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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