Who Cares What Jefferson Thought About Copyright?

Terry Hart • October 17, 2011 • Posted in Copyright history • Comments closed

A letter written by Thomas Jefferson to Isaac McPherson in 1813 has become canonized into the copyright skepticism movement. You’re probably familiar with the letter, which reads in part:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

This letter has become, in the words of James Boyle, “very famous in the world of the digerati.”1 Just this past week, law professor David Post referred to this letter in a talk on Jefferson, copyright, and the net, calling it “one of the foundational documents for intellectual property law in the US.”

It’s easy to see why this particular letter is valued so much by copyright’s critics — it expresses sentiments they agree with and it is written by a Founding Father, giving it the weight of authority. One gets the sense from reading those that quote this letter that it presents a sort of idealized version of copyright, one that current copyright law has long since forgotten.2

Despite the sacrosanct nature that this letter has been given, there are some serious problems with it being considered a foundational document in copyright law.

He was talking about something else

For starters, Jefferson was expressly talking about patents, not copyright. It’s odd that the letter is used at all when discussing copyright because of this fact, but it is.3 Though the two share similarities — for example, Congress’s power to make laws concerning both stems from the same Constitutional clause, and Congressional practice concerning one can inform the other4 — the differences between them are more relevant here.

On the one hand, it can be said that a patent protects ideas embodied in a new invention or process. Though a patent can’t protect an abstract idea by itself, nor take a known idea out of the public domain,5 it does foreclose the use of the ideas described in the invention’s claims.6 This tension between patent protection and the free flow of ideas is inherent in patent law. Jefferson’s description of the nature of ideas in the letter reflects his concerns over this tension, especially in light of the argument that inventors have a natural right to their inventions that Jefferson refers to at the beginning of the letter.

Copyright, on the other hand, protects expression, not the underlying facts or ideas embodied in that expression.7 Copyright protection and the free flow of ideas are fully congruent — and, in fact, by providing an incentive to disseminate expression of ideas, copyright protection encourages the contribution of new ideas into the public domain.

So even if we ignore that Jefferson was specifically talking about patents in this letter, his points have little relevance to copyright.

Jefferson and patent law

Returning back to the subject of patents, it is undeniable that Jefferson in general and this letter in particular has influenced the development of the law. Thomas Jefferson was not only an inventor, but an administrator of patent law under the 1790 Patent Act and author of the 1793 Patent Act. The Supreme Court has relied on his views, including those he expressed to McPherson, as an aid to interpreting patent law on several occassions.8

The use of Jefferson’s views on patent law, however, has been criticized.

On a number of occasions, Justices of the Supreme Court have relied on the views of Thomas Jefferson as a means of explicating their interpretations of both the patent clause of the Constitution and various patent statutes. In so doing, these Justices have created a Jeffersonian mythology that, in a number of respects, is significantly at odds with the historical record. The Court has, in particular, overrated and over stressed Jefferson’s ostensible influence on the early development and interpretation of the patent law through a selective use of the historical record.9

In Who Cares What Thomas Jefferson Thought About Patents? Adam Mossoff also questions the influence of Jefferson on patent law:

In 1966, the Supreme Court discovered that Thomas Jefferson was the founder of American patent law. In Graham v. John Deere Co., the Court first invoked Jefferson’s words that the “embarrassment of an exclusive patent” was a special legal privilege justified only because these “monopolies of invention” served the “benefit of society.” Jefferson the next two decades, leading patent law scholars to remark recently that Jefferson’s “views . . . have proven influential, especially in the Supreme Court.” Following the Court’s practice, intellectual property scholars, especially those engaged in the increasingly rancorous debate over rights in digital content on the Internet, invoke Jefferson’s words as an unassailable historical axiom.

In short, says Mossoff, “Jefferson’s hegemony over the history of American patent law is as indisputable as it is wrong.”

Jefferson and copyright law

While the case for Jefferson’s influence on patent law is subject to debate, the case for his authority on informing copyright law is decidely weak.

Unlike patent law, Jefferson had little to do with copyright law during his lifetime. Copyright protection in the United States was first championed by a group of authors, including Noah Webster and Joel Barlow.10 In response, a committee in the Continental Congress — consisting of James Madison, Hugh Williamson, and Ralph Izard — drafted a resolution that recommended the states pass their own copyright laws.11 Twelve of the thirteen states had passed such legislation by 1786. When the Constitution was drafted, it was proposals by Madison and Charles Pinckney that eventually became the Copyright Clause.12 The Copyright Act of 1790, the first law made pursuant to Congress’s copyright authority, reflected little independent thought on intellectual property — rather, it was England’s 1710 Statute of Anne “phrased in somewhat more modern language and featuring a few omissions, additions, and modifications.”13

Notably absent from this discussion of the early days of US copyright law is any mention of Thomas Jefferson. Jefferson was a minister to France when the first state copyright acts were passed and was not even in the US when the Constitution was drafted. As law professor Justin Hughes points out, “this, by itself, should largely curtail the use of Jefferson as ‘a reliable source of the meaning of Article I of the Constitution.’”14

While Jefferson wrote about copyright on occassion — he wrote about many subjects — his views on copyright have not been as influential in courts as his views on patent. Justice Breyer makes brief mention to several letters written by Jefferson in his dissent in Eldred v. Ashcroft (though not the McPherson letter); other than that, US courts have not inquired about Jefferson’s views on copyright.

So should we care what Thomas Jefferson thought about copyright law?

Sure, as long as his views are accorded the proper weight. History is important in copyright law — the Supreme Court’s recent oral arguments in Golan v. Holder dealt in part with the effect of the Copyright Act of 1790. But using history appropriately is about more than finding nice sounding quotes from important people. Given Jefferson’s virtually nonexistent role in influencing early US copyright law, his views should be given similar influence today.

Perhaps more importantly, we should be sure we understand what exactly his views were. There is no evidence that Jefferson had any sort of idealized notion of copyright that is inconsistent with modern copyright law; according to Hughes, “if we objectively survey all of Jefferson’s writings, we find that his views on what we now call intellectual property were, to be generous, ‘nuanced’ or perhaps ‘fluid.’”

In this regard, a letter written in 1813 about patents isn’t very helpful.

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Footnotes

  1. Boyle, The Public Domain: Enclosing the Commons of the Mind, pg 18 (2008). [↩]
  2. One egregiously revisionist version of this sentiment can be seen at TechDirt: On the Constitutional Reasons Behind Copyright and Patents. [↩]
  3. Along with the examples above, see John Perry Barlow, The Economy of Ideas, Wired (March 1994); Russell McOrmond, Jefferson Debate: A Godwin’s law for copyright discussions? Digital Copyright Canada (Dec. 17, 2005); Nadine Farid, Not in my Library: Eldred v. Ashcroft and the Demise of the Public Domain, 5 Tulane Journal of Technology and Intellectual Property 1, 4-5 (2003); Parker Higgins, A Response to the Harvard Crimson’s “A Sensible Compromise”, freeculture.org (Dec. 23, 2010); Stealing Ideas, Structural Knowledge (July 19, 2011). [↩]
  4. Eldred v. Ashcroft, 537 US 186, 201 (2003). [↩]
  5. Aronson v. Quick Point Pencil, 440 US 257, 263 (1979). [↩]
  6. Diamond v. Diehr, 450 US 175, 187 (1981). [↩]
  7. Harper & Row v. Nation Enterprises, 471 US 539, 544 (1985). [↩]
  8. See, for example, Graham v. John Deere, 383 US 1, 8-9 (1966). [↩]
  9. Edward C. Walterscheid, The Use and Abuse of History: The Supreme Court’s Interpretation of Thomas Jefferson’s Influence on the Patent Law, 39 Journal of Law and Technology 195 (1999). [↩]
  10. Thomas Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2D 37, 37-38 (2002). [↩]
  11. 24 Journals of the Continental Congress 326-27 (May 2, 1783). [↩]
  12. Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA Law Review 421 (2009). [↩]
  13. 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, 1453 (2010). [↩]
  14. Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993, 1026 (2006). [↩]
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Friday’s Endnotes – 10/14/11

Terry Hart • October 14, 2011 • Posted in Friday's Endnotes • Comments closed

Protecting Property Rights on the Web: Thoughts on the Protect IP Act — The Institute for Policy Innovation released a paper, written by Tom Giovanetti, dealing with the PROTECT IP Act. Very good read, the piece places the legislation within the context of the fundamental principles the US is based on. “So, if we recognize the threat to our economy, to our health, and to our overall well-being posed by pirated and counterfeit goods, and if we recognize that it is a legitimate role for government to facilitate the protection of property rights, why should the Internet be set aside as a zone safe for the marketing and distribution of pirated and counterfeit goods? Is there something in the essential nature of the Internet that demands that there be no attempt to impose basic legal protections for those who participate in the online world?”

Argument recap: The constitutionality of zombie copyrights — Rebecca Tushnet provides some thoughts on last week’s oral arguments in Golan v. Holder. She concludes that “petitioners have an uphill battle, but not necessarily an unwinnable one.”

Spielberg, Hanks and Winfrey Join Forces with First Lady, Starring in Public Service Announcement Campaign Supporting Military Families — News about the entertainment community contributing their time and talents to produce a series of PSA’s which will be used to draw attention to the White House’s Joining Forces initiative. The initiative seeks to “bring Americans together to recognize, honor and take action to support military families as they serve our country and throughout their lives.”

Opening Remarks at the California Copyright Conference, October 11, 2011 — Chris Castle shares his remarks at a recent panel discussion hosted by the Conference. “I think we must balance our attention between fighting to achieve the legal environment for survival with supporting the people who are doing legitimate business or who aspire to do legitimate business.  And we likewise have to do what we can to nurture a business environment where people with good karma can thrive.”

ICYMI: Support for Rogue Sites Legislation is HUGE — How huge? The list of supporters can barely fit on this full page ad running in Politico.

When is a lock not a lock? — John Degen addresses TPMs and DRM, a hot topic in Canada due to their being addressed in the proposed Copyright Reform Act. “Well, why do we bother with diary, luggage or gate locks? None of them work very well. All of them can be broken with little to no effort. As serious efforts at security, TPMs are… well… lame. But ask any kid whose little brother has broken into her diary why that useless little lock is there, and you begin to understand why we use these things. They’re not really locks at all – they’re declarations of private property.”

Copyright Litigation Blog Turns Five — Kudos to Ray Dowd, who literally wrote the book on copyright litigation, for celebrating his fifth year blogging. Dowd shares some insightful thoughts on his experience writing the Copyright Litigation Blog.

The State of Colleen’s Industry from Print to Web: It’s working, and I don’t need a gag strip to make it pay — Colleen Doran shares her experiences of promoting, online, her work as a comic artist over the past decade. Getting to the point of actually making money online is a lot harder and more complex than what the “You Should Just People” make it out to be.

Sampling – a cautionary tale — Finally, music attorney Ian Clifford talks about his work clearing samples and the lessons he’s learned. Good information and advice for new bands and musicians who incorporate sampling into their work.

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Copyright and Derivative Arguments

Terry Hart • October 11, 2011 • Posted in Copyright history • Comments closed

It has been established at common law and recognized by our courts that “rules attending property must keep pace with its increase and improvements and must be adapted to every case”, and copyright protection must correspondingly extend.

Though these words were spoken over a century ago, they remain just as relevant today, especially as the US House is expected to introduce a version of the PROTECT IP Act within the next couple of weeks. The bill, which adds narrow, reasonable remedies designed to reduce the financial incentive of websites whose sole purpose is to infringe on the intellectual property of creators and businesses, seeks to keep pace with the increase and improvements of technology.

Opponents of the legislation will no doubt continue to ramp up their criticism of the bill — as a “threat to innovation” or “censorship“ — as it makes it way through Congress. Some will suggest that creators are better off if copyright law remains the same, that they are better off figuring out on their own how to capture some of the tremendous value their work creates for others.

Yet, somewhat ironically, for all the talk of “innovation”, these arguments remain strikingly familiar to ones raised time and again for at least a hundred years.

Copyright and New Technologies

In 1909, Congress passed a major revision of the Copyright Act. Among its provisions was the extension of copyright control to mechanical reproductions. Prior to then, the reproduction of a musical composition onto a mechanical device that could automatically play the song back — a piano roll or a phonograph, for example — was not considered a reproduction under copyright law.1

Debate over whether copyright law should encompass mechanical reproduction was contentious. On one side were manufacturers of automatic musical devices, who pushed Congress not to extend copyright law in this area. On the other were musicians and publishers. In December of 1906, the Congressional Committees on Patents heard from both sides.

Nathan Burkan, who was quoted at the beginning of this post, represented the Music Publishers’ Association. At one point, he was responding to the argument that the owners of mechanical music players had “vested rights” to use their technology to reproduce existing songs. This argument is a forerunner of the argument heard today that copyright holders are opposed to innovation and new technology.

You hear multiple variations on this argument, which basically goes like this: Since the law extends to a new technology, or a new use of existing technology, then it is a wholesale attack on the technology itself.2

But as Burkan points out, there is a difference between technology and the use of technology. Concern about the latter is not an attack on the former. And as Burkan progresses, he notes what is as true then as it is now: copyright and technology are not two competing forces but rather depend on each other. Weakening copyright law to accommodate the interest of tech manufacturers benefits nobody in the long run.

The letters-patent granted to the inventors of these perforated rolls and phonograph records, and improvements thereon, secure to them the right to manufacture contrivances adapted to reproduce sound. That is the extent of the right. It does not carry with it the further right to appropriate the copyrighted musical composition of any composer. There is nothing in the letters patent or in the patent laws or in the Constitution from which these rights emanate that can be construed as granting to the owner of a patent the right to deprive any man of his property or to exploit the intellectual productions of that man without fair compensation. Nor is there anything in the section which permits the composer of a musical composition, copyrighted after the act shall have gone into effect, to appropriate without compensation any device protected by patent. The composer would have no right to combine his composition with any patented invention and put the same on the market without the consent of the owner of the patent. Then, why should the owner of a patent have the right to use a copyrighted composition, without the owner’s consent, in connection with his invention?

… The contention that these patent owners have vested rights in the offspring of the brain of American composers is in violation of every principle of ethics, equity, and natural justice. They would not attempt to urge the contention that if in order to make their patents profitable it was necessary to combine therewith ordinary personal property, they would thereby acquire any rights in any such personal property. The great principle on which the author’s right rests is that it is the fruit or product of his own labor, and that the labor of the faculties of the mind establishes a right of property as sacred as that created by the faculties of the body. A literary man is as much entitled to the product of his labor as any other member of society, and the right to literary property is just as sacred as any other property and is entitled to the same protection that the law throws around the possession and enjoyment of other kinds of property.

This industry devoted to the manufacture of perforated rolls and phonograph records is essentially parasitic. It thrives by exploiting the productions of American composers, their names, and reputations. It exercises no productive effort in the art which it exploits. It does not stimulate original work. It waits until the composer and publisher have created and met a popular demand for a piece of music, through the expenditure of money, time, and labor; then it swoops down upon and appropriates that composition for use upon its machines, to its own unjust enrichment. It acquired great wealth, influence, and power by sponging upon the toil, the work, the talent, and genius of American composers.

And carried away by the success of this iniquity, these manufacturers have become imbued with its righteousness to such a degree that they regard the exploitation of American genius and the appropriation of its creations to their own enrichment as their vested right, and this bill which is to secure to the American composer no more than his just due—the full fruits of his labor—as an assault upon an inviolable right.

… But their selfishness is suicidal. It is a fact shown by a comparison of the industries that with the increase of the sale of their mechanical devices the sale of sheet music decreases. The hope of reward, this great incentive to original work, is thus taken away from the composers by the policy of these manufacturers, and the production of original compositions is discouraged. The inevitable result will be that the composers will refuse to give original compositions to the public for the sake of a copyright protection which will no longer protect. Then will the parasite that kills itself be killed.3

Piracy is Promotion?

Earlier in the debates, opponents of the mechanical reproduction provisions raised another argument: copyright owners should be thanking them because piano rolls and phonographs are great advertising for sheet music sales. Sound familiar?4

Below is an excerpt from this portion of the hearings. Speaking first is George W. Pound, representing the De Kleist Musical Instrument Manufacturing Company and Rudolph Wurlitzer Company. He had just finished recounting letters he had received from musicians thanking him for recording their songs. Also speaking is Albert H. Walker, who appeared on behalf of “many inventors and of a few manufacturers,” especially the Auto-Music Perforating Company. Finally, John Philip Sousa, when he finally gets the chance to speak, rebuts Pound and Walker’s arguments.

Mr. Pound. We contend, sir, that that position is not well taken, that as a matter of fact every composer in the land and every music publishing house in the land is glad to get the advertisement following from the mechanical reproduction of their music. It is regarded in the trade as the best assistant to the sales of their music of any form of advertising.

… Mr. Sousa. Can I say a word here?

Mr. Pound. It will have to be very brief, and this will be the last interruption that I shall permit.

Mr. Sousa. Mr. Chairman, I can not understand why the passage of this law will interfere with these gentlemen who want to go to the talking machines. If 99 per cent of the composers are willing to give them their product, all right. I can not understand why I should be robbed in that way. It will not hurt you, and if 99 per cent of them give the music to these people, all they will have to do is to pay me. I can not understand how this law will interfere with them, and I am not standing for any publisher. I am standing for John Philip Sousa, and America.

Mr. Walker. The interest the 99 per cent have in the defeat of the bill resides in the fact that they will sell more music if we continue to advertise their business than they will if the Aeolian Company drives us out of business.

Mr. Sousa. I prefer to be the judge of that myself. I want to select the means of advertising my music.5

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Footnotes

  1. White-Smith Music Publishing Co. v. Apollo Co., 209 US 1 (1908). Note for later that the attorney for the plaintiffs was Nathan Burkan, the attorneys for the defendants were Albert H. Walker and George W. Pound. [↩]
  2. “The entertainment industry hates new technologies,” Andrew Kantor, It’s the same old song from a short-sighted industry, USA Today, May 26, 2006; “In 1984, the Supreme Court spared Hollywood from its own short-sighted desire to curtail innovation,” Fred von Lohmann, Betamax was a steppingstone, EFF, 2004; “It’s almost a truism in the tech world that copyright owners reflexively oppose new inventions that do (or might) disrupt existing business models,” Nate Anderson, 100 years of Big Content fearing technology — in its own words, Ars Technica, Oct. 11, 2009; “Any time a new service comes along that helps drag the content industries into the present, the industry’s [sic] hit back by trying to kill off or cripple the golden goose,” Mike Masnick, Why does the entertainment industry seek to kill any innovation that’s helping it adapt? TechDirt, April 15, 2011. [↩]
  3. Pp. 222-23. [↩]
  4. “An artist’s enemy is obscurity, not piracy,” Cory Doctorow, Scourge of the Corporate Pirates, Brian Bethune, Macleans, April 23, 2008; “The sad fact is that The Lost Country has become a pretty obscure work … Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before,” Keven Smith, An Open Letter to J.R. Salamanca, Scholarly Communications @ Duke, Sept. 16, 2011; “Companies that are cracking down on “piracy” without realizing they may be hurting free promotional activity are doing damage to their own business,” Mike Masnick, Is There a Difference Between Piracy and Promotion? TechDirt, Aug. 10, 2004; “For example, due to file-sharing, people discover a broader range of films than before but cinemas have done nothing to work with this insight,” Magnus Eriksson, Is Online Piracy a Good Thing? CNN, April 17, 2009. [↩]
  5. Pp. 310-312. [↩]
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Friday’s Endnotes – 10/06/11

Terry Hart • October 7, 2011 • Posted in Friday's Endnotes • Comments closed

Anti-Counterfeit Friday — The Afro-IP blog, which covers IP news and issues in Africa, continues its ongoing series to raise awareness of the problem of counterfeiting on the continent. This week, counterfeit printing supplies in Ghana, and counterfeit drugs in east Africa. “For tuberculosis and malaria alone, up to 700,000 people die every year due to fake products.”

Copyright Reform 101 for the Cultural Sector — With Canada once again trying to pass a copyright reform bill, John Degen offers some “do’s and don’ts” in anticipation of the ramp up in rhetorical nastiness sure to follow. Example: “Do share.” “Don’t confuse actual sharing with forced sharing.”

More on Canada’s Copyright Modernization Act — Barry Sookman offers some comprehensive observations on Bill C-11. James Gannon looks at the bill’s TPM provisions and statutory damages provisions.

“In order to fight copyright infringements, ISPs may be asked to render specific websites inaccessible to their subscribers” — The Kluwer Copyright Blog examines last week’s decision by a Belgian court ordering two ISPs to block the Pirate Bay.

Good news to get good faster: Stageit brings it live — Chris Castle reviews StageIt, a music service started by Evan Lowenstein that lets musicians stream live performances and experiences directly from a laptop to their fans. Castle calls StageIt “a beautiful, beautiful thing.”

The World’s First “Plagiarism” Case — Jonathan Bailey offers this interesting historical story. It was a Roman poet named Martial in the first century A.D. who first used the Latin “plagiarus” to describe a literary thief.

Authors Groups From U.K., Canada, Norway and Sweden Join Authors Guild, Australian Society of Authors, and Quebec Writers Union in Suit Against HathiTrust — The Authors Guild has amended its complaint against the digital book depository, adding a number of plaintiffs. Included is author J.R. Salamanca, who had a book included on the HathiTrust’s list of orphan works until a month ago.

Parents and Kids Say They Appreciated Autism-Friendly ‘Lion King’ Matinee (via John August) — The NY Times reports on the performance, “the first time a Broadway show has sponsored an event specifically for autistic children and their families.”

The company of “The Lion King” and a panel of autism experts collaborated on ways to slightly modify the show to make sure autistic children did not have negative reactions to loud or sudden sound or light cues.  The volume in the opening number and other scenes, including the sound of a roar, was turned down. All strobe lights and  lighting that panned into the house were cut.  The sound and light reductions were done electronically so that neither the actors nor the orchestra had to tone down their performances.

Finally, be sure to check out This Week in Law. I’m appearing as a guest today — the live stream begins at 2pm EST, the show is archived afterward for later viewing.

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Golan v. Holder Argument Preview

Terry Hart • October 5, 2011 • Posted in Copyright news • Comments closed

This afternoon, the Supreme Court will hear oral arguments in Golan v. Holder. I previously wrote about the case here, which has bounced around between the District Court and the 10th Circuit several times over the past 10 years before landing here. Check out SCOTUSblog for links to each side’s briefs as well as the numerous amici briefs for both sides.

Golan involves the constitutionality of the restoration provisions that were passed as part of the Uruguay Round Agreements Act of 1994 (URAA).1 Those provisions restored copyright protection to foreign works which were still protected in their source country but that had fallen into the public domain in the US prior to 1996 because of failure to comply with formalities (like lack of proper notice), because of lack of national eligibility, or because the work was a sound recording made before 1972. The Act excluded liability for any use of restored works prior to restoration, limited the remedies available for existing derivative works based on restored works. “Reliance parties” — parties which exploited the work before copyright restoration — could continue to exploit the work without liability unless the owner of the work serves a notice to enforce his rights.

Whether the restoration provisions here stand or fall will have little effect beyond reliance parties like Golan and the other plaintiffs because of the limited scope of the law, but many who support Golan’s position are hoping to use a Supreme Court victory as a broader vehicle for affirming the values of the public domain in general and finally getting independent First Amendment review applied to copyright law to serve as a limitation on Congressional policy in that area — policy they often disagree with.

The Supreme Court is presented with two questions. Do the restoration provisions of the URAA exceed Congress’s authority under the Copyright Clause? Or, does this law run afoul of the First Amendment?

The Copyright Clause

On the first question, Golan essentially is asking the Supreme Court to draw a line in the sand: once a work falls in the public domain, it stays there. It paints a picture of the history of copyright law as one showing an “unbroken respect for the integrity of the public domain”. Under this view, the URAA restoration provisions represent a departure from this history. Golan worries that if the Court doesn’t draw a line here, it would put everything in the public domain into question, as Congress would have no barrier to removing works from the public domain whenever it wishes anytime in the future.

The US argues that much of Golan’s arguments are merely a restatement of Eldred’s failed assertion that the Copyright Clause embodies a quid pro quo between the public and authors. This assertion reads the preamble of the Copyright Clause — the “to promote the progress of science” language — as an independent limitation on Congressional authority. But, as the US points out, the Eldred Court rejected that interpretation and gave deference to Congress for crafting copyright legislation that best advances the goals of the preamble.

The US also argues that restoration doesn’t violate the “limited times” limitation because it doesn’t extend the length of the term restored works are protected for, it only protects them for as long as they would have been protected but for their lack of adherence to pre-Berne Convention US copyright law.

Finally, the US disputes Golan’s characterization of an unbroken history of leaving public domain works untouched. The very first Copyright Act (1790), in fact, conferred “federal copyright protection upon many works that were previously subject to unrestricted exploitation by the public.”

First Amendment

When the Supreme Court decided Eldred, it said that heightened First Amendment review of a copyright statute is unnecessary when “Congress has not altered the traditional contours of copyright protection.” The 10th Circuit ruled that Congress had altered these contours when it passed the URAA in its first decision.2 When Golan reached the appeals court the second time, the court held that copyright restoration was a permissible content-neutral regulation.3

Golan agrees with the 10th Circuit’s review of copyright restoration as a content-neutral regulation but argues that it fails this review. It claims the free speech rights at stake are too important and the government’s interest — which Golan describes as conferring “windfalls directly on foreign authors in the hope that this may create later windfalls for U.S. authors” — is not even a ”legitimate” interest, let alone an important one. What’s more, Golan alleges that Congress lacked substantial evidence that the URAA would actually advance this interest. Golan lastly argues that even if this was an important interest, Congress could have drafted the restoration provisions more narrowly to decrease their burden on free speech interests.

The US argues the polar opposite: copyright restoration shouldn’t be subjected to further First Amendment review at all. It says the 10th Circuit misread Eldred’s statement about the First Amendment and the “traditional contours” of copyright protection as though the Court had created a new test for deciding when to apply independent First Amendment review to a copyright statute. Even if Eldred had created a “freestanding inquiry”, the URAA hadn’t altered the traditional contours of copyright protection. Uses of restored works would still be protected by copyright’s built-in free speech safeguards, the idea/expression dichotomy and fair use.

The US concludes its argument by saying that even if further First Amendment scrutiny is required, copyright restoration is constitutional. It supports this conclusion with testimony and congressional hearings that shows it had a significant interest in passing this legislation, and the restoration provisions were only as broad as necessary to advance that interest.

What to expect?

In many ways, Golan is a sequel to Eldred v. Ashcroft. Both cases were part of a series of challenges to copyright law changes in the mid-90s brought in part by Lawrence Lessig. Golan initially included a claim identical to Eldred — that the CTEA was unconstitutional. This claim was stayed when the Supreme Court granted cert and dismissed after its decision.4 Now at the Supreme Court, Golan presents the same dual questions regarding the extent of Congress’s authority under the Copyright Clause and the First Amendment limitations on the exercise of that authority. In addition, the First Amendment issue in Golan relies heavily on the Court’s holding in Eldred.

Finally, in Eldred, the plaintiffs had attempted to draw a parallel between the CTEA and the laws struck down in US v. Lopez and US v. Morrison. In those cases, the same Justices that would rule on Eldred had ruled that two recently-passed laws were outside Congress’s authority to regulate interstate commerce, an authority that before than had been steadily expanding to the point where it seemed unlimited. Eldred hoped to convince the Court that the CTEA was like those laws — an expansion of Congress’s authority under its copyright power that would continue indefinitely unless the Court places a constitutional limit on it.

This argument, of course, failed, and Lessig — who had argued the case in front of the Court — publicly shouldered the blame for that failure. It will be interesting to see how Golan’s legal team approaches such a similar case with the lessons of Eldred, presumably, in mind.

Hopefully we get to see the Court push both parties on the relevant history of copyright law, since it plays a starring role in the question of whether and how Congress’s copyright power is limited, and both parties present such different versions of that history. Interestingly, the DC Circuit of Appeals rejected strikingly similar arguments against the URAA’s restoration provisions in Luck’s Music Library v. Gonzales.5 It notably took the same view of the relevant copyright law history as the US argues here: the Copyright Act of 1790 and the wartime restoration acts placed public domain works under copyright protection, lending support to the constitutionality of such action.

It will also be interesting to see if the Court asks about the then Solicitor General’s remark during oral arguments at Eldred about a “bright line” separating the constitutionality of extending existing copyright terms from granting protection after the term expired. Golan characterizes this remark in its brief as an acknowledgment by the US that it is prevented from restoring copyright to public domain works; the US responds that Golan misreads the remark — it was anything but a concession of a constitutional limitation.

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Footnotes

  1. Those provisions made up § 514 of URAA and are codified at 17 USC § 104A. [↩]
  2. Golan v. Gonzales, 501 F.3d 1179 (2007). [↩]
  3. Such regulations don’t violate the First Amendment if they advance “important governmental interests unrelated to the suppression of free speech” and don’t “burden substantially more speech than necessary to further those interests.” [↩]
  4. Golan v. Ashcroft, 310 F.Supp. 2d 1215 (D. Colo. 2004). [↩]
  5. 407 F.3d 1262 (2005). [↩]
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Supreme Court declines download royalty dispute

Terry Hart • October 4, 2011 • Posted in Copyright news • Comments closed

The US Supreme Court began its October 2011 term on Monday, a term that many foresee will be exciting and important. That no doubt holds true for copyright law buffs in particular — the Court will be hearing oral arguments in Golan v. Holder on Wednesday.

But the Court has already addressed one case dealing with copyright law. Yesterday, it denied ASCAP’s petition to overturn a Second Circuit decision holding that downloads of a song do not constitute a public performance of the underlying musical composition.

This was not a big surprise.

In the lower courts

ASCAP administers public performance right licenses in the US — it, along with BMI and SESAC, grants licenses to radio and TV stations, physical venues, and internet services that wish to publicly perform musical compositions on behalf of songwriters and composers.

Since 1941, ASCAP has operated according to a consent decree with the United States after the Department of Justice alleged that its blanket licenses violated anti-trust laws. That decree has been amended several times over the past 60 years and currently provides that the Southern District Court of New York acts as a “rate court” to determine license fees when ASCAP and a licensee cannot agree on a reasonable rate.1

This dispute began when AOL, Yahoo, and RealNetworks couldn’t reach such an agreement with ASCAP. During the rate proceeding, the issue of whether a download is a public performance — which would mean any service providing downloads would require a license from ASCAP — arose.

The District Court held that it was not.2 Drawing on the language of the relevant statutes, case law, and interpretations from agencies like the US Copyright Office, it said that downloads only constitute a reproduction of a musical composition, not a public performance.

ASCAP appealed the decision (and two subsequent decisions determining the method for calculating the fees in question). The Second Circuit affirmed the District Court’s holding regarding downloads.3 It said that “Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener.”

ASCAP, pointing to the definition of “publicly” in § 101, argues that a download constitutes a public performance. Section 101 defines “[t]o perform or display a work ‘publicly’” as follows:

(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.

ASCAP argues that downloads fall under clause (2) of this definition because downloads “transmit or otherwise communicate a performance,” namely the initial or underlying performance of the copyrighted work, to the public. We find this argument unavailing. The definition of “publicly” simply defines the circumstances under which a performance will be considered public; it does not define the meaning of “performance.” Moreover, ASCAP’s proposed interpretation misreads the definition of “publicly.” As we concluded in Cartoon Network LP v. CSC Holdings, Inc., “when Congress speaks of transmitting a performance to the public, it refers to the performance created by the act of transmission,” not simply to transmitting a recording of a performance. ASCAP’s alternative interpretation is flawed because, in disaggregating the “transmission” from the simultaneous “performance” and treating the transmission itself as a performance, ASCAP renders superfluous the subsequent “a performance… of the work” as the object of the transmittal.

ASCAP again appealed, this time to the Supreme Court.

At the Supreme Court

In its petition for a writ of certiorari, ASCAP argued that the Second Circuit’s decision improperly narrowed the public performance right, contradicts US obligations under intellectual property treaties, and creates profound implications for the American music industry.

ASCAP’s petition was joined by amici, including music publishers,4 BMI, and former US Register of Copyrights Ralph Oman.

The United States argued in its brief that Supreme Court review was unnecessary. It reiterated why it believed the Second Circuit’s holding was correct and noted that no other case contradicted this holding. ASCAP’s claim that the holding violates international agreements, said the US, was also without merit.

As for ASCAP’s argument about the impact of the court’s decision on the music industry, the US said this worry is unfounded:

[D]ownloading music files clearly implicates the authors’ rights to re­produce and distribute copies of those musical works. [ASCAP]‘s members are therefore paid each time a copyrighted work is lawfully downloaded. To be sure, a different agent licenses those mechanical rights, but the composer or author ultimately benefits regardless of which agent grants the license.

The Supreme Court was ultimately unconvinced by ASCAP’s petition and declined to take up the case, meaning the Second Circuit’s decision stands.

While ASCAP plays a vital role in standing up for its member songwriters, its legal arguments here were a longshot. The Second Circuit’s decision was a sound one, and the Supreme Court had little reason to revisit it.

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Footnotes

  1. ASCAP Second Amended Final Judgment, Sec. IX, June 11, 2001. [↩]
  2. United States v. ASCAP, 485 F.Supp 2d 438 (2007). [↩]
  3. United States v. ASCAP, Nos. 09-0539-cv (L), 09-0542-cv (con), 09-0666-cv (xap), 09-0692-cv (xap), 09-1572-cv (xap) (Sept. 28, 2010). [↩]
  4. These publishers and publisher associations included the Association of Independent Music Publishers, Church Music Publishers Association, Music Publishers’ Association of the United States, National Music Publishers’ Association, Production Music Association, the Songwriters Guild of America, the Society of Composers and Lyricists, the Recording Academy, the Game Audio Network Guild, and the Nashville Songwriters Association International. [↩]
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Friday’s Endnotes – 09/30/11

Terry Hart • September 30, 2011 • Posted in Friday's Endnotes • Comments closed

Make money online by selling pirated content? These sites do — File lockers and linking sites on their own are difficult to hold liable for the rampant infringement they facilitate. But together? “The combination of these two types of sites is like a one-two punch resulting in a knockout. They are both essential for one another to function in such a profitable manner, and man, oh, man, do they ever make a lot of money doing what they do.”

Gone Elvis Production Diary, Part 2 — The Copyright Alliance has been following indie filmmaker David Newhoff as he works on his latest project. In this part, they talk primarily about funding and costs. “So, without paying any fees for labor, equipment, or locations, my 30-minute short cost a little more than $8,000 to get in the can. And that was a four-day shoot with a very small cast and crew. If gone Elvis makes money and I want to repay those who worked on it, I’ll have about a $30,000 check to write. So, the next time you hear ‘feature film made for $5,000,’ take it with a healthy dollop of salt — and tequila!”

Why 2011 Is the Year Digital Music Broke, by the Numbers — Billboard’s Glen Peoples notes several reasons: digital sales are up substantially from last year, streaming services like Pandora and Spotify have had good years, music startups like Turntable.fm have shown early promise.

The Sims Social Facebook game promotes questionable blogging ethics — You can get 5 points if you “Steal pictures from other websites to make your blog look professional.” Wait, what?

Students shouldn’t download music illegally— Another great article from the younger generation. Like previous articles from the Harvard Crimson and the Arbiter Online, The Rocky Mountain Collegian, the student newspaper of Colorado State University, points out that there’s nothing hip about stealing music. “Now you might think you are taking money from powerful record companies, which take advantage of artists –– and this is kind of true. “Think about a young band that just got signed by a record label. If all of the band’s fans steal the album and its record sales tank, what incentive does the company have to keep a contract with the band? Do yourself a favor, support bands (especially local ones). Support the failing music industry. Support our failing economy, and don’t steal music.”

A2IM Call To Action:  Write Congress, Help Get PROTECT IP Passed — The American Association of Independent Music calls on independent musicians and labels to add their voices of support for rogue sites legislation.

7 Things I Wish I Knew about Content Theft 10 Years Ago — PlagiarismToday’s Jonathan Bailey shares the lessons he’s learned over the past decade from blogging and consulting with others to detect and stop online content theft. Very good info.

Copyright Office Rulemaking on Designation of DMCA Agents — The US Copyright Office is seeking comments to upgrade its system for keeping track of registered DMCA agents. It is specifically looking to migrate from its current paper system to an online system; it is also looking for input on how to make the system more up-to-date and efficient.

Will Google Submit “The Power of Google Adsense” to Voluntary Oversight? — Probably not, but they should, writes Chris Castle. “Not because of the moral hazard—because of the criminal hazard.  This is the group that failed seven different sting operations by the Department of Justice.  This is the group that does business with rogue sites and suckles pirates around the world.”

This Week in Law — Every Friday at 2pm, host Denise Howell talks with special guests on news and developments in the world of law and tech (the shows are archived for later viewing as well). I will be one of those guests next week, October 7th. Tune in to see why I have the perfect voice for blogging.

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Polis Seeks to Make Copyright More Complicated and Uncertain

Terry Hart • September 28, 2011 • Posted in Copyright reform • Comments closed

Rep. Jared Polis thinks something must be done about copyright.

The freshman second-term Colorado Congressman, who sold his online greeting card company bluemountain.com to Excite@Home for $780 million in 1999, introduced legislation on September 14th that seeks to simplify copyright law regarding sound recordings made before 1972.

H.R.2933 — The Sound Recording Simplification Act — is short, consisting of its title and two lines. All it does is delete 17 USC § 301(c). In a statement announcing the bill, Polis explained:

The variation in protection from state to state hinders the ability to have a consistent business approach regarding rights ownership. The scope of protection and what would constitute acceptable use are inconsistent due to the lack of detailed precedent. Additionally, state law does not have provisions that account for modern technology, such as streaming music websites, and songs as data are increasingly easy to transmit.

But upon closer look, Polis’s bill would fail completely to address these issues. At best, it would change nothing. At worst, it would lead to more uncertainty rather than less, and give rise to a host of unforseen consequences.

Federal and state protection for sound recordings

Recorded music consists of two distinct copyrighted works: the underlying musical composition and the sound recording of that composition. US copyright law has expressly provided protection for musical compositions since 1831, but it wasn’t until 1972 that protection was extended to sound recordings.1 Note, however, that federal copyright protection did not retroactively extend to sound recordings made before the passage of the 1972 legislation.

Though the federal government did not protect sound recording copyrights before 1972, states did. By the early 70s, roughly half of state legislatures had adopted criminal provisions aimed at curbing music piracy.

Prior to the Copyright Act of 1976, the federal government and the states concurrently exercised copyright power — for all types of works, not just sound recordings.2 That all changed with the passage of the 1976 Act. Congress gave the federal government exclusive authority over copyright; “all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright” under any state’s statutes or common law are preempted by US copyright law.3

Preemption and pre-1972 sound recordings

But a problem was anticipated: what would become of sound recordings made before 1972?

One way to interpret the preemption provision would be that it had no effect on pre-1972 sound recordings. Since they weren’t covered under the scope of federal protection, state laws protecting them weren’t preempted.

But the provision could be interpreted another way. In a 1975 hearing concerning the revisions that would lead to the 1976 Act, the Department of Justice raised concerns about this possibility:

This language could be read as abrogating the anti-piracy laws now existing in 29 states relating to pre-February 15, 1972, sound recordings on the grounds that these statutes proscribe activities violating rights equivalent to * * * the exclusive rights within the general scope of copyright. * * *” Certainly such a result cannot have been intended for it would likely effect the immediate resurgence of piracy of pre-February 15, 1972, sound recordings.

In other words, a court could strike down state piracy laws if it interpreted the statute this way, putting every sound recording made before 1972 into the public domain.

So Congress added § 301(c) to make it absolutely clear that this is not what it intended. At the same time, it recognized that state piracy laws did not provide protection for only a “limited time” as federal copyright law did — sound recordings gave perpetual protection. So it also put in a sunset provision to the clause, 75 years from the first day sound recordings were covered under federal law (the Copyright Term Extension Act increased that time by 20 years).4

Today, §301(c) provides that:

With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067. The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on and after February 15, 2067. Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title before, on, or after February 15, 2067.

This is the provision that Polis’s bill would delete. The only thing this would accomplish is reinstating the uncertainty that led to its addition 35 years ago. It would not bring pre-1972 sound recordings under federal copyright protection. And, if the DOJ’s original concerns are unfounded and courts interpret the statute to mean that state piracy laws aimed at pre-1972 sound recordings are not preempted, than Polis just gave those recordings perpetual protection.

I highly doubt Rep. Polis is looking to extend copyright protection forever.

Haste makes waste

In Polis’s rush to do something about pre-1972 sound recordings, he not only ends up doing nothing, he steamrolls over the legitimate concerns of those working on solutions.

In 2009, hearing concerns that current law addressing pre-1972 recordings can cause problems, Congress directed the US Copyright Office to conduct a study on the “desirability of and means for” bringing those recordings under federal copyright law. It specifically asked the Office to look at “the effect of federal coverage on the preservation of such sound recordings, the effect on public access to those recordings, and the economic impact of federal coverage on rights holders.”

The Copyright Office began seeking input for its study last November.5 In this first round of comment seeking, it raised thirty potential questions about implementing federal protection for these recordings.

The questions cover preservation and access issues; economic issues, especially relating to value of recordings and ownership of rights concerns; and implementation issues, like term length and due process concerns.

To give just a few examples, the Copyright Office asks:

4. Would bringing pre-1972 sound recordings under Federal law—without amending the current exceptions—affect the ability of such institutions to provide access to those recordings? Would it improve the ability of libraries and archives to make these works available to researchers and scholars; and if so, in what way? What about educational institutions, museums, and other cultural institutions?

16. Under Federal law the owner of the sound recording will generally be, in the first instance, the performer(s) whose performance is recorded, the producer of the recording, or both. Do State laws attribute ownership differently? If so, might that lead to complications?

23. If the requirements of due process make necessary some minimum period of protection, are there exceptions that might be adopted to make those recordings that have no commercial value available for use sooner?

27. Could the incorporation of pre-1972 sound recordings potentially affect in any way the rights in the underlying works (such as musical works); and if so, in what way?

Polis’s bill addresses none of these questions. To his credit, this is quite an accomplishment — copyright legislation that everyone, from rightsholders, to downstream copyright users, to libraries, museums, and educational institutions, would agree is a bad idea.

I’m left scratching my head over how Rep. Polis can think expedience is better than comprehensive study for finding solutions, or how one can craft legislation that is so bad that it not only doesn’t solve whatever problem you’re trying to fix, it actually makes those problems worse.

Perhaps this is just business as usual for Polis, because a similar thing happened a few years ago with Colorado’s Amendment 41. The ballot measure, which Polis helped sponsor and back in 2006, was ostensibly targeted at curbing lobbyist influence, but ended up making “scholarships for children of public employees and performance awards for employees” illegal.6 It led to a fire-fighters association indicating that it “might have to close its foundation, which had made scholarships available for fire-fighters’ children and provided funeral assistance for fire-fighters’ survivors.” When these problems became apparent, Polis and the amendment’s other sponsors said that “they didn’t really mean what it said.”

In the same way, the Sound Recording Simplification Act doesn’t mean what Polis thinks it means.

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Footnotes

  1. The New York Court of Appeals provides an impressively thorough history of sound recordings, copyright, and preemption — beginning in 15th century England — in Capitol Records v. Naxos, 830 NE 2d 250 (2005). [↩]
  2. See Goldstein v. California, 412 US 546, 560 (1973). [↩]
  3. 17 USC § 301(a). [↩]
  4. H.R. Rep. No. 94-1476, pg 133. [↩]
  5. Federal Copyright Protection of Sound Recordings Fixed Before February 15, 1972, Notice of Inquiry, 75 F.R. 67777 (Nov. 3, 2010). [↩]
  6. John Straayer, Direct Democracy’s Disaster, National Conference of State Legislatures Magazine (March 2007). [↩]
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Does amateur creativity make copyright obsolete?

Terry Hart • September 26, 2011 • Posted in Copyright Criticism • Comments closed

Techdirt points to a report that Facebook currently hosts 4% of every photograph ever taken in history. Whether that’s an accurate number or not, the social media giant does host a huge amount of photos on its servers. Masnick uses this story to question copyright:

What is the real purpose of copyright? Is it only to incentivize professional content creation, or to incentivize content creation overall? Given the stated purpose is to “promote the progress,” and to provide the public with more content, I would argue the goal is to promote more overall content, and it seems that technology is doing a much better job of that than copyright.

There’s a couple of points here I want to talk about later, but first is this undercurrent that runs through many criticisms of copyright — that of valuing amateur content over professional content.

Yes, copyright incentivizes professional content creation — it is an economic incentive to invest money in the production of creative output. There is a moral rights aspect to copyright — explicit in many civil law nations, implicit in many common law nations — but the incentive aspect of copyright is primarily economic.

Critics of copyright law occassionally advance arguments attacking the incentive given by copyright as unnecessary or outdated. This one in particular goes something like this: we have no need for copyright anymore because amateur creators don’t need copyright’s incentive to create and amateur creativity is better than professional creativity.

This notion isn’t unique to Masnick. Sci-fi writer Cory Doctorow shares this view. In the Guardian last November, he writes, “I mean, I love sitting in an air-conditioned cave watching Bruce Willis beat up a fighter jet with his bare hands as much as the next guy, but if I have to choose between that and all of YouTube, well, sorry Bruce.”

Swedish politician Rick Falkvinge is even more blunt, who, though he doesn’t get around to defining what he means by “new” types of culture, can’t wait for “old” types of culture to die out:

I’m going go out on a limb here and say, that even if it is true that movies can’t be made the same way with the Internet and our civil liberties both in existence, then maybe it’s just the natural progression of culture.

[…] After all, we have previously had operettes, ballets, and concerts as the high points of culture in the past. Even radio theaters (and famous ones). Nobody is particularly concerned that those expressions have had their peak and that society has moved on to new expressions of culture. There is no inherent value in writing today’s forms of culture into law and preventing the changes we’ve always had.

You’ll even find such ideas coming from more scholarly sources. The Social Science Research Council’s Media Piracy in Emerging Economies report adopts this idea and wraps it up in more academic language:

[W]e take seriously the possibility that the consumer surplus from piracy might be more productive, socially valuable, and/or job creating than additional investment in the software and media sectors. We think this likelihood increases in markets for entertainment goods, which contribute to growth but add little to productivity.

Promoting the Progress

“To promote the progress of useful arts, is the interest and policy of every enlightened government.”1

In the US, the end goal of copyright law is promoting the progress of the useful arts and sciences. A private right is secured as an incentive for creating and disseminating works for the public benefit.

Usually when we talk about “amateur creativity” and copyright, we’re talking about cultural works that are made for many of the same reasons as professional works but without the commercial aspect — videos, music, and writing created by hobbyists or striving professionals. But some of those making the argument that amateur creativity makes copyright obsolete sweep in not only this type of creativity but all noncommercial creative acts.

Snapshots, home videos, and status updates are great ways to communicate and express ourselves, but these can hardly be considered contributing to the promotion of the progress of the useful arts and sciences. Where is the public benefit in a stranger’s vacation pics? (Never mind that, unless you’re friends with all these people, you likely can’t see most of them.)

I wonder sometimes about those who don’t see the value of art and entertainment made by someone who got paid for it. It’s stunning that they can’t see the value of these novels, or these films, or these albums, or these photographs.2 To dismiss these works and countless others like them as mere “entertainment” that is “unproductive” is an incredibly narrow viewpoint.

What’s equally stunning is the view that the measure of progress when it comes to copyright law should be based solely on numbers — quantity over quality. Ten photos are better than one, no matter what.

Come on.

Faza, at the Cynical Musician, addressed this topic last year in a post on Graphomania. And the late Barbara Ringer had this to say:

I agree that the copyright law should encourage widespread dissemination of works of the mind. But it seems to me that, in the long pull, it is more important for a particular generation to produce a handful of great creative works than to shower its schoolchildren with unauthorized photocopies or to hold the cost of a jukebox play down to a dime, if that is what it is these days.

Copyright protection

But suppose we ignore all this and decide to weaken copyright protection since the incentive is not needed anymore — problems would still remain. While the type of amateur creativity discussed above doesn’t rely on copyright’s incentive, it still benefits from the protection copyright law affords. A lot of attention is focused on end-user piracy of works from larger entities, but larger entities can infringe on individuals’ works.

Certainly, this type of infringement happens now. Look at the flurry of controversy that stemmed from news that photo service Twitpic claimed copyright on users’ images, allowing it to distribute those images to its company partners. This is far from an isolated incident — in 2007, the family of a 16 year-old girl took Virgin Australia to court for using a photo of her, uploaded to Flickr under a Creative Commons license, in an ad campaign (the case was dismissed for lack of jurisdiction). And even the aforementioned Doctorow has publicly railed against the unauthorized use of one of his wife’s photos by a newspaper.

Without copyright protection, companies would have free rein to behave like this. There’s nothing magical about copyright protection that makes it only limit the ability of consumers getting free movies.

Development of creative tools

Technology is suggested by Masnick as a better mechanism for promoting creativity than copyright protection. It’s true that people today have access to a vast array of cheap and portable tools to record and produce high quality audio and visual content (though no technology has yet made it easier to learn how to tell a story or convey an emotion). But this idea that technology has rendered copyright obsolete begs the question that a functioning market for professional content had nothing to do with the development of that technology.

Would there be technological tools that help amateurs create — especially free or cheap tools like GIMP, Blender, and Reaper — without their commercial precursors? These tools required investment and development, and that came largely from their use in professional contexts — decades of improvement fueled by a need for this technology and enabled by the money to meet that need. Invention, after all, doesn’t occur in a vaccuum.

No doubt this technology would have developed without copyright and a market for professionally produced content. But it certainly wouldn’t have developed at the rate it had — the tools that are available today would likely be decades away in such a world.

This ties into the benefit of copyright protection and its economic rationale. I think even copyright’s critics would agree that the ability to create movies and music from a home computer is a good thing. And, while I’m unaware of any research quantifying the effect of a market for professional content on the development of the technology used to create that content, I think it’s safe to say that it does have an effect, and probably not an insignificant one. We, as a society, generally want to encourage those things that bring about good results. Viewed this way, copyright makes sense from a public interest and economic perspective.

The “progress” of destroying markets

The biggest problem with attacking copyright by placing amateur content on a higher pedestal than professional content is that it sets up a false dichotomy. When did this become an either/or choice?

Amateur creativity thrives regardless of the copyright incentive. In fact, it’s an essential part of any culture with professional creators: almost without exception, every one of those professional creators has started out as an amateur. What Masnick, Doctorow, Falkvinge, and others are saying is that society would be better off with only amateur content rather than the combination of amateur and professional content.

That doesn’t sound like progress to me.

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Footnotes

  1. Grant v. Raymond, 31 US 218, 241 (1832). [↩]
  2. I chose these lists only as representative examples of works held in high regard. Obviously there are problems with ‘best of’ lists of this sort. [↩]
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Friday’s Endnotes – 09/23/11

Terry Hart • September 23, 2011 • Posted in Friday's Endnotes • Comments closed

Free speech shouldn’t be a shield for online thieves — Mike McCurry and Mark McKinnon, co-chairmen of Arts+Labs, pen this must read editorial about free speech and copyright. “We are not lukewarm First Amendment advocates. One of us went to jail to protect freedom of the press and the other routinely had to defend this freedom to belligerent skeptics on the White House staff.  But we believe it is a misuse of the First Amendment to shield rogue websites whose main purpose is distributing illegal copies of intellectual property.”

Chamber leads push for copyright enforcement bill — The US Chamber of Commerce spearheaded a coalition of 359 businesses and organizations in support of rogue sites legislation, sending a letter to US Congress members on Thursday. In other news, Sen. Ron Wyden continues his curious remarks that this bill will damage “innovation.”

Free as in speech… — Rob Levine points to a recent interview he did with Scottish novelist Ewan Morrison where he discusses some of the interesting political questions surrounding copyright, technology, and free culture. He highlights some of the “intellectual inconsistencies” in copyright critics’ positions — he only scratches the surface though, as you can easily find other examples of these types of inconsistencies.

Portland, Oregon Reports Jobs Boost — Portland is currently home to several television and film productions, including one of my faves, TNT’s Leverage. Portland mayor Sam Adams recently published a letter to local residents detailing the economic impact filming has on the city: for example, “In 2009, the Portland metropolitan region alone saw $52 million in direct spending through local film productions, totaling a $102 million economic impact for the year.”

95% of BitTorrent files infringe copyrights according to AFACT — A new report from the Australian Federation Against Copyright Theft is consistent with other reports in showing that nearly all BitTorrent files are unauthorized copies of films, television shows, and music.

File-sharing protest bomb threat video lands teenager in court — An 18 year-old New Zealander finds himself in trouble with the law after his threats in connection with the country’s recent graduated response legislation. Talk about your disproportionate responses.

Policing the digital storage landscape — Should provisions to address the rampant infringement taking place on cyberlockers be added to rogue sites legislation currently being considered by Congress? Content providers and the US Copyright Office think so.

Copyright terrm success for artists and record companies — Dominic McGonigal explains the EU’s recent directive to increase the term of copyright protection on sound recordings from 50 to 70 years. “Without this change, [thousands of] musicians were facing reducing royalties each year as recordings go out of copyright. For record companies, this potentially increases the value of their back catalogue, allowing more investment in new artists.”

Call for papers: 2012 Cardozo Arts & Entertainment Law Journal Symposium — The working title of the symposium is “Examining and Overcoming Enforcement Issues in Copyright Law”: “The Symposium is an opportunity for academics, practitioners, consultants, and students to exchange ideas related to the protection of intellectual property in the Digital Age, from the perspective of enforcement, as well as self-policing and cooperative agreements. Topics might include examinations of the PROTECT IP Act of 2011, the America Invents Act, Content ID and similar technologies, and the recent cooperative agreement between ISPs and content owners.”

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