Going deep
I've been trying to collect my thoughts about the Eldred decision. At this point I think there are several contexts that need to be explored.
One is legal — constitutional, really. Larry and the lawbloggers (sounds like a good name for a band) are all over that one.
Another is political. The Sony Bono Act was a political creation in the first place, and the Supreme Court decision in its favor was a political victory for Hollywood (yes, print publishers had some interest in it, but the story plays as a Hollywood victory, complete with quotes from Jack Valenti and Hillary Rosen).
The third is metaphorical. I believe Hollywood won because they have successfully repositioned copyright as a property issue. In other words, they successfully urged the world to understand copyright in terms of property. Copyright = property may not be accurate in a strict legal sense, but it still makes common sense, even to the Supreme Court. Here's how Richard Bennett puts it:
The issue here isn't enumeration, or the ability of Congress to pass laws of national scope regarding copyright; the copyright power is clearly enumerated in the Constitution. The issue, at least for the conservative justices who sided with the majority is more likely the protection of property rights. In order to argue against that, Lessig would have had to argue for a communal property right that was put at odds with the individual property right of the copyright holder, and even that would be thin skating at best. So the Supremes did the only possible thing with respect to property rights and the clearly enumerated power the Constitution gives Congress to protect copyright.
Watch the language. While the one side talks about licenses with verbs like copy, distribute, play, share and perform, the other side talks about rights with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate, infringe, and steal.
This isn't just a battle of words. It's a battle of understandings. And understandings are framed by conceptual metaphors. We use them all the time without being the least bit aware of it. We talk about time in terms of money (save, waste, spend, gain, lose) and life in terms of travel (arrive, depart, speed up, slow down, get stuck), without realizing that we're speaking about one thing in terms of something quite different. As the cognitive linguists will tell you, this is not a bad thing. In fact, it's very much the way our minds work.
But if we want to change minds, we need to pay attention to exactly these kinds of details.
"The Commons" and "the public domain" might be legitimate concepts with deep and relevant histories, but they're too arcane to most of us. Eric Raymond has told me more than once that the Commons Thing kinda rubs him the wrong way. Communist and Commonist are just a little too close for comfort. Too social. Not private enough. He didn't say he was against it; but he did say it was a stretch. (Maybe he'll come in here and correct me or enlarge on his point.) For many other libertarians, however, the stretch goes too far. Same goes for conservatives who subscribe to the same metaphorical system in respect to property.
So the work we have cut out for us isn't just legal and political. It's conceptual. Until we find a way to win that one, we'll keep losing in Congress as well as the courts.
Helpful reading on a similar (and to some degree related) case: Metaphor, Morality, and Politics, Or, Why Conservatives Have Left Liberals In the Dust, by George Lakoff.
>>"... one side talks about licenses..."
The framework this piece erects is apt and accurate, but it's worth remembering that licensing is a concept that's familiar in the IT industry, but not necessarily elsewhere in American culture. How many people who run Windows on their PC's are aware that they own a license to use Wndows? Very few, I suspect. How likely is it that Americans will be energized by a discussion that centers on licensing? A nil chance, I suspecct.
The license metaphor seems to reflect the application of the concepts behind open source software development into a much larger arena -- all published information. I'm sorry Eldred lost. The Bono Act is bad law and copyright duration beyond the lifespan of a work's author can, by definition, do nothing to encourage that author to further the progress of society. However, bad copyright law should not engender an attack on copyright itself, or the notion that an author owns a work and all rights to it until he reliquishes some of those rights in order to secure a publisher or otherwise distribute the work. Neither does the opportunity to release a work under an open source license carry with it an obligation to do that. Asserting those positions -- as some seem to do -- will alienate voters who don't have an IT background, aren't interested in something called "open source", and who think in terms of ownership, not licensing. I.e., pretty much everyone. More political support will come by emphasizing how current copyright law facilitates the transfer of effective ownership of a work from the author to the publishing and distribution industry.
An aside: Altering copyright law won't get corporations out of the mix. They -- publishers and retailers -- provide the middleware that authors need to sell their works. They'll be stirring the pot as long as people go to real stores to shop.
Posted by: wgerrard on January 20, 2003 01:18 PMIt would be interesting to study the historical context of copyright as it was written into the constitution of the US and the laws of other nations.
I'm certainly no expert, but I suspect the concept of intellectual property as the foundation of value of a corporation, as opposed to physical assets and goodwill or markets, was very weak in those days. Intellectual property was probably thought of as something primarily adhering to an individual, and therefore limited in time. Corporations, of course, are not nearly so limited in time, certainly not in the same predicatable way as individuals. The concept of the value of IP was also probably quite limited in scope by comparison with today's reality. The idea of building a significant commercial enterprise -- like Disney -- on a few works of intellectual property and their variants and descendants was likely inconceivable.
If those speculations are anywhere near true, then perhaps we lovers of the commons might have to face the possibility that circumstances have changed sufficiently since the constitution was written to conscientiously warrant changes in the concept of copyright such as enacted in the Bono law and upheld in Eldred. Certainly many of the same us-es believe that circumstances have changed enough so that, for example, the right to privacy in the constitution justifies a woman's right to terminate her pregnancy, or ... (pick your favorite liberal interpration of the constitution in light of today's world).
Of course, this reverses the sides of the usual judicial fault lines, putting us commons-lovers on the side of strict interpretation, and the bad guys on the side of modern reinterpretation. But I'm not sure that fault line was ever as judicial as legal scholars claim, and is probably more cover for political and idological fault tines (like states rights, which can go both ways depending on the political goals of the moment).
So maybe the constitutional limit on copyright really does need updating. Is it possible? Or am I just trying to explain my gut feel, which I can't escape with any intellectual gymnastics, that Mickey Mouse really does *belong* to Disney.
Posted by: on January 20, 2003 04:50 PMInituitions about Mickey--
I think that your intuitions about Mickey might rest more in trademarks (the symbols of a business) than in copyright. Mickey is by all accounts the symbol of Disney--he's inseperably attached to the company in the public mind. And as such, any other organization using Mickey would confuse and mislead the customer.
I think the idea is pretty close to the mark. The greatest value that has come from Lessig and Eldred's action has been the energy it has focused and elicited from the online community especially. Which is interesting because it is far from an online issue alone.
I think there is also an area that has not been talked about during the heat of the moment and that is the "Fork in the Cultural Code", I'm putting up some notes at the link below under the title Corporate America Pulls Its Memes Out of the Pool
Posted by: Earl Mardle on January 20, 2003 09:36 PMEric:
First, I'm the one who posted the anonymous comment above starting with "It would be interesting..." The anonymity was unintentional, from a slipup in posting.
Second, your comment about trademark vs copyright is a really good point. But what's the distinction in practice?
Were we just talking about the release of the Steamboat Willie footage into the public domain, thus allowing anyone to screen, republish or even use it in an ad, without Disney's permission. Or worse, once that happened (which I guess it won't for a while now, or maybe never) couldn't anyone then freely make and use derivative works, including, say, unlimited images of the current Mickey Mouse or something like it? ("Steamboat Willie just loooovvves Daffy Duck cartoons!")
Again, I'm no expert, but I assume trademarks are protected forever. If so, however, how does that square with limited copyright, when expiration of a copyright could expose a related trademark to significant dilution. In other words, there may be little practical distinction between the two forms of protection. More to the point, there is probably no such fine distinction in the public's mind, which may be another unspoken reason the Supremes rejected Eldred.
Is this another way in which our notion of copyright might indeed need updating?
Posted by: David Lewis on January 21, 2003 01:34 PMI've posted a response to this on Bennett.com.
Richard
Posted by: Richard Bennett on January 21, 2003 02:20 PMI have posted a comment in disLEXia on the matter of using words to direct understanding.
Posted by: Max Dornseif on January 22, 2003 04:02 PM