{"id":2731,"date":"2003-01-21T01:06:19","date_gmt":"2003-01-21T08:06:19","guid":{"rendered":"http:\/\/mossback.org\/archives\/2003\/01\/underlying-issues-in-eldred\/"},"modified":"2003-01-21T01:06:19","modified_gmt":"2003-01-21T08:06:19","slug":"underlying-issues-in-eldred","status":"publish","type":"post","link":"https:\/\/bennett.com\/blog\/2003\/01\/21\/underlying-issues-in-eldred\/","title":{"rendered":"Underlying issues in Eldred"},"content":{"rendered":"

\t\t\t\tWriting on the American Open Technology Consortium blog,<\/a> Doc Seals analyzes the Eldred case in terms of legal, political, and metaphorical impact:<\/p>\n

\nThe third is metaphorical. I believe Hollywood won because they have successfully repositioned copyright as a property issue. In other words, they successfully urged the world to understand copyright in terms of property. Copyright = property may not be accurate in a strict legal sense, but it still makes common sense, even to the Supreme Court. Here’s how Richard Bennett puts it: <\/p>\n

The issue here isn’t enumeration, or the ability of Congress to pass laws of national scope regarding copyright; the copyright power is clearly enumerated in the Constitution. The issue, at least for the conservative justices who sided with the majority is more likely the protection of property rights. In order to argue against that, Lessig would have had to argue for a communal property right that was put at odds with the individual property right of the copyright holder, and even that would be thin skating at best. So the Supremes did the only possible thing with respect to property rights and the clearly enumerated power the Constitution gives Congress to protect copyright. <\/p><\/blockquote>\n

Watch the language. While the one side talks about licenses with verbs like copy, distribute, play, share and perform, the other side talks about rights with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate, infringe, and steal.\n<\/p><\/blockquote>\n

While it’s always nice to see yourself quoted, I think this analysis is overly complex. Copyright law is simply a Congressional prerogative, according to the clear language of the Constitution. It’s an area of law in which there has been very little litigation, so case law must defer to the black-letter law emanating from Washington unless or until there’s a gross overstepping of authority in the part of Congress, and simply extending the term from n years to n + 20 doesn’t hit that mark.<\/p>\n

The proper venue for modification of copyright law is Congress, not the courts, and it’s more than a little interesting to speculate about what might have happened if the effort spent on the Eldred case had been instead directed to lobbying Congress for the last four years. <\/p>\n

In some sense, Hollywood benefits from a robust public domain at least as much – and probably more – than the public, as has been noted in many of the denunciations of the apparent hypocrisy of Disney building its empire largely on the backs of public domain stories.<\/p>\n

A compromise that keeps the public domain growing by the absorption of works of little commercial value while protecting Mickey Mouse for the Disney Corp. isn’t a hard thing to work out politically, and that’s the direction that public domain advocates should be headed, according to the dissenting opinions in Eldred in particular.<\/p>\n

The irony of this case is that the public domain advocates, to a man strong believers in democracy, chose to press the issue before the least democratic branch of government when the path to success leads through the most democratic branch, the legislative. But lobbying is a messy business, and lawsuits are crisp, clear, and final.\t\t<\/p>\n","protected":false},"excerpt":{"rendered":"

Writing on the American Open Technology Consortium blog, Doc Seals analyzes the Eldred case in terms of legal, political, and metaphorical impact: The third is metaphorical. I believe Hollywood won because they have successfully repositioned copyright as a property issue. In other words, they successfully urged the world to understand copyright in terms of property. … Continue reading “Underlying issues in Eldred”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[16],"tags":[],"class_list":["post-2731","post","type-post","status-publish","format-standard","hentry","category-politics"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/pbifyw-I3","_links":{"self":[{"href":"https:\/\/bennett.com\/blog\/wp-json\/wp\/v2\/posts\/2731","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/bennett.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/bennett.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/bennett.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/bennett.com\/blog\/wp-json\/wp\/v2\/comments?post=2731"}],"version-history":[{"count":0,"href":"https:\/\/bennett.com\/blog\/wp-json\/wp\/v2\/posts\/2731\/revisions"}],"wp:attachment":[{"href":"https:\/\/bennett.com\/blog\/wp-json\/wp\/v2\/media?parent=2731"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/bennett.com\/blog\/wp-json\/wp\/v2\/categories?post=2731"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/bennett.com\/blog\/wp-json\/wp\/v2\/tags?post=2731"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}