A Brief Continuance
(Pardon the legal jargon :-))
The comment below inspired me all over again:
With respect, you are not being entirely fair to the Court. It is not their job to decide whether a law is good or bad, just or unjust, wise or foolish; it is their job to decide (perhaps discern would be a better word) whether it is Constitutional or not. Copyright law is, as far as I know, properly the responsibility of Congress. The current situation is then due to the "dubious wisdom" of Congress, and the correct remedy, as Therese pointed out in her post, is to get Congress to change the law.
While I concur wholeheartedly with the sentiment (not wishing to have a legislative court), I have several disagreements with this--
(1) It hasn't stopped them up 'til now, why stop here? (I have some suggestions as to why.)
(2) The interpretation of the Constitution is, in fact, one of the main responsibilities of the Supreme Court. As copyright law is directly addressed within the constitution and both its purpose and intent expressly stated, and there is a huge "tradition" of precedent in how the law ran up until about 1930, it would seem sufficient ground to interpret the Constitution.
Now, the purpose of copyright law is twofold--to encourage creative endeavor and to protect the rights of the producers of creative work. Therefore copyright is granted for a limited duration to ensure these rights. Up until very recently, it was quite possible for a work to slip out of copyright during an author's lifetime. In recent years, copyright laws with retroactive extension have basically placed everything after 1923 out of reach of the public domain until something like 2020 (I'm not looking this stuff up, just noting.)
The entry of work into public domain allows it to become the framework of other creative works. When that entry is denied for more than one-hundred years (as present law makes possible), the "limited time" argument becomes moot. If a work is protected for one-hundred years, then the time is not in any reasonable way limited, it cannot be touched during a human life-time. Furthermore, because the tendency has been toward a progressive increase of this time, it is not in any way substantially limited because the idiotic wording of the Supreme Court decision basically notes that protection of a work for, say 110 years, is, in fact a limit. Thus, the protection of a work for five-hundred years, would, in fact, be a limit under the present reading of the constitution. In fact, if you passed a law that allowed copyright for 10,000 years, it would still meet the definition of a limit.
However, if one looks at the wording of the Constitution and the history of copyright throughout the early history of the nation, one sees that this is a gross misrepresentation of what was intended in the wording. I tend to like to sail nearer the original intent so far as it can be discerned, and in this particular case, since the original copyright law is right in the Constitution, it is very clear to see what the writers intended.
Thus, I argue that it IS the fault of the court in not carrying out their duty in the interpretation and understanding of the Constitution.
Moreover, I further argue that it is simply not possible to get Congress to change the law. Steven Riddle v. Sony--who do you think wins when it comes to influence. The vast creative voice of America v. Disney and Polygram and . . . The point is, the copyright law sits in the hands of the corporations that fund election campaigns. I could lobby for the rest of my life, as could we all, and we would get back the letter that I have received, "Thank you for expressing your interest in this matter. The concerns of X's constituents are always welcomed and carefully investigated. " You, however are a crank and your concern does not spell reelection.
Justice is justice, and the Supreme Court supremely (as is their wont in so many cases) failed in supplying justice or equity. The Supreme Court is not about interpreting law, it is largely about concentrating power. As it stands, it tends to activism and legislation from the bench. It is nice to see a change; however, this was a case in which they would justly and reasonably have determined that the present law was indeed unconstitutional and they could have sent it back to congress with instructions to bring it into line--for example, removing the retroactive clause (no copyrights up until the twentieth century had any such provision, and it obviously flies in the face of intent.)
Anyway, as a creative artist, it disturbs me greatly, and when and if my own work is published, I have no intent of allowing it to remain in private hands forever. That will basically guarantee extinction--for example, do you suppose the novels of Mrs. Gaskell, were they still under copyright protection would ever see the light of day? How many people in the world read them? What publisher would want to produce them? I think of the richness of the literature of Spirituality from 1925 to the present and realize that we get the sampling of it that TAN Books or Sophia Instituted Press is capable of bringing to light, or that fits in with the given agenda of the publishing house.
No, I must disagree, the Supreme Court failed in a legitimate exercise of its authority. The law as written is in direct violation of precedent and of obvious intent. However, because it doesn't further the cause of executing the unborn, it is not of sufficient gravity to be considered as anything other than a trifle to be played with by those who have the money.
(Can you tell that I really get worked up about this? I think it's the fact that it will cost me something on the order of seven-hundred dollars a volume to get things like the Autobiography of H. Rider Haggard.)
Okay, Okay, I'm beating a dead horse, but sometimes it is important enough to be said, and all of my Green impulses are concentrated in this one admittedly minor issue. (But if the Supremes can invent a right to privacy, and then continually invoke the precedent of the right in insuring the protection of the right to slaughter the innocents, surely they can read what is actually written IN the document, can't they?)
