There's a lot of silliness going around in technology law these days. So much, in fact, that responding individually to every logical fallacy or faulty analogy would be a recipe for an early ulcer. But every so often, something comes in over the transom that's so profoundly wrongheaded that it can't be left alone. Today, while poring through the last few months of articles in tech law journals, I came across a case comment in need of a thorough deconstruction.
Our text today is Shalisha Francis, iBRIEF: Eldred v. Ashcroft: How Artists and Creators Finally Got Their Due, 2003 Duke L. & Tech. Rev. 0014, a chipper little student note advancing the thesis that Eldred v. Ashcroft was rightly decided. Now, this is not, by itself, an absurd statement. The seven justices who decided Eldred certainly think it was rightly decided. Rather, what distinguishes this piece is its dedication to the proposition that the public domain is openly dangerous. Since the purpose of articles is to spur discussion on the issues they raise, let the discussion commence . . .
A notable and important copyright battle occurred in Eldred v. Ashcroft, a case that was just recently decided by the Supreme Court. The case was brought by Eric Eldred, the owner of a public Web library, in direct retaliation for Congress’ 1998 decision to enact the Sonny Bono Copyright Term Extension Act (CTEA).
Id. at 1. One of the things they teach you in law school is to shade the facts to fit your position.Francis was obviously paying attention, because she's already setting us up to think of Eric Eldred as a Bad Bad Man. Congress did something he didn't like, so he "retaliated" with a lawsuit.
This paper will explore the myriad reasons why the Supreme Court showed great insight in deciding to weigh in on the side of authors, artists, & creators. The 7-2 decision was a sound ruling for reasons in addition to Justice Ginsburg’s argument that “the [CTEA’s] protection . . . does not raise the free speech concerns present when government compels or burdens the communication of particular facts or ideas.”
Id. at 1. I believe the term for this kind of argument is "conclusory." There are "reasons in addition," we are told, but we aren't given any of them. Instead, we are treated to . . .
It was also an accurate ruling because, under either a natural rights or property theory, copyright deserves infinite protection.
Id. at 1-2.
. . .
. . .
. . .
. . .
Uncle Charlie: GOOD MORNING, boys and girls! I'm afraid our friend James had a little . . . accident. So sad, really. One shouldn't read articles about copyright if one isn't prepared to handle the contents. Poor James. And he was trying so hard to take this article seriously. Tsk tsk. It's a good thing you've got me, your friendly Uncle Charlie, to go through it with you. Are you ready to have some fun?
. . .
I SAID, ARE YOU READY TO HAVE SOME FUN?
That's better. Now let's give a big LawMeme hello to Cousin Susie and her brother Pete. They're going to help me explain some of the more difficult passages.
Susie: My name ith Thuthie. I like ponieth. And flowerth. When I grow up, I'm going to be a printheth, and I'm going to have my own pony, and we'll take bubble bathth together and thing thongth all day.
Pete: This better be good. I could be playing CounterStrike right now.
Uncle Charlie: That's great, kid. Now where were we? That's right:
It was also an accurate ruling because, under either a natural rights or property theory, copyright deserves infinite protection.
Id. at 1-2.
Uncle Charlie: Infinite. Got that?
Pete: You mean, we should spend all our tax money hunting down parodists with attack helicopters and night-vision scopes? And a copyright holder should be able to kill infringers and sell their children into slavery?
Uncle Charlie: More or less.
Pete: Whoa. Cool.
When the Copyright Term Extension Act was initially being considered for enactment, the Senate Judiciary committee considered a variety of substantive and practical reasons as to why the extension of the act was not only beneficial, but also necessary. Music industry representatives had a unique interest in the CTEA and gave the majority of the testimony offered in support of its enactment. Their interest stemmed from the arguments that songwriters are entitled to the copyright extension to protect their creative property.
Id. at 2.
Pete: Gee, Uncle Charlie, aren't you glad that the music industry representatives were so selfless to do all that hard work on behalf of other copyright holders? And we know that music industry executives always have the interests of songwriters in mind.
Uncle Charlie: Shaddap, kid.
The fact that artists and songwriters live significantly longer than they did when Congress last substantially altered the copyright term was important to the congressional decision to adopt the extension. Life of the author plus seventy years is now necessary to provide the same level and extent of protection previously given under the former extension period, which has been rendered inadequate with the increase in life expectancy.
Id. at 2.
Uncle Charlie: See, it used to be that authors only lived until thirty, forty, years after their death, max. But these days, with cryogenics and the Atkins diet, some people are living their lives plus fifty, even sixty years. The way Bob Hope is going, he may hit life plus eighty.
Moreover, the knowledge that the products of their creative labor would support generations to come would foster their desire to undertake diligent creative endeavors in an effort to ensure the security of the future.
Id. at 3.
Uncle Charlie: If you're against Sonny Bono, you're against security, and only terrorists are against security.
To be a Nobel peace prizewinner your written work must be issued in print or published in another form and to be honored with a Pulitzer accolade your work must be done, published, or performed during the previous year. Therefore these works still retain their public value and this value isn’t diminished by the fact that the works won’t enter the public domain in the near future.
Id. at 3-4.
Uncle Charlie: Remember, if your book doesn't win a Pulitzer, it's WORTHLESS!
Susie: I'm confuthed. What'th a Pulither?
Uncle Charlie: I'm glad you asked, Susie. It's a prize for the best book written each year.
Susie: Tho the perthon who wrote the funnest book geth a prize?
Uncle Charlie: You got it, kiddo. So the point is that that book is copyrighted, so even though it's not in the public domain, it's still the best book.
Susie: Ith it a book about ponieth?
Uncle Charlie: It could be.
Susie: What if there weren't any bookth about ponieth? Would they thtill give a prithe?
Uncle Charlie: Sure. Maybe they'd give it to a book about flowers.
Susie: Would they thtill give a prithe if there weren't any copyrighted bookth?
Uncle Charlie: Ummm . . . hey, Pete, you've been awfully quiet. Got anything to add?
Pete: Yeah. That Jimmy Carter sure is a great poet. And those United Nations reports last year. Mmm, good reading.
Uncle Charlie: Shaddup, kid.
Not only does the public domain category not promote progress, it is also a contributor to a significant decline in the arts.
Id. at 4.
Uncle Charlie: Public domain BAAAAAD! Public domain BAAAAAAD! Napster BAAAAAD!
Pete: Damn public domain. It's the public domain's fault that MTV sucks so hard.
A good example of the possible decline that could occur is seen through analyzing what happened to Frank Capra’s classic picture It’s a Wonderful Life. The film had lapsed into the public domain for a short while in the 60’s when the copyright owner failed to apply for a renewal of the copyright. The film became commonplace on every channel, regardless of bad editing, quality, or copying of the film.
Id. at 4.
Uncle Charlie: See what we're talking about? Every time a work is copyrighted, an angel gets its wings.
Pete: Yeah. I hate that movie. You can't see anything else on TV around Christmas. Without the public domain, it could have been kept locked up where it belongs.
Moreover, there seems to be no guarantee that public domain works are easier to obtain financially or more available. The opposite seems to be equally provable, because it has been demonstrated that the publishers are more reluctant to publish works that are in the public domain.
Id. at 5.
Susie: Unca Charlie, what'th thith thing called the Inertet Arcade?
Uncle Charlie: Susie, I told you to stop playing with your imaginary friends. Pete! I don't want you reading any more Shakespeare. According to economics, modern editions don't exist, and we can't afford a time machine.
Pete: Cool. No more English homework!
The public domain actually discourages progress in the arts. Why should you create something new if you can just work off of something that someone has already done?
Id. at 5.
Uncle Charlie: If it's not new, it's no good. New models every year is good enough for Detroit; it ought to be good enough for artists.
Pete: You know, I bet artists would work harder if we tortured them, too.
Considering the public domain’s inadequacy as an instrument in which to measure the value of copyright, other ways in which to measure copyright, like a natural rights or property theory, could well be the superior view to adapt.
Id. at 5.
Uncle Charlie: Here's a helpful hint: don't think about the circularity of measuring the value copyright in terms ofthe public domain. It'll make your head hurt. The public domain is full of fnords. The fnords can't see you if you can't see them. Don't see the fnords. Don't see the public domain.
Pete: . . . and then the drunk says, "I'm looking under the lamppost because that's where the light is."
Not the least of which is that the inherent nature of copyright – control over a product of one’s own imagination and creativity - deserves the most protection possible.
Id. at 5.
Uncle Charlie: The most! The most! The most! Nothing must interfere with copyright! Nothing! Never compromise, never retreat!
Susie: You're thcaring me, Unca Charlie.
Advocates of the CTEA point to the injustice caused by releasing into the public domain an individual’s own work and creation, the results of his own labor, as a significant factor delineating why the extension should occur.
Id. at 5
Uncle Charlie: Injustice. It's injustice, I tell you. We can't keep it out of the public domain cesspit forever, but we can at least delay the injustice.
Defining copyrights as “valuable resource[s] to be passed on to their children and through them into the succeeding generation.” Quincy Jones and Bob Dylan in particular detailed the unnaturalness of the fact that their works and creative efforts, their legacies, would lapse into the public domain in the future, unlike land that if it had been cultivated and worked with the same dedication and diligence would have continued to pass down from generation to generation.
Id. at 6
Susie: If you plant theeth in the groud, you can flowerth. If you plant theedth in a book, you can grow a pony. I'm going to get thome copyrightth and give them to my daughterth tho they can grow their own ponieth.
Pete: Hey, Bob! There's some Japanese guy who wants a word with you about some "valuable resources" of his.
Uncle Charlie: Heroic copyright warriors need strong protections so they can found lasting dynasties. There's no family heirloom more important than great-grandfather's copyrights.
Shana Alexander, the daughter and heir of songwriter Milton Ager, stated that . . .in her family “intellectual property is the only property.”
Id. at 6
Uncle Charlie: Growing up, my parents couldn't always give us all the things that some of the spoiled rich kids had, like food and clothing, but it was a point of pride with them that we children never had to go without intellectual property.
The same justification could be used to say that when taking away the copyright owner’s property for public use, adequate compensation should be given. That adequate compensation shouldn’t be the least amount of money it takes to recoup the losses, but instead the maximum benefit allowed.
Id. at 6-7.
Uncle Charlie: I know, sure, some of you are wondering why "property" that exists purely because of a government grant shouldn't be subject to government revocation, -- yes, Susie?"
Susie: Unca Charlie, why thould property that ekthithtththt, property that ekthitkith, that thikthikthith--
Uncle Charlie: Let me put it this way, Susie. If if I gave you a pony, and then seventy years afer you died I came and took the pony back, that wouldn't be very nice, would it?
Pete: How long do ponies live, now that you mention it?
Susie: Can we go get the pony now? Where ith it? I want to name him Buttercup.
The CTEA simply asks for an extended period of time, not an infinite copyright term. As has been demonstrated, the proposed time period is not unusual. The United States would be in league with European countries’ time period and would save itself trade dollars.
Id. at 7
Pete: In league with Europe? That doesn't sound good. I don't want to be in league with those French pansies.
Uncle Charlie: Save up your trade dollars, kids, and maybe some day you can buy some international intellectual property.
The same may be done with copyright, for the introduction of dilution could be seen as truly “nullify[ing] the balance struck between copyright’s broad protection and limited duration of exclusivity and trademark’s narrow protection but unlimited duration of protection.” Intellectual property boundaries are constantly being expanded and if trademark can be, then copyright should at least be allowed that opportunity as well.
Id. at 8
Susie: It'th not fair that trademark can come out to play but copyright can't. Poor copyright.
As demonstrated in Campbell v. Acuff-Rose Music, Inc., fair use protects the rights of authors and allows transformative works to be created free of litigation.
Id. at 8.
Uncle Charlie: Never forget, kids: the fair use lawsuits show us that with fair use, there are no lawsuits.
Moreover, the fair use exception has helped “gut the myth” that new creation can only be possible by allowing a work to fall into the public domain.
Id. at 8.
Pete: But I thought that creating works based on old works was bad. Aren't all these arguments against the public domain arguments against fair use, too?
Uncle Charlie: Damn straight, kid. I'm afraid Ms. Francis is going all soft on us.
Susie: And the D.M.Thee.A. cutth into fair uthe, tho it'th all good.
Those who supported the demise of the CTEA claim that the law created a monopoly of ideas.59 But copyright explicitly provides no protection for ideas, only expression, and even this expression protection is further limited by the fair use provision of the Copyright Act.
Id. at 9.
Uncle Charlie: Hey! What are you doing back here?
James Grimmelmann: Everything else here may just be harmless absurdity, but this particular quotation is openly, provably, abusively wrong. Footnote 59, the citation here, reads "Knudsen, supra note 52." Note 52, in turn, reads "See Kristen Knudsen, The Protection of James Bond and Other Fictional Characters Under the Federal Trademark Dilution Act, 2 Vand. J. Ent. L. & Prac. 13, 20 (2000)."
Uncle Charlie (whispering): Pete. See if you can get around behind him.
James Grimmelmann: But the Knudsen article says nothing of the sort. It's a trademark article, as its title suggests, and in fact, fairly strongly in favor of increased trademark protections. True, Knudsen does discuss the CTEA, but from her perspective, that of protecting characters, she finds copyright law in general largely irrelevant. Indeed, the only time the word "idea" appears in the entire article is in her discussion of the idea/expression dichotomy itself. Francis is attacking other authors for saying something they never said. Law review source-cites are infamously nitpicky, but this is precisely the kind of misrepresentation that the editorial process is design--
Uncle Charlie: Now! Get him!
Susie: Take that, you doody-head!
Pete: 1 0WNZ J00!!
Uncle Charlie: There. We'll have no more of those unfortunate interruptions. Now, shall we finish up?
A decision in favor of Eldred would have allowed him and others the opportunity to profit considerably on myriad older copyrighted works without having to pay anything for the exploitation, while a decision in favor of copyright holders would mean possibly billions more in royalties in the future.
Id. at 9.
Uncle Charlie: Mmm. Exploitation. Couldn't have put it better myself. And who can argue with billions of dollars in royalties?
Pete: Not Congress, that's for sure.
Uncle Charlie: Shaddup, kid.
In effect, the Court realized that to remove this extension from Congressional authority and to find it disfavorable to the propagation of creativity, innovation, and the progress of arts and science in this country, would be to relegate the laws of intellectual property to towering monuments of mediocrity.
Id. at 9.
Uncle Charlie: "Towering monuments of mediocrity." That's copyright, all right. Makes me proud to be an American.
Pete: I'm going to go promote the progress of some rocket-propelled grenades.
Susie: Can I have my pony now? Can I? Can I? Can I?
Uncle Charlie: Go ask your aunt Mary.