Larry Lessig from time to time flagellates himself about losing the Eldred case in the Supreme Court. He shouldn’t; it was unwinnable for a host of reason (the lopsided vote–7-2–is a clue). Yes, Congress can confer copyrights only “for limited Times,” but what’s “limited” is a matter of perspective. If the Sonny Bono Copyright Term Extension Act had been in force in Shakespeare’s time (there was no copyright then, in fact), then, since Shakespeare died in 1616, his works would have entered the public domain in 1686–more than 300 years ago. So Larry focused on the retroactive feature of the law (that it extended existing copyrights), but that carries the issue away from “limited Times”–the extended works were extended for only a liimited time–and ignores the fact that there social benefits from “propertization”–from the fact that a property owner has an incentive to conserve his property; that is why toll roads are less congested than “open access” highways; and why poor old Mickey Mouse would be even less free if anyone could employ him without compensation. Then too, if the Supreme Court had invalidated the Act, Congress could have retaliated by allowing states to grant copyright–perpetual copyright, if they wanted, which was the regime for most unpublished works until 1976.
All this said, the net effects of the Act and therefore of the Eldred decision are probably bad. But the worst of them should be remediable fairly easily. Stay tuned.
poor old Mickey Mouse would be even less free if anyone could employ him without compensation
Elaborate. � Ed.
By this do you mean that Mickey would become “congested” and therefore less available to people? That makes no sense to me, as an intellectual resource isn’t diminished as its consumed.
Or, do you mean that Disney would have no incentive to create and distribute Mickey, since they couldn’t make much money off it?
Please Explain.
-S
from the fact that a property owner has an incentive to conserve his property
This analysis, so prevelant in the law and economics of tangible items, strikes me as problematic here. What, exactly, can the owner of a copyright do in order to “conserve,” an exclusive right to a non-thing?
The only answer I can imagine is that the owners has incentive to exercise the exclusive rights — that is, to publish the work and better assure its widespread distribution. But that really is it. A copyrighted work does not lay fallow when a publisher determines to control the “mix” to maximize profits from a portfolio, so to be more fertile later. Is it clear that term extension, in fact, genuinely promotes such conservation?
Indeed, the “control of mix” function seems more like the exercise of de-facto and exclusive rights to a publishing technology, rather than exclusive rights to the work itself. Particularly as technologies are creating greater and virtually unbounded capacity for publication, this does not, to me, feel like conservation of rights.
The recent wars over secondary liability appear to cast this point in sharp relief, where we see those with vested interests in existing duplication and distribution technologies seeking to impose friction on newer and disruptive technologies. Rather than promoting prompt and effective exploitation of the new technologies to further distribute works — the exclusive rights seem to provide an inefficient and unnecessary drag.
A related form of conservation addresses a more interesting resource — mindshare. Clearly, publishers with exclusive rights have incentive to advertise the availability and nature of works, and therefore may have an incentive to sift through wheat and chaff to facilitate publication of those works of greater interest. On the other hand, I’m not so sure that this is a copyright function either. It seems to me that the presumption is that progress is promoted by broad access to works, and not their “conservative” de-facto censorship — that the marketplace of ideas itself, rather than the publishers, may be best equipped and more efficient at such culling and indexing. With respect to term issues, at least, when we are talking about the advertising function, I wonder how much needs to be spent to encourage promotion of the fraction of fraction of works that have survived commercially at that time?
To the contrary, it seems that overall benefits may be greater by overcoming the huge transaction costs required to recover orphan works (whether willfully or accidentally abandoned). So much of early recordings of jazz are anecdotally reported as lost, de facto, in part because licenses cannot be reasonably obtained.
To the contrary, the exercise of exclusive rights to exclude, without affirmative conduct by a publisher to publish, seems to have the opposite effect of “conservation,” in that a public and subsequent generation of author may be deterred for too long from standing on “ye shoulders of giants.”
The other form of conservation, of course, is archiving of the work. But this too, seems not to have occurred as a matter of course — perhaps because the ownership only lasts for a “limited time.” It is, in fact, the “lawful use” community that has taken the lead in archiving works, indeed threatened at times by the content community for those efforts.
Moreover, the evolution of copyright seems to have been to move away, and not toward, unlimited “propertizing” of the Sciences. At first, the Crown granted freehold interests to publishers, the Stationer’s Copyright, with no regard to the interest of authors, forming guilds and ultimately the Stationer’s Company, from which the right to publish had to be commissioned.
The Statute of Anne, the first Copyright Act, was formed precisely to end the Stationer’s Company monopoly on publishing, and to vest the interest in the work onto the creators, rather than the proprietors. This was done to provide mechanisms for private assaults on infringers, to encourage works and significantly, to end the publisher’s monopoly.
In this very important sense, the modern Copyright Act does not exist to serve the interests of content collectives. Very much to the contrary, the content collectives exist because of the Copyright Act’s provisions to serve the interests of authors and the public. While content collectives are natural and efficient economic means by which certain authors can benefit from their works, they serve only as proxies for the authors, with whom they also share a conflict of interest.
While there is often a confluence of interest between content collectives, authors and the public at large, this is not always the case. And to the extent there is conflict, that is where we may find ourselves on the cusp of copyright policy and undue trade regulation.
Of course, much of this is merely my musing and speculation, and I must necessarily defer to the dean of law and economics to guide us to that end. (By the way, we are truly grateful to have this opportunity to correspond.)
What other forms of conservation of works exist, beside publication, advertising and archiving? How does the dramatically greater capacity for publishing content using modern technology impact that analysis?
I’m sure Judge Posner was using poetic license when he said “Mickey would be less free.” Mickey, of course, has no freedom to speak of. He’s a cartoon. What we are concerned with is the freedom of public to use the image of Mickey. Under CTEA and Eldred, the public is significantly less free.
Copyright is not a liberty. It does not grant to an author any ability that the author did not already have. Copyright is a restriction on the liberties of the public. As such, it is an evil. We tolerate it only because it produces a net-positive result, the increased production of creative works. Copyright has no justification in those settings where it does not achieve a net-positive result.
‘[…] and ignores the fact that there social benefits from
“propertization”‘
That’s like saying a discussion of the scope of Congress’ powers under the commerce clause ignored the social benefits of centrally planned governments. It is not relevant and the benefits should not be assumed.
‘[…] the fact that a property owner has an incentive to conserve his property; that is why toll roads are less congested than “open access” highways’
I’m afraid I don’t see the connection. I would have thought the additional direct cost associated with toll roads would lead to less use. The toll road owner would seem to desire more use of the road. And don’t tell me there is never congestion on toll roads, I know better 🙂
As for the bigger picture, it has not been established that copyright holders of older works put more effort into publication and restoration of those works. And the idea that it is desireable to reduce the amount of usage (congestion) with those works goes completely against the purpose of the copyright clause.
Andrew, that was very well put.
The “Sonny Bono Copyright Act” was pretty clearly the Disney Corporation Copyright Proection Act; I don’t think Disney Inc. even tries to hide that.
So, two questions:
1) When the SBCPA deadline rolls around, why won’t Disney just purchase another extension? Perhaps we can’t expect a single corporate entity to last 300 years, but perhaps it might. 100-200 years wouldn’t surprise me at all (I hope I am here to find out, although I fear the answer a bit).
2) Does Disney pay royalties to the descendents of Hans Christian Anderson, the ultimate author of its most profitable products? Why not? What is the difference between the situation re: Anderson and the continuing extensions of copyright granted to Disney?
Cranky
Larry’s loss margin in Eldred, 7-2, is perplexing. There was no circuit split, nor did the case present the kind of vexing national issue that the Court typically believes it must resolve. It’s also a truism that the Court normally doesn’t waste its time deciding cases that it already thinks the lower courts got right.
A logical inference, therefore, is that at least four Justices thought that there was a reasonable possibility that they would vote to reverse. Otherwise, there was simply no reason for the Court to grant cert. I think that’s why Larry thought Eldred was winnable, and why he flagellates himself about losing it.
> Otherwise, there was simply no reason for the
> Court to grant cert. I
A truely cynical observer would say that it was a reward for large contributions to the Republican party.
Cranky