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More Than A Mickey Mouse Debate
by Drew Clark
When the Supreme Court heard arguments in the Eldred v. Ashcroft case last Wednesday, much more was at stake than simply the fate of Mickey Mouse.
Although not on the docket, Walt Disney's famous cartoon rodent has been very much part of the debate over the 1998 law that added 20 years to the lives of all copyright terms. Mickey made his first appearance in 1928 as "Steamboat Willie." Were it not for the law, the character's copyright protection would have expired in 2003. The Goofy and Donald Duck characters would have been scheduled to become public property in 2011.
In a brief against the law, 17 economists calculated that the extension netted $6 billion to copyright owners like the Walt Disney Co. They argued that the losers in the economic transfer were the public, including individuals such as Eric Eldred, who have been prevented from using the Internet to post material that otherwise would be in the copyright-free public domain.
Large copyright holders that support the law, including Disney and AOL Time Warner, counter that Congress properly balanced the competing interests of the public and copyright holders. They also point to the copyright extension's added value for businesses in harmonizing U.S. terms to international standards: the life of the creator plus 70 years, or 95 years for corporate copyrights.
In Search Of 'Commons' Ground
Legally, the question before the Supreme Court may boil down to whether the justices would rather disturb long-settled copyright law or give Congress carte blanche authority over the subject. Stanford University law professor Lawrence Lessig contends that retroactively extending the terms of such copyrights violates the Constitution's provision that such terms be for "limited times" and that any extensions must be balanced against the First Amendment.
The oral arguments made clear that such logic faces an uphill battle, if only because the high court has never before overturned a term extension as unconstitutional. But whether Lessig's legal reasoning prevails, the case clearly has unleashed a powerful new argument about the sources of creativity in the information age and how current copyright law stifles it.
According to this theory, innovation is only possible when creators can draw upon a rich vein of works that are made available in a "commons." As the name suggests, commons traditionally have been pieces of property owned in common, generally by the state. Whether the "Boston common" that early New England settlers jointly used for grazing cattle or a national park open to anyone, the distinctive characteristic of such spaces is that they are not private property. No one can be excluded from using them.
In a keynote address at a Catholic University law school conference the day after the Supreme Court arguments, Lessig articulated three types of "commons" with applications to the information age. Besides traditional property commons, there are "innovation commons," or platforms "where everyone is equally allowed to innovate," he said. The traditional Internet, with its open protocols and what Lessig called a "design incapable of choosing which applications will run on the network," is an example.
Another example cited by Lessig and gaining support is the notion that more spectrum should be reserved in unlicensed commons to support wireless Internet applications. The final commons is what he called the "anti-commons," or "a resource where any number of people have the right to veto a person's use of [the] resource." The consequence, he said, is that investment in such innovations is destroyed.
Opening The Copyright Chokepoint
To Lessig, copyright law has become an anti-commons because long-dead authors and their heirs -- many of whom are impossible to find -- are the chokepoint on the ability for individuals to use old copyrighted works. He cited the work of Brewster Kale and Rick Prelinger of the Internet Archive, which seeks to make old copyrighted works available to new and broader audiences.
The irony of the Copyright Terms Extension Act, Lessig said, is that it locked down 20 years of content entering the public domain just at the time "when technology makes it so all sorts of people can be re-distributors of culture. We have to rethink the burdens that the legal system imposes on that creativity."
Lessig has become the chairman of Creative Commons, a new Web site that permits content creators to release works on less-restrictive terms than those called for in copyright law.
That thinking has struck a deep chord not only among a slew of new nonprofit groups -- such as Public Knowledge and the Center for the Public Domain -- but also among technology companies that believe greater re-use of cultural content will spur future creativity.
Arguing on behalf of Intel in a brief supporting Eldred's position at the Supreme Court, attorney Jim Burger said, "The value of works in the public domain thus has become increasingly important to the development and deployment of creative, next-generation digital technologies and tools."
Stimulant Or Depressant Of Innovation?
The argument for a commons has intuitive appeal as applied to copyright because U.S. works are created under the constitutional imperative that they be for limited times. The fact that intellectual property -- unlike physical property -- can be enjoyed by multiple individuals at the same time lends additional support to the argument that more of it be available in a commons.
That view accounts for the increasing support for "open source" software voiced by many of Lessig's supporters, including Intel's Supreme Court brief.
But some economists otherwise sympathetic to Lessig part company with him on the open-source issue and on making spectrum more of a commons. Speaking at the Catholic University conference, Robert Hahn, director of the Joint Center for Regulatory Studies at the American Enterprise Institute and Brookings, said "more needs to be done to get a clearer picture of the role of the commons in stimulating innovation." Although Hahn joined the economists' brief in support of Lessig, he challenged the notion that open-source software needs any more encouragement and voiced caution about changing spectrum policy.
"Innovation commons is a useful metaphor" with undeniable power in the information age, Hahn said. But economists have long pointed to what is known as the "tragedy of the commons:" when public property supposedly owned by everyone is effectively squandered because no one has the incentive to maintain the value of the resource over time.
"Economic analysis can help to define a commons," he said, "but we should proceed on a case-by-case basis."
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