Soulseeking
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to every cow her calf, and to every book its copy.” -- Irish King Dermott, 6th c. C.E., in his decision Finnian v. Columba (The “Abbot's Psalter” case). Probably apocryphal.



First, a quick, reductive, capsule history of what would become American copyright today: The story officially began in 1456: Gutenberg introduced his printing press and movable type. Presses were required by their native governments (all monarchies at this point) to hold licenses to practice their business, and these licenses bestowed anything from a few years to forever and ever of regional monopoly on that particular press, sometimes just for specific works, after which the rights were either renewed or granted elsewhere. Authors generally sold their work for a single one-time fee, and relinquished all rights to use or exploit their creation thereafter. The royal license was also often wielded as a cudgel to keep out dissident literature.

In the 16th century, England, under Catholic King Philip, had given all of its printing privileges over to a single affiliated group of companies, the Stationers, the idea being that one company would be easy for the Crown to control, and could be used to block the rising tide of Protestantism; it went well with the eventual ban on the importation of foreign books, like those of Martin Luther. Naturally, they became well known for charging outlandish fees for their prints. (Vertical monopoly does have its privileges.) By the beginning of the 18th century, what we would now call piracy had become rampant. But instead of doing something like granting unlimited printing rights forever (de jure, for the first time, as the Stationers petitioned), Parliament passed the Statute of Anne in 1710, which limited the rights to a period of 14 years, renewable for another 14. Most crucially, it gave these rights, not to the printer, but to the author—long-gathered ill-will toward the Stationers had become something of a liability to the government—which for the first time injected a semblance of competition into the production of cultural material. The statute also introduced the idea of the public domain into the law regarding the rights of authors, producers, and creators.

All developed-world intellectual property law is based closely on the Statute of Anne, and why not? It struck a solid balance between the commercial interests of the creator and the dissemination and usage interests of the public at large, and that interest in the public played no small part in the Western Enlightenment of the 18th century. After the Statute was passed, publishers began a long season of filing suit to regain their former monopoly over cultural goods. After a few loud failures, a simple tweak in tactic was all that was needed: instead of the publishers demanding unlimited monopoly rights for themselves, they demanded them on behalf of their authors. In a 1769 case, Millar v. Taylor, they used John Locke's idea of natural law (i.e. what man works upon is his property) to insist that authors had inalienable natural rights, into eternity, upon that which they worked with their minds, even beyond making licensed copies (control over performances, translations, etc.), and that publishers, as agents of the authors, should have the same rights. Sound familiar?

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In what respect does the right of an author differ from that of an individual who has invented a most useful and valuable machine? In the production of this, his mind has been as intensely engaged, as long; and, perhaps, as usefully to the public, as any distinguished author in the composition of his book….

…. That every man is entitled to the fruits of his own labour must be admitted; but he can enjoy them only, except by statutory provision, under the rules of property, which regulate society, and which define the rights of things in general.
-- Wharton v. Peters, 33 U.S. 591 (1834).
It should; it's part of American law, and among other things the philosophical and legal foundation for "work for hire," the idea that an author can be hired by an institution, paid a flat fee, and rescind all rights to the work they've created, as if the author were never involved in the first place; the publisher, not as agent of the author, but as the author. The vast majority of cultural and intellectual work is created within a work for hire arrangement, the creator ceding her work to the institution that manufactures, markets, distributes, and sells it (and it's the work, the expression of the idea, that's covered in copyright, not the idea itself). There's much talk from spokespeople for the various trade groups involved in bringing litigation on copyright matters (RIAA, MPAA, BSA for software companies, etc.) that copyright infringement harms most the authors of the work, that it takes money out of their pockets, undoing the incentive to create more work for the public good. But due to these work-for-hire arrangements, it's the opposite that's true; there is no significant correlation between a corporate entity controlling a copyright on a work and the creator of that work making money from its sale.

Nowhere is this clearer than in the music business. By now you've heard story after story of artists getting screwed by their labels. The minuscule royalties and recoupable costs and so forth are only a manifestation of the real issue: the constant downward pressure of a big record label onto the livelihood of its only real asset, the recording artist who creates the product that generates their profit. As a generalization, there are few worse positions to be in in the commercial arts than major-label recording artist. Book publishing works on a fundamentally similar model, but rarely do publishers make their writers recoup marketing costs or advances; film and broadcasting, especially at big-money levels, are fully unionized, and everyone involved makes a set wage. So how do record labels get away with making tidy profits on ubiquitous songs, while the artists rarely see a dime and usually end up in debt?

To find out, let's look at that ubiquity, especially the fact that it always seems to stem from technological advances that threatened the industry's stranglehold on their material. Sheet music publishers and professional musicians were threatened by the pianola, then by the wax cylinder and shellac plate, then records by radio, radio by television, then all recordings by tape recorders and then the Internet. That's a long, storied history of threats to ownership, stretching back to the very beginnings of the industry; all were advances in dissemination that made it ever easier, and all eventually became viable alternative methods. But each and every one required yet another major capital investment (presumably with yet more and greater returns, as well as lower long-term costs), with more companies spending more money to insert themselves into, stay competitive in, and control their intellectual capital within an ever-growing media landscape. Then that very same control, the mechanism by which they supposedly prevent others from copying their work, gets threatened yet again by some unforeseen leap forward, that can then be converted into another revenue stream, and so on. So you're a musician who wants in, who wants your songs heard and loved from sea to shining sea? Well, you need the resources of a media giant behind you—one that can not only leverage these integrated markets to do their bidding, but can also weather the unknown—and you will sign that awful work for hire deal, because you have no choice. Given the above, the record companies’ collective paranoia and the way in which it manifests itself in how they treat their workers-for-hire makes a certain amount of sense. But with such a historically masochistic relationship with copyright, you almost have to wonder why they bother.

Well, the Millar of Millar v. Taylor was a publisher; so was Taylor. Taylor waited out the copyright term on a poem, rights owned by Millar, and when it ended he published a competing volume. Millar brought suit and won in favor of eternal property rights (“natural law”) and eradicated the idea of a set copyright term limit, returning the booksellers to a state of either never-ending or negotiable term lengths and monopoly profits. The new decision gets passed on to pre-Revolutionary America just a few short years before an embargo was levied on all books to and from England. In 1774, the House of Lords decided Donaldson v. Beckett, which rejected the Millar decision, but that didn't make it on the mail boat to the colonies. The U.S. Copyright Act of 1790 instituted term limits of 14 years with an option for 14 more, like its predecessor Statute, but the debate was left open. The first Stateside copyright suit, Wharton v. Peters, cited Millar as precedent, not Donaldson, thus leaving the gate open for recurring term extensions, heavily influenced by well-paid industry lawyers and lobbyists, that enter, one after another, to this day.

So: you're a businessman. You're given the choice between having a hugely leveraged position over your product and its manufacture and ever-increasing avenues for the stuff in exchange for some legal costs and agita, or just letting it all float free for anyone to do with as they wish. What's your choice?

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Hold! You crafty ones, strangers to work, and pilferers of other men’s brains. Think not rashly to lay your thievish hands upon my works. Beware! Know you not that I have a grant from the most glorious Emperor Maximillian, that not one throughout the imperial dominion shall be allowed to print or sell fictitious imitations of these engravings? Listen! And bear in mind that if you do so, through spite or through covetousness, not only will your goods be confiscated, but your bodies also placed in mortal danger.
-- Albrecht Dürer, from the colophon to The Life of the Virgin, 1511.
1909: the first term extension, to 28 years with an option if the author is alive to renew. 1976: the life of the author plus 50 years, 75 years for corporate copyright, renewals on older works still in copyright extended to 67 years. Copyrights are now automatic on new work and need not be registered. Fair use, long debated as a tool for scholarship, parody, and other derivative work, is written into the law and kept loose and baggy, like the rights in the First Amendment, to be tried and applied as needed. 1998: The Copyright Term Extension Act extends those copyrights again by another 20 years, including for works copyrighted before 1978 and still in copyright at the time of the Act's signing. There is some discussion of the heavy-handed lobbying of Disney (who would have lost the copyrights on the earliest Mickey Mouse cartoons were it not passed) and the MPAA of Jack Valenti.

Article 1, Section 8 of the Constitution starts with the words, "To promote the progress of science and useful arts,” same as the Statute of Anne, and supporters of additional term extensions see that language as vague and unrepresentative of Congress's power to limit their number or even duration. The most recent Supreme Court ruling on the CTEA, Eldritch v. Ashcroft (2002) found in favor of that view; extensions that act retroactively could still be considered limited, and there's plenty of precedent for the law itself. So as long as there are moneyed interests willing to pony up for lawyers, this could keep going and going and going. That makes 1922 a very important year for any idea of a public domain: all work thereafter was held back from falling out of copyright by the CTEA. And even then, the federal laws get tangled up with separate state and local statues. So you would think sound recordings from before 1922 and earlier would be public domain, right? You would have to track down the applicable local statutes (in the state of the work's origin and the state in which you reside) and the state of that work's original copyright. Since the notated, written song is covered by a separate copyright from the recording, the song may be public domain (i.e. you could perform it yourself), but any original recordings may not be. Federal law doesn't even cover recordings made before 1972, but due to this intractable mess, it's generally accepted that, barring exceptions where the author has made it clear that she's not protecting her copyright, there will be effectively no public domain recordings until 2067 (1972 + 95).

The trade groups talk of copyright in terms of their rights or the rights of their employs, but they're misrepresenting the law while playing on the public's good feeling toward the word; it's a privilege granted by the government, not a natural right, despite the language of a Law of Nature or promoting progress. When read devoid of that jargon, the law is pretty clear on the point, and no clearer than the clause in the 1976 Act making copyright automatic; you put pen to paper, voice to microphone, etc., and you are granted monopoly control on that work for the rest of your life, and probably your next-of-kin's life, whether you want it or not, to exploit for gain as you see fit (or as your employer sees fit). This is not the language of moral rights, it's the language of legal trade, of regulations on manufacture, dissemination, and sale. Manufacturers, rarely being big fans of competition, naturally want as much control over their goods as they can get, and control is only worth as much as the stick you wield to keep it.

So. Who are these businesses competing with? Obviously each other in a general sense, but for control over individual works, their only competition is you, the consumer. Let's say you're willing to wait out the copyright on Gershwin's “Rhapsody in Blue,” written in 1924 and commissioned by orchestra leader Paul Whiteman. Your idea is to wait out the copyright on the original recording, sometime after 2067, so you can remaster a recording with Gershwin himself on piano for free distribution on your website for all to enjoy. (For the sake of argument, we'll assume no intermediate changes in the law.) In the meantime, the owner of the original copyright on that recording sells the rights to a major label, who release their own remastered version on CD with a digital rights management scheme included. The copyright on the original recording does not change, but the remaster carries a brand new one. Additionally, the deal with the original owner gives the label the right to take the master record and piano roll for “safe keeping.” So 2069(-ish) rolls around, and you're ready to go, but the only available copies are those DRM'ed CDs, the analog sources spirited away in a vault somewhere (assuming they haven't degraded away, and further assuming that you could find the necessary analog equipment to use them). So you wait out the copyright on the remastered copy. But then some archaic law called the Digital Millennium Copyright Act of 1998 rears its head to inform you that breaking the DRM to make your copy available is a felony, punishable by stiff fines or even jail time, no matter the state of copyright of the work in question. So in order to use your presumed right over this free work, you would still have to break the law.

Given legislative history, there's no reason to believe that attempts won't be made to extend the terms even further, or that the punitive laws will be struck down, and since it's a trade regulation only the vested interests will have any real say in the matter, and the public is shut out of this discussion of who owns our cultural history. Will we ever be able to make free use of that more recent history, the way we do Shakespeare or Beethoven? How much of a work can be considered privately owned when, upon its release, some very real part of it becomes part of our public sphere? Must all art be corporately patronized, even in this age of cheap and easy digital dissemination, or will we simply allow our public sphere to be corporate, and our most obvious shot at a real public domain to be turned into yet another fully-commercialized space? Will we ever have a say in who gets to profit from and control our culture, or do we just give it time?

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Appendix


Below is a partial list of works that were utilized, in whole or in part, in the creation of this work for hire (© 2006 stylusmagazine.com), or are remaindered here in the interests of further reading.

Laws of the Land
The Statute of Anne; Article 1, Section 8 of the US Constitution (it should be noted here that the Framers thought copyright important enough to include as one the very few exceptions to the Commerce Clause); the 1790 Copyright Act (PDF), 1909, 1976, and the 1998 CTEA, and the Digital Millennium Copyright Act (PDF).

Case Law
Wharton v. Peters, Eldritch v. Ashcroft. The case law on Millar and Donaldson were lost in the Parliament blazes of 1834 (same year as Wharton, coincidentally enough).

Opinion
Lawrence Lessig's Free Culture, available free of charge here and in paperback. Siva Vaidhyanathan's Copywrongs is not available online (purchase through your stationer of choice), but for the flavor of his argument, have a look at this interview with Stay Free magazine, or his appearance on this panel with author Jonathan Lethem and graphic novelist Art Spiegelman on WNYC's “The Brian Lehrer Show” (MP3). Cultural economist Harry Hillman Chartrand has a history of cultural ownership here that's pretty indispensable. Eric Eldritch (yes, that Eldritch) shut his site down after that case and replaced it with this message. Copyright lawyer and professor William Patry keeps a few-days-a-week Copyright Blog.

Organizations
The Electronic Frontier Foundation is a non-profit law center devoted to “defending freedom in the digital world.” IPac is a political action committee in support of less “draconian” IP law.


By: Jeff Siegel
Published on: 2006-07-18
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