Category Archives: eldred.cc

So I’ve gotten tons of mail from people who have taken up the challenge to spread the idea of the Eldred Act. I’ll be reporting on this feedback over time. Christopher Kantarjiev sent a letter to Congresswoman Eshoo (CA, Democrat) who represents Stanford. Here’s her reply:

> Thank you for your e-mail about the U.S. Supreme Court’s decision to
> uphold the constitutionality of the Sonny Bono Copyright Term Extension
> Act (CTEA), which adds 20 years to the terms of existing and future
> copyrights.
>
> The case of Eldred v. Ashcroft challenged the constitutionality of CTEA,
> charging that CTEA fails constitutional review under both the Copyright
> Clause’s “limited times” prescription and the First Amendment’s free
> speech guarantee. The framers of the Constitution wanted to promote
> science and arts by allowing Congress to grant exclusive rights to
> creations “for limited times.” Congress has extended this period
> gradually over time and the Court held that Congress acted within its
> authority and did not transgress Constitutional limitations when it passed
> CTEA.
>
> While I appreciate the importance of the public domain and I remain
> dedicated to preserving such fundamental rights as freedom of speech and
> freedom of the press, I do believe that Congress must also act to ensure
> the international protection of copyrighted works. We must balance the
> tensions between these two sets of interests carefully.
>
> As you mentioned in your email, one possible compromise is the Eric Eldred
> Act, which takes a common sense approach to move unused copyrighted work
> with no continuing commercial value into the public domain. The Eric
> Eldred Act has not yet been introduced in the Congress, but I shall
> continue to monitor this issue, keeping your important thoughts in mind.
>
>
> If you have any other questions or comments, let me hear from you. I
> always appreciate hearing from my constituents and ask that you continue
> to inform me on issues you care about. I need your thoughts and benefit
> from your ideas.
>
>
> Sincerely,
>
> Anna G. Eshoo
> Member of Congress

“common sense” — I count that as good news. Keep those letter going… Continue reading →

About a month ago, I started sounding optimistic about getting a bill introduced into Congress to help right the wrong of the Sonny Bono Copyright Term Extension Act. I was optimistic because we had found a congressperson who was willing to introduce the bill. But after pressure from lobbyists, that is no longer clear. And so we need help to counter that pressure, and to find a sponsor.

The idea is a simple one: Fifty years after a work has been published, the copyright owner must pay a $1 maintanence fee. If the copyright owner pays the fee, then the copyright continues. If the owner fails to pay the fee, the work passes into the public domain. Based on historical precedent, we expect 98% of copyrighted works would pass into the public domain after just 50 years. They could keep Mickey for as long as Congress lets them. But we would get a public domain.

The need for even this tiny compromise is becoming clearer each day. Stanford’s library, for example, has announced a digitization project to digitize books. They have technology that can scan 1,000 pages an hour. They are chafing for the opportunity to scan books that are no longer commercially available, but that under current law remain under copyright. If this proposal passed, 98% of books just 50 years old could be scanned and posted for free on the Internet.

Stanford is not alone. This has long been a passion of Brewster Kahle and his Internet Archive, as well as many others. Yet because of current copyright regulation, these projects — that would lower the cost of libraries dramatically, and spread knowledge broadly — cannot go forward. The costs of clearing the rights to makes these works available is extraordinarily high.

Yet the lobbyists are fighting even this tiny compromise. The public domain is competition for them. They will fight this competition. And so long as they have the lobbyists, and the rest of the world remains silent, they will win.

We need to your help to resist this now. At this stage, all that we need is one congressperson to introduce the proposal. Whether you call it the Copyright Term Deregulation Act, or the Public Domain Enhancement Act, doesn’t matter. What matters is finding a sponsor, so we can begin to show the world just how extreme this debate has become: They have already gotten a 20 year extension of all copyrights just so 2% can benefit; and now they object to paying just $1 for that benefit, so that no one else might compete with them.

If you believe this is wrong, here are two things you can do: (1) Write your Representative and Senator, and ask them to be the first to introduce this statute; point them to the website http://eldred.cc, and ask them to respond. And even more importantly, (2) blog this request, so that others who think about these issues can get involved in the conversation.

I have given this movement as much as I can over the past four years, and I will not stop until we have reclaimed the public domain. Stay tuned for more litigation, and more ideas from Creative Commons. But please take these two steps now. Continue reading →

The Mexican Congress is about to consider a revision to its copyright law. Among it many changes, the law will extend the term of copyright from life-plus-70 to life-plus-100. (And no doubt thus beginning yet another cycle of “harmonization” around the world.) Worse, at the end of the copyright term, the government has the right to charge royalties for works in the “public domain.”

This is apparently something new for government regulators. Usually governments nationalize first, and then (and as a result) kill the industry nationalized. Mexico plans to innovate on this pattern: kill the public domain first, and then nationalize after.

The insanity in this system is astonishing. But here’s the message Mexico has got to understand: it will be easier for Mexicans to consume Hollywood content over the next 150 years than it will be for Mexicans to cultivate and preserve their own culture. Is promoting Hollywood really what the Mexican Congress is for? Continue reading →

So I received a copy of the March 31 issue of Forbes with a note from the editor in chief: “You might be interested in one Continue reading →

Orin Kerr is a careful and powerful critic (in the good sense of that term) of much in the law of cyberspace. He has posted a careful and powerful criticism of my post yesterday. So too have others. But the line I agree with most strongly in Orin’s post is: “the public domain will be best served if Eldred is treated as a launching point for legislative reform, not an example of judicial foul play.”

Agreed. And as I’m the least qualified person to comment on the matter (as I’m the most biased person who has a view on the matter), my efforts are devoted to the future, not this past. My claim was not “foul play” or, as others have said, “corruption.” It was instead the sort of criticism that one can only make of an institution one respects: consistency. The obligations of consistency about principle across cases extend at least to those justices who believe in the principle. They don’t extend to justices who have dissented from the principle. Thus the burden or justifying and distinguishing Lopez falls on those who signed the Lopez/Morrison opinions. The other four (three of whom wrote the opinions in this case) are not, in my view, bound by that principle to say anything.

The point is not that a distinction couldn’t be drawn. The point is that they didn’t draw it. And the point is not that the Court must respond to every argument an advocate makes. But when two federal judges frame their dissent on the basis of a principle that also frames the petition upon which cert was granted, a certain decency would suggest something more than silence.

But I leave it to others to resolve the ethics of judicial principle as they apply to this case. There is lots of work to do that will matter much more. Continue reading →

So as the cruel master of fate would have it, on the day that the Eldred case officially ended, I was at Disney World. I was tricked into going to Disney World. I thought the conference was “in Orlando.” But Orlando has apparently morphed into Disney World, and so when yesterday the Court refused a request to rehear the case (totally expected), I learned the news while drinking coffee from a Mickey mug.

With that decision, a self-imposed silence about these things ends too. I accepted this silence after a respectful but strong rebuke by a friend. He objected that it was wrong for me to suggest that “the silent five” were acting without principle. I disagree. I do believe their decision lacked principle, but I also see that it was right to complain about the context within which I was making that charge.

So we filed a petition to rehear the case that made the claim of principle in as careful and balanced a way as possible. Again, such petitions are never granted any more. But if there is a place to express such criticism, respectful of the institution and tradition that these justices serve, it was in this form, without the pressure of publicity.

This stage is now over. I apologize for the silence. More hopeful stuff soon. Continue reading →

Have called for a 14 year copyright term, renewable once. Talk about changing the debate. Continue reading →

There’s a growing and interesting thread at the Volokh Conspiracy about the Lopez argument that we made. Glenn Reynolds had a sensible post on the tension between strict constructionists (or as I have called it, the silent 5) and the result in Eldred. Juan non-Volokh agrees, disagreeing with Orin Kerr.

Orin argues that Lopez/Morrison were federalism cases; Eldred was clearly not. That’s no doubt true, but missing from the opinion in Eldred is an explanation why enumerated powers get limited in the context of federalism, but not elsewhere. Judge Sentelle couldn’t find such a reason. Maybe there is one. But the principle that would justify limiting power in one context but not in another should have been articulated.

But Juan says that the “strict textualist argument” that Glenn advanced was not advanced by us. He says this argument was Erik Jaffe‘s. It is true that Jaffee made this argument in the Court of Appeals. But it is not true that we failed to make a strict constructionist argument in the Supreme Court. Indeed, a section of our brief expressly argues that the “grant of power” was the “to promote progress” clause, and that that clause is not a “preamble.”

The only difference between Jaffe’s position and ours was that Jaffe’s would have authorized a court to evaluate any copyright act to test whether it “promoted the progress of science.” We thought that was too aggressive a position to take (on at least this point we were right!). Our argument instead was simply that the grant of power must at least be used to interpret the scope of “limited times.” That while it was not an independent substantive constraint, it should be used to interpret the scope of the power. This is more “textualist” than Lopez itself: Lopez grounds its reductio on a background view about federalism; we grounded our reductio on a view about “to promote the progress of science.”

Eugene passes on Eugene Kontorovich’s view that this case was really about original-congress interpretations — that the silent 5 could vote as they did because they were simply ratifying what the original congress did. That is indeed the most charitable read, though again, it is just bad history. Abstracting the fact that in 1792 the framers had not yet fixed on what it would mean for a law to be unconstitutional, in 1790, there is zero evidence that the framers would have believed the extension of an existing term was within Congress’s power. For the reasons argued extensively by the historians, Stevens, and us in our brief, the 1790 Act was not that. Thus it may well be that this case was all about one-step originalism. But on that basis, it was poorly reasoned. Continue reading →

I’ve posted an Eric Eldred Act FAQ. Continue reading →

Among the hundreds who have written, Kevin Kelly writes “[y]our stand before the court will only be a failure if we fail to follow through with what is next.” Many more ask, “what can we do next.”

Here is something you can do right now. In this NYT op-ed, I describe a proposal that would move more work into the public domain than a total victory in the Supreme Court would have. The basic idea is this: 50 years after a work has been “published,” a copyright owner would be required to pay a copyright tax. That tax should be extremely low–this proposal says $50, but it could be $1. If the copyright holder does not pay the tax for 3 years, then the work is forfeit to the public domain. If the copyright holder does pay the tax, then its contacting agent would be made a matter of public record. Very quickly we would have a cheap, searchable record, of what work is controlled and what work is free.

If Justice Breyer is right that only 2% of the work from the initial period affected by the Sonny Bono Act continues to have any commercial value at all, then this proposal would mean that all but 2% will move into the public domain within three years. And as the proposal applies to all work that is more than 50 years old, it would apply to a much larger range of work than would have been affected had we prevailed in the Supreme Court. This could give us (almost) everything we wante–98% of the public domain that our framers intended. Not bad for government work.

Of course it would not give us everything. Mickey would not be free. Nor would any of the works that led Congress to pass the Sonny Bono Act in the first place be free.

But without an amendment to the Constitution, or a revolution in Congress, there is nothing we can do about that now. The key now, as Kelly wrote, is “to follow through with what is next.” This bridge–between those who want copyright to be forever, and those who want a public domain–should be next.

If enough join this next campaign, then unlike the last, our numbers will matter. Congress counts more votes than five. They race to the reasonable position. Where there is no continuing commercial use of a published copyrighted work at all, then what possible reason could there be for continuing to lock it up?

There is a FAQ about the proposal that will be updated to reflect great questions raised by many.

Read it, and think. And if you agree, then please, do something about it. Write your congressman or congresswoman. Donate via PayPal to [email protected] to help us spread the idea.

And most importantly, write about it in this space. My teacher Dave is right about many things. He is certainly right that the future of begins here. Continue reading →