Big Media won another battle in the escalating war over copyright on January 15, when the Supreme Court upheld a 1998 law extending copyright terms by twenty years, to life plus seventy years for individuals and to ninety-five years for corporations. The 7-to-2 ruling in Eldred v. Ashcroft is a blow to consumer rights and free speech, and sets awful precedents.
The 1998 Copyright Term Extension Act applied not just to new works but to existing copyrights. Thus, a spate of famous early-twentieth-century works that would have entered the public domain--from Gershwin songs to Frost poems to early Mickey Mouse cartoons--were locked up for another generation.
To "promote the progress" of science and art, the Constitution rewards writers and artists with the exclusive right to control and profit from their creations--but only "for limited times," after which works fall into the public domain and are free for all to use. Extending terms of existing copyrights eviscerates this deal, granting a windfall to corporate copyright holders and heirs of famous artists in exchange for nothing, since the creators are mostly dead.
This "gratuitous transfer of wealth," as Justice John Paul Stevens described it in his dissent, might have gone unchallenged had digital activists not already been confronting efforts by media companies to expand their control of valuable content--ostensibly in response to the threat of digital piracy. Professor Lawrence Lessig of Stanford Law School sued on behalf of a group of small publishers, arguing that the new law violates the First Amendment (whether or not they're successful, copyright owners' threats can have a chilling effect on speech, e.g., when the Margaret Mitchell estate sued to stop a parody of Gone With the Wind) and the Constitution's limits on copyright--limits made newly valuable because the Internet allows the public to enjoy an endless number of formerly copyrighted works.
The Supremes last squarely weighed copyright against free expression in 1985, in The Nation's copyright case, which asked whether this magazine's unauthorized publication of a few paragraphs of Gerald Ford's unpublished memoirs was permissible under copyright's "fair use" exception. Though it argued persuasively that the publication was newsworthy and did not affect the commercial viability of Ford's memoir, The Nation lost.
Eldred gave the Court an opportunity to right the balance between copyright and free speech and to reaffirm that copyright must serve the public interest. The Court failed on both counts. Though the majority opinion by Justice Ruth Bader Ginsburg conceded that Congress's retroactive extension might be "very bad policy," it found solace in the fact that Congress had made such extensions before. (By such logic, segregation would still be the law of the land.) More important for the ongoing copyright war, the majority held that full First Amendment scrutiny was unnecessary. Free speech, Ginsburg wrote, is protected by fair use and by the fact that copyright applies only to expression, not ideas and facts.
Both claims ignore the reality of copyright today. In a text-based world, the idea/expression dichotomy may work. Though I may not distribute copies of someone else's article without permission, I may explain what it says using other words. But this accommodation doesn't work in a society based on audiovisual communication, not to mention sampling. You can't paraphrase a film, design or song the way you would an essay. You have to reproduce the thing itself. Moreover, Big Media is trying to broaden its power over content that can't be copyrighted with new database protections and anti-copying technologies.
Fair use, on the other hand, allows limited copying for such purposes as criticism, parody and teaching. Yet judges are increasingly narrowing fair use, and the Digital Millennium Copyright Act of 1998 weakened this exception tremendously by making it illegal to circumvent anti-copying technologies or even to possess tools that might be used for such a purpose. In a Kafkaesque turn, getting access to copyrighted material even for reasons allowed by fair use--or even preparing to do so--may now be illegal.
The "serious public harm" of the Eldred decision, in the words of Justice Stephen Breyer's powerful dissent, will be felt in the absence of hundreds of thousands of works that would now be freely available for use by scholars, students and the general public. In the longer term, the Court's failure to place free-speech limits on an ever-more-voracious copyright regime spells danger, if not disaster, for creativity and the rights of consumers.
The only hope is that Eldred can help galvanize a nascent public movement against the expansion of intellectual property. New organizations like Creative Commons, Public Knowledge and DigitalConsumer.org are fighting for a rich public domain--and gaining unlikely allies. Among Lessig's supporters in court were Phyllis Schlafly and Milton Friedman, and The Economist recently editorialized in favor of returning to the fourteen-year copyright term that existed at America's founding. That's the kind of originalist thinking we should all embrace.