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Today's
Puzzle?
If
a 1908 Public Domain Copyright
can be extended by Congress,
--
Why can't a Patent be
extended?
By Scott B. Stubblefield,
Esq.
•••••
During
my Q&A session with TVI
Magazine,
while
promoting my great-grandfather,
Nathan B. Stubblefield's, 100th
year celebration for the world's
First ship to shore Wireless
Telephone Broadcast, that took
place in Washington D.C. in 1902,
I was asked the following during
a recent February NATPE
convention in Las Vegas,
:
•••••
Q
- "What
would happen if
Broadcasters
and wireless
telephone manufactures,
distributors of the
electromagnetic wave, telephone
companies, publishers and experts
in intellectual property law were
caught by surprise by a high
court ruling, that Nathan B.
Stubblefield's 1898 and1908
"wireless telephone" patents
should be treated equally to
copyright extensions?"
898
and1908 "wireless telephone"
patents should be treated equally
to copyright extensions?"
•••••
A
- My answer was direct and
simple. "The wireless industry
would owe the family of Nathan B.
Stubblefield, and his Murray,
Kentucky investors billions of
dollars, in lost revenue."
•••••
Q
- "Say the high court announced
that it would review
a
1st Amendment challenge mounted
by a coalition of Internet
entrepreneurs and legal scholars
to the Revised patent laws of
1905, Statute, Sec 4886, an act
that should have extended patents
for an additional 100 years."
Again my answer was direct and
simple.
•••••
A
- 'I would use the internet to
research case law, patents
surround "wireless, and recent
news media reports and articles
as models to prove-up the reasons
of the courts rulings -- put on
the 100th year "Wireless
Telephone" demonstration -- then
hope for the
best."
•••••
To
begin with, it needs to be
remembered
that
public demonstrations, patents
and copyrights are supposed to
protect the free flow of ideas
submitted to the world by the
inventor or author, plus -- any
improvements to the invention,
either by himself or others, for
a certain period of time to
enable the patent holder to earn
a monetary profit. If it doesn't
-- the period of time for a
patent should be treated equally
as copyrights have been treated
by congress, by the U.S. judicial
system, and by the news
media.
THE
MODEL FOR THE REVISION OF PATENT
LAWS
The
1998 Sonny Bono Copyright Term
Extension Act.
Supporting
the appeal, copyright scholars
and Internet entrepreneurs said
the extensions have the
unfortunate, and unintended,
effect of burying works that
could be resurrected. The
Gershwin tunes and "The Great
Gatsby" will live on, they said,
and the copyright laws will
determine only who profits from
their existence.
•••••
To illustrate their point, they
cited in court papers an
exception to the rule. Frank
Capra's 1946 film "It's a
Wonderful Life" had a second life
when its copyright was allowed to
lapse because of an oversight.
Experts in the matter have
reported that this forgotten
movie "lay gathering dust in a
movie studio until the early
1970s" -- when its copyright
expired.
•••••
Once it passed into the public
domain, several public
broadcasting stations aired it
during the Christmas season.
Within a few years, the forgotten
film became a classic and a
Christmas tradition.
But Margolis, whose firm
represents high profile copyright
holders, called such arguments
disingenuous.
•••••
"We're not talking about people
who want to make intellectual
property available to the free
world, we're talking about people
who want to go into business," he
said. "The opposition is not
free-speechers. They're people
who want to go into business and
make a profit on what yesterday
was someone else's property."
THE
MODEL ARTICLE #1 FOR THE
REVISION
February
21, 2002 -
Studios
May Have the Most to Lose.
LA
Times Article in regards to
Copyrights.
•••••
Movie studios, record companies,
publishers and experts in
intellectual property law were
caught by surprise when the high
court announced Tuesday that it
would review a 1st Amendment
challenge mounted by a coalition
of Internet entrepreneurs and
legal scholars to the 1998 Sonny
Bono Copyright Term Extension
Act. That act extended copyrights
for an additional 20 years.
•••••
Billions of dollars and the
future earning power of some of
the nation's most cherished
cultural icons are at stake as
the U.S. Supreme Court considers
a constitutional challenge to a
1998 copyright extension law,
legal experts said Wednesday.
•••••
The experts agreed that the high
court's decision to consider
Eldred vs. Ashcroft, until
Tuesday an obscure appeal, could
lead to the most important
copyright decision in more than
100 years.
•••••
"This is a really big deal," said
Stephen Gillers, vice dean of New
York University Law School. "This
case is sexy because it's about
money and the arts at the same
time."
•••••
"This is it," agreed Dennis S.
Karjala, who teaches copyright
and intellectual property law at
Arizona State University Law
School. "It's hard to think of a
bigger copyright case" since the
landmark 1879 decision that
divided intellectual property
into functional works, which are
patented, and artistic works,
which are copyrighted.
•••••
Any ruling by the Supreme Court
would affect early depictions of
Mickey Mouse, first copyrighted
in 1928, and film classics such
as "Gone With the Wind" and "The
Wizard of Oz," novels such as
"The Great Gatsby" and "The Sun
Also Rises," as well as early
jazz music and compositions by
George and Ira Gershwin.
•••••
"I think just about everybody in
the [entertainment]
business will be impacted.
Somebody's going to get hurt
here," said Gerry Margolis, of
Manatt, Phelps &
Phillips.
•••••
David Nimmer, a visiting law
professor at UCLA, said that
although many of the recent
copyright cases considered by the
Supreme Court have affected just
a narrow portion of copyright
holders, "This case has the
potential to affect every
copyright owner."
•••••
Nimmer and Gillers predicted that
with so much at stake, the
Supreme Court case is likely to
generate millions in new legal
business.
•••••
"Probably billions of dollars
ride on this decision, so
millions of dollars will be spent
on lawyers and amicus briefs and
research on the history of
copyright going back to King
James," Gillers said.
••••
Walt Disney Co. Chairman Michael
Eisner said it was "too early to
comment" extensively on possible
fallout from any change in the
copyright law. He attempted to
minimize the impact.
•••••
"All that has happened is that
two courts upheld Congress'
extension of the copyright law,
and we don't consider it unusual
that it is going to the last
court of appeal, the Supreme
Court," Eisner said.
•••••
"If it went bad, and I don't
think it will, we're talking
about the very early images
[of Mickey Mouse and
others], we're not talking
about our trademarks ... this is
not taking away those values,"
Eisner said.
•••••
But legal and financial analysts
anticipate a huge impact.
•••••
"The people who are freaking out
are the studios," said Los
Angeles lawyer Neville Johnson,
who has a copyright infringement
case involving a 1920s jazz song
pending in U.S. District Court in
Los Angeles. "It's Mickey Mouse,
is why they're all freaked
out."
•••••
"In the case of Mickey Mouse,
this is a huge issue," agreed
Kevin Lane Keller, a Dartmouth
College marketing professor and
an expert on Disney marketing.
"Mickey has huge symbolic value
and he still has a lot of
commercial value.
•••••
"These characters and brands have
so much earning potential,"
Keller said. "They can be
licensed and merchandised in so
many ways. The amounts are
staggering. In a lot of cases,
we're talking about
billion-dollar brands."
•••••
Metro-Goldwyn-Mayer Inc. and
Warner Bros., which have
Hollywood's largest film
libraries, also could feel a huge
impact. The studios had no
comment.
•••••
Wall Street analysts say it's
difficult, if not impossible, to
come up with an exact dollar
value for some of the studios'
most popular characters or
movies. Companies are loath to
put a value on their properties,
and usually lump revenue from
those characters or properties
into "intangible assets."
•••••
But licensing revenue offers a
glimpse into the value of some of
these properties. For example,
Disney has said that Winnie the
Pooh and the Hundred Acre Woods
characters generate a third of
all of their licensing
revenue.
•••••
In the late 1990s, Pooh generated
$2 billion a year for Disney and
its licensees.
•••••
Chris McGurk, chief operating
officer at MGM, said, "Copyright
is the only thing that protects
us from people taking our
properties, copying them,
exploiting them, doing whatever
they want for free."
•••••
MGM's James Bond franchise is
said to be worth more than $1
billion for the Santa Monica
studio. It is about a fourth of
the estimated $5-billion value of
MGM's 4,100 film library,
analysts have said.
•••••
Arizona State's Karjala played a
key role in organizing 60 law
professors to send a letter to
Congress in 1998 opposing the
Sonny Bono law, contending that
it "would impose substantial
costs on the United States
general public without supplying
any public benefit."
•••••
He said Wednesday that the case
"is an issue of tremendous
importance. It is one where we
simply can never expect Congress
to follow the constitutional
requirements because there is a
built-in bias in the legislative
process for copyright. The
beneficiaries are organized and
the general public is not
organized. It's no one's fault.
It's structural. It's a problem
of democracy."
MODEL
ARTICLE #2 - - THE COPYRIGHT
REVISION
•••••
February 20, 200 /
"Limitless' Copyright Case Faces
High Court
Review"
-- LA, Times
•••••
WASHINGTON -- The Supreme Court
announced Tuesday that it will
hear a major challenge to
Congress' power to extend the
copyrights of films, books and
songs that first appeared in the
1920s and 1930s--a move that
could result in hundreds of
thousands of classic and
forgotten works becoming freely
available via the Internet.
•••••
Films such as "Gone with the
Wind" and "The Wizard of Oz," the
music of the jazz era and the
compositions of George and Ira
Gershwin, novels such as "The
Great Gatsby" and "The Sun
Also
•••••
Rises," even Mickey Mouse and
Donald Duck--all would have
passed into the public domain had
Congress in 1998 not extended
their legal shield by 20
years.
•••••
But this challenge to the
copyright extension is not just
about the classic books, music
and movies that are well-loved
today. Opponents of the extension
say that if all the works
published decades ago--and then
forgotten--were in the public
domain, many would have a second
chance at popularity, thanks to
Internet archivists who would
make them easily accessible.
Under pressure from Hollywood
studios and music publishers,
Congress has extended the period
of copyright protection 11 times
over the last 40 years.
•••••
The result, say scholars and
librarians, is "to transform a
limited monopoly into a virtually
limitless one."
•••••
The copyright laws are intended
to encourage creativity by
allowing authors, composers and
filmmakers to profit from their
works. But under the recent
extension, the legal monopoly
continues for 70 years after an
individual author's or composer's
death.
•••••
"How can you say you are creating
incentives for authors who are
long dead?" asked Jessica Litman,
a law professor at Wayne State
University in Detroit, one of 21
copyright law experts who urged
the Supreme Court to take up the
issue.
•••••
"Without some check on
congressional power, it is
unlikely that any of the cultural
and historical works of the first
half of the 20th century will
ever enter the public domain,"
added UC Berkeley law professor
Mark Lemley.
•••••
In a statement issued by his
office, Jack Valenti, the
president of the Motion Picture
Assn. of America, said he had
"absolute confidence that the
Supreme Court will uphold the
decision" of a lower court and
"the wisdom of the Congress . . .
in extending the term of
copyright protection by 20 years
to maintain parity with the
European Union and other
nations."
•••••
In their appeals, the scholars
and Internet entrepreneurs said
the copyright extensions have the
unfortunate and unintended effect
of burying works that could be
resurrected.
•••••
The Gershwin tunes and "The Great
Gatsby" will live on, they noted,
and the copyright laws will
determine only who profits from
their existence.
•••••
But the same is not true of most
original works. "Millions of
copyrighted works are created
every year; yet after 75 years,
few remain in circulation," the
copyright scholars said. In 1930,
for example, 10,027 books were
published in the United States.
Only 174 remain in print
today.
•••••
"Thousands of old movies sit in
shelves deteriorating because the
companies that hold the copyright
make no efforts to restore them
or make them available, while
their copyright status prevents
others from preserving these
works," according to a brief
filed on behalf of librarians and
archivists.
•••••
To illustrate their point, they
cited Frank Capra's 1946 film
"It's a Wonderful Life," which
had a second life when its
copyright was allowed to lapse
because of an oversight. This
forgotten movie "lay gathering
dust in a movie studio until the
early 1970s," when its copyright
expired.
•••••
Once it passed into the public
domain, several public
broadcasting stations aired it
during the Christmas season.
Within a few years, the forgotten
film became a classic and a
Christmas tradition.
•••••
And now, thanks to digital
technology and the Internet,
millions of such works can be
restored and made available to
the public, the librarians and
archivists told the court.
•••••
The justices considered the
appeals for several weeks before
voting to grant the case, known
as Eldred vs. Ashcroft,
01-618.
•••••
Its lead plaintiff, Eric Eldred,
runs an Internet library that
posts works in the public domain.
But perhaps more important, his
appeal was filed by Stanford law
professor Lawrence Lessig, one of
the foremost legal experts on the
Internet and the law.
•••••
His appeal challenges the Sonny
Bono Copyright Term Extension Act
of 1998, which added 20 years to
most copyrights. Because of that
law, "an extraordinary range of
creative invention will be
blocked from falling into the
public domain at least until
2019--or longer if Congress
extends the copyright term
again," Lessig said.
•••••
This, he argues, is
unconstitutional.
•••••
First, he says, the Constitution
gives Congress a limited power to
protect copyrights. It says
Congress can "promote the
Progress of Science" by granting
"exclusive rights" to authors for
"limited times."
•••••
Lessig argues that Congress has
violated this clause by "creating
in practice an unlimited term"
for copyrights.
•••••
The nation's Copyright Act in
1790 protected written works for
14 years, after which authors
could seek a renewal for 14 more
years. This 28-year limit
continued until 1909, when
Congress doubled the limit to a
possible 56 years.
•••••
Since 1962, Congress has
repeatedly extended the maximum
term, usually under pressure from
movie producers and the music
industry.
•••••
"The real beneficiaries of this
are big media companies, because
they own the copyrights," said
Washington lawyer Daniel H.
Bromberg. "The 1998 bill was
snidely referred to as 'The
Mickey Mouse Extension Act'
because it was seen as protecting
Disney's characters."
•••••
Before Congress, proponents of
the extension argued that
creators of works that remain
valuable deserve to profit from
them.
•••••
And Tuesday, underscoring the
importance of traditional
characters, Walt Disney Co.
executives trotted out Mickey
Mouse, Peter Pan and "Beauty and
the Beast's" Belle at the
company's shareholder meeting in
Hartford, Conn.
•••••
These Disney characters are
"extraordinary assets," Disney
President Bob Iger said. "They
are among the reasons the Disney
brand is so incredibly strong by
any measure."
•••••
Under the law being challenged,
works for hire, including films,
are protected for 95 years after
their release. Works by
individual authors or composers
are protected for 70 years after
their deaths.
•••••
In their appeal, Lessig and his
colleagues also say the extended
copyright monopolies violate the
1st Amendment's guarantee of
freedom of speech. Usually, the
government should not limit free
speech more than necessary, and a
95-year shield for some works is
well more than necessary, Lessig
argues.
•••••
Last year, the U.S. Court of
Appeals in Washington rejected a
challenge to the copyright
extension on a 2-1 vote. Its
judges said only Congress could
determine a reasonable time
period for a copyright. Moreover,
the appeals court said old films
and books are more likely to
survive if their copyright value
is preserved.
•••••
"Extending the duration of
copyrights on existing works
would, among other things, give
copyright holders an incentive to
preserve older works,
particularly motion pictures in
need of restoration," the judges
wrote.
•••••
U.S. Solicitor Gen. Theodore B.
Olson said he agreed and urged
the court to reject the
challenges to the law. There is
"no 1st Amendment right to
exploit the work that Congress
has purported to protect," Olson
said.
•••••
The American Library Assn., the
Internet Archive and dozens of
legal experts filed briefs in
recent months urging the high
court to rethink that
presumption.
•••••
So far, however, the Supreme
Court has heard only from those
groups that oppose the copyright
extension. They will file their
legal briefs in several months,
and the case will not be heard
before the high court until the
fall.
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Part
06h
• Acknowledgments ®™© /
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