3 Things I Learned When My Site’s Traffic Increased 25,000% in One Day — Self-published comics artist Lars Martinson reports on the results of blowing up on Reddit. 48,000 extra visitors led to 23 e-book sales.

Elliott v Google complaint — Is “Google” at risk of becoming generic? An individual had registered several domain names that included the word “google” in them. Google won a domain name dispute against the individual, so he has now filed a complaint in federal court seeking to have Google’s trademark cancelled, arguing that the term is generic. The claim is not entirely frivolous — here’s a 2006 article pondering the same issue. Also see the Wikipedia entry on google (verb).

It’s not the song, Stupid, it’s the right — Filmmaker David Newhoff on the reaction to the Supreme Court declining to hear Joel Tenenbaum’s latest appeal: “What the children of the digital age need to learn as they are now entering the world of grown-ups is that it’s not the song or the movie or the book they’re stealing, but the rights of the creator.  When a few million college kids copy and share a digital file of a creative work, they believe this is not stealing because 1) they’re focused on the file itself; and 2) they’re focused on what they want.  And it is always the folly of youth to confuse desire with rights while failing to recognize, to paraphrase Kant, that their rights end when they infringe on the rights of another.”

Amazon bans Kindle Store spam (finally) — Amazon appears to have a new policy of not accepting so-called “private-label rights content” and undifferentiated public domain content. Good move.

PA criticises ‘tawdry theft’ of copyright — Publishers Association chief executive Richard Mollet had strong words for organizations such as the Open Rights Group, saying they have “the temerity to appropriate the language of freedom of expression as a cloak for their tawdry theft” in a “a grotesque attempt to draw moral equivalence between stealing someone’s work and the struggle for political representation.”

It’s Broken: Google Is Now Fielding 300,000 Takedown Requests a Week… — Google released data on DMCA takedown notices it receives for its search engine this week. Paul Resnikoff at Digital Music News asks, “At what point do we admit that the DMCA just isn’t working? That diligent DMCA takedowns are great news for companies like Google, and a horrible cat-and-mouse reality for content owners?”

Op-ed: New digital music licenses good for fans, entrepreneurs — Cary Sherman, David Israelite, and Lee Knife announce new, easy to use “mechanical licenses” for five digital business models. Great news for artists, entrepreneurs, and fans.

New Study Confirms Benefits of Intellectual Property to State Economies — Creative America reports on a new study from the US Chamber of Commerce that breaks down the positive impact of IP state by state.

“Your Horses Seem to be Winning”: The European Commission’s Antitrust Case Against Google Matters to Artists and Songwriters — Chris Castle notes: “For artists, these cases are important because the central theme boils down to this:  If Google just offered search and sold its Adwords and Adsense products, the fact that the company had achieved at least a dominant position if not a monopoly over search on the Internet would not necessarily be bad.  It’s not illegal to be a monopolist. The harm comes with the almost inevitable hubris accompanying a monopoly position and the abuse of that monopoly position in one business line (or ‘vertical’) to extend the monopoly into other verticals.  This is particularly true when the monopoly profits from one vertical are used by the monopolist to subsidize another firm wholly owned by the monopolist that extends the monopoly to another vertical.”

GUEST POST: Enforcing Copyright is a Win for Both U.S. Media and the World’s Creative Upstarts — Prof. Mark F. Schultz talks about the importance of trade agreements like the TPP. They benefit not only US creators, but also its trading partners. Schultz points out especially the “Korean Wave” and Nollywood.

“I’m totally against piracy. It’s makes it very difficult for micro-budget filmmakers to make a living.” — Eduardo Sánchez, drector Blair Witch Project and Lovely Molly.

IMAGiNE Member Pleads Guilty to Criminal Copyright Infringement — One of the four members of the BitTorrent group plead guilty as part of a plea bargain to one count of conspiracy to commit criminal copyright infringement. The four members are alleged to have reproduced and distributed “tens of thousands of illegal copies of copyrighted works.” Still awaiting statements in support of this case from the EFF and Public Knowledge. In 2002, EFF attorney Fred von Lohmann (now senior copyright counsel at Google), said “a few targeted lawsuits [against P2P pirates] would get the message across.” Also that year, Public Knowledge president Gigi Sohn testified to Congress that “An industry-initiated lawsuit against a large-scale infringer could also have the benefit of serving as a deterrent to other bad actors. As we have seen in other contexts, specifically targeted lawsuits and other legal action can have a deterrent effect, and also educate the public as to what is legal.”

A context for innovation — Faza says: “As it happens, we live in an age of fascination with the internet and computers in general. Almost anything to do with the internet is subject to ‘gosh, wow’ media coverage, governments worldwide are hell-bent on fostering ‘digital development’ and there’s a whole lot of money to be made from the unlikeliest of activities. It is therefore unsurprising that innovators are drawn to this sphere, given how it looks like anything with the words ‘social’ or ‘cloud’ guarantees instant funding, media-swooning and dinners at the White House (okay, maybe not that last bit, unless you’ve already made a shedload of money). That these innovations may not actually improve anybody’s life very much (with the exception of the founders and the VCs that back them) tends to escape notice.”

The Human Rights of Artists — Important article from Chris Castle over at The Trichordist. Castle examines the undermining of artists’ human rights by tech companies and their soft lobbyists and the failure of governments to protect these rights.

In Plain English: Cambridge University Press v. Brecker — Copyright Alliance legal intern Joan Blazich explains this week’s court opinion in the lawsuit between major academic publishers and Georgia State University over the college’s e-reverse system. A great introduction to the decision.

“Say It Ain’t So, Joe, Again, and Again, and Again …”: A Legacy of Continued Bad Behavior at Google — Eric Clemons lays out the case against Google’s current governance structure. “In fairness, no one could be trusted or should be trusted with so much power. We did not trust AT&T with this much power in 1913 when it controlled the vital telecommunications industry in the United States. And we cannot today trust Google to be the arbiter of its own behavior when it controls so much of our access to the Internet. “

Continuing from Tuesday’s post, below are some more common myths about copyright from the Founding period of the US. There’s a good deal of overlap between many of these, so I will try to limit discussion here to new points to avoid repetition.

Copyright was originally created as a utilitarian law. 1Berin Szoka, Scott Cleland Abandons his Regulatory Skepticism, Misunderstands the Copyright Clause, Technology Liberation Front (Nov. 3, 2011): “if the the Copyright clause is ‘clearly’ anything, it is utilitarian”; Christopher Sprigman, Copyright and the Rule of Reason, 7 Journal on Telecommunications and High Technology Law 317 (2009): “Copyright is sometimes justified as the appropriate reward for an author’s creative labor. And copyright is also sometimes justified as a way that we acknowledge an author’s strong interest in a creation that reflects and embodies his or her personality. But the dominant justification for copyright, at least in the United States, is explicitly utilitarian. Congress’s power to create patent and copyright laws is provided for explicitly in our Constitution, and—uniquely among the provisions describing Congress’s powers—the grant contains a purpose clause that sets out an explicitly utilitarian rationale. Congress is given the power to pass patent and copyright laws ‘[t]o promote the Progress of Science and useful Arts.'”

It is generally stated that copyright in the US (and other Anglo countries) is based on utilitarianism while copyright in Continental countries is based on natural or moral rights. 2See Intellectual Property (Stanford Encyclopedia of Philosophy) and Philosophy of copyright (Wikipedia). But this claim goes further: the utilitarian justification for US copyright is explicitly contained in the text of the Copyright Clause, and natural rights or property talk has no place in the copyright policy arena. In his book Moral Panics and the Copyright Wars, William Patry has even gone as far as to say that the US Supreme Court actually declared the Lockean justification for copyright unconstitutional. 3Patry, Moral Panics, pg. 66 (2008). How the Supreme Court can declare a philosophical rationale for a law unconstitutional is beyond me.

In my earlier post, I showed that there is plenty of evidence that the Founders thought of copyright in a natural rights context or as property. Additional evidence reinforces that point.

The state statutes and the first federal Copyright Act were heavily influenced by England’s Statute of Anne, both in substance and, in many cases, the actual language. 4See Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Technology Law Journal 1427 (2010). But it’s the differences between the first Copyright Act and these earlier statutes that demonstrate the Founders were thinking of copyright as a natural right at least as much as a utilitarian law.

Most notably, the Statute of Anne provided that third parties could bring a complaint if the price of any book was “High and Unreasonable”, giving the government the power to set a reasonable compulsory price. Five of the States that passed copyright statutes — Connecticut, Georgia, New York, North Carolina, and South Carolina — adopted similar provisions. These provisions are decidedly utilitarian; Georgia, for example, stated in the beginning of its Act that “the principles of natural equity and justice, require that every author should be secured in receiving the profits that may arise from the sale of his works,” but later noted that “it is equally necessary for the encouragement of learning that the inhabitants of this State be furnished useful books &c. at reasonable prices.”

The Copyright Act of 1790, however, did not include any such provision.

The utilitarian justification for copyright was present at this time, but the evidence doesn’t suggest that it was anywhere near the “clear” or “explicit” basis for early US copyright law that some suggest. 5See also Patrick Cronin, The Historical Origins of the Conflict Between Copyright and the First Amendment, 35 Columbia Journal of Law and the Arts 221, 225-26 (2012), “The Copyright Clause did not solely embody one particular theory explaining why authors should be entitled to exclusive rights to their writings… the founding generation was ambivalent about what theory supported copyright”; Richard A. Spinello and Maria Bottis, A Defense of Intellectual Property Rights, pg. 39 (2009): “The currently dominant American intellectual property doctrine, that copyright and right to an invention are necessary because they function as a mechanism supplying the necessary incentives to authors and inventors so that they produce, is not easy to detect as such in the major accepted historical sources of common and civil copyright law”; Jane Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tulane Law Review 991 (1990).

The Founders were suspicious of monopolies, including copyright. 6Lewis Hyde, How to Reform Copyright (Oct. 9, 2011): “The founding fathers considered copyright a ‘monopoly privilege’ and, as Madison later wrote, ‘Monopolies … ought to be granted with caution … .'”; Stephen Kinsella, How to Slow Economic Progress (June 1, 2011): “the American founders… were nervous about monopoly privilege.”; Lydia Pallas Loren, The Purpose of Copyright (2000): “The framers of the United States Constitution, suspicious of all monopolies to begin with, knew the history of the copyright as a tool of censorship and press control.”

Schwartz and Treanor do an excellent job of examining this claim in their paper Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property. They note that this broad suspicion of monopolies applied to the Founders fails under scrutiny. Those who make this claim focus on only “one group of Founders to the exclusion of other groups,” leading to an inaccurate historical picture that presents the debate over monopolies “as one pitting Thomas Jefferson and George Mason (both deeply opposed to the creation of government monopolies) against James Madison (with his reluctant acceptance of a very limited class of monopolies)”, wholly ignoring those Founders who would become Federalists and others who “believed monopolies could advance the commonweal.”

Schwartz and Treanor conclude:

This is a one-sided history; it leaves out the other political party, with its very different view about monopolies. It would be like a study of modern American views on tax policy or abortion that saw the gamut of differences as running from Trent Lott to George W. Bush and ending there.

What makes this reliance on those Founders who expressed opposition to monopolies especially shaky is that, in the end, the Constitution and Bill of Rights did not expressly prohibit monopolies. This, despite Jefferson privately telling Madison such a provision should be added to the Constitution, 7Thomas Jefferson, letter to James Madison (Aug. 28, 1789): “For instance, the following alterations and additions would have pleased me… Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding ——— years, but for no longer term, and no other purpose.” Mason refusing to support ratification because Congress was not restricted from granting them, 8Objections of the Hon. George Mason, one of the Delegates from Virginia in the Late Continental Convention, to the Proposed Federal Constitution; Assigned as His Reasons for not Signing the Same (Oct. 1787): “Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they shall think proper.” and four states proposing Amendments to that effect during ratification. 9Massachusetts (February 6, 1788), New Hampshire (June 21, 1788), and North Carolina (November 21, 1789) sought amendments that Congress “erect no Company of Merchants with exclusive advantages of commerce.” New York (June 17, 1788) passed a resolution when it ratified stating “that nothing in the said Constitution contained shall be construed to authorize Congress to grant monopolies, or erect any company with exclusive advantages of commerce.”

And even accepting a certain level of aversion to monopolies, there appears to be a well-established distinction between general commercial monopolies — exclusive government grants to engage in existing trades and enterprises — and the “monopolies” recognized for inventors and authors.

Nearly a century and a half before the Bill of Rights, in 1641, the Massachusetts General Court established the Body of Liberties, “the first legal code established by European colonists in New England.” Among its provisions: “No monopolies shall be granted or allowed amongst us, but of such new Inventions that are profitable to the Countrie, and that for a short time.” A similar law was passed by Connecticut in 1672: “That there shall be no Monopolies granted or allowed amongst us, but of such new Inventions as shall be judged profitable for the Country, and that for such time as the General Court shall judge meet.”

At least one supporter of general monopolies sought to persuade of their benefit by making a favorable comparison to copyrights and patents. American pastor Nicholas Collin, writing in response to those amendments offered by the four states to limit monopolies, noted that though they are “in general pernicious”, “exceptions must be admitted.” 10Nicholas Collin, Remarks on the amendments to the federal constitution, number X (Philadelphia, Nov. 1, 1788). Collin spoke of the “risk and expense” that a company of merchants undertook to establish a trade in new and remote markets, and the benefit to the public that would result from an exclusive grant to such merchants. “A temporary monopoly of this kind,” said Collin, “may be vindicated upon the same principles upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author.”

Perhaps the strongest distinction was made by future Supreme Court Justice James Iredell, who, writing as “Marcus,” printed his pamphlet on “Answers to Mr. Mason’s Objections” in January, 1788. 11Reprinted by Griffith John McRee in Life and correspondence of James Iredell, vol. 2, pg. 186 (1863). Iredell responded to Mason’s claim that the Necessary and Proper Clause allowed Congress to grant trade monopolies, stating that no language in the Constitution could allow such power. Iredell saved his sharpest rebuke for this footnote:

One of the powers given to Congress is, “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.” I am convinced Mr. Mason did not mean to refer to this clause, he is a gentleman of too much taste and knowledge himself to wish to have our government established upon such principles of barbarism as to be able to afford no encouragement to genius.

References   [ + ]

1. Berin Szoka, Scott Cleland Abandons his Regulatory Skepticism, Misunderstands the Copyright Clause, Technology Liberation Front (Nov. 3, 2011): “if the the Copyright clause is ‘clearly’ anything, it is utilitarian”; Christopher Sprigman, Copyright and the Rule of Reason, 7 Journal on Telecommunications and High Technology Law 317 (2009): “Copyright is sometimes justified as the appropriate reward for an author’s creative labor. And copyright is also sometimes justified as a way that we acknowledge an author’s strong interest in a creation that reflects and embodies his or her personality. But the dominant justification for copyright, at least in the United States, is explicitly utilitarian. Congress’s power to create patent and copyright laws is provided for explicitly in our Constitution, and—uniquely among the provisions describing Congress’s powers—the grant contains a purpose clause that sets out an explicitly utilitarian rationale. Congress is given the power to pass patent and copyright laws ‘[t]o promote the Progress of Science and useful Arts.'”
2. See Intellectual Property (Stanford Encyclopedia of Philosophy) and Philosophy of copyright (Wikipedia).
3. Patry, Moral Panics, pg. 66 (2008). How the Supreme Court can declare a philosophical rationale for a law unconstitutional is beyond me.
4. See Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Technology Law Journal 1427 (2010).
5. See also Patrick Cronin, The Historical Origins of the Conflict Between Copyright and the First Amendment, 35 Columbia Journal of Law and the Arts 221, 225-26 (2012), “The Copyright Clause did not solely embody one particular theory explaining why authors should be entitled to exclusive rights to their writings… the founding generation was ambivalent about what theory supported copyright”; Richard A. Spinello and Maria Bottis, A Defense of Intellectual Property Rights, pg. 39 (2009): “The currently dominant American intellectual property doctrine, that copyright and right to an invention are necessary because they function as a mechanism supplying the necessary incentives to authors and inventors so that they produce, is not easy to detect as such in the major accepted historical sources of common and civil copyright law”; Jane Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tulane Law Review 991 (1990).
6. Lewis Hyde, How to Reform Copyright (Oct. 9, 2011): “The founding fathers considered copyright a ‘monopoly privilege’ and, as Madison later wrote, ‘Monopolies … ought to be granted with caution … .'”; Stephen Kinsella, How to Slow Economic Progress (June 1, 2011): “the American founders… were nervous about monopoly privilege.”; Lydia Pallas Loren, The Purpose of Copyright (2000): “The framers of the United States Constitution, suspicious of all monopolies to begin with, knew the history of the copyright as a tool of censorship and press control.”
7. Thomas Jefferson, letter to James Madison (Aug. 28, 1789): “For instance, the following alterations and additions would have pleased me… Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding ——— years, but for no longer term, and no other purpose.”
8. Objections of the Hon. George Mason, one of the Delegates from Virginia in the Late Continental Convention, to the Proposed Federal Constitution; Assigned as His Reasons for not Signing the Same (Oct. 1787): “Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they shall think proper.”
9. Massachusetts (February 6, 1788), New Hampshire (June 21, 1788), and North Carolina (November 21, 1789) sought amendments that Congress “erect no Company of Merchants with exclusive advantages of commerce.” New York (June 17, 1788) passed a resolution when it ratified stating “that nothing in the said Constitution contained shall be construed to authorize Congress to grant monopolies, or erect any company with exclusive advantages of commerce.”
10. Nicholas Collin, Remarks on the amendments to the federal constitution, number X (Philadelphia, Nov. 1, 1788).
11. Reprinted by Griffith John McRee in Life and correspondence of James Iredell, vol. 2, pg. 186 (1863).

History is fascinating, but I’m not a historian. That’s one of the reasons I use footnotes on this site — it’s a way to “show my work” so that readers can see the basis for factual claims I make, including historical claims. And anyone who shares this fascination with history knows how common it is to find inaccurate, misleading, or just plain wrong claims.

There’s several problems with bad history. Inaccurate history is wrong on its face. We as a society value truth over falsity. And our understanding of history can be both a powerful tool for positive change – “Those who cannot remember the past are condemned to repeat it.” 1George Santanaya, The Life of Reason; or the Phases of Human Progress (1905). – or an ideological weapon – “Who controls the past controls the future: who controls the present controls the past.” 2George Orwell, 1984 (1949).

Second, using inaccurate history to advance an argument should send up red flags. If historical claims are sloppy, than it’s reasonable to question what other parts of an argument are sloppy. And if history is deliberately misstated, than it’s entirely fair to wonder about a hidden agenda.

Copyright and History

Since copyright is a legal doctrine, much of what is written about it is by lawyers, jurists, and legal scholars — not historians. Lawyers are advocates, and thus, more often than not, use history more as a tool for arguing a particular interpretation of a legal doctrine rather than studying it as a field in and of itself. That’s not to say that there aren’t excellent legal historians out there; it’s just imperative to recognize the limitations of historical research from nonhistorians, particularly those with a legal background.

Especially when inaccuracies have no problem being repeated and spreading in legal scholarship. Law professor Justin Hughes has observed this phenomenon in the IP field:

The lawyer—hence, most legal academics—prepares just enough precedent to convince. And that may produce one of the little oddities about legal scholarship. Instead of researching and citing primary materials, intellectual property scholarship frequently refers only to other legal scholarship for evidence of nonlegal data. As I will show, the practice of citing only legal scholarship for evidence of nonlegal data means that a few casual but incomplete historical claims by a few respected legal scholars can get replicated through the system—and beyond. And this has a rather twisted effect: a wonderfully heartening development— nonspecialists engaged in a more open, more popular discourse about copyright—gets accidentally co-opted into repeating these historically doubtful claims. 3Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993 (2006).

It seems to me that there are two general purposes to this historical revisionism. One is an appeal to nostalgia: copyright law at the dawn of the United States represented an ideal version of the law, with correctly recognized purpose and appropriately balanced means. Somewhere along the line, we’ve lost sight of how copyright should work. If we could only go back to the romanticized version of what the Framers clearly intended, society and creators would be much better off. 4See, for example, James Boyle, The Public Domain: Enclosing the Commons of the Mind, pg. 23 (2008): “These words from Jefferson and Macaulay encapsulate an eighteenth- and nineteenth-century free-trade skepticism about intellectual property, a skepticism that is widely, but not universally, believed to have played an important role in shaping the history of intellectual property in both the United States and the United Kingdom… It is important to note, though, that the eighteenth- and nineteenth-century writers I have quoted were not against intellectual property. All of them— Jefferson, Madison, Smith, and Macaulay—could see good reason why intellectual property rights should be granted. They simply insisted on weighing the costs and benefits of a new right, each expansion of scope, each lengthening of the copyright term”; Gerry Canavan, The founding fathers had copyright right, Independent Weekly (May 27, 2009); Robert Darnton, video (Dec 11, 2009):”The founding fathers got it right, and Hollywood got it wrong.”

The second is a legal argument: copyright skeptics disagree with the choices Congress has made in shaping copyright law. Perceiving a lack of power to influence Congress, they play the trump card: the Constitution. If you can successfully argue that the language or intent of the Copyright Clause constitutionally limits what Congress can do, then you can get a court to strike down those parts of copyright law you disagree with without having to go through that pesky legislative process. 5While there is plenty of scholarship advancing this argument, it owes much to Lawrence Lessig, who put the argument into action by bringing four legal cases in the past decade to challenge recently enacted copyright laws on constitutional grounds: Eldred, Golan, Kahle, and Luck’s Music Library. All four cases failed, and the Supreme Court in Eldred commented that petitioners had crafted what was largely a disagreement over Congressional policy behind a “facade” of “inventive constitutional interpretation.”

Last week, I tackled the historically-based trope that Hollywood was founded on piracy, but I’m certainly not the first to counter inaccurate historical claims in copyright scholarship. Previously, I noted Thomas Joo’s work on the weak historical claims of free culture scholars, especially regarding digital sampling. Hughes has written about how “incomplete historical claims” have been advanced in arguments about the “propertization of intellectual property.” 6Hughes at 1083. Schwartz and Treanor have noted that “the evidentiary support is very thin” for originalist arguments by “IP Restrictors” regarding the Copyright Term Extension Act. 7Paul M. Schwartz and William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 Yale Law Journal 2331, 2378 (2003). In his article, Who Cares What Thomas Jefferson Thought about Patents: Reevaluating the Patent “Privilege” in Historical Context, Adam Mossoff describes the “near-universal misuse of history by lawyers and scholars today, who rely on Jefferson as undisputed historical authority in critiquing expansive intellectual property protections today” (a point I expanded on in my post, Who Cares What Jefferson Thought About Copyright?)

Copyright and the Founding of the United States

Especially important to copyright is the founding period of the United States, from the ratification of the Articles of Confederation following the Revolutionary War to the adoption of the first US Copyright Act (1781—1790). This is the time period when US copyright law was born; the creation of the Copyright Clause in the Constitution by the Framers and the passage of the first Copyright Act have been explored thoroughly by scholars and others seeking insights into how we should deal with the scope and purpose of modern day copyright law. It is an especially important time period to look at when making Constitutional arguments, since the original intent or original meaning of Constitutional clauses can help guide their interpretation.

Below is the first part of some of the common myths I’ve observed in this area (with more coming later this week).

The Copyright Clause was a compromise, or the result of a debate. 8“So in the early republic and the first century of American legal history, copyright was a Madisonian compromise, a necessary evil, a limited, artificial monopoly, not to be granted or expanded lightly” Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity, pg. 24 (2003); “Like much of the language in the Constitution, this clause was the product of compromise.” Linda L. Brenna, Social, Ethical and Policy Implications of Information Technology, pg. 224 (2004).

This claim is completely lacking in merit. Madison proposed the idea for the Copyright Clause in the last weeks of the Constitutional Convention. 9James Madison, Debates in the Federal Convention of 1787, August 18, 1787 (online). The proposal was referred to the Committee on Detail without comment or objection. On September 5, David Brearley from the Committee of Eleven submitted the proposal, which now read “To promote the progress of Science and useful arts by securing for limited times to authors & inventors, the exclusive right to their respective writings and discoveries”, to the members of the Convention. 10James Madison, Debates in the Federal Convention of 1787, September 5, 1787 (online). Again, there was no recorded discussion of the clause, and according to Madison’s notes on the debates in the convention, the addition of the clause to the Constitution was agreed to “nem: con:” — without contradiction.

There is the barest of discussion on the Clause after the Constitution was finalized. Madison refers to it once, and only very briefly, in the eighty-five Federalist Papers, making it one of the least discussed clauses of the Constitution in that source. 11Federalist No. 43. It is mentioned only in passing in what are considered the anti-Federalist papers. 12Letters from the Federal Farmer, Letter XVIII, January 25, 1788 (online). This paucity of discussion extended to the state ratification debates. There, the clause only appeared a handful of times, and only very briefly — in a speech by Hugh Williamson and an essay by James Iredell in North Carolina, and in remarks by Thomas McKean in Pennsylvania. 13Schwartz and Treanor at 2376. Very little substantive discussion accompanied the legislative process of the first US Copyright Act in 1790 as well. 14See William Patry, Copyright Law and Practice, The First Copyright Act (1994).

This lack of discussion should not be surprising. The Federal Constitutional Convention was called just four years after the US had ended its war for independence against Great Britain. The national government operating under the Articles of Confederation was virtually powerless to address the foreign threats and domestic turmoil the states were experiencing at the time. 15See Bruce Chadwick, Triumvirate: The Story of the Unlikely Alliance That Saved the Constitution and United the Nation, pp. 8-9 (2009). The Framers had far more pressing matters than a copyright law. 16Prior to the Convention, James Madison himself referred to the need for uniform laws concerning literary property as an instance “of inferior moment.”

The Constitution itself was the result of many compromises — particularly how states should be represented in the national government (the Great Compromise) and how slaves should be counted for purposes of representation and taxation (the Three-fifths Compromise). But there was no “compromise” to speak of concerning Congress’s power to grant copyrights; the power simply wasn’t high on the list of the Framers’ priorities.

It’s important to remember that the Framers of the US Constitution weren’t working on building a government. They already had a government — thirteen of them, to be exact. What they were working on building was a federal government. The states were sovereign governments, and like most sovereigns of the time and today, they had indefinite and unenumerable powers; that is, they were constrained only by the inalienable rights of citizens.

The states had inherited their law from England, which had had a copyright statute since 1710. By the time the Framers had gathered to work on the new Constitution, twelve of the thirteen states had passed their own copyright statutes. The “purpose” of copyright law in general, then, was fairly established, and, as noted above, wasn’t debated as part of the ratification of the Constitution.

The only conclusion that can be drawn from this time is this: the purpose of the Copyright Clause in the Constitution was to create uniformity in copyright law. In his April 1787 paper, “Vices of the Political System of the U. States,” James Madison notes as his fifth “vice”, the “want of concert in matters where common interest requires it,” which includes “the want of uniformity in the laws concerning naturalization & literary property.” His brief mention of the Clause in the Federalist Papers reiterates this point, saying, “The States cannot separately make effectual provisions” to protect authors. The same is true in the ratifying conventions: Thomas McKean, in one of the few mentions of the Clause, noted, “The power of securing to authors… the exclusive rights to their writings… could only with effect be exercised by the Congress. For, sir, the laws of the respective states could only operate within their respective boundaries and therefore, a work which has cost the author his whole life to complete, when published in one state, however it might there be secured, could easily be carried into another state in which a republication would be accompanied with neither penalty nor punishment—a circumstance manifestly injurious to the author in particular…” 17Thomas McKean Speaking at the Pennsylvania Convention on the Ratification of the Federal Constitution.

Copyright wasn’t thought of as “property” or a natural right.

In his widely cited book Copyrights and Copywrongs, Siva Vaidhyanathan makes this claim. According to Vaidhyanathan, the original principle of copyright was “as an incentive to create”. This principle “has been challenged in recent decades by the idea of copyright as a ‘property right'”, a trend that runs “counter to the original purpose of American copyright.” He claims “Madison did not engage in ‘property talk’ about copyright”; or the founders in general “did not argue for copyrights or patents as ‘property.'” 18Similar claims include Jacob Huebert, Libertarianism Today, ch. 10 (2010), “The people who enacted IP laws in the first place knew … that they were not recognizing some preexisting natural property right, but just granting a temporary privilege.”

History tells a different story, however.

As noted above, copyright was not a top priority at the dawn of the United States, between finishing a war with one of the most powerful empires at the time and creating a new nation. But by the 1780’s, authors had begun seeking legal protection from the Continental Congress under the Articles of Confederation. On March 10, 1783, the Continental Congress resolved “That a committee be appointed to consider the most proper means of cherishing genius and useful arts through the United States by securing to the authors or publishers of new books their property in such works.” 1924 Journals of the Continental Congress 180. On May 2nd, according to the Journals of the Continental Congress, “The committee, consisting of Mr. [Hugh] Williamson, Mr. [Ralph] Izard and Mr. [James] Madison, to whom were referred sundry papers and memorials from different persons on the subject of literary property, being persuaded that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius, to promote useful discoveries and to the general extension of arts and commerce,” moved for a resolution that recommended the States pass statutes protecting copyright. 2024 Journals of the Continental Congress 326.

Justin Hughes speculates that the “sundry papers and memorials” may have included a 1782 pamphlet from Thomas Paine. 21Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson at 1021. In the introduction to that pamphlet, Paine rails against the unauthorized reprinting of a work by French writer Abbe Raynal, saying, “It may with propriety be remarked, that in all countries where literature is protected, and it never can flourish where it is not, the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them in the birth.” 22On the Affairs of North America: In Which the Mistakes in the Abbe’s Account of the Revolution of Amreica [sic] are Corrected and Cleared Up. In a footnote, Paine adds:

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.

Hughes adds that it’s also reasonable to assume petitions from author Joel Barlow — who wrote, “There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination” — and Noah Webster — who was riding up and down the United States in support of a copyright law with an open letter to legislators written by Princeton professor Samuel Stanhope Smith that read in part, “Men of industry or of talent in any way, have a right to the property of their productions” — were also in front of this committee.

So far, plenty of references to copyright as property (and a lack of any arguments in these contexts against the notion) — and we haven’t even gotten to the Constitutional Convention yet.

Twelve of the thirteen States followed the Confederate Congress’s recommendation and passed copyright statutes. Here, the “property talk” continues. The preamble to the Massachussets and Rhode Island statutes proclaimed that “such security is one of the natural rights of all men, there being no property more peculiarly man’s own than that which is produced by the labour of his mind.” The copyright acts of Maryland, Massachussets, and New Hampshire declared books the “sole” or “exclusive property” of authors. Maryland and North Carolina’s acts were referred to as acts protecting “literary property.”

And here we also have more “property talk” from James Madison himself. On November 15, 1785, the Virginia House of Delegates, acting on the recommendation, “Ordered, That leave be given to bring in a bill ‘for securing to the authors of literary works an exclusive property therein, for a limited time;’ and that Messrs. Madison, Page and Tyler, do prepare and bring in the same.” 23Journal of the House of Delegates of the Commonwealth of Virginia, pg. 39. The next day, Madison himself presented the bill, titled “An act for securing to the authors of literary works an exclusive property therein for a limited time.” And, as noted earlier, less than two years later, prior to the Constitutional Convention, James Madison wrote that one of the “vices” of the current government was the lack of uniformity in laws concerning “literary property.”

Additionally, evidence from the legislative history of the first Copyright Act shows that some in Congress explicitly thought of copyright through the lens of property. An attempt to pass a copyright bill stalled in the first session of the First Congress. During the second session, more progress was made. On January 25th, 1790, Congressman Aedanus Burke suggested addressing copyrights and patents in separate bills to get things moving. He urged his fellow Representatives of the importance of passing a copyright bill, noting “several gentlemen had lately published the fruits of their industry and application, and were every hour in danger of having them surreptitiously printed.” Later, Burke noted it would be easier to address a copyright bill first, since the law would likely be short since “it is almost as easy to ascertain literary as any other kind of property.” 24Annals of Congress, 1st Cong., 2nd sess., 1080.

References   [ + ]

1. George Santanaya, The Life of Reason; or the Phases of Human Progress (1905).
2. George Orwell, 1984 (1949).
3. Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993 (2006).
4. See, for example, James Boyle, The Public Domain: Enclosing the Commons of the Mind, pg. 23 (2008): “These words from Jefferson and Macaulay encapsulate an eighteenth- and nineteenth-century free-trade skepticism about intellectual property, a skepticism that is widely, but not universally, believed to have played an important role in shaping the history of intellectual property in both the United States and the United Kingdom… It is important to note, though, that the eighteenth- and nineteenth-century writers I have quoted were not against intellectual property. All of them— Jefferson, Madison, Smith, and Macaulay—could see good reason why intellectual property rights should be granted. They simply insisted on weighing the costs and benefits of a new right, each expansion of scope, each lengthening of the copyright term”; Gerry Canavan, The founding fathers had copyright right, Independent Weekly (May 27, 2009); Robert Darnton, video (Dec 11, 2009):”The founding fathers got it right, and Hollywood got it wrong.”
5. While there is plenty of scholarship advancing this argument, it owes much to Lawrence Lessig, who put the argument into action by bringing four legal cases in the past decade to challenge recently enacted copyright laws on constitutional grounds: Eldred, Golan, Kahle, and Luck’s Music Library. All four cases failed, and the Supreme Court in Eldred commented that petitioners had crafted what was largely a disagreement over Congressional policy behind a “facade” of “inventive constitutional interpretation.”
6. Hughes at 1083.
7. Paul M. Schwartz and William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 Yale Law Journal 2331, 2378 (2003).
8. “So in the early republic and the first century of American legal history, copyright was a Madisonian compromise, a necessary evil, a limited, artificial monopoly, not to be granted or expanded lightly” Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity, pg. 24 (2003); “Like much of the language in the Constitution, this clause was the product of compromise.” Linda L. Brenna, Social, Ethical and Policy Implications of Information Technology, pg. 224 (2004).
9. James Madison, Debates in the Federal Convention of 1787, August 18, 1787 (online).
10. James Madison, Debates in the Federal Convention of 1787, September 5, 1787 (online).
11. Federalist No. 43.
12. Letters from the Federal Farmer, Letter XVIII, January 25, 1788 (online).
13. Schwartz and Treanor at 2376.
14. See William Patry, Copyright Law and Practice, The First Copyright Act (1994).
15. See Bruce Chadwick, Triumvirate: The Story of the Unlikely Alliance That Saved the Constitution and United the Nation, pp. 8-9 (2009).
16. Prior to the Convention, James Madison himself referred to the need for uniform laws concerning literary property as an instance “of inferior moment.”
17. Thomas McKean Speaking at the Pennsylvania Convention on the Ratification of the Federal Constitution.
18. Similar claims include Jacob Huebert, Libertarianism Today, ch. 10 (2010), “The people who enacted IP laws in the first place knew … that they were not recognizing some preexisting natural property right, but just granting a temporary privilege.”
19. 24 Journals of the Continental Congress 180.
20. 24 Journals of the Continental Congress 326.
21. Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson at 1021.
22. On the Affairs of North America: In Which the Mistakes in the Abbe’s Account of the Revolution of Amreica [sic] are Corrected and Cleared Up.
23. Journal of the House of Delegates of the Commonwealth of Virginia, pg. 39.
24. Annals of Congress, 1st Cong., 2nd sess., 1080.

Songwriter Paul Williams ‘State of the Union’ Address at ASCAP (Video) — Video of ASCAP President and Chairman Paul Williams at last month’s annual ASCAP membership meeting. Skip to 5:55 for great remarks on recent copyright developments, including SOPA/PIPA. From 16:29-18:30, stirring remarks about the craft of songwriting: “You are participants in a mystical and a magical craft… it isnt the ones and zeros, it isn’t data or devices — you reach into people’s hearts and minds and you make a difference in the beauty and meaning of their lives. If you can do that, you deserve to be paid for your work.”

The Art of the Steal: Warhol Didn’t Get Away With It. Why Should Richard Prince? — Much ink has been spilled over appropriation art’s “challenge” to copyright law. PDNPulse reports on an Art Newspaper storythat calls into question some of the claims. The implied claim of appropriation art defenders: “Where would civilization be without the great works of appropriation artists like Andy Warhol and Robert Rauschenberg? Credit The Art Newspaper, a British publication, with taking on that argument. Yesterday they reported that Warhol, Rauschenberg and other big name appropriation artists quit stealing the work of others–and started getting licenses instead–after they got sued once or twice (or five times) for infringement.”

Why No Web Blackout For CISPA? Google It — Rob Levine with an important piece on internet activism. “Following the money is important since so many activists crowed about how ‘the Internet community’ resisted the power of corporations. Most neglected to mention that much of this activity was funded by another powerful corporation, as well as the venture capitalists that count on a lawless web to turn companies like Pinterest into rich IPOs.”

Naming names – the free culture witch hunt is on — John Degen looks at Rep. Zoe Lofgren’s questions to US Register of Copyright Maria Pallante at a hearing last month. “After smilingly admitting to the constituent pressure she herself is under, and reading copyright opinions that come straight from Silicon Valley’s free culture manual, it takes some kind of shamelessness for the Congresswoman to suggest there was undo influence on a public servant who is appointed rather than elected. As well, Ms. Pallante showed impressive restraint in not simply laughing at the question about copyright law being for authors first, instead directing Rep. Lofgren to the section of the U.S. Constitution, supporting legislation, and Supreme Court decisions that support her view.”

Those who want freedom from copyright will really deliver feudalism — Helienne Lindvall delivers another great column on the aversion to creators being able to control the products of their labor. “Why do Kroes, CI and A2K want to take this fundamental right, enshrined in the Universal Declaration of Human Rights, away from me? Their ‘solutions’ would create either a corporate feudalism where I would have to go around hat in hand, or a communist state, where the state would decide how much or even if I should get paid when my music is used. And to think that these solutions come from people claiming to be forward thinking? If this is their version of freedom and innovation, I can live without it.”

Facebook Kicks off Grooveshark — In apparent preparation for its IPO, the social network has deleted Grooveshark’s page and app from its site. Facebook joins iTunes and Google in kicking off the increasingly criticized music service.

Considering TPP: Local economies thrive when artists’ rights are protected— The Copyright Alliance’s Lucinda Dugger remarks on the organizations signing, along with over 30 other organizations, of a letter in support of the Trans-Pacific Partnership. “Strong copyright enforcement proves to encourage creative and cultural development in all economies – both established and developing – as it provides the individual creator an opportunity to profit for a limited time from his creative works, through licensing, royalties, or other sales. Working with artists all around our country, I see on a regular basis how mom and pop shops, sole-proprietors, and individual creators produce works that excite and move us and our communities. Through ownership of works, they additionally develop an identity that allows local economies to thrive, grow, and prosper.”

Hollywood takes up veteran causes with ‘Got Your Six’ effort — The LA Times discusses Got Your 6, a new initiative to build awareness about veterans issues. “Companies participating include Comcast Corp.’s NBCUniversal, Time Warner Inc.’s HBO and Warner Bros., News Corp.’s Fox, Sony, Walt Disney Co.’s ABC, as well as talent agencies Creative Artists Agency, United Talent and William Morris Endeavor. Also on board are the Directors Guild of America, SAG-AFTRA and the Writers Guild of America, West.”

State Film Tax Credits Good For Local Economies: Study — Deadline Hollywood reports on a recent study that examines the impact of film tax credits on state economies. “Thirty-seven states currently have film credit programs. The programs, with Louisiana, Illinois, Florida and Georgia among the most utilized by studios in recent years, draw from an estimated $1.2 billion in tax dollars annually nationwide.” Long-term benefits include “increased tourism, if the location ‘plays itself’ in productions, infrastructure development and seasoned local crews which can lead to increased tax revenues, spending and investment.”

Was Hollywood built on piracy? That’s what some seem to suggest. Lawrence Lessig’s version of this story from his 2004 book Free Culture is archetypical:

The Hollywood film industry was built by fleeing pirates. Creators and directors migrated from the East Coast to California in the early 20th century in part to escape controls that film patents granted the inventor Thomas Edison. These controls were exercised through the Motion Pictures Patents Company, a monopoly “trust” based on Edison’s creative property and formed to vigorously protect his patent rights.

California was remote enough from Edison’s reach that filmmakers like Fox and Paramount could move there and, without fear of the law, pirate his inventions. Hollywood grew quickly, and enforcement of federal law eventually spread west. But because patents granted their holders a truly “limited” monopoly of just 17 years (at that time), the patents had expired by the time enough federal marshals appeared. A new industry had been founded, in part from the piracy of Edison’s creative property.

This little bit of historical revisionism has popped up regularly since then. In January, The Pirate Bay issued a press release repeating the story and claiming they are the modern day equivalent of Hollywood. And most recently, Torrentfreak reminded its readers of the story — picked up by Techdirt, whose story was in turn picked up by Cory Doctorow — in response to MPAA Chairman Chris Dodd’s spoken remarks at last month’s CinemaCon.

The purpose of this spin on the facts seems to be to show some kind of hypocrisy on the part of movie studios. The evidence, though, doesn’t support the claims. 1This seems a common theme when looking at copyright criticims. See Remix Without Romance: What Free Culture Gets Wrong for another recent example.

The Dawn of the Motion Picture Industry

The end of the 19th century found inventors racing to develop technology that could record and display moving pictures, and Thomas Edison was the first to bring a commercial motion-picture machine to market. 2Robert Sklar, Movie-Made America: A Cultural History of American Movies, pg 13 (1994). The early years saw some patent skirmishes between rival companies as film began to grow in popularity. In 1908, Edison helped form the Motion Picture Patents Company (MPPC) with other patent holders. Together, they held a virtual monopoly on the movie industry; their patents covered projectors, cameras, and film stock. Their control went beyond patents, however. Using tie-in agreements and licensing, and forming the General Film Corporation to monopolize film distribution, they locked out competition at every step, from making movies to exhibiting them. 3Robert Sklar has said, “The roots of the motion-picture monopoly lay in Thomas A. Edison’s greed and dissimulation; and the results of it were a complete debacle for the Wizard, his leadership and social class.”

Around this time, a group of independent filmmakers entered the market. These independents included many of the founders of the major studios that still exist today, including Carl Laemmle of Universal Pictures and Adolph Zukor of Paramount Pictures. The independents challenged the MPPC, creating and exhibiting films with unlicensed equipment and buying supplies from outside the US. Edison responded forcefully to the challenges — he took Laemmle’s operation especially personal, suing the independent filmmaker 289 times.

Who Were the Real Pirates?

According to this headline from a San Francisco newspaper in 1913, it wasn’t the independents who were the pirates:

The independents weren’t infringing on any patents themselves, they were violating the license and tie-in agreements that came with the MPPC’s equipment. The MPPC did enjoy some early success with its litigation efforts,  convincing several courts that illegal restraint of trade was not a defense to patent infringement. 4Michael Conant, Antitrust in the Motion Picture Industry, pg. 20 (1960).

But the MPPC didn’t rely solely on the law — Edison enforced the Trust’s domination with violence. Hired thugs would smash cameras and raid the independents’ places of business. 5Jane Chapman, Comparative Media History: An Introduction: 1789 to the Present, pg. 132 (2005). Historian Thaddeus Rockwell notes the extent of the violence perpetuated by the Trust: “They seized film, beat up directors and actors, forced audiences out of theaters, smashed the nickelodeon arcades and set fire to entire city blocks where they were concentrated.”

The organization’s anti-competitive tactics caught the attention of the US government, which took action against them. In 1916, the Eastern District Court of Pennsylvania entered a decree against the Motion Picture Patents Co. The judge found that the MPPC, the General Film Company, and the individual companies involved had “attempted to monopolize and have monopolized and have combined and conspired … to monopolize a part of the trade or commerce … consisting of the trade in films, cameras, and projecting machines” in violation of the Sherman Antitrust Act. It declared all the contracts, patent licenses, and patent assignments used by the MPPC illegal.

The trust also began suffering setbacks in the courts, and in 1917, the US Supreme Court unequiovically struck down one of the license agreements that the MPPC had used to extend its monopoly. 6Motion Picture Patents Co. v. Universal Film Manufacturing Co., 243 US 502. In that case, the MPPC had sued Universal Film Manufacturing Company for patent infringement pursuant to its license agreement which restricted use of the MPPC’s film projectors to only exhibiting or projecting films licensed by the MPPC. (Imagine if a company like Apple claimed that it was patent infringement to play digital music legally acquired somewhere other than iTunes on an iPod.)

The Court recognized that a patent grant is limited “to the mechanism described in the patent as necessary to produce the described results. It is not concerned with and has nothing to do with the materials with which or on which the machine operates. The grant is of the exclusive right to use the mechanism to produce the result with any appropriate material, and the materials with which the machine is operated are no part of the patented machine or of the combination which produces the patented result. The difference is clear and vital between the exclusive right to use the machine, which the law gives to the inventor, and the right to use it exclusively with prescribed materials to which such a license notice as we have here seeks to restrict it.”

The Supreme Court concluded:

A restriction which would give to the plaintiff such a potential power for evil over an industry which must be recognized as an important element in the amusement life of the nation, under the conclusions we have stated in this opinion, is plainly void, because wholly without the scope and purpose of our patent laws, and because, if sustained, it would be gravely injurious to that public interest, which we have seen is more a favorite of the law than is the promotion of private fortunes. [Emphasis added.]

Why Did the Studios Move to Hollywood

Not only is the story that Hollywood was built on “piracy”, the claim that the independent studios ran to Hollywood to get away from Edison and his legal threats is greatly overstated. Southern California offered many advantages over the established filmmaking centers of New York and Chicago that provide stronger reasons for the migration.

Geography, for one. California offered a wide variety of scenery that was useful as substitutes for all sorts of locations, as this 1927 Paramount Studios map illustrates perfectly.

The landscape of Southern California:

was not only spectacular but extraordinarily varied. Summer greenery and winter snow, sunny beaches, barren deserts and rocky mountains were all with a short distance of each other. Florida and Texas could supply the climate for year-round outdoor filming, but they did not have quite the range of scenic choices within a day’s trip from the studios. Even the light of California was different, gently diffused by morning mists rolling in from the Pacific or by dust clouds blowing off the sandy hills. The rugged western landscape and the wide-open spaces were felt as enormous attractions in the rest of the world. 7Eileen Bowser, The Transformation of Cinema, 1907-1915 (History of the American Cinema), pg 151 (1994).

Weather played a huge role too — LA offers 70 degree year-round weather as opposed to winters in New York or, worse, Chicago. 8“Bad weather in Chicago was the primary reason the movies first turned toward the West, and eventually migrated to Hollywood.” Paul Zollo, Hollywood Remembered: An Oral History of Its Golden Age, pg. 12 (2002). Peter Ediden of the New York Times notes, “This wasn’t merely a matter of comfort; even the brightest electric lights of the time were too dim to  expose film properly, so a run of cloudy days could halt production at, say, the Edison studios in East Orange, N.J.”

In fact, nearly everything about the area was an improvement. Land was cheaper and more available and the costs of labor were lower.

Former Curator of Film at the Museum of Modern Art in New York Eileen Bowser points out that the hiding from Edison factor makes little sense:

[T]he New York Motion Picture Company had already managed to escape the Patents Company’s pursuit just by going to Neversink in the Catskills that summer. Furthermore, by Balshofer’s own account, they were easily found by Patents Company spies in California a short time after they got there. At the same time, the Trust companies, which had nothing to hide, were also discovering the great California winter sunshine. 9Transformation of Cinema, pg. 150.

What it means

The proponents of this myth seem to want to suggest an analogy: Hollywood was built by “outlaws”; now Hollywood has become the incumbent, seeking to stop the next generation of “outlaws”. But this is a false equivalence. The Pirate Bay (or Megaupload, etc.) isn’t producing its own movies. Recognizing exclusive rights to a creative work doesn’t prohibit anyone from creating their own works. Stopping someone from offering copies, especially complete, verbatim copies, of a work is not anti-competitive.

The Trust’s actions against the independents were found illegal; the agreements were declared “plainly void” by the Supreme Court. Contrast that to the Court’s more recent decision in MGM v. Grokster, where even the dissent said, in reference to the P2P service Grokster, “deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft.”

References   [ + ]

1. This seems a common theme when looking at copyright criticims. See Remix Without Romance: What Free Culture Gets Wrong for another recent example.
2. Robert Sklar, Movie-Made America: A Cultural History of American Movies, pg 13 (1994).
3. Robert Sklar has said, “The roots of the motion-picture monopoly lay in Thomas A. Edison’s greed and dissimulation; and the results of it were a complete debacle for the Wizard, his leadership and social class.”
4. Michael Conant, Antitrust in the Motion Picture Industry, pg. 20 (1960).
5. Jane Chapman, Comparative Media History: An Introduction: 1789 to the Present, pg. 132 (2005).
6. Motion Picture Patents Co. v. Universal Film Manufacturing Co., 243 US 502.
7. Eileen Bowser, The Transformation of Cinema, 1907-1915 (History of the American Cinema), pg 151 (1994).
8. “Bad weather in Chicago was the primary reason the movies first turned toward the West, and eventually migrated to Hollywood.” Paul Zollo, Hollywood Remembered: An Oral History of Its Golden Age, pg. 12 (2002).
9. Transformation of Cinema, pg. 150.

Why Musicians Need More Than Viral Videos to Succeed — Excellent interview with Billy Corgan on music, success, and value in today’s world.

You Can’t Have A Healthy Market Economy Without Property Rights.  Why Do So Many In Tech Blogosphere Want To Abolish Cyber Property Rights And Cripple The Cyber-Economy? — David Lowery returns to the Trichordist: “I realize that what I am saying about robust property rights and healthy economies is nothing new. It’s a rather elementary and banal critique of the Copyleft’s proposed cyber-economy. What is more interesting is why there are so few other voices out there challenging these wackjobs? Why is it left to the singer of a moderately successful cult rock band to challenge this nonsense? That’s the real story here. Where are the grown-ups?” Part 2 here.

If it looks like a bubble and it feels like a bubble… — Is Silicon Valley partying like it’s 1999? Or is a 2 year old company with 13 employees and no revenue or business plan really worth $1 billion?

Silicon Valley’s Hottest New Start-Up Idea: Nothing — This Forbes article suggests answers to the above questions. “Do you have a can’t-miss idea for a start-up that could be the next Facebook, Pinterest or Draw Something? Great. Write it down on a piece of paper. Now burn that piece of paper. Congratulations. You’re halfway to your first billion.”

Is the Midnight Screening the New Rock Concert? — Interesting article on Viacom’s new blog. Midnight screenings of films have gone from niche to mainstream and are filled with hardcore fans, making the experience more like a rock concert than just another day at the movies. Check out the rest of the Viacom blog, it’s a cut above your run-of-the-mill corporate blog/press release archive.

Jimmy Wales’s Latest Speech Is ‘Nonsense on Stilts’ — Speaking of films, Andrew Keen takes on Wikipedia founder Jimmy Wale’s recent comments that “Collaborative storytelling and filmmaking will do to Hollywood what Wikipedia did to Encyclopaedia Britannica.” “Like so many other digital utopians,” says Keen, “Wales has been deluded by the leveling power of the Internet.”

Best Practices Make Best Partners — Good news: “Today the Association of National Advertisers (ANA) and the Association of Advertising Agencies (4A’s) announced a Statement of Best Practices encouraging their members to adopt proactive measures to combat rogue websites dealing in counterfeit and infringing goods.  The Best Practices also have the support of the Interactive Advertising Bureau (IAB).”

Rojadirecta — Both the US and Puerto 80 have filed their briefs concerning Puerto 80’s motion to dismiss the government’s civil forfeiture proceeding against the Rojadirecta domain name. US Memorandum of Law in Opposition to Motion (PDF). Puerto 80 Reply Memorandum of Law in Support of Motion (PDF). A hearing on the motion is scheduled for the beginning of next month.

A relatively unknown copyright infringement case is starting to attract more attention.

In October 2010, self-described “gay ethnic adult company” Flava Works sued Marques Rondale Gunter, who owns and operates myVidster, a “social video bookmarking” site for copyright and trademark infringement. Now the case is in front of the Seventh Circuit, and it has attracted amicus briefs from heavyweights like the MPAA, Google and Facebook, and perennial amici Public Knowledge and the EFF.

While the appeal raises several important issues, it is one in particular that has attracted much of the attention online. Can embedding a video infringe on copyright?

Flava Works in the Lower Court

Last May, the Northern District Court of Illinois ruled on Gunter’s motion to dismiss the complaint. The court dismissed all the claims except the contributory copyright infringement claim. It found that Flava Works had plead sufficient knowledge. Said the court, “The knowledge element for contributory copyright infringement is met in those cases where a party has been notified of specific infringing uses of its technology and fails to act to prevent future such infringing uses, or willfully blinds itself to such infringing uses.” myVidster’s receipt of multiple DMCA takedown notices involving the same files and users triggered a duty for it to take steps to prevent future infringing uses.

Later that summer, the Illinois court granted Flava Works request for a preliminary injunction against Gunter, concluding that it was likely to succeed on the merits of its claim of contributory copyright infringement. 1Note that the District Court followed the traditional standard for copyright infringement injunctions, where a likelihood of success on the merits creates a presumption in favor of an injunction. This is in contrast to the Second and Ninth Circuits, which extended the Supreme Court’s holding in eBay v. MercExchange that no such presumption exists for patent injunctions to copyright infringement cases. Gunter has appealed this point along with the others discussed here, and while it is an interesting and important issue, it is beyond the scope of today’s article. Notably, it rejected Gunter’s contention that the site was protected by the DMCA’s safe harbor. It primarily based this decision on the site’s lack of a repeat infringer policy — one of the prerequisites for safe harbor protection — and this decision seemed an easy one. Said the court, “It is difficult for us to understand how defendants can argue with a straight face that they have adopted and reasonably implemented a ‘repeat infringer’ policy.”

Gunter moved for a reconsideration of the preliminary injunction, which the court denied. The court explained, “The vast majority of myVidster users have not created backup copies of videos on the site, but have directed myVidster to “embed” video clips on the site through the posting/bookmarking process. It is this action, to which defendants also refer as “inline linking,” that is the focus of the instant motion to reconsider.” Gunter argued that the Ninth Circuit’s holding in Perfect 10 v. Amazon should compel a different result.

In Perfect 10, the Court was faced with the question of whether Google’s image search, which used in-line linking to display full-size images from other sites in its results, directly infringed the plaintiff’s display right. After interpreting the Copyright Act’s language, the Ninth Circuit adopted what the District Court called the “server test” — infringement of the display right is only possible when the image resides on the web site’s own servers, not when the image is only displayed in-line but resides on another web site’s computers.

Flava Works disagreed with Perfect 10:

We decline to apply Perfect 10 to this case. The Ninth Circuit’s decision is not binding on this court; moreover, it is highly fact-specific and distinguishable. Defendants assert that the cases involve “essentially the same technology.” Both cases may involve inline linking, but the processes are quite different. The relevant comparison is between the conduct of Google and the conduct of myVidster’s users, not between Google and myVidster. In response to a search query, Google’s image search engine uses an automated process to display search results through inline linking. In contrast, myVidster’s users do not employ any sort of automation to determine which videos they bookmark; rather, they personally select and submit videos for inline linking/embedding on myVidster. (And many of those hand-picked videos are infringing.) Google’s use of inline linking is neutral to the content of the images; that of myVidster’s users is not.

To the extent that Perfect 10 can be read to stand for the proposition that inline linking can never cause a display of images or videos that would give rise to a claim of direct copyright infringement, we respectfully disagree. In our view, a website’s servers need not actually store a copy of a work in order to “display” it. The fact that the majority of the videos displayed on myVidster reside on a third-party server does not mean that myVidster users are not causing a “display” to be made by bookmarking those videos. The display of a video on myVidster can be initiated by going to a myVidster URL and clicking “play”; that is the point of bookmarking videos on myVidster—a user can navigate to a collection of myVidster videos and does not have to go to each separate source site to view them.

Gunter persisted and appealed Flava Works to the Seventh Circuit.

Can Embedding Infringe Copyright?

One of the major issues in the appeal — and the one that has attracted the attention of Google, Facebook, and the MPAA — is whether embedding videos violates a copyright owner’s public performance right. Secondary liability requires direct infringement, and the parties dispute the lower court’s conclusion that myVidster’s users, who add such embedded links to the myVidster site, are direct infringers.

Gunter, and amici Facebook and Google, urge the Seventh Circuit to adopt the Ninth Circuit’s “server test.” As noted above, the Ninth Circuit interpreted the Copyright Act to limit liability for public display of a copyrighted work to only those online users who actually copy the work onto their own server.

Flava Works, joined by the MPAA as amicus, argue in support of the lower court’s decision.

Gunter is facing an uphill battle here. As the lower court noted, the Ninth Circuit’s decision isn’t binding on the Seventh. And while the “server test” has been received favorably by some academics and service providers, it has apparently not been endorsed by any other court outside the Circuit. And, the “server test” is not found in the text of the Copyright Act or suggested by the legislative history.

There’s another problem for Gunter. Perfect 10 dealt solely with the public display right in copyright, while here the court is dealing with both the right to publicly display and publicly perform a work. The Ninth Circuit’s adoption of the “server test” was premised on the language of the Copyright Act’s definition for “display”:

To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.

The court seized on the definition’s inclusion of the word “copy” to support its conclusion. However, the Act’s definition of “performance” doesn’t refer to copies:

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

On a side note, this definition makes sense. When a theater performs a dramatic play, or a band performs a musical composition, it doesn’t generally have a “copy” of the work, but such a performance is still within the exclusive rights of the copyright owner.

But more to the point, even if the Ninth Circuit’s “server test” were adopted by the Seventh Circuit, it doesn’t follow, from the language of the definitions, that it should be applicable to the public performance right.

It’s my opinion that embedding a video can be considered a public performance (I’ve touched on this issue before in relation to last summer’s Commercial Felony Streaming Act). In fact, I was somewhat surprised in researching to discover that the issue doesn’t seem to have come in front of a court until now. But others have concluded the same — here’s an article from 2007 quoting This Week in Law’s Denise Howell saying as much.

And, despite some of the hyperbole 2According to the site linked above: “If the MPAA is successful and the decision is upheld, this could have far reaching, and dire, consequences for Internet users of all stripes; the ruling would seem to include even the idea of linking back to the host-site instead of embedding, essentially rendering a critical part of online culture illegal. It would, much like ACTA, accomplish a large part of what SOPA and PIPA sought to do without actually requiring the pesky consent of the governed that otherwise is at the heart of American law.” that has resulted from Flava Work’s position on embedded links, I don’t believe a decision affirming the lower court would result in much of a change for occasional users of embedded links — like, say, bloggers or forum operators. These users have always had the benefit of the DMCA safe harbors for any unintentional infringement that might stem from embedding a video, as well as the fair use defense in appropriate circumstances.

Is Linking ever Infringement?

Part of the negative response to this case seems to stem from an idea that linking can never give rise to liability for infringement — this is, in fact, one of the arguments Google and Facebook make in their joint amicus brief. 3The court and parties to this case use the term “linking” to refer both to hyperlinking — where a web site’s text can be clicked to go to another web site — and embedded linking — where an image or video on another server is displayed as though it is part of a web site. Under the hood, both are acheived in much the same way, though each offers a different type of experience to the user. But such a bright line rule has never existed.

Congress certainly hasn’t held this view. In the legislative history for the DMCA, you can find evidence that Congress believed linking can, in some cases, be infringing. The House Commerce Committee explained that the “red flag” knowledge standard in the bill was intended “to exclude from the safe harbor sophisticated ‘‘pirate’’ directories—which refer Internet users to other selected Internet sites where pirate software, books, movies, and music can be downloaded or transmitted.” And the safe harbor for information location services itself (17 USC § 512(d)) expressly shields service providers against liability “for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link.”

And, despite its legal arguments, Google itself recognizes that linking can infringe copyright. In its AdWords copyright policy, Google states that “Software or sites that enable streaming, copying, or downloading of movies, music, television programs, games, or software” are not allowed — and such sites include “Link aggregation sites primarily aimed at enabling the download or streaming of music, movies, or other media.”

References   [ + ]

1. Note that the District Court followed the traditional standard for copyright infringement injunctions, where a likelihood of success on the merits creates a presumption in favor of an injunction. This is in contrast to the Second and Ninth Circuits, which extended the Supreme Court’s holding in eBay v. MercExchange that no such presumption exists for patent injunctions to copyright infringement cases. Gunter has appealed this point along with the others discussed here, and while it is an interesting and important issue, it is beyond the scope of today’s article.
2. According to the site linked above: “If the MPAA is successful and the decision is upheld, this could have far reaching, and dire, consequences for Internet users of all stripes; the ruling would seem to include even the idea of linking back to the host-site instead of embedding, essentially rendering a critical part of online culture illegal. It would, much like ACTA, accomplish a large part of what SOPA and PIPA sought to do without actually requiring the pesky consent of the governed that otherwise is at the heart of American law.”
3. The court and parties to this case use the term “linking” to refer both to hyperlinking — where a web site’s text can be clicked to go to another web site — and embedded linking — where an image or video on another server is displayed as though it is part of a web site. Under the hood, both are acheived in much the same way, though each offers a different type of experience to the user.

No sympathy for the creative class — There is a lot of overlap between debate over copyright issues and debate about art and culture itself, especially the existence of a professional creative class within a society. This is an interesting article from Salon by Scott Timberg that explores the latter. Says Timberg, “Our image of the creative class comes from a strange mix of sources, among them faux-populist politics, changing values, technological rewiring, and the media’s relationship to culture – as well as good old-fashioned American anti-intellectualism.”

IMAGiNE BitTorrent Piracy Group Indicted, Face Years In Prison — Following an investigation by ICE, four US individuals have been indicted for allegedly being part of a piracy group. All four are scheduled to be arraigned May 9.

GEMA v YouTube continued — Last week, a German court found YouTube liable for infringement by its users. Monika at the 1709 Blog offers some thoughts on the decision. ” I fully agree that the services mentioned might not have been developed if they had had to comply with the standards set by the Hamburg judges in GEMA v YouTube. However, I am pretty sure many industries would never have developed if they had had to comply with today’s health and safety standards, but that does not necessarily mean that current health and safety standards should be abolished.”

Google Says “It’s Our Web”–and they bought it fair and square — Google has already spent $5 million lobbying this year. What does this mean for creators, and what does this mean for the future of the web? Chris Castle takes a look at these questions.

A Sergey update: we misunderstood him — Dominic Young follows up on the Google founder’s interview with the Guardian earlier this month. “In truth, unfair advantages lead to unfair outcomes. Google is a massive and mind-bogglingly rich company, run by some of the most mind-bogglingly rich young scamps in the world, and the largest and most powerful aggregator of content and data ever seen. It has become so by exploiting content created by others. Even if this has by-and-large been done with tacit or “implied” permission, the idea that it doesn’t require permission in law or in reality, has never been true.”

Pirate Politician Says Party ‘Rising as Fast as Nazis’ — Straight from the “you can’t make this stuff up” department.

‘Just Shut Them Down, Man’ — Also from Der Spiegel is this engrossing debate between German pop star Jan Delay and German Pirate Party member Christopher Lauer about copyright. The entire thing is worth a read; I especially like this quote from Delay: “To be honest, I got you on most of the points we’ve discussed so far. I don’t mean to be nasty, but apart from the copyright issue the whole Pirate Party thing is like someone going round saying, ‘Hey! We’re a party that wants free chocolate for everyone.’ A few non-voters might say, ‘Cool! Free chocolate! That’s the sort of politics I can relate to.’ But do you guys really have any solutions? Do you even know what you’re talking about? I believe you when you say you understand computers. But that’s about it.”

A Short History of Intellectual Property’ in Relation to Copyright — Justin Hughes traces the development of the term “intellectual property” in this scholarly paper. Copyright skeptics are quick to embrace a bumper-sticker version of history to make any point, such as the idea that this term is relatively recent. But as Hughes discovers, the truth is far more nuanced. An interesting read.

How Not To  Fix Copyright – My Response to William Patry — Here’s a great piece on William Patry’s latest book. William Patry offers a response in the comments.

Halestorm — Finally, I want to send some Pennsylvania love to an area band. Halestorm dropped their latest album earlier this month. If you like modern rock with a touch of glam, fronted by a fiery female singer, check them out. Their tune “Here’s to Us” was featured on an episode of Glee earlier this year. Go PA!

Last week, I noted the server problems this site was having. They extended into this week, making the site slow to load or unresponsive, but things seem to be back to normal now. Sorry for the inconvenience!

Kirtsaeng v. John Wiley & Sons — This week, the Supreme Court agreed to hear a case involving copyright’s first sale doctrine and grey market goods. SCOTUSBlog has more info on the case; also check out Andrew Berger’s analysis of the 2nd Circuit’s decision on that case when it was released last August.

Hulu Plus subscriptions hits 2 million, accelerates revenue — The online TV site continues to quietly chug ahead, with over two million paid subscribers. And if you haven’t already, check out the Hulu exclusive series Battleground, a very smart, well-scripted mockumentary that takes a behind the scenes look at a political campaign (available on regular Hulu, not just Hulu Plus).

The internet wants to be open, but some internets are more open than others — Google’s Sergey Brin had some interesting things to say this week. Dominic Young takes a look at Brin’s remarks in the Guardian where he complains about having to follow the law like the rest of us chumps, and how Google’s inability to crawl Facebook and Apple threatens innovation. “Is is really true that because data in apps is not crawlable it is ‘lost’?” asks Young. “I use apps all the time, and the data appears to be available to me.”

I Am the Girl with the Dragon Tattoo and Other Copycats Litter Amazon— The author of “I am the Girl with the Dragon Tattoo” published 10,000 books on Amazon, according to this article. “What’s worse is that Amazon has actually been helping these books come into fruition. All of the copycat books that Fortune found were made through CreateSpace, a division of Amazon that allows authors to create and self-publish their books.”

Supporting copyright is not the same as opposing freedom of speech — Helienne Lindvall reports on her participation in a debate over the ACTA. “I understand why many people would sign an online petition against Acta if they’ve been told it’s a threat to freedom of speech and privacy. I would have done the same if I hadn’t read through the actual agreement. And if I didn’t think counterfeit trade in any way impacted on me, it would be even easier to for me to say no without bothering to read it. Maybe that is why so many of the opponents of Acta have never seen a proposal for copyright enforcement that they wouldn’t say no to. But what we’re doing is the cultural equivalent of overfishing the lake.”

RapidShare Publishes Anti-Piracy Manifesto for Cyberlockers — The Swiss cyberlocker took a positive step this week by releasing a paper on “Responsible Practices for Cloud Storage Services.” The paper suggests several steps that cyberlockers can take to actively promote legitimate uses and discourage illegitimate uses of their services, “balancing the needs for safe, reliable, and private storage and communications with respect for intellectual property and the public interest inreasonable enforcement.”