The mouse that ate the public domain

Luis Villa
07 Mar 2002 12:16:39 -0500

FWIW, there is a ton about this case here:

The side of Good has some very, very bright people working for it, but
who knows how much that will mean in the end.

On Thu, 2002-03-07 at 12:12, carey wrote:
> I haven't seen nearly as much commentary on the problems with the Sonny Bono
> Copyright Term Extension Act, so it was rather nice to see something for a
> change.  In it , Mr. Sprigman argues about the flaws with Congress asserting
> too much power to make Disney feel better.  All I can hope for, is that the
> confidence he holds in the Supremes (re: Eldred v. Ashcroft) will hold true.
> (Who knows Rohit, this may be policy change that actually succeeds,
> after-the-fact)
> Disney, The Copyright Term Extension Act, And eldred V. Ashcroft
> ----
> Tuesday, Mar. 05, 2002
> Unless you earn your living as an intellectual property lawyer, you probably
> don't know that the Supreme Court has granted certiorari in Eldred v.
> Ashcroft, a case that will test the limits of Congress's power to extend the
> term of copyrights. But while copyright may not seem inherently compelling
> to non-specialists, the issues at stake in Eldred are vitally important to
> anyone who watches movies, listens to music, or reads books.
> If that includes you, read on.
> Mickey Mouse Goes to Washington
> Back in 1998, representatives of the Walt Disney Company came to Washington
> looking for help. Disney's copyright on Mickey Mouse, who made his screen
> debut in the 1928 cartoon short "Steamboat Willie," was due to expire in
> 2003, and Disney's rights to Pluto, Goofy and Donald Duck were to expire a
> few years later.
> Rather than allow Mickey and friends to enter the public domain, Disney and
> its friends - a group of Hollywood studios, music labels, and PACs
> representing content owners - told Congress that they wanted an extension
> bill passed.
> Prompted perhaps by the Disney group's lavish donations of campaign cash -
> more than $6.3 million in 1997-98, according to the nonprofit Center for
> Responsive Politics - Congress passed and President Clinton signed the Sonny
> Bono Copyright Term Extension Act.
> The CTEA extended the term of protection by 20 years for works copyrighted
> after January 1, 1923. Works copyrighted by individuals since 1978 got "life
> plus 70" rather than the existing "life plus 50". Works made by or for
> corporations (referred to as "works made for hire") got 95 years. Works
> copyrighted before 1978 were shielded for 95 years, regardless of how they
> were produced.
> In all, tens of thousands of works that had been poised to enter the public
> domain were maintained under private ownership until at least 2019.
> So far so good - as far as Disney and its friends were concerned, at least.
> In 1999, a group of plaintiffs led by Eric Eldred, whose Eldritch Press
> offers free on-line access to public domain works, filed a challenge to the
> statute. Eldred argues that the CTEA is unconstitutional on two grounds:
> first, because the statute exceeds Congress's power under the Copyright
> Clause; and, second, because the statute runs afoul of the First Amendment
> by substantially burdening speech without advancing any important
> governmental interest.
> Eldred lost before the district court and the D.C. Circuit. However, there
> is good reason to believe that he may yet prevail in the Supreme Court.
> The CTEA Exceeds Congress's Copyright Clause Power
> Most likely to succeed is Eldred's argument that the CTEA exceeds Congress's
> power under the Constitution's Copyright Clause (Article I, Section 8),
> which provides that
> 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 Right to their respective Writings and Discoveries.
> The Copyright Clause does two things. First, it empowers Congress to
> "promote the Progress of Science and useful Arts." Second, the text of the
> Copyright Clause limits the means that Congress may adopt in exercising the
> enumerated power. Congress is limited to granting rights to authors for
> "limited Times" - there can be no perpetual ownership of intellectual
> property.
> Clear thinking about the scope of Congress' Copyright Clause power requires
> careful separation of ends from means. The end - the enumerated power
> itself - is the promotion of progress, a fact the Supreme Court recognized
> in Graham v. John Deere Co., where it held that the "qualified authority"
> that the Copyright Clause grants "is limited to the promotion of advances in
> [science and] the 'useful arts'." In contrast, the copyright grant is not
> itself the enumerated power; it is merely the instrument through which
> progress may be realized.
> Seen in this light, the CTEA cannot survive. Because already existing works
> cannot be created anew, extension of subsisting copyrights does not "promote
> progress." Congress is not empowered merely to provide copyright holders
> with an additional boon - that is not "progress", but corporate welfare.
> This is the point on which the D.C. Circuit's opinion in Eldred should
> collapse. The lower court relied on prior circuit authority holding that the
> "promote . . . Progress" language does not restrict Congress's power. But
> that authority is palpably at odds with the Supreme Court's statement in
> Graham that the promotion of progress is the Copyright Clause power.
> The D.C. Circuit leaned also on a snippet in the CTEA's legislative history
> asserting that extending subsisting copyrights would encourage preservation
> of older works. But if Congress really wanted to encourage preservation, it
> could simply have offered the quid of an extended copyright in exchange for
> the quo of the copyright holder taking steps to preserve the copyrighted
> work - for example, by digitizing it and depositing it in an electronic
> archive (such as the non-profit Internet Archive. There is no such quid pro
> quo in the CTEA; rather, the statute is a giveaway to content owners, a quid
> pro nihilo.
> What About Future Copyrights?
> The argument set forth above deals only with the CTEA's grant of retroactive
> extensions. Eldred advances another, somewhat more doubtful, Copyright
> Clause argument that applies to future extensions. The argument is that
> Congress's repeated extensions (the CTEA is but the latest of 11 acts that
> have stretched the copyright term from 14 years to beyond 100 years) have
> rendered meaningless the stricture that exclusive rights may be granted only
> for "limited times."
> Eldred also advances a First Amendment challenge: both subsisting and future
> copyright extension, Eldred argues, substantially burden speech by
> foreclosing use of expression that would otherwise be available in the
> public domain, while advancing no important government interest. Lining the
> pockets of generous campaign contributors is not, Eldred maintains, a
> legitimate - let alone important - government interest.
> But although the CTEA may be struck down, Disney and its fellow media giants
> will inevitably be back in Congress pushing a substitute bill. Accordingly,
> it is worthwhile to consider briefly why copyright extension is bad policy,
> as well as bad law.
> The CTEA vs. The Public Domain
> When copyright expires, works are said to "fall into" the public domain,
> where they are usable without charge or need of authorization.
> The linguistic convention by which works "fall" when they enter the public
> domain is revealing: immanent in the phrase is the notion that a work is
> debased when no longer copyrighted. Perhaps it is this view that allows
> statutes that shrink the public domain to gain widespread support.
> But disparagement of the public domain is out of step with our
> constitutional history, with the economics of information markets, and with
> the real way in which art, literature, and music are produced in our
> culture.
> The Framers, Viewing Intellectual Property As Monopoly, Sought To Constrain
> It
> The Framers of our Constitution viewed inventions and expression not as
> "property", but as public goods to which exclusive rights may be granted
> purely as a means of incenting production. Thomas Jefferson expressed the
> then-dominant view with characteristic felicity in an 1813 letter:
> If nature has made any one thing less susceptible than all others of
> exclusive property, it is the action of the thinking power called an idea,
> which an individual may exclusively possess as long as he keeps it to
> himself; but the moment it is divulged, it forces itself into the possession
> of every one, and the receiver cannot dispossess himself of it. Its peculiar
> character, too, is that no one possesses the less, because every other
> possesses the whole of it. He who receives an idea from me, receives
> instruction himself without lessening mine; as he who lights his taper at
> mine, receives light without darkening me . . . .
> Inventions then cannot, in nature, be a subject of property. Society may
> give an exclusive right to the profits arising from them, as an
> encouragement to men to pursue ideas which may produce utility, but this may
> or may not be done, according to the will and convenience of the society,
> without claim or complaint from anybody.
> Correspondence between Jefferson and Madison regarding the drafting of the
> Copyright Clause evidences the same concern: both men classify copyrights
> and patents as "monopolies" sufferable only for limited periods, and only
> for the purpose of incenting invention.
> We Don't Know How Much Incentive Is Enough, And How Much Is Too Much
> Many policymakers (and even some intellectual policy mavens) view IP rights
> as a one-way street - they assume that the more IP rights we grant, and the
> broader and more durable we make those rights, the more society will benefit
> through increased production of books, music, movies, etc. The matter isn't
> even remotely that simple.
> First, the creation of exclusive rights involves a difficult trade-off
> between creation and dissemination. To the extent that a piece of expression
> enjoys a market value, its price is likely to be higher if it is subject to
> copyright, as the copyright owner will be entitled to limit or eliminate
> competition in the provision of that expression to others. At the margin
> between life plus 50 and life plus 70 - which is the margin in which the
> CTEA operates - the proponent of a longer term should be prepared to show
> that the social value of the additional incentive outweighs the harm caused
> by another two decades of supra-competitive pricing and consequent reduced
> dissemination of valuable copyrighted work.
> That is no mean task, not least because, as Professor (now Justice) Breyer
> observed in The Uneasy Case for Copyright: A Study of Copyright in Books,
> Photocopies, and Computer Programs, it is not clear that the promise of
> exclusive rights is a necessary prod to artistic creation:
> Authors in ancient times, as well as monks and scholars in the middle ages,
> wrote and were paid for their writings without copyright protection. Taken
> as a whole . . . the evidence now available suggests that, although we
> should hesitate to abolish copyright protection, we should equally hesitate
> to extend or strengthen it.
> What was true in ancient Greece and Rome and in medieval Florence is equally
> true today in Brooklyn's DUMBO - painters paint, and writers write, for
> reasons other than the size of the royalty check. But even if you assume
> that exclusive rights do make some difference, there was no attempt back in
> 1998 (nor has there been since) to justify the CTEA's 20-year extension. Of
> course, $6.3 million in campaign contributions can make up for quite severe
> deficiencies in the data.
> Artists Depend On A Rich Public Domain
> If we know little about the utility of longer copyright terms, there is
> abundant evidence regarding the vital importance to the progress of our
> culture of a robust stock of public domain works.
> Most artists, if pressed, will admit that the true mother of invention in
> the arts is not necessity, but theft. And this is true even for our greatest
> artists. Shakespeare's Romeo and Juliet (1591) was taken from Arthur
> Brooke's poem Romeus and Juliet (1562), and most of Shakespeare's historical
> plays would have infringed Holingshead's Chronicles of England (1573). For
> the third movement of the overture to Theodora, Handel drew on a harpsichord
> piece by Gottlieb Muffat (1690-1770). Passages of both works are compared at
> this very interesting web site.
> Cultural giants borrow, and so do corporate giants. Ironically, many of
> Disney's animated films are based on Nineteenth Century public domain works,
> including Snow White and the Seven Dwarfs, Cinderella, Pinocchio, The
> Hunchback of Notre Dame, Alice in Wonderland, and The Jungle Book (released
> exactly one year after Kipling's copyrights expired).
> Borrowing is ubiquitous, inevitable, and, most importantly, good. Contrary
> to the romantic notion that true genius inheres in creating something
> completely new, genius is often better described as opening up new meanings
> on well-trodden themes. Leonard Bernstein's reworking in West Side Story of
> Romeo and Juliet is a good example.
> None of this is intended as an argument that art should be "freed" from
> copyright. Our copyright regime is almost as old as our Constitution, and
> the creation of exclusive rights for limited periods is as sensible an
> approach now as it was at the Founding. What is needed is a more balanced
> approach to assessing the costs and benefits of the expanding scope and
> duration of IP rights, including copyright terms. Perhaps if campaign
> finance reform succeeds in helping good arguments compete against ready
> cash, copyright will right itself.
> -BB