the  USSC can duck part of the 
issue by not allowing retroactive extensions of copyrights but still evade 
the larger issue of deciding what are "limited times". What is interesting 
is that they actually come out and accuse Disney of "mischief"


From:

http://cyber.law.harvard.edu/openlaw/eldredvashcroft/supct/amici/pipla-upd.pdf

Progressive Intellectual Property Law Association and Union for the Public 
Domain(in partial support), Michael H.Davis 

"Prospective copyright term extensions are reviewable only with great
difficulty. Fortunately, however, the primary reason Congress has been 
urged to extend
copyright terms is to obtain retrospective, not prospective, extension. By 
seizing this
opportunity to declare only retrospective copyright extensions 
unconstitutional, this
Court can remedy the distortion of the political process effected by its 
proponents.
Congress will then be free to balance the competing concerns of incentives 
for authorship
and a rich public domain, unburdened from constitutionally suspect demands 
that are
inconsistent with the design of the Copyright Clause."

<snip>

The Bono Act's legislative history reveals the unarguable truth that, were 
it not
for retrospective extension, no extension would have been enacted at 
all.10 That is,
although the resulting extension was for both retrospective and 
prospective terms, only
retrospective extension motivated those supporting the Bono Act. And this 
makes
economic, although certainly not constitutional, sense.

Economic realities explain that there is simply not enough present value 
in any
prospective extension to justify serious interest in such extensions and, 
indeed, that is
why those benefiting from retrospective extension were the chief 
proponents of extension
in the first place. The present value of the additional twenty years of 
copyright
exclusivity granted by prospective extension adds less than a microscopic 
one-tenth of
one per cent to the expected cash flow during an initial fifty year 
term.11 It defies logic to
conclude that any sound business practice would include deploying 
substantial resources
to secure such a poor investment. Compare this, however, to the immediate 
returns of
billions of dollars of profit guaranteed by retrospective extension12 and 
it becomes
obvious how the failure to impose constitutional limits upon retrospective 
extensions
distorts the democratic process.

<snip>

It is difficult to exaggerate the mischief caused by those seeking 
retroactive
extension. One of the most influential supporters of the Bono Act was the 
Walt Disney
Corp., which had acquired the rights to the "Winnie the Pooh" 
characters.15 In its
purchase agreement, Disney made its obligations contingent upon the 
successful passage
of the Bono Act retrospective extension, much like a potential home buyer 
who includes a
mortgage financing contingency clause. Treating Congress as if it were 
one's private
banker vividly demonstrates the growing hazards of allowing copyright 
terms to escape
their constitutional bounds. This potential mischief was illustrated in 
its most extreme
form when Sonny Bono's widow (while serving the remainder of his term), 
stated upon
presentation of the bill:

Actually, Sonny wanted copyright to last forever. I
I am informed by staff that such a change would
violate the Constitution. I invite all of you to work
with me to strengthen our copyright laws in all ways
available to us. As you know, there is also Jack
Valenti's proposal to last forever less one day.
Perhaps the committee may look at that next
Congress.16