Is The Supreme Court Just Completely Out Of Touch On Digital Copyright Issues?

from the it's-possible dept

For most legal scholars, the Supreme Court's decision to uphold retroactive grants of copyright protection for formerly-public domain works in Golan v. Holder came as little surprise. The Court made it clear that it was doubling down on the framework set out in Eldred v. Ashcroft, largely deferring to Congress on these matters and giving wide latitude to what comports with the "traditional contours of copyright law." What received less attention in the decision was the Court's discussion of how a retroactive grant purportedly "promote[s] the progress of Science" as required by the Copyright Clause. And while it may seem like a largely academic point to some, the Court's handling of the issue may actually be symptomatic of a legal system whose scholarship and case law have yet to catch up with the market realities of the digital age (or worse, may be actively ignoring them for political purposes).

In a short six-paragraph discussion at Section II(C) of the majority opinion in Golan, the Court tackles the contention that copyright legislation only serves its Constitutional aims if it spurs the creation of new works (which a retroactive grant, applying only to works already in existence, obviously does not):
Nothing in the text of the Copyright Clause confines the "Progress of Science" exclusively to "incentives for creation." [Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323 (2002)], at 324, n. 5 (internal quotation marks omitted). Evidence from the founding, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science.
The reasoning here, which is fairly compelling, is that it's not enough for a work to merely be created -- for it to actually "promote the Progress of Science," it has to be made adequately available for public consumption. Historically, a grant of copyright would incentivize this by providing the opportunity for monopoly profits to offset the cost of wide retail distribution. Problematically for the Court, however, this arrangement is no longer the most effective means to distribute a work; The Internet Archive told the Court as much in its amicus brief for Eldred:
Jack Valenti, President of the Motion Picture Association of America once said: “A public domain work is an orphan. No one is responsible for its life…it becomes soiled and haggard…” Jessica Litman, Digital Copyright 77 (2001). Before digital technology, Valenti may have had an argument – one could argue that it was so expensive to store, reproduce, and distribute physical works that keeping them out of the public domain may have resulted in more availability than letting them in.

With digital technology, however, this argument can no longer stand. Indeed, even Valenti now agrees that digital technology possesses the capacity to makes flawless copies trivial and worldwide distribution instantaneous. This ease of publishing and distributing means that material in the public domain is universally available.
It seems logical that, in an age where cheap hosting/bandwidth and peer-to-peer services have all but eliminated the transactional costs of making work available online, the dissemination of public domain content would be most widely promoted by not allowing monopolist copyright holders to place conditions on their replication and distribution (monetary or otherwise). Yet the Eldred majority ignored this sea-change in distribution methodology, deferring to Congress's belief that increasing copyright protection "provide[s] copyright owners generally with the incentive to restore older works and further disseminate them to the public" -- a belief based on hearings held in 1997, when the Internet had less than 70 million users and Congress had no idea how far public domain distribution methodologies would come.

In fact, surveying the various authorities marshaled by the Supreme Court to link copyright law with promoting greater distribution of works, it is striking how little post-Internet thought has been taken into account. The only actual case cited by Golan for the Court’s proposition (aside from Eldred) is Harper & Row, Publishers, Inc. v. Nation Enterprises (1985), which not only predates the publicly-available Internet, but concerned balancing the monetary incentive for a copyright owner to distribute (right of first publication) with the efficacy of that distribution (fair use quotation) – an economic analysis tacitly admitting that dissemination is bolstered by removing copyright protection. Justice Breyer’s dissent in Eldred reinforces this distinction, explaining that the Copyright Clause “assumes that it is the disappearance of the monopoly grant, not its perpetuation, that will, on balance, promote the dissemination of works already in existence.”

If it seems odd that the Supreme Court put so little critical thought into what promotes the widest distribution of a work in the digital age, the second-to-last paragraph of Section II(C) in Golan may be instructive. There, the court reveals the true engine of its decision:
A well-functioning international copyright system would likely encourage the dissemination of existing and future works. See URAA Joint Hearing 189 (statement of Professor Perlmutter). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103-412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIAA); id., at 244, 247 (statement of Smith, IIPA), thereby benefitting copyright intensive industries stateside and inducing greater investment in the creative process.
Here we see the focus of the court is less on the restored works and more on protecting the wider copyright industry; by placating the origin countries of restored works, Congress believes it is protecting future works in those territories from less-than-national treatment. These theories (offered up by current and former counsel to beneficiary trade associations and cited as such by the Court) are not necessarily inaccurate, but reinforce that Congress’s primary goal in plucking works out of the public domain is not to actually promote their widest distribution. Rather than admitting this, however, the Court contorts prior case law and, indeed, logic itself to pretend that a paywall will somehow make restored works more accessible.

To me, this is what is most upsetting about the Golan decision. If the Court wishes to defer to a starry-eyed Congress that believes in attenuated links between copyright restoration, foreign goodwill, and market opportunities, it is entitled to do so. But it should at least be willing to admit that, in isolation, the restoration itself does nothing to “promote the Progress of Science.” To the contrary, it locks up works that have already been created and could be disseminated more widely than ever possible under the restrictions of copyright law. Instead, the Court doesn’t give public domain advocates a leg to stand on, and perpetuates a Luddite understanding of distribution methodology to do so. Hopefully, the Court will someday come to realize that a public domain work is no longer an orphan – the entire Internet is its family.


Reader Comments (rss)

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  1.  
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    Jay (profile), Apr 17th, 2012 @ 10:20am

    First sale doctrine under attack as well...

    I believe that copyright issues will continue to pose a challenge for SCOTUS because no one really understands these issues other than Breyer. I'll even say that Alito has a good understanding, but Kagan seems positively dreadful given her past as one who enforces copyright law to support copyright holders over artists.

    It will make me fear the ruling under the first sale doctrine. With a 5-4 decision it seems that the doctrine will go the way of the dodo and any protections for consumers have effectively been written out of copyright law.

    So now if you have no allowable copyright terms, no protections for consumers, and retroactive copyright, what is copyright actually protecting?

     

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    bob, Apr 17th, 2012 @ 10:35am

    Market realities?

    the Court's handling of the issue may actually be symptomatic of a legal system whose scholarship and case law have yet to catch up with the market realities of the digital age (or worse, may be actively ignoring them for political purposes).


    Have you been to many urban environments? Murder, rape, robbery, and other crimes are part of the "market reality". Yet the court system and the Congress continue to stick their head in the sand and embrace these laws. Why? I think it's because they understand that we need to reward people who contribute to the system. If people believed in your crazy "market reality", we would be like Somali where the only rule is the whimsy of whomever happens to be holding the gun.

     

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    Anonymous Coward, Apr 17th, 2012 @ 10:39am

    "it clear that it was doubling down on the framework set out in Eldred v. Ashcroft, largely deferring to Congress on these matters and giving wide latitude to what comports with the "traditional contours of copyright law." "

    It has been repeated here over and over again that copyright is in the constitution, but in that it allows congress to define it. SCOTUS has done nothing except point out what is in the constitution, and agreed with it.

    You may not like it, but there it is.

     

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    :Lobo Santo (profile), Apr 17th, 2012 @ 10:40am

    Re: Market realities?

    That's cute boB, but the "Market" portion of your little 'market reality' diatribe is entirely unnecessary.

    Reality dictates; unless you're able to defend yourself; it's entirely possible you'll be at the 'whimsy' of a person holding a gun regardless of your physical geolocation. And, that person might be a criminal!

    Also, Police Have No Duty To Protect Individuals--but don't take my word for it, check the case law for yourself.

     

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  5.  
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    Anonymous Coward, Apr 17th, 2012 @ 10:40am

    Is The Supreme Court Just Completely Out Of Touch

    Yes. Next question?

     

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  6.  
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    Arthur (profile), Apr 17th, 2012 @ 10:49am

    Re: Market realities?

    Do your really think you invented the "Strawman argument"? This is a old technique for attempting to win an argument with bad logic and bad data. It still doesn't work.

    You also seem to be "inventing" the "False dilemma" argument. This also still doesn't work.

    I'd ask you to use logic and facts for your arguments but that just might be beyond your abilities. Thanks for playing.

     

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  7.  
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    Anonymous Coward, Apr 17th, 2012 @ 10:50am

    Re: Re: Market realities?

    Nah, he learned that from Mike, who seems to make it a requirement for posting anything on Techdirt. You have to find a way to create a strawman to vilify the other side.

     

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    DandonTRJ (profile), Apr 17th, 2012 @ 10:53am

    Re: Market realities?

    Clearly, you didn't bother reading past the first paragraph. The article never argued that we don't need to reward people (in fact, the Golan court admits its decision isn't promoting progress by prospective reward, since these are all retrospective grants). It argued that the traditional doctrinal arguments for copyright promoting distribution of public domain materials don't stand up in the digital age any longer. It's a very isolated, nuanced issue - one your knee-jerk response didn't even come close to addressing.

     

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    Anonymous Coward, Apr 17th, 2012 @ 10:55am

    Re: Market realities?

    It's good then that the SCOTUS had the wisdom and understanding to see that keeping works in the public domain is tantamount to murder, rape, robbery, and other crimes just like paywall bob.

     

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    Anonymous Coward, Apr 17th, 2012 @ 11:00am

    Re:

    "SCOTUS has done nothing except point out what is in the constitution, and agreed with it."

    No one said they didn't. For someone droning on about strawmen in other comments you're certainly adept at constructing your own.

     

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    Anonymous Coward, Apr 17th, 2012 @ 11:02am

    Let me ask a simple question. The ACA is currently before the SC awaiting its written opinion. Should the court simply defer to Congress and uphold the law? After all, it is a policy judgement made by Congress under another provision of the constitution.

     

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    DandonTRJ (profile), Apr 17th, 2012 @ 11:05am

    Re:

    The article never denied that. Congress is entitled to determine what system of copyright best promotes it's purpose under the Constitution absent a change in its fundamental contours, and that's all the Supreme Court had to say to justify upholding the law. But instead the majority tries to rebut every last assertion the plaintiffs brought, and they do so by denying how distribution methods in the digital age have changed the game. The last paragraph sums it up:
    If the Court wishes to defer to a starry-eyed Congress that believes in attenuated links between copyright restoration, foreign goodwill, and market opportunities, it is entitled to do so. But it should at least be willing to admit that, in isolation, the restoration itself does nothing to “promote the Progress of Science.” To the contrary, it locks up works that have already been created and could be disseminated more widely than ever possible under the restrictions of copyright law.

     

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    lexieliberty (profile), Apr 17th, 2012 @ 11:17am

    I don't know why many of you still think the Supreme Court can produce justice.

     

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    Jay (profile), Apr 17th, 2012 @ 11:19am

    Troll tip # 20348: Don't read the author's name

    I wonder why you're vilifying Mike when he's not even the author of this post?

     

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  15.  
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    Josef Anvil (profile), Apr 17th, 2012 @ 11:21am

    Re: Market realities?

    I'm really not sure what bob is talking about, but he seems to be saying that if the market was to shift the way it already has, then the US would devolve into a 3rd world country.

    Rhetoric like that certainly qualifies him to be employed by one of the AA's. Because we know that if people could somehow share digital media any way they wanted, then anarchy would ensue.

    .....still waiting.

     

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    DandonTRJ (profile), Apr 17th, 2012 @ 11:24am

    Re: First sale doctrine under attack as well...

    Well, in the absolute, the FSD isn't going anywhere; it's been in the case law for over a century and codified into the copyright act. SCOTUS will be addressing how regioning effects the FSD, which is definitely an important issue as markets globalize, but doesn't come up incredibly often as far as I've seen. I'm actually waiting for them to take up licensing as an obstacle for defeat the FSD, since I think Vernor v. AutoDesk set up a blueprint just waiting to be abused...

     

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    Jay (profile), Apr 17th, 2012 @ 11:37am

    Re:

    Should the court simply defer to Congress and uphold the law? After all, it is a policy judgement made by Congress under another provision of the constitution.

    Yes, they should. We don't have 9 wise elders that promote the law. We have a democratically elected President and Congress that has the power to change the laws or enforce them.

    We have the Supreme Court to look at what's constitutional. But even then, they do *NOT* have the power of Judicial review in other countries such as the UK or even the EU. If you read the Federalist Papers, they left that part OUT of the Constitution. You will not find it in Article III Section 2 anywhere. Yet Marbury v Madison 'gave' the power of the Judicial Review to the Supreme Court.

    The US has suffered ever since. SCOTUS decisions caused our Civil War. They also caused the huge swing in opinion from Roe V Wade and the horrible Grokster inducement decision.

    We have wanted a free democracy. We can't do it when you only need a simple majority to agree with you. If SCOTUS really wants to strike down AFA, expect a very poignant shift in politics in two months that will surely become a full scale protest as the effects of that decision cause SCOTUS to be scrutinized very severely.

     

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    DCX2, Apr 17th, 2012 @ 12:05pm

    Wish I could mark this part insightful

    "Hopefully, the Court will someday come to realize that a public domain work is no longer an orphan – the entire Internet is its family."

    Very nicely put, Mr. Lifschitz

     

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    Not an Electronic Rodent (profile), Apr 17th, 2012 @ 12:09pm

    Not really

    Jack Valenti, President of the Motion Picture Association of America once said: “A public domain work is an orphan. No one is responsible for its life…it becomes soiled and haggard…” Jessica Litman, Digital Copyright 77 (2001). Before digital technology, Valenti may have had an argument – one could argue that it was so expensive to store, reproduce, and distribute physical works that keeping them out of the public domain may have resulted in more availability than letting them in.
    Even before the "digital age" there were plenty of examples of fans caring more for older works than the copyright holder. Take the BBC Doctor Who archives for example.

     

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  20.  
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    Scott Larson, Apr 17th, 2012 @ 12:23pm

    Re: Market realities?

    Compensation is a byproduct of creation, not and end in and of itself.

    That means you dont need to put so much emphasis on making sure people are compensated. You just need to make sure there is a fertilized space for people to create and distribute. The compensation part will work itself out. People inherently want to compensate people for the creativity simple because it makes an impact on their life.

     

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  21.  
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    Arthur (profile), Apr 17th, 2012 @ 12:37pm

    Re: Re: Re: Market realities?

    Oooo! Let's not forget to pull out the old "ad hominem" illogic -- another oldie but goody. That also still doesn't work. Thanks for playing.

     

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  22.  
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    Anonymous Coward, Apr 17th, 2012 @ 12:45pm

    Re: Troll tip # 20348: Don't read the author's name

    He's still Edgar Bergan.

     

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    The Groove Tiger (profile), Apr 17th, 2012 @ 12:57pm

    Re: Re: Re: Market realities?

    Hurrdurr no u

     

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    Jeffhole (profile), Apr 17th, 2012 @ 1:12pm

    Ok

    Any time a post title is phrased thusly: "Is [government noun] out of touch" or some other similar phrasing, the answer is always yes.

    They got to be where they are by being out of touch. If anyone who's at least a little bit in touch with us peasants were to retain that connection and also serve in an official governmental capacity in any of the branches...well, they'd go crazy and start shooting/maiming/kicking/waterboarding their co-workers, for the good of the people.

     

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    Thomas (profile), Apr 17th, 2012 @ 1:37pm

    Why a surprise?

    The SCOTUS is not immune to the same monetary gifts that go to Congress, they need the money too.

     

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  26.  
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    Anonymous Coward, Apr 17th, 2012 @ 1:44pm

    Re: Re: Market realities?

    Don't worry, bob doesn't know what he's talking about either.

     

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  27.  
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    Michial Thompson, Apr 17th, 2012 @ 1:45pm

    Lawmakers and Technology

    The real problem isn't in the laws, but in those that are making the laws. Most of our Law Makers in DC are older, and are still viewing the world through a tangible and physical world. I doubt any of them would have even seen an Electronic Book let alone used one at any point before they graduated college.

    At the same time Technology has advanced at lightening speeds, and has essentially left the Law Makers behind the learning curves.

    To complicate this, they create panels and studies which are made up of the same age group to advise them on Technology laws.

    The truth be told, we need more YOUNGER people running for office and getting elected. The problem with this is that overall the general public wouldn't trust a 20 something or 30 something person to run this country, let alone make the laws.

    Honestly we are nearing a the times where there will be a radical transition in the way of thinking in DC. Those born in the late 60s and 70s are reaching the ages where they are likely to be voted into office. If you look at the general history there was a radical change in the way the world was looked at between the 50s and the 60s.

    Sadly most of those currently in office are generally from 50s and before.

    I doubt the corruption of power will change much, but the beliefs in what's right and wrong will slowly shift. I honestly hope that as the transition takes place those making the changes realize that our laws and legal system need a serious overhaul and they get that overhaul started ASAP.

     

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  28.  
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    Anonymous Coward, Apr 17th, 2012 @ 1:49pm

    Re: Troll tip # 20348: Don't read the author's name

    Wait, does that mean I can only mention Mike when he writes the post?

    I was making a general observation, not one restricted to this single post.

     

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  29.  
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    Anonymous Coward, Apr 17th, 2012 @ 1:50pm

    Re: Re:

    No, I get it - but the court got it right. Daniel may not like the implications, but it would be hard for the court to rule against the constitution.

     

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    Anonymous Coward, Apr 17th, 2012 @ 1:52pm

    Re: Re:

    They do have Judicial Review... sort of... but only if the stars are aligned properly. They can strike something down if they happen to have a case presented before them that shows that two existing laws conflict then they can strike one. But you are right in that they don't have the ability directly.

     

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    Anonymous Coward, Apr 17th, 2012 @ 2:06pm

    Re: Market realities?

    Murder, rape and robbery actually harm someone, copying something harms no one and can even help so it is a marvel that people still grant monopolies in this day and age and try to put it above civil rights.

     

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    Anonymous Coward, Apr 17th, 2012 @ 2:19pm

    They're completely out of touch on just about everything.

     

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    DandonTRJ (profile), Apr 17th, 2012 @ 2:40pm

    Re: Re: Re:

    Again, not about the ruling, not about the Constitution. All the Copyright Clause says is that IP is there to "promote the progress" - after that, there is a general deference to Congress (absent rational basis, at least), but there is also judicial buttressing of what can be generally said to promote the progress. Incentivizing creation is the classic one, and nobody is arguing against it. Incentivizing distribution is another one, and that's the one that the Golan court seizes upon. But it never draws a distinction between incentivizing initial distribution (which is what the case law it cites to supports and was not at issue here) and general distribution (which is what a retroactive grant concerns and doesn't glean any logical support from the case law). The Supreme Court basically leapfrogs from "copyright promotes distribution under certain circumstances through certain rationales" to "copyright always promotes progress by greater distribution" and doesn't ever bother to check whether the logic carries (or if it did, didn't bother to explicate how in its decision).

     

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    Arthur (profile), Apr 17th, 2012 @ 3:15pm

    Re: Re: Troll tip # 20348: Don't read the author's name

    No, you can use your ad hominem attacks any time your little heart desires. Remember, to be effective, don't bother addressing any of the points brought up and don't bother with facts, just ad hominem, that's all you need to "win" any debate. Go!

     

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    Atkray (profile), Apr 17th, 2012 @ 3:20pm

    Re: Re: Market realities?

    fyi bob rarely reads past the first sentence.

     

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  36.  
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    Anonymous Coward, Apr 17th, 2012 @ 7:05pm

    Re: Market realities?

    We ARE at the whimsy (as you say) of whomever happens to be holding the gun...and that "whomever" is the government. Political power ultimately comes from the barrel of the gun. Before the gun it was the sword. Government is nothing more that a goon squad armed with laws and weapons to force its will upon the people.

     

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  37.  
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    Eragorn the Dragon Disciple, Apr 17th, 2012 @ 9:00pm

    Re: Market realities?

    Murder, rape, robbery are market realities because Reebok pumps, booty, money, etc. are rival goods. On the other hand, data in the public domain, is non-rival and as such operates on different economic principles. This is why murder and free digital distribution are fundamentally different "crimes" (the " " are for free digital distribution [murder is an actual crime])

    Another way to look at it is from the perspective of society demanding a good. In society's market for people, the marginal cost for the production of people is upward sloping while demand is downward sloping. Murder and rape lead to shifts away from the equilibrium quantity resulting in dead weight loss. On the other hand when looking at the market for digital goods, marginal cost for electronic distribution is effectively zero. As such price setting by the monopolist will lead to dead weight loss via the shift of quantity demanded away from the equilibrium quantity, that is to say the monopolist will reduce efficiency just as the murderer does. You can see here that murder is more similar to retroactively granting a copyright then free distribution.*

    Bob you don't support murder, rape, robbery, etc. do you?

    The fact that you put murder on the same level as digital dissemination is also ridiculous. That said, tossing around your crap is kind of fun.

    The conclusion is you are a moron.

    When studying your Econ, don't forget the CLlT (Capital Land labor Technology)

    *In this case there is no fixed cost of production because we are talking about restoration, so let me stop you before you hurt yourself (we're not talking about drug development here).

     

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  38.  
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    Anonymous Coward, Apr 17th, 2012 @ 9:01pm

    Re: Re:

    You may want to listen to the oral arguments for the four issues presented to the court over a period a three days. They can be found on the court's website. These issues are not a simple as some seem to think.

     

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  39.  
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    brewsterkahle (profile), Apr 18th, 2012 @ 4:24am

    disappearing 20th century

    Thank you for the helpful analysis, and as someone with the Internet Archive, thank you for reading our amicus brief.

    The chart showing the disappearing 20th century confirms your analysis. http://www.theatlantic.com/technology/archive/2012/03/the-missing-20th-century-how-copyright-protect ion-makes-books-vanish/255282/ The full lecture is really good at showing the faults in the lobbiest's argument: https://www.youtube.com/watch?feature=player_embedded&v=-DpfZcftI00

    -brewster
    Digital Librarian
    Internet Archive

     

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  40.  
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    Niall (profile), Apr 18th, 2012 @ 5:37am

    Re: Re: Re: Market realities?

    What, he reads even that much? Unless he reads the whole thing with a view to playing devil's advocate with every line/statement?

     

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  41.  
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    Jay (profile), Apr 18th, 2012 @ 8:23am

    Re: Re: Re:

    I saw them and read the hearings. Scalia was insistent on this Cornhusker kickback which wasn't in the bill. Thomas will always vote Republican and I doubt Kennedy will vote Progressively.

    That hearing is going to be voted on political grounds and I'm sure people will not be happy.

     

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    Gallowglass2005, Apr 18th, 2012 @ 1:20pm

    One of Congress' Enumerated powers

    It just seems wrong to take something out of the public domain and put it back under copyright. I agree with the main argumnents of the usefulness of public domain works.

    Unfortunately, I also believe that SCOTUS got it right when they indicated that copyright is the exclusive domain of congress to define and/or change. It is, after all, one of their enumerated, Article I powers. That doesn't make the current decision suck any less.

    All we have to do is convince congress to change the copyright law to better benefit the public instead of the legacy content industries. HOW HARD COULD IT BE?

     

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    Anonymous Coward, Dec 22nd, 2013 @ 7:20pm

    The Problem with Attribution

    Attribution is not required in public domain works, so if the works covered in this case do not have attribution, how would anybody know that they fell again into copyright?

    Dastar_Corp._v._Twentieth_Century_Fox_Film_Corp.

    The Court reasoned that although the Lanham Act forbids a reverse passing off, this rule regarding the misuse of trademarks is trumped by the fact that once a copyrighted work passes into the public domain, anyone in the public may do anything they want with the work, with or without attribution to the author.

    ...claims about authorship cannot be used as an end-run around the underlying philosophy of a time limit on exclusive ownership of a copyright or patent. Allowing such restrictions on a public domain work would, Scalia wrote, "create a species of mutant copyright law that limits the public's 'federal right to "copy and to use"' expired copyrights," and would effectively create "a species of perpetual patent and copyright, which Congress may not do"

     

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