INTELLECTUAL PROPERTY WARS
Fall 2002

COPYRIGHTS AND THE VOX POPULI: The Digital Millenium Copyright Act was hailed by musicians' unions and the recording industry for protecting copyrighted material, and excoriated by consumer advocates for being draconian and unreasonably restrictive on the rights of music and video buyers. The two sides could not be further apart on the issues, and now a period of 'public comment' is set to begin later this fall. There will be town meetings and solicitation of public opinion, and at the end of it all, the Librarian of Congress will rule on what sorts of exceptions exist under the DMCA. Trouble is, most observers believe that the legislation leaves no room for exceptions, regardless of what the public wants. Wired 10/16/02

AMERICA'S COPYHISTORY: American copyright law has become more and more restrictive over the years. And big corporate American copyright-holders complain about piracy of their material internationally. But historically Americans were enthusiastic pirates themselves. Back in the 19th century "American law offered copyright protection — but only to citizens and residents of the United States. The works of English authors were copied with abandon and sold cheap to an American public hungry for books. This so irritated Charles Dickens — whose Christmas Carol sold for 6 cents a copy in America, versus $2.50 in England — that he toured the United States in 1842, urging the adoption of international copyright protection as being in the long-term interest of American authors and publishers." The New York Times 10/14/02

COPYRIGHT CASE GETS A HEARING AT THE SUPREME COURT: In a landmark case which could change the way copyright law is administered in the U.S., the Supreme Court is hearing arguments on the issue of whether Congress may extend current copyrights past their original expiration, as it did in 1998, and keep popular images, songs, and art out of the public domain, where they could be used by anyone without permission or payment. The suit was filed by Internet archivist Eric Eldred, who "runs an Internet archive called Eldritch Press, which includes such books as Nathaniel Hawthorne's 19th-century classic The Scarlet Letter. But the 1998 law would have forced him to pay to publish works from the '20s such as stories by Sherwood Anderson and some poems by Robert Frost." Washington Post 10/10/02

• FREE SPEECH, SURE, BUT PROFIT, TOO: So what's at the heart of the Eldred case? Money, pure and simple, although one might be hard-pressed to describe the plaintiff himself as much of a hardline capitalist. But the essence of the law being challenged is that it prevents the public, and, by extension, private companies, from using such beloved symbols as the face of Mickey Mouse or the text of The Great Gatsby for personal gain and profit. Of course, the copyright extension law which sparked the case came about only after determined lobbying by wealthy copyright holders, so the greed runs both ways. The New York Times (AP) 10/09/02
• DANCING ON THE EDGE OF LEGALITY: "If current copyright laws had been on the books when jazz musicians were borrowing riffs from other artists in the 1930s and Looney Tunes illustrators were creating cartoons in the 1940s, entire art genres such as hip-hop, collage and Pop Art might never have existed. To acknowledge this landmark case, an exhibit will celebrate 'degenerate art' in a corporate age: art and ideas on the fringes of intellectual property law." Wired 10/10/02

THE RIGHTS OF CREATIVITY: This week's arguments in front of the US Supreme Court about the constitutionality of the copyright laws is really a battle over how we as a society will get to use our creativity. Opponents of the 1998 extension of the copyright law - which include "dozens of the nation's leading law professors, several library groups, 17 prominent economists, and a coalition of both liberal and conservative political action groups - say it serves no legitimate public purpose, violates the clear intentions of our nation's founders regarding copyrights and is unconstitutional." SFGate 09/26/02

• BUT PROPERTY IS PROPERTY: Alex Beam is irritated by those who believe public domain is a right of society. "We accept without question that certain intellectual property, like books, should eventually belong to the public. Why? My friend Dean Crawford builds houses and writes novels. Would we confiscate his rights to a home he built after 70 years? Of course not. Would we restrict his freedom to sell a home to whomever he chooses? No." Boston Globe 10/08/02
• HIGH STAKES: To the plaintiffs of Eldred v. Ashcroft, the future of the public domain for intellectual property is at stake. "If we lose, then you can say goodbye to any meaningful public domain." Wired 10/08/02

CHALLENGING THE MICKEY MOUSE LAW: This week the US Supreme Court will hear a challenge to "a 1998 law that extended copyright protection an additional 20 years for cultural works, thereby protecting movies, plays, books and music for a total of 70 years after the author's death or for 95 years from publication for works created by or for corporations." Plaintiffs will argue that the extension removes thousands of important creative works from public use. Baltimore Sun (AP) 10/07/02

FIGHTING AGAINST THE FUTURE: Major music and movie producers want to preserve their ways of doing business. That means convincing lawmakers to pass laws protecting against technology that can subvert their business models. Dan Gillmor observes that: "the companies that wail about `stealing' have themselves hijacked billions of dollars worth of literature, music and film from you and me. The public domain hasn't grown lately, and that's a betrayal of everyone but the tiny group of mega-companies that owns copyrights to old classics." San Jose Mercury News 10/01/02

A HISTORY OF INTELLECTUALS IN AMERICA: There was a time - however brief - that being an intellectual was thought to be desirable in America. "During the last 50 years anti-intellectualism has, by and large, disappeared. But then, so have intellectuals, too - well, almost. There have been many important elements of this devolution during the last 50 years." Chronicle of Higher Education 10/04/02

COPYRIGHT CHALLENGE: The US Supreme Court is about to hear arguments challenging the constitutionality of the Sonny Bono Copyright Term Extension Act, which was enacted in 1998 with strong support from Hollywood's politically powerful studios. The law extended the length of copyrights for an additional 20 years (or more in certain cases) and gave new protections to corporations that own copyrights. Opponents - which include dozens of the nation's leading law professors, several library groups, 17 prominent economists, and a coalition of both liberal and conservative political action groups - say it serves no legitimate public purpose, violates the clear intentions of our nation's founders regarding copyrights and is unconstitutional." San Francisco Chronicle 09/26/02

THE BUSINESS CASE FOR PIRACY: Does fighting piracy of intellectual property make good business sense? Maybe not. "The argument for allowing piracy boils down to two words: network effects. Without a critical mass of users, most software products tend to wither and die. Conversely, the more users a software product acquires, particularly a consumer-oriented software product, the more valuable it becomes." Salon 09/26/02

POOR COUNTRIES SHOULDN'T BE BOUND BY COPYRIGHT: A new study, released this week, says that "poor places should avoid committing themselves to rich-world systems of intellectual property rights protection unless such systems are beneficial to their needs." Rich countries would argue that that is an invitation to piracy. But the report points out that "for most of the 19th century, America provided no copyright protection for foreign authors, arguing that it needed the freedom to copy in order to educate the new nation. Similarly, parts of Europe built their industrial bases by copying the inventions of others, a model which was also followed after the second world war by both South Korea and Taiwan. Today, developing countries do not have the luxury to take their time over IPR." The Economist 09/13/02