Is The Supreme Court Just Completely Out Of Touch On Digital Copyright Issues?
from the it's-possible dept
For most legal scholars, the Supreme Court's decision to uphold retroactive grants of copyright protection for formerly-public domain works in Golan v. Holder came as little surprise. The Court made it clear that it was doubling down on the framework set out in Eldred v. Ashcroft, largely deferring to Congress on these matters and giving wide latitude to what comports with the "traditional contours of copyright law." What received less attention in the decision was the Court's discussion of how a retroactive grant purportedly "promote[s] the progress of Science" as required by the Copyright Clause. And while it may seem like a largely academic point to some, the Court's handling of the issue may actually be symptomatic of a legal system whose scholarship and case law have yet to catch up with the market realities of the digital age (or worse, may be actively ignoring them for political purposes).In a short six-paragraph discussion at Section II(C) of the majority opinion in Golan, the Court tackles the contention that copyright legislation only serves its Constitutional aims if it spurs the creation of new works (which a retroactive grant, applying only to works already in existence, obviously does not):
Nothing in the text of the Copyright Clause confines the "Progress of Science" exclusively to "incentives for creation." [Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323 (2002)], at 324, n. 5 (internal quotation marks omitted). Evidence from the founding, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science.The reasoning here, which is fairly compelling, is that it's not enough for a work to merely be created -- for it to actually "promote the Progress of Science," it has to be made adequately available for public consumption. Historically, a grant of copyright would incentivize this by providing the opportunity for monopoly profits to offset the cost of wide retail distribution. Problematically for the Court, however, this arrangement is no longer the most effective means to distribute a work; The Internet Archive told the Court as much in its amicus brief for Eldred:
Jack Valenti, President of the Motion Picture Association of America once said: “A public domain work is an orphan. No one is responsible for its life…it becomes soiled and haggard…” Jessica Litman, Digital Copyright 77 (2001). Before digital technology, Valenti may have had an argument – one could argue that it was so expensive to store, reproduce, and distribute physical works that keeping them out of the public domain may have resulted in more availability than letting them in.It seems logical that, in an age where cheap hosting/bandwidth and peer-to-peer services have all but eliminated the transactional costs of making work available online, the dissemination of public domain content would be most widely promoted by not allowing monopolist copyright holders to place conditions on their replication and distribution (monetary or otherwise). Yet the Eldred majority ignored this sea-change in distribution methodology, deferring to Congress's belief that increasing copyright protection "provide[s] copyright owners generally with the incentive to restore older works and further disseminate them to the public" -- a belief based on hearings held in 1997, when the Internet had less than 70 million users and Congress had no idea how far public domain distribution methodologies would come.
With digital technology, however, this argument can no longer stand. Indeed, even Valenti now agrees that digital technology possesses the capacity to makes flawless copies trivial and worldwide distribution instantaneous. This ease of publishing and distributing means that material in the public domain is universally available.
In fact, surveying the various authorities marshaled by the Supreme Court to link copyright law with promoting greater distribution of works, it is striking how little post-Internet thought has been taken into account. The only actual case cited by Golan for the Court’s proposition (aside from Eldred) is Harper & Row, Publishers, Inc. v. Nation Enterprises (1985), which not only predates the publicly-available Internet, but concerned balancing the monetary incentive for a copyright owner to distribute (right of first publication) with the efficacy of that distribution (fair use quotation) – an economic analysis tacitly admitting that dissemination is bolstered by removing copyright protection. Justice Breyer’s dissent in Eldred reinforces this distinction, explaining that the Copyright Clause “assumes that it is the disappearance of the monopoly grant, not its perpetuation, that will, on balance, promote the dissemination of works already in existence.”
If it seems odd that the Supreme Court put so little critical thought into what promotes the widest distribution of a work in the digital age, the second-to-last paragraph of Section II(C) in Golan may be instructive. There, the court reveals the true engine of its decision:
A well-functioning international copyright system would likely encourage the dissemination of existing and future works. See URAA Joint Hearing 189 (statement of Professor Perlmutter). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103-412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIAA); id., at 244, 247 (statement of Smith, IIPA), thereby benefitting copyright intensive industries stateside and inducing greater investment in the creative process.Here we see the focus of the court is less on the restored works and more on protecting the wider copyright industry; by placating the origin countries of restored works, Congress believes it is protecting future works in those territories from less-than-national treatment. These theories (offered up by current and former counsel to beneficiary trade associations and cited as such by the Court) are not necessarily inaccurate, but reinforce that Congress’s primary goal in plucking works out of the public domain is not to actually promote their widest distribution. Rather than admitting this, however, the Court contorts prior case law and, indeed, logic itself to pretend that a paywall will somehow make restored works more accessible.
To me, this is what is most upsetting about the Golan decision. If the Court wishes to defer to a starry-eyed Congress that believes in attenuated links between copyright restoration, foreign goodwill, and market opportunities, it is entitled to do so. But it should at least be willing to admit that, in isolation, the restoration itself does nothing to “promote the Progress of Science.” To the contrary, it locks up works that have already been created and could be disseminated more widely than ever possible under the restrictions of copyright law. Instead, the Court doesn’t give public domain advocates a leg to stand on, and perpetuates a Luddite understanding of distribution methodology to do so. Hopefully, the Court will someday come to realize that a public domain work is no longer an orphan – the entire Internet is its family.
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Filed Under: constitution, copyright clause, eldred v. ashcroft, jack valenti, public domain, scotus
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First sale doctrine under attack as well...
It will make me fear the ruling under the first sale doctrine. With a 5-4 decision it seems that the doctrine will go the way of the dodo and any protections for consumers have effectively been written out of copyright law.
So now if you have no allowable copyright terms, no protections for consumers, and retroactive copyright, what is copyright actually protecting?
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Re: First sale doctrine under attack as well...
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Market realities?
Have you been to many urban environments? Murder, rape, robbery, and other crimes are part of the "market reality". Yet the court system and the Congress continue to stick their head in the sand and embrace these laws. Why? I think it's because they understand that we need to reward people who contribute to the system. If people believed in your crazy "market reality", we would be like Somali where the only rule is the whimsy of whomever happens to be holding the gun.
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Re: Market realities?
Reality dictates; unless you're able to defend yourself; it's entirely possible you'll be at the 'whimsy' of a person holding a gun regardless of your physical geolocation. And, that person might be a criminal!
Also, Police Have No Duty To Protect Individuals--but don't take my word for it, check the case law for yourself.
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Re: Market realities?
You also seem to be "inventing" the "False dilemma" argument. This also still doesn't work.
I'd ask you to use logic and facts for your arguments but that just might be beyond your abilities. Thanks for playing.
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Re: Re: Market realities?
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Troll tip # 20348: Don't read the author's name
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Re: Troll tip # 20348: Don't read the author's name
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Re: Troll tip # 20348: Don't read the author's name
I was making a general observation, not one restricted to this single post.
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Re: Re: Troll tip # 20348: Don't read the author's name
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Re: Re: Re: Market realities?
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Re: Market realities?
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Re: Market realities?
Rhetoric like that certainly qualifies him to be employed by one of the AA's. Because we know that if people could somehow share digital media any way they wanted, then anarchy would ensue.
.....still waiting.
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Re: Market realities?
That means you dont need to put so much emphasis on making sure people are compensated. You just need to make sure there is a fertilized space for people to create and distribute. The compensation part will work itself out. People inherently want to compensate people for the creativity simple because it makes an impact on their life.
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Re: Market realities?
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Re: Market realities?
Another way to look at it is from the perspective of society demanding a good. In society's market for people, the marginal cost for the production of people is upward sloping while demand is downward sloping. Murder and rape lead to shifts away from the equilibrium quantity resulting in dead weight loss. On the other hand when looking at the market for digital goods, marginal cost for electronic distribution is effectively zero. As such price setting by the monopolist will lead to dead weight loss via the shift of quantity demanded away from the equilibrium quantity, that is to say the monopolist will reduce efficiency just as the murderer does. You can see here that murder is more similar to retroactively granting a copyright then free distribution.*
Bob you don't support murder, rape, robbery, etc. do you?
The fact that you put murder on the same level as digital dissemination is also ridiculous. That said, tossing around your crap is kind of fun.
The conclusion is you are a moron.
When studying your Econ, don't forget the CLlT (Capital Land labor Technology)
*In this case there is no fixed cost of production because we are talking about restoration, so let me stop you before you hurt yourself (we're not talking about drug development here).
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It has been repeated here over and over again that copyright is in the constitution, but in that it allows congress to define it. SCOTUS has done nothing except point out what is in the constitution, and agreed with it.
You may not like it, but there it is.
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Re:
No one said they didn't. For someone droning on about strawmen in other comments you're certainly adept at constructing your own.
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Yes. Next question?
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Yes, they should. We don't have 9 wise elders that promote the law. We have a democratically elected President and Congress that has the power to change the laws or enforce them.
We have the Supreme Court to look at what's constitutional. But even then, they do *NOT* have the power of Judicial review in other countries such as the UK or even the EU. If you read the Federalist Papers, they left that part OUT of the Constitution. You will not find it in Article III Section 2 anywhere. Yet Marbury v Madison 'gave' the power of the Judicial Review to the Supreme Court.
The US has suffered ever since. SCOTUS decisions caused our Civil War. They also caused the huge swing in opinion from Roe V Wade and the horrible Grokster inducement decision.
We have wanted a free democracy. We can't do it when you only need a simple majority to agree with you. If SCOTUS really wants to strike down AFA, expect a very poignant shift in politics in two months that will surely become a full scale protest as the effects of that decision cause SCOTUS to be scrutinized very severely.
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That hearing is going to be voted on political grounds and I'm sure people will not be happy.
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Wish I could mark this part insightful
Very nicely put, Mr. Lifschitz
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Not really
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Ok
They got to be where they are by being out of touch. If anyone who's at least a little bit in touch with us peasants were to retain that connection and also serve in an official governmental capacity in any of the branches...well, they'd go crazy and start shooting/maiming/kicking/waterboarding their co-workers, for the good of the people.
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Why a surprise?
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Lawmakers and Technology
At the same time Technology has advanced at lightening speeds, and has essentially left the Law Makers behind the learning curves.
To complicate this, they create panels and studies which are made up of the same age group to advise them on Technology laws.
The truth be told, we need more YOUNGER people running for office and getting elected. The problem with this is that overall the general public wouldn't trust a 20 something or 30 something person to run this country, let alone make the laws.
Honestly we are nearing a the times where there will be a radical transition in the way of thinking in DC. Those born in the late 60s and 70s are reaching the ages where they are likely to be voted into office. If you look at the general history there was a radical change in the way the world was looked at between the 50s and the 60s.
Sadly most of those currently in office are generally from 50s and before.
I doubt the corruption of power will change much, but the beliefs in what's right and wrong will slowly shift. I honestly hope that as the transition takes place those making the changes realize that our laws and legal system need a serious overhaul and they get that overhaul started ASAP.
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disappearing 20th century
The chart showing the disappearing 20th century confirms your analysis. http://www.theatlantic.com/technology/archive/2012/03/the-missing-20th-century-how-copyright-protect ion-makes-books-vanish/255282/ The full lecture is really good at showing the faults in the lobbiest's argument: https://www.youtube.com/watch?feature=player_embedded&v=-DpfZcftI00
-brewster
Digital Librarian
Internet Archive
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One of Congress' Enumerated powers
Unfortunately, I also believe that SCOTUS got it right when they indicated that copyright is the exclusive domain of congress to define and/or change. It is, after all, one of their enumerated, Article I powers. That doesn't make the current decision suck any less.
All we have to do is convince congress to change the copyright law to better benefit the public instead of the legacy content industries. HOW HARD COULD IT BE?
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The Problem with Attribution
Dastar_Corp._v._Twentieth_Century_Fox_Film_Corp.
The Court reasoned that although the Lanham Act forbids a reverse passing off, this rule regarding the misuse of trademarks is trumped by the fact that once a copyrighted work passes into the public domain, anyone in the public may do anything they want with the work, with or without attribution to the author.
...claims about authorship cannot be used as an end-run around the underlying philosophy of a time limit on exclusive ownership of a copyright or patent. Allowing such restrictions on a public domain work would, Scalia wrote, "create a species of mutant copyright law that limits the public's 'federal right to "copy and to use"' expired copyrights," and would effectively create "a species of perpetual patent and copyright, which Congress may not do"
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