Why I’m interested in copyright law

© Geek and Poke /​ cc-by-nd

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.

© needs reform

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

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