As I will discuss elsewhere, the Digital Millennium Copyright Act has become a tool of censorship on the internet. This is particularly ironic in light of the original purpose of copyright law. To understand the irony we must first discover the PURPOSE of copyright law.
Quick: What is the purpose of copyright law? Why was copyright law invented? Do you think that the main goal of copyright law is to give creators an incentive to produce more works by allowing them to profit from their creations and by giving them control over who can present or reproduce their works?
IF YOU BELIEVE THIS, THEN YOU ARE WRONG!!!!
Don't worry, this is a very common misconception. I highly encourage you to read The Purpose of Copyright by Lydia Pallas Loren, an Associate Professor of Law at Lewis & Clark College. As Loren points out, we must look to the Constitution for our first clue as to the purpose of Copyright Law. Article 1, Section 8 of the Constitution states
“The Congress shall have the power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
Note that when the Constitution was written, the word “science” was interpreted much more broadly than it is today. In the 1700’s, “science” meant generalized knowledge and learning. Thus, the purpose of copyright law as spelled out by the Constitution is to promote the progress of knowledge and learning—not to enrich the creators of new works. Copyright law attempts to achieve these ends by allowing Creators to profit by granting them a monopoly over their works. Copyright law gives authors an incentive to produce more works by granting them exclusive rights in what they produce. However, this protection of the interests of the author is only the MEANS by which the ultimate ENDS of advancing knowledge is promoted. The ultimate goal of copyright law is not the protection of the creator's interest in her works! The ultimate goal is the creation of an environment that will foster the creation of more works that will advance our knowledge and understanding!!!
Evidence for this is provided by the Supreme Court. In Feist Publications, Inc. v. Rural Telephone Service (1991), the Court stated:
"The primary objective of copyright is not to reward the labor of authors, but `[t]o promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work."
And in Twentieth Century Music Corp. v. Aiken (1975) the Court stated:
"The limited scope of the copyright holder's statutory monopoly . . . reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an `author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good."
The Court reiterated these statements in Fogerty v. Fantasy, Inc (1994).
And in Harper & Row, Publishers, Inc. v. Nation Enterprises, the Supreme Court said:
In our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas. This Court stated in Mazer v. Stein, 347 U.S. 201, 209 (1954):
"The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in `Science and useful Arts.'"
Looking at the legislative history, it is clear that copyright law has evolved in a manner never intended by the Founding fathers. The first U.S. Copyright Act (of 1790) granted only the exclusive right to print, publish, and vend a copyrighted work, and that right was granted for a maximum of 28 years. Under the current copyright law, copyright owners also have these rights, plus the right to control the public performances of their works and to control the making of adaptations of their work. And the term of that control has been extended from a maximum of 28 years to 70 years after the death of the author.
Why has copyright law been extended far beyond what was imagined by our Founding Fathers? It was expanded at the behest of major copyright-owning industries to protect their cash cows. The publishing industry argued that the greater the monopoly and the protection granted to the authors of copyrighted works, the more incentive they will have to create new works.
But this overlooks two factors:
- Almost all creators build upon the work of others. If copyright law builds too high an obstacle to the use of previous works it will stifle creativity and prevent the creation of new works.
- The claim that the greater the monopoly granted to authors, the more they will create is not necessarily true. Current copyright law gives the creator a monopoly on his work until 70 years after his death. Does anyone believe that Stephen King would have written fewer books if copyright law only granted him and his estate a monopoly for 10 years after his death?
If copyright law is to serve its originally intended purpose, it must be carefully crafted and implemented so that it rewards creators while simultaneously avoiding the stifling of creativity that would occur if creators are not allowed to build upon the works of others. As Loren stated :
In fulfilling the constitutionally mandated goal of copyright law, Congress has had to ask, as one early legislative report did, two questions: "First, how much will the legislation stimulate the producer and so benefit the public; and second, how much will the monopoly granted be detrimental to the public?" As Judge Walker of the Second Circuit recently summarized: "The copyright law seeks to establish a delicate equilibrium. On the one hand, it affords protection to authors as an incentive to create, and, on the other, it must appropriately limit the extent of that protection so as to avoid the effects of monopolistic stagnation." The founding fathers wanted copyright to be a mechanism by which our democracy would grow and flourish - a way in which our storehouse of knowledge is stocked.
Copyright law has long recognized the importance of being able to quote from the works of others in order to produce new works, and it has embodied this principle in the Fair Use Doctrine. Without the Fair Use Doctrine, a critic could not cite passages of a work he was criticizing. Without Fair Use, a law professor could not play an excerpt of Roy Orbison's "Pretty Woman" while teaching about Campbell v. Acuff Rose. Without Fair Use, we may as well close down most colleges and Universities, because most scholarship would grind to a halt.
The Fair Use Doctrine does provide protection for those who wish to build on the work of others. But as Loren notes, copyright law can be perverted from a tool intended to foster creativity into a tool for censorship, even with the protections provided by the Fair Use Doctrine. Loren cited the case of David Stowe, a professor at Michigan State, who wanted to show how sexism and racism pervaded the big band culture of the 1940s. He wanted to show this by using various cartoons in Downbeat magazine. But the owners of Downbeat refused to grant him permission to use these cartoons at any price because it would make them look bad. Stowe did not want to bear the expense of litigation or run the risk of being found guilty of infringing, so he did not use the cartoons in his study. His academic research was not as rich or complete as it would have been had copyright law not been turned into a tool for censorship.
Though censorship can occur under the doctrine of Fair Use, the situation is far worse under the Digital Millennium Copyright Act. As Loren noted:
Under the recent Digital Millennium Copyright Act, copyright owners are given a very effective tool for censoring speech in cyberspace. Copyright owners can, in effect, force internet service providers to remove material from the internet and the world wide web posted by anyone simply by sending the internet service provider that is storing the material a written notice asserting a good faith belief that the material is infringing. If the internet service provider fails to expeditiously remove or disable access to the claimed infringing material, the internet service provider itself can become liable for any infringement that might be found. Clearly internet service providers will err on the side of removing any material claimed to be infringing. But this removal occurs without an independent judgment of whether infringement is in fact occurring. The only judgment is that of the copyright owner. While a counter notification to the service provider from the person who posted the alleged infringing material requires the service provider to replace the disputed material fourteen days later, the copyright owner can stop the reposting merely by filing a court action within those 14 days. Adjudication is not required to keep the material out of the public's reach.
Loren's paper dealt in theory. My experience, and the experience of many others, provides evidence that the DMCA is in fact being used as a tool for censorship. The Founding Fathers gave Congress the authority to make Copyright law in order to foster an environment conducive to the production of new works. They would be shocked indeed to see how the clearly unconstitutional DMCA has been perverted into the favorite tool of the censor.
Reading For Extra Credit
Perhaps no other case explains the purpose of copyright law better than Suntrust v. Houghton Mifflin. (11th Circuit Court of Appeals, Oct. 10, 2001). Both the main opinion written by Judge Birch, and the concurring opinion, written by Judge Marcus are intellectual tours de force. Pay particularly close attention to History and Development of the Copyright Clause and The Union of Copyright and the First Amendment. Anyone who reads this case and has even a passing understanding of how the DMCA is used to suppress free speech will come away with a fresh understanding of just how perverted copyright law has become.
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