Enter the Pirate King

By , August 02, 2012.

A “pirate king” who changed his name, started his career on financial crimes, and claimed his “permissionless innovation” was a better alternative for artists and creators than the existing system.

Kim Dotcom in 2012? Or, James Frederick Willetts in the 1900s?

At the turn of the 20th century, before recorded music gained hold, sheet music was king. And, analogous to now, illicit reprinting of sheet music dogged music publishers and songwriters.

In England, James Frederick Willetts was one of the leading pirates. Also known as “John Fisher”, or, simply, “the colonel” — and formerly convicted for embezzlement — his operation distributed and sold tens of thousands of copies of other peoples’ works without permission. 1Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates,pg. 343, et. seq. (Univ Chicago Press 2009). In 1904, the British Parliament held hearings on the problem of music piracy, and, in a perhaps unprecedented move, Willetts appeared to testify.

Fair warning: what you’re about to hear may sound familiar.

Early on, Parliament asked:

I believe you have some suggestions to make to the committee, first of all, with regard to the cause of piracy?

Willetts answers, music is too expensive:

The cause of piracy, I say, is the extortionate price charged to the public by the publishers of copyright music—a price which I consider is altogether beyond the reach of the general public, by whom there is a great and pressing demand—and a price which is out of all reason considering the cost of production, even after making the most handsome allowance for the labour of the author and composer. I consider that a man really has no copyright in the gifts conferred on him by Providence, these being conferred upon him for the general good of mankind. The cause also is a general agitation for the reduction in the price of music.

Later, Willetts claims that songwriters need not charge so much because the cost of producing songs, ie, the cost of paper, has gone down.

And that leads you on to your next head—the cost of production ?—I think so. Under that head I may say that the progress of invention and the fact that the price of paper has gone down to such an extent, enable publishers to produce music at very much cheaper prices than they could years ago.

Willetts even waves the flag of “musical education” — the 1900’s version of, perhaps,  culture, or free speech. He, or course, is a champion of “musical education” while copyright owners are cast as its opponents.

There is a ring there: music is the same price today as it was then; and what is more — the publishers come to Parliament and ask Parliament to protect them, and to police them. What for? To stop the musical education of the country. That is what I think it means, to really stop the musical education of this country.

Next, Parliament finds that Willetts believes advertising will save the publishing industry:

The next head is, “cheaper music will find legitimate employment for more people” ?—I say, under that head, that if the cheaper editions of copyright music were sold, there would be no market or demand for the sale of pirated music, and I do not think there would be any pirates, for the reason that they would not risk, even in the present state of the law, having the pieces seized from them which are pirated copies, whilst they could go to the publisher and buy a cheap edition. I may tell you, gentlemen, when I met Mr. Day, I suggested to him the advisability of having a cheap edition, if even it was disfigured, to a certain extent, with advertisements, and so let these street markets and hawkers and others have a cheaper edition for the working classes. It would still be the means of keeping thousands of men in employment who would otherwise be idle and who are now selling what they term pirated and other cheap music in the streets; and it would still be the means of finding them a living by allowing them to have cheaper editions of music, with advertisements if you like, not good enough, perhaps, for gentlemen in a position to pay the 1st 4d. or the 2s., or the 4s. if they felt so disposed, would not care to have their children playing on the piano, in company; but still good enough for the working classes. There would be a greater number of people interested in the sales also of this copyright music and there would be no pirates, that is what it amounts to, and what is more, I take it, the people would not buy the pirated edition if they can get the cheaper copyright edition.

Later, Willetts proposes a compulsory license:

Now your last head is as to proposals for the alteration of the law. Have you some proposals to make with regard to suggested alterations?—There is one suggestion. I should think it would be a good plan—a plan which has recently occurred to me—that authors and composers should let any publisher publish their compositions who feels disposed, or is in a position, to pay royalty, not confining the publication to one publisher, but giving the right to any publisher who approaches an author or composer and who wants to publish a piece; he should have the power to do it, providing that the composer gets the recognised royalty for the piece. The composer should be protected by Act of Parliament, I take it, but there should be no royalty, no protection, as implied in the Copyright Act—I mean for the printer or the publisher; he should not have a copyright. There is no copyright in the mere fact that I can print some handbills as well as any other printer. And. therefore, I should have the right to go to any composer to demand from him, if I am a respectable mail or representing a respectable firm, the right to publish his piece.

In one exchange, Willetts was forced to acknowledge that taking away a creator’s choice doesn’t work:

Do you think that the author or composer is to be himself the judge of what is best for his own interest or that Parliament should step in and say that this and that and the other thing should be done—you see my point?— I think I see your point.

A great many of your proposals were directed to this point, that you and those like you, publishers, should step in and pay a royalty to the author, which you consider more to his interest than the method at present adopted?—That is so.

The author is not to be a free agent or to allow his property to be dealt with in the way in which it is given by statute ?—If the statute says that it should be competent to go and offer that, then that at once brings up the publishers’ ring who say, “Now we are a ring to keep everybody outside.”

Would you kindly answer my question?—What is it?

My question is this: you propose to take away from the author the complete control over the management of his own work and to give it to the publisher who approaches him and they say, ” We are going to do this under certain statutory provisions” ?—Unless the author could show any special reason why the publishers should not do it, and as long as they pay him the royalty it does not matter to him and it will be for the benefit of the public at large.

You take away from him the liberty of managing his own business as he pleases ?—Yes.

Are you aware that that experiment has already been tried in Canada by Act of Parliament and that there it was a complete failure ?—No, I was not aware of it.

And that there was a statutory royalty enacted in Canada, and it failed ?—I did not know that.

Perhaps, most tellingly, is the following exchange:

Your evidence has been directed to a change in the law as it affects the present question of piracy—you think that the law is a bad law ?—So far as I have read it.

But you said you had not read it ?—Well, so far as I have read, not the identical Act, but certain extracts from it.

In other words, over a century ago, a man who did not understand copyright law proclaimed that his bypassing of it benefitted the public, without any evidence.

Since the dawn of copyright, creators have heard the same song and dance: they are enemies of free speech and innovation. If only they would shut up and let others profit off their labor, the world would be better off.

But the Willetts and Dotcoms of the world are wrong, and the fact remains; few remember Willetts; more remember Sousa, Stravinsky, Flight of the Bumblebee, or Meet me in St. Louis, Louis.  In three hundred years, the most progress of the useful arts and sciences has come from those who compensate artists and creators. It’s not a terribly difficult concept: a framework that lets creators share in the value they create is one where everyone wins. A framework that allows companies to internalize all the profits from other people’s works is one that doesn’t sustain expression, one where the public ultimately loses out. And we should remember that, no matter how many “pirate kings” surface to tell us otherwise.

References

References
↑1 Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates,pg. 343, et. seq. (Univ Chicago Press 2009).

Myths from the Birth of US Copyright: Part 2

By , May 17, 2012.

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

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

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

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

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

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

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

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

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

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

Schwartz and Treanor conclude:

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

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

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

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

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

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

One of the powers given to Congress is, “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” I am convinced Mr. Mason did not mean to refer to this clause, he is a gentleman of too much taste and knowledge himself to wish to have our government established upon such principles of barbarism as to be able to afford no encouragement to genius.

References

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

Myths from the Birth of US Copyright

By , May 15, 2012.

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

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

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

Copyright and History

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

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

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

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

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

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

Copyright and the Founding of the United States

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

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

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

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

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

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

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

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

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

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

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

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

History tells a different story, however.

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

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

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

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

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

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

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

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

References

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

Was Hollywood Built on Piracy?

By , May 07, 2012.

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

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

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

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

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

The Dawn of the Motion Picture Industry

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

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

Who Were the Real Pirates?

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

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

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

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

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

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

The Supreme Court concluded:

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

Why Did the Studios Move to Hollywood

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

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

The landscape of Southern California:

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

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

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

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

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

What it means

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

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

References

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

Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Part 5

By , April 16, 2012.

In this series, I’ve been looking at the historical record to attempt to explain why the idea that there is tension between copyright law and the First Amendment took so long to appear — it was nearly two centuries after the Copyright Act of 1790 and the Bill of Rights were passed that the first legal journal articles appeared raising the question, and it wouldn’t be until 2003, in Eldred v. Ashcroft, that the US Supreme Court confronted the issue directly. (Read Part 1, Part 2, Part 3, and Part 4).

The point of this examination is not to advance any arguments about these claims, but rather to add to the debate. As the Court noted in Eldred, “a page of history is worth a volume of logic.” It’s not as if no one was concerned with free speech before the 1960s.

Today, I want to look at copyright law’s distinction between ideas and expression. The doctrine was present in the early days of copyright, and the modern day view that it serves as a First Amendment accommodation seems consistent with historical views on the scope of the freedom of speech and the press.

The Idea Expression Distinction as a First Amendment Accommodation

The idea that copyright’s distinction between idea and expression can serve to resolve any tension with the First Amendment was first articulated by Melville Nimmer in 1970. 1Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180. To Nimmer, distinguishing between idea and expression to protect free speech interests in copyright cases served as a “definitional balance” — a methodology developed largely by Nimmer. 2Norman T. Deutsch, Professor Nimmer Meets Professor Schauer (and others): An Analysis of “Definitional Balancing” as a Methodology for Determining the “Visible Boundaries of the First Amendment”, 39 Akron Law Review 483, 484 (2006).

The Supreme Court endorsed Nimmer’s view in Harper & Row Publishers v. Nation Enterprises. In the 1985 case, it said, “The Second Circuit noted, correctly, that copyright’s idea/expression dichotomy “strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.” Eldred v. Ashcroft enshrined the doctrine as US law in 2003, calling the idea/expression distinction one of copyright law’s “built-in First Amendment accommodations.”

Nimmer premised the idea of the idea/expression distinction as a First Amendment accommodation on logic, but does it have any historical support? Because there is so little in the historical record of the relationship between copyright law and freedom of speech, it shouldn’t be surprising that there is no express evidence that anyone thought in Nimmer’s terms before his article. However, I think there is implicit evidence that, had the question been put to pre-20th century legal thinkers, they would likely accept Nimmer’s definitional balance.

Freedom of Speech and Freedom of Opinion

You can write books about the development of the freedom of speech, but for this discussion, it’s helpful to describe one of the dominant progressions of the concept during the 18th century.

The right to freedom of speech owes much of its existence to the liberty of the press. The liberty of the press resulted from the expiration of England’s Licensing Act in 1694. In the following decades, it was widely understood that government had no right to license the press; but what else the liberty of the press encompassed would be the subject of debate throughout the 18th century.

William Blackstone describes the conservative view in his Commentaries on the Laws of England:

The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or enquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects.

A 2002 paper by Jeremy Ofseyer is particularly illuminating as one way to understand the backdrop of the 18th century experience that eventually led to the First Amendment. Ofseyer says:

England, like many other countries, had long enforced orthodoxy in matters of opinion. It did so in order to save the souls of heretics and out of fear that heterodoxy frays the social fabric and invites anarchy. According to this intolerant view, unorthodox opinions are not only false and offensive, but also inherently dangerous because they undermine established institutions and norms. Blackstone catalogued two main categories of opinion bans: offenses against God and religion and offenses against crown or government. 3Speech or Opinion? Two Objects of First Amendment Immunity, 2 Utah Law Review 843, 869-70.

Ofseyer notes that American liberal thinkers of the time, particularly Thomas Jefferson and James Madison, sharply disagreed with this view of the law as Blackstone described it:

Diversity of opinion is … the healthy product of freedom of thought and speech: “In every country where man is free to think and to speak, differences of opinion will arise from difference of perception, and the imperfection of reason  … .” For these reasons, Jefferson concluded that “the opinions of men are not the object of civil government, nor under its jurisdiction.”

According to Madison, there is a fundamental human property right to one’s “opinions and the free communication of them.” From this distinct, property-based premise, along with other premises akin to Jefferson’s, he reached the same conclusion: “Opinions are not the objects of legislation.”

Jefferson and Madison’s views were obviously not unanimously held at the time — before the 18th century was out, the U.S. Congress would pass the Alien and Sedition Acts, making it a crime to print or utter “any false, scandalous and malicious writing or writings against the government of the United States.” The Acts were very controversial at the time, and much of the debate was between proponents of the Blackstonian conception of the freedom of the press which permitted regulation of opinions and the liberal view that freedom of the press immunized liability for opinions. 4Compare Henry Lee, Report of the Minority on the Virginia Resolutions and James Madison, Virginia Resolutions.

The Idea-Expression Distinction in Copyright’s Early Days

One of the fundamental doctrines of copyright law, the idea-expression distinction limits copyright protection to the specific expression of a creator, leaving the ideas embodied in that expression free for all to use. The 1879 Supreme Court case Baker v. Selden is often cited as the earliest articulation of the idea expression distinction, but that is not exactly true.

The earliest discussions on the nature of copyright included a distinction between ideas — which remain free to the public — and expression — which is susceptible to protection by copyright. Discussions like these began in earnest after the passage of the Statute of Anne in England in 1710, and, though these same discussions continue to this day, toward the end of the 18th century, “all the essential elements of modern Anglo-American copyright law were in place.” 5Mark Rose, Authors and Owners: The Invention of Copyright (1993).

These essential elements include the idea-express distinction. Wrote English author and churchman William Warburton in 1762:

[H]e who obtaineth my copy may appropriate my stock of ideas, and, by opposing my sentiments, may give birth to a new doctrine or he may coincide with my notions, and, by employing different illustrations, may place my doctrine in another point of view : and either case he acquireth an exclusive title to his copy, without invading my property. 6An enquiry into the nature and origin of literary property.

Noted English jurist William Blackstone wrote of the doctrine in 1766. Blackstone used the term “sentiment” for “ideas” and “language” for “expression”.

Now the identity of a literary composition consists intirely in the sentiment and the language; the same conceptions, cloathed in the same words, must necessarily be the same composition: and whatever method be taken of conveying that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies or at any period of time, it is always the identical work of the author which is so conveyed; and no other man can have a right to convey or transfer it without his consent, either tacitly or expressly given. 7Commentaries 2:406.

English lawyer Francis Hargrave wrote in his seminal treatise An Argument in Defence of Literary Property (1774), “the use of ideas and knowledge is as common as it would be, if the right of printing was not appropriated.”

In Germany, philosopher Johann Gottlieb Fichte published Proof of the Illegality of Reprinting in 1793, which made a distinction between the material aspect of a book and the ideational aspect:

This ideational aspect is in turn divisible into a material aspect, the content of the book, the ideas it presents; and the form of these ideas, the way in which, the combination in which, the phrasing and wording in which they are presented.

…[T]he content of the book … can be the common property of many, and in such a manner that each can possess it entirely, clearly ceases upon the publication of a book to be the exclusive property of its first proprietor (if indeed it was so prior to publication, which is not always the case with some books nowadays), but does continue to be his property in common with many others. What, on the other hand, can absolutely never be appropriated by anyone else, because this is physically impossible, is the form of the ideas, the combination in which, and the signs through which they are presented.

It is clear that by the time the United States became independent of England and formed its own government, a distinction between ideas and expression was established in copyright law.

Freedom of Ideas, Protection of Expression

The distinction between ideas and expression in copyright law was recognized early on. At the same time, freedom of speech and the press was seen as vital to the protection of opinion and the dissemination of ideas and facts. The notion that the idea/expression distinction ensures copyright law’s compatibility with the First Amendment’s prohibition on laws infringing free speech would thus appear wholly consistent with historical conceptions of these freedoms and the law. Copyright does not bar the “free communication of” ideas, nor does it punish anyone for disseminating “bad sentiments.”

We can turn to James Madison for indirect evidence of this consistency. Madison, after all, proposed that the federal Congress should have the power to secure copyrights during the Constitutional Convention. Years before that, he sat on the Continental Congress committee that encouraged the States to pass their own copyright legislation and penned Virginia’s subsequently passed copyright act. Few of the Founding Fathers could claim more responsibility for Congress’s authority to make copyright law.

James Madison also was the first to introduce a Bill of Rights to amend the Constitution, although he had originally opposed the idea. What’s interesting is the language he chose regarding the freedom of speech. Madison’s amendment that would eventually become part of the First Amendment said, “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments” (emphasis added).

Note that this is the same language used by William Blackstone when he described copyright, saying the “identity of a literary composition consists intirely in the sentiment and the language.”

William Blackstone was one of the most influential legal scholars to the Founding Fathers, Madison included. 8Mary Sarah Bilder, James Madison, Law Student and Demi-Lawyer, 28 Law and History Review 389, 399 (2010). And its possible the same language was a conscious choice. Bilder notes that Madison’s life showed a devotion to “the problem of language.” “He copied cases in which the presence of one word mattered.” His legal notes reveal questions that fascinated Madison, like “What did particular words mean?”

Madison cared about perspicuity. In one sense, he was not unusual in this regard, for perspicuity occupied the minds of late eighteenth-century rhetoricians. The word reappears in letters written during the Philadelphia Convention and his later correspondence. In Federalist 37, Madison famously wrote, “Perspicuity therefore requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriated to them.”

This isn’t definitive evidence, of course. But it does support the idea that, had Madison and other Founding Fathers been confronted with the question of whether copyright law conflicts with the First Amendment, they would have accepted the Supreme Court’s holding that the First Amendment is accomodated by copyright law’s idea/expression distinction.

References

References
↑1 Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180.
↑2 Norman T. Deutsch, Professor Nimmer Meets Professor Schauer (and others): An Analysis of “Definitional Balancing” as a Methodology for Determining the “Visible Boundaries of the First Amendment”, 39 Akron Law Review 483, 484 (2006).
↑3 Speech or Opinion? Two Objects of First Amendment Immunity, 2 Utah Law Review 843, 869-70.
↑4 Compare Henry Lee, Report of the Minority on the Virginia Resolutions and James Madison, Virginia Resolutions.
↑5 Mark Rose, Authors and Owners: The Invention of Copyright (1993).
↑6 An enquiry into the nature and origin of literary property.
↑7 Commentaries 2:406.
↑8 Mary Sarah Bilder, James Madison, Law Student and Demi-Lawyer, 28 Law and History Review 389, 399 (2010).

What is Technology?

By , April 04, 2012.

Discussions about copyright sometimes set up a dichotomy between technology and creativity. But is the gap between the two really so great?

Historian Maury Klein notes that the introduction of the word “technology” in its modern sense comes as early as 1829, when Jacob Bigelaw published his book Elements of Technology. Bigelaw defined the term as “the application of the sciences to the useful arts.”

In 1855, George Wilson, Regius Professor of Technology at the University of Edinburgh and first Director of the Industrial Museum of Scotland, gave an inaugural lecture at the University of Edinburgh for its new technology chair. Below is an excerpt from his lecture, What is Technology?

What’s interesting is how he sets up the distinction between technology and the creative arts as a matter of definition. The two fields otherwise have very many similarities and share many of the same purposes. The distinction, thus, is more a matter of semantics than anything else.

Thus far, the meaning of the word Technology is not far to seek, but it must be taken with two important qualifications, to which I now request our attention. The one of these is, that Technology includes only Utilitarian Arts: the other, that it includes only certain of these.

It is by a quite conventional limitation, that the word art, τέχνης, (technes), denoted by the first dissyllable of Technology, is held to signify Useful, Utilitarian, Economic, or Industrial Art, for the Useless Arts, such as Legerdemain, or the Art of Conjuring, are eminently technical, and still more so are the worse than Useless Arts, such as cheating at cards, and other sorts of dishonest gambling.

Nor is the limitation less conventional which excludes the Fine Arts from the domain of Technology; for no Arts call for more skilful workmen than Painting, Sculpture, and Music, and none are more technical in their modes of procedure. Far less are the Fine Arts excluded, because they are regarded as useless or hurtful. The Technologist avoids them for exactly the opposite reason. Poetry, Painting, Sculpture, Music, and the Sister Arts, are in the highest degree useful, inasmuch as they minister to the wants of the noblest parts of our nature; but in so ministering they excite such emotions of pleasure, or its inseparable correlative, pain, that the sense of their usefulness is lost in the delight, or awe, or anguish, which they occasion. So much is this the case, that while men thank each other for the gift of bread when they are hungry, or of water when they are thirsty, or of a light to guide them in the dark, they return no thanks for a sweet song, or a great picture, or a noble statue; not that they are unthankful for these, but that the duty of thanksgiving is forgotten in the pleasure of enjoying, or the strangely fascinating pain of trembling before a work of creative genius.

And the artist himself, singularly enough, in a multitude of cases, makes no complaint at this thanklessness, and counts it no compliment to his work to call it useful. The end of Æsthetic or Fine Art, he will tell you, is the realisation of beauty, not utility; as if the latter were rather an accidental or unavoidable and unfortunate accompaniment of the former, than the welcome inseparable shadow which attends it, as the morning and evening twilight, tempering his brightness, go before and after the sun. But such a description of the aim of his labours, though natural to the Artist, is unjust to his Art. The true object of Æsthetic or Fine Art is not Beauty, but Utility, through or by means of Beauty.

It may be that the Poet, the Painter, the Sculptor, the Musician, often think only of the emotional delight which their works will awaken in the hearts of their brethren. But these works, in the very act of delighting, serve those whom they delight. It is surely as useful a thing, on occasion, to fill the eager ear with music, or the longing eye with the glories of form and colour, or the aching heart with thoughts of joy, as it is to fill the hungry stomach with food, or to clothe the naked body.

15 Objections to Copyright from 1855

By , March 06, 2012.

Everything is a remix. Information is non-rivalrous. Intellectual works are non-excludable. Copying doesn’t deprive a creator of anything.

Spend enough time reading about or discussing copyright online and you’re bound to have become familiar with statements like these. The increasing popularity of copyright with the general public has brought more attention to these arguments — but don’t make the mistake that these are new arguments.

Case in point: The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas, a book that devotes considerable time repudiating fifteen objections that are strikingly similar to ones made today. The book, however, was written over 150 years ago.

The author, Lysander Spooner, was an American anarchist, abolitionist, and legal theorist who lived from 1808 to 1887. The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas was published in 1855 and considered one of the most extensive defenses of intellectual property as a natural right ever penned — it is also one of the earliest uses of the term “intellectual property.” 1Randy E. Barnett, “Spooner, Lysander“, The Yale Biographical Dictionary of American Law, pg. 509 (2009).

The entire volume is too long to post here but well worth a read. 2The work is labelled as “volume 1” with indications of what topics Spooner planned to discuss in volume 2. However, Spooner never completed the second volume. Instead, I’d like to highlight a few key passages.

Spooner begins with a discussion of the concepts of wealth and property. His assertion that man has a natural right to property in his ideas is similar to Locke’s labor theory of property. 3See Steve J. Shone, Lysander Spooner: American Anarchist, pp. 11-13 (2010). This is followed by Spooner’s response to fifteen common objections. Though he focuses on ideas, in the context of inventors and patent law, the discussion is generally just as applicable to copyright law and its protection of original expression of ideas as well.

First up is the charge that there can be no property right in ideas because they are incorporeal, or intangible. Spooner concludes:

The right of property being incorporeal, and being itself a subject of property, it demonstrates that the right of property may attach to still other incorporeal things; for it would be plainly absurd to say, that there could be an incorporeal right of property to a corporeal thing, but could be no incorporeal right of property to an incorporeal thing. Clearly an incorporeal right of property could attach to an incorporeal thing—a thing of its own nature—as easily as to a corporeal thing, a thing of a different nature from its own. The attachment of this incorporeal right of property, to a corporeal thing, is not a phenomenon visible by the eye, nor tangible by the hand. It is perceptible only by the mind. And the mind can as easily perceive the same attachment to an incorporeal thing, as to a corporeal one.

The fifth objection Spooner addresses would today be described as the “everything is a remix” objection:

… That the course of events, and the general progress of knowledge, science, and art, suggest, point to, contribute to, and aid the production of, certain inventions; and that it would therefore be wrong to give to a man an exclusive and perpetual property, in a device, or idea, which is not the unaided production of his own powers; but which so many circumstances, external to himself, have contributed and aided to bring forth. …

The sum of this argument, therefore, is, that authors and inventors have the benefit of all the knowledge that has come down to us, to aid them in producing their own writings and discoveries; and therefore they should have no right of property in their writings and discoveries.

If this objection be sound, against the rights of authors and inventors to their intellectual productions, then it will follow that other men have no right of property in any of those corporeal things, which the knowledge, that has come down to us, has enabled them to produce, or acquire. The argument is clearly as applicable to this case as the other.

It is no doubt true, that the course of events, and the general progress of knowledge, science, and art, do suggest, point to, contribute to, and aid the productions of, many, possibly all, inventions. But it is equally true that the course of events, and the general progress of knowledge, science, and art, suggest, point to, contribute to, and aid the production and acquisition of, all kinds of corporeal property. But that is no reason why corporeal things should not be the property of those, who have produced or acquired them. Yet the argument is equally strong against the right of property in corporeal things, as in intellectual productions. If, because authors and inventors, in producing their writings and discoveries, had the advantage of the course of events, and the general progress of knowledge, in their favor, they are to be denied the right of property in the fruits of their labors, then every other man, who has the course of events, and the progress of knowledge, science, and art in his favor, (and what man has not?) should, on the same principle, be denied all ownership of the fruits of his labor—whether those fruits be the agricultural wealth he has produced, by the aid of the ploughs, and hoes, and chains, and harrows, and shovels, which had been invented, and the agricultural knowledge which had been acquired, before his time; or whether they be the houses or ships he has built, through the aid of the axes, and saws, and planes, and hammers, which had been devised, and the mechanical knowledge and skill that had been acquired, before he was born.

Under the ninth objection, Spooner addresses the equivocating argument against copyright — sure, creators should be compensated for their work, just not through legal protection of intellectual property:

This view of the case, it will be seen, denies to the inventor all exclusive right of property in his invention. It asserts that the invention really belongs to the public, and not to himself. And it only advocates the morality and equity of allowing him such compensation for his time and labor as is reasonable. And it maintains that such compensation should be determined, in some measure at least, by the compensation which other men than inventors obtain for their time and labor. And this is the view on which patent laws generally are founded.

The objection to this theory is, that it strikes at all rights of property whatsoever, by denying a man’s right to the products of his labor. It asserts that government has the right, at its own discretion, to take from any man the fruits of his labor, giving him in return such compensation only, for his labor, as the government deems reasonable. …

Those, who talk about the justice of the government’s allowing an inventor reasonable compensation for his labor, talk as if the government had employed the inventor to labor for it for wages—the government taking the risk whether he invented any thing of value, or not. In such a case, the government would be entitled to the invention, on paying the inventor his stipulated, or reasonable, wages. But the government does not employ an inventor to invent a steamboat, or a telegraph. He invents it while laboring on his own account. If he succeed, therefore, the whole fruits of his labor are rightfully his; if he fail, he bears the loss. He never calls upon the government to pay him for his labor that was unsuccessful; and the government never yet undertook to pay for the labor of the hundreds and thousands of unfortunate men, who attempted inventions, and failed. With what force, then, can it claim to seize the fruits of their successful labor, leaving them only what it pleases to call a reasonable compensation, or reasonable wages, for their labor? If the government were to do thus towards other men generally than inventors, there would be a revolution instantly. Such a government would be universally regarded as the most audacious and monstrous of tyrannics.

On the “non-rivalrous” nature of intellectual property:

It is said that ideas are unlike corporeal commodities in this respect, namely, that a corporeal commodity cannot be completely and fully possessed and used by two persons at once, without collision between them; and that it must therefore necessarily be recognized as the property of one only, in order that it may be possessed and used in peace; but that an idea may be completely and fully possessed and used by many persons at once, without collision with each other; and therefore no one should be allowed to monopolize it. …

On this principle a man has a right to take possession of, and freely use, any thing and every thing he sees and desires, which other men may have produced by their labor—provided he can do it without coming in collision with, or committing any violence upon, the persons of other men.

This is the principle, and the only principle, which the objection offers, as a rule for the government of the conduct of mankind towards each other, in the possession and use of material commodities. And it seriously does offer this principle, as a substitute for the right of individual and exclusive property, in the products and acquisitions of individual labor. The principle, thus offered, is really communism, and nothing else.

If this principle be a sound one, in regard to material commodities, it is undoubtedly equally sound in relation to ideas. But if it be preposterous and monstrous, in reference to material commodities, it is equally preposterous and monstrous in relation to ideas; for, if applied to ideas, it as effectually denies the right of exclusive property in the products of one’s labor, as it would if applied to material commodities.

It is plain that the principle of the objection would apply, just as strongly, against any right of exclusive property in corporeal commodities, as it does against a right of exclusive property in ideas; because, 1st, many corporeal commodities, as roads, canals, railroad cars, bathing places, churches, theatres, &c., can be used by many persons at once, without collision with each other; and, 2d, all those commodities—as axes and hammers, for example—which can be used only by one person at a time without collision, may nevertheless be used by different persons at different times without collision. Now, if it be a true principle, that labor and production give no exclusive right of property, and that every commodity, by whomsoever produced, should, without the consent of the producer, be made to serve as many persons as it can, without bringing them in collision with each other, that principle as clearly requires that a hammer should be free to different persons at different times, and that a road, or canal should be free to as many persons at once, as can use it without collision, as it does that an idea should be free to as many persons at once as choose to use it.

The rest of the objections are just as familiar to modern audiences. Spooner rebuts the Jeffersonian-inspired argument against intellectual property (“that his giving knowledge to other men is only lighting their candles by his, thereby giving them the benefit of light, without any loss of light to himself; and that therefore he should not be allowed any exclusive property in his ideas”), the argument that intellectual property belongs to society instead of creators, and the argument that intellectual property is invalid because it is nonexcludable.

A modern update to The Law of Intellectual Property would perhaps only need to add one additional objection: the idea that copyright only “made sense” in a world without digital technology and global communication networks, but those technologies have somehow rendered the law’s foundations absurd. As the book illustrates, however, for as much as technology has advanced, arguments against securing the exclusive rights of creators have stayed remarkably the same.

References

References
↑1 Randy E. Barnett, “Spooner, Lysander“, The Yale Biographical Dictionary of American Law, pg. 509 (2009).
↑2 The work is labelled as “volume 1” with indications of what topics Spooner planned to discuss in volume 2. However, Spooner never completed the second volume.
↑3 See Steve J. Shone, Lysander Spooner: American Anarchist, pp. 11-13 (2010).

Guest Post: From Eldred To Golan: The “Traditional Contours” Test – Part II

By , February 08, 2012.

Golan I & II

A year after the Court decided Eldred, another district court, in what would turn out to be the first step in a protracted journey back to the Supreme Court, was asked to apply the “traditional contours” test. In Golan v. Ashcroft, 1Golan v. Ashcroft, 310 F.Supp.2d 1215 (D. Colo. 2004). plaintiffs (Lessig’s clients) included artisans and businesses that published and performed works that were in the public domain. They sought declaratory and injunctive relief, maintaining that § 514 of the Uruguay Round Agreements Act (URAA) 2Uruguay Round Agreements Act, Pub.L. 103-465. was unconstitutional. The statute restored copyright protection to foreign works whose authors had lost their copyrights due to failure to comply with certain formalities that had since been repealed. Plaintiffs argued that § 514 of the URAA altered copyright’s “traditional contours” and violated their First Amendment rights because they could no longer use certain works that had been pulled out of the public domain. The court held that plaintiffs had sufficiently distinguished the holding in Eldred so as to survive defendants’ motion to dismiss.

Plaintiffs’ victory was short-lived, though, and in a lengthy opinion the district court granted defendants’ motion for summary judgment. The court reasoned that “Congress has historically demonstrated little compunction about removing copyrightable materials from the public domain.” 3Golan v. Gonzales, 2005 WL 914754 (D. Colo. Apr. 20, 2005). The record reflected that there were in fact many historical instances where public domain works had been granted copyright. Because of the idea/expression dichotomy, the court noted, only expressions were being restored to their authors—the ideas themselves were still public property. Considering the long string of practice for granting copyright protection to works in the public domain, the court rejected plaintiffs’ contention that copyright’s “traditional contours” had in fact been altered by doing the same thing here. The court, citing “the settled rule that private censorship via copyright enforcement does not implicate First Amendment concerns,” 4Id., at *17. similarly rebuffed plaintiffs’ argument that having to contract for use of restored works posed too onerous a burden on their free speech rights. In the court’s opinion, while plaintiffs surely bore some free speech hardship because of § 514 of the URAA, such difficulties were an inherent feature of copyright law in general and therefore not actionable.

On appeal to the Tenth Circuit, 5Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007). plaintiffs’ luck changed. The court of appeals, after observing that the Supreme Court had not defined the “traditional contours” in Eldred, nonetheless definitively stated that “one of these traditional contours is the principle that once a work enters the public domain, no individual—not even the creator—may copyright it.” 6Id., at 1184. Moreover, the court reasoned that plaintiffs had cognizable and vested First Amendment interests in public domain works. Central to the Tenth Circuit’s analysis was the understanding that copyright’s “traditional contours” must include more than just the built-in free speech accommodations, i.e., the idea/expression dichotomy and the fair use defense. The court concluded “that the traditional contours of copyright protection include the principle that works in the public domain remain there” and that § 514 of the URAA had transgressed that “critical boundary.” 7Id., at 1189. Furthermore, the circuit court disagreed with the district court’s contention that there was a tradition of removing works from the public domain, and it characterized whatever history of the practice that did exist as the exception and not the rule. The Tenth Circuit remanded the case to the district court with instructions to subject § 514 of the URAA to heightened First Amendment scrutiny, as commanded by the “traditional contours” test.

On cross-motions for summary judgment, the district court began its analysis with the observation that § 514 of the URAA was a content-neutral regulation of speech because it could “be justified without reference to the content of the speech restricted.” 8Golan v. Holder, 611 F.Supp.2d 1165, 1170 (D. Colo. 2009). Under the applicable standard of heightened scrutiny (here, intermediate scrutiny), the statute would be upheld only if it advanced an important governmental interest and did “not burden substantially more speech than necessary to further” that interest. 9Id., at 1172. After careful analysis, the district court granted plaintiffs’ motion for summary judgment, concluding that while the government’s interests were sufficiently important, Congress nevertheless had burdened substantially more speech than was necessary in advancing those interests. The court limited its holding to only those parties that had already been exploiting the works while they were in the public domain—the so-called reliance parties. In the court’s view, those were the only parties with vested First Amendment rights that had been contravened when copyrights were restored in the works.

The parties cross-appealed to the Tenth Circuit. 10Golan v. Holder, 609 F.3d 1076 (10th Cir. 2010). Plaintiffs argued that § 514 of the URAA should be struck down as unconstitutional on its face, meaning that it should be found to be unconstitutional not only for the reliance parties but for everyone else as well. The defendants of course disagreed, arguing that the statute was constitutional not only as-applied to the reliance parties but for everyone in general too. On this appeal, the “traditional contours” test was not in issue—the previous circuit panel had definitively applied the test and found that the statute failed it. Under the law of the case doctrine, this circuit panel was bound to follow the prior panel’s conclusion on that point. Recall that failure to satisfy the “traditional contours” test simply means that heightened First Amendment scrutiny will be applied to the statute, so the battle on this appeal was over whether § 514 of the URAA was violative of the First Amendment under this more-stringent standard of review.

The circuit court started its de novo review by agreeing with the district court that § 514 of the URAA was a content-neutral regulation of speech, thereby calling for intermediate scrutiny. In looking at the first prong, which requires the government to assert an important or substantial interest, the court had “no difficulty in concluding that the government’s interest in securing protections abroad for American copyright holders satisfies this standard.” 11Id., at 1084. The government had introduced sufficient evidence to show that by granting copyright protection to foreign works in the public domain in the United States, foreign countries would reciprocate by granting copyright protection to American works that were in the public domain abroad. Turning to the second prong, which requires that the regulation not burden substantially more speech than is necessary to further the interest asserted, the circuit court reached the opposite conclusion than the district court. In doing so, the court of appeals found that the burdens inflicted by § 514 of the URAA on the reliance parties were congruent to the benefits afforded to American copyright holders since their works overseas would receive equal protections. The Tenth Circuit sided with defendants and reversed the district court below, holding that § 514 of the URAA was not unconstitutional under heightened scrutiny.

So to summarize: (1) the district court held that § 514 of the URAA didn’t alter copyright’s “traditional contours,” (2) the court of appeals reversed and held that it did, (3) the district court held that § 514 of the URAA didn’t pass heightened scrutiny, and (4) the court of appeals reversed and held that it did. A bit confusing, I know.

The “Traditional Contours” Test Defined

Plaintiffs petitioned for and the Supreme Court granted certiorari. In Golan v. Holder, 12Golan v. Holder, 2012 WL 125436 (U.S. Jan. 18, 2012). the Court affirmed the Tenth Circuit below, starting with the observation that “some restriction on expression is the inherent and intended effect of every grant of copyright.” 13Id., at *13. Despite the intrinsic conflict between the Copyright Clause and the First Amendment, said the Court, in the Framers’ view the two served the same goal of contributing to the marketplace of ideas. The Court then explained that the reference to the “traditional contours” in Eldred referred to only the idea/expression dichotomy and the fair use defense, i.e., the free speech accommodations that are built-in to copyright law. And with that simple explanation, an almost decade-long confusion about what constitutes copyright’s “traditional contours” was laid to rest. The “traditional contours” test, then, may be stated as follows: If Congress did not alter the idea/expression dichotomy or the fair use defense when crafting a copyright statute, then a reviewing court faced with a First Amendment challenge to that statute does not apply heightened judicial scrutiny.

That the Tenth Circuit the first time around had completely misunderstood the “traditional contours” test was made explicit in a footnote: “On the initial appeal in this case, the Tenth Circuit gave an unconfined reading to our reference in Eldred to ‘traditional contours of copyright.’ That reading was incorrect, as we here clarify.” 14Id., at fn. 29. The Court continued its analysis by stating that here, as in Eldred, there was simply no call for the heightened review that petitioners were seeking. In the Court’s view (and understanding this point is critical to understanding Golan), burdening people’s communication of an author’s protected expression simply didn’t raise the same free speech concerns that are present when the government burdens people’s communication of facts or ideas. The Court reasoned, rather simply, that since the traditional safeguards of the idea/expression dichotomy and the fair use defense had been left in place in drafting § 514 of the URAA, petitioners’ free speech interests were adequately protected. No further mitigation was necessary since the constitutional minimum requirements had been met.

The Court then turned to the argument that petitioners in this case were distinguishable from those in Eldred because they had enjoyed vested First Amendment rights in certain public domain works. Rejecting the argument that “the Constitution renders the public domain largely untouchable by Congress,” the Court accused petitioners of attempting “to achieve under the banner of the First Amendment what they could not win under the Copyright Clause.” 15Id., at *15. The Court could find no historical or congressional practice, nor anything in the Court’s own jurisprudence, that showed that heightened scrutiny was warranted for the practice of restoring copyright protection for works that were in the public domain. The Court positively rejected petitioners’ argument that they, as members of the public using public domain works, had vested First Amendment rights in those works: “Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works.” 16Id., at *16.

And with that, the Supreme Court shut down once and for all Lessig’s thirteen-year-long argument that copyright laws must give special solicitude to the First Amendment above and beyond the idea/expression dichotomy and the fair use defense.

Closing Thoughts

Golan presents a great example of where simply labeling the Supreme Court’s holding as an affirmance of the court below misses the point. True, the Court affirmed the Tenth Circuit’s holding that § 514 of the URAA did not violate plaintiffs’ First Amendment rights. But the Court arrived at that destination by taking a completely different route. The better view is that, as far as the First Amendment issues are concerned, the Supreme Court in Golan completely denunciated all of the Tenth Circuit’s reasoning despite affirming its ultimate holding. The fact that the court of appeals got the right answer is entirely undercut by the fact that they were answering the wrong question.

I do want to point out as well that I think people are apt to take the holding in Golan too far. Consider the copyright statutes that we looked at—the CTEA, the CRA, and § 514 of the URAA. The CTEA extended the copyright term by twenty years for certain works. The CRA removed the renewal requirement, thus extending the copyright term for certain works. And § 514 of the URAA extended the copyright term to certain works in the public domain. See the pattern? I think the “traditional contours” test is applicable only when Congress has defined the scope of a substantive copyright right, that is, when it has “secur[ed] for limited Times to Authors . . . the exclusive Right to their . . . Writings” as the Copyright Clause expressly provides Congress may do. This is why I think Lessig goes too far when he laments that the Court has “shut the door, finally and firmly, on any opportunity to meaningfully challenge a copyright statute constitutionally.” Unless it’s a copyright law that defines the scope of the substantive right—like, say, the copyright term—I think the Court has left the door wide open for meaningful constitutional challenges. For example, I would argue that the Stop Online Piracy Act (SOPA) falls outside the “traditional contours” test since it concerns enforcement of substantive copyright rights and not the scope of the rights themselves. That means SOPA wouldn’t get a free ride when challenged on First Amendment grounds.

The holding in Golan certainly reinforces the concept that “copyright has traditionally been viewed as an exception to the First Amendment.” 17Jennifer E. Rothman, Liberating Copyright: Thinking Beyond Free Speech, 95 Cornell L. Rev. 463, 479 (2010). But it’s clearly not a complete exception. As I mentioned at the outset, Lessig’s notion that copyright must give way to free speech has been proved true with a vengeance—that’s exactly what the “traditional contours” test tells us. Copyright is an exception to the First Amendment, but only because it already incorporates two very important free speech safeguards. Alter either safeguard, and a copyright law’s free speech exception would have to be reexamined. Many people, no doubt, are dubious that these built-in safeguards adequately protect our free speech interests. Indeed, much has been written in the past few decades questioning precisely that. What the Court lays to rest in Golan, I think, is the dispute over whether these doubts are properly framed as constitutional issues or simply policy choices. One can reasonably believe that greater consideration for free speech is needed when it comes to copyright laws (in fact, I share that view), but what the Court has now made clear is that the First Amendment doesn’t demand it.

The last point I’ll make is that the Supreme Court is telling us in Golan that those focusing on the inherent conflict between copyright and free speech in framing their constitutional arguments are missing the forest for the trees. While the “immediate effect of our copyright law is to secure a fair return for an author’s creative labor,” the fundamental purpose of copyright is “to stimulate artistic creativity for the general public good.” 18Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). Thus the view espoused by the Court is that copyright and free speech are not at odds with each other in a zero-sum game where a benefit to one implies a detriment to the other. The philosophy behind the Copyright Clause “is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors . . . .” 19Mazer v. Stein, 347 U.S. 201, 219 (1954). In the Court’s view, in the Framers’ view, and in my view as well, the First Amendment and the Copyright Clause are complementary provisions promoting the same goal—the public good.

Follow me on Twitter: @devlinhartline

References

References
↑1 Golan v. Ashcroft, 310 F.Supp.2d 1215 (D. Colo. 2004).
↑2 Uruguay Round Agreements Act, Pub.L. 103-465.
↑3 Golan v. Gonzales, 2005 WL 914754 (D. Colo. Apr. 20, 2005).
↑4 Id., at *17.
↑5 Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007).
↑6 Id., at 1184.
↑7 Id., at 1189.
↑8 Golan v. Holder, 611 F.Supp.2d 1165, 1170 (D. Colo. 2009).
↑9 Id., at 1172.
↑10 Golan v. Holder, 609 F.3d 1076 (10th Cir. 2010).
↑11 Id., at 1084.
↑12 Golan v. Holder, 2012 WL 125436 (U.S. Jan. 18, 2012).
↑13 Id., at *13.
↑14 Id., at fn. 29.
↑15 Id., at *15.
↑16 Id., at *16.
↑17 Jennifer E. Rothman, Liberating Copyright: Thinking Beyond Free Speech, 95 Cornell L. Rev. 463, 479 (2010).
↑18 Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
↑19 Mazer v. Stein, 347 U.S. 201, 219 (1954).

Guest Post: From Eldred To Golan: The “Traditional Contours” Test – Part I

By , February 06, 2012.

Today’s guest post comes from Devlin Hartline, a J.D. candidate at Loyola University New Orleans College of Law with an expected graduation date of May, 2012. His primary interests are in copyright, internet, and constitutional law. He lives with his wife and two young sons in Metairie, Louisiana. You can follow him on Twitter: @devlinhartline.

“Constitution time is over.”

For academic and self-proclaimed “copyright activist” Lawrence Lessig, January 18, 2012, represents more than just the day the internet stood up to copyright law. In his view, it’s also the day “the Supreme Court shut the door, finally and firmly, on any opportunity to meaningfully challenge a copyright statute constitutionally.” For it was on that day that the Supreme Court handed down its decision in Golan v. Holder, 1Golan v. Holder, 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012). or as Lessig puts it, it’s the day the Court signaled to the copyright bar: “Constitution time is over.” Lessig’s defeatist attitude is understandable. He had spent the past thirteen years representing four different plaintiffs challenging various copyright laws on constitutional grounds. Two of the cases were even heard by the Supreme Court; all four cases ended in resounding defeat for Lessig’s various constitutional arguments. 2See Eldred v. Ashcroft, 537 U.S. 186 (2003); Luck’s Music Library, Inc. v. Gonzales, 407 F.3d 1262 (D.C. Cir. 2005); Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007), cert. denied, 128 S.Ct. 958 (2008); Golan v. Holder, 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012). Upset with Congress’s treatment of copyright, it’s not surprising that Lessig would turn to the courts. To get a court to strike down a copyright statute, he had to constitutionalize the issue—courts simply aren’t in the business of second-guessing legislative choices unless those choices violate the Constitution. The problem for Lessig, though, was that the Constitution itself provides few limits on Congress’s power to create copyright laws. But “few limits” does not mean “no limits.”

One of Lessig’s major arguments was that a copyright law must give way to First Amendment concerns, and it’s that particular notion that I’ll focus on in this article. While Lessig may have been defeated on this argument in that he didn’t like where the Court ultimately drew the line between copyright and free speech, as we’ll see, he was certainly vindicated in that the Court definitively recognized that copyright must in fact significantly give way to free speech interests. One culmination of Lessig’s thirteen-year-long legal battle against copyright law in the federal courts is that the Supreme Court has given us a test to use in determining whether a copyright statute has run afoul of free speech—the “traditional contours” test. And contrary to Lessig’s complaint that this test forecloses meaningful First Amendment challenges to copyright, the test instead, I think, reasonably reflects the fact that free speech and copyright promote the same public good. This sentiment is reflected in something the Court said over two decades ago: “it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” 3Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985).

There is no doubt that copyright, in some sense, burdens free speech. The First Amendment commands that “Congress shall make no law . . . abridging the freedom of speech.” At the same time, however, the Copyright Clause allows Congress to “secur[e] for limited Times to Authors . . . the exclusive Right to their . . . Writings.” But by creating a law that secures to an author a copyright in his work, Congress has inevitably created a law that abridges free speech. Copyright, just like any other type of personal property, provides its holder with the “right to exclude others from using his property.” 4Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932); see also Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454 F.Supp.2d 966, 997 (C.D. Cal. 2006) (“The right to exclude is inherent in the grant of a copyright . . . .”). It follows then that a copyright law burdens free speech since others are not free to speak that which a copyright protects. But, under the Constitution, how much can copyright burden free speech, exactly? Thanks to Lessig’s efforts, we now have the “traditional contours” test that answers just that question.

An Amorphous Test

In Eldred v. Ashcroft, 5Eldred v. Ashcroft, 537 U.S. 186 (2003). the Supreme Court squarely addressed a First Amendment challenge to the Copyright Term Extension Act (CTEA). 6Copyright Term Extension Act of 1998, Pub.L. 105–298 (amending, inter alia, 17 U.S.C. §§ 302, 304). Lessig himself participated in the oral arguments before the Court. The CTEA provided for an additional twenty years of copyright protection for most works, even those that were currently under copyright. Petitioners (Lessig’s clients) included individuals and businesses who depended on works that had fallen into the public domain for their products or services. Petitioners argued that, but for the CTEA, they would have been able to exploit works that otherwise would be in the public domain. Therefore, by extending the copyright term for these works, Congress had impermissibly abridged petitioners’ free speech rights. In light of this perceived conflict, petitioners asked the Supreme Court to find the CTEA unconstitutional under heightened First Amendment judicial scrutiny. Heightened scrutiny simply refers to how important the legislature’s ends must be, and how well those ends must fit with the means chosen to accomplish them. The greater the scrutiny, the more likely it is that a statute will be struck down as unconstitutional. So the party challenging a statute almost always argues for greater scrutiny, while the defending party, naturally, argues the opposite.

The Court declined the invitation to apply heightened scrutiny, instead agreeing with respondents that none was needed. Said the Court: “The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles. Indeed, copyright’s purpose is to promote the creation and publication of free expression.” 7Eldred, 537 U.S. at 219. In the Court’s view, imposition of heightened judicial scrutiny was not necessary because copyright law already contains two built-in First Amendment accommodations. The first, known as the idea/expression dichotomy, 8The idea/expression dichotomy is codified in 17 U.S.C. § 201(b) (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”). “distinguishes between ideas and expression and makes only the latter eligible for copyright protection.” 9Eldred, 537 U.S. at 219. The second, known as the fair use defense, 10The fair use defense is codified in 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright…”). “allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.” 11Eldred, 537 U.S. at 219. According to the Court, these built-in accommodations strike a good balance between copyright and free speech since they allow for the free flow of ideas while providing only partial protection for an author’s particular expression.

The Court explained further that the “First Amendment securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.” 12Id., at 221. Petitioners’ asserted right to speak other people’s copyrighted works did raise First Amendment concerns, said the Court, but these concerns were adequately addressed by copyright’s built-in free speech protections. And then, in what can be described as an afterthought, the Supreme Court announced the “traditional contours” test: “But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” 13Id. The “traditional contours” test, then, is a simple conditional statement: If Congress did not alter copyright’s “traditional contours” when crafting a copyright statute, then a reviewing court faced with a First Amendment challenge to that statute does not apply heightened judicial scrutiny. In other words, a court will not have to look at how important the ends are, or how closely those ends fit the means chosen to accomplish them, so long as copyright’s “traditional contours” have not been altered in creating the statute. Lower courts sorely needed a test like this to apply when faced with a free speech challenge to a copyright statute. The problem, unfortunately, was that no one knew what these “traditional contours” were because the Court didn’t really say. How could courts apply the test if they didn’t even know when the test applied? And what exactly is (or isn’t) included within these “traditional contours”?

Kahle Tests The Waters

The year after the Supreme Court opinion in Eldred was handed down, a district court in California attempted to apply the newly-minted “traditional contours” test. In Kahle v. Ashcroft, 14Kahle v. Ashcroft, 2004 WL 2663157 (N.D. Cal. Nov. 19, 2004). plaintiffs (Lessig’s clients), including the Internet Archive, were in the business of taking works that had fallen into the public domain and posting them on the Internet. They brought suit challenging the constitutionality of the Copyright Renewal Act (CRA) 15Copyright Renewal Act of 1992, Pub.L. 102-307. and the CTEA on First Amendment grounds. The CRA removed the renewal requirement for works created between 1964 and 1977, and it provided that the copyrights for these works would be automatically renewed for a second term. Before the CRA, these works would have only received a second term if their owners had filed for a renewal. Now, they went full-term without the owners doing anything. The CTEA, as we just saw in Eldred, added an additional twenty years of copyright protection to these now automatically-renewing works. Plaintiffs argued that, but for the CRA and the CTEA, the vast majority of the works created between 1964 and 1977 would have fallen into the public domain on January 1, 2004. Rather than a conditional copyright regime that required authors to take affirmative steps to extend the copyright term for their works, the challenged statutes created an unconditional copyright regime where copyright protections were extended automatically. This transition from a conditional to an unconditional system—in effect, from one that was “opt in” to one that was “opt out”—argued plaintiffs, altered copyright’s “traditional contours,” thereby necessitating heightened judicial scrutiny under the “traditional contours” test.

The intuitiveness of this argument is undeniable: Whereas a copyright owner once had to renew his registration to get a second term, now he had to do nothing to obtain the same result (plus an additional 20 years of protection). For parties, like plaintiffs, waiting for these works to fall into the public domain so they could use them, this change was understandably seen as an alteration of copyright’s “traditional contours.” The district court didn’t agree, and it started its analysis with the observation that the Supreme Court hadn’t actually identified the protections it considered to be within copyright’s “traditional contours.” In fact, the court noted, the phrase “traditional contours” did not appear in any other reported decision prior to its use in Eldred. The court deduced that the two concepts recognized by the Court, namely the idea/expression dichotomy and the fair use defense, related only to the scope of copyright protection. Contrasting that with the procedural steps now being challenged, the court reasoned that removing the renewal requirement did not alter the scope of the copyright protection or the copyright holder’s substantive rights. As such, the court held that the challenged statutes did not alter copyright’s “traditional contours.” For the district court, the “traditional contours” simply were not affected by changes in copyright procedures, like removing the renewal requirement.

On appeal to the Ninth Circuit, 16Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007). plaintiffs fared no better. The circuit court accepted plaintiffs’ argument that abolishing the renewal requirement would increase the copyright term for the works in question while correspondingly decreasing the number of works entering the public domain. Nonetheless, the court of appeals found that automatically renewing a copyright’s registration was qualitatively no different than extending a copyright’s term, and the Supreme Court’s holding in Eldred had in effect already answered plaintiffs’ challenge: If extending copyrights for existing works was constitutional there, then automatically renewing and thus extending copyrights for existing works was also constitutional here. So long as “traditional First Amendment safeguards such as fair use and the idea/expression dichotomy” vindicate the plaintiffs’ affected free speech interests, said the court, “extending existing copyrights . . . does not alter the traditional contours of copyright protection.” 17Id., at 700 (internal quotation marks omitted). So for the Ninth Circuit, automatically renewing a copyright was no different than extending a copyright’s term, and plaintiffs’ clever framing of the issue fell flat. While the Supreme Court in Eldred did not define what it meant by copyright’s “traditional contours,” the Court’s decision did make clear that extending a copyright’s term leaves the “traditional contours” intact—that was the exact issue in Eldred. And once the circuit court framed the issue as one of simply extending a copyright’s term, plaintiffs’ game was over under the Court’s prior holding. Plaintiffs appealed to the Supreme Court, but the petition for certiorari was denied. 18Kahle v. Gonzales, 128 S.Ct. 958 (2008) (denying cert.).

Coming up in Part II: Golan I & II, The “Traditional Contours” Test Defined, and Closing Thoughts.

References

References
↑1 Golan v. Holder, 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012).
↑2 See Eldred v. Ashcroft, 537 U.S. 186 (2003); Luck’s Music Library, Inc. v. Gonzales, 407 F.3d 1262 (D.C. Cir. 2005); Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007), cert. denied, 128 S.Ct. 958 (2008); Golan v. Holder, 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012).
↑3 Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985).
↑4 Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932); see also Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454 F.Supp.2d 966, 997 (C.D. Cal. 2006) (“The right to exclude is inherent in the grant of a copyright . . . .”).
↑5 Eldred v. Ashcroft, 537 U.S. 186 (2003).
↑6 Copyright Term Extension Act of 1998, Pub.L. 105–298 (amending, inter alia, 17 U.S.C. §§ 302, 304).
↑7 Eldred, 537 U.S. at 219.
↑8 The idea/expression dichotomy is codified in 17 U.S.C. § 201(b) (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”).
↑9 Eldred, 537 U.S. at 219.
↑10 The fair use defense is codified in 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright…”).
↑11 Eldred, 537 U.S. at 219.
↑12 Id., at 221.
↑13 Id.
↑14 Kahle v. Ashcroft, 2004 WL 2663157 (N.D. Cal. Nov. 19, 2004).
↑15 Copyright Renewal Act of 1992, Pub.L. 102-307.
↑16 Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007).
↑17 Id., at 700 (internal quotation marks omitted).
↑18 Kahle v. Gonzales, 128 S.Ct. 958 (2008) (denying cert.).

The Evolution of Copyright

By , January 11, 2012.

The following is an excerpt from Brandew Matthews‘ article, The Evolution of Copyright, which originally appeared in Political Science Quarterly in December, 1890. It traces the “prehistory” of copyright — from ancient Greek and Roman times to the development of the printing press — and gives one explanation for its development.

Perhaps a consideration of the evolution of copyright in the past will conduce to a closer understanding of its condition at present, and to a clearer appreciation of its probable development in the future. It is instructive as well as entertaining to trace the steps by which men, combining themselves in society, in Arnold’s phrase, have afforded to the individual author the sanction of the law in possessing what he has produced; and it is no less instructive to note the successive enlargements of jurisprudence by which property in books—which is, as Lowell says, the creature of local municipal law—has slowly developed until it demands and receives international recognition.

The maxim that “there is no wrong without a remedy,” indicates the line of legal development. The instinct of possession is strong; and in the early communities, where most things were in common, it tended more and more to assert itself. When anything which a man claimed as his own was taken from him, he had a sense of wrong, and his first movement was to seek vengeance—much as a dog defends his bone, growling when it is taken from him, or even biting. If public opinion supported the claim of possession, the claimant would be sustained in his effort to get revenge. So, from the admission of a wrong, would grow up the recognition of a right. The moral right became a legal right as soon as it received the sanction of the State. The State first commuted the right of vengeance, and awarded damages, and the action of tort was born. For a long period property was protected only by the action for damages for disseizin; but this action steadily widened in scope until it became an action for recovery; and the idea of possession or seizin broadened into the idea of ownership. This development went on slowly, bit by bit and day by day, under the influence of individual self-assertion and the resulting pressure of public opinion, which, as Lowell once tersely put it, is like that of the atmosphere: “You can’t see it, but it is fifteen pounds to the square inch all the same.”

The individual sense of wrong stimulates the moral growth of society at large; and in due course of time, after a strenuous struggle with those who profit by the denial of justice, there comes a calm at last, and ethics crystallize into law. In more modern periods of development, the recognition of new forms of property generally passes through three stages. First, there is a mere moral right, asserted by the individual and admitted by most other individuals, but not acknowledged by society as a whole. Second, there is a desire on the part of those in authority to find some means of protection for this admitted moral right, and the action in equity is allowed—this being an effort to command the conscience of those whom the ordinary policeman is incompetent to deal with. And thirdly, in the fullness of time, there is declared a law setting forth clearly the privileges of the producer and the means whereby he can defend his property and recover damages for an attack on it. This process of legislative declaration of rights is still going on all about us and in all departments of law, as modern life develops and spreads out and becomes more and more complex; and we have come to a point where we can accept Jhering’s definition of a legal right as “a legally protected interest.”

As it happens, this growth of a self-asserted claim into a legally protected interest can be traced with unusual ease in the evolution of copyright, because copyright itself is comparatively a new thing. The idea of property was (probably first recognized in the tools which early man made for himself, and in the animais or men whom he subdued; later, in the soil which he cultivated. In the beginning the idea attached only to tangible things—to actual physical possession—to that which a man might pass from hand to hand. Now, in the dawn of history nothing was less a physical possession than literature; it was not only intangible, it was invisible even. There was literature before there was any writing, before an author could set down his lines in black and white. Homer and the rhapsodists published their poems by word of mouth. Litera scripta manet; but the spoken poem flew away with the voice of the speaker and lingered only in the memory. Even after writing was invented, and after parchment and papyrus made it possible to preserve the labors of the poet and the historian, these authors had not, for many a century yet, any thought of making money by multiplying copies of their works.

The Greek dramatists, like the dramatists of today, relied for their pecuniary reward on the public performance of their plays. There is a tradition that Herodotus, when an old man, read his History to an Athenian audience at the Panathenaic festival, and so delighted them that they gave him as a recompense ten talents—more than twelve thousand dollars of our money. In Rome, where there were booksellers having scores of trained slaves to transcribe manuscripts for sale, perhaps the successful author was paid for a poem, but we find no trace of copyright or of anything like it. Horace speaks of a certain book as likely to make money for a certain firm of booksellers. In the other Latin poets, and even in the prose writers of Rome, we read more than one cry of suffering over the blunders of the copyists, and more than one protest in anger against the mangled manuscripts of the hurried, servile transcribers. But nowhere do we find any complaint that the author’s rights have been infringed; and this, no doubt, was because the author did not yet know that he had any wrongs. Indeed, it was only after the invention of printing that an author had an awakened sense of the injury done him in depriving him of the profit of vending his own writings; because it was only after Gutenberg had set up as a printer that the possibility of definite profit from the sale of his works became visible to the author. Before then he had felt no sense of wrong; he had thought mainly of the honor of a wide circulation of his writings; and he had been solicitous chiefly about the exactness of the copies. With the invention of printing there was a chance of profit; and as soon as the author saw this profit diminished by an unauthorized reprint, he was conscious of injury, and he protested with all the strength that in him lay. He has continued to protest from that day to this; and public opinion has been aroused, until by slow steps the author is gaining the protection he claims.

It is after the invention of printing that we must seek the origin of copyright. Mr. De Vinne shows that Gutenberg printed a book with movable types, at Mentz, in 1451. Fourteen years later, in 1465, two Germans began to print in a monastery near Rome, and removed to Rome itself in 1467; and in 1469 John of Spira began printing in Venice. Louis XI. sent to Mentz Nicholas Jenson, who introduced the art into France in 1469. Caxton set up the first press in England in 1474.

In the beginning these printers were publishers also; most of their first books were Bibles, prayer-books, and the like; but in 1465, probably not more than fifteen years after the first use of movable types, Fust and Schoeffer put forth an edition of Cicero’s Offices—” the first tribute of the new art to polite literature,” Hallam calls it. The original editing of the works of a classic author, the comparison of manuscripts, the supplying of lacuna, the revision of the text, called for scholarship of a high order; this scholarship was sometimes possessed by the printer-publisher himself but more often than not he engaged learned men to prepare the work for him and to see it through the press. This first edition was a true pioneer’s task; it was a blazing of the path and a clearing of the field. Once done, the labor of printing again that author’s writings in a condition acceptable to students would be easy. Therefore the printer-publisher who had given time and money and hard work to the proper presentation of a Greek or Latin book was outraged when a rival press sent forth a copy of his edition, and sold the volume at a lower price, possibly, because there had been no need to pay for the scholarship which the first edition had demanded. That the earliest person to feel the need of copyright production should have been a printer-publisher is worthy of remark; obviously, in this case, the printer-publisher stood for the author and was exactly in his position. He was prompt to protest against this disseizin of the fruit of his labors; and the earliest legal recognition of his rights was granted less than a score of years after the invention of printing had made the injury possible. It is pleasant for us Americans to know that this first feeble acknowledgment of copyright was made by a republic. The Senate of Venice issued an order, in 1469, that John of Spira should have the exclusive right for five years to print the epistles of Cicero and of Pliny.

This privilege was plainly an exceptional exercise of the power of the sovereign state to protect the exceptional merit of a worthy citizen; it gave but a limited protection; it guarded but two books, for a brief period only, and only within the narrow limits of one commonwealth. But, at least, it established a precedent—a precedent which has broadened down the centuries until now,’ four hundred years later, any book published in Venice is, by international conventions, protected from pillage for a period of at least fifty years, through a territory which includes almost every important country of continental Europe. If John of Spira were to issue to-day his edition of Tully’s Letters, he need not fear an unauthorized reprint anywhere in the kingdom of which Venice now forms a part, or in his native land, Germany, or in France, Belgium, or Spain, or even in Tunis, Liberia, or Hayti.

The habit of asking for a special privilege from the authorities of the State wherein the book was printed spread rapidly. In 1491 Venice gave the publicist, Peter of Ravenna, and the publisher of his choice the exclusive right to print and sell his Phoenix —the first recorded instance of a copyright awarded directly to an author. Other Italian states “encouraged printing by granting to different printers exclusive rights for fourteen years, more or less, of printing specified classics,” and thus the time of the protection accorded to John of Spira was doubled. In Germany the first privilege was issued at Nuremberg, in 1501. In France the privilege covered but one edition of a book; and if the work went to press again, the publisher had to seek a second patent.

In England, in 1518, Richard Pynson, the King’s Printer, issued the first book cum privilegio; the title-page declaring that no one else should print or import in England any other copies for two years; and in 1530 a privilege for seven years was granted to John Palsgrave ” in the consideration of the value of his work and the time spent on it; this being the first recognition of the nature of copyright as furnishing a reward to the author for his labor.” In 1533 Wynkyn de Worde obtained the king’s privilege for his second edition of Witinton’s Grammar. The first edition of this book had been issued ten years before, and during the decade it had been reprinted by Peter Trevers without leave—a despoilment against which Wynkyn de Worde protested vigorously in the preface to the later edition, and on account of which he applied for and secured protection. Here again is evidence that a man does not think of his rights until he feels a wrong. Jhering bases the struggle for law on the instinct of ownership as something personal, and the feeling that the person is attacked whenever a man is deprived of his property; and, as Walter Savage Landor wrote: “No property is so entirely and purely and religiously a man’s own as what comes to him immediately from God, without intervention or participation.” The development of copyright, and especially its rapid growth within the past century, is due to the loud protests of authors deprived of the results of their labors, and therefore smarting as acutely as under a personal insult.

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