In defense of copyright

A top intellectual property lawyer argues that the Supreme Court's decision to review the Sonny Bono Copyright Extension Act is plain wrong.

Topics: Copyright, Intellectual Property,

In defense of copyright

Morton David Goldberg’s name is hardly a household word for technology geeks worried about the corporate drive to take ownership of intellectual property to unprecedented heights. But Goldberg, a partner at Cowan Liebowitz and Latman in New York, has spent nearly 50 years working as a copyright attorney. He’s also lectured at Stanford, served as president of the Copyright Society of the U.S.A. and advised the World Intellectual Property Organization.

His profile is also set to rise. Goldberg has become the unofficial point man for a movement within the American Bar Association to defend the controversial Sonny Bono Copyright Extension Act. Even before Bill Clinton signed the 1998 law — which extended the terms of copyright by 20 years — critics complained that it would harm the public by retroactively taking information from the public domain and putting it back under the control of copyright holders. A pair of online publishers later filed suit against the government, asking that the law be struck down. On Feb. 19, the Supreme Court surprised nearly everyone involved by agreeing 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 by passing the Bono Act. The previous law, passed in 1978, protected an author’s work for 50 years after an author died, while works for hire — such as Mickey Mouse, which was created for a corporation — were protected for 75 years. The Bono Act extended both categories by two decades.

Foes of the copyright extension see the problem as primarily one of policy — the extension of copyright, they argue, harms the public. Goldberg’s stance, however, avoids policy, and focuses primarily on legal strategy. Overturning the Bono Act, he argues, would create a dangerous precedent by shifting power away from Congress and toward the judiciary. Goldberg and a handful of other lawyers — most of whom represent the motion picture, music and publishing industries — are therefore encouraging the ABA to endorse a so-called friend-of-the-court brief that defends the law as constitutionally valid.

In a notice sent to the ABA’s intellectual property section, Goldberg was quoted as saying, “The case could present a field day for those who have an anti-IP sentiment — those who say information wants to be free, less protection is necessarily better, the public domain promotes the progress of science and useful arts better than IP, and when technology advances, IP rights must be cut back.”

The ABA votes on the issue April 14. [UPDATE: The ABA declined to support the brief.] Goldberg spoke with Salon by phone to explain his position in more detail.

You’ve said that this case could be one of the most significant copyright cases in decades, if not centuries. Why?

The issues that the court has agreed to hear are very broadly phrased. [One of] the questions is whether the Copyright Act is “categorically immune” from First Amendment attack. That’s setting up such a straw man. Categorically immune: That’s frightening. It’s an invitation for the court to say, “Oh, the very constitutionality of the Copyright Act and each of its provisions is questionable under the First Amendment and should be reviewed — and copyrights and copyright infringement suits should have a First Amendment analysis by the courts in all copyright cases.”

The broader and even more dangerous question is related to the issue of whether Congress has the power to extend the term of copyright. If Congress does not have the power to do that, then there are a lot of other things that it has done, under the Copyright Clause [of the Constitution], that it would not have the power to do. Putting it in context, historically and contemporaneously, there have been a dozen or more statutory enactments from the 1790s down to now, in which Congress has extended the term of subsisting copyrights and subsisting patents. If those enactments are unconstitutional, then we’re in a state of chaos as it relates to those works that are still under copyright. It’s also even more disastrously a case of chaos as to what the limited scope of congressional power really is. What is the meaning of constitutional power? That’s really what’s at stake here.

But the case could also be seen as far more narrow — a challenge not to the entire system of checks and balances but rather to the definition of “limited time.” Isn’t it possible for the court simply to rule that the Bono Act’s 20-year extension cuts against the Founding Fathers’ original definition of “limited”?

Yes, but if that is done, then what is to preclude the court from making other determinations contrary to the determinations that Congress has made? This doesn’t happen very often. The last interpretation of the Patent and Copyright Clause that [the Supreme Court] struck down was in the middle of the 19th century, where the Court said that it was unconstitutional to enact trademark legislation because trademarks were not writings of an author.

The argument is that 20 years is too long of an extension; well, should it be within the power of the court, the judicial branch, to say that’s too long, or should it be within the power of Congress? Bear in mind that Congress, from 1790 down to now, has had all of these extensions of copyright and patent duration within this “limited time” fabric. And the court, in another case from the 19th century — there was a claim that a circus poster was not original, because originality is a requirement of the Constitution — has said in effect, “Look, we’re talking about a congressional statute that was first enacted by the framers of the Constitution. It’s entitled to very great weight and when it’s undisputed for such a long period of time — that long period of time being then a little bit less than one century — it’s almost conclusive.”

Judicial history says that the court should be very reluctant, No. 1, to adjudicate a constitutional issue if it doesn’t have to; and secondly, if it does get into a constitutional issue, it should be exceedingly reluctant to overturn something that has been the view of Congress, undisturbed, for two centuries.

But copyright history has also always been based on a balance between the right of copyright holders and the rights of the public. To many people, it looks as if the scales have now been tipped decisively toward corporations and copyright holders.

That’s a critical policy decision, and the question is whether that policy decision should be made by the legislative branch, which is empowered under the copyright clause, or should be made by the judicial branch.

The petitioners argue that this is a policy decision that rises to the level of a constitutional question. The Supreme Court, by agreeing to take the case, would seem to agree. But what about the retroactive aspect of the law, the fact that it applies not just to works created after its enactment, but also to those that would otherwise have entered the public domain?

“Retroactive”: That kind of terminology is wonderful forensically, especially for a jury. It conjures up notorious kinds of things like ex post facto legislation; if it’s retrospective, reaching back, [the argument goes], there must be something wrong with it.

But semantics aside, [the Bono Act] is not retroactive. It is prospective. It deals with the extension of subsisting copyrights. It does not go back, for example, and take works out of the public domain.

But the law has created a chilling effect, according to a number of critics. Eric Eldred, one of the online publishers contesting the Bono Act, says he was forced to remove works from his Web site because he wasn’t sure about whether they were covered by copyright and because the Bono Act increased the penalty for infringement to five years in jail or a $500,000 fine.

“Chilling effect” also invokes all kinds of images of harm, First Amendment violations and so on. But if it’s a chilling effect to withdraw something that’s a copyright infringement, then it could be argued that stopping any copyright infringement (even by a counterfeiter or other pirate) imposes a “chilling effect” on the infringer. The mere fact that there is enforcement of a copyright that would be violated doesn’t mean that a concern about the violation means that there would be a chilling effect.

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It would be a drastic departure from 200 years of copyright jurisprudence to say that copyright law has a “chilling effect” — as that term is understood in a First Amendment context — on infringers. If you try to enjoin me from peddling unauthorized 100 percent knockoffs of your copyrighted book, should I be able to get off the hook by saying that the Copyright Act has a “chilling effect” on some First Amendment right I have to knock off your book? Answer: no.

Some people argue that we’re at a crossroads in copyright. The law might not have changed in 200 years, but the Internet changes everything. What do you make of this argument? Do you think that the advent of the Net warrants radical change?

I think not. The mere fact that there is a change, a drastic change, even a revolutionary change, in our economy, our society, our technology, does not in and of itself create a constitutional issue. It does not in and of itself empower the Court to say “we will make the policy decision.”

If you had rephrased your question, I would give you the same answer, but perhaps a more appropriate rephrasing of the question might be whether the change — with the Internet, etc. — is such a major change that congressional policymaking was so incorrect that it rises to the level of a constitutional question; that it transcends the power given to Congress by the Constitution.

Your firm represents members of the record industry, publishing houses and Hollywood studios. What would you say to those who argue that lawyers like yourself are only trying to protect themselves and the industries who have hired you?

Well, the most important thing is that the constitutionality — the issue before the Supreme Court — has nothing to do with whatever people are happy with and not happy with; whether they lobbied or didn’t lobby; whether they got what they wanted or didn’t get what they wanted. That’s not a constitutional issue. That’s part, again, of the policymaking that Congress does. They make a wise decision, they may make a stupid decision, but that’s up to Congress.

The librarians association has filed an amicus brief in support of the petition. They lobbied and got certain provisions in the statute. For the extended 20-year period, they have an expanded right to make digital copies in certain circumstances. Other people lobbied for other things; some people got them, some people didn’t. But that’s not the constitutional issue before the court.

More broadly, I’m not going to get into the ad hominem of whom I or my firm represent or don’t represent. I’ll say only that we represent clients across the board — not just authors and other copyright owners, but disseminators and users.

Putting aside the possible legal dangers of a broad Court decision, how do you think an Eldred victory in the Supreme Court would affect the world of ideas? What are the larger cultural dangers?

There will be fewer derivative works prepared from existing works, because there’s much more of an incentive to create a derivative work if you can get an exclusive right from the copyright holder.

There would also be much less incentive to prepare new works. This is difficult to show empirically, but the congressional decision was [designed] to enlarge the period of copyright so that authors would have more incentive to create their works than they had before. It is difficult to show this empirically, but X years from now there will be more works prepared. This is consistent with the congressional viewpoint of the past 200 years.

And there would certainly be less incentive for the publishers and other disseminators of copyrighted works to disseminate. Once again, as with derivative works, if a competitor can come along and put out the same thing — and in the digital environment, it can truly, truly be the identical thing — why should I invest my money in putting out [a creative work]?

These things would happen merely because of a finding that the extension is unconstitutional. But the longer-term legal aspect is what I’m really concerned about. It all depends not merely on what the bottom line of the court’s decision is — affirmed or reversed — but also what is said in all the verbiage that precedes that. It is quite possible, if the bottom line says “reversed,” for such a decision to have language that would make it possible to question congressional policy decisions on a much broader range of things.

It’s not just new legislation; is a party going to be able to go into court and question the constitutionality of a certain portion of the Copyright Act using Eldred as a precedent? And is a party in litigation going to be able to say, “The provision that you say I violated is unconstitutional”? This claim, of course, can always be made, but it is rarely if ever made and if it’s made, it’s almost always thrown out because it’s the last refuge of a scoundrel.

There is a theory that overly strong copyright laws hurt rather than help creativity, and restrict the public’s ability to be exposed to creative works. Just last night, for example, I watched an independent film that the filmmaker couldn’t release because he hadn’t heard back from an old Irish band whose music he used. Given that this situation is hardly unique — Larry Lessig’s book “The Future of Ideas” contains similar examples — how can you say that copyright extension helps to encourage creativity?

I can’t deal with that because it’s so much dependent on the issue of fair use, which implicates so many different considerations that have to be evaluated in order to determine whether the use is fair use or unfair use; whether it’s infringement or innocent. So I can’t comment on that particular situation. But I do think it’s true that to the extent that there is broad copyright protection, then to that extent, anyone who wants to make use [of a copyrighted work] has less flexibility; has less of an ability to make use of it.

But that’s only part of the policy calculus. It’s not merely what uses can be made by third parties of all kinds. The other part is what, in the determination of Congress, should be the incentive to be provided to promote the progress of science and the useful arts. And those incentives are not merely incentives to be considered for the authors and the copyright owners, but also incentives for the disseminators.

You mean companies?

Well, usually it’s companies. The clearest example is a book publisher. And you have that in-between area, where you want incentives — to some extent — for the second comer, the user, to be able to create new works. The question is to what extent should Congress factor that into its policymaking. How should Congress take it into account?

This is the approach the Constitution has followed. Now, the framers of the Constitution were politicians. They knew there were going to be some wise decisions; they knew there was going to be some lousy decisions. But this is the way they did it. And these are all factors that need to be taken into account. We have to distinguish between the arguments, such as those in Lessig’s book, which is an argument addressed to the policymaking forum, and the arguments addressed to the Court — the constitutional arguments.

Damien Cave is an associate editor at Rolling Stone and a contributing writer at Salon.

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