Copyhype

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. ¹Robert Maugham, A Treatise on the Laws of Literary Property, pg. 74 (London 1828). 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. ²Meredith 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.

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. ³Bach v. Longman, 2 Cowp. 623 (1777). 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. ⁴Kevin 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.

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. ⁵See, for example, John Burk, Bunker-Hill, “Copy-Right Secured According to Law [1797]. (Theatre took a while to rebuild during this period in large part because the Continental Congress had banned it during the Revolutionary War.) ⁶Allison 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).

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.” ⁷Burrow-Giles Lithographic v. Sarony, 111 US 53 (1884). 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). ⁸William Patry, “Statutory Revision“, Copyright Law and Practice, n.108 (2000). In addition, though motion pictures were not explicitly included as copyrightable subject matter in the Copyright Act until 1912, ⁹Act of August 24, 1912, Pub. L. No. 62-303, 62d Cong., 2d Sess., 37 Stat. 488. early film producers such as Thomas Edison began registering films as still photographs in the early 1890’s, a practice upheld in court. ¹⁰Edison v. Lubin, 122 F. 240 (1903).

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). ¹¹See Mazer v. Stein, 347 US 201 (1954). 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. ¹²See Did the 1976 Copyright Act Lessen the Orphan Works Problem?

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; ¹³One 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. 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“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). Copyright (or literary property) was explicitly seen as a form of property by these same Founders. ¹⁵See, 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). 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. ¹⁶A Letter Addressed to the Abbe Raynal (1782).

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.