This leaves no way to argue against increasing copyright power except using side issues. Hence, opposition to stronger copyright powers today almost exclusively cites side issues, and never dares cite the freedom to distribute copies as a legitimate public value.
As a practical matter, the goal of maximization enables publishers to argue that “A certain practice is reducing our sales—or we think it might—so we presume it diminishes publication by some unknown amount, and therefore it should be prohibited.” We are led to the outrageous conclusion that the public good is measured by publishers’ sales: What’s good for General Media is good for the USA.
The Third Error: Maximizing Publishers’ Power
Once the publishers have obtained assent to the policy goal of maximizing publication output at any cost, their next step is to infer that this requires giving them the maximum possible powers—making copyright cover every imaginable use of a work, or applying some other legal tool such as “shrink wrap” licenses to equivalent effect. This goal, which entails the abolition of “fair use” and the “right of first sale,” is being pressed at every available level of government, from states of the US to international bodies.
This step is erroneous because strict copyright rules obstruct the creation of useful new works. For instance, Shakespeare borrowed the plots of some of his plays from works others had published a few decades before, so if today’s copyright law had been in effect, his plays would have been illegal.
Even if we wanted the highest possible rate of publication, regardless of cost to the public, maximizing publishers’ power is the wrong way to get it. As a means of promoting progress, it is self-defeating.
The Results of the Three Errors
The current trend in copyright legislation is to hand publishers broader powers for longer periods of time. The conceptual basis of copyright, as it emerges distorted from the series of errors, rarely offers a basis for saying no. Legislators give lip service to the idea that copyright serves the public, while in fact giving publishers whatever they ask for.
For example, here is what Senator Hatch said when introducing S. 483,[2] a 1995 bill to increase the term of copyright by 20 years:
I believe we are now at such a point with respect to the question of whether the current term of copyright adequately protects the interests of authors and the related question of whether the term of protection continues to provide a sufficient incentive for the creation of new works of authorship.[3]
This bill extended the copyright on already published works written since the 1920s. This change was a giveaway to publishers with no possible benefit to the public, since there is no way to retroactively increase now the number of books published back then. Yet it cost the public a freedom that is meaningful today—the freedom to redistribute books from that era.
The bill also extended the copyrights of works yet to be written. For works made for hire, copyright would last 95 years instead of the present 75 years. Theoretically this would increase the incentive to write new works; but any publisher that claims to need this extra incentive should be required to substantiate the claim with projected balance sheets for 75 years in the future.
Needless to say, Congress did not question the publishers’ arguments: a law extending copyright was enacted in 1998. It was officially called the Sonny Bono Copyright Term Extension Act, named after one of its sponsors who died earlier that year. We usually call it the Mickey Mouse Copyright Act, since we presume its real motive was to prevent the copyright on the appearance of Mickey Mouse from expiring. Bono’s widow, who served the rest of his term, made this statement:
Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti’s[4] proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.[5]
The Supreme Court later heard a case that sought to overturn the law on the grounds that the retroactive extension fails to serve the Constitution’s goal of promoting progress. The court responded by abdicating its responsibility to judge the question; on copyright, the Constitution requires only lip service.
Another law, passed in 1997, made it a felony to make sufficiently many copies of any published work, even if you give them away to friends just to be nice. Previously this was not a crime in the US at all.
An even worse law, the Digital Millennium Copyright Act (DMCA), was designed to bring back copy protection (which computer users detest) by making it a crime to break copy protection, or even publish information about how to break it. This law ought to be called the “Domination by Media Corporations Act” because it effectively offers publishers the chance to write their own copyright law. It says they can impose any restrictions whatsoever on the use of a work, and these restrictions take the force of law provided the work contains some sort of encryption or license manager to enforce them.
One of the arguments offered for this bill was that it would implement a recent treaty to increase copyright powers. The treaty was promulgated by the World “Intellectual Property” Organization, an organization dominated by copyright- and patent-holding interests, with the aid of pressure from the Clinton administration; since the treaty only increases copyright power, whether it serves the public interest in any country is doubtful. In any case, the bill went far beyond what the treaty required.
Libraries were a key source of opposition to this bill, especially to the aspects that block the forms of copying that are considered fair use. How did the publishers respond? Former representative Pat Schroeder, now a lobbyist for the Association of American Publishers, said that the publishers “could not live with what [the libraries were] asking for.” Since the libraries were asking only to preserve part of the status quo, one might respond by wondering how the publishers had survived until the present day.
Congressman Barney Frank, in a meeting with me and others who opposed this bill, showed how far the US Constitution’s view of copyright has been disregarded. He said that new powers, backed by criminal penalties, were needed urgently because the “movie industry is worried,” as well as the “music industry” and other “industries.” I asked him, “But is this in the public interest?” His response was telling: “Why are you talking about the public interest? These creative people don’t have to give up their rights for the public interest!” The “industry” has been identified with the “creative people” it hires, copyright has been treated as its entitlement, and the Constitution has been turned upside down.
The DMCA was enacted in 1998. As enacted, it says that fair use remains nominally legitimate, but allows publishers to prohibit all software or hardware that you could practice it with. Effectively, fair use is prohibited.
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