When the U.S. Supreme Court ruled Wednesday that Congress was within its constitutional bounds to extend the duration of all copyrights by 20 years -- up to 70 years beyond the life of the author and potentially infinitely -- many saw the ruling as a knockout blow to the movement to reform copyright.
Some on the public interest side are tempted to lament what could be called the "Dred Scott case for culture," unjustifiably locking up content that deserves to be free. After all, six of the nine justices concurred with Justice Ruth Bader Ginsburg when she issued a stark opinion that cavalierly dismissed the historical "bargain" that justified American copyright in the first place: We the People agree to grant a limited, temporary monopoly to a creator or publisher in exchange for access to creativity and the eventual return of the work to a state of freedom.
And Ginsburg's opinion did not allow that the purpose of copyright is to encourage future production, not lock up works already created. She ignored the fact that the Sonny Bono Copyright Term Extension Act of 1998 does nothing to "promote the progress" of science or art because it grants no incentive to produce and distribute new works.
So out of despair some might see civil disobedience -- hacking and freely distributing songs and films over digital networks -- as the only remaining response to the excesses of the copyright regimes and the hold they have over courts and Congress.
While disobedience might be more fun, the power of civil discourse remains. In fact, the ruling gives public interest activists both motivation and ammunition in the continuing battle against the excessive expansion of the power to control information and culture.
As is so often the case, the best rallying cry came from a dissenter in the case. Justice Stephen Breyer wrote: "It is easy to understand how the statute might benefit the private financial interests of corporations or heirs who won existing copyrights. But I cannot find any constitutionally legitimate, copyright-related way in which the statute will benefit the public." This is the key to any public interest movement: Show that narrow special interests are getting away with everything and the public interest is suffering.
Yet Ginsburg herself aided the public's rhetorical cause even while ruling against its interests. While dismissing the notion that excessive copyright expansion has severe First Amendment implications, she invoked two of the classic democratic safeguards of American copyright: the idea/expression dichotomy and fair use. Because of these two concepts, Ginsburg concluded, the court need not take the censorious power of copyright seriously.
The idea/expression dichotomy means that copyright does not protect facts or ideas. It only protects specific expressions of facts or ideas. This allows us to cite a fact or idea while criticizing another writer or building on another's work.
Fair uses are small allowances for the public good, exceptions to the sweeping powers that a copyright holder enjoys. A teacher may invoke fair use, for instance, when showing a film in class. A student uses another's work fairly if she quotes a small portion in a research paper.
Ginsburg's expression of faith in the power of the idea/expression dichotomy and fair use does not recognize that both these rights are under attack in Congress and lower courts right now. The motion picture, music, publishing, and software industries are trying to expand their control over the machines in your home to limit the uses you might make of material you have lawfully purchased.
Ginsburg made one more statement that public interest advocates can take to heart and use for their purposes. While dismissing the petitioners' First Amendment concerns, she wrote, "But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." As a matter of fact, the 1998 Digital Millennial Copyright Act did just that. By outlawing technologies that could break through access controls around digital materials, Congress created a whole new technological regime and a new set of powers for copyright holders to use against scholars, librarians, students and artists. This shift in the locus of enforcement from human relations to hard technology has certainly "altered the traditional contours of copyright protection."
In the wake of this decision, if Congress and later courts are going to take Ginsburg's words seriously, they must take fair use and the idea/expression dichotomy seriously. They cannot take them for granted, as so many have in recent years.
The Eldred decision, in the words of University of Buffalo law professor Shubha Gosh, "deconstitutionalizes" copyright, pushing it father into the realm of policy and power battles and away from the principles that have anchored the system for two centuries. That means public interest advocates and activists must take their battles to the public sphere and the halls of Congress. We can't appeal to the Founders' wishes or republican ideals. We will have to make pragmatic arguments in clear language about the effects of excessive copyright on research, teaching, art and journalism. And we will have to make naked mass power arguments with echoes of "we want our MP3" and "it takes an industry of billions to hold us back."
Back in 1998, when legal scholars and librarians tried to make such arguments, they found they had no army of CD burners and TiVo users behind them. So Congress did not care. What was good for Disney was deemed good for America. Despite the fact that no one has ever made an argument that adding 20 years to copyright benefits the public in any way, Congress acted in the narrow interests of a few against the greater interests of the people. And no one seemed to notice.
Since that time, public awareness of copyright has blossomed. In just the past month the New York Times has run three stories on its front page about copyright. And this evening (Friday), Bill Moyers' program "Now" will examine the copyright battles in depth. And several important books about copyright have found their ways onto library shelves.
One bill introduced last Congress would allow copyright holders to hack in and disrupt your computer's ability to communicate with others if they suspected you might be distributing their material. Another bill would require all machines that work with digital code -- from microwaves to MP3 players to mechanical pets -- to include copy control technology that would restrict their customizability.
And the idea/expression dichotomy is under attack in Congress via a bill to create an entirely new form of intellectual property to protect databases. European database companies have enjoyed this excessive protection for several years now. Yet without similar protection in the United States, American database companies are doing just fine. And the industry is healthier over here than in Europe.
However, a bill filed recently by Rep. Richard Boucher, D-Va., would actually strengthen consumer rights by restoring and clarifying fair use for research and teaching and require media companies to label their materials if they restrict fair uses in any way.
So public interest activists have more options than downloading in despair. We can rally public support for the Boucher fair use bill and can play solid defense against the other restrictive proposals. It won't be easy, but we have the facts on our side and soon we will have the rhetorical high ground as well.
The vehicles for reform come in many colors. There are rumblings among religious communities that are tired of being harassed for singing protected songs at gatherings and threatened for painting protected cartoon characters on their nursery school walls. Conservative and family groups have taken an interest in technologies that allow them to make and view "clean" edits of Hollywood films. Scholars are increasingly angered by restrictions on research and the high cost of reproducing images. And when consumers find it's not so easy to use the format of their choice to record all their favorite shows for later viewing or to take their music to the gym they are going to be angry as well.
In response to this growing demand, several organizations have stepped up to speak for the public. Among the earliest to raise the alarms, the Electronic Frontier Foundation remains at the forefront of legal and technological advocacy. Now the EFF is joined by Publicknowledge.org, an advocacy group devoted to protecting the public domain with the same vigilance that the Sierra Club defends wilderness. And some concerned citizens from Silicon Valley have formed digitalconsumer.org to protect users' rights in an electronic age.
And because the legal front remains hot, we can depend on law students at two clinics to help those who get crushed by the copyright system. Clinics at Washington College of Law of American University and at Boalt Hall at the University of California at Berkeley have been compiling research and writing briefs in important copyright cases.
None of these organizations -- save the EFF -- existed in 1998. They are all products of the rise in public awareness created by Lawrence Lessig and his team as they selflessly pursued the case of Eldred v. Ashcroft through the federal court system.
After the decision came down on Wednesday, Lawrence Lessig expressed exhaustion and frustration on his blog. He and the lead plaintiff in the case, Eric Eldred, had been working on this case for four years. But there was no need for either of them to feel dejected.
Their work and words have solidified a popular movement. The movement is certainly not strong enough yet to roll back the copyright term through legislation. But in smaller ways, through a hundred lesser battles we can get Congress and the courts to serve the needs of students, teachers, and citizens instead of Hollywood studios.