[dvd-discuss]More Thoughts on USSC Eldred Arguments

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

In rereading the transcript, I noticed that the question came up about how 
if they invalidate the CTEA, then what happens to the 1976 copyright act? 
Lessig pointed out that it was not an issue under discussion. While I 
don't like this answer, it does address the question. As with the 1790 
copyright act, it does not set precedence - only procedure. In the 1790, 
the copyright act was creating a new copyright system. Compromises had to 
be made for the new procedures to begin. The SG's arguments that attempt 
to use the 1790 as justification for acts done 208yrs latter are specious. 
Similarly, the 1976 copyright act also does not set precedence only 
procedure. The 1976 act changed the fundamental approach to copyright in 
the USA by joining the Berne Convention (of 1876 and an approach more 
ill-suited to the needs of copyright in the 21st century). In an attempt 
to be equitable, terms were extended numerous times (9 ?) as a matter of 
compromise and to aid in the change over  to the new process of copyright. 
That does not set precedence for further changes. The expediency of 1790 
and 1976 do not set precedence.

The SG made some interesting remarks about the Statute of Anne and 
attempting to tie the distribution of copyright into the clause itself. 
This is rather amazing since there is no mention of the distribution of 
copyright material in the Consititution. The government must adopt the 
least restrictive approach to forstering that end . But the Statute of 
Anne also does not bolster his position since it was a statute designed to 
ELIMINATE a monopoly on distribution which is precisely the opposite of 
what the SG was advocating.