After the copyright smackdown: What next?
Don't despair at the Supreme Court's gift to Disney, says one expert. The fight has really only just begun.
By Siva Vaidhyanathan
Jan. 17, 2003 | When the U.S. Supreme Court ruled Wednesday that Congress was within its constitutional bounds to extend the duration of all copyrights by 20 years -- up to 70 years beyond the life of the author and potentially infinitely -- many saw the ruling as a knockout blow to the movement to reform copyright.
Some on the public interest side are tempted to lament what could be called the "Dred Scott case for culture," unjustifiably locking up content that deserves to be free. After all, six of the nine justices concurred with Justice Ruth Bader Ginsburg when she issued a stark opinion that cavalierly dismissed the historical "bargain" that justified American copyright in the first place: We the People agree to grant a limited, temporary monopoly to a creator or publisher in exchange for access to creativity and the eventual return of the work to a state of freedom.
And Ginsburg's opinion did not allow that the purpose of copyright is to encourage future production, not lock up works already created. She ignored the fact that the Sonny Bono Copyright Term Extension Act of 1998 does nothing to "promote the progress" of science or art because it grants no incentive to produce and distribute new works.
So out of despair some might see civil disobedience -- hacking and freely distributing songs and films over digital networks -- as the only remaining response to the excesses of the copyright regimes and the hold they have over courts and Congress.
While disobedience might be more fun, the power of civil discourse remains. In fact, the ruling gives public interest activists both motivation and ammunition in the continuing battle against the excessive expansion of the power to control information and culture.
As is so often the case, the best rallying cry came from a dissenter in the case. Justice Stephen Breyer wrote: "It is easy to understand how the statute might benefit the private financial interests of corporations or heirs who won existing copyrights. But I cannot find any constitutionally legitimate, copyright-related way in which the statute will benefit the public." This is the key to any public interest movement: Show that narrow special interests are getting away with everything and the public interest is suffering.
Yet Ginsburg herself aided the public's rhetorical cause even while ruling against its interests. While dismissing the notion that excessive copyright expansion has severe First Amendment implications, she invoked two of the classic democratic safeguards of American copyright: the idea/expression dichotomy and fair use. Because of these two concepts, Ginsburg concluded, the court need not take the censorious power of copyright seriously.
The idea/expression dichotomy means that copyright does not protect facts or ideas. It only protects specific expressions of facts or ideas. This allows us to cite a fact or idea while criticizing another writer or building on another's work.
Fair uses are small allowances for the public good, exceptions to the sweeping powers that a copyright holder enjoys. A teacher may invoke fair use, for instance, when showing a film in class. A student uses another's work fairly if she quotes a small portion in a research paper.
Ginsburg's expression of faith in the power of the idea/expression dichotomy and fair use does not recognize that both these rights are under attack in Congress and lower courts right now. The motion picture, music, publishing, and software industries are trying to expand their control over the machines in your home to limit the uses you might make of material you have lawfully purchased.
Ginsburg made one more statement that public interest advocates can take to heart and use for their purposes. While dismissing the petitioners' First Amendment concerns, she wrote, "But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." As a matter of fact, the 1998 Digital Millennial Copyright Act did just that. By outlawing technologies that could break through access controls around digital materials, Congress created a whole new technological regime and a new set of powers for copyright holders to use against scholars, librarians, students and artists. This shift in the locus of enforcement from human relations to hard technology has certainly "altered the traditional contours of copyright protection."
In the wake of this decision, if Congress and later courts are going to take Ginsburg's words seriously, they must take fair use and the idea/expression dichotomy seriously. They cannot take them for granted, as so many have in recent years.