Copyhype

Debate over the role and scope of copyright law in a digital age was reignited last week after the brief appearance of a policy brief by a Republican Study Committee staffer, Derek Khanna. The brief was officially pulled from the RSC website, but copies are easily found online.

Copyright skeptics were quick to dub the brief a “watershed” moment and seem unable to confine the hyperbole of their remarks. One Twitterer compared the policy brief to the 95 Theses, which catalyzed the Protestant Reformation. One might chalk up the reaction to a form of confirmation bias — or, “brilliant people agree with me“.

But as I mentioned last Wednesday in the first part of my examination of the policy brief, any debate should begin with sound premises. And the RSC policy brief, which first lays out three “myths” about current copyright law, does not do this. If copyright skeptics can’t advance arguments without rewriting history, perhaps their arguments are not as solid as they think.

Today, I want to continue my in-depth look at the RSC policy brief, focusing on the final “myth” and sections on the current status of copyright law.

Myth 3. The current copyright legal regime leads to the greatest innovation and productivity

First, this myth begs the question that the purpose of copyright under the Constitution is to provide the greatest amount of the ill-defined concepts such as “innovation” and “productivity.” Too often “innovation” is used as a code word for increasing the bottom line of venture capital firms and the consumer electronics sector. As I noted in my first part, this interpretation of the purpose behind the Copyright Clause does not comport well with history.

Second, and more importantly, is the suggestion that there are those who would say the current copyright legal regime is ideal. I doubt you will find many from any side of the copyright debate who will declare this. In fact, the perceived shortcomings of the law do much to explain its expansion over the past two centuries.

There were four major revisions to the Copyright Act since the first Act in 1790: 1831, 1870, 1909, and 1976. ¹William Patry, Copyright Law and Practice, Chap. 1 (2000). During each of these, you can find those who expressed the need for reform precisely because the existing copyright law was inadequate in some fashion.

You can see this in the work of Noah Webster, writer of what would become the seminal American dictionary. Webster actively lobbied for copyright legislation under the Articles of Confederation. ²Noah Webster, A Collection of Papers on Political, Literary, and Moral Subjects, pp 173-75 (Webster & Clark, 1843). But before the end of his life, he would return to Congress in the 1820’s to argue on behalf of the “justice of a more liberal law” that would cure some of the “defects” in the 1790 Copyright Act. His efforts in part resulted in the first major revision of US copyright law in 1831. ³Id. 175-78.

Librarian of Congress Ainsworth Spofford remarked upon these shortcomings as motivation for the progression of copyright law during the third major revision to the Copyright Act in 1870. “It is a very notable fact that the United States of America was the first nation that ever embodied the principle of protection to the rights of authors in its fundamental law. Thus anchored in the Constitution itself, this principle has been further recognized by repeated acts of Congress, aimed in all cases at giving it practical effect.” ⁴The Copyright System of the United States—Its Origin and Growth.

Within forty years, Congress would again seek to revise the copyright law. During this period, the first US Register of Copyrights Thorvald Solberg said in 1904: “The laws as they stand fail to give the protection required, are difficult of interpretation, application, and administration, leading to misapprehension and misunderstanding, and in some directions are open to abuses.”

In the decades following, Congress engaged in perhaps the most thorough and comprehensive revision of copyright law. During this time, former Register of Copyrights Barbara Ringer said in a 1975 Congressional Hearing:

The Constitution speaks of the desirability of promoting the progress of science and useful arts, science in the broad sense of learning or knowledge, by offering protection for limited times to authors and inventors.

It seems to me that it is this protection, the exclusive rights that are supposed to be granted to authors, that is the ultimate public interest that the Constitution and its drafters were thinking about. I do not think that this has ever been fully or even partly realized in any copyright law we have had in our entire history.

If anything else, the past two decades have borne witness to many arguments that copyright law is not ideally fit to accomplishing its purpose of establishing a functional marketplace for the creation and dissemination of expressive works. This “myth” is little more than a strawman.

Current status of Copyright Law?

Khanna begins the next section of his brief by remarking:

Under the Copyright Act of 1790, the first federal copyright act, it stated that the purpose of the act was the “encouragement of learning” and that it achieved this by securing authors the “sole right and liberty of printing, reprinting, publishing and vending” their works for a term of 14 years, with the right to renew for one additional 14 year term should the copyright holder still be alive. This is likely what our Founding Fathers meant when they wrote in the Constitution for a “limited time.” Gradually this period began to expand, but today’s copyright law bears almost no resemblance to the constitutional provision that enabled it and the conception of this right by our Founding Fathers.

But is this “likely what our Founding Fathers meant”?

The US Copyright Act of 1790 borrowed the UK’s 1710 Statute of Anne Statute of Anne (1710) almost in its entirety, including the fourteen year term of protection. ⁵See Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Technology Law Journal 1427 (2010). It’s worth noting that the adoption of the fourteen year term is entirely arbitrary, and reminds me of the old story about the Easter Ham. ⁶“As a little girl watches her mom prepare the Easter ham, she wonders why her mother cuts off both ends of the ham before putting it in the pot. So, she asks why, and her mom realizes that she doesn’t know. That’s the way her mother prepared the Easter ham.

So they call grandmother and pose the question about cutting off the ends of the Easter ham. Grandmother admits to not knowing either. She just prepared the ham the way her mom did it.

Their next call is to great-grandmother. When they ask her about her method of preparing the Easter ham, she laughs. Then she says, ‘It was the only way I could get the Easter ham to fit the small pot I had!'”

The US Congress chose a fourteen year term because that’s how long England protected copyright under the Statute of Anne. And England settled on a fourteen year term in the Statute of Anne because that is how long the Statute of Monopolies (1624), passed nearly a century prior, had protected letter patents. ⁷Ronan Deazley, ‘Commentary on the Statute of Monopolies 1624‘, in Primary Sources on Copyright (1450-1900) (eds L. Bently & M. Kretschmer, 2008). And that term, according to one scholar, was “based on the idea that 2 sets of apprentices should, in 7 years each, be trained in the new techniques.” ⁸Fritz Machlup, “An Economic Review of the Patent System”, pg 5, Study of the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, United States Senate, United States Printing Office, Washington: 1958.

Thus, the original fourteen year term was not “likely what our Founding Fathers meant when they wrote in the Constitution for a ‘limited time'” as Khanna claims. Instead, the 14 year term was a “quirk of history”, borrowed from tradition without much thought by a Congress that at the dawn of a new nation had more pressing matters to attend to. ⁹See Oren Bracha, Commentary on the U.S. Copyright Act 1790, in Primary Sources on Copyright (1450-1900) (eds L. Bently & M. Kretschme 2008). The argument that the length of copyright protection should be based on how long it took apprentices to master a craft 500 years ago is not so compelling.

Khanna next states:

Critics of current law point out that the terms of copyright continue to be extended perpetually, ensuring that works never actually enter the public domain – particularly Walt Disney’s production of Steamboat Willey, the first Mickey Mouse film. If this is true, if copyright is to be indefinitely extended, then that would effectively nullify Article I, Section 8, Clause 8 of the Constitution which provides protection only for “limited times.”

While this meme seems to begin to appear in early 2000, it was really Lawrence Lessig who popularized this alternative reality. Here is Lessig in a 2002 speech:

Eleven times in the last 40 years it has been extended for existing works–not just for new works that are going to be created, but existing works. The most recent is the Sonny Bono copyright term extension act. Those of us who love it know it as the Mickey Mouse protection act, which of course [means] every time Mickey is about to pass through the public domain, copyright terms are extended.

Lessig’s revisionist statements quickly became gospel among copyright skeptics. You can easily find these ideas — that copyright was extended 11 times in the past 40 years ¹⁰Ian McClure, Be Careful What You Wish For, 10 Chapman Law Review 1, 11 (2007), “The copyright term has been lengthened eleven times in the past forty years”; Gary Shapiro, President, Consumer Electronics Association, Remarks at the Cato Institute Conference: Copyright Controversies: Freedom, Property, Content Creation, and the DMCA, Copyrights and Property Rights, CATO Policy Report, July-August 2006, “Congress has acted 13 times to expand the length of the copyright terms; 11 of those expansions were passed during the last 40 years”; Larry Downes, ‘Free the Mouse’ for creativity’s sake, USAToday (Oct 7, 2002), “ In the past 40 years, entertainment industry lobbyists have persuaded Congress 11 times to extend copyrights on their vast treasure troves of books, films and music”; Kendra Mayfield, Setting Boundaries on Copyrights, Wired (Feb. 20, 2002); See also Lawrence Lessig, Free Culture, Ch. 10 (2004), “Eleven times in the last forty years, Congress has extended the terms of existing copyrights”; Jesse Walker, Copy Catfight, Reason (March 2000), “This period has been gradually extended, especially lately: It has been lengthened 11 times in the last 40 years, most recently by the Sonny Bono Copyright Term Extension Act of 1998.” and that these copyright extensions amount to “perpetual copyright on the installment plan” and/or have occurred everytime Mickey Mouse or Steamboat Willie is set to enter the public domain. ¹¹“In the United States, we have perpetual copyright on the installment plan,” said Peter Jaszi in 2003; Jane Hamsher, GOP Tries to Overthrow the Tyranny of Mickey Mouse…Then Sadly Backs Down, bytegeist, Nov. 19, 2012, “Disney keeps bribing congress to extend copyright laws and keep Mickey Mouse under copyright”; Mike Masnick, Do Bad Things Happen When Works Enter The Public Domain? The Data Says… No, TechDirt, Sept. 28, 2012, “As you know, whenever Mickey is getting close to the public domain, Congress swoops in, at the behest of Disney, and extends copyright”; Matt Asay, Copyright extension of 45 years to net just $40 for most performers, CNet, Sept. 9, 2008, “Every few years the US extends copyright terms because Disney lobbies the heck out of Congress’ weak-kneed legislators to prevent Mickey Mouse from becoming public domain”; Kevin Goldman, Limited Times: Rethinking the Bounds of Copyright Protection, 154 University of Pennsylvania Law Review 705 (2006), “Each time the term of copyright protection has been due to expire, Congress has passed another extension.”

To put it bluntly, this idea is hogwash.

In a 2002 law review article, Scott Martin thoroughly debunks this idea. ¹²Scott M. Martin, The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection, 36 Loy. L.A. L. Rev. 253 (2002). Says Martin:

According to myth, Congress relentlessly extended the term of copyright eleven times in just forty years, and, unless the courts intercede, the “copyright dictators” will continue to successfully pressure Congress into extending the term countless times in the future.

In fact, Congress revised its view of the appropriate duration of copyright protection only twice in the past forty years: once in the 1976 Copyright Act-which changed the term from an initial term of twenty-eight years plus a renewal term to a term of life of the author plus fifty years (with a commensurate increase in the term of protection for existing works); and then again in the 1998 CTEA-which added twenty years of additional protection to all existing terms of copyright. The other nine extensions were short interim extensions passed during the deliberation over the 1976 Act in order to ensure that authors of works on the cusp of falling into the public domain would not be penalized by Congress’s glacial pace in enacting the new Copyright Act.

The 1909 Act provided for an original and a renewal term of statutory copyright totaling fifty-six years. Congress changed this in the 1976 Act, effective January 1, 1978, to a term of life plus fifty years for new works. Congress did not apply the new term to existing works, but it did add nineteen years to the term of protection for existing works which were not yet in the public domain. Congress began actively working on the new Copyright Act in 1962, but it took fourteen years to reach agreement on all the details of the new Act. Ironically, the term of protection to be applied by the new Act was one of the least contentious provisions of the new law. Since the provisions of the new Act did not apply to works which entered the public domain prior to the effective date of the Act, Congress provided for a series of nine short interim extensions of copyright pending final enactment of the new law.

The congressional intent behind the interim extensions was clear: Congress felt that it would be inequitable to deny the benefit of the extended copyright term to works on the cusp of entering the public domain solely because of the long delays in the legislative process.

The need for nine successive short-term extensions can be traced directly to the fact that no one expected the process of enacting the new Act would take years to complete.

 

And while the statement that copyright duration was extended eleven times in the past forty years might be forgiven because it is technically correct though meaningless, the notion that the impetus for these extensions was to circumvent the Constitution’s “limited times” mandate and keep Steamboat Willie out of the public domain is simply wrong.

As Martin says later:

Characterizations of these short-term interim extensions, all of which were a part of the single congressional effort to enact a revised Copyright Act, as unrelated extensions of the term of protection, or as a recidivist congressional pattern of endlessly extending the duration of copyright are either uninformed or intellectually dishonest.

Martin is not alone. Law professor Edward Samuels has also remarked that “these statements are misleading, if not downright disingenuous.” ¹³The Public Domain Revisited, 36 Loyola LA Law Review 389, 423 (2002).

Even the Supreme Court has weighed in. In Eldred v Ashcroft, where the constitutionality of the 1997 Copyright Term Extension Act was challenged, the Court declared that “a regime of perpetual copyrights ‘clearly is not the situation before us.'” ¹⁴537 US 186, 209 (2003), quoting Eldred v Reno, 239 F.3d 372 (DC Cir. 2001).

So far, Khanna’s policy brief is not holding up.