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Sunday, October 20, 2002

Last week, oral arguments were heard in the Supreme Court case Eldred v. Ashcroft. The petitioners, a group led by internet publisher Eric Eldred, are challenging the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998.

Now as an amateur writer, I’m not entirely unsympathetic to copyright holders. Obviously a legal regime where intellectual property is not recognized would result in unwillingness on the part of people to expend resources (time or money) on scientific or artistic endeavors. The Framers of the Constitution expressed their awareness of this principle when they allowed for the granting of copyrights and patents “to Promote the Progress of Science and the useful Art by securing for limited Times for Authors and Inventors the exclusive Right to their respective Writings and Discoveries” in Article I, Section 8, Clause 8 of the Constitution.

Now as a society, we’re very cautious about giving out monopolies, and for good reason. This monopoly seems like a good deal on balance, however. The creators get rewarded for their creativity, and the public reaps the benefits of cultural enrichment and scientific progress. After enough time has lapsed to make sure the creator was rewarded, the public is freed from having to pay monopoly prices for whatever the creator has produced and thereafter pays whatever price a competitive market will bear for the product.

Or at least that’s the way it’s supposed to work.

The length of the copyright term been ratcheted up over the years, from 14 years in 1790, eventually reaching to 70 years beyond the death of the author as a consequence of the latest extension (up from 50 years beyond the death of the author). If there is no clearly definable author (i.e. a “work for hire” where the original copyright holder is a corporate entity rather than a person) the term is 100 years – it was 75 years before the 1998 extension. This extension also applies to software, but certainly software doesn’t need this duration of protection; five year old software is usually obsolete, ten year old software has zero commercial value, and twenty year old software is literally worthless.

It was widely perceived that the Walt Disney Company was the main driving force behind the efforts of the entertainment and publishing industries to extend the copyright term, in no small part because Mickey Mouse – who first appeared in “Steamboat Willie” in 1928 – was about to pass from the realm of protected copyright. The Sonny Bono Copyright Term Extension Act of 1998 passed Congress easily with broad support from both parties, with the blessing of President Clinton.

(Note: Actually, the Walt Disney Co. can continue to protect Mickey Mouse as a trademark, provided it continues to use Mickey as a signifier, even if the original work in which Mickey appeared were to be no longer covered by copyright. Trademarks in theory can last forever if continually used. All Disney would have to prove in a court is that consumers associate Mickey with Disney so strongly they’d be likely to be confused by something not endorsed or sanctioned by Disney that had Mickey’s name or likeness on it.)

A group of internet publishers challenged the act as an unconstitutional denial of freedom of speech under the First Amendment and as an impermissible overstepping of the Constitutional authority of Congress to grant copyrights for a “limited time.” The courts, at both the District Court and Circuit Court level, got nowhere with either argument, but did get a dissenter at the appellate level.

The Supreme Court surprised some legal observers by granting the plaintiffs’ writ of certiorari, thereby agreeing to hear the appeal. It is generally agreed by most neutral observers the First Amendment argument is a non-starter here. Courts have not thrown out entire intellectual property laws – though they have granted exemptions to some classes of would-be infringers (“fair use,” for instance) - as a denial of free speech and they are unlikely to start doing so now. The other argument – the “Congress exceeded its authority” argument – is the far more interesting one. Did the court take this appeal to foreclose future challenges to copyright laws? Or did they take this appeal to draw a proverbial line in the sand or at least to assert their prerogative to do so at some future date?

For their part, copyright holders and their supporters point out that the incentive structure behind work creation isn’t quite as simple as “Isn’t a term of [n] years - or life of the author plus [n] years - enough?” Certainly one would think that there would be some economic difference in value between 50 years beyond the life of the author and 70 years beyond the life of the author, that might enrich an author, even if most copyrighted works end up under the control of someone other than the author or his or her estate. However, it’s hard to argue with a straight face that whether an author’s right to copyright protection extends 50 or 70 or 100 years after that author’s death affects the incentives all that much either way. You don’t have to take my word for it;

a panel of 17 distinguished economists, including Milton Friedman, Ronald Coase, and Kenneth Arrow, essentially argue that point in a Supreme Court amicus curiae brief. The claim that writers will find themselves unable to sustain a living without this kind of extension is laughable, especially considering that the main impetus for this legislation was holders of copyrights on behalf of persons long deceased. Adding 20 years to, say, the copyright protection of the novels of F. Scott Fitzgerald in 1998 can’t exactly give Fitzgerald the incentive to spend more time writing novels.

They also claim that there is more of an incentive to distribute and disseminate something protected by copyright than something that has passed into the public domain. At some marginal level this might be true, but if companies couldn’t make a profit distributing copies of works in the public domain, no one would do it; the fact is that you can buy everything from Hamlet to The Communist Manifesto to Leaves of Grass to the collected orations of Cicero in bookstores.

Furthermore, works still under copyright covered by this extension that retain some economic value - for instance, Gone With The Wind and Mickey Mouse - are the exception, not the rule. The great majority of works that the 1998 law placed under continued protection are forgotten; most of the books out of print, most of the films unavailable. Copyright protection is in fact doing them more harm than good since there are people out there who might scour the public domain for works to rediscover and revive. This phenomenon is most pronounced in the software field, where a subculture has developed around so-called “abandonware.”

The supporters of the extension have also clouded the debate by introducing piracy issues. This debate has nothing to do with the copyright protection claims of the artists and producers whose works are currently subject to widespread piracy. The underground markets of China are not teeming with bootleg copies of Fitzgerald books or pirated copies of Bessie Smith wax cylinders or unauthorized copies of “Birth of a Nation.” Extending the copyright term 20 or 25 years does not effect the incentives to engage in piracy or not engage in piracy, the incentives to purchase or not purchase pirated material, or the incentives of governments of any stripe to crack down upon or to turn a blind eye to piracy in their midst in any meaningful way. (What is to be done or not done about piracy is a debate for another time, dear readers.)

What’s really on the other side of this issue? Is it simply ungrateful free-loaders and pirates? We are, as both consumers and citizens, all plaintiffs in this case, as is the future of American and world culture.

The ability to freely appropriate the archetypes set down by whoever it was who wrote such myths and legends as Beowulf or Gilgamesh or by William Shakespeare or his Elizabethan contemporaries, or the poets and playwrights and philosophers of ancient Greece and Rome and China and India, or the great storytellers and orators of our nation’s past still drive our culture. If we were to permanently cede to private parties the right to exclusive control of future artistic expressions for in effect an indefinite time, we would be surrendering a lot more than even the best economists could possibly calculate.

Culture needs a public domain, a commons of images and ideas that future artists can build on, appropriating and synthesizing these base elements to create new material, which later artists can in turn build upon. Imagine how culture might have suffered if whoever the first Italian Renaissance artist was to paint “Adoration of the Magi” went around and sued everyone who tried to paint their own version, even if the lawsuits were unsuccessful. Or if Shakespeare was inhibited by copyright litigation from fashioning his plays from earlier sources.

More immediately, imagine a world where every collegiate theater company had to track down the great-great-great-great-great-great grandsons (I’m sure I left out a few “greats” there somewhere) of Shakespeare for permission (not to mention likely forking over some cash) to put their own spin on, say, “Julius Caesar.” If this sounds ridiculous, recall the legal imbroglio over The Wind Done Gone” and think to yourself that such silliness would not have persisted for so long if we didn’t have such a corporation-driven intellectual property regime that gave the Mitchell estate and their handlers this much ability to dictate the cultural dialogue concerning a cultural touchstone like “Gone With The Wind.”

While it isn’t in my opinion quite accurate to say the First Amendment and intellectual property law are contradictory, or that copyright law amounts to “censorship,” surely at the margins there is a tension between copyright protection and freedom of expression that only becomes more pronounced with each broadening of copyright law, particularly with respect to control over “derivative works.” The courts have carved out a First Amendment niche for “parodies” of existing works as covered by freedom of speech, but that’s a very difficult line to tread as it is and policies granting essentially limitless exclusive rights to control who appropriates which elements of existing works only make it dicier. They have also carved out “fair use” exceptions, which generally work for movie reviewers and academics writing papers, but don’t cover other artists generally. Would a writer be more reluctant to include allusions and references to earlier works of literature or film if he or she knew it could result in being sued? (I understand that’s a problem anyway, but at some point this question looms larger and larger as the marginal benefits of granting longer copyright monopolies dissipate.)

By placing the Copyright provision in Article I, which enumerates the powers of the legislative branch, the Constitution does put the ball in the court of Congress, giving them the right to decide the length of this “limited time,” and specifying no other constraints on this power. I’m not a huge fan of the “original intent” school of Constitutional interpretation - due to its high level of subjectivity, its failure to recognize and address that subjectivity, and its tendency to impose 18th century values (or a judge’s perception thereof) out of their proper context – but certainly one would have to concede that the phrase “limited time” must mean something.

On a practical level, however, Congress is institutionally incapable of addressing this issue. There is a concentrated interested private party (or set of parties, if you prefer) that stands to gain a good deal by expending resources on behalf of its position. On the other side is an essentially unorganized public that stands to lose, but in a more diffuse and less immediate manner. Anyone who’s taken a Political Science course (and didn’t sleep through it) knows what’s going to happen here. The private party seeking a private benefit against a diffuse public interest will expend any resources necessary (i.e. hire lobbyists and make campaign donations) to secure that benefit and will prevail. In other words, rent-seeking behavior perfectly predictable for any profit-maximizing entity.

In plain English, at the risk of sounding conspiratorial, that means that Disney, AOL/Time Warner, and other media giants can essentially buy the ability to write intellectual property law as they see fit. Congress has extended copyrights nearly a dozen times in the last half-century, irrespective of party or dominant ideology, and there’s no reason to believe it won’t do so again. And again. And so forth.

That is not to suggest I should resent the profitability of those companies, or of their desire to take steps to be more profitable, since that is what corporate entities are designed to do. It is to suggest that it is a function of the public sector to set ground rules on rent-seeking behavior, and that it ought to be a cause for concern if the public sector cannot effectively do so.

Someone has to draw the line if Congress won’t. If the Supreme Court decides that it categorically cannot do so, than the phrase “limited time” would be essentially meaningless. D.C. Circuit :

The Congress that can extend the protection of an existing work from 100 years to 120 years; can extend that protection from 120 years to 140; and from 140 to 200; and from 200 to 300; and in effect can accomplish precisely what the majority admits it cannot do directly. This, in my view, exceeds the proper understanding of enumerated powers reflected in the [
U.S. v. Lopez] principle of requiring some definable stopping point.

As of now, there is no such “definable stopping point” with respect to the Copyright Clause. It may be a bit arbitrary on the part of a court to fashion one. However, the 1995 Lopez (514 U.S. 549) decision stands for the proposition that the power of Congress to legislate pursuant to the Commerce Clause, whatever its contemplated extent, cannot be infinite. And neither should the power of Congress to legislate pursuant to the Copyright Clause.

That is not to say that defenders of this particular extension do not have at least one strong substantive point to make. This latest copyright extension harmonizes U.S. copyright law with that of the European Union, making international cooperation against piracy and infringement easier – something very much in America’s interest considering its status as far and away the world’s top creator of intellectual property. Though not in and of itself a material issue in an American court of law, world legal harmonization – particularly when it touches on valid treaties properly approved by the U.S. government (Berne Convention on International Copyright, to be exact) – is certainly something worth consideration.

But what about the next time “Steamboat Willie” (Mickey Mouse’s debut cartoon) or “White Christmas” or Gone With The Wind is about to enter the public domain?

Even if you’re going to accept the arguments of copyright holders on the merits of this particular case and this specific statute and therefore find against these plaintiffs, it would be a great loss for the American public, and for the future of American and world culture, if the door were slammed on judicial review of ever-increasing Congressional extensions of intellectual property.

Would it better if our legislators would stop giving away the store to the entertainment and publishing industries? All else being equal, yes. But it’s not the first time the courts were faced with either having to limit the powers of government when they could not be trusted to limit themselves, thereby risking charges of “judicial activism,” or to acquiesce and risk irrelevance. It won’t be the last time either.

By the way, dear readers, if you want to read more on this topic, this article in Wired magazine which encapsulates the issues involved in this case well, is a good place to start.


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