January 20, 2003

Commentary: A Double Whammy by Big Media

- By Jeff Elkins -
This is a bleak day for ordinary citizens. Big Media has landed two separate blows that in the end may prove just as deadly to American freedom as the Bush administration's assault on the US Constitution and Bill of Rights.

While not unexpected, the Supreme Court has ruled 7-2 to uphold the Sonny Bono Copyright Term Extension Act of 1998. Also known as the Mickey Mouse Protection Act, this law retroactively extended the duration of copyright from the life of author plus fifty years to the life of the author plus seventy years, in the case of individual works, and from seventy-five years to ninety-five years in the case of works of corporate authorship and works first published before January 1, 1978.

"So I've got to go get onto a plane to go to my least favorite city (DC). My inbox is filling with kind emails from friends. Also with a few of a different flavor. It's my nature to identify most closely with those of the different flavor...Yes, no matter what is said, that is how I will always view this case. The constitutional question is not even close. To have failed to get the Court to see it is my failing," says Lawrence Lessig, who argued for Eldred in Eldred v. Ashcroft before the Supreme Court.

Eric Eldred challenged the CTEA, which he said unfairly limits what he can make available a web site featuring material in the public domain.

Professor Lessig is too hard on himself. The failing here is not his, but that of lawyers in black robes who merely call themselves "justices," for if they really deserved that appelation the vast majority of federal laws that plague United States citizens would have long been struck off the books as unconstitutional, not least among them the CTEA and its evil cousin, the DMCA.

"We find that the (extension) is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be," the majority opinion of the court said. Writing for the majority, Justice Ginsburg claims the extension "protects authors' original expression from unrestricted exploitation. Protection of that order does not raise the free speech concerns present when government compels or burdens the communication of particular facts or ideas."

So in other words, quoting columnist Dan Gillmor, "The justices might as well have just told Congress it can make copyright terms "eternity minus a second."

The implications of this terrible decision for the open source community might not be as immediately apparent as they are with the DMCA, but nevertheless, the impact is real and potentially devastating for future development efforts, especially when viewed in conjunction with the looming threat of software patents.

It was also announced that the RIAA, Recording Industry Association of America, and the BSA, Business Software Alliance, had joined in an unholy alliance to protect the 1998 Digital Millennium Copyright Act.

The Wicked Witch of the East, Hilary Rosen, opined "What we're saying is, 'We don't need our heads banged together," She said the agreement will help stem "needless legislative battles, silly rhetoric about what divides us and continuing disharmony in the public policy arena."

Rosen is chief executive for the Recording Industry Association of America, and the last thing she has on her mind is intellectual freedom. Her RIAA is a prime villain in the suppression of musical artist's rights worldwide, and second only to the MPAA (Motion Picture Association of America) in its corruption of the US Congress with infusions of tainted cash.

Joining her were the technocrats of the Business Software Alliance, who's supremo Robert Holleyman, cited the joining as a "landmark agreement."

Holleyman said leading technology companies believe the 1998 Digital Millennium Copyright Act, which unfairly restricts consumer's rights, is "generally working as it was intended. How companies satisfy consumer expectations is a business decision that should be driven by the dynamics of the marketplace and should not be legislated or regulated."

This horrendous back room deal was negotiated among the RIAA, the software alliance and the Computer Systems Policy Project. The software alliance's members include Microsoft, Apple Computer and Adobe Systems, while the policy project is made up of chief executives from IBM, Intel, Hewlett-Packard and Dell.

Lobbyists for some of the nation's largest technology companies will undoubtedly use the new "agreement" to oppose efforts in Congress to strengthen the rights of consumers to perform such quotidian acts as making backup copies of DVDs and CDs for personal use or copying songs onto handheld listening devices; not to mention the possible elimination of the hurdles that the DMCA has already placed in the way of open source, and Linux in particular.

In effect, what we're seeing here is nothing more than an attempt to derail the efforts of Congressman Rick Boucher, D-Va, and others to make Congress take a second look at how the DMCA attacks the rights of American consumers and affects how others in the world deal with them.

As the technology companies and the Hollywood Hegemony co-join with courts and legislatures to strip us of our digital rights as well as our rights under common law, the time is fast approaching where civil disobedience may be required to force our "rulers" to pay attention to our liberty rather than their campaign coffers.

Jeff Elkins is a frequent contributor to the popular libertarian web site LewRockwell.com, and his articles have been featured by the Washington Times, Worldnet Daily, Antiwar.com, Yahoo Op/Ed and Pravda, as well as many other electronic publications. His personal blog is located at http://www.elkins.org

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