The Founders' Copyright

Schuyler Erle quotes with approval David "Gumby" Henkel-Wallace's assertion at O'Reilly's E-Tech con that, "Copyright is dead. It may take ten or thirty years to die, but it's dead." Schuyler adds: "Would someone please notify the RIAA?"

Gumby went on to describe a "post-copyright world," which he sees as a return to the age of patronage. For instance, Budweiser or Nike would sponsor artists to create works (read, ads) that they would want freely distributed. In this so-called utopia, information is once again free and there are no constraints on the copying and sharing of these bytes.

But this is the worst possible future. To my mind, we don't want a world in which you can't make money by making art or movies or music unless you're creating advertising! Copyright exists to protect the creators of stuff, to encourage them to invest their money and creativity, to find an audience (marketing), and to sell product.

We usually think about protecting the lone artist, but of course very large industries have grown up around these "creatives." Movies get made not only because an auteur has a vision, but also because movie studios put up millions of dollars to pay for the salaries, production costs and marketing dollars required to bring a movie to an audience. Does anyone really think that movies would get made without the protection of copyright? Sure, some shoestring-budget independent films would still get made, but is that the only kind of movie that should be available? Copyright protects diversity, because it promises that whatever kind of work you're creating, you have the right to find an audience and make a sale (or give it away if you want).

What we are saying is that at after some number of years, it is good public policy for creations to enter the public domain. The Founders said this "limited" term was 14 years, with an option to renew copyright for another 14 years. Over the last 40 years, Congress has extended the term of copyright 11 times, so it now stands as life of the author plus 70 years, as specified in the Sonny Bono Copyright Term Extension Act, passed in 1998. The previous law put it life plus 50 for individuals and 75 years from the date of creation for "corporate" creations. Sonny Bono adds 20 years to both protections.

Mickey Mouse was created in 1928. Under the old law, Mickey would enter the public domain in 2004. Now its 2024. Call Sonny Bono the Disney Protection Act. Assuming that copyright isn't extended once (or twice) again, Mickey will have been protected for 96 years.

As Prof. Lessig pointed out at the E-TechCon, some 4 million works are created each year, only 50,000 of which have any value. The others simply don't have an audience or were never intended for sale; they could all enter the PD without harming the creator or anyone else. For the benefit of Mickey and other works of great value, all of these other works are held hostage.

Now there is a chance that Sonny Bono may be overturned. The Supreme Court has agreed to hear Eldred v. Ashcroft, a suit that directly challenges Sonny Bono on the purest possible grounds. The language of the Founders is that copyright is granted for a "limited" term:"The Congress shall have power . . . to promote the progress of science and useful arts . . . by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries." Prof. Lawrence Lessig will argue the case in the Supreme Court this fall and a decision is expected the following spring. In the lower court's decision, the plaintiffs lost on three arguments. This go-round they will focus on the "limited term" argument, which was expressed well by the dissenting justice in that decision: The Copyright Clause "is not an open grant of power to secure exclusive rights. It is a grant of power to promote progress. The means by which that power is to be exercised is certainly the granting of exclusive rights -- not an elastic and open-ended use of that means, but only a securing for limited times." Lessig and Eldred are hoping that the Supremes will subscribe to this argument and not to the majority's opinion that Congress has pretty much unfettered rights to alter copyright law. The fact that the Court has taken the case is promising, since it's unlikely they would have taken it only to agree with the lower court. I expect a 5-4 decision, though no one could say which side the 5 will be with.

This case is the best hope, perhaps the last best hope, for putting the brakes on the perpetual extension of copyright. It is manifestly self-defeating to say that "copyright is dead" or that the law of the land or court decisions are irrelevant. What we want is balance: protection with limits, just like the Founders.

or am I wrong?