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

Mike Masnick inverviews Bill Patry

There is an interesting interview with Bill Patry over at Techdirt. The former professor, now a corporate lawyer for Google, states that he began in copyright holding a position close to copyright maximalism, but his views began to evolve when, as a member of Congressional Committee staff, he began to reflect more deeply on copyright's public purposes.

1998 was a watershed year for me, with term extension and the anti-circumvention parts of the DMCA, which, in tandem represent the Rubicon for me, the point at which copyright became unmoored from its fundamental purposes.

Indeed, back in "the days of '98" I found then Professor Patry's 1997 journal article "The Failure of the American Copyright System: Protecting the Idle Rich" (72 Notre Dame Law Review 907, May 1997) to be helpful and inspiring as I was trying to develop and articulate my own copyright philosophy.

Mike asks, "For many of us who are concerned about what copyright law has become, what do you think is the most effective way to change things?" Patry's answer is

I would talk to Michael Geist in Canada. He is, to me, the single most effective advocate for the public voice in copyright debates. He is also respected by many Canadian government officials. We do not have anyone remotely like him. It's not enough to rail about things you don't like, or have a following of people who idolize you. And that, unfortunately, is the rut we are in here.

This is perhaps one of the most important statements in this important interview. American conditions are very different from Canadian, of course. What would it take to develop a voice on behalf of the public domain that politicians would hear? If it can't be done nationally at first, can it be done in one state, so that the Senators of at least one state, before they cast their votes on copyright matters, have the decency to consult those who speak for the public domain? If it can't be done in one state, can it be done in one congressional district, so that there is at least one Congressman who is willing at least to listen to those who would challenge the maximalists' lies?

Copyright scorecard--what have we gotten in exchange for giving up our freedom?

Over the past 50 years, the copyright monopolists have gotten almost everything they asked for in expansions of copyright:

1) The copyright act of 1976, which greatly expanded U.S. copyright's scope and duration both.
2) The elimination of the renewal requirement in the early 1990s.
3) A levy on all blank digital audio tapes.
4) An open-ended anti-bootlegging provision forbidding trade in unauthorized recordings of public musical and dramatic performances.
5) The Copyright Term Extension Act of 1998, which extended pre-1978 copyright from 75 years to a whopping 95 years from publication.
6) The Digital Millennium Copyright Act of 1998, which added additional barriers, in the form of its "device" and "circumvention" provisions, to the public's use of digital works.

For this great give-away to the robber-barons, the public has gotten very little in exchange:

1) The Audio Home Recording Act, with its extremely stingy wording. It does not state that the public has freedom to make home recordings, only that "no action shall be brought" against someone who does.
2) The narrow "homestyle exemption" to public performance licensing requirements.
3) As part of the Copyright Term Extension Act, some additional narrow leeway in the exemptions from public performance licensing requirements for small clubs and restaurants. The enemies of this provision, who were supporters of the term extension, have obtained, or at least rooted for, a World Trade Organization ruling against the expanded licensing exemptions, possibly as part of a back-door strategy for their repeal.
4) As part of the Digital Millennium Copyright Act, some safe-harbor provisions for internet service providers and a few technical provisions applying to software copyright.
5) Replacement of the state and common-law right of first publication (RFP) and anti-bootlegging right in phonograms with a uniform federal copyright in unpublished works. Note that there is less here than meets the eye. In particular, those who claim that this is a replacement of a "perpetual common-law copyright" with a limited copyright are not telling the truth. The common-law right was only a right of first publication, not a "common law copyright". And it was not "perpetual", merely indefinite.

Nor can it be said that we have gotten more creative works in exchange for what we have sacrificed. The duration of copyright was increased by 27% by the Copyright Term Extension Act. We should, then, have gotten 27% more new music, films, and books entirely due to the term extension alone. If the major labels and major film studios are producing a quarter again more than they were in 1997, it is not obvious. Even if they are producing more, it is not self-evident that the increase in production is due to the term extension, and the term extension alone.

Lord Kames's opinion in the case of Hinton v. Donaldson (1773)

I have finally acquired the full text of Lord Kames's opinion in the important Scots Session case of Hinton v. Donaldson (Scots Court of Session, 1773). Previously I have had only extracts available to me.

This was the Scottish counterpart to the well-known English case of Donaldson v. Beckett (House of Lords, 1774) and the American case of Wheaton v. Peters (33 U.S. 591, 1834), all of which held that copyright is entirely a creature of statute. Hinton v. Donaldson was the first of these three important cases to be decided.

The first edition of Thomas Stackhouse's New History of the Holy Bible had been published folio in 1737, though it may have been published in a smaller format earlier. The second edition was published in 1742. Since Stackhouse died in 1752, the copyright in the first edition lasted for 28 years, expiring no later than 1765. (The copyright in the matter new to the second edition would have expired after 14 years, in 1756. Since Stackhouse was no longer alive at the end of this term, under the provisions of the Statute of Anne, the copyright was not renewed. But the matter in the second edition that had been in the first edition was still under the original copyright.) After the expiration of the copyright, Alexander Donaldson, of Edinburgh, brought out a new edition of the work. Hinton filed suit under the theory of "common-law copyright", that is, that copyrights were perpetual under the common law, the Statute of Queen Anne merely reinforcing them. The case was decided by the Scots Court of Session which held 11-1 for Donaldson, rejecting the theory of common-law copyright. The judges delivered their opinions on July 27th, 1773, and judgement was formally entered on July 28.

Voting for Hinton was Lord Monboddo.
Voting for Donaldson were Lord Justice Clerk, Lord Alva, Lord Auchinleck, Lord Coalston, Lord Elliock, Lord Gardenston, Lord Hailes, Lord Kames, Lord Kennet, Lord Pitfour, and Lord Stonefield.

Hinton's complaint, the Judges' opinions, and the court order were published by James Boswell (who was one of Donaldson's counsel) in early 1774 under the title The Decision of the Court of Session upon the Question of Literary Property in the Cause of John Hinton of London, Bookseller, Pursuer; against Alexander Donaldson and John Wood, Booksellers in Edinburgh, and James Meurose, Bookseller in Kilmarnock, Defenders. This pamphlet may have been available to the English Lords at the time they were hearing the case of Donaldson v. Beckett.

Though in one place Kames expresses what may be deemed an aristocratic disdain of those who write for money, this does not impeach even the part of his opinion in which it occurs, though those who hate the public domain might wish to claim that it does. Kames plausibly holds that if every book ever written were under copyright, the market for books would contract and there would be less work for writers.

Kames's "Goths and Vandals" remark may be said to exaggerate the deadweight losses that copyright imposes on the book trade. But that these deadweight losses exist is beyond doubt. Kames rightly sees that a competitive market for editions of a book is better than a monopolistic one.

Lord Kames's opinion follows here.
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LORD KAMES. What may be the law of England, with respect to the question at present under deliberation, I pretend not to know. Nor is it necessary that I should know; because an alleged trespass committed in Scotland against the pursuer, and prosecuted for damages in the court of Session, must be determined by the law of Scotland.

I know no foundation for damages, but a breach of contract, which is not pretended in this case; or an injury to one's person or character, which is as little pretended; or a hurt to his property; and this last is the ground upon which damages are claimed.

Let us enquire into the nature of the property here insisted on. The meaning of property, in the laws of all nations, is a right to some corporeal subject, that can be possessed, that can be transferred from hand to hand, that goes to heirs, that may be stolen or robbed, and that may be demanded by a real action, termed rei vindicatio. The pursuer's right is not of that nature. When a man composes a book, the manuscript is his property: if it be stolen from him, he may demand it by a rei vindicatio: it may be gifted by him, or sold. But by such gift, or sale, the property is transferred to the purchaser: he has now the same right over it that the composer had originally: he may suppress it, or he may publish it to the world.

What is then the nature of the pursuer's right? He does not pretend to say, that it is a right to any corpus, to any subject that can be possessed, or that can be stolen from him. Ergo, it is not property. Taking it in all views, no more can be made of it than to be a privilege or monopoly, which entitles the claimant to the commerce of a certain book, and excludes all others from making money by it. The important question then is, from what source is this monopoly derived, a monopoly that endures for ever, and is effectual against all the world? The act of Queen Anne bestows this monopoly upon authors for a limited time upon certain conditions. But our legislature, far from acknowledging a perpetual monopoly at common law, declares that it shall last no longer than a limited time.

But to follow out the common law. The composer of a valuable book has great merit with respect to the public: his proper reward is approbation and praise, and he seldom fails of that reward. But what is it that entitles him to a pecuniary reward? If he be entitled, the composer of a picture, of a machine, and the inventor of every useful art, is equally entitled. Such a monopoly, so far from being founded on common law, is contradictory to the first principles of society. Why was man made a social being, but to benefit by society, and to partake of all the improvements of society in its progress toward perfection? At the same time, he was made an imitative being, in order to follow what he sees done by others. But to bestow on inventors the monopoly of their productions, would in effect counteract the designs of Providence, in making man a social and imitative being: it would be a miserable cramp upon improvements, and prevent the general use of them. Consider the plough, the loom, the spinning wheel. Would it not sound oddly, that it would be rank injustice for any man to employ these useful machines, without consent of the original inventors and those deriving right from them? At that rate, it would be in the power of the inventors to deprive mankind both of food and raiment. The gelding of cattle for food, was not known at the siege of Troy. Was the inventor entitled to a monopoly so as to bar others from gelding their cattle? What shall be said of the art of printing? If the monopoly of this useful art was to be perpetual, it would be a sad case for learned men, and for the interest of learning in general: it would enhance the price of books far beyond the reach of ordinary readers. Such a monopoly would raise a fund sufficient to purchase a great kingdom. The works alone of Shakespeare, or of Milton, would be a vast estate. Te art of making salt water fresh is a very late invention. Was it ever dreamed to be a transgression against property, to use that art without consent of the inventor?

I observe, in the next place, that this claim, far from being founded on property, is inconsistent with it. The privilege an author has by statute, is known to all the world. But I purchase a book not entered in Stationer's hall; does it not become my property? I see a curious machine, the fire engine, for example. I carry it away in my memory, and construct another by it. Is not that machine, the work of my own hand, my property? I buy a curious picture, is there any thing to bar me from giving copies without end? It is a rule in all laws, that the commerce of moveables ought to be free; and yet, according to the pursuer's doctrine, the property of moveables may be subjected to endless limitations and restrictions that hitherto have not been thought of, and would render the commerce of moveables extremely hazardous. At any rate, the author of avery wise or witty saying, uttered even in conversation, has a monopoly of it; and no man is at liberty to repeat it.

Lastly, I shall consider a perpetual monopoly in a commercial view. The act of Queen Anne is contrived with great judgement, not only for the benefit of authors, but for the benefit of learning in general. It excites men of genius to exert their talents for composition; and it multiplies books both of instruction and amusement. And when, upon expiration of the monopoly, the commerce of these books is laid open to all, their cheapness, from a concurrence of many editors, is singularly beneficial to the public. Attend, on the other hand, to the consequences of a perpetual monopoly. Like all other monopolies, it will unavoidably raise the price of good books beyond the reach of ordinary readers. They will be sold like so many valuable pictures. The sale will be confined to a few learned men who have money to spare, and to a few rich men who buy out of vanity as they buy a diamond or a fine coat. The commerce of books will be in a worse state than before printing was invented: at that time, manuscript copies might be multiplied at pleasure; but even manuscript copies would be unlawful if there were a perpetual monopoly. Fashions at the same time, are variable; and books, even the most splendid, would wear out of fashion with men of opulence, and be despised as antiquated furniture. The commerce of books would of course be at an end; for even with respect to men of taste, their number is so small, as of themselves not to afford encouragement for the most frugal edition. Thus booksellers, by grasping too much, would lose their trade altogether; and men of genius would be quite discouraged from writing, as no price can be afforded for an unfashionable commodity. In a word, I have no difficulty to maintain that a perpetual monopoly of books would prove more destructive to learning, and even to authors, than a second irruption of Goths and Vandals. And hence with assurance I infer, that a perpetual monopoly is not a branch of the common law or of the law of nature. God planted that law in our hearts for the good of society; and it is too wisely contrived to be in any case productive of mischief.

Our booksellers, it is true, aiming at present profit, may not think themselves much concerned about futurity. But it belongs to judges to look forward; and it deserves to be duly pondered whether the interest of literature in general ought to be sacrificed to the pecuniary interest of a few individuals. The greatest profit to them ought to be rejected, unless the monopoly be founded in common law beyond all objection: the most sanguine partisan of the booksellers will not pretend this to be the case. At the same time, it will be founded upon the strictest examination, that the profit of such a monopoly would not rise much above what is afforded by the statute. There are not many books that have so long a run as fourteen years; and the success of books upon the first publication is so uncertain, that a bookseller will give very little more for a perpetuity, than for the temporary privilege bestowed by the statute. This was foreseen by the legislature; and the privilege was wisely confined to fourteen years; a sufficient encouragement to men of genius without hurting the public interest. The best authors write for fame: the more diffused their works are, the more joy they have. The monopoly then is useful only to those who write for money or for bread, who are not always of the most dignified sort. Such writers will gain very little by the monopoly; and whatever they may gain a present, the profits will not be of long endurance; a monopoly would put a final end to the commerce of books in a few generations. And therefore, I am for dismissing this process as contrary to law, as ruinous to the public interest, and as prohibited by the statute.