Justice Stevens on the balance of public and private interest in copyright law

A fascinating dissent by Supreme Court Justice Stevens to the majority opinion in this case. I have edited out his detailed citations, which are really just an arcane print-oriented form of hyperlinks, for the sake of readability.

    Macaulay wrote that copyright is “a tax on readers for the purpose of giving a bounty to writers.” That tax restricts the dissemination of writings, but only insofar as necessary to encourage their production, the bounty’s basic objective. In other words, “[t]he primary purpose of copyright is not to reward the author, but is rather to secure ‘the general benefits derived by the public from the labors of authors.’ The majority’s decision today unnecessarily subverts this fundamental goal of copyright law in favor of a narrow focus on “authorial rights.” Although the desire to protect such rights is certainly a laudable sentiment,copyright law demands that “private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.”

    The majority discounts the effect its decision will have on the availability of comprehensive digital databases, but I am not as confident. As petitioners’ amici have persuasively argued, the difficulties of locating individual freelance authors and the potential of exposure to statutory damages may well have the effect of forcing electronic archives to purge freelance pieces from their databases. “The omission of these materials from electronic collections, for any reason on a large scale or even an occasional basis, undermines the principal benefits that electronic archives offer historians–efficiency, accuracy and comprehensiveness.”

    Moreover, it is far from clear that my position even deprives authors of much of anything (with the exception of perhaps the retrospective statutory damages that may well result from their victory today). Imagine, for example, that one of the contributions at issue in this case were a copyrighted version of John Keats’ Ode on a Grecian Urn, published on page 29 of our hypothetical October 31, 2000, New York Times. Even under my reading of §201(c), Keats retains valuable copyright protection. No matter how well received his ode might be, it is unlikely–although admittedly possible–that it could be marketed as a stand-alone work of art. The ode, however, would be an obvious candidate for inclusion in an anthology of works by romantic poets, in a collection of poems by the same author, or even in “a 400-page novel quoting a [poem] in passing,” ante, at 15. The author’s copyright would protect his right to compensation for any such use. Moreover, the value of the ode surely would be enhanced, not decreased, by the accessibility and readership of the October 31, 2000, edition of the New York Times. The ready availability of that edition, both at the time of its first publication and subsequently in libraries and electronic databases, would be a benefit, not an injury, to most authors. Keats would benefit from the poem’s continued availability to database users, by his identification as the author of the piece, and by the database’s indication of the fact that the poem first appeared in a prestigious periodical on a certain date. He would not care one whit whether the database indicated the formatting context of the page on which the poem appeared. What is overwhelmingly clear is that maximizing the readership of the ode would enhance the value of his remaining copyright uses.

    Nor is it clear that Keats will gain any prospective benefits from a victory in this case.

The good news is that one member of the Supreme Court is aware that copyright is more than a hand job for the well-connected. The bad news is that he's in a 7-2 minority.