telae tabulae

occasional essays on copyright, patent, and anything else that might catch my fancy
 by Timothy R. Phillips



January 18, 2003
(Gregorian Lunar Almanac 2003.1st Moon.15th Day)(longish-term link)

Court to  Public:  "We lied, suckers!"

In its ruling in Eldred v. Ashcroft, the U.S. Supreme Court has said, in effect: "We lied, suckers.  Almost everything we ever said about the public purposes of copyright was just hot air."

I am amazed that the court showed disregard, not only of its own copyright jurisprudence, but of its own institutional self-interest.  The court could easily have remanded the case for a trial on the question of whether the Bono Act promotes progress more than it places monopoly burdens on the public (copyright clause balancing) or on the question of whether it promotes a significant government interest more than it burdens speech (first amendment balancing).  The lower courts would have gone through the motions of making this evaluation and upheld the Act.  Eldred would have appealed again, the Supreme Court would have denied certiorari the second time, and that would have been the end of Eldred's case.   But the court would have been more consistent with its existing copyright jurisprudence, and at the same time would more strongly have upheld their prerogatives of constitutional review of Congress's exercise of its limited powers.  It will be hard for future courts to strike down any future extensions of the copyright term without repudiating its decision in Eldred's case.

The Eldred opinion's ignorance, or cynical dismissal, of its earlier jurisprudence is made especially clear in footnote 18:
 

Justice Stevens' characterization of reward to the author as "a secondary consideration" of copyright law...understates the relationship between such rewards and the "Progresss of Science".  As we have explained, [t]he economic philosophy behind the [Copyright [C]lause...is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventers." Mazer v. Stein, 347 U.S. 201, 219 (1954).  Accordingly, "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge...The profit motive is the engine that ensures the progress of science."  American Geophysical Union v. Texaco Inc. 802 F. Supp.  1, 27 (SDNY 1992), aff'd, 60 F. 3d 913 (CA2 1994).  Rewarding authors for their creative labor and "promot[ing]...Progress" are thus complementary; as James Madison observed, in copyright "[t]he public good fully coincides...with the claims of individuals."  The Federalist No. 43...Justice Breyer's assertion that "copyright statutes must serve public, not private ends"...similarly misses the mark.  The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with incentive to pursue private ones.


In Madison's day it might have been possible to assert that the public good "fully coincid[ed] with the claims of individuals", because the scope of copyright did not then include derivative works; did not then include public displays and performances; and only lasted for 28 years at most.  Everything else Madison wrote about copyrights and patents shows that he is fully aware that copyright places burdens on the public, and that these burdens can, if they become heavy enough, destroy the coincidence between "the public good" and "the claims of individuals."  Justice Stevens's and Justice Breyer's statements are entirely consistent with the cases they site.  It is the court majority that "misses the mark", disregarding the clear spirit of the court's earlier copyright dicta and cynically citing Madison in a tendentious way.  Justice Stevens does not "understate the relationship between [the] rewards [conferred in the copyright monopoly] and the 'Progress of Science'".  It is the court majority that understates --indeed, all but ignores -- the relationship between the public domain and the "Progress of Science."

The effect of the Eldred ruling is that the Congress need never rationally weigh the burdens copyright places on the public.  The Constitution clearly presupposes that the expiration of copyright--the public domain, as we now call it--is the most important constitutional means of keeping copyright true to its purpose of promoting progress.  But though the Constitution gives the public domain pride of place in its text through the words "promote progress", "for authors", and "limited times", the court has stated that the 105th Congress's cynical dismissal of the public domain as worthless is not subject to constitutional review.

The court's rubber-stamp review of the Copyright Term Extension Act is the weakest standard of judical review ever proposed.  It is weaker even than the generous standard stated in McCullogh v. Maryland (17 U.S. 316), where Mr. Chief Justice Marshall declared that an act of Congress must be "plainly adapted" to their constitutional ends and "consist with the spirit" of the Constitution.  Courts are understandably reluctant to invalidate acts of Congrss for failing to comply with the spirit of the constitution.  But if any act of Congress fails to "consist with the spirit" of the article I power under which it is passed, it is the Bono Act.

The court then backpedals with the following bit of Pilatesque hand-washing:
 

The wisdom of Congress' action...is not within our province to second guess.


But as Mr. Justice Breyer pointed out in different words in his dissent, a want of reason in the legislative judgement is grounds for finding an act of Congress invalid.  An act that is unwise is by definition an act of folly; and folly must at some point rise to the level of the constitutionally unreasonable.  A fair court would at least have considered seriously the burdens that the CTEA places on the public.  One of the reasons I find the Eldred ruling is defective is that it scarcely even to acknowledges the existence of these burdens, much less their great weight.

Watch this space for a more detailed evaluation, in which I will have some positive things to say about the majority opinion.



This essay copyright (c) 2003 by Timothy R. Phillips.  It may be reprinted freely as long as the text is unchanged and this  notice is included.



 

October 27, 2002
(Gregorian Lunar Almanac 2002.11th Moon.21st Day)

"We hate the public domain".(longish-term link)

So say the "movie barons and the proud high-lords of song"  in The Ballad of Dennis Karjala:
 

It wasn't many years ago, in nineteen and seventy-eight,
they added nineteen years onto the term of copyright;
then said the movie barons and the proud high-lords of song,
"our copyrights will suit us well if they can last this long."

But when the nineteen extra years were nearly past and done,
those same proud barons then returned with cash to Washington.
"We want another twenty years, we hate the public domain.
And here's some cash that you can use to fund your next campaign."


Now Thomas C. Greene,  writing in The Register, has added his voice to the chorus of public-domain-bashing:
 

As long as you have those rights to sell, your publisher, whoever and wherever he is, gets a little short-term monopoly which ensures there's money to be made for him, too.  And this is how excellent, seventy-year-old books like "Good-Bye to All That" manage to stay in print in handy little paperback editions which we can read conveniently on the subway.
Greene believes that "Were it not still under copyright, [Good-Bye to All That] might not be available except on the Net."  As I read Greene's words between the lines, I conclude that although he writes "might not", Greene inclines strongly to the view that the book would not (not simply "might not") be available if it were in the public domain.

It is certainly true that, all other thing being equal, a monopolist can achieve a higher profit margin than a seller in a competitive market for the same goods.  Because she can set a price above marginal cost, she can pocket some of what would otherwise remain as part of the consumer's surplus.  This is not, however, a reason to encourage monopolies.   In a free-market economy we ordinarily try to encourage competition and enhance consumer surpluses.

In 1998, shortly before the Copright Term Extension Act passed Congress, special prosecutor Kenneth Starr delivered his report on the Lewinsky affair.  Since the report is a work of the United States Government, it is in the public domain.  It was made available on the World Wide Web for free.  Furthermore three competing publishers, Pocket Books, Prima, and Public Affairs, offered  printed editions of the report.  All three seem to have made money on it.  (Nora Rawlinson, "Lessons of the Starr Report", Publishers Weekly, vol. 245 #41, p. 11, October 5, 1998.  Doreen Carvajal, "Testing of a President: The Report; Starr Report Selling well in Book Form", The New York Times, Saturday, Sept. 19, 1998, Section A, p. 10, col. 6.)   Hence publishers who know how to adapt to a competitive market have a chance to make money from a work that is publici juris; copyright is not a necessary condition for a book to be worth marketing.

The presuppositions underlying Eldred's advocates certainly differ from those put forward by Solicitor General Olsen.  Solicitor General Olsen seems to think that intellectual works are most efficiently traded in monopoly markets rather than in free markets.  This position is a variant of the copyright philosophy known as neoclacissism, which has been described and criticized by Neil Netanel.  Eldred's side starts from the assumption that competitive markets should be presumed to be the most efficient for books just as for any other goods, and that monopolistic departures from free competition are exceptions that are to be used only in carefully limited circumstances.  The latter is certainly the view of the Constitution's drafters.  "Monopolies", wrote James Madison, "must be granted with caution and guarded with strictness against abuse" (Emphasis added.)  The question the Supreme Court needs to decide is whether the drafters wrote their presuppositions into the Constitution clearly enough to create a judicially discoverable limit on Congress's ability to extend copyrights.
 
 

October 5, 2002
(Gregorian Lunar Almanac 2002.10th Moon.28th Day)
 

In praise of creative freedom - 1(longish-term link)

In G. F. Handel's Messiah, first performed in 1742, there occurs between the choral section "For unto us a child is born" and the recitative "There were shepherds abiding in the field", a brief instrumental section called "Pifa" or "Pastoral Symphony".  The section's first violin part begins as follows:

In the 1665 edition of The Dancing Master is a tune called "Parthenia: a dance", which, when transposed into the key of C and set in 12/8 time, begins as follows:
 
At least one early 19th-century critic thought that the dance-tune "Parthenia" was the source of the opening motif in the Pastoral Symphony.  Other commentators think that Handel learned the motif from Calabrian pipers whose playing he heard during his travels in Italy.  Either way, Handel was engaged in creative copying:  He took a melody he had not written and used it as the basis from which to create new music.

There are some, though, who seem to think that creativity of this sort should never be allowed.  Mary Rodgers, daughter of  songwriter Richard Rodgers, speaking to a journalist in 1995 about her support for the Copyright Term Extension Act, told the journalist,  "I wish, in a way, the public domain didn't exist at all."  (Robert Kolker, "Theatres on alert as Congress looks at copyright law", Back Stage v. 36 no. 9, March 3, 1995, p. 3.) These words state a wish for a world with no Bible, no Shakespeare, and no Handel--except for those who can pay whatever a monopolist (who may have nothing in common with the original author of the work over which she holds monopoly power) chooses to demand.  The words "didn't exist at all" are capable of no other interpretation.

More recently, the Nashville Songwriters Association International  (NSAI) has filed a friend-of-the-court brief in the Eldred v. Ashcroft case, in support of the Government's position that the CTEA is constitutional.  In footnote 7 of their brief the songwriters reveal a hatred of the public domain in expression that is even more vehement than Mary Rodgers's:
 

[C]opyright never removes any existing knowledge from the public domain. It merely postpones the legal piracy of a particular way of expressing that knowledge. (Brief Amici Curiae of the Nashville Songwriters Assiciation International in support of Respondent, in the case of Eldred v. Ashcroft, August, 2002, p. 10, footnote 7.)
So for these songwriters, copying from a work in the public domain is "piracy".  Before the copyright expires, according to the clear implication of the wording of this statement, acts that infringe the copyright are illegal piracy, while the same acts after the copyright expires are "legal piracy".  But since "piracy" is by definition something that should never occur, these songwriters, like Mary Rodgers, imply by their words that they want the duration of copyright to be perpetual; and that they consider it "piracy" for anyone to copy without authorization (presumably from a descendent or assignee of the original author) from any work on which the copyright has expired or never existed, whether the Bible, the works of Shakespeare, or the 1665 edition of The Dancing Master. If this is not what they believe, then why do they label the public's freedom to use the public domain as "piracy" ?

Fortunately the U.S. Constitution's framers did not think that human intellectual freedom is "piracy".   Indeed, James Madison once characterised intellectual freedom as a form of property:  "A man...has a property very dear to him in the safety and liberty of his person.  He has an equal property in the free use of his faculties and free choice of the objects on which to employ them." (James Madison, "Property", National Gazette, March 29th, 1792.)  Copyrights and patents, on the other hand,  were "embarassments" (i.e. burdens) to  Thomas Jefferson,  and "nuisances" to Madison, though Madison thought that copyrights, patents, and other limited monopolies might nevertheless be useful provided they were "granted with caution and guarded with strictness against abuse."  (Detatched memorandum on monopolies, (hereafter "Monopolies") Jack N. Rakove, ed., James Madison: Writings, Library of America, 1999, p. 765.)  Thomas Jefferson, for his part,  stated the purpose of copyrights and patents in a letter to Oliver Evans:
 

A man has a right...to use his knife to cut his meat, a fork to hold it; may a patentee take from him the right to combine their use on the same subject?  Such a law, instead of enlarging our conveniences, as was intended, would most fearfully abridge them.  (Thomas Jefferson,  Letter to Oliver Evans,  January 16th, 1814.)


This statement presupposes that the underlying intention behind the granting of  patents (and, by implication, of copyrights) is to "enlarge our conveniences", that is, our freedom.  In modern terms, this means that the purpose of copyrights and patents is to enlarge the public domain so that we will have more things on which we can exercise our intellectual powers:  the very intellectual freedom that the Nashville Songwriters Association International calls "piracy" .  So while the NSAI might hate to live in a world in which George F. Handel can take a dance-tune or pipe-tune and create from it a beautiful musical interlude for his oratorio,   the Constitution, if we can keep it, preserves for us our right to such a world.  It does this in at least two places:  first, in its promotion-of-progress clause,
 

The 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.


This is not a power to grant copyrights and patents.   It is a power to promote the progress of science by means of copyrights, and of arts by means of patents.   The "exclusive right" can only be granted to "authors" and "inventors".  A grant to anyone else, even to the author's widowed spouse or children, is prima facie unconstitutional, though perhaps such a grant might be saved by some ingenious legal reasoning.  The  exclusive right can only be granted to the authors and inventors for "their" writings or discoveries, not for anyone else's:  the works of Shakespeare are, and remain, publici juris because Shakespeare is dead, and no others can claim that Shakepeare's writings are "their" writings.  The exclusive right can only be granted "for limited Times" because, as James Madison noted, "under that limitation a sufficient recompence and encouragement may be given", and because "perpetual monopolies of every sort, are forbidden not only by the genius of free Governments, but by the imperfection  human foresight." (Madison, "Monopolies", in Rakove, Madison, p. 756, 757.)  The longer the monopoly lasts, any "progress" gained through it is subject to the law of diminishing returns, while the burdens imposed by the monopoly increase in proportion to the monopoly's scope and in proportion to its duration.  This principle was noted by Madison in the same essay just quoted:
 

One objection to a Bank is that it involves a qualified monopoly; and the objection certainly has weight in proportion to the degree & duration of the monopoly.  (Id. at 757)


It would be ignorant and faithless to evade the implications of Madison's reasoning by objecting that this statement is about banks, not about copyrights or patents.  Madison is here applying the general characteristics of monpolies -- that they are objectionable "in proportion to the degree & duration of the monopoly" -- to the particular case of banks.  But the general principles apply by definition to all monopolies, including copyrights and patents.

Another place in which the U.S. Constitution defends our intellectual freedom is the Ninth Amendment:
 

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


That the intellectual freedom to use literary expression -- the freedom of what is now called the "public domain" -- is one of these "retained by the people"  is reasonable on its face, and can be demonstrated by the English and American evolution of the principles of free trade and restriction of monopolies.  In the early 17th century an English court declared that "the common law abhors all monopolies, which prohibit any from working in any lawful trade."   (The Ipswich Tailors' Case, 77 Eng. Rep. (1614/1615), 1218 at 1219.)  In the 1640s the Massachussetts general court established the following law:
 

It is ordered, decreed and by this court declared; that there shall be no Monopolies graunted or allowed amongst us, but of such new inventions that are profitable for the Countrie, and that for a short time.  (The Book of the General Lawes and Libertyes...of the Massachusets...Boston, 1647;  in Donald S. Lutz, Ed. Colonial Origins of the American Constitution: A Documentary History, Liberty Fund, Indianapolis, 1998,  p.128.)


The 1776 North Carolina declaration of rights contains an unqualified statement against monopolies:
 

That perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed.  (A Declaration of Rights, North Carolina , 1776, Article XXIII.)


Thomas Jefferson listed freedom from monopolies (including copyrights and patents) among fundamental rights
 

It seems pretty generally understood that [a bill of rights] should go to Juries, Habeas corpus, standing armies, printing, religion and monopolies....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.  (Thomas Jefferson, Letter to James Madison, July 31st, 1788.)


The anti-federalist writer "Centinel",  also listed freedom from monoplies among fundamental rights, though "Centinel", unlike Jefferson, thought that limited patents and copyrights would provide useful benefits that outweighed their costs:
 

There is [in the draft Consititution] no declaration...that the trial by jury in civil cases as well as criminal, and the modes prescribed by the common law for safety of life in criminal prosecutions shall be held sacred; that the requiring of excessive bail, imposing of excessive fines and cruel and unusual punishments be forbidden; that monopolies in trade or arts, other than to authors of books or inventors of useful arts, for a reasonable time, ought not to be suffered.  ("Centinel" (pseud.), "To the People of Pennsylvania", Philadelphia Freeman's Journal, October 24th, 1787.  Reprinted in John P. Kaminski and Gaspare J. Saladino, eds.,  The Documentary History of the Ratification of the Constitution, State Historical Society of Wisconsin, Madison, 1981,  vol 13, p. 466.)
It seems reasonable that if the U.S. Supreme Court can find in the Ninth Amendment a right of marital privacy, (Griswold v. Connecticut) which as far as I know the framing generation never explicitly mentioned, then we can find in the same Amendment a right that prominent members of the framing generation did mention:  a right of freedom from unreasonable monopolies; and a right  of freedom to make, use, and sell any lawful device in fair competition with any other artisan, and to print and sell any lawful writing in fair competition with any other publisher.

Some might wonder how, if the public domain is a fundamental right secured by the Ninth Amendment, can the constitution provide at all for the use of monopolies to promote the progress of science and useful arts.  The answer is that establishing the existence of a right doesn't automatically establish scope of the right.  The legislature has the power in the public interest to pass laws that have the effect of modifying on the margin even those rights that are unailienable at the core.  Through limited copyrights and patents the public sacrifices some of its intellectual freedom on the margin in order at a later time to have a larger field of intellectual inquiry:  that is, a larger public domain.  But the broader and deeper the legislature's regulation runs, the more likely it is to modify an important freedom not just at its margin, but at its core, and the less likely the regulation is to be within the scope of the legislature's limited powers.  In the copyright context the U.S. Supreme Court has recognized this principle in its opinion in the case of Sony v. Universal City Studios:
 

The monopoly privileges that Congress may authorize are  neither unlimited nor primarily designed to provide a special private benefit. (Sony v. Universal City Studios, 464 U.S. 417, at 429.)


The contrapositive follows:  if a provision of the copyright or patent statute is "primarily designed to provide a special private benefit", then Congress may not authorize it.
 

September 22, 2002
(Gregorian Lunar Almanac 2002.10th Moon.15th Day)
 

More ideas on "ideas" (longish-term link)

Copyright, we are often told, "protects" (a loaded word) only "expression", not "facts" or "ideas".   This is true in the abstract, as the statute itself states:  17 USC 102(b).  In practice, however, the Nimmers have observed that the line between so-called "ideas" and so-called "expression"

is a pragmatic one, drawn not on the basis of some metaphysical property of 'ideas' but by balancing the need to protect the labors of authors with the desire to assure free access to ideas.
--Melville Nimmer and David Nimmer, Nimmer on Copyright, 13.03.F.1 (1998)
We may well ask: how useful is this supposed "free access to ideas" that we enjoy ?   After all, if the distinction "is a pragmatic one", that means it is difficult to predict in advance where the line will be drawn.  The harder the line is to predict, the  harder it is to rely on our ability to stay on one side of it.

A simple thought experiment will show that, in the field of imaginative literature, the supposed freedom to copy "ideas" from the copyrighted imaginative works of prior authors is an illusion.

From old Icelandic literature J.R.R. Tolkien copied the following components, which can reasonably be though of as "ideas" even in the narrow sense of the word used in the copyright statute, into his novel The Lord of the Rings:

(A.1) A race of beings called "Dwarves", who
(A.2) live underground, and who
(A.3) excel in metalworking and other crafts, and who
(A.4) have names like Durin, Nain, Dain, Bombur, Thrain, Thorin, Thror, Fili, Kili, and Fundin.

If the Poetic Edda and other old Icelandic works had been under modern U.S. copyright when Tolkien wrote, would he have been able to copy these "ideas" freely ?  Imagine a writer copying the following  similar "ideas" from Star Trek:

(B.1) A race of beings called "Vulcans", who
(B.2) live on a planet called "Vulcan", and who
(B.3) excel in mathematical physics and other branches of natural philosophy, and who
(B.4) have names like Spock, Sarek,  and Sybok.

Our hypothetical writer could very well find himself struck by a suit for copyright infringement, as the Carol Publishing Group was when it published a book called The Joy of Trek.  The Federal District Court issued a preliminary injunction against The Joy of Trek, stating "[The fictitious history of the Star Trek universe] is a story, created and owned by Paramount.  The characters, plots and dramatic episodes that comprise this story are its original elements.  By reproducing these elements The Joy of Trek infringes on the Star Trek Properties as a matter of law."  Paramount Pictures Corp. v. Carol Publishing Group et al., 11 F.Supp.2d 329, at 333 (SDNY, 1998).  "Characters, plots, and dramatic episodes" are not self-evidently "expression" rather than "ideas".  But the idea/expression distinction was found to be worthless to Carol Publishing, and probably would have been worthless to Tolkien if powerful interests had claimed copyright in the Poetic Edda and other works from which Tolkien drew.  The true reason Tolkien could, with only minimal fear of lawsuits, copy the "idea" of dwarves from the old Icelandic literature was because that literature was in the public domain, "ideas" (narrow sense) and "expression" both, not because he copied only "ideas".
 

September 17, 2002
(Gregorian Lunar Almanac 2002.10th Moon.10th Day)
 

The word "idea" has variable width (longish-term link)

David R. Henderson's  "The Free Software Lunch" is a gripe against government use of software released under the terms of the GPL.  It is being discussed in a number of places on the web. (To find some of them, follow the links from here.)  One pot-shot that I think was slightly unfair, though, occurs in this comment by Ernest Miller:

Miller wrote:

LawMeme looks at Henderson's claims:
This "viral" property effectively bars commercial software makers from incorporating ideas from GPL software...
Uh. no.  You see, under copyright law, ideas are not protected, only expressions of ideas.  This is known as tthe idea/expression dichotomy.


This is unfair because the statute, 17 USC 102(b), uses the word "idea" in a narrow, technical sense,  while it is clear that Henderson is using the word in its broader sense.  This broader  sense of the word is not hard to find elsewhere.   When musicologist George J. Buelow wrote that

...Handel, more than any other composer, adopted a method of composing that often emphasized the craft of reworking, revising, adapting, and transcribing musical ideas of his own and others",
--George J. Buelow, "The Case for Handel's Borrowings", in Stanley Sadie and anthony Hicks, eds., Handel Tercentenary Collection, Macmillan, 1987, pp. 61-92, at 62
he was referring to musical borrowing of this kind.  Buelow used the word "idea" in a broad sense, a sense which includes what the narrow, technical sense of copyright law would exclude.  Even in a legal context the word  "idea" is not always used in the narrowest of its modern senses.  The word appears in Mr. Justice Brandeis's famous dictum in his dissent in INS:
The general rule of law is, that the noblest of human productions--knowledge, truths ascertained, conceptions, and ideas--become, after voluntary communication to others, free as the air to common use.  Upon these incorporeal pruductions the attribute of property is continued after such communication only in certain classes of cases where public policy has seemed to demand it.  These exceptions are confined to productions which, in some degree, involve creation, invention, or discovery.
--International News Service v. Associated Press, 248 U.S. 215 (1918), at 250. (Brandeis, J. dissenting)
It is clear from the context that by "knowledge, truths ascertained, conceptions, and ideas", Brandeis means all works of the human mind, both "ideas" (narrow sense) and "expression".  This is clear because he goes on to say that patents and copyrights are exceptions to his "general rule of law".  Hence copyrightable subject matter is a subset of "knowledge, truths ascertained, conceptions, and ideas".  If we must shoe-horn copyrightable "expression" into a single one of the four types of "incorporeal production" (rather than letting them function as overlapping categories) then  placing it under Mr. Brandeis's "ideas" is one of the better choices.  Likewise it seems clear from Mr. Henderson's article that he is using "ideas" in a broad sense, not in the narrow, technical sense.

A much better objection to Mr. Henderson's article can be based on his understanding of the relationship of copyright to free-market principles.  Mr. Henderson wrote that

Commercial developers live in fear that the intellectual property embodied in  their software will be stolen...But some programmers...have gone their own way....Adam Smith would never have complained about alternatives to conventional market solutions that withstood the market test.
For Adam Smith, though, copyrights and patents were monpolies; they were barely-tolerable exceptions to the free-trade principles he was advocating:
When a company of merchants undertake, at their own risk and expense, to establish a new trade with some remote and barbarous nation, it may not be unreasonable to incorporate them into a joint stock company, and to grant them, in case of their success, a monopoly of the trade for a certain number of years.  It is the easiest and most natural way in which the state can recompense them for hazarding a dangerous and expensive experiment, of which the public is afterwards to reap the benefit.  A temporary monopoly of this kind may be vindicated upon the same principles upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author.  But upon the expiration of the term, the monopoly ought certainly to determine...By a perpetual monopoly, all the other subjects of the state are taxed very absurdly in two different ways:  first, by the high price of goods, which, in the case of a free trade they could buy much cheaper; and secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on.  It is for the most worthless of all purposes, too, that they are taxed in this manner.  It is merely to enable the company to support the negligence, profusion, and malversation of their own servants.
--Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, Book 5, Chapter 1, Part 3, Article 1.  Britannica Edition, Chicago, 1952, pp. 329-330.  Emphasis added.
Both conventional copyright and the GPL are forms of monopoly.  They are both "taxes" on the public, as Adam Smith states in the passage just quoted; or "embarassments" (i.e. burdens), as Thomas Jefferson would say.   The GPL does, indeed, prevent perfectly free competition;  a second-comer can copy the GPLed code only under the terms of the GPL.  But all forms of copyright inhibit free competition, while the GPL can, in some circumstances, be less burdensome than other forms of copyright.   The solution to the inconveniences caused by the GPL is the same as the solution to the inconveniences caused by all other forms of copyright.  It is Adam Smith's own solution:   "The monopoly ought certainly to determine."  The copyright should expire after a moderate term, so that the formerly monopolized text can be used in free competition.   If Mr. Henderson is serious about allowing competitors to use others' source code in order freely to offer competing commercial products in which the new advances are subjected to conventional copyright, he should, at the very least, propose a repeal of the Copyright Term Extension Act of 1998.  Then source code would be under copyright for "only" 75 years!
 

September 15, 2002
(Gregorian Lunar Almanac 2002.10th Moon.8th Day)
 

Doc on me on Doc on Lessig on Freedom(longish-term link)
 

Doc Searls is cautious about my sweeping statement that "we have a right to all works of the human mind; they belong by right to all mankind."  He is wise; sweeping statements should be treated with caution.

I assumed that it went without saying that the statement, though it says "all works", doesn't  refer to "all works utterly without exception", but only all works that are disclosed to a fellow human being without any agreement of confidentiality.   I assumed that it went without saying that no one has any right to compel a fellow human being to disclose the truly private thoughts of his heart.  (In our legal system, of course, we have compulsory process to summon witnesses to court.  I pass over in silence the question of whether use of this process can ever be construed as leading to the compulsory disclosure of "truly private thoughts".)    I assumed that it was obvious that the works I was referring to were those works that have non-zero amplitude in the public's intellectual space.  Maybe my assumption was rash.  "All voluntarily disclosed works of the human mind" would have been better wording.

Once that qualification is made, I see nothing to object to in my statement.  It seems pretty basic that "in general, unless an intellectual property right such as a patent or copyright protects an item, it will be subject to copying".  (Traffix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001.)   Among the supreme court's statements of copyright and patent principles, this one stands out as uncharacteristically weak; yet even this statement repeats the obvious fact that copying a book or machine is not wrong in itself.  It is wrong only to the extent that it is forbidden by copyright or patent law.  Usually the Court's statements are more robust:  "For almost 100 years it has been well established that in the case of an expired patent, the federal patent laws do create a federal right to copy and use.  Sears and Compco extended that rule to potentially patentable ideas which are fully exposed to the public."  (Bonito Boats, Inc. v. Thunder Craft Boats, Inc. 489 US 141, at 165.)  The Bonito Boats opinion goes on to state "Our decisions since Sears and Compco have made it clear that the Patent and Copyright Clauses do not, by their own force or by negative implication, deprive the States of the power to adopt rules for the promotion of intellectual creation within their own jurisdictions."  If this refers to the States' authority to pass trademark and trade-dress laws designed to prevent marketplace confusion; trade-secret laws designed to provide legal strength to commercial agreements of confidentiality where the public is not harmed by the private agreements; fair-competition laws against high-handed business methods; and right-of-publicity laws for protecting privacy and preventing certain kinds of misleading advertising, then I agree.  If the Court means that the "federal right to copy" created by the federal patent laws is not a statutory instance of the public's preexisting common-law right to copy, which is presupposed by the constitution's Promotion-of-progress clause, then I must disagree.  The principles of free competition mean that any publisher should be free to publish a lawful book in fair competition with any other publisher, and that any craftsman or mechanic should be free to make, sell, or use any lawful device in fair competition with any other artisan.  Patents and copyrights are, in theory, self-imposed restrictions on the margin of this fundamental freedom to which the public submits in order at a later time to have more things to copy: a larger public domain.   But the core of the public's right to copy is a right of constitutional weight, and can't be alienated or suppressed.  If somehow the Constitution's Promotion-of-Progress clause doesn't, by its "own force or by negative implication" establish this doctrine, then I would say that the doctrine is established by the the Promotion-of-Progress Clause operating in combination with the Ninth Amendment.

Lest my words be misread I will repeat the tedious and obvious qualification that this public right to the public domain is a right in intangibles.  In general this right doesn't, on its own, create or destroy any right to any thing made of matter, or any right to enter any private physical space.
 

September 14, 2002
(Gregorian Lunar Almanac 2002.10th Moon.7th Day)

Lessig on Freedom   (Longish-term link)
(This is a slightly revised version of a note that was first posted to Doc Searls's discussion board on September 4th, 2002.)

I enjoyed reading Doc Searls's brief note recalling Lawrence Lessig's 2002 Oscon keynote speech. Doc call's Lessig's talk "the geek culture equivalent of Martin Luther King's 'I have a dream' speech."

"Use it or lose it" is an apt warning. We have a right to all works of the human mind; they belong by right to all mankind. (Note that the reference is to "works of the human mind". The statement has no direct bearing whatever on anyone's right, or lack of one, to anything made of matter.) Copyrights and patents are, as James Madison noted, "sacrifices of the many to the few" (Letter to Thomas Jefferson, October 17th 1788); they are, as Attorney General Levi Lincoln stated of patents in 1802 in words that apply equally to copyrights, "monopol[ies] in derogation of common right." (Opinions of the Attorney General, 1, 110.) In granting these monpolies, we the public generously refrain for a time from exercising our full rights in newer works in order slightly to reduce the economic risk inherent in marketing them, thereby increasing the chance of profitibility for the author or inventor. This act of self-restraint on the public's part, in which it sacrifices some of its intellectual rights on the margin in order to create rights for authors and inventors for the purpose of encouraging contributions to the public domain, has not been accepted with thanks by the entertainment and music industries. Rather, they seem only greedy for more such sacrifices on our part, and act as if they have a right to expect them.

 Human institutions tend to perpetuate themselves at others' expense, and even at the expense of the purposes for which they were originally set up. A possible asymptotic condition resulting from this process can be seen in the grievances of the Senechaussee of Rennes, who in 1789 petitioned the Estates General praying for

Supression de la servitude plus meurtrière du droit de suite de mouline...usage libre des meules à bras; proscription absolue de la capitation seigneuriale à raison de ces tristes machines; et que la postérité ignore, s'il se peut, que la tyrannie féodale bretonne, armée du pouvoir judiciare, n'a pas rougi, dans ces derniers temps, de briser les meules à bras, et de vendre annuellement à des malheureaux la faculté de broyer entre deux pierres une mesure d'orge ou de sarrasin.
(Suppression of the mankilling servitude of suit-to-mill, ... free use of querns; [and] absolute abolition of the royalty on these pathetic engines; that posterity may never know (if that is possible) that the tyrannical Breton lords, armed with the judicial power, did not blush in these modern times to smash querns, and to sell to the unfortunate folk annual "license" to grind a measure of barley or buckwheat between two stones.) M.J. Mavidal and M.E. Laurent, eds., Archives Parlementaires de 1787 a 1860, 1st Series, Vol. 5, Paul DuPont, Paris, 1879, p.547 (Article 171).
 

What might originally have been a reasonable way of funding the construction of large mills had degenerated into a lords' right that reached even to one of the simplest of everyday activities. The peasants had to get a "license" even to crush grain. I little doubt the lords defended their "property right" in the milling monopoly with many fine words. (Click here and search for the string '.P 235.' or the string 'ad molendinum'.)

 A similar progression can, if we are careless, operate in the development of the rights we have given to authors and inventors. Our own Supreme Court has warned us that "the natural tendency of legal rights to express themselves in absolute terms to the exclusion of all else is particularly pronounced in the history of the constitutionally sanctioned monopolies of the copyright and the patent."Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984), footnote 13.

 Just as the Breton peasants saw with the lords' milling monopoly, so we are seeing copyright reach ever deeper into our lives. Thanks to the Copyright Term Extension Act (CTEA) works that were new when our grandparents were young will not be graduated to the public domain until we ourselves are grandparents: a term nearly four generations long. Thanks to the "device" provisions of the DMCA it is now seen to be legally dangerous even to discuss data encryption in some circumstances. Maybe people with academic degrees and tenure get a pass, but hobbyists have no such protection.

 But how do we prevent the further erosion of our rights to the public domain? In 1998 I wrote to my U.S. Senators about the CTEA and recieved an empty-headed response. Michael Eisner was able to convince Senator Lott, who is not even his own Senator, to dislodge the CTEA from committee even though Senator Hatch had pronounced the bill "dead" earlier that year. (Penny Bender, "Hatch declares copyright protection bill dead", Gannett News Service, May 7th, 1998.) The balance of lobbying power is lopsidedly against the public's right to the public domain. Groups like the EFF and the FSF are only a start. The EFF's web site hardly contains the words "public domain" at all, and very little mention of the CTEA. The FSF is focused mainly on software, which those who hate the public domain can explain away as a special case. Those who believe in limited copyright and limited patent have far to go before they find their collective voice.

 I don't know how to get the attention of a legislator in 3 seconds or fewer. Perhaps we should start with the importance of the public domain in pharmaceuticals. The public domain's enemies might explain this away as a special case too, but at least it's a start. We might remind the legislators of the benefits of generic drugs. We might have them imagine a patent term that was so long that by the time the patent expired on a useful antibiotic, many microorganisms had already become resistent: the hypothetical antibiotic would never have been available at generic prices during the time of its greatest usefulness; the public never got the benefit of its bargain with the patentee. Now, what is the public getting in return for the copyrights it gives to authors, if by the time their copyrights expire almost all books are not only out of fashion, but so long out of print that a first edition copy is hard to find ? How "public" is such a public domain then ?
 



These essays copyright (c) 2002 by Timothy R. Phillips.  They may be reprinted freely as long as the text is unchanged and this notice is included.


 
This picture, from an English medieval illuminated manuscript, was reproduced in Alexander Speltz's Styles of Ornament, Tranlated from the Second German Edition by David O'Conor, E. Weyhe, New York, 1910, Plate 55, #19, whence it is reproduced here.  This image is in the public domain in the U.S.A. and should be copied and reproduced with gleeful abandon.