telae tabulae

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

The 2002 archive is here.

July 26, 2003
(Gregorian Lunar Almanac 2003.7th Moon.27th Day)(longish-term link)

In praise of creative freedom 2--"That song of the Gypsy Davy..."

At a concert in Okemah, Oklahoma, on July 12th 2003,  Arlo Guthrie introduced his father's version of the song "Gypsy Davy" (Child Ballad 200) by noting that his father Woody Guthrie  wrote many songs, and also "stole" many songs.  He went on to say,

Stealing, plagiarism.  They used to call it all kinds of terrible names until Pete come along and renamed it "the folk process".

I am quoting from memory, so these might not be Mr. Guthrie's exact words.   But Arlo Guthrie has said similar things in statements quoted by the New York Times (John Pareles, "Critic's Notebook", The New York Times, April 14th, 2003) and by the Honolulu Star-Bulletin (Burl Burlingame, "Guthrie dashes mythos with a little music and friendly story-telling," Honolulu (Hawaii) Star-Bulletin February 17th 1997).

"Pete", is of course Pete Seeger, who shared the stage with Arlo Guthrie that night.  Guthrie may be right that Pete Seeger was the first to coin the term "folk process", but the process of oral song-transmission through through variation and selection was being analyzed even before Pete Seeger's birth in 1919.   And the process itself has been operating as long as there have been songs.  The folk process was described, though not so named, by Cecil Sharp in 1907:

[Development of a folk song] involves the three principles of continuity, variation, and selection. (English Folk Song: Some Conclusions, London, 1907, p.16.   Italics in original)

Sharp's 1907 treatment contains errors and shortcomings, but the terminology of "continuity", "variation", and "selection" remains useful.

How this folk process might operate can be illustrated by examples from traditional ballads.  The existence of variant versions shows that many performers and editors have felt free to modify an existing lyric.  These modifications can be small changes in wording or inventions or deletions of entire sections.  They can also take the form of a grafting of portions of one lyric into another.  In one version of the ballad of Fair Margaret and Sweet William, (Child 74B) one finds these lines:

How d'ye like your bed, Sweet William ?
How d'ye like your sheet ?
And how díye like that brown lady,
that lies in your arms asleep ?

In a Kentucky variant (Campbell and Sharp 20D) of Little Musgrave and Lady Barnard (Child 81) nearly identical lines are heard:

It's how do you like my blanket, sir ?
It's how do you like my sheet ?
How do you like that fair lady
that lies in your arms asleep ?

A variant of Gypsy Davy, the song that Arlo Guthrie sang at Okemah, is The Gypsy Laddie (Child 200B), which has

"Go saddle to me the black," he says,
"the brown rides never so speedy,
and I will neither eat nor drink
till I bring home my lady"
The ballad of Charlie (Campbell and Sharp 28B), a North Carolina variant of Geordie (Child 209) has
Go saddle me my milk-white steed,
the brown one ain't so speedy,
and I'll ride away to the king's high court
enquiring for poor Charlie.

The evidence of the numerous variants and cross-grafts strongly suggests that many of the ballads are, in their surviving forms, works of cumulative authorship incorporating the work of  multiple minds.

This so-called "folk process", however, can operate on any song, not just on old ballads.  Only the broadest definitions of the term "folk song" would include the Christmas hymn "Hark the Herald Angels Sing".  Yet the process of cumulative authorship that has been conjectured for the ballads can actually be documented for this hymn-lyric.  The first version of this lyric was written by Charles Wesley (1707-1788), and contained the following opening lines:

Hark, how all the welkin rings
"Glory to the King of kings"

When the hymn was reprinted in George Whitefield's  Hymns for Social Worship (1753),  the opening lines were changed to

Hark! the herald angels sing
"Glory to the newborn king"

This change was copied by Martin Madan's Collection of Psalms and Hymns (1760), which also changed Wesley's lines

Universal nature, say
"Christ the Lord is born today!"


with the angelic host proclaim,
"Christ is born in Bethlehem"

so that the version in Madan's Collection was a follow-on version to a follow-on version.

Wesley's version did not explicitly use a refrain.  This practice was introduced in a 1782 edition of the New Version of the Psalms of David.  The refrain consisted of the lines which had been introduced by Whitefield, "Hark the herald angels sing/'glory to the new-born king'", making this 1782 version, like Madan's, a follow-on version to a follow-on version.

American editors too allowed themselves freedom to incorporate the received changes and to make modifications of their own.   Where Wesley had written:

Hail the Heavenly Prince of Peace,
Hail the Sun of Righteousness!
Light and life to all he brings,
Risen with healing in his Wings.
Mild he lays his glory by
born--that man no more may die.
Born--to raise the sons of earth,
born--to give them second birth.
American Episcopalian editors in 1826 rearranged these lines to:
Mild he lays his glory by
born than man no more may die.
Born to raise the sons of earth,
born to give them second birth.
Risen with healing in his wings
light and life to all he brings.
Hail the heaven-born Prince of Peace!
Hail the Sun of Righteousness.
It should be noted that Wesley's lyric itself owes some of its expression to the following verse from the English Bible:   "But for you who fear my  name the sun of righteousness shall rise, with healing in his wings," (Malachi 4.2) making the stanza derived from this Scripture verse a work of follow-on expression derived from translation (itself a kind of follow-on work) of the Hebrew original.

All these influences and derivations can be illustrated by a flow chart.

Any of the steps that were taken in the formation of the modern Episcopalian version of "Hark the Herald Angels Sing",, and many of the steps that we can suppose to have been taken in the formation of the existing versions of the Child Ballads, could have been prevented by copyright if the copyright monopoly, at the time these variants were made, had been as broad and as enduring as it is under current law.   And it is useless to claim that the use of the parallel ballad stanzas quoted above would be permitted under the scenes-a-faire doctrine.  Like fair use, the scenes-a-faire doctrine is flexible, and vulnerable to changes in judicial fashion.  This makes it difficult for authors to rely on when they begin work.  In any case, one must ask how the stanzas quoted above ever became "stanzas-a-faire" in the first place.  The answer is, that they became stock stanzas by being widely copied.  It was the absense of restrictions on copying and performing them that allowed them to circulate widely and acquire the status of conventional stanzas.

The creative and expressive freedom that all these follow-on authors enjoyed is part of the inherent creative and expressive freedom to which every member of mankind has a right.  In copyright we collectively sacrifice some of this freedom on its margins in order to promote the progress of science. Some copyright, possibly even a fairly broad-in-scope copyright, seems to be a necessary evil in the modern world.  If I were able to draft a copyright law entirely to my liking, the resulting monopolies would be likely to contain versions even of such late-arrived privileges as the derivation right and the right of public performance for profit.  But freedom is still the true environment for the singer's art;  the so-called "folk process" is in fact nothing other than a special case of the process by which mankind creates and maintains all of its music.  If in enacting copyright laws we sacrifice some of our creative and expressive freedom now in order to have more songs later,  still our full freedom must be restored to us after a reasonable time.  The copyright terms created by the Copyright Term Extension Act of 1998--life-plus-seventy years for author copyrights, and ninety-five years for copyright in published corporate works--are beyond reason, and must be revised downward.

July 21, 2003
(Gregorian Lunar Almanac 2003.7th Moon.22nd Day)(longish-term link)

The "R" in "RIAA" stands for "Robber-barons"

I thought that I was the Angry Young Man of Copyright.  But it looks as though Andrew Orlowski has beenangrier for some weeks now.

Frank Field suggests using the RIAA Radar if you want to avoid buying recorded music from RIAA member labels.   The program appears to rely on the RIAA's own current list of its members.  If this is so,  and if the RIAA's publicly disclosed list of its members is accurate, and if the RIAA Radar updates its copy of the RIAA list as often as the RIAA updates the original list, then the RIAA Radar is about as accurate a tool as can be found for this purpose.

I was pleased to find that neither Compass Records nor Dorian Records is listed among the RIAA's members.   But I wonder whether the RIAA's list tells the whole story.  Might an entity that doesn't appear on the list nevertheless be a subsidiary of one of the labels on the list ?

April 29, 2003
(Gregorian Lunar Almanac 2003.4th Moon.27th Day)(longish-term link)

What Professor Volokh may have missed

Professor Volokh wonders whether any of the Ten Commandments can be considered a "source" of modern American law.  He finds that only three of the ten commandments -- the sixth ("you shall not murder"), the eighth ("you shall not steal") and the ninth ("you shall not give false evidence"), have roughly equivalent provisions in modern American law.  He dismisses the influence of the fourth ("remenber the sabbath day") as trivial.

Then he goes on to wonder whether even the sixth, eighth, and ninth commandments can be considered "sources" of American law:

But I wonder whether even those three commandments qualify as a source of modern law. The assertion that some old law is a source of new law means, I think, that the new law came about because of the old one, and not because of some other alternative source.
This is to create a false alternative.   It seems to me that something can be considered "a source" of a new law if it is one of the reasons, not necessarily the only reason, that the newer law exists.

One can, of course define "source"  broadly.  One could say that James Madison's mother is a source of the U.S. Constitution since she is the source of James Madison.   I am not here planning to stretch the meaning of "source" to such extravagant breadth.   But I think Professor Volokh's  unreasonably narrow definition of "source" as "sole source" causes him to overlook some important insights that might be gained by using a broader definition.

This essay will only discuss historical issues.  Practical modern questions such as  (1) whether a federal judge should be permitted to display the text of the Ten Commandments in English in his courtroom; (2) whether the  judge should be permitted to display the text of the Ten Commandments in Hebrew in his courtroom; (3) whether the judge should be permitted to display a likeness of two stone tables, with the first four letters of the Hebrew alphabet on the right hand table, and the next six letters of the Hebrew alphabet on  the left hand table, in his courtroom; (4) whether the judge should be permitted to display a likeness of two stone tables with the Roman numerals I, through IIII on the left hand table, and V through X on the right hand table, in his courtroom; (5) whether the judge should be permitted to place a replica of the Ten Commandments in his chambers; (6) whether the balances and sword of the Goddess of Justice, ([quae] ultima de superis...reliqit humum, Ovid, Fasti, I.249-250) are permitted to be displayed in the courtroom; and (7) whether, if the answer to (6) is "yes", the answer to (6) would become  "no" if many lawyers and judges took up the practice of pouring wine or burning incense to Justitia--to which questions I very provisionally, without careful examination, answer (1) no, (2) probably not, (3) maybe, (4) maybe, (5) yes, (6) maybe, and (7) maybe--will not be discussed.

Volokh's dismissal of the fourth commandment (Sabbath) as only relevant to the Sunday Closing laws that exist in some states overlooks the following provision of the U.S. Constitution:

If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law (1.7.2, emphasis added).
It is even possible to generalize the influence of the fourth commandment as being reflected in the seven-day week, though this analysis will stretch the idea of a "source" to the limits of where I want to take it. Possibly the English adopted the seven-day week from the Mediterranean world independently of direct or indirect Christian influence.  Possibly the Mediterranean world adopted the seven-day planetary week independently of any direct or indirect Jewish influence.   But certainly it was the Christian cultural kit, of which the fourth commandment was part, that contributed to the  maintenance of the seven-day week as one of the basic time units of the English calendar over the centuries.  Without this influence, the seven-day week might  have been only an arcane tool of astrologers or diviners, rather than a deeply embedded cultural practice.  Hence any law that presupposes the seven-day week, such as Article 1, section 4, clause 2 of the Constitution ("first Monday in December") can be taken as possibly showing the indirect partial influence of the fourth commandment.

Volokh's discussion of the influence of the sixth commandment ("you shall not kill") is also somewhat unsatifactory.   It is not logical to say that all societies must regulate violence to some extent, therefore the sixth commandment has had no influence whatever on American law.   The question is, how has English and American law developed over the centuries, and under what influences ?  Our modern laws against murder can be understood as existing for the sake of the individual.  They reflect our view that government is obliged to exert itself in defense of  an individual right to life.  This view does not necessarily follow from the needs of public order.  Early English law's concern with homicide may not have been to defend the rights of the individual, but only to regulate and limit the practice of revenge by allowing the victim's family to claim a payment of wergild.   In theory this prevented blood-feuds from spiraling out of control:

The man who knows his enemy to be dwelling at home is not to fight before he asks justice for himself....A man may fight without incurring a feud if he finds another man with his lawful wife, behind closed doors or under the same blanket; or if he finds another man with his legitimate daughter, or with his legitimate sister, or with his mother who was given as lawful wife to his father.  (Alfred's laws, circa A.D. 890)

Indeed, it is not even certain that the sixth commandment, as it was originally understood, was concerned with the individual.  Whatever God may have meant, the human rulers who first put the commandment into effect may have understood it as being chiefly concerned with protecting God's prerogatives as the only authorized Giver and Taker of life.  However that may be, when the sixth commandment came to England it came as part of a cultural kit which viewed the law as a benefit to mankind.  I think it likely that the sixth commandment, working together over the centuries with the doctrine that every human being was made in the image of God, contributed to the evolution of the concept of an individual right to life.

The eighth commandment ("you shall not steal"), according to one theory, may originally have meant "you shall not kidnap [your fellow Israelite and sell him into foreign slavery.]"  The original commandment against theft, on this theory, would have been the tenth, conventionally translated "you shall not covet" but paraphrased in the Gospel of Mark (10.19) as "do not defraud".  By the time the Ten Commandments were in a position to influence English law, however, the eighth commandment  was understood as prohibiting theft.  Volokh is right that this commandment cannot be the sole source, or even the primary source, of our statutes against theft.  But this commandment, like the others, does not exist in cultural isolation.  When Mark Twain testified in favor of extending the term of copyright he spoke as though he felt that the eighth commandment should balance, or even supersede,  the constitutional requirement of "limited times."  Mark Twain did not get a perpetual copyright, but he did get an extension from 42 to 56 years.  His citation to the eighth commandment was only a small part of a single statement by a single witness; other witnesses testified, and other factors contributed to the durational provisions of the Copyright Act of 1909.  But Mark Twain would not have made the statement if he thought it had no chance of influencing the legislators.  The possibility that Mark Twain's reference to the decalog as the "other constitution" having had a partial influence cannot be ruled out.

I do not blame the eighth commandment itself for the way fools misapplied it to the copyright law in 1909 (if any did).  The point is that, because the Ten Commandments are ultimately inseparable from the cultural context in which they are embedded, their influence on American Law may be found elsehwere than in the statutes that directly implement provisions similar to theirs.  The commandment against theft  -- whether for good or for bad, whether by being well-interpreted or by being misinterpreted--  might influence even laws that have nothing to do with theft, such as the copyright law.  Other commandments too might contribute influences in places outside their own immediate scope.  This analysis, like my discussion of the seven-day week above, stretches the limits of the concept of a "source" of law about as far as I care to take it.  But I think it can be useful to stretch it this far.

April 27, 2003
(Gregorian Lunar Almanac 2003.4th Moon.25th Day)(longish-term link)

Weary me not

At this joyful time of year we often hear that the Council of Nicea (A.D. 325) determined that Easter should fall on the first Sunday after the first full moon after the vernal equinox.  But the Council of Nicea did no such thing.

The mistake is common.  No less a scholar than Ronald Hutton repeats it, in an uncharacteristic lapse into excessive credulity:

[Easter] was celebrated at the same time as the Passover until the Council of Nicaea in 325, when a distinction from the Jewish celebration was deemed necessary.  The Council also agreed upon a means of reckoning its date, compromising between the Asian churches' custom of calculating it according to the phases of the moon, and the practice of the Church in Rome, of fixing it upon a particular Sunday in the calendar:  henceforth it was to fall after the first full moon following the equinox. (Ronald Hutton, The Stations of the Sun, Oxford University Press, 1997, p. 179.)
This is wrong, however.  The only thing that the council seems explicitly to have decided on the Easter question was that the date should be everywhere the same.  The Emperor's letter to the bishops stated that "it has been determined by the common judgment of all, that the most holy feast of Easter should be kept on one and the same day."  (Eusebius, Life of Constantine, 3.19)  The same letter states the Emperor's own preference for what the day should be
Since that arrangement is consistent with propriety which is observed by all the churches of the western, southern, and northern parts of the world, and by some of the eastern also...all are unanimous on this present occasion in thinking it worthy of adoption.  I myself have undertaken that this decision should meet with the approval of your Sagacities, in the hope that your Wisdoms will gladly admit that practice which is observed at once in the city of Rome, and in Africa; throughout Italy, and in Egypt, in Spain, the Gauls, Britain, Libya, and the whole of Greece; in the dioceses of Asia and Pontus, and in Cilicia, with entire unity of judgment.  (Eusebius, Life of Constantine, 3.19.)
The Council considered the "arrangement" of the European and North African churches "worthy of adoption".  Constantine himself "hopes" that all churches will adopt the practice already in use by the majority of dioceses.  We might read this between the lines as indicating that the bishops were reluctant to impose a uniformity of practice, even at the Emperor's request, when they had been accustomed to some diversity in the past.  But however that may be,  the subsequent Easter controversies clearly demonstrate that the Emperor's letter exaggerates the "unity of judgment" among the European and North African churches.  Even Christians who agreed on the underlying theory of the Easter computation did not always agree on the date for any particular year.   This seems to indicate that the Council did not specify the method of dating Easter in precise detail.

Another concern of the Emperor's (not necessarily the council's) was independence from the Jewish calendar:

It appeared an unworthy thing that in the celebration of this most holy feast we should follow the practice of the Jews....Their boast is absurd indeed, that it is not in our power without instruction from them to observe these things....They stray so far from accurate calculation, that they sometimes celebrate two Passovers in one and the same year. (Eusebius, Life of Constantine, 3.18)
Since even reputable scholars (see for example Charles W. Jones, Bedae Opera de Temporibus, Medieval Academy of America, Cambridge, 1943) have gotten into the habit of interpreting  words such as "the practice of the Jews"  in the passage just quoted as a reference to the quartodeciman controversy of the second century A.D. (Eusebius, History of the Church, 5.23-25) it is necessary here to state the obvious:  The Emperor does not mention quartodecimanism at all.  Instead he seems to be referring to a dispute between parties that could be called "Jewish Calendarists" and "Independent Calendarists".  The Emperor thinks it undignified for Christians to depend on Jews to tell them when the Easter festival should fall.  He also states that the Jewish practice is defective:  sometimes there are two Passovers in the same year.  Apparently this means that sometimes, in some places, the local Jewish community would begin the Week of Unleavened Bread before the spring equinox, or at least before one of the dates customarily assigned to the spring equinox in the Roman world.  Constantine wants all Christians to adopt the practice, already in use in some places, of performing an independent calculation of the proper time for the festival.

The Emperor's reference to two Passovers in one year is in accord with what other historical sources also suggest:  The Jewish calendar was not  stable at this period (see the entry "Calendar", Encyclopedia Judaica, Keter, Jerusalem, 1971).  Jews in one place might not have held the Feast on Unleavened Bread on the same dates as Jews in another place.   Christians in one place who first consulted their Jewish neighbors to learn when the month of Nisan was to begin, and who then set Easter accordingly, might end up keeping Easter on a date that differed from what would be used by Christians elsewhere who relied in their turn on their own Jewish neighbors.  In any case, the Emperor's words clearly presuppose that the Jewish practice in at least some cities placed the Week of Unleavened Bread too early in the year from the perspective of the advocates of calendrical independence.  A Latin manuscript (Codex Veron. 60) published in facsimile by Schwartz (Christliche und jüdische Ostertafeln, Berlin, 1905,) if it be accurate, confirms this, for it states that in A.D. 328,  A.D. 331, and A.D. 334 the Jews of Antioch assigned the 14th of Nisan (the day before the first day of Unleavened Bread, which is the 15th of Nisan) to March 11th, March 8th, and March 5th, respectively.

To my statement above that the Nicene Council explicitly determined only that the dating of Easter should be uniform throughout the Roman world, it would be fair to object that, though the council only explicitly urged uniformity, the council 's endorsement of the majority practice nevertheless implicitly established that majority practice by reference.  By definition, though, a practice that is established by reference must preexist the reference itself.  Ronald Hutton's words, quoted above, imply that prior to 325 all Christians were what I have called "Jewish Calendarists", and that the independent computation was devised from scratch by the council itself.   This is clearly contradicted by the Emperor's exhortation to the minority dioceses to adopt the practice which the the majority were already using.  So even if the council can be said implicitly to have decreed the Easter computation in precise detail, Ronald Hutton's description would still need to be worded differently in order to conform to the evidence.   Besides this, as already noted the Emperor was mistaken about the degree of uniformity among those dioceses that used independent calculations.  The evidence, as I read it, suggests that the points on which the majority of dioceses can be said to have been in agreement in 325 were (1) that Easter Sunday should fall in a formal Paschal Week beginning somewhere near the middle of a springtime lunar month of 29 or 30 days; (2) the 29- and 30-day lunar months used for the Easter computation should reasonably approximate the observable lunar phases, so that the middle of the lunar month (the 14th and 15th days) should be close to the full moon; (3) the dates spanned by the appropriate lunar month should be determined by an independent calculation rather than by consulting Jewish neighbors to learn when they would observe their month of Nisan; and (4) Easter should never occur before the spring equinox.  These general rules are not always stated explicitly by writers on the subject, but they seem to be presupposed by most, and can be said to have been established implicitly (though not explicitly) by the council's call for the worldwide adoption of the majority practice.  But the precise definition of the Paschal Lunar Month, of the Paschal Week, and of the equinox were still unsettled.   It took several additional centuries for these details to be worked out.

Let us suppose, though, for the sake of argument, that the Nicene Council had explicitly stated that Easter was to be "the first Sunday after the first full moon after the vernal equinox", and that the council meant these words in precisely the meanings that they have in the much later writings of the English author Bede (died A.D. 735).  Would it be accurate today to state, without qualification, that "the Council decreed that Easter should be on the first Sunday after the first full moon after the vernal equinox" ?  The answer is, "not quite".  This is because, in the Easter debates of late antiquity and the low middle ages, the words "full moon" and "equinox" are used in a sense which differs from the now-familiar astronomical meanings of these terms.  The word "equinox" meant an entire day, the day on which the number of hours of daylight was equal to the number of hours of darkness.  This day was assumed to have a fixed  date in the Julian calendar, though there seems to have been was no agreement in A.D. 325 on which date it was.  In our day "equinox" can have this meaning, but it also refers to the day on which the center of the sun's disk coincides with the intersection (a geometrical point also called "spring equinox") of the celestial equator and the ecliptic where the sun moves northward along the ecliptic.  The date on which this event occurs varies from year to year, and in a given year it also varies from time zone to time zone.  Similarly "full moon" in the Easter debates eventually came to mean the 14th day of a lunar month occurring in a lunisolar calendar that divided a number of Julian years (how many years the cycle should employ was controversial for several centuries) into 29-and 30-day lunar months.  The words "first Sunday after the full moon" in the Easter context mean that Easter is always the third Sunday in its lunar month, never the second or fourth Sunday as permitted by some early Easter computations.  In our day "full moon" often refers to the moment of the moon's opposition to the sun.  At any given longitude this will not necessarily fall on the 14th day of the month in the Christian lunar calendar.  And even if the day on which the moment of opposition occurs coincides with the 14th day of the Christian lunar month at one longitude, it will not necessarily be the 14th at all longitudes.  To repeat the phrase "first Sunday after the first full moon after the vernal equinox" without taking into account the full range of meanings that the words "full moon" and "equinox" now have, can be misleading.

January 25, 2003
(Gregorian Lunar Almanac 2003.1st Moon.22nd Day)(longish-term link)

What Professor Felten doesn't quite get

First some necessary background:  Professor Felten went to CalTech and to the University of Washington.  I went to Trinity College and to the University of Illinois.   Under such conditions, conflict is inevitable.

Professor Felten, responding to Doc Searls's analysis  of the obstacles faced by the movement for copyright term reform, states that the movement's rhetorical strategy has been ill-devised:

I would...say that focusing on the role of the public domain is bad rhetorical strategy.  It's not that the public domain is unimportant.  It's just that public-domain arguments end up sounding like, "We want to use your stuff." By making a public-domain argument, you're inviting the accusation that you're a freeloader trying to make money off the creativity of others. You're saying, in effect, that certain ideas are the property of the public, and so you're buying in, indirectly, to the concept of ideas as property.

This misses the distinction between the unqualified statement that "ideas are property" and the conditional statement that "IF ideas are property at all, THEN they are public, not private, property."   It also fails to note that it is possible to speak of the public domain without speaking of "property" at all.  In fact it is even possible to speak of the public domain without the words "public domain".  Like the framers of the Constitution, we can instead speak of "restriction against monopolies", "free trade", and "liberty", in addition to using our more modern phrase, "freedom of expression."

Freedom to Write!More importantly, though, when the debate is on  the questi0n of when copyrights should expire, then it is inherently "focused on the role of the public domain", will we or nil we.  And I will, even if Professor Felten nil.  Many of the "copyright horror stories" that Professor Felten thinks are a good tool for  promoting copyright reform can be explained away as results of copyright's excessive scope, not of its excessive term.  The burdens that the horror stories illustrate might be lightened by reducing the scope of copyright or expanding the margin of fair use, rather than reducing copyright's duration.  Limits on scope and a reasonable margin for fair use, welcome though they would be, are no substitutes for copyright's timely expiration.  The debate must always be brought back to the question of  duration.  If we put forward the burdens resulting from copyright's excessive scope, it should be followed by an immediate reminder that the burdens copyright imposes are made worse when copyright lasts unreasonably long, while the benefits it brings to the public are subject to the law of diminishing returns over the same interval.  But we also need to be honest that, even if the incidents narrated in the horror stories had never occurred, a 95-year term of copyright is still too long.

We have nothing to be ashamed of if we say to an author "we want to use your stuff".  He wants us to use his stuff too, at least to the extent of buying his books and reading them.  He doesn't want us to infringe his copyright; we don't want to infringe it either.  But it is the whole public, not just the author, who get to decide what the limits of the copyright are, including its duration.  If we are spineless about asserting the importance of the public domain, we play right into the copyright industry's delusion that copyright is something to which it is entitled, and that the expiration of copyright is some sort of favor that the copyright barons do for us. The truth is the other way around.  Those industries are dogs, grovelling at the feet of the public's table for whatever scraps the public lets fall.  It is the public domain that is our right, and copyright that is the favor that we do for them.

We used to be able to rely on the Supreme Court to restate this principle at intervals.  One of the Court's strongest statements came in the following dictum from its opinion in the patent law case of Scott Paper v. Marcalus, words that I would apply equally to copyright:

The aim of the patent laws is not only that members of the public shall be free to manufacture the product or employ the process disclosed by the expired patent, but also that the consuming public at large shall receive the benefits of the unrestricted exploitation, by others, of its disclosures....The public has invested in such free use by the grant of a monopoly to the patentee for a limited time.  (Scott Paper Co. v. Marcalus Mfg. Co., Inc., 67 USPQ 193, at 196. 1945.  Stone, J.  Emphasis added.)

In its decision in Eldred v. Ashcroft the court has timidly backed away from this principle.  "Unrestricted exploitation," instead of being the ultimate "aim" of Congress's exercise of its promotion-of-progress power, is instead merely mentioned as something from which "authors' original expression" needs to be "protected." (Eldred v. Ashcroft, Opinion, page 30).

That the Supreme Court has turned its back on the public domain doesn't mean that we should.   If anything, we need to be more straightforward than ever about our view that "unrestricted exploitation" of an author's work, after a reasonable term of author's exclusivity in order to encourage the author and stabilize the markets for new works, is the goal of all copyright law--the more "unrestricted", the better.

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

January 20, 2003
(Gregorian Lunar Almanac 2003.1st Moon.17th Day)(longish-term link)

Let's all do the Redstone Sneer

In a January 18th, 2003 article titled "The owners of culture vs. the free agents"  and posted to the online New York Times, Edward Rothstein states this about Lawrence Lessig's thesis that our literary and musical culture is increasingly controlled by corparate interests at the expense of the public interest:

[T]he recurring argument that culture is now "owned" and must be freed and that creativity is being stifled as a result is overwrought. What innovations, for example, are being thwarted by corporate control over Mickey Mouse?

In a lecture in August, Mr. Lessig gave a kind of answer, suggesting that today's rules would never allow Disney to flourish in the same way. Walt Disney required the public domain to create his films, drawing on Grimm's Fairy Tales. Mickey's first major cartoon ("Steamboat Willie") was based on a new Buster Keaton film, "Steamboat Bill." Today, Mr. Lessig as- serts, the public domain is poorer and such imitation restricted....

It may be that one reason passions have flared so high is that a dominant style of popular culture in the 1990's was pastiche, which is indeed hampered by copyright. But if cultural health were really affected by whether Mickey and his contemporaries were in the public domain, there may be other, more serious problems to consider first like why a truly creative culture can't find other ideas to work with.

Imitative creativity (what Rothstein sneeringly calls "pastiche") was widely practiced in the 1490s as well as in the 1990s.   In music, the genres that employ creative copying are numerous and significant: cantus firmus, contrafactum, variation, fantasia and others.  Other sciences besides music no doubt have their own important imititative genres.  One of the virtues of a system of moderate copyright (if we had one) would be that these important genres would not be unreasonably burdened.

Legally, imitation and originality are opposites.  Copyright applies only to the "original" components of works.  But this should not confused with a value judgement on the artistic quality of those parts of a work as opposed to the others.  It is simply a way to protect the public from having its common culture monopolized.  Artistically, imitation and originality can be complemen- tary.  Some of the most imitative writers, such as Robert Burns and  G. F. Handel in the 18th century and Charles Ives in the 20th,  artistically can be at the same time some of the most original.   A "truly creative culture" is one that encourages all reasonable forms of creativity, including creative copying such as was practiced by Handel and Ives.

However, it is important to remember that copyright expiration is not just for derivative authors, but for the whole public.  Indeed, copyrights did not originally prevent derivative authorship at all.  Translations, abridgements, and other derivations were all public rights in the early days of modern copyright; the author's monopoly originally extended only to the book as published.  Yet even in those days of narrow copyright it was considered important for copyrights to expire after a reasonable time, so that other publishers besides the author's original publisher could offer competing editions of books, thereby improving their quality and lowering their price.  A free market in books is as important as ever.  But now the expiration of copyright is even more vital than before, since it frees more markets than ever.  Expiration of copyright encourages not only a free market in books, but a free market in musical and dramatic performances, a free market in sound recordings, and a free market in the numerous genres of creative derivations.

We want a "truly creative" culture.  And we also want a truly free culture.  Our presupposition is that free cultural markets are better than monopolistic ones, and that a free cultural market will allow more individual freedom, more opportunities for learning, and more channels for creativity than a monpolistic one.  We don't know what innovations are being thwarted by corporate control over Mickey Mouse.  We don't need to.  The point of having free markets rather than monopoly markets is that many heads are better than one.  If Mickey is free of monopoly control someone, somewhere, will use this freedom to build a better mouse and offer it to the public.

(Rothstein's article has also been analyzed at Lawmeme.)

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] 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' 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.

These essays copyright (c) 2003 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.