Re: [dvd-discuss] Eldred v. Ashcroft Accepted forReviewbySCOTUS

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

I believe that the USSC has ruled that treaties may not violate the 
Constitution. WRT to the BERNE convention I suspect few in the last 30 yrs 
have considered that. I suspect that those who revised US law in 1909 did 
since they chose to NOT implement the Berne Convention.

Your comments on "contemporary" are interesting. The whole notion of the 
lifetime of the media is something that has not been considered either. If 
the media is not contemporary enough, the works can't enter the public 
domain..or be useful. Yep....all them old pianny rolls are in the public 
domain but just try and find a pianny player to play them on (although one 
could probably OMR (optical music recognition) them and play them on a 
synthesizer with a bit of work....now here's a wierd thought...a piano 
player roll is a set of functional instructions to reproduce the playing 
of someone on a player piano...it's FUNCTIONAL!)

That's another good point "It will be amazing if these works are ever 
preserved or
reintegrated into our cultural memory because of the long terms --
tragic and the exact opposite of "promote progress"." This is a part of 
the history of cultures that is being denied by long terms. Copyright term 
as the creator of a fragmented and disjoint culture because people have no 
easy access to the past. WONDERFUL progress.

I don't think that people putting poetry in a computer mask is much of an 
issue (take a look at some of the files that microsoft products create. 
You can't tell me that somebody didn't spend a lot of time creating a 
perfect disk of FF inside a square of 00s in my hex editor). The question 
was meant that if even a 14yr term is too large for some things such as 
computer masks. If so, then copyright is NOT the proper means of 
protection.

Actually, that's the whole problem with our current protections for 
"intellectual property" what's being protected must be worth the effort to 
protect it. Is protecting Starbuck's coffee cup sleeve worth the 
benefit.(NADA). Is protecting the original Pentium with its division 
problem worth the protection? Is ANYTHING worth protecting for 120 yrs? 
But if things ARE going to be protected for 14,28 or 42 yrs they had 
better be worth it. 

BTW the requirement for copyright renewal by a positive act (reapplying 
and paying the fee) was a stroke of genius. If the creator doesn't think 
the thing is worth it, why should the rest of us support it for a renewal 
term.




"John Zulauf" <johnzu@ia.nsc.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
02/20/02 08:53 AM
Please respond to dvd-discuss

 
        To:     dvd-discuss@eon.law.harvard.edu
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        Subject:        Re: [dvd-discuss] Eldred v. Ashcroft Accepted forReviewbySCOTUS




microlenz@earthlink.net wrote:

 
> The Berne convention is antipodal
> to having a public domain and so contradicts the requirement for limited
> times (one can't have a limted time if one cannot objectively or simply
> determine just what that is)

Have laws based on implementing Berne ever been challenged on that
grounds?  If Eldred is granted standing to challenge CTEA by SCOTUS (and
given and "no more restrictive than necessary" "promotes progress"
framework for the lower court to rule on...) then a follow up challenge
on the "limited times"  (as opposed to "promotes progress") basis to (a)
the ratification of the Berne treaty (surely it is unconstitutional to
adopt treaties which violate the limitations on the Congress and (b) any
and all laws need to implement the Berne Treaty.  Given the above
argument (that a public domain cannot function if the limited times
cannot be determined by a "reasonable man" ) then all Berne Treaty (and
subsequent) based laws should be eminently challengable.


> > (b) a strong public domain requires inclusion of meaningful 
contemporary
> > content

by contemporary I mean two things:

(1) Works in contemporary media (such as film (color talkies!), video,
audio recording and the like) -- of which their are nearly ZERO today in
the public domain.

(2) Works which have relevance to the current adult population (my
"works inspiring children must be free for their use within the core of
their adult productivity argument 45-15 = 30yrs max) 

BTW have you noticed that all of the "modern remixes" of older works
used for background music to the Olympic skating have been PD derived. 
We are LOSING a whole generation of works that could be revived and
revised (Golden Age Jazz, Big band, etc.) to the restriction of long
terms.  It will be amazing if these works are ever preserved or
reintegrated into our cultural memory because of the long terms --
tragic and the exact opposite of "promote progress".


> Literaly works are deserving of long
> periods because their worth may not be appreciated early one and they 
are
> less functional than other copyright items. Computer masks, software. I
> don't even think 14 yrs is short enough! The question is not how long 
but
> how short!

The copyright clause is about promoting progress, not maximizing
return.  Having a variable term for works copyrights will only lead to
adding poetry to masks and software to classify it as literary. 
(Actually one shudders at the sort of original poetry that will result
in the headers and masks.)

Really -- a uniform term (and a publication or escrow requirement for
"source" material) is what we need. 

By "source material" in mean, source code, CAD modeling files (for
example, what will happen to the original CG models for Star Wars, LOTR
and the like).  When an automated derivative work (a binary or a
rendering) of a source work is granted copyright.  There should be a
publication or at least a secure "escrow" of the source material. 
Various great movie creatures (which are really unpublished
works-for-hire) are moldering on sys-admin shelves waiting for the day
(in the near future) when the tape delaminates, or somebody decides to
throw away all this "old junk".  As someone who lived the 3D revolution
in the media -- losing these originals would be like burning
Rembrandts. 

As for software,  with the source unpublished, none of the source work
is promoting progress yet it is granted copyright protection.  Escrowing
the source serves two important purposes copyright, patent and antitrust
suits have the right to discovery of the exact source comprise the base
work for the published work.  Without this, stolen code (as was the case
in a recent e-CAD lawsuit) can lurk for years without detection.  Also,
granting a new copyright on a "mechanically derived" work (compilers are
not authors) -- requires more than "trust me... it's all new." Further,
any software patents (evil, but extant) suits need to be able to examine
the actual implementation.  Finally, the evolution of the escrowed
source may be critical in determining "intent" in antitrust suits.  As
secure escrow can protected trade secrets -- however a publication
requirement of source may actually REDUCE software piracy.  How you
ask?  If everyone publishes, then it is easy to scan your competitions
code to ensure none of it was stolen from you -- and vice versa. 
(actually a whole industry will arise to create and detect automagically
munged and stolen code -- but if the code mungers have to publish
*their* source ...



> 
> (f) - Copyright is a social contract codified as a set of laws. 

This of course is the BIG disconnect and the BIG lie.  To listen to
Congress you would think that the purpose of copyright was to maintain
the business models and maximize the profits of "intellectual property
holders." Protecting them from all possible diminution, and trembling
with fear that if "we the people" don't acquiesce to their every demand
they will take their ball and run home -- leaving our Borders and
Blockbuster bare of their bounteous blessings --- BAH!

The fact of the matter is that publisher need to publish to make money. 
They'd LIKE to have extra monopoly rents -- but lacking them will not
send them out of business or to the poor house.


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