[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]
Re: [dvd-discuss] Argument: NO extensions can be constitutional. Eldred related -- of DVD interest
- To: dvd-discuss(at)cyber.law.harvard.edu
- Subject: Re: [dvd-discuss] Argument: NO extensions can be constitutional. Eldred related -- of DVD interest
- From: microlenz(at)earthlink.net
- Date: Fri, 25 Jan 2002 18:57:49 -0800
- In-reply-to: <3C518EE4.4EA52964@ia.nsc.com>
- Reply-to: dvd-discuss(at)cyber.law.harvard.edu
- Sender: owner-dvd-discuss(at)cyber.law.harvard.edu
I think the Macauley and probably the drafters of the 1909
copyright act probably threw up their hand in exasperation and said
"I don't know what's a good term. Clearly 50 is MORE than enough.
Problem Solved for ever." but they didn't consider organized greed.
> Quoting from the legal Prof. amicus brief (
> "Congress must, at the very least, show that the statute
> serves an important government interest in a manner no
> more restrictive than necessary. Turner I, 512 U.S. at 662."
> I was pondering this quote and the power of the least-restrictive-means
> (LRM) necessary test for limitations on speech and I came to the
> following logical argument.
> (1) For "copyright law" the LRM would be the shortest terms and least
> paracopyright restrictions needed to incent the broad publication of
> (2) Subsequent to the initial copyright act (17?? or 18??) many works
> were created and much progress occurred.
> (3) Thus we can assert an historical (and non-hypothetical) proof that
> 14+14 copyright terms are sufficient to incent the broad publication of
> works (at least books, charts, et. al.)
> (4) Given that the initial 14+14 year term was sufficient any longer
> term is supersufficient
> (5) Supersufficient terms cannot (by definition) be a LRM, since a
> shorter, provably sufficient incentive (in the form of a shorter term)
> is available.
> (6) Thus any term extension beyond that for which "progress" and the
> successful minimal incentive to publish can be shown fail 1A scrutiny of
> the LRM sort.
> The same argument could be made for any and all term extensions,
> including any paracopyright restrictions such as the anti-circumvention
> provisions. DVD's pre-date the DMCA, showing sufficiency -- rendering
> the anti-circumvention provisions a super sufficiency, non-LRM and thus
> "more restrictive than necessary."
> I'm sure the USSC ruling that all copyright extensions since the
> inception of the copyright would be as popular as desegregation, but I'm
> not sure I see a whole in the logic that allow a rational alternative
> solution. The only whole is the claim that the market forces have so
> dramatically changed that much longer terms are needed to incent -- but
> Congress did not make this showing at all. Certainly the level of
> political contributions from Disney et. al. would indicate a healthy and
> thriving copyright industry. Paradoxically (and ironically), the only
> kind of copyright industry that could argue that (on a constitutional
> basis) for the need of term extensions, DMCA paracopyright and the like
> would be one that could NOT afford such lavish political action. The
> shear fact that they won politically means that it is clearly
> The "harmonization" treaty cannot be the compelling gov't interest BTW,
> as (a) "harmonization" cannot rationally be argued to "promote progress"
> (or even defend sovereignty) as it is clearly a "preservation" activity
> and not a progressive one and (b) the 1A cannot be subject to treaties
> with foreign powers.