15 Years Ago, Congress Kept Mickey Mouse Out Of The Public Domain. Will They Do It Again?
(By Timothy B. Lee, Washington Post, 25 October 2013)
(By Timothy B. Lee, Washington Post, 25 October 2013)
For most of
history, a great character or story or song has passed from its original
creator into the public domain. Shakespeare and Charles Dickens and Beethoven
are long dead, but Macbeth and Oliver Twist and the Fifth Symphony are part of
our shared cultural heritage, free to be used or re-invented by anyone on the
planet who is so inclined. But 15 years ago this Sunday, President Clinton
signed the Sonny Bono Copyright Term Extension Act, which retroactively
extended copyright protection. As a result, the great creative output of the
20th century, from Superman to "Gone With the Wind" to Gershwin’s
"Rhapsody in Blue," were locked down for an extra 20 years. It was a windfall to the families and corporations that
owned these lucrative copyrights. But it meant these iconic works would be
off-limits to those who wanted to reuse or reinvent them without permission.
And hundreds of thousands of lesser-known works aren’t available at all,
because there's no cost-effective way to obtain permission to republish them.
The copyright extension Clinton signed will expire in five
years. Copyright holders like the Disney Corp. and the Gershwin estate have a
strong incentive to try to extend copyright extension yet further into the
future. But with the emergence of the Internet as a political organizing tool,
opponents of copyright extension will be much better prepared. The question for
the coming legislative battle on copyright is who will prevail: those who would
profit from continuing to lock up the great works of the 20th century, or those
who believe Bugs Bunny should be as freely available for reuse as Little Red
Riding Hood.
Today, copyrights can easily last for more than a century.
Things were very different when America was founded. In America's original
copyright system, protection only lasted for 28 years. By the mid-20th century,
Congress had doubled the maximum term to 56 years. Then, in 1976, Congress
overhauled the copyright system. Instead of fixed terms with a maximum of 56
years of protection, individual authors were granted protection for their life
plus an additional 50 years, an approach that had become the norm in Europe.
For works authored by corporations—Hollywood blockbusters, for
example—copyright terms were extended to 75 years. 
The 1976 legislation granted a retroactive extension for
works published before the new system took effect. The maximum term for
already-published works was lengthened from 56 years to 75 years. That meant
that any work that was still under copyright in 1978, when the new system took
effect, was eligible for an additional 19 years of protection. Without the term
extension, works published between 1922 and 1941 would have fallen into the
public domain between 1978 and 1997.
Instead, those works remained under copyright, providing a
windfall to the owners of iconic copyrighted works such as the original Mickey
Mouse cartoon, "Steamboat Willie," and George Gershwin's
"Rhapsody in Blue." When the 1990s arrived, the holders of those
older copyrights began agitating for another extension. Copyrighted works from
the 1920s were scheduled to begin falling into the public domain again in 1998,
and copyright interests wanted Congress to stop that from happening. "There was not a single argument that actually can stand up to any kind of reasonable analysis," says Dennis Karjala, a law professor at Arizona State who emerged as a de facto leader of the opposition to the law. The supporters of the law, Karjala says, were "basically the Gershwin family trust, grandchildren of Oscar Hammerstein, Disney, others of that ilk"—that is, holders of copyrights in old works that were on the verge of expiring.
Supporters of the extension pointed to Europe. In 1993, the
European Union added 20 years
to the term of European copyrights. Under European law, American authors would
only enjoy longer copyright terms in Europe if the United States followed
Europe's lead and adopted "life plus 70" copyright terms. "It didn't seem like there was any
reason why American creators should be at a disadvantage vis a vis their
European counterparts," says Preston Padden, who represented Disney in the
late 1990s and has taught communications law at the University of Colorado Law
School. "The old disparity invited mischief, like American creators
artificially creating legal domiciles for Europe in order to gain the benefit
of the longer license term." And, advocates said, if Congress was
extending terms for new works, it would only be fair to extend terms for
existing works as well.
Critics pointed out that extending copyright terms
retroactively wouldn't benefit the public. After all, William Faulkner, George
Gershwin and Walt Disney had died decades earlier. Granting longer copyright
terms for their existing works couldn't cause them to produce any more
masterpieces. "To suggest that the
monopoly use of copyrights for the creator's life plus 50 years after his death
is not an adequate incentive to create is absurd," wrote Sen. Hank Brown
(R-Colo.) in a 1996
report for the Senate Judiciary Committee. "The real incentive here is
for corporate owners that bought copyrights to lobby Congress for another 20
years of revenue—not for creators who will be long dead once this term
extension takes hold." But Brown
was in the minority. Indeed, Brown says, he was the committee's only opponent. "I
thought it was a moral outrage," says Brown, who left the Senate in 1996
and now practices law in Colorado. "There wasn't anyone speaking out for
the public interest."
Few members of Congress were opposed to the legislation, but Karjala was working to rally opposition to the legislation from outside of Congress. The Copyright Office asked for comments on extending copyright terms in 1993. Karjala says he drafted a letter opposing the idea and got "30 or 40" of his fellow legal scholars to sign it. When Congress took up the idea in 1995, people encouraged Karjala to once again take a leading role. "I kind of groaned to myself," Karjala says. "I'm not an activist type of personality, but I thought, 'I guess I've started on this thing. I'm the only one who seems to be sufficiently energized about it.'"
To actually stop the legislation, Karjala needed powerful
allies. And there were established groups that he thought should be helping
out. This was long before reddit and Wikipedia helped create a grassroots
copyright movement. But Karjala says that non-profit groups representing
professions such as librarians and historians had traditionally served as
public-interest watchdogs on copyright issues. And those groups had lobbyists
that could have helped stop copyright terms from being extended. But his efforts to recruit them to fight term
extension fell flat. With the bill looking unstoppable, most of these groups
chose to make peace with the forces pushing the bill. Karjala says they were
"bought off" by minor changes to the legislation that addressed
specific issues that concerned them. "In exchange they agreed not to
oppose the rest of the bill," he says.
Brown did his best to slow progress on the bill. "I noted the
absence of a quorum several times," he says, a tactic that delayed
consideration of the legislation. "I did my best to extend the
debate."
But the biggest reason the fight lasted as long as it
did—legislation was introduced in 1995 but it didn't pass until 1998—was
because the restaurant industry saw the campaign for term extension as an
opportunity to advance their own pet issue: getting a broader exemption for
small bars and restaurants that played copyrighted music over the radio. "This was a hostage situation,"
says Peter Jaszi, a law professor at American University who also testified
against extending terms. Bars and restaurants didn't care about term
extensions, but they threatened to bottle up the proposal unless they got their
way. Negotiations over the hospitality
industry's demands slowed the passage of the Copyright Term Extension Act
(CTEA). But eventually, policymakers agreed to pass the Fairness
in Music Licensing Act, which addressed the hospitality industry's
concerns, as a companion bill. When bars and restaurants dropped their
opposition to term extension, the legislation's remaining opponents weren't
powerful enough to stop it. It passed both houses of Congress on Oct. 7, 1998,
and was signed by President Clinton on Oct. 27.
The retroactive extension of copyright terms soon drew a
legal challenge. Eric Eldred was an Internet publisher who specialized in
publishing works that were in the public domain. Represented by legal scholar
Larry Lessig, Eldred became the lead plaintiff in a lawsuit challenging the
constitutionality of retroactively extending copyright terms. The Constitution requires that copyrights be
granted for a limited time; Lessig argued that if Congress has the power to
retroactively extend copyright terms, it effectively has the power to grant
unlimited copyright terms on the installment plans. Ironically, the legal
battle against the CTEA drew much broader public support than the legislative
battle had. "Once Larry Lessig brought the constitutional challenge,
all these same people came out of the woodwork," Karjala says of people
who hadn't engaged on the issue when the legislation was before Congress.
"They started writing amicus briefs to argue the Supreme Court should rule
it unconstitutional."
One brief
was signed by some of the nation's most prominent economists, including Nobel
Laureates Milton Friedman, Ronald Coase, and Kenneth Arrow. The Constitution
requires that copyright protection promote the progress of science, but the
economists pointed out that the CTEA was hard to justify in these terms.
Copyright terms were already so long, they argued, that an additional 20 years
would provide only minimal incentive to produce new works. More to the point, retroactively
extending protection for existing works couldn't possibly encourage the
creation of new works. But these
arguments fell on deaf ears. Writing for a seven-member majority in 2003,
Justice Ruth Bader Ginsberg ruled that Congress had broad discretion to choose
copyright terms and to retroactively extend them as it saw fit. So long as the
terms remained finite, the court held, they satisfied the court's "limited
times" requirement.
The big question now is whether incumbent copyright holders will try to get yet another extension of copyright terms before works begin falling into the public domain again on January 1, 2019. For now, Hollywood is staying mum; a spokesman for the Motion Picture Association of America declined to comment on its plans. We weren't able to find any sign the topic has come up on Capitol Hill. But most of the experts we spoke to said the stakes are so high that a renewed lobbying push is almost inevitable. "If Hollywood and their allies want to do this, they're going to have to start doing it now," says Chris Sprigman, a legal scholar at New York University. "I would imagine there are discussions going on." Sprigman predicts a debate over term extension over the next five years will look very different than it did in the 1990s. "People are paying attention," he says. "There's a coalition now" that's likely to oppose longer terms. Indeed, Sprigman sees public outrage over the 1998 extension as a catalyst for the copyright reform movement that came of age with the protest that stopped the Stop Online Piracy Act last year. "None of that would have been possible without the loss in the CTEA and Eldred," he argues.
One advantage opponents will have this time around is better arguments and evidence. Public debate over the last extension has stimulated increased academic research into the economics of the public domain, and as a result, we know a lot more about the costs of longer copyright terms than we did 20 years ago. One striking example: a study looked at the availability of books published in the last 200 years on Amazon.com. Surprisingly, the study found that there are more printed books available from the 1880s than the 1980s. When books fall into the public domain, as works from the 1880s have, anyone is free to re-publish them. In contrast, books from the 1980s are still in copyright, so only their original copyright holder can give permission to distribute them. As a result, older books are actually easier to get online than newer books are. That means that the 1976 and 1998 extensions have deprived a generation of readers of easy access to books from the 1920s, 1930s, 1940s and 1950s.
Not only have many copyright holders failed to keep their older works in print, but there are now many books whose copyright holders can't be identified at all. In many cases, the original copyright holder is dead and records about who now holds the copyright aren't available. These "orphan works" have become a serious problem for projects such as Google Books, which aims to digitize books and make them available to the public. Google can't obtain the rights to reproduce these books at any price because it can't figure out who it needs to negotiate with. The older a work is, the more likely it is to be orphaned, so copyright extensions have made the problem much worse. "There's no evidence suggesting that a longer term is going to produce any more art, literature," Sprigman says. "The only reason to extend the term is to give private benefits to companies like Disney or Time Warner that have valuable properties like Mickey Mouse or famous films." But copyright, he says, is "not supposed to be about corporate welfare for Disney." Over the next five years, we'll find out if Congress agrees.
http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/25/15-years-ago-congress-kept-mickey-mouse-out-of-the-public-domain-will-they-do-it-again//?print=1
Patent Law Is So Broken That Casinos,
Supermarkets, Realtors Demand Change
(By Timothy b. Lee, Washington Post, 28 October 2013)
In the last
few years, patent litigation has become such a widespread problem that
industries that traditionally had nothing to do with the patent system are
demanding that Congress take action. The latest sign of that is a letter asking
Congress to make it easier to invalidate low-quality patents. The letter
is signed by some high-tech lobbying groups that have long been active on
patent issues. But, surprisingly, the letter also drew support from distinctly
low-tech sectors of the economy, including casinos, supermarkets,
chain restaurants, airlines, and the printing industry. "It's important to recognize that the
problem of patent trolls are no longer limited to technology companies,"
says Whit Askew of the American Gaming Association, which represents casinos
and the manufacturers of gambling devices. "Over the last couple of years,
we've unfortunately been bit by the patent troll lawsuit bug, where frivolous
lawsuits have been filed against many in our industry."
These
predominantly brick-and-mortar business groups aren't just demanding patent
reform in the abstract. Askew and other letter signers are endorsing expansion
of the clumsily-named "covered business method" program, which
provides an expedited process for challenging patents at the U.S. Patent and
Trademark Office (PTO). That's significant because expansion of the CBM program
has drawn
the ire of some patent-rich software companies, including Microsoft, IBM,
and Adobe. Opponents of expanding the
CBM program argue that procedural reforms, such as allowing technology vendors
to intervene on behalf of their customers and forcing defeated patent
plaintiffs to pay defendants' legal bills, will be sufficient to bring the
patent litigation crisis under control. And they worry that the
defendant-friendly provisions of the CBM program will make it too difficult for
the owners of legitimate patents to enforce their rights.
But Monday's
letter, whose more than two dozen signers include groups representing advertising agencies, publicly-owned power plants, real estate agents, hotels, and retailers,
argues that these process-oriented reforms aren't sufficient to solve the
patent troll problem. "Companies
need an effective alternative for challenging validity [of patents] outside of
the courtroom," the letter argues. The CBM program "gives threatened
companies a substantially less expensive way to challenge low quality patents.
Other programs for challenging patent validity at the PTO do not allow the PTO
to consider whether the patent is abstract, vague, or too broad," which
are common problems with patents used by trolls, the letter argues. Industry groups that signed the letter say
they were motivated to do so by a dramatic increase in the frequency of
frivolous patent lawsuits. "We are now seeing [real estate] brokers
receive demand letters for use of common technologies like scanner-copiers and website
alert technologies," says Gary Thomas, president of the National
Association of Realtors. "I'm a
food lawyer," says Erik Lieberman of the Food Marketing Institute, which
represents grocery wholesalers as well as supermarkets. "Members bring us
issues that impact them. A couple years ago they start coming to me saying
'look this entity we've never heard of is sending us a demand letter asking us
for $300,000 or $500,000 claiming we're violating their patent.'"
Lieberman
says many of the patents covered common technologies like the store locator
function on a grocery store's website or the use of QR codes in advertisements.
Lieberman said that patent threats have now cost some of his larger clients
millions of dollars in legal fees and staff time. And the burden can be
especially serious for smaller supermarket chains that don't have anyone on
staff with experience handling patent issues.
For both Lieberman and the American Gaming Association's Askew, low costs
are one of the CBM program's key advantages. The program "gives threatened
companies a substantially less expensive way to challenge" low-quality
patents, Askew says. It can take years for a court to reach a final ruling on a
patent case. In contrast, the CBM program can end a lawsuit — and permanently
eliminate a low-quality patent — in a matter of months, saving hundreds of
thousands of dollars in legal fees.
The letter
also notes that under the program, "small businesses are able to pool
their resources in order to pay to have a [patent troll]'s patent
reviewed." That makes the program a particularly potent weapon against
trolls that send letters to a large number of defendants seeking nuisance
settlements. Lieberman says that in the
grocery business, "the profit margin is well under 1 percent," so the
costs of patent litigation "get passed down to consumers." The industries that signed the letter
collectively have significant lobbying muscle. They could provide a
counterweight to patent-rich companies who are squeamish about seeing their
patent portfolios subjected to the kind of serious scrutiny the CBM program
could make possible.
