Larry Lessig wrote a great article about Eldred v. Ashcroft, which he called "The Big One," since it was challenging the power of congress to keep extending copyright terms as they have been continually since the beginning of the 20th century. Lessig lost the case, which was a crushing defeat to him because he believes that with the right strategy it could have been won.
Lessig says that his mistake was framing the case around a somewhat abstract argument: earlier cases like United States v. Lopez (1995) had found that when the Constitution grants congress an enumerated power, that power must be interpreted in a way that makes it limited. The theory was that if congress could keep extending the term of copyright whenever more works were about to fall into the public domain, their power over copyright terms was effectively unlimited. It seemed like such a simple, watertight argument and the Supreme Court had bought it recently for other cases.
Lessig made this argument the center of his case, and redirected every line of questioning with the Supreme Court justices back to this theory. When Justice Kennedy asked if there was any actual harm in practice, Lessig answered:
"Justice, we are not making an empirical claim at all. Nothing in our copyright clause claim hangs upon the empirical assertion about impeding progress. Our only argument is, this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws."
The justices wanted to see the actual harm, but Lessig only gave them an abstract argument. This is unfortunate because Lessig has made an entire career out of describing the benefits of "Free Culture."
The EFF is surely aware of Eldred and its unfortunate outcome, and it appears that their strategy is much more focused on showing the actual harm:
"In their briefs, both Mr. Golan and the Internet Archive pointed out that allowing Congress to remove works from the public domain inserts potentially paralyzing uncertainty to the system and harms people’s First Amendment rights to receive and share information. These concerns are even more pronounced now in light of technologies that make sharing and storage more accessible, and allow important institutions like the Internet Archive to thrive."
Lessig made this argument the center of his case, and redirected every line of questioning with the Supreme Court justices back to this theory.
As a lawyer who used to be a judicial clerk for an appellate court, and who has heard many oral arguments before that appellate court, I can't believe that Lessig would muff up on this basic issue of legal argumentation. Argue your preferred theory, sure, but also go along with any hints the court gives you in its order calling for review of the case or in oral argument about what alternative theory to use to PERSUADE THE COURT. The lawyer's duty to the lawyer's client is to win the case, after all, and especially if you have any factual basis for saying that a particular appellate decision would result in actual real-world harm, in addition to being inconsistent with sound abstract legal principles, SAY SO. I'm glad to see that Lessig is forthright about acknowledging his mistake, and I wish him well the next time he has opportunity to argue the issues dearest to this heart before an appellate court.
From what I understood, Lessig was looking for a broad-ranging principle, rather than something specific to the case in question and its related harms. He was overreaching.
Great summary of Eldred v. Ashcroft. I was very interested in that case and when I first listened I thought Lessig was going to bring the constitutional principle back to the individual's relationship with the law, and was disappointed that he didn't. By that I mean the idea that since 95 years exceeds a typical human lifespan, so few people would ever experience the limits of copyright terms (in relation to a work created during their own lives, with which they would have a different relationship than some historical work) that the phrase 'for limited times' would be robbed of meaning and undermine the public's respect for constitutional government. It was like listening to a concert pianist give a stirring performance of a great work, only to omit the final chord that would have resolved the piece...and usually I'm inclined towards the dry technical argument rather than the emotionally satisfying one.
Meantime, I'm very torn on this EFF brief. I completely agree with the general points they are making about Congressional overreach and the numerous avoidable problems that will result, and the brief also deftly highlights broader problems - like photographs of unknown copyright, depicting buildings which no longer exist. That libraries are unwilling to take the risk of exposing themselves to legal liability for materials like this leaves us all poorer, and highlights the severe weaknesses in the current copyright regime.
I have two problems, though. One is just a quibble; when underscoring copyright's ultimate purpose of '[promoting] the Progress of science and useful arts,' (brief p17), the decisions cited to support the activity of libraries concern the scope of copyright but are here reapplied to the idea of limited time. This ends up seeming tautological - if limited times are supported by findings of limited scope, but the findings of limited scope are derived by the idea of limited time, how is this not a general problem with the copyright act rather than with section 514 in particular? It seems as if the EFF should be arguing to expand the scope of fair use to protect all library activity, and doubly so when the brief, at pains not to contradict the court's ruling in Eldred, virtually endorses CTEA on the following page. It's a smart argument, but I can't help feeling it's a bait-and-switch.
The other problem is a more general, moral one - it's not wrong, but I don't like it. Russian works produced prior to 1973 had no copyright protection in the US, because the USSR was not a signatory to any copyright treaties. Thus, all pre-1973 material was in the public domain as far as US copyright was concerned. Section 514 of the UAA reverses that, takes things out of the public domain, and I agree that this is a big problem for the many people who had come to rely on the copyright-free nature of these and similar works. The EFF is quite right to point out the harm and the legal contradictions: as far as I can tell they're 100% correct about this and should win for that reason.
What I don't like is that it feel pretty unfair to Russian artists: 'Wrote a book, or recorded a song, or painted a picture prior to 1973? well then it's in the public domain, you don't get any royalties because you were thoughtless enough to be born in a communist country with whom we had no treaty. Too bad, so sad.' You'll notice the brief doesn't talk about 'the US public domain' or 'the American public domain' - there is just 'the public domain,' as if US copyright protection (or lack thereof) is the global standard for whether authors and publishers may claim ownership in creative works. And given the reality of mass media and internet publishing, this is actually a reasonable practical yardstick. If you live in France, and some work is in the public domain in the US but not in Europe, theoretically you do not have completely free access to it. But as a practical matter, if something has already fallen into the public domain in the US it's very difficult to defend the copyright in other places.
Congress added section 514, granting retroactive protection to works in this situation, because otherwise foreign governments doesn't have much incentive to uphold American copyrights. They could just say 'well, your stuff was in the public domain according to our laws so now it belongs to everyone - too bad, so sad.' American copyright holders wouldn't want that, since they'd lose a lot of foreign revenue - and so Congress suddenly yanked material back out of the public domain and declared it subject to copyright again. This is, of course, unfair to ordinary people who had previously enjoyed the use of those works for free, and are now asked to pay. One wonders if it might not have been better and fairer for Congress to just buy up the rights as a thank-you to all the foreign artists and publishers who never saw any reward for their creativity.
I think ultimately this case will come down to balancing the idea of 'limited times' against the value of 'securing..rights' and trying to decide which imperative is more important in the context of the United States' treaty obligations (don't forget that treaties stand on equal footing with the Constitution, per article 6). My hunch is that the Supreme Court will maintain the status quo and allow the retroactive grant of copyright to stand.
Overturning the copyright system will have to wait for better legislation (not much hope there) or a better case against the length of copyright terms. this case feels too limited to provide real reform; even if the EFF wins it will be a hollow victory because virtually all the existing problems with an outdated system copyright will continue unchanged. A constitutional challenge will have to show the injustice of the copyright system in relation to all creative work, not just a smallish subset that happened to be published in the wrong place at the wrong time and were thus excluded by chance.
1973 was almost 40 years ago. You should not have the right to profit from your work forever. 40 years is more than enough time. As such, I don't feel the least bit compelled by the second part of your argument. If Disney goes broke because Steamboat Willie has finally entered the public domain and is blatantly copied in Russia, I don't think anyone is going to shed a tear.
I'm inclined towards a 30-45 year term of copyright myself, but that sort of change would have to come from Congress. I'm just not optimistic that this is the breakthrough case we've all been waiting for.
http://www.legalaffairs.org/issues/March-April-2004/story_le...
Lessig says that his mistake was framing the case around a somewhat abstract argument: earlier cases like United States v. Lopez (1995) had found that when the Constitution grants congress an enumerated power, that power must be interpreted in a way that makes it limited. The theory was that if congress could keep extending the term of copyright whenever more works were about to fall into the public domain, their power over copyright terms was effectively unlimited. It seemed like such a simple, watertight argument and the Supreme Court had bought it recently for other cases.
Lessig made this argument the center of his case, and redirected every line of questioning with the Supreme Court justices back to this theory. When Justice Kennedy asked if there was any actual harm in practice, Lessig answered:
"Justice, we are not making an empirical claim at all. Nothing in our copyright clause claim hangs upon the empirical assertion about impeding progress. Our only argument is, this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws."
The justices wanted to see the actual harm, but Lessig only gave them an abstract argument. This is unfortunate because Lessig has made an entire career out of describing the benefits of "Free Culture."
The EFF is surely aware of Eldred and its unfortunate outcome, and it appears that their strategy is much more focused on showing the actual harm:
"In their briefs, both Mr. Golan and the Internet Archive pointed out that allowing Congress to remove works from the public domain inserts potentially paralyzing uncertainty to the system and harms people’s First Amendment rights to receive and share information. These concerns are even more pronounced now in light of technologies that make sharing and storage more accessible, and allow important institutions like the Internet Archive to thrive."