Flanked by L. Ron Hubbard's Thetan and Walt Disney's cryogenically preserved body, Charles P. Baker, Section Chair for the ABA's Section on Intellectual Property, announced that his section is attempting to convince the ABA to file an amicus brief on behalf of dead authors everywhere in the case of Eldred v. Ashcroft (Section Prepares To Submit Amicus Brief To Supreme Court On Constitutionality Of Copyright Law). "This is one of the most important copyright cases the Court has decided to hear in many decades," said Baker. Introducing the Scarecrow from the Wonderful Wizard of Oz, Baker characterized opponents of the Sony Bono Copyright Term Extension Act [PDF], as "those who have an anti-IP sentiment -- those who say information wants to be free, less protection is necessarily better, the public domain promotes the progress of science and useful arts better than IP, and when technology advances, IP rights must be cut back."
At issue in the case is whether Congress can retroactively extend copyright for dead people. The constitutional purpose of copyright is "To promote the Progress of Science and useful Arts;" it is unclear how the dead can contribute to this progress. Baker argued that, "The real world issues at stake are the many works that are still used in a consistent way by their owners and are important sources of revenue. These would enter the public domain 20 years earlier if copyright extension laws are declared unconstitutional." Although it is clear that copyright owners would make more money on some existing copyright (i.e., Mickey Mouse — Free Mickey), it is unresponsive to the issue (unless the real issue is whether copyright owners should make more money).
A second issue is whether the First Amendment can be used to challenge copyright extension. Baker states that those who defend the law do not believe the First Amendment goes so far, claiming that, "this extension, which brings U.S. law closer to the law in Europe, does not mean that extensions will go on forever." However, he failed to enumerate any limiting principle, implicitly endorsing Jack Valenti's call for a copyright term of "forever, less a day."
Thanks to Linux Journal — (American Bar Association to Endorse Retroactive Copyright Extensions).
Harvard's Berkman Center is home to the Openlaw project, which is behind the lawsuit (OPENLAW: Eldred v. Ashcroft).
Previous LawMeme coverage (SCOTUS to Hear Eldred v. Ashcroft).