The good guys lost Eldred v. Ashcroft. Now what?
Eldred v. Ashcroft, a case that challenged the Sonny Bono Copyright Term Extension Act, made it to the Supreme Court last year, shepherded from start to finish by Lawrence Lessig, Stanford law professor, author, constitutional scholar and former clerk for Supreme Court Justice Antonin Scalia. Oral arguments were heard in October. On January 15, 2003, the justices struck down the challenge. The vote was 7-2. Justice Ginsberg wrote the majority opinion. Justices Stevens and Breyer wrote dissents.
Since then a large body of public thinking has gathered around the legal and political issues involved. Here is a short list of links:
Lawmeme, Copyfight, GrepLaw and Bag & Baggage have also provided piles of coverage and many links to more sources of wisdom (B&B's list of law weblogs is comprehensive).
Somewhere in the midst of all the hubbub, I did my own thinking out loud at the American Open Technology Consortium (AOTC) site, suggesting that the reasons for Eldred's failure had more to do with language than with politics and law:
I believe Hollywood won because they have successfully repositioned copyright as a property issue. In other words, they successfully urged the world to understand copyright in terms of property. Copyright = property may not be accurate in a strict legal sense, but it still makes common sense, even to the Supreme Court...
Watch the language. While the one side talks about licenses with verbs like copy, distribute, play, share and perform, the other side talks about rights with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate, infringe, and steal. This isn't just a battle of words. It's a battle of understandings.
To my surprise, Professor Lessig found my idea convincing. In Doc's Diagnosis, he wrote,
Doc has a brilliant and absolutely correct diagnosis at the American Open Technology Consortium website about how we lost in Eldred. Copyright is understood to be a form of simple property. The battle in Eldred thus sounded like a battle for and against property. On such a simple scale, it was clear how the majority of the Court would vote. Not because they are conservative, but because they are Americans. We have a (generally sensible) pro-property bias in this culture that makes it extremely hard for people to think critically about the most complicated form of property out there — what most call "intellectual property." To question property of any form makes you a communist. Yet this is precisely our problem: To make it clear that we are pro-copyright without being extremists either way.
So deep is this confusion that even a smart, and traditionally leftist social commentator like Edward Rothstein makes the same fundamental mistake in a piece published Saturday. He describes the movement, of which I am part, as "countercultural," "radical," and anti-corporate. Now no doubt there are some for whom those terms are true descriptors. But I for one would be ecstatic if we could just have the same copyright law that existed under Richard Nixon.
Our problem is, as Doc rightly points out, that we have so far failed to make it clear to the world who the radicals in this debate are. Until 1976, the average copyright term in the United States was 32.2 years (the maximum term was 56 years, but 85% failed to renew their copyright after 28 years). In the last forty years, that term has tripled — every single work copyrighted today will remain copyrighted for an average of at least 90 years. Rothstein says that lots has entered the public domain since 1928. Indeed, he is right. But that was because copyrights expired every year between 1928 and 1962, and copyright until 1976 required renewal for an author to get the benefit of a maximum term. Under current law, however, absolutely nothing created now will enter the public domain for at least a century. And because of the Sonny Bono Act, nothing will enter the public domain again in the United States until 2019.
How to change the debate is the hardest thing. But rather than philosophy, perspective and pragmatics seems the best way. Build a public domain (which CreativeCommons will help to do), and show people and companies how the public domain helps them. Indeed, of all the companies out there, this is the one point Disney should certainly understand: Now that they have won the Eldred case, they should be racing to embrace the Eldred Act. No company has depended more upon the public domain. The Eldred Act would give them much more to build upon.
I agree about perspective and pragmatics. But I still think we lose as long as copyright (and, for that matter, patents) are perceived as simple property.
The question at this point is, how do we out-simple simple?
Duhaime's Law Dictionary defines property this way:
Property is commonly thought of as a thing which belongs to someone and over which a person has total control. But, legally, it is more properly defined as a collection of legal rights over a thing. These rights are usually total and fully enforceable by the state or the owner against others. It has been said that "property and law were born and die together. Before laws were made there was no property. Take away laws and property ceases." before laws were written and enforced, property had no relevance. Possession was all that mattered. There are many classifications of property, the most common being between real property or immoveable property (real estate such as land or buildings) and "chattel", or "moveable" (things which are not attached to the land such as a bicycle, a car or a hammer) and between public (property belonging to everybody or to the state) and private property.
In National Review, John Bloom puts the same thing this way:
Whoever turned "copy right" into one word had to be a lawyer. We don't say "freespeechright" or "gunright" or "assemblyright" or "religionright."
As a result, 99 percent of the public thinks that a copyright is some kind of formal legal document. They think you have to go get it, or protect it, or defend it, or preserve it, or buy it, or hire a lawyer to make sure you have it.
On the contrary, it's simply a right, like all our other rights, and it goes like this: Whoever creates something that has never been created before has the exclusive right to copy it.
It's not the person who registers it with the Library of Congress. It's the person who does it first. Just the act of creation makes the right kick in.
Unlike other rights, though, this one is transferable. You can sell your copyright, license your copyright, or give your copyright away. What's most often done is that you let a big company — say, a book publisher — use the copyright for a specific period of time, in return for money, and at the end of that period the right reverts back to you.
One other difference: This is a right with a specific term.
The Founding Fathers wanted that term to be 14 years, with an additional 14 years if the author were still alive. After 28 years, they figured you'd had your chance to exploit your creation, and now it belonged to the nation at large. That way we would never end up with a system of hereditary privilege, similar to the printers guilds of Renaissance England, who tied up rights to dead authors and tightly controlled what could or could not be printed and who could or could not use literary material.
In America, land of free ideas as well as free people, this would never happen, they said.
Well, it's happened. It's happened because for years now Congress has allowed it to happen. We now have an exact replica of the medieval Stationers' Company, which controlled the English copyrights, only its names today are Disney, Bertelsmann, and AOL Time Warner. The big media companies, holding the copyrights of dead authors, have said, in effect, that Jefferson, Madison, and Hamilton were wrong and that we should go back to the aristocratic system of hereditary ownership, granting copyrights in perpetuity. To effect this result, they've liberally greased the palms of Congressmen in the form of campaign contributions — and it's worked...
The Sonny Bono Copyright Term
In the name of Mickey Mouse and other American icons, we have gradually lengthened that 14-year limit on copyrights. At one time it was as much as 99 years, then scaled back to 75 years, then — in one of the most anti-American acts of the last century — suspended entirely in 1998. The Sonny Bono Copyright Term Extension Act of that year says simply that there will be no copyright expirations for 20 years, meaning that everything published between 1923 and 1943 will not be released into the public domain. Presumably they'll take up the matter again in 2018 and decide whether any of these books, movies, or songs are ever set free. There are 400,000 of them.
What's especially hypocritical about this law is that many of the works produced in this period, such as The Wizard of Oz , are based on works from previous centuries that are already in the public domain. It's as though Congress is saying that it would be wrong for the heirs of the Brothers Grimm to own a perpetual copyright to Snow White and the Seven Dwarves , because it belongs to all people, but Walt Disney's version of it is so sacrosanct it should earn money forever. Besides, if he really is cryogenically preserved, he'll need those royalties when he comes back to visit. (And this was a man who stole from everybody.)
I don't think it's hard to see who was greasing the skids to get a law passed that seems unconstitutional on its face. With 1923 as the cutoff date, all sound movies are protected for another 20 years. All pre-war Broadway musicals are protected. All swing-era music is protected. Even the song "God Bless America" falls into this period, so I hope you people are sending in your residuals.
Of all the stuff I've read on the subject, nothing puts the case better.
And yet the case failed.
That failure is
Worse, it's just the failure in a long series of battles between the Forces of Tech and the Forces of Content.