Yesterday, the Electronic Frontier Foundation provided a “reality check” of recent comments by MPAA CEO Chris Dodd regarding the current review of copyright law in the U.S. In a blog post titled Looking Deeper into MPAA’s Copyright Agenda, the organization writes the following:

Don’t Be So Sure You’ve Got The Founders On Your Side

Dodd claims that copyright as we know it is what “the founders of this republic intended.” Hardly. The first copyright act in the U.S, passed in 1790 by some of the same people who helped write the Constitution and the Bill of Rights, was very limited. It covered only books, maps, and charts – not music, theater, pamphlets, newspapers, sculpture, or any other 18th-century creative medium.  The Founders’ copyrights lasted 14 years, with an option to renew for another 14.  Today, of course, copyright covers nearly all written, visual, sculptural, architectural, and performing art, not to mention computer software and games, and it lasts for the author’s life plus 70 years.  We suspect that if anyone had described today’s copyright system to, say, Thomas Jefferson, he would have been shocked.  By all means, let’s look at how the Founders thought copyright should work, as one guidepost for fixing today’s law.

But as is true with much the organization says, the EFF’s “reality check” falls far short of reality — specifically concerning the subject matter covered by the 1790 Copyright Act.

It’s true the statute only refers to “books,” but the term was far broader. It included even a single page.1 Certainly pamphlets and newspapers were covered by the Act, though publishers of such rarely secured copyright protection, likely because the onerous registration requirements of the Act far outweighed the ephemeral quality of such publications.2

English courts have held musical compositions to fall within the Statute of Anne (which, serving as the inspiration for the US Copyright Act, also referred to “books”) since 1777.3 In the same manner, the 1790 U.S. Act likely included music in printed form — indeed, US composers began to register musical works not too long after the statute went into effect.4

Theatrical performances weren’t protected under the 1790 Act, but, as with musical compositions, written plays were protected as books. Again, the earliest copyright registration for theatrical works began within a decade of the Act.5 (Theatre took a while to rebuild during this period in large part because the Continental Congress had banned it during the Revolutionary War.)6

The EFF is technically correct that the 1790 Act didn’t include many visual works that are protected today, but if we are looking more generally at what the Founders thought of copyright, than even this point does not hold true. The Supreme Court would hold in 1884 that photographs were susceptible to copyright protection under the 1802 Copyright Act, and specifically pointed out that this act was enacted by “men who were contemporary with its formation, many of whom were members of the convention which framed it.”7 And the Court was correct; the bill was drafted by Sen. Stephen Bradley, a colonel in the Revolutionary War and a politician active in Vermont starting before the ratification of the United States, and signed into law by President Thomas Jefferson — the same Thomas Jefferson who apparently would’ve been shocked that today’s copyright covered visual works (the bill also, concidentally, doubled the statutory damages available to copyright owners).8 In addition, though motion pictures were not explicitly included as copyrightable subject matter in the Copyright Act until 1912,9 early film producers such as Thomas Edison began registering films as still photographs in the early 1890′s, a practice upheld in court.10

It is true that sculptural works were not brought within the scope of copyright law until 1870 (though limited protection under design patent provisions were available beginning in 1842).11 But copyright for sculptures is not exactly a hot button issue these days.

It’s also true that, unlike under the 1790 Act, nearly all written expression is covered under copyright law today. However, such expression was, so long as it remained unpublished, protected under common law copyright. And, unlike today, common law copyright was perpetual and not subject to traditional defenses such as fair use or first sale.12

What’s curious is that the EFF would focus so much on the provisions rather than the principles of early U.S. copyright law (never mind how incorrectly they stated the former) yet leave out so many provisions in current copyright law that the early acts lacked. For example, the 1790 Copyright Act included no statutory recognition of fair use, the first sale doctrine, or the idea/expression dichotomy; no prohibition on protecting government works by copyright;13 no exceptions for libraries, educational institutions, or non-profit groups; no centralized registration system or deposit requirement.

The grave inaccuracies contained in just a few short sentences should leave little surprise that the EFF is on shaky ground concluding that their views on copyright would be compatible with the Founders. Most Founders shared a philosophy that emphasized the primacy of private property — not just as a mechanism for prosperity but also as an essential component of a free society.14 Copyright (or literary property) was explicitly seen as a form of property by these same Founders.15 Early US copyright law is not some ideal we should gaze at with nostalgia. It had long been considered inadequate to achieve its goals of advancing the public interest and has only in recent decades evolved to provide meaningful rights to the creators that drive progress and innovation.

So it is more likely that the Founders would find current copyright law an improvement over the 1790 Act. As Thomas Paine, the Father of the American Revolution, wrote:

The state of literature in America must one day become a subject of legislative consideration. Hitherto it hath been a disinterested volunteer in the service of the revolution, and no man thought of profits: but when peace shall give time and opportunity for study, the country will deprive itself of the honour and service of letters and the improvement of science, unless sufficient laws are made to prevent depredations on literary property.16

The EFF is welcome, as it concludes in its post, to write about and promote “real copyright reform.” But it should try to do so without revisionist claims that it has history on its side.

Footnotes

  1. Robert Maugham, A Treatise on the Laws of Literary Property, pg. 74 (London 1828). []
  2. Meredith L. McGill, “Copyright“, in An Extensive Republic: Print, Culture, and Society in the New Nation, 1790-1840, pg. 199 (2010); note, too, that six of the thirteen original States explicitly included “pamphlets” within their colonial copyright statutes. []
  3. Bach v. Longman, 2 Cowp. 623 (1777). []
  4. Kevin Parks, Music & Copyright in America: Toward the Celestial Jukebox, pg. 4 (ABA Publishing 2012) (early works registered include The Rural Harmony, Being an Original Composition, in Three and Four Parts in 1793 and The Kentucky Volunteer, a New Song in 1794. []
  5. See, for example, John Burk, Bunker-Hill, “Copy-Right Secured According to Law [1797]. []
  6. Allison Sarah Finkelstein, “Unhappy Differences”: The American Revolution and the Disruption of the Course of Theatre in Virginia (April 23, 2008) (unpublished B.A. thesis, College of William & Mary). []
  7. Burrow-Giles Lithographic v. Sarony, 111 US 53 (1884). []
  8. William Patry, “Statutory Revision“, Copyright Law and Practice, n.108 (2000). []
  9. Act of August 24, 1912, Pub. L. No. 62-303, 62d Cong., 2d Sess., 37 Stat. 488. []
  10. Edison v. Lubin, 122 F. 240 (1903). []
  11. See Mazer v. Stein, 347 US 201 (1954). []
  12. See Did the 1976 Copyright Act Lessen the Orphan Works Problem? []
  13. One would recall that one of the early seminal cases in U.S. copyright law, Wheaton v. Peters, 33 US 591 (1834), involved the copying of Supreme Court opinions. []
  14. “Property must be secured or liberty cannot exist.” John Adams, Discourses on Davila, No. 13 (1790); “Let these truths be indelibly impressed on our minds: (1) that we cannot be happy without being free; (2) that we cannot be free without being secure in our property; (3) that we cannot be secure in our property if without our consent others may as by right take it away.” John Dickinson, Letters from a farmer in Pennsylvania to the inhabitants of the British Colonies, Letter xii (1767). []
  15. See, for example, Randolph J. May & Seth L. Cooper, The Constitutional Foundations of Intellectual Property, 8 Perspectives from FSF Scholars (2013); Paul Clement, Viet Dinh & Jeffrey Harris, The Constitutional and Historical Foundations of Copyright Protection, Center For Individual Freedom (2012); Myths from the Birth of US Copyright; Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993 (2006). []
  16. A Letter Addressed to the Abbe Raynal (1782). []

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13 Comments

  1. Terry, thanks for laying out the history of copyrightable subject matter. I notice you didn’t mention the statutory term of protection in the 1790 Act, which was 14 years, renewable for another 14. That, to me, is one of the best pieces of evidence as to what the authors of the Constitution meant when they endorsed copyright as a means to “promote the progress of science,” and of course what they had in mind when they said that copyrights should last for “limited times.”

    Fact is, the Founders were not of one mind about copyright, or much else, and the tension in copyright then was much the same as it is now – copyright both promotes and interferes with the free exchange of ideas, and the devil’s in the details. The Founders – especially Jefferson – recognized this tension too. If you cherry-pick quotations about the importance of private property, I think you also have to acknowledge the limits that the early Congress put on copyright, and that copyright played a much more limited role in an age where mass reproduction was expensive and limited. So Dodd’s claim that “the Founders intended” copyright as we know it today – based only on their statements about the importance of private property and on the Progress Clause – is not painting a complete picture.

    Unlike many of our public officials and public intellectuals, I don’t claim to know where the authors of the Constitution would come down on controversies engendered by 21st-century technology – and my response to Mr. Dodd didn’t make that claim. What I do know is that they conceived of copyright as a limited set of rights that balance reward to authors against public access to creative work. Your claim that the authors of the 1790 Act “would find current copyright law an improvement over the 1790 Act” is an extraordinary claim, and requires extraordinary evidence – more than a quote from Thomas Paine from 1782.

    What gets lost here is that there is no serious debate on whether or not we should have copyright. The debates we need to have are about how far copyright should reach, how long it should last, what limitations and exceptions it should have, and how harsh its penalties should be. So while it’s useful to return to first principles – I do it often – it’s important to be accurate about what those principles are, and also to recognize that laws can and must change with the times.

    These views are my own.

    • Mitch,
      it’s important, for context’s sake, to understand that the average life expectancy in the 1700′s was 35-years of age…
      Considering most creators wouldn’t create anything until starting in their late teens to early twenties, (and beyond) a 28-year copyright term would usually outlast the author…

      And i hate to nitpick sentences (oh, who am i kidding, i love it!), but this one is of TOO great of importance to let slide:
      Mitch wrote: “…copyright both promotes and interferes with the free exchange of ideas…

      umm ^ NO, and NO.

      Copyright has Zero to do with “ideas”. Period.
      If that’s what you’re basing your views on Copyrights off of, you’re WAAAY off base…
      Thank you and good day, sir!

      • James, the 35-year life expectancy of 1790 included infant mortality, which was around 15%. Life expectancy for adults was in the upper 50s, so a 28-year term did approximate the life of a typical author. Also, only a small percentage of copyrights were renewed after the initial 14 years.

        Copyright formally does not cover ideas, only the creative expression of ideas, but the distinction is vague and often metaphysical. It’s naive to insist that “copyright has zero to do with ideas.” When infringement accusations are used to censor political videos at the height of a campaign, and when a music blog is shut down by Homeland Security for a year and a half without evidence, to mention just two examples, then copyright interferes with the free exchange of ideas.

        • Copyright is to do with a Specific Personal Expression.
          You can NOT copyright an idea.

          RE “censoring” politics: The right (copyright) includes moral rights… ie, you can’t use MY creative works to promote ideals and political agendas i may not agree with. Same with you can’t use my song as a backdrop to a child porn video. or if i am a member of the ‘save the whale’ foundation, for example, you can’t use my music as the theme to your whale hunting video/fund raiser.
          This is not censorship… this is to do with potential harm to the author or songwriter, whether personal or commercial harm, i have the right to veto an UNCLEARED use of my music. If the politician asked to use the song in question for his fund-raising antics, there would be zero confusion.

          If that’s the only examples you’ve got, that’s pretty weak.. I’ve got millions upon millions of example (per week!) of the economic harm -for profit piracy- does to average working musicians and other creatives. That you can find one example in how many years? shows what exactly? That we all can guess where you get your news from?

    • What gets lost here is that there is no serious debate on whether or not we should have copyright.

      There has been serious and continuous debate for centuries, but apparently that does not count because time and time again the retention of copyright has prevailed, and overwhelmingly so. Merely as food for thought, perhaps the EFF should contemplate and thoughtfully examine other legal regimes that would certainly spring up as substitutes if copyright was ever removed from our body of law, and then assess their likely effect on the “freedoms” that the EFF so predictably promotes.

      • There is a whole lot of things that prevailed for centuries and were later struck down.

  2. Much “blood” has been spilled with all the twists and turns attempting to “divine” predecessor law (UK, colonies, statutory, common) to the Copyright Act of 1790. No useful purpose would be served here rehashing those twists and turns. It does, however, bear mentioning at least a few features of the original act that carry forward to this day, and yet seem to be relegated by certain groups to the “broom closet” of history. I will mention just a very few. First, we have the concept with which “moiety” is associated (wonder what the amount in 1790 translates to in 2013?). The birth of statutory damages anyone? Second, while Mr. Jefferson’s views are well known (even going so far as to suggest the inclusion of specific language in his submittal of proposals for inclusion in the Bill of Rights), his focus was on the “useful arts” portion of Article 1, Section 8, Clause 8, and not its “science portion”. Third, why 14 years and renewal for an additional 14 years? Check out data covering the relevant time period. Granted, the rationale is certainly less than today, but then again copyright did not have an international dimension as has been the case for quite some time.

    This is just a very, very limited list, but it does in my opinion lend some measure of credence to arguments challenging the EFF and other similar groups that constantly and predictably rail against any and all manner of copyright law.

  3. “Check out data” failed to include “for life expectancy”.

  4. Pingback: The MPAA, EFF and Terry Hart on Copyright’s History | Vox Indie

  5. Terry, it’s been a long time since I last checked out your site. As always, great stuff.

    I just wanted to add some relevant history regarding music and copyrights, which would be helpful to your story. During law school, for a seminar paper on the history of contractual and economic relationships in the music industry, I searched the process by which musical copyrights, including single-sheet ballads and broadsides, attained copyright protection. In doing so, I came across Clementi v. Golding, 170 Eng. Rep. 1069 (K.B. 1809), the text of which is long lost to me now, but which my paper (which has been preserved thanks to Dropbox!) discussed in the following context:

    “England’s Statute of Anne had long protected books, including ‘all and every sheet’ within them, and since classical compositions could be thirty minutes or longer, their printing was safely protected in multi-page volumes. But beginning in 1788, English courts began discussing whether single sheets of music, conventionally thought unprotected by musicians, could statutorily be considered ‘books.’ When Clementi v. Golding, an 1809 decision by the King’s Bench, held that single sheets were as copyrightable as multi-page works, a new and lucrative industry was given its launching pad. Financial support for musicians, even those composing individual songs or short sonatas, could be possible without [stipends from] the aristocracy.”

    The citations for the 1788 figure included Storace v. Longman (1788) and Hine v. Dale (1804); they were, if I remember correctly, cited by the Clementi decision, which, again, if I remember correctly, I had found in an early American case on musical copyright infringement.

    During my research I also uncovered the very first American copyright infringement cases regarding musical compositions, which were Millet v. Snowden, 17 F.Cas. 374 (S.D.N.Y. 1844) (dispute over the ballad, “The Cot Beneath The Hill”), Reed v. Carusi, 20 F.Cas. 431 (D. Md. 1845) (dispute over the ballad, “Old Arm Chair”), and Jollie v. Jaques, 13 F.Cas. 910 (S.D.N.Y. 1850) (dispute over “The Serious Family Polka”). I thought this information might be useful, or, at least, entertaining.

    All the best.

    L

  6. The robber barons of Silicon Valley strike again. That’s quite a crew of dishonest lawyers they’ve hired over at the EFF.

    • I’m a lawyer. No one has ever directly accused me of being dishonest. I am not affiliated with the EFF, nor an EFF member. In fact, I believe the EFF has had to make declarations in various courts around the country stating that I’m not directly associated with them.

      I’m a practical kind of guy and I see all kinds of practical problems with all kinds of laws. If we didn’t have these problems inherent in law interpretation, we wouldn’t need lawyers or judges. Our words, and legal notions however we use them, are prone to be imperfect descriptions of such concepts.

      Copyright has everything to do with ideas.

      • And? So?

        Would you like a cookie for dancing around the issue and my pointed statement?

  7. Pingback: The Copyright Law Act of 1976 | Blissfire Media Business Tools