Neither Eric Eldred nor Laura Bjorklund intended to become warriors in the battle over copyright. They simply wanted to publish old books; Eldred’s Web site has hosted versions of old Nathaniel Hawthorne novels and Robert Frost poems since 1995, while Bjorklund’s tiny Massachusetts publishing company focuses on genealogy texts and out-of-print histories.
But on Oct. 27, 1998, President Clinton, urged on by a Disney Corp. mindful that its Mickey Mouse copyright was about to expire, passed a law that extended copyright protection for an additional 20 years. Eldred and Bjorklund were outraged. In their view, the Sonny Bono Copyright Extension Act harmed the public by retroactively taking information from the public domain and putting it back under the control of copyright holders. Corporations would benefit, but small publishers and the general public, they argued, would suffer.
Lawrence Lessig, then a law professor at Harvard, heard their call and took on the case pro bono. Eldred and Bjorklund became the first two plaintiffs in a suit aimed at overturning the copyright extension. On Feb. 19, after nearly four years of litigation, the Supreme Court agreed to hear the case.
At issue is whether Congress — with the constitutional authority to issue copyrights and patents “for limited times” to “promote the progress of science and useful arts” — overstepped its bounds in this case. The previous law, passed in 1978, protected an author’s work for 50 years after an author died, while works for hire — those created for a corporation, like Mickey Mouse — were protected for 75 years. The Bono Act extended both categories by two decades.
Those who favor the law argue that Congress should be allowed to determine the definition of “limited times” and that the Bono Act simply puts the U.S. on equal footing with European intellectual property laws, which offer a similar degree of protection.
Eldred and Bjorklund vehemently disagree. In their first joint interview since the Supreme Court decided to review the case, they exuberantly explained why in a conference call with Salon.
Bjorklund: Yikes! My husband is an attorney and he kept telling me that the delay probably meant that someone was writing a dissent to a decision to not take the case. Larry Lessig and all the lawyers I know seemed to think this was a bad sign. So [when I found out], I was over the moon.
Eldred: It was hard to believe. We expected it to be turned down and we really weren’t too sure whether the Supreme Court would agree with all the points that we raised or whether they would just take one of them and throw out the others or what, so when they finally accepted all of them, it was really quite a surprise.
Why is it important for the Supreme Court to hear this case?
Bjorklund: I think it’s important because I’m particularly concerned with “retroactivity.” I don’t think it is constitutional for copyrighted works to be retroactively protected. People creating content in 1950 thought they had 50 years of protection and it was fine with them. Tying up additional material, decade after decade, in copyright is robbing the public.
Eldred: I thought of a nice analogy. I don’t know if you watched the Super Bowl, but think of how the fans would be outraged if the officials tried to move the goal posts in the last seconds of the game.
Bjorklund: I had a shelf of material from 1924 that was going to be reprinted a couple years ago and now it’s not going to be reprinted until we win our case.
What books were on that shelf?
Bjorklund: Our material is inherently uninspiring sounding, but the people that want it really want it. We had a history of Lawrence, Mass., a history of Idaho, quite a few family histories and a couple more general history books.
What about you, Eric?
Eldred: Well, I don’t claim that I own all this stuff. It’s in the public domain and that’s the important thing. Everybody has the right to make their own stuff out of it — reuse it, make derivative works, set it to music, make operas. And that’s what people will be allowed to do if works go into the public domain. But what this law is all about is stopping the flow of works that go into the public domain.
Did you actually have to take anything down from your Web site?
Eldred: At first I thought it would be a good idea to test the law with a civil disobedience test case but the lawyers talked me out of that. So I did take a few things down that I wasn’t absolutely certain about. I’ll give you one example. As Laura will point out, it’s very difficult to find the copyright owners of old books. It’s almost impossible. And I had a book that was written by a couple of prep school English teachers about how to write a summary, a pricis. It had quotations from a whole bunch of newspapers and poems and other stuff. As far as I could see all those things were in the public domain, but I couldn’t really be too sure and if I kept it up on my Web site, I’d risk going to jail for five years or a $500,000 fine if someone pointed out that I was violating their copyright.
Bjorklund: It’s little known that [copyright infringement] has now become a criminal act, due to the Digital Millennium Copyright Act. That actually criminalized it. It used to be almost exclusively a civil issue; someone had to find out that you were reprinting grandma’s book and the most normal remedy — especially if not a lot of profit was being made from it — was to cease publication and repay royalties due.
Eldred: What’s happening is that the copyright owners are trying to use technology to control all sorts of uses, even uses that would be considered fair before.
The content companies argue that an extension of copyright gives people more of an incentive to create new works.
Bjorklund: Well, there was no big boom in creativity the day after this law was passed, or even a couple years after the law was passed. The 70-year extension covers your lifetime and your children’s lifetime. How much difference does it make to you, if you’re [already] going to be getting the royalties and children are going to be getting your royalties and your grandchildren, too?
Eldred: We actually went to the trouble of getting an amicus brief from Hal Varian who’s a professor of economics at Berkeley, and he made the calculations and found that it would only be a few cents difference in royalties between 50 years after an author died, which is how the law has been since 1978, and 70 years after the author died.
Bjorklund: In addition, I keep coming back to this: Most works that have been created out there are not valuable. They’re being created because people want to create them, not because they hope to become incredibly wealthy. This law doesn’t address the 90 percent of all the stuff that’s being published.
Eldred: Works today have about five to seven years maximum before they run out of steam, making any royalties for the author.
But it’s possible to imagine a scenario in which an out-of-print novel is picked up by Steven Spielberg or Steven Soderbergh and turned into a blockbuster movie, which in turn makes the book a bestseller. The earnings in that case would go not to the child or grandchild of the author but rather the studios, actors and director. Is that fair?
Bjorklund: I just cannot see that extra 20 years as being significant to the creator. It would be a shame for this kind of thing to happen, but in fact, businesses often do negotiate payments if there are existing estates, even if the work is in the public domain. So it’s not like the major studios would wait until the copyright expires and snag a work with no payment.
Eldred: The short answer is that the big publishers would like to hide behind the authors and claim that they’re representing their interests but they’re really not; it’s just not true. What the Internet shows if it shows anything is that it’s not necessary to have strong copyright in order for great things to happen.
The Internet was not subject to patents or copyright or strong intellectual property at all — and yet, it came about. The publishers are trying to take over the Internet, all this free stuff that we built, and make it pay-per-view. And they need to own the content to do that.
Bjorklund: But to answer your question quickly, even if you’re talking about lots of authors’ great-grandchildren losing out on money, it’s still worth it to get work into the public domain. It’s a necessity that was foreseen by the founding fathers, which is why this clause is in the Constitution to begin with. The public domain needs to be public.
Eldred: Let the free market decide. Let’s have some competition. Why give a monopoly to these publishers forever?
Copyright is supposed to serve, according to the Constitution, as an incentive for authors and inventors to publish their works, to make them available to the public. You have to look at what is the minimum incentive for them to do that so you don’t also give them too much and spoil the balance of the copyright equation. Nobody is saying that there’s a single author who refuses to publish because he didn’t have [copyright protection] for 70 years after his death, instead of 50 years.
Now you both said that you were shocked to see that the Supreme Court took the case. Do you think you’ll win, particularly with such a conservative court?
Bjorklund: I’m optimistic. Maybe I shouldn’t be but I am because first of all, I think we’re right. Second, this isn’t a strict liberal-conservative issue. In fact, the dissent — written in the appellate court when they upheld the lower court ruling — was written by a judge who is apparently quite conservative. You can see this in a strict constructivist sense; this is what the [authors of the Constitution] meant and by golly, that’s what we’re going to do. And aside from thinking that we’re right, the fact that four of them at least thought it was a worthwhile issue gives me hope.
Eldred: I think it’s time for the Supreme Court, and I think they realize this now, to define the basis of copyright in the U.S. Instead of being based upon a natural-law principle like in Europe, it should be based on a utilitarian, social-contract kind of statutory right. They need to make it clear that the term of copyright is one thing that Congress can do to balance between the right of the public and the right of the copyright owners, and to give the right incentive to authors to create things.
Do you think this case has the power to shift momentum in the broader online copyright battle that’s being waged? The content industries have been winning at every turn — in the DeCSS lawsuits, against Napster and elsewhere. Do you think this case could alter the balance of power?
Eldred: I think so.
Bjorklund: I think it’s going to do a valuable service if we can get some information out to the public about why this issue even matters. But I have to make clear that I’m not in favor of violating anyone’s copyright. I don’t even copy CDs.
Eldred: This isn’t a Napster case.
Bjorklund: Exactly. It’s not Napster. This is about the big issue of letting things fall into the public domain and not letting things be controlled by corporations forever. So I guess I see it in more of a legal and constitutional setting than through the hipper Internet angle.
Eldred: I disagree, Laura. I was really pleasantly surprised to see how the news media hopped on the Internet angle. I didn’t really expect that. And Laura and I are both trying to use this case to raise the level of public debate about copyright because when this 1998 law was passed, there was absolutely no debate about this.
Bjorklund: Thanks to Monica Lewinsky.
This is obviously a cause that you feel passionately about, and Eric, you’ve compared it in the past to the environmental movement. But has the public actually rallied around the cause?
Bjorklund: We need more. But I’ll tell you one thing: Everyone I’ve ever talked to on an individual basis about it says, “I’ve never really thought about it before, but it really is important.”
I work primarily with genealogical and historical researchers and believe me, they’re starting to catch on. Every time they find out that they can’t get a 1950 copyrighted book and I can’t find the authors or heirs, even if I want to pay them royalties, another consciousness is raised.
Eldred: I don’t think this case is enough. I think there will have to be more. The DMCA is a bad law and needs to be overturned as well.
We’re in the early stages of this. There are many things, like the Human Genome, and things in agriculture and all sorts of things that are going on, which need to be combined in the battle against strong intellectual property rights.
Bjorklund: That’s a whole additional and hugely important aspect of it — scientific discoveries and intellectual property and needing to get them freed from [corporate] control.
What would it take for this issue to gain the kind of traction that the environmental movement has?
Bjorklund: I could trot out a few of my weepy old customers who are going to go to their grave without getting copies of books that they’re desperate to get.
I think it’s never going to reach the environmental movement’s status, but with persistent attention from the media, it can become a little more important.
Eldred: Well, looking back at the history of Linux and the Free Software movement, they’ve come a long way and I don’t think anyone expected that. So I think we’re still in the early stages and I’m quite hopeful that the Supreme Court will rise to the occasion of this suit and knock the corporations in the nose a bit. Then, we’ll see a lot more debate.