Re: The Era of Perpetual Copyright

From: Calle Østergaard - Troll Company <info[_at_]troll-company.dk>
Date: Wed, 22 Jan 2003 10:33:55 +0100

Anyone like to sound an opinion on the effect of Eldred on the Golan v Ashcroft case ??

Calle Østergaard  

• Original Message ----- From: Peter Suber To: Multiple recipients of list Sent: Tuesday, January 21, 2003 7:10 PM Subject: RE: The Era of Perpetual Copyright

  At 08:04 AM 1/20/2003 -0500, you wrote:

    At 09:29 AM 1/17/03 +0000, Edward Barrow wrote:

      I have no doubt that in 2019 or thereabouts, Disney and others will push
      for a further term extension. But, in a democracy, it is up to those who
      would oppose such a thing, to ensure that it would be political suicide for
      a congressperson to support such a claim.

    This is quite correct, but one needn't wait till then. Since Congress now has unfettered power to enlarge existing copyrights, surely they have the same power to repeal the extensions. A tougher battle, to be sure, but it certainly conditions the environment.

    Vance R. Koven, Senior Attorney
    Comverse, Inc.
    100 Quannapowitt Parkway
    Wakefield, MA 01880 USA
+1 781-224-8523 (vox humana)
+1 781-224-8144 (fax mechanica)

  I agree with Vance that we shouldn't wait to start influencing Congress.

  But I'm not sure that I agree that Ginsburg's opinion gives Congress an unfettered power to extend the term of copyrights. She said that there is no evidence in this case that Congress is pursuing perpetual copyrights on the installment plan. But she strongly hinted that if there were such evidence, then deference to Congress would have to end. But in the absence of such evidence, we look only for something like a rational basis for term extensions, which in this case she found in the desire to harmonize with the EU.

  I'm not sure what would even count as evidence that future term extensions were part of a design to pursue perpetual copyrights on the installment plan. So this may be a very abstract and evanescent limitation on Congressional power. But as I read the case, it's essential to Ginsburg's way of taking the "limited times" clause seriously.

  If Congress continues to extend copyright terms one chunk at a time without mentioning its desires for the future, then we'll never have the kind of evidence that would trigger the Ginsburg test. If Congress can avoid triggering the test by using one formula of words rather than another, then Ginsburg has given Congress a way to overcome the limitation on its power that she pretends to recognize.

  If this abstract limitation on Congressional power can never be made concrete, then perhaps a future plaintiff could argue that the constitution requires us to find a more substantial way to take the "limited times" clause seriously, or at least to save it from vacuity.

  Meantime, work on Congress.

       Peter

---

  Peter Suber, Professor of Philosophy
  Earlham College, Richmond, Indiana, 47374   Email peters[_at_]earlham.edu
  Web http://www.earlham.edu/~peters

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  http://www.earlham.edu/~peters/fos/fosblog.html Received on Wed Jan 22 2003 - 09:23:42 GMT