Re: [dvd-discuss] Golan v Ashcroft: to "Secure for limited times"

[microlenz(at)earthlink.net]

I read Golan v. Ashcroft over breakfast this morning. It is quite 
devastating. In Eldred v. Ashcroft, the court can dance around the 
issue of damages but not in Golan.The Ps have already suffered 
demonstratable damages already. The damages are clearly 
FINANCIAL as well as substantive (so the "where's the beef?" 
Ashcroft argument is PBS).  I don't want this to sound cynical but 
this case is almost a posterchild for the evils of copyright 
extension. My guess is that the courts may perform the same 
dance WRT to the SB/MM Extension Act and not accept the .002 
interpretation of limited times does not mean merely finite. They 
may compromise and rule that the term extension is valid  for 
works published before the enactment of the act (and may have to 
take judicial note that they should have done this in the 11 previous 
extensions but since the times were so short, the matter would 
right itself before the matter could get to the USSC.)

Actually one thing puzzled me is the fact that Golan v Ahscroft 
didn't make use of the fact the limited times are for authors. One 
can argue that an term extension to a copyright that is held by the 
AUTHOR might possibly be constitutional (I will NOT. An extension 
gratis does not promote progress PERIOD. AN extension that 
required the authors to republish or take a tax break on giving it to 
the public domain MAYBE but GRATIS. NFW). By the wording in 
the constitution, an extension granted to the holder of a copyright 
that is not the original author is unconstitutional. The argument that 
the large monopolies and trusts can dispense patronage as the pre 
Statute of Anne booksellers did is PBS.



> > The meaning and interpretation of "limited" was what I was
> > grappling with (not successfully ) a few months ago with the
> > question regarding why copyright terms had to be uniform.
> 
> The Golan v Ashcroft reply brief has an argument relating
> to the "limited times" issue that I don't recall having been made
> explicitly in Eldred:
> 
> http://cyber.law.harvard.edu/openlaw/golanvashcroft/golan-reply.html
> 
>   The government’s view of “limited Times” ... also undermines any
>   notion that Congress has “secur[ed]” copyrights “for limited Times.”
>   The Framers were quite specific that Congress must “secur[e] for
>   limited Times” – in other words,  not just to provide, [FN 12] to
>   establish, [FN 13]  or to grant [FN 14]  for limited Times, but to
>   secure for limited Times. The verb to “secure” means “to make
>   certain.” Oxford English  Dictionary 852 (2d ed. 1989) (“to make
>   secure or certain”); see Wheaton v. Peters, 33 U.S. at 660 (“secure”
>   means “to protect, insure, save, ascertain, etc”).  ...
> 
>   ... The only way Congress can “secure for limited Times”
>   copyrights is to enact limited terms of copyright that are certain
>   and unchanging over time. Although Congress may alter the term of
>   copyrights, it may only do so prospectively. For a term of an
>   existing copyright that changes over time is, by no means, secured
>   or certain. Quite the opposite: if the terms of existing copyrights
>   keep changing – as it has 11 eleven times in the past 40 years – and
>   is always subject to further change by Congress (as the government
>   argues), those terms are insecure.
> 
> 
>