Re: [dvd-discuss] Eldred Amicus

[Ernest Miller <ernest.miller(at)aya.yale.edu>]

If Eldred is wildly successful we can hope for two outcomes:

1) The court kill retroactive extensions pemanently - Welcome to the 
public domain, Mickey.
2) The court sends Eldred back down for determination as to whether CTEA 
meets constitutional muster under the First Amendment standard they set 
(they won't decide that in the USSC).

Of course, once that standard is set lawsuits will soon pop up 
challenging other copyright laws, like that 1976 Act.

D. C. Sessions wrote:
> On Thu, 2002-05-30 at 04:08, someone somewhere wrote:
> 
>>To begin, the current USSC doesn't seem to mind to step on congress's toes. 
>>However congress also doesn't seem to mind to taking bribes.  I don't think 
>>that congress will do anything if the CTEA gets struck down, unless the 
>>court hints that the maximum limit is something like 10 years, on which the 
>>mpaa will lobby congress to set a new limit to 20 years, because I don't 
>>think that the court will be interested in a 10 year difference.  I do think 
>>that if we get a new round of lawsuits, which pose the question if 50 years 
>>or so is too long for software, the court will again take the case.  You 
>>shouldn't forget that the USSC is politisized, however they do like to 
>>pretend that they follow an ideology, in this case they can actually follow 
>>the constitution without having any bad consequences (like letting loose 
>>murderers because the police screwed up)
> 
> 
> If the USSC strikes down the CTEA, they probably won't do
> it by mandating a judicial replacement term, they'll just
> whack the act(s) that extended the term.  Since (IIRC)
> the fundamentals of copyright haven't been reviewed for
> a century or more, they *could* whack back almost to the
> 28-year terms of the 19th century.
> 
> I don't think they will, though, for several reasons.
> First, because of their strong inclination to defer
> to Congress except when Congress goes /way/ over the
> line.  Second, because the older (certainly pre-1976)
> law had acquired a certain respect from time alone;
> there is an argument that if it had been badly broken
> it would have been challenged sooner, and the Court
> doesn't like to mess with what ain't broken.
> 
> Not that they don't, mind.  /Brown/ /vs./ /Board/ /of/
> /Education/ overturned a lot of long-settled law, too.
> That is, of course, the jackpot that we're hoping for:
> that the Court decides to open the fundamental issue
> of copyright as social contract rather than windfall
> harvest for those lucky enough to be sitting on a
> goldmine.
>