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Re: [dvd-discuss] Eldred Amicus



I don't think that the court will give a precise answer to what 'limited 
times' are, since no one seems to have given them any detailed information 
as to how they would decide that.  Plaintiffs only say, that constant 
extending isn't limited any more, but they, nor amici say that eg. 28 or 5 
or 10 years is limited and why eg. life expectancy, speed of distribution, 
... . Even the economists amici, altough they say that long terms are 
economically not right, don't say what a proper term could be.  Since 
nothing specific has been offered, I don't think the court will just figure 
out something by itself.  I think a chance has been missed here...


>From: "Michael A Rolenz" <Michael.A.Rolenz@aero.org>
>Reply-To: dvd-discuss@eon.law.harvard.edu
>To: dvd-discuss@eon.law.harvard.edu
>Subject: [dvd-discuss] Eldred Amicus Date: Fri, 24 May 2002 13:27:03 -0700
>
>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


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