Eldred and the Copyright Barons22 April 2002 Has Congress overextended its power by extending copyright to unreasonable lengths? The United States Supreme Court will ask that very question this year. Here's a look at the issues.
This year the United States Supreme Court will hear Eldred vs Ashcroft, a case that could have profound effect on the nature of copyright itself. Eric Eldred used to run a website devoted to providing public domain books in HTML, including acclaimed "editions" of Nathaniel Hawthorne. These hyperlinked, cross-referenced works were "derivative works", but unique and valuable in that they allowed for a new way of looking at old books. In 1998, Congress passed the Sonny Bono Copyright Act, which extended copyright by an additional twenty years, to the present term of the author's life plus seventy years, or a flat ninety-five years for corporate "works for hire." Eldred, who had a tendency to "pounce" on works as soon as their copyrights expired, now found that many of the works he had looked forward to posting would be locked up for another two decades. Although he considered posting some of them anyway in an act of civil disobedience, he instead decided to sue the United States government, claiming that the copyright extention was unconstitutional, at odds with the copyright clause's mention of "limited" times. The original copyright term in the United States was far less than it is today. I'm thirty years old. If I were to publish a book today, and I live to the male United States average of seventy-two, the copyright on that book will last for 112 years, expiring in 2114 AD. I'm single. If I were to meet a woman, fall in love and start a family tomorrow, my grandson would be an old man by the time a book I publish today becomes public domain. For the first hundred years or so of United States history, copyright was much shorter and much simpler. Copyright was granted for fourteen years, with a one-time optional extention of an additional fourteen years. No matter what, anything older than twenty-eight years could be enjoyed by anyone and could form the basis for new, original work. Consider Mario Puzo's The Godfather, first published in June of 1969. Under the original copyright terms, the first volume of the Corleone family would now be freely available to anyone, and anyone would be able to write sequels, prequels, versions of the same story from different points of view, etc. It could serve as the basis for new generation of mafia novels. But it won't, because it won't become public domain until three generations after Mario Puzo dies. The Godfather is an anomoly, however. How many works are still commercially viable fifteen years after release? Twenty-nine? A miniscule fraction of a percent. Most works sink under their own weight in less than six months, much less nearly three decades. How is the creator harmed by keeping these works out of print and forbidden from public view for a century or more? When they do finally become available again, will anyone remember, and be waiting for them? In this way, our unreasonably long copyright terms have destroyed uncounted works, ensuring that they will be permanently forgotten and never make any appreciable addition to our culture. By contrast, Disney has managed to use public domain material like Winnie the Pooh and Grimm's fairy tales to generate billions of dollars worth of new, copyrighted material. This is, in fact, exactly the sort of thing the public domain is supposed to facilitate. The irony, of course, is that now that Disney has built an empire based on the public domain, they have spent millions trying to ensure no one follows in their footsteps. Without the public domain, Disney wouldn't have made "Beauty and the Beast", "The Little Mermaid", "Cinderella" or "Tarzan", but now that they have, heaven forbid anyone someday do to them what they've done to Edgar Rice Burroughs and Hans Christian Anderson. After letting the original terms stand for nearly a century and a half, copyright has been extended by eighty years in the last eighty-nine, on eleven separate occasions in the last four decades. Why is Congress so intent now to extend copyright, by such extremes, after letting the original terms stand for so long? Perhaps we should first ask why have copyright at all. What is it, and what does it do? As intended by the framers of the United States Constitution, copyright exists to provide a financial incentive for authors to create. It's a contract between the author and the government, each giving something for benefits granted in return. The government uses taxpayer money to grant the author legal protection of his work for a limited time, so that he may sell it and make enough money to support himself while he creates more work. The author, in exchange for this taxpayer-provided protection, agrees to turn the work over for the good of society at large after a limited time. If you don't want to release the book to society at some point, you have no reason to expect society to spend money to protect your ability to profit from the work. Without the government-sponsored monopoly of copyright, you'd have to protect your "intellectual property" yourself, policing any infringement on your own. Ask Xerox, Kleenex and Rollerblade how much time and effort they spend to protect their trademarks. If the government protects you, you have to give something back. One hand washes the other. Except that now the public, tax-payer hand is getting downright filthy, badly in need of a wash. The "limited" time in question is now far longer than the average human lifespan, and the public, bearing the burden of providing legal protection for copyrighted work, gets nothing in return. Many think this is as it should be, that the author has the "moral right" to derive as much money as she can from the work for as long as she lives, and that her heirs should be able to benefit from it as well after she dies. The estate of Margaret Mitchell certainly thought that when they sued to prevent the publication of Alice Randall's The Wind Done Gone, a retelling of Gone with the Wind told from the slaves's point of view. What it all comes down to, really, is a simple question. Are ideas property? If ideas are property, the sole possession of their creators, then so-called "intellectual property" laws are redundant. Ideas would be subject to the enforcement of the same property laws that cover houses and cars, and they would be able to be bequeathed in wills to heirs. If, on the other hand, ideas are not property, if ideas are ephemeral, then "intellectual property" laws are meaningless. As it happens, our society was based, in part, on the idea of a free exchange of ideas. Many of the founding fathers believed that it was crucial to a democratic society to have a well-informed and educated populace. This meant that ideas, the free traffic of ideas, directly benefited society as a whole and should not be the sole province of a few. Their thinking was that ideas gain power by spreading, by sharing, rather than by being hoarded by someone deemed to have "ownership" of that idea. When the Supreme Court considers the constitutionality of copyright extensions in the Eldred case, they must consider the original intent of the founders. Sonny Bono and his wife believed that copyright should last forever, as a moral right of the creator, regardless of any contractual obligations to society. When informed that the Constitution required copyright be granted for only a "limited" time, Mary Bono said she'd settle for "forever minus one day." This, or even the current term of over a century on average, is not what Thomas Jefferson and company had in mind. These terms do not promote the progress of the useful arts because there's no incentive to write a second book. Think about Stephen King. His first book was Carrie. Even though, as is common with first books, his publisher screwed him on the contract, he has still made enough money on this book, in various printings, through movie rights, etc. to support himself and his family for life. The only reason he's been as prolific as he has been is that like many writers, he's incapable of shutting up. If it were a purely financial decision based on copyright terms, we'd never have seen The Stand, The Green Mile or Christine. In order for copyright to provide an incentive, terms should be reasonable, but short. Long enough to make some money, but short enough to put a fire under people to keep writing. The original terms of fourteen and fourteen still seem reasonable if in fact this was still the intent of law. There's reason to believe that existing copyright law is unconstitutional because it's not intended to provide an incentive towards further progress and creation. If that's not the purpose of current copyright law, what is? Control. We Americans profess to have "a government of the people, by the people and for the people," but that hasn't been the case in a long time. Current copyright law doesn't benefit the people, because it keeps the vast majority of works buried from view until long after they're forgotten, removing them permanently from our culture. It doesn't benefit creators because it destroys their legacy once their works fall out of print. The only people it benefits are the giant faceless media corporations who own so many of the copyrights governing most of what you see and hear. I've said before that we seem to be moving slowly, inevitably, towards becoming a "pay-per-view" society, where every single use of any "intellectual property" is monitored and monetarily compensated. If you're a copyright holder, this may sound like a great deal, but read the fine print. More to the point, read the quotes at the beginning of this article. Such rigid control means the death of creativity and free expression. We all "stand on the shoulders of giants." I wrote my first novel because I was looking for a specific kind of horror/SF novel, and couldn't find it, so I wrote it myself. But I never would have come up with the ideas if not for the dozens, hundreds, of horror and SF novels I'd already read in my lifetime. I was inspired by lots of different things. The result was my own, but it does not exist in a vacuum. Jazz and rap have a musical tradition of building on and borrowing from the work of others. In so doing, they take the source material of something else, put their own spin on it, and make it new and unique. Art is organic, derived as much from the culture of the artist as the artist himself. If we impoverish that culture by locking up intellectual property, what kind of art should we expect in the future as a result? Until a few years ago, such uses were permissible, deemed as "Fair Use." Fair Use is a legal term, meaning that referencing or minor borrowing from a copyrighted work does not constitute copyright infringement. Without it, students would not be able to write book reports without the permission of the copyright holder. Without Fair Use, it would be illegal to copy a passage from an encyclopedia at the library. And while even the newest, strictest copyright bills give lip service to preserving Fair Use, they leave the door open for media companies to make such uses impossible, perfecting the "lock down" of content. Several media companies are now experimenting with copy-protected audio CDs. These disks violate the "red book" CD standard by intentionally introducing errors into the data. Most home audio players ignore such errors, and human listeners can't hear the difference. But the errors trip up CD-ROM drives, preventing the disks from being "ripped" to digital audio formats like MP3. While such "format shifting", like copying an LP to tape, is protected as Fair Use by the Audio Home Recording Act, and is not a crime, there is also no law compelling content providers to enable such use. They can't sue you for ripping MP3s, but they don't have to provide rippable CDs either. Despite compelling evidence that Napster actually helped record sales (they went up in Napster's heyday and fell after Napster was shut down), the RIAA is more interested in control. You will listen where and how they allow it, period, or you won't listen at all. (For more on copyright and the struggle for control, I can't recommend Lawrence Lessig's book The Future of Ideas highly enough. Read this book and tell everyone you know about it. Before it's too late.) Speaking as a published author, I think the whole situation is disgusting and unconscionable. I actually look forward to when my works fall into the public domain, because it's a form of immortality. I may not be able to make money from those works any more, but I'll also know they're part of the culture, available to anyone that wants to read them, forever. I'll have a infinitely larger potential audience than when my works were protected, and I'd love to see works based on my own. For example, my first novel takes place at the end of the twentieth century, but the sequel picks up nearly two hundred years later. I'd get a kick out of seeing others tell the story of those two centuries, the struggles faced by Daniel Cho as he formed the Terran Republic. I'll never see those stories, though, because I'll be seventy years dead before anyone is allowed to write them. If we can agree that existing terms of copyright are too long, what should they be? Given that with movie rights, being "rediscovered" by new generations, and the enduring popularity of authors like Stephen King, Kurt Vonnegut and Ray Bradbury, perhaps the original terms are too short by modern standards. I've got two options I'd like to suggest. Option 1: initial 20 years, then unlimited 10 year extensions during author's lifetime, or 50 years flat for corporate works for hire. This is actually a little more than I'd be comfortable with, but it would please most of the people out there. The initial term is long enough to make a significant amount of money from a work, and after that, the author has to register and pay for extensions. As soon as he lets the extensions lapse, the works fall into public domain. The author's contact information would even be on file with the most recent extension to allow for verification of copyright status or licensing inquiries. After the author dies, the work is public domain. If the author wants to pass on something to his heirs, he can leave them the money he made from the book. The book itself belongs to society. No matter how much we extend copyright now, in the name of "incentive," Nathaniel Hawthorne isn't writing any more books. Option 2: 25 years flat for everyone, no extensions. A quarter century should be enough time to derive adequate financial remuneration from a work. I prefer this one. The accounting's a lot easier; you just add twenty-five years to the initial publication date and see if today's date is later. If it is, the work is fair game. This would put Stephen King's Carrie into public domain, but Bag of Bones would still be his until 2024. Under this term, I think I would allow the estate to keep the copyright until the term expires in the case of the author's death, just in case the author kicks off two years after writing the book and had a family to support. This plan gives creators ample opportunity to profit from their efforts, but also ensures their works will benefit society at large within the term of living memory. I'm not naive enough to think that the Supreme Court will declare all copyright extensions unconstitutional and roll the term back to the original fourteen and fourteen, although I secretly hope it will happen. Given the court's recent stands in favor of the First Amendment, I do have high hopes that they will side with Eldred and force Congress to come up with more reasonable copyright legislation. Free expression is the core of a free society, and the free exchange of ideas is more important than short term commerce. Jeff Kirvin
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