Copyright law in recent decades has seen a number of shaky claims and arguments grow in popularity. These arguments are often based on faulty logic, historical revisionism, or erroneous facts. Nevertheless, they have a surface appeal that aids in their dissemination. The result is a rather well-developed copyright “mythology” which presents a mistaken view of copyright’s history, its goals, and its effects.
Below is a collection of seven law review articles that critically examine many of these myths, correcting the distortions caused by, in the words of one of the authors, the “scholarly house of mirrors” that increasingly permeates discussions of copyright. I’ve cited to or discussed most of these articles on this site before, but I think they all deserve a special mention on their own. Enjoy!
The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection
Link. Scott M. Martin, 36 Loyola L.A. Law Review 253 (2002).
This article was written before the US Supreme Court upheld Congress’s authority to extend the term of copyright protection in Eldred v. Ashcroft, and many of the arguments have been vindicated by that decision. But Martin debunks other common myths surrounding copyright duration that are still around today, including “Congress ran rampant by granting term extensions, enacting eleven extensions in just forty years, and must be stopped by the courts”, “copyright good, public domain better”, “extensions of the term of copyright protection are an affront to, and an impingement on, First Amendment rights”, and “the Sonny Bono Copyright Term Extension Act of 1998 was the worst kind of special-interest legislation engineered by Disney to satisfy its insatiable corporate greed.” The last one especially skewers the premises of those who refer to the CTEA as the “Mickey Mouse Protection Act.”
The Progress of Knowledge: A Reexamination of the Fundamental Principles of American Copyright Law
Link. David A. Householder, 14 Loyola L.A. Entertainment Law Review 1 (1993).
Householder embarks here on a “systematic reevaluation of the basic policy and principles of American copyright law by returning to the source of such law, the Copyright Clause of the United States Constitution.” The article shines a light on “a number of concepts that, through ritualistic incantation have attained the unfortunate status of basic tenets of copyright law, even though they have little if any relevance to the basic purposes of American copyright law.” Since i predates even the NII White Paper, the concepts could be considered the “old guard” of copyright critiques; they include: “1. A copyright is a monopoly; 2. Copyright is intended to motivate creativity; 3. Copyright law makes reward to the owner a secondary consideration; 4. The public interest is served primarily by the limited duration of copyright; and 5. The public interest competes with the interests of individual authors.”
Reason or Madness: A Defense of Copyright’s Growing Pains
Link. Marc H. Greenberg, 7 John Marshall Review of Intellectual Property Law 1 (2007)
Greenberg takes on seven of the leading arguments against existing copyright law in this post-Eldred article.
a. Argument One: The expansion of copyright protection has been driven by media conglomerates, who have received from the legislature an allocation of entitlements, to the significant detriment of individuals and the public at large.
b. Argument Two: Copyright’s principal purpose is to provide economic benefits to owners—this property right should not trump the First Amendment rights of users.
c. Argument Three: Changes in the scope and term of copyright law since the 1970 Nimmer article, as well as the nature of digital technology and the greater ease achieved in copying content, render Nimmer’s immunity doctrine out of date and in need of change.
d. Argument Four: Since copyright deals with content, the law should be subject to a strict scrutiny analysis as to its impact on First Amendment rights, and under such scrutiny, it clearly violates the First Amendment rights of users.
e. Argument Five: Some form of compulsory licensing for all copyrighted works should be sufficient to address the concerns of owners, which after all are principally economic in nature.
f. Argument Six: Free speech rights include the right to use the words or other expression of another in expressing your own point of view.
g. Argument Seven: The idea/expression doctrine and the fair use doctrine have become too rife with uncertainty to afford meaningful protection to users
Copyright and Incomplete Historiographies – of Piracy, Propertization, and Thomas Jefferson
Link. Justin Hughes, 79 Southern California Law Review 993 (2006)
Meanwhile, Justin Hughes reaches back to the dawn of US copyright law to see how closely it matches the version of history frequently used by copyright scholars. He concludes that “historical claims frequently made in arguments about the propertization of copyright are incomplete,” and specifically focuses on three common examples: “the newness of the word ‘piracy,’ Thomas Jefferson’s views on intellectual property, and the history of the phrase ‘intellectual property.’” Hughes other work, which goes into more detail surrounding historical and other aspects of copyright law, is worth checking out.
Economists’ Topsy-Turvy View of Piracy
Link. Stan Liebowitz, 2 Review of Economic Research on Copyright Issues 5 (2005)
Recent scholarship on the effects of piracy have retreated from the traditional view that unauthorized copying always harms copyright holders. Liebowitz notes that in some situations, there is no harm — his own earlier work even demonstrated this. But the exceptions today have seemed to swallow the rule, resulting in economic literature on piracy that is “badly out of kilter” and tends to embrace views that are “more traditionally known as a breakdown in civilization.” Liebowitz uses this article to set the record straight and provide “a more balanced and nuanced view of copying.”
Remix Without Romance
Link. Thomas W. Joo, 44 Connecticut Law Review 415 (2011)
Joo devotes his article, featured previously on this site, to only two myths, but these are two myths that serve a central role in what could be called “free culture”, and thus deserving of thorough treatment. The first is that copyright law stifles “recoding and remixing” — Joo focuses specifically on the practice of digital sampling in music. The second is that if this were true, copyright law should adapt, because “by enabling more people to participate in culture, remixing and recoding supposedly enhance ‘semiotic democracy’ and mitigate the dominance of the media industry.” As Joo explains, if the goal is to facilitate “semiotic democracy,” than weakening copyright law to allow more remixing is the wrong way to reach that goal, since doing so would only tend to reinforce dominant cultural expression.
Constructing Copyright’s Mythology
Link. Thomas Nachbar, The Green Bag, Vol. 6 (2002)
Last, but not least, is the briefest article of the seven, and perhaps the most readable for non-lawyers. Written while Eldred v. Ashcroft was pending in the Supreme Court, Nachbar dismantles the historical claims made by those arguing in favor of striking down the Copyright Term Extension Act on constitutional grounds. He explains that these claims — for example, that copyright was designed solely as an incentive to create works, or that it was originally intended to limit the power of publishers — amount to little more than mythology. Nachbar concludes by noting the dangers of relying on such historical myths to shape copyright policy today.