NEW YORK, July
3 — The dawn of the 21st century has illuminated an array
of conflicts over the regulation of information in America: Napster,
DVD-hacking, the right to create a parody, the rewards for freelance
writers in a digital world, and the future of the Microsoft
monopoly. Each of these cases rests on several distinct pedestals of
ideals. As a nation, we would like to reward enterprise and creativity,
allow free and open access to ideas, and benefit from a rich trove of
music, literature, journalism, and art. Often these goals conflict, and
courts must choose among them.
‘Congress
shall have power to...... promote the progress of science and useful arts,
by securing for limited times to authors and inventors the exclusive right
to their respective writings and discoveries.’ — U.S.
CONSTITUTION Article 1, Section 8
BECAUSE SO MANY recent cases involve digital technology, we might
assume that these are new issues, that copyright in an analog world was
relatively stable and non-controversial. But in fact, copyright was not
only one of the most lively subjects of debate among our Founding Fathers.
The values that copyright reflects echo with the very principles of the
American Revolution and Constitutional Convention.
At its birth in England, copyright was an instrument of censorship.
In 1557, the Catholic Queen Mary Tudor capped off a 120-year monarchal
struggle to censor printing presses in England by issuing a charter to the
Stationers’ Company, a guild of printers. Only members of the company
could legally produce books. The only books they would print were approved
by the Crown.
COPYRIGHTS AND THE
CONSTITUTION
In contrast, the American copyright system since 1791 has reflected
American republican values. While it granted a limited, temporary monopoly
to a specific publisher, American copyright grew to embody four democratic
safeguards: A guarantee that all works would enter the
public domain once the copyright term expired. A collection of purposes that consumers could
consider “fair use,” such as limited copying for education or
research. The principle that after the “first sale” of a
copyrighted item, the buyer could do whatever he or she wants with the
item, save distribute unauthorized copies for profit. The concept that copyright protects specific
expression of ideas, but not the ideas themselves.
OUT OF
BALANCE Copyright, when well
balanced, encourages the production and distribution of the raw material
of democracy. But after more than 200 years of legal evolution and
technological revolution, American copyright no longer offers strong
democratic safeguards. It is out of balance. And our founders — especially
Thomas Jefferson — would not be pleased.
Copyright was created as a policy that balanced the interests of
authors, publishers, and readers. It was not intended to be a restrictive
property right. But it has evolved over recent decades into one part of a
matrix of commercial legal protections now unfortunately called
“intellectual property.”
GOOD DEAL FOR
DEMOCRACY Copyright is a “deal”
that the American people made with the writers and publishers of books.
Authors and publishers get a limited monopoly for a short period of time,
and the public gets access to those protected works and free use of the
facts, data, and ideas within them. Without
a legal guarantee that they would profit from their labors and creations,
the framers feared too few would embark on creative endeavors. If there
were no copyright laws, unscrupulous publishers would simply copy popular
works and sell them at a low price, paying no royalties to the author.
FAR FROM
IDEAL George
Washington believed copyright would enrich political culture by
encouraging creativity and promoting enlightened public discourse. But
recent changes to copyright law have debased his idealistic
vision.
But just as importantly, the framers
and later jurists concluded that creativity depends on the use, criticism,
supplementation, and consideration of previous works. Therefore, they
argued, authors should enjoy this monopoly just long enough to provide an
incentive to create more, but the work should live afterward in the
“public domain,” as common property of the reading public.
AN
INCENTIVE TO CREATE This
principle of copyright as an incentive to create has been challenged in
recent decades by the idea of copyright as a “property right.” Therefore,
many recent statutes, treaties, and copyright cases have seemed to favor
the interests of established authors and producers over those of readers,
researchers, and future creators. These trends run counter to the original
purpose of American copyright. James
Madison, who introduced the copyright and patent clause to the
Constitution, argued in The Federalist papers that copyright was one of
those few acts of government in which the “public good fully coincides
with the claims of individuals.” Madison did not engage in “property talk”
about copyright. Instead, Madison argued for copyright in terms of
“progress,” “learning” and other such classic republican virtues as
literacy and an informed citizenry.
NOT PROPERTY James Madison introduced the
copyright and patent clause to the Constitution. He didn't view copyright
as a property issue, but as a way to ensure an informed
citizenry.
Copyright fulfilled its role for
Madison because it looked forward as an encouragement, not backward as a
reward. This fit with the overall Madisonian project for the Constitution.
If the federal government were to operate as the nexus of competing
interests, each interest would need to approach the public sphere with
reliable information. Copyright would be an engine for democratic
culture. When President George Washington
declared his support for the Copyright Act of 1790, he proclaimed that
copyright would enrich political culture by “convincing those who are
entrusted with public administration that every valuable end of government
is best answered by the enlightened confidence of the public; and by
teaching the people themselves to know and value their own rights; to
discern and provide against invasions of them; to distinguish between
oppression and the necessary exercise of lawful authority.”
JEFFERSON’S DOUBTS
Thomas Jefferson — author, architect, slave owner, land owner — had
no misgivings about protecting private property. Yet he expressed some
serious doubts about the wisdom of copyright. These concerns were based on
Jefferson’s suspicion of concentrations of power and artificial
monopolies. While in Paris in 1788,
Jefferson wrote to Madison that he rejoiced at the news that nine states
had ratified the new Constitution. “It is a good canvass,” Jefferson wrote
of Madison’s work, “on which some strokes only want retouching.”
Primarily, Jefferson wanted a Bill of Rights attached to the document. But
he also desired an explicit prohibition against monopolies, including
those limited and granted by the Constitution: patents and
copyright. While Jefferson acknowledged that
a limited copyright could potentially encourage creativity, it had not
been demonstrated. Therefore, Jefferson wrote, “the benefit of even
limited monopolies is too doubtful, to be opposed to that of their general
suppression.”
INFORMATION
MONOPOLY Thomas Jefferson, himself an author and inventor, was suspicious of
the information monopolies copyright laws could create. He feared
monopolists could use their state-granted power to strengthen their
control over the flow of ideas.
The following summer, as Congress was
debating the Bill of Rights, Jefferson again wrote to Madison from Paris.
This time Jefferson proposed specific language for an amendment that would
have allowed copyrights and patents, despite his doubts, but forbidden any
other type of commercial monopoly. “For instance,” Jefferson wrote, “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 no other purpose.”
IDEAS, NOT PROPERTY
With the
popularity of Napster and such unregulatable networks as Gnutella, public
is once again engaged in discussions of copyright and its role in culture
and democracy. Jefferson might not have been happy with the recent
trajectory of the law. But he would have gotten a kick out of Napster.
Significantly, the founders did not argue for copyrights or patents
as “property.” Jefferson even explicitly dismissed a property model for
copyright, and maintained his skepticism about the costs and benefits of
copyright for many years. Fearing,
justifiably, that copyright might eventually expand to encompass idea
protection, not just expression protection, Jefferson wrote in 1813, “If
nature has made any one thing less susceptible than all others of
exclusive property, it is the action of the thinking power called an idea,
which an individual may exclusively possess as long as he keeps it to
himself; but the moment it is divulged, it forces itself into the
possession of everyone, and the receiver cannot dispose himself of it.”
Jefferson then declared the flaw in the
notion of copyright as property. Unlike tangible property, ideas and
expressions are not susceptible to natural scarcity. As Jefferson wrote of
copyright, “Its peculiar character, too, is that no one possesses the
less, because every other possesses the whole of it. He who receives an
idea from me, receives instruction himself without lessening mine; as he
who lights his taper at mine, receives light without darkening me.”
Therefore, Jefferson feared, the
monopolists could use their state-granted power to strengthen their
control over the flow of ideas and the use of expressions.
Monopolies have the power to enrich themselves by
evading the limitations of the competitive marketplace. Prices need not
fall when demand slackens, and demand need not slacken if the monopoly
makes itself essential to the economy (like electrical power or computer
operating systems). To accomplish the task
of bolstering the value of these monopolies, those who control copyrights
would have to create artificial scarcity by limiting access, fixing
prices, restricting licensing, litigating, and intimidating potential
competitors, misrepresenting the principles of the law and claiming a
measure of authenticity or romantic originality. But when Jefferson warned
of these potential abuses, they were more than a century away. Even in the
early 20th century, jurists considered Jefferson’s warnings, and
skepticism about idea protection kept monopolists at bay.
As Justice Louis Brandeis wrote in a dissenting
opinion in 1918, “The general rule of law is, that noblest of human
productions-knowledge, truths ascertained, conceptions and ideas — become,
after voluntary communication to others, free as the air to common use.”
Both Jefferson and Brandeis dissented from the conventional wisdom of
their times, but nevertheless influenced the philosophy of copyright. So
in the early republic and the first century of American legal history,
copyright was a Madisonian compromise, a necessary evil, a limited,
artificial monopoly, not to be granted or expanded lightly.
DIGITAL DAMAGE In the
1990s the Clinton administration championed efforts to undermine the
democratic safeguards that used to be built into the copyright system. In
addition to signing a 20-year term extension and pushing for sui
generis database protection law, the administration and Congress acted
on behalf of global media companies by enacting the most egregious example
of recent copyright recklessness: the Digital Millennium Copyright Act of
1998.
A PRINCIPLE
DEBASED The
1998 Digital Millennium Copyright Act, signed into law by President
Clinton upends more than 200 years of democratic copyright law. By
forbidding the "cracking" of electronic gates that protect works, it puts
the power to regulate copying in the hands of engineers and the companies
that employ them.
This law has one major
provision that upends more than 200 years of democratic copyright law. It
forbids the “cracking” of electronic gates that protect works — even those
portions of works that might be in the public domain or subject to fair
use. It puts the power to regulate copying in the hands of engineers and
the companies that employ them. Because the
DMCA allows content providers to regulate access and use they can set all
the terms of use. And much like the database protection proposal, the
de facto duration of protection under the DMCA is potentially
infinite. While copyright law in 2001 protects any work created today for
life of the author plus 70 years or 95 years in the case of corporate
“works for hire,” electronic gates do not expire. This allows producers to
“recapture” works already or about to fall in the public domain. This also
violates the Constitutional mandate that Congress copyright laws that
protect “for limited times.” The DMCA works over and above copyright
law.
DANGEROUS FOR DEMOCRACY
Most dangerously, producers could exercise editorial control over
the uses of their materials. They could extract contractual promises that
the use would not parody or criticize the work in exchange for access.
Many web sites already do this. Just as dangerously, the DMCA allows
producers to contractually bind users from reusing facts or ideas
contained in the work. For most of American
history, copyright has not only reflected democratic principles. It fueled
the engines of democracy by rewarding the efforts of both producers and
consumers of information and cultural products.
Now, as we prepare to celebrate American independence for the 215th
time, copyright is tilted to favor the powerful at the expense of the
people. But with the popularity of Napster and such unregulatable networks
as Gnutella, public is once again engaged in discussions of copyright and
its role in culture and democracy. Jefferson might not have been happy
with the recent trajectory of the law. But he would have gotten a kick out
of Napster.
Siva Vaidhyanathan, a cultural historian and media scholar, is the
author of Copyrights and Copywrongs: The Rise of Intellectual Property and
How it Threatens Creativity (New York: New York University Press, 2001).
He teaches information studies at the University of Wisconsin at
Madison.
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A guarantee that all works would enter the
public domain once the copyright term expired.
But just as importantly, the framers
and later jurists concluded that creativity depends on the use, criticism,
supplementation, and consideration of previous works. Therefore, they
argued, authors should enjoy this monopoly just long enough to provide an
incentive to create more, but the work should live afterward in the
“public domain,” as common property of the reading public. 
Copyright fulfilled its role for
Madison because it looked forward as an encouragement, not backward as a
reward. This fit with the overall Madisonian project for the Constitution.
If the federal government were to operate as the nexus of competing
interests, each interest would need to approach the public sphere with
reliable information. Copyright would be an engine for democratic
culture.
The following summer, as Congress was
debating the Bill of Rights, Jefferson again wrote to Madison from Paris.
This time Jefferson proposed specific language for an amendment that would
have allowed copyrights and patents, despite his doubts, but forbidden any
other type of commercial monopoly. “For instance,” Jefferson wrote, “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 no other purpose.” 
This law has one major
provision that upends more than 200 years of democratic copyright law. It
forbids the “cracking” of electronic gates that protect works — even those
portions of works that might be in the public domain or subject to fair
use. It puts the power to regulate copying in the hands of engineers and
the companies that employ them. 
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