Re: [dvd-discuss] Eldred Amicus

[Seth Johnson <seth.johnson(at)realmeasures.dyndns.org>]

Yes, and I think the Eldred petitioners would do well to be
very specific about this.  In my opinion, the second
question they are presenting (besides the term extension
question), on the statement of the Appeals Court
categorically excluding First Amendment considerations, is a
aleeping bear.  If the Justices remand on that question,
copyright lawyers and legislators will no longer be able to
set aside consideration of the First Amendment so easily
when enacting and interpreting exclusive rights
legislation.  We are in a position now (in terms of
information and communications technology) wherein we can no
longer simply correlate the idea/expression dichotomy with
free speech and public discourse on one hand, and exclusive
rights on the other.

By specifically posing the question of the public interest,
framing their substantive points about how to construct the
meaning and purpose of the exclusive rights clause (for
limited times due to our founding fathers' abhorrence of
monopoly) within that rubric, the result might very well be
that we would end up with a Supreme Court pronouncement
specifically addressing the question of the public interest
per se, rather than the weighing of "stakeholder" interests
(other than the public's) that seems to characterize so much
of the deliberations in exclusive rights law and policy
these days.

Seth Johnson

Ernest Miller wrote:
> 
> One of the problems I have with "lifetime of the author" as part of a
> copyright term is that it tends to place emphasis on "natural rights" of
> the author as opposed to the public as SJ writes below.
> 
> Seth Johnson wrote:
> > I think the key here is to emphasize that exclusive rights
> > need to be granted or denied by Congress with attention to
> > the public interest, rather than solely in terms of the
> > personal interests of Authors and Inventors.  It's the
> > consideration of what's at stake for the rights of the
> > public that's been left out of consideration by Congress
> > throughout the history of exclusive rights legislation.  The
> > shorter the term, the better, because the very concept of
> > "exclusive rights" itself is striking increasingly wide of
> > the mark.
> >
> > Seth Johnson
> >
> > someone somewhere wrote:
> >
> >>>From: Jolley <tjolley@swbell.net>
> >>>Reply-To: dvd-discuss@eon.law.harvard.edu
> >>>To: dvd-discuss@eon.law.harvard.edu
> >>>Subject: Re: [dvd-discuss] Eldred Amicus
> >>>Date: Tue, 28 May 2002 22:20:01 -0500
> >>>
> >>>The answer for an upper limit could be in the constitution.
> >>>  ...by securing for limited Times to Authors...
> >>>Anything granted beyond an author's lifetime is being granted to
> >>>someone else.
> >>>
> >>
> >>If an author's lifetime would be the upper limit, then there's not much
> >>point to having 'limited times' in there. Then they could have just said :
> >>...by securing to Authors...
> >>
> >>_________________________________________________________________
> >>MSN Photos is the easiest way to share and print your photos:
> >>http://photos.msn.com/support/worldwide.aspx
> >
> >

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