Copyright Revision Shouldn’t Require Historical Revision

June 18, 2013 · · 1 comment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Footnotes

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

May 07, 2012 · · 44 comments

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.1

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.2 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.3

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.4

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.5 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.6 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.7

Weather played a huge role too — LA offers 70 degree year-round weather as opposed to winters in New York or, worse, Chicago.8 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.9

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.”

Footnotes

  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. [↩]
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Friday’s Endnotes – 05/13/11

May 13, 2011 · · 2 comments

Content and Technology is not an Either/or Choice — The Copyright Alliance disputes the framing of efforts to better protect IP rights as a choice betweencopyright and innovation. “The copyright community and the technology sector drive and sustain each other.  They each contribute disproportionately to the wealth of this nation, and both sectors depend on a vibrant, legal marketplace of digital content.”

Celebrating World Press Freedom Day, and What the First Amendment Means to the MPAA — The Motion Picture Association of America’s new chairman Chris Dodd reflects on the role of the organization in defending free speech rights for filmmakers, a theme I discussed on this site recently. “Many people don’t realize that the MPAA itself was born as an answer to government censorship.  Before the establishment of the MPAA’s Classifications and Rating Administration, early filmmakers battled a mishmash of local, state and federal boards that mandated strict ‘moral standards’ that often destroyed the artistic integrity of films or kept them from being shown at all.”

Limewire Case Settles, Mid-Trial, For $105 Million — Thursday evening brought news that the file-sharing service reached a settlement agreement with the record labels that had brought suit against it before the close of the first week of the jury trial to determine damages. Q: How much of the settlement is going to the artists? A: More than they got from Limewire.

MPAA v. Zediva is Shaping up to be Quite the Legal Showdown — Remember Zediva, the video-on-demand startup that streams movies online from actual DVDs in remote DVD players to avoid licensing fees? They were, of course, sued by film studios. PaidContent reports that both sides seem to be placing a high priority on this lawsuit, considering the high-power lawyers being called on for litigation.

YouTube boosts movie rentals with over 3,000 Hollywood titles — The video-sharing site joins online movie providers like iTunes and Amazon, allowing users to watch films for a couple of bucks. The titles include classics like Goodfellas and newer releases like Inception.

Library of Congress and Sony create the National Jukebox — The record label has made thousands of previously unavailable historical recordings available to the general public through a joint effort with the Library of Congress. According to the LA Times, “The collaboration between Sony and the Library of Congress is intended to keep any cost to taxpayers to a minimum and to make the streaming files available quickly. In return, Sony will receive data on which recordings are streamed most frequently to help determine which may have commercial potential.” Win-win-win.

Interview: The Art of Video Games at the Smithsonian — Boing Boing contributor Rob Beschizza interviews the organizer and exhibition curator of the Smithsonian’s upcoming Art of Video Games exhibition. “We want to show people that video games are more than they might appear on the surface, that they can have incredible depth, beauty, and emotion.”

4 Predictions for Copyright Reform Attempt 4 — With the recent Canadian elections completed, it is likely that the new government will resume the efforts to reform the nation’s copyright law. Attorney James Gannon offers his predictions on what changes to expect this time around in light of recent developments in copyright law and digital technologies.

The E-Book Gold Rush — Author Lee Goldberg injects some reality into the recent success stories of self-publishing authors in the digital world. Yes, authors can find new opportunities with e-books and shouldn’t ignore their potential. But the fact remains that a new system that makes it easier for an author to spread her work makes it easier for every author to spread her work — bringing us back to square one in the amount of time and effort needed to build an audience.

Google Books and the Rule of Law— Howard Knopf pens this op-ed about the broader rule of law and international law implications of the Google Books project. “The Google Books project has frequently been likened to a reincarnation of the Library of Alexandria in a digital, fireproof format—because it could include virtually all the world’s important books in an instantly accessible database. However, what has been shown to be technically achievable and widely praised is far from clearly legally viable. There is considerable concern from those who care about core values in copyright and international law, and indeed the rule of law itself. Nobody is above the law—not even Google. Class actions were never intended to usurp legislation and treaties.”

GAO Still Stonewalling on Sources for “Stealing is Good” Report — Chris Castle documents his efforts requesting information from the Government Accountability Office regarding the unnamed experts who advanced the idea of positive effects of piracy in last year’s report on “Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods.”

Cheezburger Networks of sites suck — A very short blog post from photographer Terry Border at Bent Objects, but a great excuse for me to point people to his work. Border uses everyday objects to create whimsical scenes — circus peanuts performing in a circus, for example. Here, he complains about the popular image aggregator sites which misappropriate photos from the web, routinely without regard to attributing the original authors. Says Border, “I’ve heard a couple of comments that blame the submitters to their sites, and not Cheezburger themselves. Well, who put together the way their sites work? They can try to wash their hands of wrong-doing, but it’s their system, and they know the end result will be lots of anonymous images thrown into the furnace of their giant money making machine.” Hm, sounds familiar.

Finally, from the academic world, I recommend the following:

Copyright, Complexity and Cultural Diversity (via Legal Theory Blog) — In this forthcoming Chapter, available at SSRN, Michal Shur-Ofry-

“challenges the prevailing view pertaining to the connection between broad copyright protection and lack of cultural diversity. Prominent scholarship in the field of copyright links the lack of diversity in cultural consumption to the broad copyright protection afforded to cultural works. Copyright, so goes the argument, constitutes a major basis for the activities of mass media corporations, which flood our cultural sphere with formulaic cultural products, whose sole purpose is to appeal to the taste of the masses. The limitation of copyright, so the argument proceeds, would diminish the cultural domination of mass media products, and promote audience exposure to ‘other’, more diverse works.

“The Chapter questions the importance attributed to copyright law in this context. Based on complexity and network theory dealing with the evolution of popularity and the self organization of complex systems, it illuminates the fact that the inclination towards popular cultural works is an intrinsic phenomenon of social networks, and does not depend upon copyright protection. It continues to analyze recent ‘long tail’ data, which indicates that positive changes in the degree of cultural diversity occur even under a broad copyright regime. In light of these observations, the Chapter attempts to offer a broader perspective on diverse cultural consumption, relying on socio-cultural research. This literature indicates that cultural diversity is a complex and multi-faceted issue. The non-linear nature also implies that the level of diversity cannot be easily calibrated by changing the scope of copyright protection. Rather, the attempt to promote diverse cultural consumption must address a series of difficult questions which are outside the scope of copyright law.”

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