Opposing Copyright Extension

Constitutionality of Copyright Term Extension

All that Glitters . . . .

Copyright, Censorship, and the Constitution


Kenton Abel and Samuel Trosow

(draft, to be published)

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                                      All that Glitters . . . .

Copyright, Censorship, and the Constitution

By Kenton Abel and Samuel Trosow*

(Revised 8/25/00)


“To promote the Progress of Science and Useful Arts…” So begins the constitutional basis for the United States copyright and patent laws.[1] It is somewhat ironic, then, that early ancestors of our copyright law were explicitly decreed for exactly the opposite purpose – to censor printing and printing presses.[2] Starting in 1534, a series of licensing laws made it illegal for anyone to publish without the Crown’s permission. While many scholars point to the Statute of Anne[3] as the beginning of modern copyright, the Statute was merely a revision of the earlier licensing acts. Only two major differences distinguish the licensing laws and the Statute. First, the duration of copyright went from a perpetual term to a limited term; and second, the power to inhibit publication shifted from the Crown to the author. This second difference successfully disguised the censorship mechanisms that the Statute of Anne inherited, the same censorship mechanisms developed under the licensing acts. Thus, modern copyright law is in many ways similar to the licensing acts except for who can enforce the censorship and how long this censorship lasts.

Censorship has historically been associated with direct government action. Yet the government does not need to directly seize books to slow the sharing of information. For example, for the 150 years the licensing acts were the law in England, it was not the Crown who directly censored English citizens, it was the private Stationer’s Company. “Censorship,” as used here, means the ability of an individual “to control or preclude another person’s use of or access to [specific] information.”[4] In applying the First Amendment, the Supreme Court has struck down laws that impose strict liability on certain kinds of speech because they would lead to too much self-censorship.[5] Yet it is likely that copyright law, as it is enforced today, has caused many authors to self-impose censorship on themselves in order to avoid ambiguity near the boarder of infringement. Equally bothersome is that this trend seems likely to increase given the proprietary drift in current trends in the intellectual property policy environment. Since there are going to be some imperfections in any copyright system, should policies addressing these “leaks” be in favor of information flow or in favor of censorship?

In the United States, the Constitutional Framers were concerned that the censorial abuses practiced by the English Crown through the early copyright acts could undermine our form of government by chilling the robust exchange of ideas necessary for a democracy. In response to the first copyright laws of England, the Framers enacted the First Amendment to the Constitution. Perhaps because the First Amendment has achieved a large degree of freedom of speech, censorship is not often associated with copyright or the promotion of innovation.[6] However, as a descendant of licensing acts designed to stop the spread of information, our copyright law today has also maintained a form of censorship at its foundation. It is no doubt a tribute to human creativity that in spite of the censorship-based system, innovation still takes place. For better or worse, we will never know of the innovations that have not taken place because of the censorial enforcement mechanisms in our copyright laws.

In order to reconcile the tension between freedom of speech and the censorious aspects of copyright laws, public policy has developed a set of safety valves. These valves arose and were defined in a print-based world and generally operated to temper the monopoly granted to owners. The first example of such a safety valve is the “fair use doctrine,” first developed by the courts and later codified into the copyright statute.[7] Another safety valve is the “first sale doctrine” which limits the right of the copyright holder to control subsequent distribution of a work.[8] The third safety valve limits the scope of what may be protected by the copyright monopoly. For example, the idea/expression dichotomy[9] and the originality requirement[10] limit the types of works subject to copyright restrictions, thereby protecting ideas and facts from inclusion in the monopoly.

In the long run, a fundamental safety valve, and one explicitly recognized by the Framers, is the express limitation on the duration of the monopoly contained in the constitution itself. However broad copyright interests may be, they are ultimately limited in time in favor of the Intellectual Commons, the ultimate destination of all copyright-protected works.

It is useful to think of these safety valves in multi-dimensional terms. Along one dimension, the temporal duration of copyright is limited. Along the second, the literal scope is placed within discrete boundaries. The idea/expression dichotomy and the requirement of originality are examples of limitations on literal scope. Along the third dimension, various exceptions or constraints on unbridled enforcement limit the effective scope of the copyright interests. These three dimensions are mediated by public policy and constitute a system of constraints on the censorious effects that the monopoly power would have if not so carefully limited. These constraints demonstrate that the foundation of our copyright regime has been historically dependent on a careful balancing of interests. This balancing is designed primarily to encourage the flow of information essential to innovation, progress and democratic discourse, not the right of the owner to exclude others. [11]

While a precise formulation of the optimal copyright system remains elusive,[12] it is reasonable to presume that the rate of progress is inversely correlated with the number of obstacles an author faces in creating a new work.[13] While one obstacle to progress may be lack of incentives to create, another is just as surely the undue obstacles to the free flow of information underlying the information transfer process.  Landes and Posner explicitly recognized this tradeoff between limiting access to works and providing incentives to create works in their formulation of the economic model of copyright. Their often-cited model is guided by the assumption that the law’s “principal legal doctrines must, at least approximately, maximize the benefits from creating additional works minus both the losses from limiting access and the costs of administering copyright protection.”[14]

While incentives are no doubt an important element of the ideal mix, the minimum level of incentive needed to cause a particular author to create remains undefined and mostly ignored. This is complicated by the fact that there are different types of incentives for different sorts of works.[15] The negative effect on innovation caused by the monopoly and censorship privileges associated with the grant or extension of a copyright needs to be taken into more explicit account. Every time a monopoly is extended over part of the Intellectual Commons, another obstacle is placed in the way of innovation.

Society would benefit if the political and legal community placed more importance on the “promotion of progress” language and less emphasis on protecting “exclusive rights.” That the “exclusive rights” are the means of this clause, but not the goal, has been repeatedly recognized by the Supreme Court.[16] And as a means, such exclusive rights should only be as broad as needed to achieve the ends of innovation. It is easy to speak of “the need for incentives” and how authors will not create unless the copyright monopoly is extended.[17] Yet is it possible to give any additional incentive to a dead author?

The rhetoric of incentives has been overstated. It has been over-employed in a one-sided manner by the entertainment and other information content industries and their supporters in Congress in contravention of the Framers intent in adopting the “Copyright Clause.”[18] The goal of Article. I, 8, clause 8 is for continuous increases in the intellectual commons so that future authors and future inventors may draw upon this knowledge and increase the progress of science and the useful arts.

The overuse of the rhetoric of incentives has been most apparent in the case of copyright term extension.[19] We also see this rhetoric as part of a broader strategy on the part of content owners to remove, or at least weaken, the various safety valves that have historically mediated the inherent tension between copyright and censorship.

Part II contains a brief review the history of the copyright and censorship with an emphasis on their intersection.  Part III reviews the rhetoric of copyright and proposes that the constitutional goal of innovation is in part achieved or frustrated based upon the words we use to debate the issues. Since current usage frames the issues in favor of those seeking stronger limitations on the free flow of information in the interests of broader monopoly rights, several alternatives are proposed.

We frame the debate as between innovationists and rent-seekers instead of as between minimalists and maximalists. We speak of innovation protections and copyright restrictions, not additional copyright protections. We think it appropriate to call the expansion of the copyright monopoly a limitation because the ability to restrict another's access to and use of information is a limitation on, not a protection of, innovation. And finally, we refer to the Intellectual Commons as an essential yet threatened resource.

Part IV briefly reviews the current copyright policy environment, disclosing recurrent attempts to undermine the safety valves along each of the dimensions described above. This multi-pronged assault on the traditional balancing principles underlying the historic copyright regime cumulatively constitutes what we characterize as “rent-seeking behavior.” In Part V, the economic concerns of the current policy environment are juxtaposed to a discussion of how the Framers of the constitution sought to protect the intellectual commons by limiting the censorious aspects of the copyright monopoly.

II.  Copyright, Censorship and the Regime of Regulation: From Royal Decree to Rent-Seeking

With the introduction of the printing press to England five centuries ago, the Crown became fearful of the widespread dissemination of information to the general public. Specifically, the crown feared the spread of “seditious, heretical and blasphemous works.” In order to control this “dangerous art,” in 1534 the Crown decreed it illegal for anyone to publish without a license.[20] To aid in enforcing this censorship control, in 1557 the Crown granted a publishing monopoly to the Stationers’ Company, a private group of London printers and booksellers who could be relied upon to censor works in exchange for large profits. This basic method of censorship for monetary rewards remained unchanged for the next one and one half centuries.[21] For example, the Licensing Act of 1662 was officially titled “An Act for preventing the frequent Abuses in printing seditious treasonable and unlicensed Bookes and Pamphlets and for regulating of Printing and Printing Presses.”[22]

If the purpose of the Act was not obvious enough by the title, the Act further explained it was to prevent the printing or sale of “heretical schismatical blasphemous seditious and treasonable Bookes Pamphlets and Papers.”[23] In addition to printing and selling, the act provided for a wide range of other controls on the book trade, including the search and seizure of infringing books and printing presses.[24] Mark Rose has called this comprehensive licensing act for control of publishing “the regime of regulation.”[25] The Crown and Parliament went along with this system, but in the 1690’s, the licensing system became tied up with factional struggles within Parliament and “the dangers of partisan licensors in control of the press were becoming evident.”[26] Anticipating increased challenges to their position, the Stationers’ Company tried to introduce new copyright legislation that would enable them to maintain their control on the book trade.[27] In a letter to Parliament advocating adoption of the Common Law approach to copyright, the Stationers’ Company warned,

“…that if Parliament failed to confirm literary property, thousands of mechanics and shopkeepers would be deprived of their livelihoods, and ‘Widows and Children who at present Subsist wholly by the Maintenance of this Property’ would be reduced to extreme poverty.”[28]


The Stationers’ Company reminded Parliament that since it was not considering a “licensing act,” the liberty of the press would not be restrained.[29] In spite of the Stationers’ Company’s efforts, the licensing system ended in 1710 with the enactment of the Statue of Anne.[30] Nevertheless, the Stationers’ Company had been successful in maintaining the status quo for many years. They were also successful in insuring that the underlying mechanisms of copyrights remained unchanged. By privileging the notion of author’s rights, the label applied to the foundations of copyright were transformed overnight from censorship to “the Encouragement of Learning.”[31] It is worth noting that subsequent changes in copyright law have primarily involved term extensions and limited exceptions; the fundamental mechanisms have remained substantially unchanged since the first censorship decree in 1534.[32]

The first American patent[33] and copyright laws adopted the English model. Since the Framers also were deeply concerned about potential abuses, the term of copyright and patents were limited to 14 years. And the Framers enacted the First Amendment to the Constitution to insure freedom of speech and religion.

Yet we are left with a paradox. How does one “promote the Progress of Science and useful Arts” by using the tools designed for censorship? The private censorship granted to an author has been justified as a utilitarian compromise between progress in science and an incentive for the author to create this progress.[34] Initially, this compromise worked by limiting the monopoly term and accepting the monopoly as a necessary evil. In time however, the copyright owners have come to portray the private censorship grant as, in the words of Senator Hatch, “a property right that ought to be respected as any other property right.”[35] With the emphasis in copyright shifting away from progress and towards exclusive rights, the danger of censorship increases.[36]

III.             The Rhetoric of Copyright

Words are power. When used incorrectly, words can incite racial hatred and genocide. When used correctly, words can help bring peace to centuries old disputes. When used by politicians and the entertainment industry, words can convince the world that private censorship is not only good, but also absolutely necessary to advance knowledge. The words we use to describe a given behavior shape our view of the benefits or harms of the behavior. For example, if Politician X campaigned on the theme of denying a woman’s freedom, he would not likely gain much support. Likewise, if Politician Y campaigned on the theme of murdering babies, he would undoubtedly receive very few votes on Election Day. Thus, the abortion controversy is not between the “anti-freedom” group and the “pro-murder” group. This is not what either group advocates. The above controversy has been framed as a debate between the “pro-life” and the “pro-choice” groups, terms which describe the values the respective group finds important.

Linguist George Lakoff explains the importance of metaphorical concepts:

“A large proportion of our most commonplace thoughts make use of an extensive, but unconscious, system of metaphorical concepts, that is, concepts from a typically concrete realm of thought that are used to comprehend another, completely different domain. Such concepts are often reflected in everyday language, but their most dramatic effect comes in ordinary reasoning. Because so much of our social and political reasoning makes use of this system of metaphorical concepts, any adequate appreciation of even the most mundane social and political thought requires an understanding of this system. But unless one knows that the system exists, one may miss it altogether and be mystified by its effects.”[37]

Lakoff’s concern is with how liberals have been mystified by the success of conservatives, attributing this to the liberals’ failure to understand the form of metaphorical thought that unifies conservative values. He points to the lack of a unified liberal political structure, and a lack of an overall effective liberal rhetoric to counter conservative rhetoric that is carefully constructed. Most relevant for our purposes is his observation that “[w]here conservatives have carefully coined terms and images and repeated them until they have entered the popular lexicon, liberals have not done the same.” [38]

In a similar manner, the proponents of stronger proprietary interests in information have been able to successfully coin terms and images, and repeat them until they enter the popular lexicon. Talk of “extending protection” (either temporally, as in term extension, or in scope, as in the database issue) carries with it a subtle yet compelling sense that this is good. In the information age, more is better. Hence, more copyright protection is better. Several recent quotes illustrate this tendency.

First, Rep. Mary Bono (R-Cal) speaks on the desirability of further extensions of the term of copyright protections:

Copyright term extension is a very fitting memorial for Sonny. This is not only because of his experience as a pioneer in the music and television industries. The most important reason for me was that he was a legislator who understood the delicate balance of the constitutional interests at stake. Last year he sponsored the term extension bill, H.R. 1621, in conjunction with Sen. Hatch. He was active on intellectual property issues because he truly understood the goals of Framers of the Constitution: that by maximizing the incentives for original creation, we help expand the public store-house of art, films music, books and now also, software. It is said that “it all starts with a song,’’ and these works have defined our culture to audiences world-wide.

Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti’s proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.[39]

Second, the Software Information Industry Association testifies to the need for additional legal protections for databases and compilations:

America’s database producing community and its customers need a new federal law to protect databases that are otherwise noncopyrightable, and a law very much like H.R. 354 should accomplish that goal. Such a statute is absolutely critical if this important industry sector is to continue creating and maintaining high-quality, accurate and reliable products and services to meet the ever-growing market demand for comprehensive collections of information. Without such a law, market instability will only grow, due to a combined fear of unfair competition and unstoppable piracy.[40]

Third, Sen. Orrin Hatch (R-Utah) writes about principles of copyright philosophy:

The mere fact that one’s rights under federal copyright law are limited does not mean that copyright law must be excluded from natural rights theory. Most would acknowledge that American property rights jurisprudence was influenced by natural rights theory, if not based upon it; yet we have tolerated a wide range of restrictions on property rights--too many, in my estimation…[I]t is possible effectively to collapse utilitarian and natural theories of property: it will bring the greatest good to the greatest number if property rights are honored more or less absolutely.

Combining the natural law tradition of common law copyright and the utilitarian purpose expressed in the Copyright Clause yields the first principle of a contemporary copyright philosophy: copyright rights should be protected, unless it can be shown that the extent of protection is hampering creativity or the wide dissemination of works. The Copyright Clause, after all, talks about securing for authors the “exclusive” right to their writings. The burden of persuasion should be on those who seek to diminish copyright rights.” [41]

And finally, the Clinton Administration’s White Paper on Intellectual Property and the National Information Infrastructure argues:

Some participants have suggested that the United States is being divided into a nation of information “haves” and “have nots” and that this could be ameliorated by ensuring that the fair use defense is broadly generous in the NII context. The Working Group rejects the notion that copyright owners should be taxed -- apart from all others -- to facilitate the legitimate goal of “universal access.” [42]

Further examples abound, but the gist is clear: copyists, pirates, thieves, and those who would extract a subsidy from owners threaten the security and vibrancy of the information age so additional safeguards are needed. These new measures are reasonable, they are only incremental, they are in the common interests of information consumers as well as producers, and they are just and equitable. And so the argument has gone.

A new vocabulary is needed to more effectively contest these assertions. Instead of speaking of additional protections, which privileges the point of view of the proprietors, we would assume the point of view of future authors and inventors, those who need to build upon information resources. From this standpoint, the new laws do not provide additional protections; they impose additional restrictions. From this standpoint, the guarantees of fair use are not a tax on property owners, they are the foundation of a system promoting free-speech. Towards this end, we propose casting the competing stakeholders in the debate as innovationists and rent-seekers and the terrain for which they compete as the intellectual commons.

             A.  Innovationists v. Rent Seekers

Turning to the arena of Article I, 8, clause 8, it is unfortunate that the debate over expanding copyright has focused on the means of attempting to achieve the constitutional goal but has ignored the goal itself. Currently, the debate is being mislabeled as between the “High-Protectionists” on the side of law-abiding righteousness and the “Minimalists” on the side of piracy, theft and unrestricted copying. This makes the debate appear to be on a sliding scale, with “pro-rights” on one side and “pro-theft” on the other. As Michael J. Madison points out, the “modern copyright and information law is in large part a battle over metaphors.”[43] The reason “High-Protectionists” and “Minimalists” mischaracterize the copyright debate is these terms focus upon the Constitutional means (the limited monopoly) and not the end goal (progress and innovation).[44] Contemporary intellectual property scholars[45] are not arguing for increasing piracy, theft and trespassing of personal property. These “cyber-scholars” are striving to maintain the public’s right to innovate by working against an undue enlargement of the copyright monopoly without regard to the innovation, advancement or social benefit gained thereby.[46] In order to innovate, an author or inventor needs to use the tools of the knowledge that society has accumulated in the intellectual commons. This point of view places the transformative users of information at the center of analysis. Approaching the information transfer problem from the standpoint of the creator of knowledge in their capacity as user of existing information is more conducive to innovation then the approach that constructs the transformative user as a pirate.[47]

The importance of using the existing tools of knowledge as a building block to subsequent knowledge creation is foundational to Karl Mannheim’s “sociology of knowledge:”

“Strictly speaking it is incorrect to say that the single individual thinks. Rather it is more correct to insist that he participates in thinking further what other men have thought before him. He finds himself in an inherited situation with patterns of thought which are appropriate to this situation and attempts to elaborate further the inherited modes of response or to substitute others for them in order to deal more adequately with the new challenges which have arisen out of the shifts and changes in the situation. Every individual is therefore in a two-fold sense predetermined by the fact of growing up in a society: on the one hand he finds a ready-made situation and on the other he finds in that situation preformed patterns of thought and of conduct.”[48]

The Walt Disney Company itself provides an instructive example. Many of their most successful and endearing works would clearly be copyright infringements – if their view of perpetual copyright duration had been adopted several millennia ago. “Disney” films, such as Snow White, Beauty & the Beast, The Little Mermaid, Sleeping Beauty, The Sword in the Stone, Cinderella, Alice in Wonderland, Fantasia, The Jungle Book, Aladdin, and The Hunchback of Notre Dame would all constitute derivative work copyright infringement, if the original versions were “protected.” [49]

The scholars who seek more progress in science and the useful arts are not “minimalists,” those who believe in promoting progress of science through a vibrant intellectual commons are more accurately labeled as “innovationists.” This term describes their goal in the debate and helps remove the emphasis on the means used to attain these ends. Innovationists disagree with the premise that an increase in proprietary rights automatically promotes progress.[50] Innovationists do agree with the Supreme Court that “monopolies ... unnecessarily stifle competition”[51] and should be avoided unless these monopolies meet “the restraints imposed by the stated constitutional purpose.”[52]

Since the battle of words has not yet reflected the goals of copyright law, it is tempting to call those in favor of extending copyright duration as “anti-innovation.” or “pro-monopoly.”[53] It is unlikely that Senator Hatch, Rep. Bono or Disney’s executives think of themselves as expanding censorship and impeding innovation.  Yet in enacting the Sonny Bono Copyright Term Extension Act, they have deprived the public of the bargained for increase of the intellectual commons “without any counter veiling benefit.”[54] There is no increase in the public welfare by extending monopolies. The entertainment industry, in particular, should be sensitive to the problems of censorship. The goal of the proponents of term extension, stricter enforcement measures, and new database legislation is not to increase censorship for the sake of censorship. As Jessica Litman said:

“The intellectual property epidemic of the current era is the call to give increased legal protection to something because it is valuable: If it is valuable, then giving it property-like protection will generate trade, which will generate wealth, which will generate more investment in similar somethings. Giving it greater protection will generate more trade and more wealth and even more somethings. And we all like lots of somethings.[55]

But how are these “somethings” to be allocated amongst interested claimaints? Litman continues:

“We don’t give out intellectual property rights to encourage authors to appropriate all of the rents that a given creation might yield. What we want, rather, is to assist authors in earning just enough profit to, first, enhance the creative environment enough to stimulate them to create works in the first place, and, second, encourage them to make their works available to us. If they make a killing, that’s great, but it isn’t the system’s purpose. The system incorporates limitations because its purpose is to benefit all of us in a variety of creativity-enhancing ways.”[56]

In order to get more “somethings,” making a photocopy of a scientific article by a scientist for research purposes went from “promoting Progress of Science” to piracy and theft.[57] And what was once a Royal privilege is now viewed as a democratic right.[58] The various policy initiatives discussed in Part IV all increase “somethings” for the various sectors of the information and cultural industries. These “somethings” are higher returns on past investment and greater asset valuations for those who now wish to appropriate all of the rents that a given creation might yield. We will accordingly refer to this group as “Rent Seekers.”[59]

B.  The Intellectual Commons Clause

While Article I, 8, clause 8 of the Constitution has been variously referred to as the Intellectual Property Clause,[60] the Patent Clause,[61] and the Copyright Clause,[62] the Constitution does not directly use these words.[63] These terms focus attention on the means, not the goal, of the Constitution. This Clause uses the term “exclusive right” to define the means, a term inherited from the Statute of Anne. The terminology of the Statute of Anne was in turn derived from the earlier licensing acts. Inasmuch as a primary purpose of the licensing acts was censorship, with historical justification one might just as well refer to Article I, 8, clause 8 as the “limited censorship clause,” the “private censorship clause,” or the “monopoly clause.” The mechanisms Congress has used to implement copyrights and patents are the same means whereby the Crown enforced the licensing acts to shut down printing presses. But the negative implications of the terms censorship and monopoly are now obvious. Governmental censorship is dangerous to democracy, as can be visibly seen in so many parts of the world even today. An important purpose of the First Amendment is to prevent the government from directly censoring speech. The same result should follow where a government granted monopoly has the same censorious effect. Most Americans still view a monopoly is an evil we should barely tolerate, not embrace and expand.[64]

The purpose of Article I, 8, clause 8 is not to create private censorship nor to grant monopolies, but to enhance a long-term goal of public benefit.[65] This public benefit is achieved by increasing the intellectual commons. The short-term means of achieving the long-term goal of increasing the intellectual commons is an economic incentive, via an exclusive right limited in time. Exclusive rights are not in themselves the Constitutional goal.[66] We must not forget that the Constitution mandates that new writings and discoveries shall enter the intellectual commons after “limited times.” Once a work is in the intellectual commons:

Congress may not authorize the issuance of [copyrights or] patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a [copyright and] patent system which by constitution command must “promote the Progress of [Science and] useful Arts ....”[67] (emphasis added)

A work which would have entered the intellectual commons but for a retroactive increase is just as effectively “restricting free access to materials already available” as granting a monopoly over common knowledge. In order to emphasize the constitutional goals, and not a particular means towards those ends, we will refer to Art. I, 8, clause 8 as the “Intellectual Commons Clause.”[68]

The intellectual commons may also be thought of as the “marketplace of ideas,” The ability to prevent the dissemination of works inherently limits this marketplace of ideas that should be available to the public.[69]

The notion of the intellectual commons also includes the right to receive information because without first receiving information, the other protections of the First Amendment lose their meaning.  This viewpoint was recently upheld in Mainstream Loudoun v. Board of Trustees of the Loudoun County Library,[70] where a public library wanted to block certain web sited from being accessed by the public. The court relied on Board of Education v. Pico[71] in finding a right to receive information. In Pico, a plurality affirmed a decision finding the First Amendment limits the government’s right to remove materials from the high school library. “The state may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.”[72]

C. “Privileges” and “Property Rights”

A work or invention does not “fall” into the public domain any more than a leasehold “falls” into the possession of the fee holder at the normal expiration of its term. The leasehold was meant to expire as part of the inherent nature of the non-freehold interest. After the limited period of copyright protection, the former right-holder loses the ability to exclude others and the work becomes available for the public to use. Works vest in the public at the natural expiration of the copyright. Such unfettered use is necessary for the promotion of science and the useful arts, even more so than the grant of the monopoly was in the first instance.[73]

If innovation is to be promoted, we must remove the false halo currently surrounding a patent or copyright and question how much “right” a private citizen should have to essentially censor another citizen’s speech.[74] The first step in minimizing the damages caused by too much censorship is to use words that focus on the goals of our laws, instead of vesting all our terminology in the means used to achieve these goals. When we use words that describe the means for achieving a purpose, it is easy to forget the goal and view the means as an end in itself.[75]

The “right” the Rent Seekers champion was initially a “right” only because the English Crown granted the Stationers' Company the power to enforce an information transfer regime based on censorship. The Framers’ deep concern with the potential for abuse of this “right” is evidenced by the enactment of the First Amendment. [76]

But since the rent-seekers construct their rhetoric in terms of natural or inherent rights, it is is important to recall the Supreme Court’s view on the natural rights theory of copyright. Over 150 years ago, the Court examined whether an author had such a natural “right” to their works, or if the copyright system was primarily to benefit the public. In Wheaton v. Peters, the Court rejected the natural rights theory:

“That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear, from the provision that the author &c. ‘shall have the sole right and liberty of printing,’ &c. Now if this exclusive right existed at common law, and congress were about to adopt legislative provisions for its protection, would they have used this language? Could they have deemed it necessary to vest a right already vested. Such a presumption is refuted by the words above quoted, and their force is not lessened by any other part of the act.” [77]

The Supreme Court rejected the theory of natural rights in copyright in 1834 and they have never looked back. Yet many of the arguments presented by those engaged in rent-seeking behavior rely on some variation of this natural rights theory.[78]

If we really value future innovation, a balance must be struck between censorious limitations on the information transfer process and the free flow of information which favors innovation over the rent seeking interests of a few industries.[79] Unfortunately, many of today’s business leaders and policy makers seem unable to balance immediate financial benefit[80] with the unseen future innovation resulting from a vibrant informational commons.

If the balance between owners and users that characterized the print environment is to survive in an era of digital resources and global networks, the importance of the means/ends distinction needs to be better understood by policy makers. Absent this shift in policy emphasis, innovation will be hampered absent an increased resort to the courts, a manifestation of what Mark Lemley calls the “constitutionalization” of technology law.”[81]

IV.              The Contemporary Policy Environment

In the introduction, we argued that safety valves had been built into the copyright system along three dimensions, temporal, literal scope and effective scope. We characterize the current policy environment, what Jessica Litman refers to as a "copyright epidemic,"[82] as a multi-dimensional assault along all three of these dimensions. This section points to recent examples that evidence this tendency. The first, and most obvious is copyright term extension. The second and third examples, new statutory restrictions on the use of databases and compilations, and the Uruguay Round Agreements Act (URAA) of 1994, evidence an expansion of the dimension of literal scope. The fourth and fifth examples, the anti-circumvention provisions of the Digital Millennium Copyright Act[83] and the No Electronic Theft Act[84] both show movement along the dimension of effective scope.

         A. Copyright Term Extension

Limitations on the temporal duration of a copyright are a critical safety valve designed to mediate the tension between the censorious aspects of monopoly power and the public interest in insuring a vibrant intellectual commons.[85] The initial copyright term of 14 years[86] reflected the concern of the Framers that the grant of monopoly be limited. But beginning in 1962, Congress enacted a series of laws to prevent valuable works, like Disney’s famous rodent Mickey Mouse, from entering the public domain. Table 1 chronicles the retroactive metamorphosis of the copyright term for companies. Thanks to the Copyright Term Extension Act of 1998,[87] the term of copyright now stands at 95 years for works for hire and anonymous works. For individuals, the term is the life of the author plus 70 years.[88] This most recent extension of the copyright term is the eleventh such extension in the past 37 years. And we have every reason to expect another term extension by 2018.[89]

                    Table 1: Maximum Copyright Term for Companies           

   Year                 Law                  Maximum Copyright Term

1962         Pub. L. 87-668                      59 years

1965         Pub. L. 89-142                     61 years

1967         Pub. L. 90-141                      62 years

1968         Pub. L. 90-416                      63 years

1969         Pub. L. 91-147                      64 years

1970         Pub. L. 91-555                      65 years

1971         Pub. L. 92-170                      66 years

1972         Pub. L. 92-566                      68 years

1974         Pub. L. 93-573                      70 years

1976         Pub. L. 94-553                      75 years

1998         Pub. L. 105-298                    95 years

These retroactive increases have stifled innovation by thwarting the Constitutional goal of protecting the Intellectual Commons. These new monopolies granted by Congress have placed obstacles of censorship between future authors and future works.[90] It is unfortunate that we will never be able to regain the lost innovation, nor even know how much these grants of monopolies have retarded our current technological level. While the balance between the “exclusive rights” and “promoting Progress of Science” has shifted in favor of private monopolies,[91] the goal of innovation has been left out of the debate, and those who object are marginalized as pirates.

But is it possible to give any additional incentive to a dead author?[92] Will the author be any more motivated to create new works when an increased term of the copyright monopoly goes to the current monopolist and not the author?[93] Fundamentally, how does a retroactive extension of private monopolies “promote the Progress of Science” at all, let alone significantly enough to justify the public harm caused by this extension of private censorship?[94] And if any retroactive extension is justified, why does the Constitution include “for limited Times?”

Upholding the constitutionality of retroactive extensions in the duration of private censorship “would merely inhibit access to ideas without any countervailing benefit.”[95] Congress has violated the Constitutional limitations placed upon it when it enacted various aspects of the current copyright law of the United States, particularly with regards to the Sonny Bono Copyright Term Extension Act.[96]

Consider what another scholar said about retroactive extension of the copyright term at the time the 1976 Copyright Act was under deliberation:

This continual expansion is not surprising. Holders of copyrights about to expire have a financial interest in urging extension. Authors and publishers can lead a legislature to focus on the production and ‘moral’ arguments for protection, while no single interest group is sufficiently affected to focus legislative attention upon the problems of dissemination. An examination of the question, however, suggests that, even if the moral argument is given its due, which is little, extension is not justified.[97]

B. The Database Bills: New Statutory Restrictions on the Use of Facts.

The second safety valve that limits the reach of the copyright monopoly places constraints on the literal scope of what can be protected. The originality requirement of Section 102 of the copyright act provides an example. In Feist Publications vs Rural Telephone Service Co.,[98] the Supreme Court reaffirmed that a factual compilation must have a modicum of creativity in its selection, coordination or arrangement to qualify for copyright protection:

“No matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking .... The very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas.” Ginsburg, [Creation and Commercial Value: Copyright Protection of Works of Information, 90 Colum. L. Rev. 1865, 1868 (1990).] It may seem unfair that much of the fruit of the compiler’s labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not “some unforeseen byproduct of a statutory scheme.” Harper & Row, [Publishers, Inc. v. Nation Enterprises, 471 U.S. 539,] 589 (1985)(dissenting opinion) It is, rather, “the essence of copyright,” ibid., and a constitutional requirement. [99]

The Feist court emphasized that the primary objective of copyright is not to reward authors, but to promote the Progress of Science and useful Arts, and that while copyright assures authors the right to their original expression, it also encourages others to build freely upon the ideas and information conveyed by a work.[100]

Since this places the contents of most databases outside the scope of copyright, many producers have argued that the lack of legal protection undermines their abilities to protect their investments from misappropriation.[101] Passage of a new law extending protections to such databases has been high on the information industry’s legislative agenda ever since the Feist ruling. The Database Investment and Intellectual Property Antipiracy Act of 1996 was introduced in the 104th Congress[102] with the intent to reverse Feist and extend copyright-type restrictions to databases and compilations. In his introductory remarks, the sponsor Rep. Moorehead sounded familiar themes:

“[t]he bottom line is clear: it is time to consider new federal legislation to protect database developers against piracy and unfair competition, and thus encourage continued investment in the production and distribution of valuable commercial databases. Such legislation could improve the market climate for databases in the United States; ensure protection for U.S. databases abroad on an equitable basis; place the United States on the leading edge of an emerging international consensus; and provide a balanced and measured response to the new challenges of cyberspace. The bill I introduce today aims to advance these goals.”[103]

The bill died in the Judiciary Committee but was reintroduced in the 105th Congress as the Collection of Information Antipiracy Act.[104]  Like its predecessor, it would have provided the industry with the new “protections” they were seeking. Rep. Coble’s introductory remarks echoed Moorehead:

“the bottom line is clear: it is time to consider new federal legislation to protect developers who place their materials in interstate commerce against piracy and unfair competition, and thus encourage continued investment in the production and distribution of valuable commercial collections of information.”[105]

Like its predecessor, H.R. 2652 encountered the strong opposition of library, educational and research interests who feared the bill would adversely affect the public’s access to information contained in databases, constituting an unwarranted expansion of property protections to the detriment of the public interest.[106] While the House passed the measure in May 1998, it was not reported out of Committee in the Senate. In an 11th hour maneuver, the House proponents again added its provisions as Title V of H.R. 2281, the Digital Millennium Copyright Act. The Conference Committee dropped the title from the final version and the bill had died for the second straight Congress.[107]

But the proponents were not to be dissuaded from their assault on the Feist doctrine,[108] and the bill reappeared in substantially the same form in the 106th Congress as H.R. 354, the Collections of Information Antipiracy Act.[109] Like its predecessors, the bill would establish a new property right for “collections of information.” The sponsors’ introductory remarks demonstrate the continuity between this bill and those of its failed predecessors:

“the bottom line is clear: it is time to consider new federal legislation to protect developers who place their materials in interstate commerce against piracy and unfair competition, and thus encourage continued investment in the production and distribution of valuable commercial collections of information.”[110]

While the Feist court expressly recognized that “[t]he primary objective of copyright is not to reward authors, but ‘to promote the Progress of Science and useful Arts.’ Art. I, 8, cl. 8,”[111] the proponents of database legislation continue their assault on this doctrine in the interests of extending the monopoly to collections of facts and data. The statement of the Software and Information Association on the need for database legislation is again instructive:

“U.S. database producers, ancillary industries and database users will all benefit from a new, uniform federal law extending protection to this type of information content. Moreover, such a law will help secure the predominance of the American database industry in the world marketplace and foster new attempts to create an international treaty to bring uniformity to various nation’s database protection efforts.”[112]

The Intellectual Commons Clause clearly gives Congress the power to grant to authors and inventors exclusive rights, for limited times, in their respective writings and discoveries. But given these express limitations, the rent-seekers often look to other constitutional powers as justification for their proposals. In the case of the datrabase bills, the proponents have attempted to circumvent the limitations of Feist, Section 102 of the Copyright Act and the constitution itself by looking to the Commerce Clause [113] as the source of their authority. But the Commerce Clause does not provide a means of eradicating from the Constitution a limitation placed upon Congress.[114]

C.     Uruguay Round Agreements Act

The Uruguay Round Agreements Act (URAA) of 1994,[115] provides another example of an expansion of the literal scope of copyright protection. The Act restored the copyrights of foreign, but not American, works that were in the public domain due to failure to meet the formalities required by the 1909 and 1976 Copyright Acts.[116]  In approving this retroactive grant, Congress ignored the Court’s holding in Graham that “… Congress may not authorize the issuance of [copyrights or] patents whose effects are to remove existent knowledge from the public domain.”[117] Congress also ignored further ignores the Court’s warning that, “The grant of an exclusive right ... was not to be freely given.”[118] The reason a monopoly is not to be freely given is set forth in Pfaff v. Wells Electronics, Inc.,

“The balance between the interest in motivating innovation and enlightenment by rewarding invention with patent protection on the one hand, and the interest in avoiding monopolies that unnecessarily stifle competition on the other, has been a feature of the federal patent laws since their inception.”[119] 

D.  The Anti-Circumvention and Rights Management Provisions of the Digital Millennium Copyright

The anti-circumvention provisions of the Digital Millennium Copyright Act provide that “no person shall circumvent a technological measure that effectively controls access to a work protected by this title.”[120] This language had been widely criticized as overly broad and likely to proscribe many acts that are legitimate and lawful such as encryption research and reverse engineering.[121]

The measure was also criticized as being a threat to personal privacy as users would be prohibited from taking measures to prevent the collection of information about their online activities.[122] The measure as enacted also contains broad limitations on the manufacture and distribution of devices capable of circumventing technological measures that control access to protected works or that protect the rights of a copyright owner (Sections 1201(a)(2) and 1201(b)). In addition, Section 1202 prohibits the removal or alteration of rights management information as well as the subsequent distribution of works where such information is known to have been altered or removed. Remedies for the violation of sections 1201 or 1202 include civil and criminal penalties.[123]

But the anti-circumvention rules as enacted were essentially a deferral of difficult policy decisions. It was not as a long-term solution that settles the fundamentally irreconcilable positions of the stakeholders. Reps. Klug and Boucher, the architects of the final legislative compromise, said that the rules, even as amended, bootstrap the limited monopoly of copyright into a perpetual right, and fundamentally alter the balance that has been struck in the last 200 years.[124] They also note that delegating authority to the Secretary of Commerce to develop anti-circumvention regulations was simply a means of sidestepping the legislative stalemate that existed.

In an extensive critique of the anti-circumvention and copyright management provisions, Pamela Samuelson expressed concern that they would enable privacy destructive monitoring of user activities as well as outlaw some unquestionably legitimate acts.[125] Rather than expand copyright law to impose liability even where no act of copyright infringement actually occurs, Samuelson would prefer to let the market develop before imposing legislative solutions, in which case the better approach would still be to narrow the activities regulated by the anti-circumvention provision.[126]

Similarly, Julie Cohen concluded that the Chapter 12 provisions give copyright owners carte blanche to adopt whatever copyright management technologies they conclude will best serve their interests[127] and that the provisions are an additional layer of private legislation which may override established copyright policy.[128] Her argument is bolstered by the language of the White Paper itself which states, “[c]opyright owners should be free to determine what level or type of protection (if any) is appropriate for their works, taking into consideration cost and security needs, and different consumer and market preferences.”[129]

Despite these serious reservations, the proponents of the measure were able to convince Congress that the provisions were necessary for the United States to meet its treaty obligations,[130] and that they were simply incremental measures needed to fill holes in the law caused by technological advances. A major premise of the White Paper was that:

“Creators and other owners of intellectual property rights will not be willing to put their investments and property at risk unless appropriate systems are in place -- both in the U.S. and internationally -- to permit them to set and enforce the terms and conditions under which their works are made available in the NII environment.”[131]

Lawrence Lessig points out that the protection of any property interest involves a combination of both technological and legal protections. [132] He is concerned that this technological control will supersede the public policy limitations placed on the rights of intellectual property holders, giving them excessive control over access and rendering concepts such as fair use irrelevant. Having privatized the law, the designers of technology (the “codewriters” in Lessig’s terminology) will replace the designers of the law. Lessig asks to what extent should the law permit holders of intellectual property to get more protection through code than they would through law, and he criticizes the White Paper for missing this point:

“It recommends not only changes in law to protect further intellectual property, but it also champions the changes in code that will help code replace law. It adds to these recommendations the recommendation that it be illegal to write software that aims at breaking the protections of code. Thus, law would not only be replaced by code; it will punish efforts to escape the code.” [133]

In Lessig’s view, the general direction of the White Paper was wrong because advances in technology do not threaten copyright: 

“[The White Paper’s effort to strengthen the law] is fundamentally wrong. We are not entering a time when copyright is more treatened than it is in real space,  we are instead entering a time when copyright is more effectively protected than at any time since Gutenberg.  The power to regulate access to and use of copyrighted materials is about to be perfected.  Whatever the mavens of the mid-1990’s may have thought, cyberspace is about to give holders of copyrighted property the biggest gift of protection they have ever known….The lesson in the future will be that copyright is protected far too well.” [134]

            E.  The No Electronic Theft Act

Before the passage of “No Electronic Theft Act of 1998,”[135] the Copyright Act contained criminal penalties for willful copyright infringement only in cases involving `commercial advantage or private financial gain. But in a 1994 case involving the distribution of copyrighted software over a student operated bulletin board, a court dismissed a criminal prosecution because the defendant never benefited financially from the transactions.[136] This triggered a strong reaction that was the impetus for the new legislation. Eliminating the requirement of direct financial gain, the Act extends the reach of criminal sanctions to include the reproduction or distribution of copyrighted works based upon the total retail value of the work. The act extends the statute of limitations from three to five years[137] and expressly calls for “victim impact statements” during sentencing.  In their enthusiasm to close the perceived “LaMacchia loophole,” Congress has indeed cast a broad dragnet.

While the Act is susceptible to a number of challenges, especially if prosecutors attempt to apply it broadly to persons in the non-profit sector, the measure will likely succeed in creating a chilling effect against the full exercise of one’s rights to copy and distribute works limited by copyright. This chilling effect highlights the nexus between copyright law and censorship. It also seems designed to shift certain costs of enforcement from the private parties who financially benefit from copyright protection to the public at large.

F.   Summary

Do these examples represent incremental adjustments that are only necessary to fine tune existing law to meet the challenges of the digital environment? Or do these changes represent a deeper shift in the underlying logic of rules governing the creation, dissemination and use of information and knowledge? In order to address this question, these and other examples need to be further interrogated in order to see coherent patterns emerge. We believe that they are not isolated instances of incremental changes, but represent a multi-pronged attack on the existing safety valves that have served to mitigate the censorious aspects of the copyright monopoly. And the words that are used by the proponents of these changes are indeed significant.

V.               Gaining a New Perspective on the Need for Incentives

Congress and the Rent Seekers often speak to the need for incentives. But they do not adequately consider the appropriate balance between incentives and censorship.[138] Clear historical data is difficult to find on whether high monopoly protection or low monopoly protection will result the greatest overall progress. One case study of two competing intellectual property approaches is presented by AnnaLee Saxenian in Regional Advantage. In this book, Silicon Valley of California and Route 128 of Massachusetts are examined. Prof. Saxenian’s study shows that one of the significant advantages Silicon Valley had over Route 128 was a more innovation focused attitude. Route 128, on the other hand, was focused on the censorship aspect of intellectual property and protecting existing technology. Silicon Valley is an American success story because they out-innovated Route 128, not because they out censored them.  While Congress and the East Coast have completely missed this fact, the Supreme Court has not. The tendency for the court to return to the constitutional purpose of copyright was evidenced in Quality King Distributors, Inc. v. L’Anza Research International, Inc., where the Court said:

In construing the statute, however, we must remember that its principal purpose was to promote the progress of the “useful Arts,” U.S. Const., Art. I, 8, cl. 8, by rewarding creativity, and its principal function is the protection of original works, rather than ordinary commercial products that use copyrighted material as a marketing aid.[139]

The case law regarding the Constitutional purpose of copyright remains clear – copyright must promote progress. Legislative enactments, such as those outlined in Part IV, trammel on this Constitutional mandate as do attempts to exercise what is tantamount to the copyright power under the guise of other constitutional powers.

In contrast to the rhetoric of the contemporary policy environment, it is instructive to review the writings of the drafters of the constitution. It is clear that they were very worried about the monopoly power and that they saw limitations on this power as essential.

On December 20, 1787, Thomas Jefferson wrote to James Madison from France concerning the recently-drafted Constitution:

I do not like... the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land...[140]

Jefferson placed freedom from monopolies (such as copyrights and patents) to be of similar importance to freedom of speech, religion, and the press. Given the history of copyright, it was very reasonable of him to view the monopolies of expression with such hostility. He repeated this view in his letter to Madison dated July 31, 1788:

I sincerely rejoice at the acceptance of our new constitution by nine states. It is a good canvas, on which some strokes only want re-touching. What these are, I think are sufficiently manifested by the general voice from North to South, which calls for a bill of rights. It seems pretty generally understood that this should go to juries, habeas corpus, standing armies, printing, religion and monopolies. I conceive there may be difficulty in finding general modification of these suited to the habits of all the states. But if such cannot be found then it is better to establish trials by jury, the right of Habeas corpus, freedom of the press and freedom of religion in all cases, and to abolish standing armies in time of peace, and monopolies, in all cases, than not to do it in any... The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression.[141]

Madison, in a letter of October 17, 1788, responded:

With regard to monopolies they are justly classed among the greatest nuisances in government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our governments than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.[142]

Jefferson’s next letter to Madision on August 28, 1789 took an alternate approach, where he proposed an addition to the bill of rights:

I like the declaration of rights as far as it goes, but I should have been for going further. For instance, the following alterations and additions would have pleased me... Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding ___ years, but for no longer term, and for no other purpose.[143]

Writing from France, Jefferson communicated his own preference for the term of copyright was to Madison a few days afterward, in a letter of September 6, 1789. There, Jefferson proposed a term of 19 years, based on the following calculation:

The question Whether one generation of men has a right to bind another seems never to have been started on this or our side of the water... that no such obligation can be so transmitted I think very capable of proof. -- I set out on this ground, which I suppose to be self evident, that the earth belongs ... to the living; that the dead have neither powers nor rights over it... A generation coming in and going out entire... would have a right on the first year of their self-dominion to contract a debt for 33 years, in the 10th for 24, in the 20th for 14, in the 30th for 4, whereas generations, changing daily by daily deaths and births, have one constant term, beginning at the date of their contract, and ending when a majority of those of full age at that date shall be dead. The length of that term may be estimated from the tables of mortality. Take, for instance, the tables of M. de Buffon... [according to which] half of those of 21 years [of age] and upwards living at any one instant of time will be dead in 18 years 8 months, or say 19 years as the nearest integral number. Then 19 years is the term beyond which neither the representatives of a nation, nor even the whole nation itself assembled, can validly extend a debt... This principle that the earth belongs to the living, and not to the dead, is of very extensive application... Turn this subject in your mind, my dear Sir... Your station in the councils of our country gives you an opportunity for producing it to public consideration... Establish the principle... in the new law to be passed for protecting copyrights and new inventions, by securing the exclusive right for 19 instead of 14 years.[144]

As shown above, Thomas Jefferson firmly believed that a monopoly granted to one generation should not burden the next generation. If we were to take Jefferson’s interpretation of “limited Times,” life of the author plus anything would not qualify. Nowhere does Jefferson propose maintaining a copyright in order to support the grandchildren of authors, especially since he argued against this very position believing one generation should not burden the next. Jefferson could easily have said the copyright term should be for the life of the author and still remained true to his position of not placing a burden on the next generation. Instead, he based his 19 year term on the average life expectancy, not the longest living person. He anticipated that many authors would live to see their copyrights expire.[145]

Benjamin Franklin refused to take a patent on his Franklin stove, stating, “Since we benefit from the inventions of others, so we should contribute to others’ benefit.”[146] But according to the rhetoric of the rent-seekers, Franklin would have never created or invented anything unless he could reap a huge profit from it. History shows otherwise. Not only was 14 years sufficient incentive for many people to author works and invent inventions, some like Benjamin Franklin did not even claim the 14 years.

The above statements and actions of the Framers is worth comparing to the discourse emanating from contemporary policy makers.

In Graham the Supreme Court said “Jefferson, like other Americans, had an instinctive aversion to monopolies. It was a monopoly on tea that sparked the Revolution and Jefferson certainly did not favor an equivalent form of monopoly under the new government.”[147] Yet according to Rep. Bono, the Framers wanted to maximize monopolies, not limit them. Consider again Thomas Jefferson’s view that

“Nineteen years is the term beyond which neither the representatives of a nation, nor even the whole nation itself assembled, can validly extend a debt… This principle that the earth belongs to the living, and not to the dead, is of very extensive application.”[148]

Is there any way to reconcile the Entertainment Industry’s rhetoric of maximum incentives with Jefferson’s view that “even the whole nation itself assembled [could not] validly extend a debt [beyond 19 years.]”

In defense of the term extension act, Sen Hatch argues:

“In short, the Copyright Term Extension Act has, as its focus, the actual authors of the works that would receive extended copyright protection and seeks to ensure that they will be the ones to reap the financial rewards of such protection.”[149]  (emphasis added)

But if this were true, Congress could have easily vested the retroactive increase directly in the author.[150] Sen. Hatch’s article makes it clear that Congress is very concerned about American business, American copyright holders, and the millions of dollars copyrights generate. As stated above, the money copyrights generate needs to come from somewhere, and that somewhere, at first glance, is the consumer. All of us pay a special copyright tax each time we purchase merchandise with a Winnie-the-Pooh or a Mickey Mouse logo. Like most “temporary taxes” Congress passes, this one is lasting well beyond the promised term. Not only is the tax bad enough, but thousands of potential authors are not able to create new works to based upon the ideas of dead authors. “[The] principle that the earth belongs to the living, and not to the dead”[151] may have seemed obvious to Thomas Jefferson in 1789. To the Congress of 1998, however, “a contemporary copyright philosophy [is] that copyright protection should be expanded unless the extent of such protection would hamper creativity or the wide dissemination of works.”[152] But there are indirect costs beyond those passed on to consumers, costs that are borne by society as a whole.  These losses occur any time a user of information, be they author, inventor, artist, scholar or student, suffers a loss of access to information resources because of the censorious effects of the copyright monopoly. These effects may take the form of an inability to access needed resources in the physical sense, as in the case of a cancelled journal subscription. They may also result from the more subtle chilling effect on the reasonable assertion of fair use rights that is the hallmark of the new regime of regulation. These indirect costs when taken together substantially curtail what Manuel Castells calls society’s symbolic capacity:

“The more a society facilitates the exchange of information flows, and the decentralized generation and distribution of information, the greater will be its collective symbolic capacity.  It is this capacity which underlies the enhancement and diffusion of information technologies, and thus the development of productive forces.” [153](1989: 15-16)


VI.              Conclusion: The Paradox of Innovation through Monopolies

Trying to promote innovation by granting monopolies is paradoxical. The framers understood this. Yet many contemporary policymakers seem to have a single-minded determination to provide greater “protections” through the strengthening of the monopoly power. But grants of monopoly privileges made more sense when viewed in light of the history of the licensing acts and the desire by authorities to stop the spread of “heretical” information. While the right to exclude may have been essential to achieving the censorious goal of the licensing acts, it is no longer consistent, much less required, for the contemporary goal of promoting innovation. The right to exclude is inimical to the progress of innovation.

The words we use to describe an argument have tremendous power on our view about the issues. The debate over the scope of copyright protection has shifted focus, so that monopolies because desirable and promoting innovation because theft. With this change in terminology, the purpose behind our intellectual property laws has shifted from promoting progress to making somethings. And that something is money. We need not maintain censorship as the foundation of our intellectual property laws. Upholding the constitutionality of retroactive extensions in the duration of private censorship “would merely inhibit access to ideas without any countervailing benefit.”[154]

The unconstitutional practice of retroactively expanding copyright duration started with only one or two year extensions at a time. These laws were unchallenged, and so the trend continued. A particular 4th Amendment violation may seem trivial and technical:

[B]ut illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.[155]

If we value innovation as a necessary element of progress and not simply as a legitimization for accumulation by the information and cultural industries, then we need to change the words we use to talk about the incentive/monopoly debate. Focusing once more on the goals of the Constitution and the real nature and interests of the stakeholders debating the issues will help return the debate to a more balanced approach. The innovationists and the rent-seekers have very different agendas and very different viewpoints about the role of information and knowledge in what is coming to be called the information society.



B.S. Chemistry 1989, Pacific Union College; Ph.D. Biochemistry 1997, U.C. Riverside; J.D., U.C. Berkeley, Boalt Hall School of Law 1999; Associate, McDermott, Will and Emery, Silicon Valley Office. The author would like to thank Laurel Jamtgaard, Dennis Karjala, Mark Lemley, and Timothy Phillips for their helpful comments and encouragement. The author would specifically like to thank Pamela Samuelson for her guidance and support in writing this article. Any mistakes or omissions are the sole responsibility of the authors.      

* J.D. LL.M., MPA, MLS; Boalt Express Librarian, Boalt Hall Law Library; Doctoral Candidate, UCLA Department of Information Studies.

[1] U.S. Const. Art 1, 8, cl. 8; Graham v. John Deere, 383 U.S. 1, 5-10 (1966).

[2] See Craig Joyce, William Patry, Marshall Leaffer & Peter Jaszi, Copyright Law 6 (3rd ed. 1994).

[3] 8 Anne c. 19, 1710. For a history of the Statute of Anne, see Mark Rose, Authors and Owners: The Invention of Copyright 47 (1993).

[4] As adopted by The National Conference Of Commissioners on Uniform State Laws (July 1999), UCITA Section 102 (a)(40) defines “informational rights” to include,  “all rights in information created under laws governing patents, copyrights, mask works, trade secrets, trademarks, publicity rights, or any other law that gives a person, independently of contract, a right to control or preclude another person's use of or access to the information on the basis of the rights holder's interest in the information.”). Available online at <http://www.law.upenn.edu/bll/ulc/ucita/ucita_99.htm> (visited 8/20/00). The very fact that the UCITA definition of informational “rights” can be used to define censorship underscores the degree to which the current implementation of Art. I, 8, cl. 8 has significantly diverged from what the Constitutional Framers envisioned.

[5] See. e.g., Reno v. ACLU, 117 S.Ct. 2329 (1997); Eugune Volokh and Brett McDonnell, Freedom of Speech and Independent Judgement Review in Copyright Cases, 107 Yale L.J. 2431, 2467 (1998).

[6] Several scholars have written about problems of censorship and copyright law. See. e.g., Julie E. Cohen, Constitutional Issues Involving Use of the Internet: Intellectual Property and Censorship of the Internet, 8 Seton Hall Const. L.J. 693 (1998); Wendy J. Gordon, Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship, 57 U. Chi. L. Rev. 1009 (1990); Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 Yale L.J. 283, 288 n. 9 (1996)(citing to other scholars); Patrick Wilson, Copyright, Derivative Rights and the First Amendment. 39 Library Trends 92 (1990).

[7] The term “fair use” was coined in Lawrence v. Dana, 15 F. Cas. 26 (C.C.D. Mass. 1869), and had been codified in 17 U.S.C. 107. The Supreme Court has characterized fair use as a First Amendment protection. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985). But even though the fair use doctrine is Constitutionally related, courts still find in favor of monopoly over scientific research. See. e.g., American Geophysical Union v. Texaco, 802 F. Supp. 1 (S.D.N.Y. 1992).

[9] See generally, Baker v. Sheldon, 101 U.S. 99 (1880) (Idea/expression doctrine).

[10] 17 U.S.C. 102. See generally, Feist Publications v. Rural Telephone Service, 299 U.S 340 (1991).  

[11] Id. at 349-350.

[12] See. e.g., Marci Hamilton, Copyright Duration Extension and the Dark Heart of Copyright, 14 Cardozo Arts & Ent. L.J. 625 (1996).

[13] See. e.g., infra Part ___; AnnaLee Saxenian, Regional Advantage: Culture and Competition in Silicon Valley and Route 128 (1994).

[14] William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325, 326 (1989). Cf. Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 Mich. L. Rev. 1197, 1204-1209 (1996). See also Yale Braunstein, Dietrich Fischer, Janusz Ordover, and William Baumol, Economics of Property Rights as Applied to Computer Software and Data Bases, Report prepared for the National Commission on New Technological Uses of Copyrighted Works, Washington, D.C., June 1977. (defining the conflict to be resolved as between the desire for a free flow of Ideas, on the one hand with the establishment of incentives for the creation of ideas on the other.

[15] For example, much scholarly work is generated by authors whose incentives to produce include several factors beyond direct monetary remuneration.

[16] See, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984); Feist Publications v. Rural Telephone Service, 499 U.S. 340, 349-50 (1991).

[17] See. e.g., Joseph A. Lavigne, For Limited Times? Making Rich Kids Richer via the Copyright Term Extension Act of 1996, 73 U. Det. Mercy L. Rev. 311, 322 (1996); R. Anthony Reese, Note, Reflections on the Intellectual Commons: Two Perspectives on Copyright Duration and Reversion, 47 Stan. L. Rev. 707, 726 (1995).

[18] Which we prefer to call, the “Intellectual Commons Clause.” See infra Part III (B).

[19] See infra, Part IV (A).

[20] See Joyce, et. al., Copyright Law, note 2 supra at 6. One might also compare the logic of the Crown’s approach to the logic of the U.S. Government’s licensing requirements for radio and television transmissions, as well as the recent attempt to regulate the Internet.

[21] Id.

[22] Rose, Authors and Owners, note 3, supra at 31 (citing The Statutes of the Realm from Magna Carta to the End of the Reign of Queen Anne. 1810-1828. London: Dawsons, 1963. 11 vols.).

[23] Id.

[24] Id. This aspect of the licensing act is relatively unchanged today in the form of a temporary restraining order (TRO) and seizure of infringing works. See. e.g., Religious Technology Center v. Netcom On-Line Communications Services, Inc., 923 F.Supp. 1231, 1240 (N.D. Cal. 1995) (TRO and writ of seizure under 17 U.S.C. 503(a) to the plaintiff in an attempt to censor the dissemination of religious writings). The trend toward seizure of infringing equipment continues, see _______ and ________.

[25] Rose, Authors and Owners, note 3, supra at 31.

[26] Id. at 31-32.

[27] Id. at 42.

[28] Id at 43. Compare the Stationer’s Company’s arguments in 1698 with those of Sen. Orrin Hatch in 1998 in his article, Toward a Principled Approach to Copyright Legislation at the Turn of the Millennium, 59 U. Pitt. L. Rev. 719, 720 (1998).

[29] Rose, Authors and Owners, note 3, supra at 43.

[30] Id at 47.

[31] Id at 46. The title of the Statute of Anne was “A Bill for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors, or Purchasers, of such Copies, during the Times therein Mentioned.” Admittedly, the politics of the enactment of the Statue of Anne were more complex than stated above.

[32] See generally, Jessica Litman, Revising Copyright Law for the Information Age, 75 Ore. L. Rev. 19 (1996).

[33] The first patent system developed five centuries ago in Venice, or perhaps sooner. See Robert Merges, Patent Law and Policy 3 (2nd ed. 1997). Patent law likely influenced the development of copyright law because they both employ the same basic tactic – the ability to exclude others. Even though the history of patents are not as enmeshed in censorship as copyrights, today patent law maintains more private censorship control because there is no independent development, fair use, or First Amendment defense to patent infringement.

[34] See. e.g., Robert P. Merges, et al., Intellectual Property in the New Intellectual Age 327-28 (1997).

[35] Orrin Hatch, Toward a Principled Approach to Copyright Legislation at the Turn of the Millennium, 59 U. Pitt. L. Rev. 719, 720 (1998).

[36] Two recent cases serve as further examples of our assertion that the mechanisms of censorship and copyright closely intertwined. In United Christian Scientists v. First Church of Christ, Scientists, 829 F.2d 1152 (D.C. Cir. 1987), a measure retroactively extending copyright to provide “quality control” for religious works was challenged. The interest in “quality control” asserted by First Church mostly involved an attempt to prevent a group of dissenting Christian Scientists from sharing their faith with others. While the law was struck down based on the Establishment Clause, an unexpired copyright would have allowed the censorship actually sought by First Church.

In Religious Technology Center v. Netcom On-Line Communiations Services, Inc., 923 F.Supp. 1231, 1240 (N.D. Cal. 1995), .the church was also trying to provide “quality control” and censor a former member from publishing some of the church’s teachings on the Internet. While the case also involved trade secrets, the church was successful in “seizing” infringing works by erasing files from the hard drive of defendants computer after making diskette copies. The two cases illustrate the point that censorship power is still at the basis of copyright law. See also, e.g., Religious Technology Center v. Lerma, 908 F. Supp. 1353 (E.D. VA, 1995); Religious Technology Center v. F.A.C.T.Net, Inc., 901 F. Supp. 1519 (D. Colo. 1995); Religious Technology Center v. Wollersheim, 971 F.2d 364 (9th Cir. 1992).

In contrast, David Nimmer argues that copyright has a minimal impact on the First Amendment. See, Nimmer on Copyright 1.10[c] (1998). We believe there is a significant impact and, as a result, any such law passed by Congress should be subject to strict scrutiny.  See generally, Reno v. ACLU, 117 S.Ct. 2329, 2346 (1997) (striking down the provisions of the Communications Decency Act because of the governmental interest in protecting children does not justify an unnecessarily broad suppression of speech addressed to adults under the First Amendment).

[37] George Lakoff, Metaphor, Morality, and Politics, or, Why Conservatives Have Left Liberals in the Dust, 62 Social Research 2 (Summer 1995). See generally George Lakoff, Metaphors We Live By (1980).

[38] Id. at ___. This is not to suggest that there is a strong correspondence or correlation between “liberal/conservative” and , “maximalist/minimalist” (or “rent seeker/innovationist” in our terminology). Indeed, one of the puzzles of emerging information policy is the lack of such correspondence.

[39] Statement of Mary Bono, (R-Cal), 144 Cong Rec H 9946, 9951 (1998).

[40] Testimony of Daniel C. Duncan, (Vice President for Government Affairs Software and Information Industry Association). Hearing On H.R. 354, The Collections of Information Antipiracy Act, House Committee on the Judiciary Subcommittee on Courts and Intellectual Property, (March 18, 1999).

[41] Hatch, note 35 supra at 722-723.

[42] United States Department of Commerce. Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report on the Working Group on Intellectual Property Rights 84 (1995).

[43] See. e.g., Michael J. Madison, Legal-Ware: Contract and Copyright in the Digital Age, 67 Fordham L. Rev. 1025, 1034 (1998) (referencing Clay Calvert, Regulating Cyberspace: Metaphor, Rhetoric, Reality, and the Framing of Legal Options, 20 Hastings Comm. & Ent. L.J. 541, 543 & n. 13 (1998); Robert Reilly, Mapping Legal Metaphors in Cyberspace: Evolving the Underlying Paradigm, 16 J. Marshal J. Computer & Info. L. 575, 579 & n.2 (1998)).

[44] The goal is progress and innovation, the means is a limited monopoly. See, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984); Feist Publications v. Rural Telephone Service, 499 U.S. 340, 349-50 (1991).

[45] See. e.g., James Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail, and Insider Trading, 80 Cal. L. Rev. 1413 (1992); James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors, 66 U. Cin. L. Rev. 178 (1997). Julie E. Cohen, Constitutional Issues Involving Use of the Internet: Intellectual Property and Censorship of the Internet, 8 Seton Hall Const. L.J. 693 (1998); Julie E. Cohen, A Right to Read Anonymously: A Closer Look at “Copyright Management” in Cyberspace, 28 Conn. L. Rev. 981 (1996); Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of “Rights Management,” 97 Mich. L. Rev. 462 (1998). Wendy J. Gordon, Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship, 57 U. Chi. L. Rev. 1009 (1990). Marci A. Hamilton, The Dormant Copyright Clause, __; Marci Hamilton, Copyright Duration Extension and the Dark Heart of Copyright, 14 Cardozo Arts & Ent. L.J., 655 (1996). ., Peter Jaszi, Goodbye to All That - A Reluctant (and Perhaps Premature) Adieu to a Constitutionally-Grounded Discourse of Public Interest in Copyright Law, 29 Vand. J. Transnat’l L. 595 (1996); Peter Jaszi, The Author Effect: Contemporary Copyright and Collective Creativity, 10 Cardozo Arts & Ent. L.J. 293 (1992). Dennis S. Karjala, http://www.public.asu.edu/~dkarjala/index.html/ (visited February 18, 1999); Dennis S. Karjala, Comment of U.S. Copyright Law Professors on the Copyright Officer Term of Protection Study, 16 Eur. Intell. Prop. Rev. 531 (1994); Stephen R. Barnett and Dennis S. Karjala, Copyright From Now Till Practically Forever, The Washington Post OpEd page, July 14, 1995. David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post-Literate Millennium, Law & Contemp. Probs., Spring 1992, at 139. Joseph A. Lavigne, Making Rich Kids Richer Via the Copyright Term Extension Act of 1996, 73 U. Det. Mercy L. Rev. 311 (1996). Mark A. Lemley, Romantic Authorship and the Rhetoric of Property, 75 Texas L. Rev. 873 (1997); Mark Lemley & Eugene Volokh, Freedom of Speech and Injuctions in Intellectual Property Cases, 48 Duke L.J. 147 (1998). Lawrence Lessig, <http://cyber.harvard.edu> (visited March 5, 1999). Jessica Litman, Revising Copyright Law for the Information Age, 75 Ore. L.Rev 19 (1996), Jessica Litman, The Public Domain, 39 Emory L.J. 965 (1990). Jessica Litman, The Exclusive Right to Read, 13 Cardozo Arts & Ent L.J. 29 (1994); Jessica Litman, Mickey Mouse Emeritus: Character Protection and the Public Domain, 11 U. Miami Ent. & Sports L. Rev. 429 (1994). Michael J. Madison, Legal-Ware: Contract and Copyright in the Digital Age, 67 Fordham L. Rev. 1025 (1998). Robert Merges, Property Rights Theory and the Commons: The Case of Scientific Research, Soc. Phil. & Pol., Summer 1996, at 145, 146-47. Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 Yale L.J. 283 (1996). (Netanel does not consider himself to be a Minimalist, but he also disagrees with High-Protectionists. In this article, he proposes a “democratic paradigm,” which we believe is complementary with the terminology set forth in this paper). David Nimmer, The End of Copyright, 48 Vand. L. Rev. 1385 (1995); M. Nimmer & D. Nimmer, Nimmer on Copyright, 1.10[c] (1998). J.H. Reichman, The Duration of Copyright and the Limits of Cultural Policy, 14 Cardozo Arts & Ent. L.J., 625 (1996). Pamela Samuelson, Digital Media and the Changing Face of Intellectual Property Law, 16 Rutgers Computer & Tech. L.J. 323 (1990); Pamela Samuelson, The U.S. Digital Agenda at WIPO , 37 Va. J. Int’l L. 369 (1996); Pamela Samuelson, The Copyright Grab, Wired, Jan. 1996, at 134; Pamela Samuelson, Information as Property: Do Ruckelshaus and Carpenter Signal a Changing Directionin Intellectual Property Law?, 38 Cath. U. L. Rev. 365, 397-98 (1989). Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 Mich. L. Rev. 1197, 1204-1209 (1996). Diane Leenheer Zimmerman, Copyright in Cyberspace: Don’t Throw Out the Public Interest with the Bath Water, 1994 Ann. Surv. Am. L. 403; Diane Leenheer Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 Wm. & Mary L. Rev. 665 (1992).

[46] See Graham v. John Deere, 383 U.S. 1, 5-6 (1966).

[47] Hatch, note 35 supra at 720.

[48] Karl Mannheim. Ideology and Utopia 3 (1936).

[49] 17 U.S.C. 106(2).

[50] See. e.g., Hatch, note 35 supra at 721.

[51] Pfaff v. Wells Electronics, Inc., 119 S. Ct. 304, *5 (1998).

[52] Graham v. John Deere, 383 U.S. 1, 5-6 (1966).

[53] “It is good that authors should be remunerated; and the least exceptional way of remunerating them is by a monopoly. But monopoly is evil. For the sake of the good we must submit to the evil; but the evil ought not last a day longer and is necessary for the purpose of securing the good.” Thomas Babington Macaulay, Copyright, in 1 The Speeches of Macaulay 235, 240-41 (1900) (speech given Feb. 5, 1841)(emphasis added).

[54] Quality King Distributors, Inc. v. L’Anza Research International, Inc., ___ U.S. ____, 118 S. Ct. 1125, 140 L. Ed. 2d 254, 268 (1998) (quoting Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 450-451 (1984)). The unconstitutionality of retroactive copyright extensions because of a betrayal of the public trust is championed by the Chicago School Professor Richard Epstein. See Richard A. Epstein, Rule of Law: Congress’s Copyright Giveaway, Wall St. J., Dec. 21, 1998, at A19.

[55] Mickey Mouse Emeritus: Character Protection and the Public Domain, 11 U. Miami Ent. & Sports L. Rev 429 (1994).

[56] Id. at 434.

[57] See. e.g., American Geophysical Union v. Texaco, 802 F. Supp. 1 (S.D.N.Y. 1992).

[58] Hatch, note 35 supra at 721. (“The first principle of a contemporary copyright philosophy should be that copyright is a property right that ought to be respected as any other property right.”)

[59] See generally, Toward a Theory of the Rent-Seeking Society (James M. Buchanan, et al. eds., 1980).

[60] See. e.g., Edward C. Walterscheld, To Promote the Progress of Science and Useful Arts: The Background and Origin of the Intellectual Property Clause of the United States Constitution, 2 J. Intell. Prop. L., 1 (1994).

[61] See. e.g., Graham v. John Deere Co., 383 U.S. 1 (1966).

[62] See. e.g., Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991).

[63] See, Mark A. Lemley, Romantic Authorship and the Rhetoric of Property, 75 Tex. L. Rev. 873, 895-904 (1997), (arguing that the term “Property” should not be applied to innovations in the same way it is applied to a car or house); See also, Robert Merges, Property Rights Theory and the Commons: The Case of Scientific Research, Soc. Phil. & Pol., Summer 1996, at 145, 146-47; Pamela Samuelson, Information as Property: Do Ruckelshaus and Carpenter Signal a Changing Direction in Intellectual Property Law?, 38 Cath. U. L. Rev. 365, 397-98 (1989).

[64]  “It is good that authors should be remunerated; and the least exceptional way of remunerating them is by a monopoly. But monopoly is evil. For the sake of the good we must submit to the evil; but the evil ought not last a day longer and is necessary for the purpose of securing the good.” Thomas Babington Macaulay, Copyright, in 1 The Speeches of Macaulay 235, 240-41 (1900) (speech given Feb. 5, 1841)(emphasis added).

[65] Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

[66] See, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984); Feist Publications v. Rural Telephone Service, 499 U.S. 340, 349-50 (1991).

[67] Graham v. John Deere, 383 U.S. 1, 5-6 (1966).

[68] The term “Intellectual Commons” is used instead of “Public Domain,” even though both mean the same thing. See generally, R. Anthony Reese, Note, Reflections on the Intellectual Commons: Two Perspectives on Copyright Duration and Reversion, 47 Stan. L. Rev. 707 (1995). I chose not to use “public domain,” in part, because the term has received a considerable amount of bad press from the Entertainment Industry. Another proposed term synonymous with the pubic domain is “open space.” See generally, Michael J. Madison, Legal-Ware: Contract and Copyright in the Digital Age, 67 Fordham L. Rev. 1025 (1998).

[69] See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). (“it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.” The Red Lion court further noted that “the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences … may not constitutionally be abridged either by Congress or by the FCC.”)

[70] 2 F. Supp. 2d 783 (E.D. Va 1998).

[71] 457 U.S. 853 (1982).

[72] Id at 866. See also Stanley v. Georgia 394 U.S. 557 (1969) (holding that “the Constitution protects the right to receive information and ideas.”)

[73] Rep. Bono fundamentally misses this point when she bemoans the loss of copyright by saying “Sonny wanted copyright to last forever…” (note 39, supra).

[74] See generally, Thomas Babington Macaulay, Copyright, in 1 The Speeches of Macaulay 235, 240-41 (1900) (speech given Feb. 5, 1841); Graham v. John Deere Co., 383 U.S. 1, 5-9 (1966).

[75] The Supreme Court recognized this shift of focus in the context of antitrust in Lorain Journal Co. v. U.S., 342 U.S. 143, 155 (1951) (“[T]he word ‘right’ is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified.”)(quoting American Bank & Trust Co. v. Federal Bank, 256 U.S. 350, 358 (1921)). The “right” to a monopoly over speech or ideas should at best be a qualified privilege in a democracy.

[76] See infra, Part V.

[77] 33 U.S. 591, 661 (1834).

[78] Sen Hatch fundamentally misses this point when he argues that the first principle of a copyright philosophy is that rights copyright rights should be protected based on a combination of natural law tradition and the utilitarian purpose expressed in the Copyright Clause (see note 35, supra).

[79] See generally, Hank Brown and DavId Miller, Copyright Term Extension: Sapping American Creativity, 44 J. Copyright Soc., 94 (1996).

[80] See. e.g., Disney Lobbying for Copyright Extension no Mickey Mouse Effort, Chicago Tribune, Oct. 17, 1998 at 22. (Disney donated around $1,000,000 for lobbying toward the passage of CTEA.)

[81] Mark Lemley, The Constitutionalization of Technology Law, 15 Berkeley Tech L. J. 529-534 (2000). See generally, Marci A. Hamilton, Copyright Duration Extension and the Dark Heart of Copyright, 14 Cardozo Arts & Ent. L.J., 655 (1996).

[82] Litman, Revising Copyright, note 32 supra. See also Debra Halbert, Intellectual Property in the Information Age ix (1999) (characterizing the current policy environment “legal feeding frenzy”);  and James Boyle, A Politics of Intellectual Property: Environmentalism for the Net? 47 Duke L.J.  87, 94 (1997) (calling it an “intellectual land grab”).

[83] P.L. 105- 304, sections 1201, 1202, 112 Stat 2860, 2863, codified at 17 U.S.C. 1201, 1202.

[84] P.L. 105 ____, Codified at 17 U.S.C. ___.

[85] See Part V, infra.

[86] The Copyright Act of 1790 (1 Stat 124) provided for a term of 14 years with the privilege of renewal for an additional 14 years by an author or assign. In 1831, the term was extended to 28 years with the privilege of renewal for 14 years limited to the author and their widows and children. (____Stat _____). The 1909 Act extended the renewal term to 28 years, bringing the maximum term to 56 years.

[87] Pub. L. No. 105-298, 112 Stat. 2827 (1998), amending 17 U.S.C. 301 et seq..

[89] Every argument Hollywood bought Congress with in 1962, 1965, 1967, 1968, 1969, 1970, 1971, 1972, 1974, 1976, and 1998 will equally apply in 2018. By bought, we mean the nearly $1,000,000 Disney gave to Congress for retroactively extending the copyright term. See. e.g., Miles Benson, Congress Comes Through for Mickey Mouse, The Plain Dealer, Oct. 22, 1998, at 7A; Sabra Chartrand, Congress has Extended its Protection for Goofy, Gershwin and some Moguls of the Internet, N.Y. Times, Oct. 19, 1998, at C2.

[90] For further critique of term extension legislation, see Stephen R. Barnett and Dennis S. Karjala, Copyright From Now Till Practically Forever, The Washington Post OpEd page, (July 14, 1995); Yochai Benkler,  Free as the Air to Common Use, First Amendment Constraints on Enclosure of the Public Domain, 74  N.Y.U. L. Rev. 354 (1999); Dennis S. Karjala, Comment of U.S. Copyright Law Professors on the Copyright Officer Term of Protection Study, 16 Eur. Intell. Prop. Rev. 531 (1994); Joseph A. Lavigne, Making Rich Kids Richer Via the Copyright Term Extension Act of 1996, 73 U. Det. Mercy L. Rev. 311 (1996).

[91] See generally, Litman, Revising Copyright, note 32 supra.

[92] United Christian Scientists v. Christian Science Board of Directors, 829 F.2d 1152, 1168 n. 84 (D.C. Cir. 1987).

[93] The Sonny Bono Copyright Term Extension Act (CTEA), maintains a termination right for an author or the estate of an author, but vests the term extension with the copyright holder. 17 U.S.C. 203(a)(2), 304(c)(2). Since few authors understand they even have a termination right, this aspect of CTEA is not likely to provide any significant incentive to create new works.

[94] See. e.g., Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 Mich. L. Rev. 1197, 1204-1209 (1996).

[95] See, Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961).

[96] The constitutionality of the 1998 term extension has been challenged in Eldred v Reno (a case archive is maintained at http://cyber.law.harvard.edu/eldredvreno by the Berkman Center for Internet & Society at Harvard Law School; visited, August 24, 2000). In upholding the constitutuonality of the Act, the D.C. District Court ruled that (1) the Act did not violate the First Amendment because there is no First Amendment right to use the copyrighted works of others; (2) that the "limited times" language in the constitution is subject to the discretion Congress and (3) that the Act does not violate the public trust doctrine as it only applies only to navigable waters. (CA 99-0065),  _____ F.Supp. 2d ______(Dist D.C. 1999). The case is currently on appeal to the D.C. Circuit where oral argument is scheduled for October 2000. The Berkman Center maintains OPENLAW: Eldred v Reno, an open forum about the case at http://eon.law.harvard.edu/openlaw/eldredvreno/ (visited, August 24, 2000). See also, Opposing Copyright Extension A Forum for Information on Congress's Recent Extension of the Term of Copyright Protection and for Promoting the Public Domain, a website maintained by Dennis Karjala at http://www.public.asu.edu/~dkarjala/ (visited August 24, 2000).

[97] Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281, 324 (1970).

[98] 499 U.S. 340 (1991)

[99] Id, at 349-50.

[100] Id.

[101] For a statement of the information industry’s position, see Laura D’Andrea Tyson and Edward F. Sherry, “Statutory Protection for Databases: Economic & Public Policy Issues” < www.house.gov/judiciary/41118.htm >. For a response, see Pamela Samuelson, Letter to Representative Coble regarding database legislation, October 22, 1977. <http://www.arl.org/info/frn/copy/psamlet.html>. (visited August 24, 2000).

[102] H.R 3531, the Database Investment and Intellectual Property Antipiracy Act of 1996 (Moorhead D-Cal).

[103] xx Cong Reg. E ____, (daily ed. ___). (Statement of Rep. Moorehead)

Extension of Remarks ( date ).

[104] H.R. 2652, the “Collection of Information Antipiracy Act (Coble R-SC).

[105] xx Cong Reg. E 2000, (daily ed. October 9, 1997) (statement of Rep. Coble).

[106] See, Collections of Information Antipiracy Act; HEARINGS BEFORE THE SUBCOMMITTEE ON COURTS AND INTELLECTUAL PROPERTYOF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES, (date _____) Statement of Jerome A. Reichman, p. 123 and id, Statement of James Neal, p. 253.

[107] H. Rep. 105-796.

[108] The Feist ruling was recently relied upon by the Second Circuit when they denied West Publishing’s claim of copyright in their page numbering and other factual materials in reported court decisions. (Matthew Bender & Co. v West Publishing, 158 F.3d 674, cert. den. 522 U.S. 3732), effectively shutting the door on West’s litigation strategy. This has only intensified their desire for new legislation.

[109] H.R. 354 (Coble). Discuss current status and alternative bill H.R. 1858……….

[110] xx Cong Reg. E84, (daily ed. January 19, 1999). (Statement of Rep. Coble)

[111] 499 U.S. 340, at 349.

[112] See <http://www.siia.net/sharedcontent/govt/issues/ip/dbbrief.html>. (visited August 20, 2000).The homepage of this site describes the Software & Information Industry Association as “the principal trade association for the software and digital content industry. SIIA provides global services in government relations, business development, corporate education and intellectual property protection to the leading companies that are setting the pace for the digital age.”

[113] Art. I, 8, cl. 3.

[114] See Railway Labor Executives’ Association v. Gibbons, 455 U.S. 457 (1982) (addressing the relationship between the Commerce Clause and another enumerated power, and concluding that Congress is not able to avoid the limitations of one enumerated power by relying on the general grant of power under the Commerce Clause.) “Thus, if we were to hold that Congress had the power to enact non-uniform bankruptcy laws pursuant to the Commerce Clause, we would eradicate from the Constitution a limitation on the power of Congress to enact bankruptcy laws.” (Id at 468-469). Applying this reasoning to copyright, the Court should hold an amendment to copyright law could only be based on Art. I, 8, clause 8. Since the statute in question in Railway Labor did not provide for a “uniform” bankruptcy law, it violated the limitation placed on Congress by the Constitution. The same logic similarly limit Congress with regards to the limitations contained in Art. I, 8, cl. 8. See also H. Rep 105-525, ____, May 12, 1998)  (objections raised by Rep. Lofgren to use of Commerce power to expand copyright laws). For an extensive analysis of this issue, see generally Yochai Benkler, Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information, 15 Berkeley Tech. L. J. 535 (2000).

[115] Pub. L. No. 103-465, 108 Stat. 4809 (1994).

[116] See Adam P. Segal, Zombie Copyrights: Copyright Restoration under the New 104A of the Copyright Act, 13 Computer & High Tech. L.J. 71 (1996).

[117] Graham v. John Deere Co., 383 U.S. 1, 5-6 (1966).

[118] Id at  9.

[119] Pfaff v. Wells Electronics, Inc., ___ U.S. ____, 119 S. Ct. 304, ____(1998). This balance may also be shifting towards monopolies with the expansion of patent protection. How much motivation does one require for a business to make more money through a better business plan? Cf. State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998) cert. denied, __ U.S. __, 1999 U.S. LEXIS 493 (Jan. 11, 1999)  (holding business methods are patentable subject matter).

[120] P.L. 105-304.

[121] Compare this to the parallel language of the alternative bills submitted in the 105th Congress (H.R. 3048, and (S. 1146). In these measures, section 1201 provided: “ No person, for the purpose of facilitating or engaging in an act of infringement, shall engage in conduct so as knowingly to remove, deactivate or otherwise circumvent the application or operation of any effective technological measure used by a copyright owner to preclude or limit reproduction of a work or a portion thereof.” See Pamela Samuelson, Regulation of Technologies to Protect Copyrighted Works, 39 Communications of the ACM 17 (July 1996).

[122] See Julie Cohen, “A Right to Read Anonymously: A Closer Look at “Copyright Management” in Cyberspace,” 28 Conn. L. Rev. 981 (1996).

[123] While the anti-circumvention rules now include compromise language creating limited exceptions for non-profit libraries, archives and educational institutions (1201d), reverse engineering (1201f), encryption research (1201g), and protecting personally identifiable information (1201i), these provisions are extremely narrow and subject to various counter-exceptions.

[124] House Report 105-551 (Part II), Additional Views of Scott Klug and Rick Boucher, (p 85-87). They also noted that delegating authority to the Secretary of Commerce to develop anti-circumvention regulations was simply a means of sIdestepping the legislative stalemate that existed. The rulemaking proceeding mandated by the final bill is now pending . (See xx Fed Reg xxxxx (November __, 1999).

[125] Pamela Samuelson, “Regulation of Technologies to Protect Copyrighted Works,” 39 Communications of the ACM 17, ___ (1996).

[126] See also Pamela Samuelson, Towards More Sensible Anti-Circumvention Regulations. Available online at http://www.sims.berkeley.edu/~pam/papers/fincrypt2.doc (visited 8/24/00).

[127] Cohen, A Right to Read Anonymously note 122  supra at 992.

[128] Id. at 1023.

[129] United States. Department of Commerce. Information Infrastructure Task Force. Intellectual Property and the National Information Infrastructure: The Report of The Working Group on Intellectual Property Rights. 223. (1995) (The “White Paper” is available online at http://www.uspto.gov/web/offices/com/doc/ipnii/).

[130] Article 11 of the WIPO Treaty obliges contracting parties to “provIde adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights… and that restrict acts… which are not authorized by the authors concerned or permitted by law. “ Article 12 requires that contracting parties “provIde adequate and effective legal remedies” against the removal or alteration of any electronic rights management information without authority (“Rights management information” is used to mean information which Identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public. ). In response, opponents contended that less restrictive and more limited measures would have satisfied the “adequate protection standards” imposed by the treaty.

[131] White Paper at p. 10.

[132] Lawrence Lessig. “Intellectual Property and Code,” 11 St. John’s Journal of Legal Commentary 635 (1996).

[133] Id. at p. 639.

[134] Lawrence Lessig, Code and Other Laws of Cyberspace 127 (1999).

[135] H.R. 2265 (Goodlatte) Public Law 105-147, codified at 17 U.S.C. 506.

[136] U.S. v LaMacchia, 871 F. Supp. 535 (D. Mass. 1994).

[138] See generally, Segal, Zombie Copyrights note 116 supra at 72 (1996) (“Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s suppose to nurture.”).

[139] 118 S. Ct. 1125, 140 L. Ed. 2d 254, 268 (1998).

[140] Thomas Jefferson, in 12 The Papers of Thomas Jefferson 438, 440 (Julian P. Boyd, Ed., 1950).

[141] Thomas Jefferson, in 13 The Papers of Thomas Jefferson 440, 442-43 (Julian P. Boyd, ed., 1950).

[142] James Madison, in 14 The Papers of Thomas Jefferson 14, 21 (Julian P. Boyd, ed., 1950).

[143] Graham, 383 U.S. 1, 8 (1966)(citing V The Papers of Thomas Jefferson, at 113 (Ford ed., 1895).

[144] Thomas Jefferson, in 15 The Papers of Thomas Jefferson 392 (Julian P. Boyd, ed., 1950). A Jeffersonian computation using data from 1992 gives a Jeffersonian copyright term of 30-35 years. See, Vital Statistics of the United States 1992, Volume II--Mortality, Part A, Public Health Service, Hyattsville, 1996, Section 6, Table 6-1.

[145] Cf. Hatch, note 35 supra at 732. (implying how terrible it was that Irving Berlin lived longer than the copyright on some of his early songs).

[146] Benjamin Franklin, Autobiography, __ (__).

[147] 383 U.S. 1, 7 (1966).

[148] Thomas Jefferson, in 15 The Papers of Thomas Jefferson 392 (Julian P. Boyd, ed., 1950)(emphasis added).

[149] Hatch, note 35 supra at 745.

[150] We suspect that Disney’s lobbying expenses for the passage of CTEA, reportedly over $1,000,000, helps explain why they received the extension by default. See , e.g., Disney Lobbying for Copyright Extension no Mickey Mouse Effort, Chicago Tribune, Oct. 17, 1998 at 22.

[151] Thomas Jefferson, in 15 The Papers of Thomas Jefferson 392 (Julian P. Boyd, ed., 1950).

[152] Hatch, note 35 supra at 734-35. The burden of proof would be on the public to show that a copyright is hindering the dissemination of a work. Thus, the default is a monopoly under Hatch’s philosophy.

[153] Manuel Castells. The Informational City: Information technology, Economic Restructuring and the Urban-regional Process, 15-16 (1989).

[154] Quality King v. L’Anza, 118 S.Ct. 1125, 140 L. Ed. 2d 254, 268 (1998) (quoting Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 450-451 (1984).

[155] Boyd v. United States, 116 U.S. 616, 635, 29 L.Ed. 746, 6 S.Ct. 524 (1886).