Book People Archive

Eldred v. Ashcroft

As Jubi has informed the list, the plaintiffs led by
Eldred lost the suit against the copyright term extension
act of 1998.  This is a bitter blow--especially given the
exciting oral arguments last year--and one to which we are 
still trying to react.  Here are some comments and requests
for your considered discussion:

1. The decision and an open discussion area are at
http://eon.law.harvard.edu/openlaw/eldredvreno
(We believe in open discussion of all the case, even
if the other side learns of our strategy that way,
but Eldred doesn't participate there, so you won't
feel dominated by that know-it-all.) 

2. This suit arose out of this mailing list, as we
bookpeople tried to find some way of dealing with the
laws such as the CTEA and the DMCA that gave strong
powers to publishers and heirs and prevented us from
accessing works that otherwise would have entered the
public domain.  Many on this list have devoted much
time and energy to this case.  We have used it as a means
to educate the public about copyright and its proper role
in our culture. Although it is discouraging to have yet 
another bad decision, we have to go forward now.

3. The dissent by Judge Sentelle, although only a partial
one, did raise important questions that favor our cause.
In particular, his argument against the constitutionality
of retroactive copyright extension ought to be attractive
to some justices on the Supreme Court.  (Our lead lawyer,
Larry Lessig, was law clerk for Mr. Justice Antonin Scalia.)
 
4. We are now discussing an appeal.  There are difficult
questions to consider.  If we delay, some of the justices
on the Supreme Court who might favor our arguments might 
be replaced by others.  But if we appeal to the Supreme
Court right now, it does not seem at all likely that
the court would accept certiorari.  One suggestion is to
ask for an en banc hearing before the same appeals court,
to resolve the several technical procedural issues that
Judge Ginsburg covers in his decision.  Another important
point to consider is the downside of the gamble:  if the
Supreme Court rules against our constitutional argument
and affirms a strict natural rights-property rights
theory of copyright, as has been done in recent other
cases, including Napster and the DeCSS case, is that not
worse off than leaving the matter ambiguous?  (See the
case Bush v. Gore for analogy--similar "plenary" powers
of the legislature unrestricted by the Constitution or
even common sense.  Some of us are particularly worried
about Ms. Justice O'Connor, who wrote the Harper v. Nation
decision.)

5. Thus we need some honest input from everybody on 
whether or not to appeal, and if so how.  If we do appeal,
we will be asking for amicus briefs again, when going to
the Supreme Court.  For example, how do you feel about the
assertion in the decision that long copyright term actually
give an incentive for copyright holders to preserve and
make accessible the works, instead of the point that
providing for their entry into the public domain makes
them available for people like us to publish online?

6. If we ask for an en banc hearing, it would not likely
be granted soon.  The same appeals court is now engaged
in an en banc hearing of the vastly complicated DOJ v.
Microsoft antitrust case.

7. Judge Ginsburg in his decision provides an opening for
another course we ought to consider pursuing.  His ruling
states that the Supreme Court decisions in patent and
trademark cases, applied to copyright, "would indeed 
preclude the Congress from authorizing under that Clause a 
copyright to a work already in the public domain."  Thus
the restoration of copyright by GATT to works that had
entered the public domain would seem unconstitutional--it
is just that nobody challenged it then.  We are considering
mounting a challenge now.  We need plaintiffs who suffered
injury when works were taken out of the public domain.

8. We had to raise issues of First Amendment protection
mainly in order to get standing before the court.  Although
the decision rejected our First Amendment argument, it
clearly recognized we had standing.  Thus it appears not
to be necessary to publish an offending work first and
risk jail.  Although at least one of us was ready to do
that, avoiding prison is a bit of a relief to that old guy
who similarly avoided prison back in the '60s.  In appeal
we will likely continue to press the First Amendment
argument.

9. Judge Ginsburg, we feel, is clearly wrong on many of
his assertions in the decisions, and the case cries out
for appeal.  This case cannot stand as a precedent.  The
issues of arguments by amici and the treatment of Schnapper
were obviously based on a false understanding of plaintiffs'
arguments:  read the oral argument transcript.

10. Whether we appeal or not, we plaintiffs (and bookpeople)
are very grateful to those who gave support, directly or
indirectly, in this case.  Legal respresentation was given
pro bono by the Berkman Foundation for Internet and Society
at Harvard Law School, the Jack and Lillian Berkman Foundation,
Lawrence Lessig (now at Stanford), Charles Nesson (of 'A
Civil Action' fame), Jonathan Zittrain, and the law firms
of, first, Hale and Dorr (on the other side of 'A Civil
Action'), and, then, Jones, Day.  Besides Eldred, other
publishers and archives have become plaintiffs in the case,
so the arguments have broad appeal.

11. In a separate move, also originated in this mailing
list, some of us are forming an intellectual property
conservancy to be known as 'Creative Commons.'  Like the
Nature Conservancy, it would give incentives in the form
of tax deductions for donations to the public domain that
would make works accessible on the Internet.  We are 
working with The Knowledge Conservancy at CMU to form a
new corporation, make some tax law changes, and implement
an organization that would provide the incentives.  We
plan to include patents as well as copyrights, and we
are considering starting with a limited scope and then
broadening it to combat the 'strong intellectual property
rights' forces.  We have received some financial backing
and have attorneys in place and participation by a half
dozen universities.  We will reveal more on this
subject as it happens.

12. This case has been going on since October, 1998. It
is not likely to be resolved soon.  There are many other
lawsuits concerning 'intellectual property' and other
compelling issues related to that concern, that need our
attention in the meanwhile.  Please consider this as an
invitation for all of us to learn more about the laws,
and to use these cases as a means to discuss with and 
inform our fellow citizens.  In the meantime, we need to
remember Michael S. Hart's treatment of the Bono Act:
consider it a challenge to publish even more works--let's
get moving and create this environment online that the
big publishers seek to take away from us--when the
'eBook' market collapses, we will be left, still working
like monks, preserving our culture and spreading books
worldwide on the Internet, proving that all this has
great value even if only to one reader.  Keep up the
good work!

And thanks!

  
-- 
nom:"Eric"  Eric Eldred  Eldritch Press
mailto:Eldred@[redacted]
vCard3.0:http://www.eldritchpress.org/EricEldred.vcf