Copyright Law: Would Thomas Jefferson be Happy?
By Michael S. Mensik
July, 2002
i-street.com
Copyright law has a fascinating history in the United States. Over the last 200 years or so, it has alternated between granting too much protection and not granting enough. So, where are we now, 2002? Overprotection, under-protection, or just about right? Your mission, should you choose to read on, is to decipher my view, and determine yours.
Let's review a little of this history through some selected highlights:
Copyright law springs from the Constitution, which granted Congress the 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." The very construction of this phrase suggests that our Founding Fathers considered the author's reward a secondary consideration. The primary object in conferring the limited monopoly lies in "promoting progress."
The first Copyright Act only protected "maps, charts and books." To be protected, the work had to be "published," and "registered" with a copyright registry. The copyright holder could then stop others from "copying" the work, but only for 14 years. The holder couldn't yet stop others from creating "derivative works," not even an outright translation. That came later.
Until 1891, the Copyright Act only protected the works of Americans. Anyone could freely copy and sell the works of Charles Dickens in the United States. Indeed, to recoup some of his lost royalties, Dickens came over here in 1842 on a lecture tour!
When computer programs emerged on the scene, the Copyright Office was quite unsure whether object code constituted copyrightable subject matter. It began to issue registration certificates in the mid-1960's, but with a disclaimer expressing the office's doubt as to the validity of the copyright claims. This matter was cleared up with an amendment of the Copyright Act in 1980.
Only in the mid-1980's did the courts finally get around to addressing exactly what copyright protected in a computer program. In Whelen v. Jaslow, the prospect of under-protection lead a court to pronounce a very expansive view of what copyright protected: everything about a program, except its general purpose or function, was protectable under copyright.
The tide turned against this expansive view in the early 1990's, when a Court of Appeals held in Computer Associates v. Altai that at least three classes of elements should be "filtered out" as unprotectable-elements dictated by efficiency; elements constrained by external factors, such as compatibility; and elements common to the industry.
Along the way, due largely to industry lobbying efforts, the Copyright Act has been repeatedly amended (and increasingly bloated), effectively making it much easier to obtain greater copyright protection across a broader set of "works."
For example, the registration requirement was eliminated (except as a pre-condition to bring a lawsuit and recover "statutory damages" and attorneys fees). An expansive, although vague, definition of "derivative work" was added. The term of protection was extended from 14 years to the life of the author, plus 70 years. (It is said-with some exaggeration-that each time Mickey Mouse is about to fall into the public domain, the copyright term is extended.)
Last, but not least, the courts developed a doctrine known as "contributory infringement," which allows a copyright owner to sue parties who, while not themselves committing an infringing act directly, knowingly help others to commit infringing acts. This doctrine is very significant today: on the Internet, we-you and me-are likely the direct infringers, but are too scattered to each be sued, and don't necessarily have "deep pockets."
The My.MP3 case, decided in 2000, perhaps will join Whelan as a prime example of how courts sometimes opt to "overprotect" when confronted with new technologies whose implications cannot yet be fully grasped.
The business model was simple and elegant: let us create our own "virtual" library of CDs by having songs from CDs that we own loaded on My.MP3 servers, so that we can hear them anytime, anywhere, over the Internet. The court ruled that My.MP3 had loaded illicit copies of CDs into these libraries, because the songs were copied from CDs that MP3 had purchased, not those that we actually own.
Where's the revenue loss suffered by the record industry in this model? My virtual library only has songs from CDs that I have bought and paid for. Does it really matter that the particular copy in my "virtual" library came off of My.MP3's copy of the CD, not mine?
And then, of course, came the Napster case.
Back in the early 1980's, the U.S. Supreme Court ruled in Universal Pictures v. Sony that the VCR should not be considered infringing technology under copyright law, because this device had potential substantial non-infringing uses. True, I could use my VCR ("Betamax") to illicitly make and distribute copies of TV programs. But I could also use this device to display home movies of my children.
So, Sony was not guilty of "contributory infringement," the VCR industry flourished...and movie studios (including Universal Pictures) ultimately made lots of money selling video cassettes. By arguably opting to under-protect copyright holders, the Supreme Court "promote[d] the progress of science and useful arts," just as our Founding Fathers intended.
In contrast, Judge Patel apparently could not be persuaded that Napster's peer-to-peer technology had "potential substantial non-infringing uses." And, we all know what has transpired since.
Napster had generated the greatest spike in demand for broadband connectivity to date. It is now essentially gone. And in the absence of compelling content on the Internet, too many of us are content to download e-mail over dial-up modems, unwilling to pay broadband rates. So, telecommunication companies defer infrastructure investments. Has the progress of science and the useful arts been promoted?
Having put the "substantial non-infringing use" defense back in the bottle, Hollywood is now after others who "contribute" to our infringing activities-Silicon Valley and manufacturers elsewhere who make devices that can be used to copy songs, books or film off the Internet. Ernest "Fritz" Hollings (D-S.C.) wants to enact legislation that would require computer and other technology equipment manufacturers to build content theft-proof devices.
Lawrence Lessig, law professor at Stanford University, has observed that "[o]ur intuitions about property, and about how best to order society, are intuitions built in a particular physical world... But the physics of cyberspace is different... The different physics... means that the rules that govern that space may be different as well." In short, concepts of property, including copyright, need to be more "porous" in cyberspace than in the physical world.
Copyright law's primary objective is to "promote the progress of science and the useful arts." Securing a reward for authors is simply a means to that end, not an end in itself. How well are we serving that primary objective today? Where are we in the recurrent cycles of under- and overprotection? Would Thomas Jefferson be happy?
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Michael S. Mensik
Partner - Practice Group, Information Technology/E-Commerce
Baker & McKenzie
Mr. Mensik's practice concentrates on information technology and e-commerce with a particular emphasis on copyright. He regularly advises information technology and e-commerce companies on various aspects of their domestic and foreign operations, including intellectual property protection, transfer of technology, anti-trust issues, and tax planning. He has assisted numerous information technology and e-commerce companies to establish their global operations, whether on the web, indirectly through independent agents and distributors or directly through branches or subsidiaries, and in forming domestic and foreign joint ventures and other strategic alliances.
Mr. Mensik is the global coordinator of Baker & McKenzie's Global Information Technology/E-Commerce Law practice; he is also the North American editor of the "E-Law Alert," a weekly electronic bulletin that tracks information technology and e-commerce- related developments throughout the world. As an associate with Baker & McKenzie, he worked in the firm's Madrid office in 1985.
Mr. Mensik was born in Buenos Aires, Argentina, and resided in Rio de Janeiro, Brazil until 1964. He attended Stanford University (B.A., Economics, with distinction, 1976) and the University of California at Berkeley, Boalt Hall (J.D. and M.A., Economics, 1980). While a student, Mr. Mensik attended La Universidad de la Catolica in Lima, Peru. He is admitted to practice law in Illinois. |
