An 'Odd Bird': A Case for Balance in Copyright Law in Cyberspace

By Robin D. Gross & Katina Bishop
December 2000

"Copyright law is an odd bird. It establishes a strange sort of property when compared with other property... Copyright is a balance between expression that the owners can control, and expression that is left open to the commons. There is a commons for intellectual property, and the Constitution is committed to feeding that commons. For the commons is a resource for other creators later on. And the commitment of the Constitution is that there be lots later on." (- Lawrence Lessig, The Law of the Horse)

Stanford law professor Lawrence Lessig describes well in the above paragraph the thin tightrope that must be walked when designing the rules for Copyright Law. The Electronic Frontier Foundation (EFF) echoes Lessig's position for maintaining balance among competing legitimate interests in a copyright regime.

Intellectual property is fundamentally different than other forms of property. Claims that intellectual property should be treated like forms of private property simply do not take into account the countervailing speech interests inherent in creative expression. EFF does not support over-turning copyright law, nor do we overlook the importance of paying respect to hard-working artists and ensuring their livelihood. On the contrary, if copyright is to continue to serve as the "engine of free expression" in the new millennia, then it must preserve its traditional values and ultimately serve its Constitutional objectives.

Despite this need, copyright has radically changed in recent years. Deviating dramatically from its public interest roots, copyright today resembles an incomprehensible set of prohibitions structured to maintain monopoly control over creative expression. Ever-vigilant extensions in the length of protection granted to copyright have increased from 26 years maximum at its origin to what can now last for more than a century. Together with the widened scope of works considered worthy of copyright and the additional rights granted under recent legislation, the balance has already dramatically shifted away from the public commons, and the scale is in grave danger of tipping even more sharply.

Americans understand copyright from its 1787 Constitutional definition: the right of authors to publish and vend their works. However, copyright originated in England as a means of government censorship by creating a publishing monopoly. The Stationers, private publishers who controlled the printing presses, were given power by the throne to create regulations surrounding the publication of written material. They also had the power to seek out illegal presses and texts and burn them.

It was not until the English Parliament finally passed The Statute of Anne in 1710 that copyright protection was available to authors for the first time. Defined as an "anti-censorship trade regulation statute," this new copyright law refocused the legal rules on the goal of encouraging public learning.

The framers of the U.S. Constitution created our concept of copyright based upon the principles expressed in the Statute of Anne. Heeding the Constitution's mandate, "To promote the Progress of Science and Useful Arts," the first U.S. Copyright Act was termed, "An Act for the Encouragement of Learning." Having progressed greatly towards a rich culture with an abundant public domain we now find ourselves slipping back into the primitive state of monopoly and government control.

Recent technological advances affecting the distribution of information have caused the major movie studios to panic. The studios, including Time Warner and Disney, have launched several legal attacks to ban the publication of DeCSS code under the guise of copyright. Threatened by change, the MPAA makes accusations of piracy despite the fact that it is unable to prove that even one incident of piracy has occurred as a result of the software it is attempting to ban. Progressive uses of intellectual property, such as lawful reverse engineering to ensure interoperability are similarly under attack.

This kind of extreme behavior caused by fear about technology is nothing new. In recent history, the movie studios tried to outlaw VCRs based on similar fears of a copy-enabled public in the famous Betamax Supreme Court case. Throughout history, at the invention of the telephone, radio, CDs, etc., entrenched industries typically react with fear of new technology. Yet in each instance, the copyright fears have been unfounded. Ironically, the VCR currently provides the highest source of revenue for the movie industry. The movie studios can and will benefit significantly from the addition of new technology when they learn how to take advantage of and profit from its new properties.

There is room for everyone on this digital playground. The more we turn the gifts of creative expression and innovation into property under exclusive control, the more we stifle the public commons, and in the end innovation itself.

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea... He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property." --Thomas Jefferson

Our Constitution was founded on the principle that great minds beget great minds, and that no one rises alone. These principles have allowed this country to learn from the mistakes of our English ancestors, and to avoid the traps of censorship and repressed expression that are the natural results of turning thought into a form of property, to be bought and sold, given and withheld. Shedding this constrictive history has allowed us to develop into a nation of unbridled thinkers who have changed the way we view the world.

However, a nation of unbridled thinkers is not always conducive to the success of corporate monopoly. The word monopoly itself is extreme; it suggests a complete lack of balance. The movie studios would like the public to believe that the only alternative to their uber-protection agenda is the opposite extreme: IP anarchy, a total loss of regulation that leaves authors thoroughly unprotected. However, that picture is grossly out of sync with what their perceived enemies are fighting for, which is simply balance. A middle ground gives artists the rights that they deserve, while simultaneously supporting and protecting fair use rights and a rich public commons.

Creating and maintaining such a delicate balance is difficult, especially as new technology continues to change the way we exchange thoughts, ideas and information. But the effort will pay off in far more rewarding ways than simply using the law to stifle a perceived threat. Outlawing communicative technology will create far greater problems for freedom of speech than it will solve for piracy.