Category Archives: eldred.cc

After some questions by readers, and suggestions by friends, Jason Schultz has produced his final report about the effect of invalidating the 1976 Copyright Act’s extension of copyrights. Bottom line: more support for the public domain. Continue reading →

Jason Schultz has done more amazing work calculating any “chaos” that would come from striking the 1976 Act. Using the Internet Movie Database, he confirmed the Copyright Office’s numbers that about 37,000 movies were released in the period 1927-46. (IMDb reports 36,386). Of those, only 2,480 are currently available in any format, or 6.8%. 93.2% of the films during that period are are commercially dormant. Another way to put this: Jack Valenti’s crowd says exclusive rights are the only way to assure content gets distributed. So we have a nice experiment: For the films between 1927-46, exclusive rights fails to make available 93.2% of the content produced. Does anyone really doubt the public domain would do better? Jason’s email is here. Continue reading →

In an otherwise great piece for CNET (not run on his list), Declan reported last week that Judge Posner expressed skepticism about expanding IP rights, and that he “praised [me] for challenging the CTEA.” Declan’s a careful reporter, but there is exactly zero chance that Posner said that. Whatever his views about the economic merits of the Sonny Bono Act, federal judges (and especially this seasoned and careful federal judge) don’t go around expressing personal views about the merits of pending lawsuits. Continue reading →

In Eldred v. Ashcroft, we challenged the 1998 Sonny Bono Copyright Term Extension Act. During oral argument, the Court asked whether our rule would affect the 1976 Act’s extension. Though this issue had not been briefed, we indicated that it would, but that the Court’s own caselaw gave it a way to strike the 1998 Act without striking the 1976 Act.

Justice Bryer in particular was concerned about the effect on contracts entered into in reliance on the 1976 Act. His view seemed to be that there would be “chaos” if those contracts were invalidated.

Jason Schultz of Fish and Richardson and Deirdre Mulligan of the Berkeley Center for Law and Technology (both of whom worked on a great amicus brief in the case) have now looked at the numbers. Their work is great, and the numbers surprising. See the chart on books here and the brief analysis here. Bottom line: a surprisingly small amount of work would be affected. Continue reading →

The Right on Eldred. See here. Continue reading →

I’m trying to think about other things, but when my Dad won’t stop sending me articles about the case, it gets hard. Today he sent me this piece by Professor Marci Hamilton which concludes that “Mickey has the better of the argument.” But I wonder whether Mickey would have the better argument if the real arguments that we make are considered…. Continue reading →

Aaron makes the nice point that there should be an analog to “fair use” in the context of patent law. This is actually a point explored by a number of legal scholars, most extensively by Maureen A. O’Rourke in a 2000 paper that does not seem to be online. But he grounds his claim on the “the conflict between these two have, in copyright at least, traditionally been resolved by the concept of ‘fair use.'” Not true, or better, that’s government speak. “Fair use” is one mediating device between the First Amendment and copyright. The Court has never held, and… Continue reading →

Dennis Karjala has been fighting copyright term extensions just about as long as anyone. His wonderful page has some of the best material from the beginning of this battle through the case in the Supreme Court. Check out the letter from artist Daryl Hanson about the effects of CTEA on his ability to create…. Continue reading →

Aaron points to a wonderful page by John Mark Ockerbloom at the University of Pennsylvania listing books that are in the public domain elsewhere but not, because of the Copyright Term Extension Act, in the United States. Check out the books you are not allowed to download. Makes me proud to be an alum…. Continue reading →

I’ve just finished replying to the more than 500 emails I received about the Eldred case. Despite my con-law musings, it is extraordinarily hard to read these emails without a profound sense of just what’s at stake. Missive after missive describes the burden of the existing system, and how 20 more years of control will stifle creative work. These half-a-thousand emails should be worth one word at least — REVERSED. In a bunch of these emails, however, there were two recurring questions that I wanted to clarify…. Continue reading →