Mark Schultz’s response essay fails to address the reforms put forward in my own essay. This despite the fact that in his reply to the RSC memo at Copyright Alliance, he stated that “we can and should debate many instrumental issues regarding the definition of rights and remedies – copyright term, damages, criminal penalties, and asset forfeiture are all fair game…” Copyright terms and damages were two of the major reforms outlined in our memo and my Cato Unbound lead essay. Schultz implies that I am against copyright and perhaps all intellectual property – to be very clear, I am strongly in favor of copyright and profit for the content producer. My strong and continued support for copyright does not change the fact that copyright’s term is far too long, the damages are absurd, and the fair use provisions stifle innovation and depress content and profit for all market participants.
Schultz’s argument, particularly in the Copyright Alliance essay, is premised upon natural rights and as such he discounts the idea that copyright is a government created instrument designed to foster innovation and provide compensation to the copyright holder. Outside of this conversation, content industry lobbyists and thought leaders have also argued that copyright is a natural right rather than addressing why a copyright term of life plus 70 years is appropriate. But natural rights are not a self-evident response to the reforms suggested and the problems outlined.
In addition, it is also not the system that we have chosen to adopt in the United States.
Schultz never addresses the proposed reforms to copyright length, damages, and fair use, and instead he appears to dismiss these outright as merely arguments in favor of sensible “regulation” – a term, regulation, which he doesn’t believe copyright to be. He does so despite the fact that the Supreme Court held in its first case on copyright, and in subsequent cases, “Congress… by this act, instead of sanctioning an existing right… created it.” And Tim Lee points out that our current copyright law isn’t defensible “even if we grant Mark Schultz’s premise that copyright protections are just another kind of property right.”
Natural rights are not a counter response to proposals for reform, because if copyright is a natural right then where would that leave us? How is that the simple answer to every question? Would copyright therefore supersede the Constitution in a transcendental sense when they are in conflict? The natural rights argument is not a response because even in real property there are limits to property rights. The Constitution clearly limits copyright in duration and provides a very particular purpose for this privilege. Some on the left argue that copyright is a human right that supersedes the Constitution, but I don’t think this is what Schultz and others mean.
The idea of copyright being a natural right is an interesting intellectual discussion, but that’s not the system that the United States chose to adopt. As will be shown, the Founders were aware of the argument holding that copyright was a natural right, and they rejected this argument and created a constitutional and legal regime designed to prevent it.
Our Founders were in fact quite familiar with copyright. Books were a content that they were very familiar with – many of them read more than we do – particularly the largely affluent property holders who were writing the Constitution and early laws. Far from being alien to the world of content creation, they had experienced a regime of indefinite copyright and they explicitly rejected this system. The limited copyright system in our Constitution was not the default conception of what copyright as a concept was – rather it reflected a conscious rejection of the ideology of indefinite copyright.
Yet today, a system of near indefinite copyright is precisely what we have.
The End of Perpetual Copyright
In 1710, the Parliament of Great Britain passed the Statute of Anne which “was designed to destroy the booksellers’ monopoly of the book trade and to prevent its recurrence.” In so doing it limited copyright to two fourteen-year terms. The goal of the statute was to encourage content creation and ensure a public domain by putting an end to “the continued use of copyright as a device of censorship.” The statute’s long title identifies its purpose as “an act for the encouragement of learning…” This marked a radical shift from the previous ideology.
This was not a change without opponents; it was challenged in the British court system by those who argued that the statute was a violation of their natural rights – precisely the argument proffered by some in favor of indefinite copyright. It was challenged all the way to the highest court in the land, at the time the House of Lords, and the court rejected the arguments in favor of indefinite copyright.
With some exceptions, British law was the law of the land in the colonies. Our Founders were on both sides of the copyright argument, and the ideas of natural rights and perpetual copyright were discussed, debated, and litigated all to the highest courts in the land in the 18th century.
As the British Parliament and court had done before, our Founders rejected that argument.
Codifying a Limited Copyright
Our Founders codified this perspective in the Constitution in Article I, Section 8, Clause 8. Law professors Joseph Singer and Tom W. Bell explain that the Framers relied on the Statute of Anne when drafting the this clause, which reads, “The Congress shall have Power… to promote the Progress of Science… by securing for limited times to authors… the exclusive right to their respective writings.” The Copyright Clause was intended “to be the engine of free expression.” This clause is the only clause in Article 1, Section 8, which outlines specific congressional powers, that conditions the enumerated power on a particular purpose.
Then our Founders fully fleshed out an optimal copyright system for their times, which is in many ways almost identical to the Statute of Anne, although it expanded copyright to maps and charts in addition to books. Singer explains that Congress directly transferred the principles from the Statute of Anne into the copyright law of the United States in 1783, first through a recommendation to the states to enact similar copyright laws, and then in 1790, with the passage of the first federal copyright statute. They tried to strike the careful balance of not too much or too little copyright protection. States passed their own copyright laws and seven states provided for two fourteen-year terms, North Carolina provided for one fourteen-year term, and three states provided for one twenty-one-year term. At the federal level, the 1790 Copyright law had a fourteen-year term of copyright upon registration, and an optional fourteen-year renewal if the author was still alive. In critical distinction to copyright law of today, it was a system where the copyright owner had to opt-in to receive copyright.
Even so, codifying this perspective in the Constitution, in federal law and in state law was challenged by opponents to any limitations on indefinite copyright. The Supreme Court affirmed the system of opt-in copyright for a limited period of time. In the Court’s first case on copyright some decades after the ratification of the Constitution it held that, “Congress, by the act of 1790, instead of sanctioning an existing perpetual right in an author in his works, created the right secured for a limited time by the provisions of that law.” It has reiterated this position and interpreted the clause as requiring the Congress to consider various interests such as maximizing content production and profit for all market participants and new business models while also providing for a public domain.
There are certainly legitimate arguments that copyright should be longer than that of our Founders because of certain market conditions that are different from their day – but there are not legitimate argument to say that a system of indefinite copyright abides by the Constitution or our the express intentions of our Founders.
Despite the American history on Copyright, some still argue that copyright should be or could be a perpetual right that exists forever. Many of them have lobbied successfully on a regular basis to ensure that certain highly-lucrative works never enter the public domain. Some against copyright reform hide behind the shadows of claiming that they are not for an indefinite copyright – but every twenty/thirty years they lobby to extend copyright from 56 years, to life + 50, to life +70. It’s very clear what their intentions are. They intend and have largely succeeded in destroying anything of value entering the public domain. Success in perverting the law should not be misinterpreted for constitutional fidelity despite their property law arguments using 18th century vernacular. These proponents are arguing for something very different from what the Founders believed.
Frankly they lost the argument 226 years ago. The Founders explicitly rejected this position.
Public Policy Questions
So property or regulation, the questions are largely the same (as Tim Lee argues here). The natural rights argument was rejected by the British system and our system but also fails to address many of the core public policy questions. What procedures and institutions should we have to protect copyright? How long should copyright last? Constitutionally, the answer can’t be forever. Should copyright be automatic or require some affirmative choice to opt-in by the copyright holder? If it’s automatic, that’s a radically different system from that of our Founders, but would that mean that even a note on a napkin to a friend would be under copyright? Isn’t there some limit to what a content producer is?
As for enforcement mechanisms, the natural rights argument is even less self-evident. We have created laws like the Digital Millennium Copyright Act (DMCA) that take a very particular approach to protect copyright that impacts free speech by enabling a hecklers’ veto even of political speech that people don’t like, and we have decided that many forms of technology are by their nature “contraband” for which the government can place you in jail for up to five years. Under this law, even discussing some of these technologies can result in fines, jail time, and your website being shut down. What are they? They are technologies like how to back up a DVD to your PC, how to unlock your phone to use a different carrier while abroad, and enabling an e-book to be read aloud to the blind. While the first two are completely illegal now, the later receives an exception every three years from the Librarian of Congress. These reflect a particular choice on how to effectuate copyright protection in positive law and they are not the only ways to do so or even the most effective – and it’s for these reasons that we have to decide the public policy considerations to craft smart sensible laws on copyright.
The relevant public policy–related questions on copyright are clear. How do we maximize content production? And how do we ensure authors and artists a large profit, but also ensure that new market participants can also make money – either 1) through derivative works after a copyright has expired or 2) under an expanded fair use policy while the content is under copyright?
Far from being against profit, I am in favor of more profit, for more artists and for new emerging and disruptive industries. I wholeheartedly support copyright, but not forever.
We must balance individual’s large earned profits against the importance of the public domain. With most works, after the first few years of a work’s publication it has exhausted most of its earnings capacity. As a result, having these works enter the public domain after a significant earning period ensures large profit for the content producers as was mentioned in my lead Cato Unbound essay, using supporting studies. There is simply no basis to justify the claim that life plus 70 provides new incentives to content producers. And here is a new study to add to the previous ones in support of that point. Instead, life plus 70 actually depresses the available content, limits emerging markets, and hinders innovation. Many works of art and nonfiction are building upon the content of previous works. As I mentioned, even Steamboat Willie is just one such example.
But in addition to the impact upon innovation, content creation, and businesses, we must also think of the personal impact. Imagine a child from a disadvantaged family who studies every day with hopes of being the first in his family to go to college. What would be the impact for such a child of a world where all literature and nonfiction works are eventually (after a suitably long time period for profit) available for free at the click of the button? The true value of the public domain in a web-enabled world cannot be understated. The societal impact, particularly on education, could be astounding. The Supreme Court has also recognized the importance of the public domain for this and other purposes. Of course, as stated above, the importance of the public domain must be weighed against providing a profit for the content producer.
So my questions for Mark Schultz and others are:
- How do you justify a copyright term of life plus 70 years?
- Will you support extending copyright further the next time it’s up for extension when Steamboat Willie may enter the public domain in 2019?
- Do you support a copyright protection law, that, as of Saturday, made it illegal to unlock your own phone?
- Do you think it’s appropriate that courts can issue injunctions to shut down websites that even discuss how to unlock your own phone?
- Do you think it’s reasonable that every three years groups like the American Foundation for the Blind have to lobby the Librarian of Congress to protect an exception for the blind allowing for adaptive technology allowing for books to be read aloud, because, without this exception, it would be a violation of the DMCA?
 Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834)
 Fischman Afori, Human Rights and Copyright: The Introduction of Natural Law Considerations into American Copyright Law, 14 Fordham Intell. Prop. Media & Ent. L.J. 497, 550 (2004)
 L. Ray Patterson, Understanding the Copyright Clause, 47 J. Copyright Soc’y USA 365, 379 (2000)
 Statute of Anne, 8 Ann., c. 19 (1710).
 Donaldson v. Beckett, 1 Eng. Rep. 847 (H.L. 1774).
 Joseph Singer, Property Law: Rules, Policies, and Practices, 219-221 (2010).
 Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985).
 Craig W. Dallon, The Problem with Congress and Copyright Law: Forgetting the Past and Ignoring the Public Interest,” 44 Santa Clara L. Rev. 365, 418 (2004)
 Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 593 (1834)
 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50 (1991); Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984), discussing the objective of copyright monopoly, which lies in the public benefit from the labor of authors; for a thorough review of the steadfast rejection of the natural law theory of copyright by the Court, due to the interpretation given to the constitutional clause, see Marci Hamilton, Copyright at the Supreme Court: A Jurisprudence of Deference, 47 J. Copyright Soc’y U.S.A. 317 (2000).
 See United States v. Paramount Pictures, Inc., 334 U.S. 131, 158, (1948); Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).