Copyright Extension or Die!

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Oh, I guess you just had to be there.

Nick and I were going to record a show about the Public Domain and Golan v. Holder today, but his Internet is down. Right now we are planning interviews with CC Korea, CC Japan, CC South Africa, CC Nigeria, a few guys from C3S, Kat Walsh and Gurdonark, so who knows when that show will actually be recorded.

I did almost finish this prep article for it though, so I wanted to share and unless Google decides to close Blogger (please don't get any ideas), I can still refer you back to this article on Eldred v. Ashcroft.

I wanted to do an article on Eldred because in Golan Justice Ginsberg relies heavily upon it. Since Nick and I only have limited time when we sit down to do a recording, I thought a little background information would be useful. Both Eldred and Golan heavily discuss international law and for the most part that is not something I will be talking about today or when we do the Public Domain show. We have already discussed some issues in international law with Glyn Moody and with Manuel Godoy-Luque and if you were paying attention earlier, you saw the names of some African and Asian countries that are coming up.

Wikipedia already has a recap of Eldred v. Ashcroft and the text is freely available on Google Scholar. Thus, I was wondering what new information I could bring to light. What I thought might be best if I spent some time going back and briefly recapping the cases Eldred uses. In US law cases build on cases, which build on cases, which build on cases (and of course statutes and the Constitution). It would be silly to try to go back to the beginning and see the cases that the cases I mention below site and end up and the first recorded English cases. I do think it's worth going back a little ways though. If people find some of the cases I mention confusing, I can easily go back further.

The lawyer for Eldred in this case was of note for those interested in Creative Commons: Lawrence Lessig. This is a fact I did not know until doing research for this article. Also of note is that everyone's new favorite judge post-Apple decision, Richard Posner, weighed in in the decision.

US Constitution

The Constitution is obviously not a case, but it is important to understanding both Eldred and Golan. In Eldred, SCOTUS takes a literal view of the term "limited times". SCOTUS backs up this narrow view of the phrase by looking at previous copyright acts. In all previous copyright acts, as well as patent acts, when there was a term extension for future works, works currently under copyright always got the bump as well.

The First Amendment to the Constitution also plays a major role in the case, or rather, in Eldred's arguments. SCOTUS decides that because fair use is already built into copyright, there is no need to look further at First Amendment rights.

Harper and Row v. Nation Enterprise, SCOTUS

For those that want to see a strong fair use, Harper and Row is a disappointing case. The case holds that even 300 to 400 words of text from a 500-page book might not be considered fair use, even when the information is fact-based and about a public figure.

Fair Use is intensely fact-specific, so for music this case probably doesn't give us a lot of guidance, but it is fair warning that you need to be extremely cautious before proclaiming fair use if you plan on using your material for any sort of commercial gain, including advertising on a website.

Sony v. Universal, SCOTUS

Time for a history lesson, kids.

Q: What is a "Betamax"?
A: It's like VHS.

Q: What is VHS?
A: It's like a audio cassette...oh, nevermind.

Actually, it's probably important that you know what Betamax is because Sony v Universal may very well be the most important copyright case in existence (Google says it has been cited 6597 times). There's no doubt we are doing you a disservice if we don't talk about it. However, unless people want more, this may be the last time we talk about it on the blog for a while. The reason it's important to know what Betamax is is because it is the same reason we might not talk about it much here. The laws for music and video are very different. For example, there's the Cable Communications Act and two later acts.

Sony v Universal is important for file-sharing, which is why I think it might be the most important copyright case ever, but with Creative Commons sharing is always legal.

For the purposes of understanding Eldred, what we get from the Betamax case is that SCOTUS is deferential to Congress, which is a piece of information one could get from many cases.

While the case name is Sony v. Universal, it's important to not that perennial copyright douchebags, Disney, were none too pleased with the existence of Betamax.

Feist v. Rural Telephone Service Co., SCOTUS

On Thursday, I mentioned this case in relation to the copyright ability of facts. Here, we are a dealing with "originality". Even though old works are no longer original because they were made in the past, the Court says that Feist deals with the definition of "authors", not the definition of "limited times". Basically, one simply does not author facts.

Since music almost by definition creative, this is of limited value for us. However, it's important to note that you can write a song about phone numbers (or any other list of facts).

Graham v. John Deere Co. of Kansas City, SCOTUS

This is a patent case. The patent case is here not because patent law and copyright law are similar, but because they come from the same place in the constitution. If you want to dig into the patent stuff going on in Graham, you might want to read the older case Hotchkiss v. Greenwood too. Again, we can do that over at OSP if people are interested.

Graham states that the constitution places a limitation on Congress' grant of power. That's important because the US would not be able to ratify a treaty that, for example, gave infinite copyright.

Bonito Boats v. Thunder Craft Boats, SCOTUS

Bonito Boats is a case about preemption, a topic we've covered a little on the blog in the past. It's actually about *patent* preemption, so what's going on here? Eldred isn't a preemption case. However, the case does help answer the question of who holds the power when it comes to copyrights and patents: Congress. Again, the two are tied at the constitutional level, not the legislative level, and Eldred is a constitutional challenge to the 1998 extension. 

Turner Broadcasting v. FCC, SCOTUS

I included this one mostly because of the more recent FCC ruling, and thought people's awareness of that case might help people make connections. More prevalently than the Betamax case which I mentioned above, this case deals with telecommunications law. SCOTUS explicitly makes this distinction.


Let us know if you want that Public Domain audiocast. We can try to do it sooner rather than later if there is demand! For now, I hope you have some insight into Eldred. Make sure you read the synopsis on Wikipedia too!

Additional Resouces

Intellectual Property by Ghosh, et. al, pages 79, 239-254 (excerpted case with notes), 1181, 1182-1190 (excerpts from brief for amici curiae).