I think some friends and family wonder why I am so enthralled by copyright law. Others may also wonder how it applies to my wider interest in technology law. For some time, I wasn’t quite sure myself. Indeed, over the past few years I’ve sometimes found myself discouraged by the seemingly wonky nature of the subject. Looking back, for example, at my grandfather’s legal career in civil rights, I wondered if I was being too selfish with my interests.
I’ve recently come to understand that this isn’t the case, that copyright law (and its reform) is an important matter for the American public to understand and discuss. Why? Because copyright presents a fundamental conflict between capitalism (or, profit) and freedom of speech, with nothing less than the fate of our creative culture at stake. The way we go about resolving this conflict says much about America as a liberal democracy and cultural leader in the world. And right now, we’re not doing so hot.
© = paradox
Three hundred years ago today, the world’s first copyright statute was enacted into law in Britain. The so-called “Statute of Anne” was declared “an Act for the Encouragement of Learning,” and strived to attain that goal by securing to authors a 14 year exclusive right to print and copy their work (with an option for a 14-year renewal after the expiration of the first term).
It was in a similar spirit that the drafters of the American Constitution explicitly gave Congress the power, in section 8 of Article I, “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The wonder of this “copyright clause” has only recently become apparent to me. The Constitution gives Congress the power to grant authors a government-sanctioned, limited-time monopoly on their works. Assumably, the incentive enabled by the monopoly is exclusive right to monetization of the work. Yet with the First Amendment, Congress is also prohibited from passing any law that abridges the freedom of speech. What shape, then, must a copyright law take that both gives creators the incentive they need to keep creating, while also preserving the freedom of speech for the rest of us?
Unlimited © = death of the commons
U.S. copyright laws started out pretty sensibly. The Copyright Act of 1790 followed the example of the Statute of Anne, granting authors a 14-year copyright term with an optional 14-year renewal. Even more sensibly, it required registration of the work for protection, and that a copy of the work be deposited with the Library of Congress. Subsequent revisions to copyright law, however, have not only got rid of the registration requirement but have also expanded the period of protection astronomically. In 1998, the Sonny Bono Copyright Term Extension Act granted protection for the life of the author plus seventy years (with no renewal).
It’s important to understand exactly what is being delayed with these term extensions. Once the term and any applicable renewals expire, the work passes into the public domain where it can be freely enjoyed by all. There was a reason the Founders included the words “for limited Times” in the copyright clause: they understood that the having works pass into the public domain was just as important to cultural progress as was the need to incentivize the creation of those works in the first place.
But today, there is a copyright “industry” that has every intention of never letting this happen. Take for example this quote from Mary Bono, who championed the Term Extension Act in her deceased husband’s name:
“Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. … As you know, there is also [then-MPAA president] Jack Valenti’s proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.”
Copyright forever? Why not? Well, for one, it potentially violates the constitutional goal of promoting the progress of science and art. If a creator can perpetually profit from a single creation, where is the incentive for them to create more? Further, perpetually excluding the public from making free use of the work hampers long-term creative potential. James Boyle describes it best in his recent book The Public Domain:
“Our markets, our democracy, our science, our traditions of free speech, and our art all depend more heavily on a Public Domain of freely available material than they do on the informational material that is covered by property rights. The Public Domain is not some gummy residue left behind when all the good stuff has been covered by property law. The Public Domain is the place we quarry the building blocks of our culture. It is, in fact, the majority of our culture.” (40)
© = Monopoly – free speech
In order to balance free speech interests with the exclusive rights granted by copyright, the concept of “fair use” has been introduced (first into common law, and then into statutory law with with Copyright Act of 1976). Fair use is a doctrine that allows, in certain circumstances, for third parties to make unauthorized and free use of a portion of a copyright work. It is fair use, for example, that allows you to quote from a book in your high school essays, and that allows Google to show brief snippets of webpages in its search results.
Fair use is not a hard and fast rule, however, but rather a balancing test that measures the nature of the new use, the nature of the copyrighted work, the amount of the copyrighted work used, and the effect of the new use on the current or future market for the copyrighted work. As a result, copyright owners have the upper hand in their ability to frivolously threaten, or indeed initiate, litigation against less affluent third parties who may not understand their fair use rights (or, if understood, are financially unable to defend those rights).
You have probably heard mention of the Digital Millenium Copyright Act (or, the DMCA). The DMCA criminalizes technologies that allow for the circumvention of copyright controls, and penalizes online service providers for enabling or profiting from copyright infringement by their users. Notably, however, the DMCA provides a “safe harbor” from liability for those providers who meet certain criteria.
One such requirement is that the provider remove content that is claimed as infringing through formal notice by copyright owners. Yet while the accused users are allowed to file a counter-notice claiming a fair use or other defense (and upon receipt, the material in question is restored), often the users don’t know their rights well enough to pursue such an option. Even if they do, their work may have been removed for long enough that their freedom of speech has been rendered null because of the time elapsed between takedown and reinstatement (think of election campaigns, for example). A malicious party could file frivolous DMCA notices to silence critics or opponents, thereby introducing what is referred to as a “chilling effect” on the freedom of speech.
Copyright is indeed a means to ensure creators can profit from their labors, and that is incredibly important. I am not against copyright. But that monetization is not the constitutionally-cited goal of copyright; cultural and scientific progress is. If that progress is being stifled by the very laws enabled to support it, then those laws need reform. If the rights guaranteed by the First Amendment are ignored for the benefit of economic gain promised by copyright laws, then those laws need reform.
What kind of reform? I believe Larry Lessig has outlined it best in his most recent book Remix:
- Deregulate amateur creativity. Exempt non-commercial, sufficiently “new” uses from the exclusive rights of copyright. Distinguish professional use from amateur use, and blatant “copying” from innovative remixing.
- Clear title. Make copyright an opt-in regime that requires registration. There is no sense granting exclusive rights automatically, both because there are people who don’t necessarily want them in the first place, and because the ambiguity can stifle creativity.
- Simplify. In an era when everyone can create, publish, and promote for free or next-to-nothing, we need to make copy rights and copy defenses easier to understand for everyone. The tension with freedom of expression should be highlighted, not hidden.
- Decriminalizing the copy. Copyright law talks about “copies,” but digital technologies create a copy every time you access the information they hold. You make a copy of a song when you sync it from your iTunes to your iPod: you’ve triggered copyright law, and you don’t even know it. As Lessig puts it: “If copyright regulates copies, and copying is as common as breathing, then a law that triggers federal regulation on copying is a law that regulates too far.” Instead, the law should regulate only those uses in competition with the original work.
- Decriminalize file sharing. This was the one that I felt most uncomfortable about. Lessig proposes decriminalization coupled with a file-sharing tax or a blanket license for file sharing. Efforts to sue away file sharing have only seen the practice grow or move further underground. What’s worse, Lessig argues, is that continuing to sue kids and label them as pirates erodes their basic integrity, and encourages them to see the law in general as an enemy rather than a good.
This is the fight I want to fight. The fight to restore the balance between promoting creativity and preserving free speech. This fight, friends and family, is why I want to study and work on copyright law.