Reprint: My post of January 18th, 2003 in response to the decision in Eldred v. Ashcroft.

The following was first posted on January 18th, 2003, in response to the Supreme Court's opinion in the case of Eldred v. Ashcroft.

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January 18, 2003 (Gregorian Lunar Almanac 2003, 1st Moon, 15th day)

Court to  Public:  "We lied, suckers!"


In its ruling in Eldred v. Ashcroft, the U.S. Supreme Court has said, in effect: "We lied, suckers.  Almost everything we ever said about the public purposes of copyright was just hot air."
I am amazed that the court showed disregard, not only of its own copyright jurisprudence, but of its own institutional self-interest.  The court could easily have remanded the case for a trial on the question of whether the Bono Act promotes progress more than it places monopoly burdens on the public (copyright clause balancing) or on the question of whether it promotes a significant government interest more than it burdens speech (first amendment balancing).  The lower courts would have gone through the motions of making this evaluation and upheld the Act.  Eldred would have appealed again, the Supreme Court would have denied certiorari the second time, and that would have been the end of Eldred's case.   But the court would have been more consistent with its existing copyright jurisprudence, and at the same time would more strongly have upheld their prerogatives of constitutional review of Congress's exercise of its limited powers.  It will be hard for future courts to strike down any future extensions of the copyright term without repudiating its decision in Eldred's case.

The Eldred opinion's ignorance, or cynical dismissal, of its earlier jurisprudence is made especially clear in footnote 18:

Justice Stevens' characterization of reward to the author as "a secondary consideration" of copyright law...understates the relationship between such rewards and the "Progresss of Science".  As we have explained, [t]he economic philosophy behind the [Copyright [C]lause...is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventers." Mazer v. Stein, 347 U.S. 201, 219 (1954).  Accordingly, "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge...The profit motive is the engine that ensures the progress of science."  American Geophysical Union v. Texaco Inc. 802 F. Supp.  1, 27 (SDNY 1992), aff'd, 60 F. 3d 913 (CA2 1994).  Rewarding authors for their creative labor and "promot[ing]...Progress" are thus complementary; as James Madison observed, in copyright "[t]he public good fully coincides...with the claims of individuals."  The Federalist No. 43...Justice Breyer's assertion that "copyright statutes must serve public, not private ends"...similarly misses the mark.  The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with incentive to pursue private ones.

In Madison's day it might have been possible to assert that the public good "fully coincid[ed] with the claims of individuals", because the scope of copyright did not then include derivative works; did not then include public displays and performances; and only lasted for 28 years at most.  Everything else Madison wrote about copyrights and patents shows that he is fully aware that copyright places burdens on the public, and that these burdens can, if they become heavy enough, destroy the coincidence between "the public good" and "the claims of individuals."  Justice Stevens's and Justice Breyer's statements are entirely consistent with the cases they site.  It is the court majority that "misses the mark", disregarding the clear spirit of the court's earlier copyright dicta and cynically citing Madison in a tendentious way.  Justice Stevens does not "understate the relationship between [the] rewards [conferred in the copyright monopoly] and the 'Progress of Science'".  It is the court majority that understates --indeed, all but ignores -- the relationship between the public domain and the "Progress of Science."

The effect of the Eldred ruling is that the Congress need never rationally weigh the burdens copyright places on the public.  The Constitution clearly presupposes that the expiration of copyright--the public domain, as we now call it--is the most important constitutional means of keeping copyright true to its purpose of promoting progress.  But though the Constitution gives the public domain pride of place in its text through the words "promote progress", "for authors", and "limited times", the court has stated that the 105th Congress's cynical dismissal of the public domain as worthless is not subject to constitutional review.

The court's rubber-stamp review of the Copyright Term Extension Act is the weakest standard of judical review ever proposed.  It is weaker even than the generous standard stated in McCullogh v. Maryland (17 U.S. 316), where Mr. Chief Justice Marshall declared that an act of Congress must be "plainly adapted" to their constitutional ends and "consist with the spirit" of the Constitution.  Courts are understandably reluctant to invalidate acts of Congrss for failing to comply with the spirit of the constitution.  But if any act of Congress fails to "consist with the spirit" of the article I power under which it is passed, it is the Bono Act.

The court then backpedals with the following bit of Pilatesque hand-washing:

The wisdom of Congress' action...is not within our province to second guess.

But as Mr. Justice Breyer pointed out in different words in his dissent, a want of reason in the legislative judgement is grounds for finding an act of Congress invalid.  An act that is unwise is by definition an act of folly; and folly must at some point rise to the level of the constitutionally unreasonable.  A fair court would at least have considered seriously the burdens that the CTEA places on the public.  One of the reasons I find the Eldred ruling is defective is that it scarcely even to acknowledges the existence of these burdens, much less their great weight.

In praise of creative freedom 5--Steal this country dance

It is sometimes said that copyright is an incentive to creation, meaning that the possibility of reward to the author creates an incentive to the author to produce and circulate his (for "author" is a grammatically masculine word, just as "artist" is grammatically feminine) work. This may be true, but it is not the whole story. In order to demonstrate why I think this copyright-as-incentive notion is incomplete, I will describe how I recently created an arrangement of an 18th-century English country dance, Nottingham Castle.

I start with the melody. This melody was first published in the 11th edition of The Dancing Master in 1702, and it is now publici juris. Here is the version of the melody from the 12th edition of 1703. Because the melody is publici juris, anyone may copy it, from here or from anywhere else it occurs:
Next I add backing chords. I use basic chords, I, IV, V and their relative minors (since this is a major melody). My chord-underlay is so simple that it might not even be copyrightable. The United States Court of Appeals for the Second Circuit has held (upholding the Federal District Court for the Southern District of New York) that "cocktail pianist variations" on a musical work do not rise to the level of originality to qualify the variations as a derivative work of the underlying work. (Woods v. Bourne,60 F. 3d 978 (2d Cir. 1995)). The Court of Appeals's opinion in Woods v. Bourne, though, refers to minor variations in the harmonization of an already-harmonized work, so it might not apply to harmonization of a melody ab initio. So I regard it as possible, but not certain, that a simple backing-chord underlay for a publici juris melody is sub-copyrighable under U.S. law.

After adding the backing-chords, I devise a counter-melody consistent with them, though in the course of development I might modify the backing-chords to match the countermelody, rather than writing the countermelody strictly to the chords. The counter-melody is probably copyrightable, since (if it follows the rules of counterpoint) it is an independent melody, which if original (which in this case it is, since I wrote it) would be copyrightable on its own.

Next, if I wish, I can attempt to market my arrangement. If I do so in a way that relies on the exclusive rights provided by copyright, then copyright can be said to have "promoted the progress of science" by encouraging me to bring my setting of the dance-tune to market. What seems to be far less appreciated, but what is far more important, is that even if I do not choose to exploit my work commercially, the copyright law has still promoted the progress of science in this case. It did this by placing the underlying melody, Nottingham Castle, in the public domain where I could draw on it freely. So copyrights promote progress both by existing, and also (and perhaps even more than by their existence) by expiring. The holes (as Professor Boyle so memorably put it) are as important as the cheese.

Now suppose I wish to attempt a somewhat different project. Here is another delightful English country dance-tune called Black and Gray:



I think I could take this melody and splice into it some musical motifs from John Lennon and Paul McCartney's "Elenor Rigby" to create a new composite dance-tune. But though I may have sufficient musical ability to do this, I haven't the right. This is because the air "Elenor Rigby" is copyrighted, and under my country's copyright laws, the copyright holder's bundle of rights includes the right "to prepare derivative works based upon the copyrighted work." Note that the derivation right is not a right "to prepare derivative works for public performance, dissemination, or display." It is an unqualified right "to prepare" derivative works. Any creation of a derivation of a copyrighted work, however private, is prima facie an infringement of the copyright. Working strictly in private might count as fair use. Maybe. Or maybe construing the right "to prepare" derivative works to reach even to purely private acts would be considered unreasonable statutory construction. Maybe. But even if I don't infringe by preparing the new melody privately, I will certainly infringe if I try to post it to the web or circulate it in sheet music. Here, by contrast to the case of my setting of Nottingham Castle, is a case in which copyright law has prevented the progress of science by including a very broad derivation-right in the bundle of rights granted to the rightsholder.

The U.S. copyright law did not always include a derivation-right. The first U.S. federal copyright statute of 1790 applied only to "maps, charts, and books" as they were published. A competing publisher could not enter the primary market for the book until the copyright expired. But derivations, such as translations, abridgements, and musical arrangements, were free, and the public continued to have this freedom for much of the 19th century.

In theory, (as I noted some years ago here) the public has consented, through its representatives, to derogate to copyright holders the freedom it previously had to make derivations of copyrighted works. In theory we did this because the copyright would become more robust and more potentially valuable with this addition, giving an incentive for the production of still more expression, thereby giving us in the end an even larger public domain than we would otherwise have had. In theory, that is, we voluntarily forego our full rights in more recent works in order to have more works than otherwise to exercise our full rights in after a "limited" time.

In practice, as I noted back in 2005, "the public's representatives have not represented the public so much as private interests". We cannot be said to have gotten a good bargain from U.S. copyright law in its present form. The great breadth of copyright's present scope, whatever might be said on its behalf otherwise, is made intolerable by copyright's extremely long duration. The first step toward making the bargain better for the public would be to reduce the duration of copyright from 70 years after the author's death back down to 50 years after the author's death. This would still be too long, especially for such things as computer software. But we should refuse to allow any further expansions to copyright's scope, however arguably reasonable they might otherwise be, until we first get this concession on its duration.

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Prior installments in this series:
In praise of creative freedom 4--"He took a straight walk up to Washington city"
In praise of creative freedom 3--"Joined to the heavenly company"
In praise of creative freedom 2--"That song of the Gypsy Davy..."
In praise of creative freedom