Lawrence Lessig - Chapter 10 from "Free Culture" lyrics

[Page 116] Jack Valenti has been the president of the Motion Picture Association of America since 1966. He first came to Washington, D.C., With Lyndon Johnson's administration—literally. The famous picture of Johnson's swearing-in on Air Force One after the a**a**ination of President Kennedy has Valenti in the background. In his almost forty years of running the MPAA,Valenti has established himself as perhaps the most prominent and effective lobbyist in Washington. The MPAA is the American branch of the international Motion Picture Association. It was formed in 1922 as a trade a**ociation whose goal was to defend American movies against increasing domestic criticism. The organization now represents not only filmmakers but producers and distributors of entertainment for television, video, and cable. Its board is made up of the chairmen and presidents of the seven major producers and distributors of motion picture and television programs. In the United States: Walt Disney, Sony Pictures Entertainment, MGM, Paramount Pictures, Twentieth Century Fox, Universal Studios, and Warner Brothers. [Page 117] Valenti is only the third president of the MPAA. No president before him has had as much influence over that organization, or over Washington. As a Texan, Valenti has mastered the single most important political sk** of a Southerner—the ability to appear simple and slow while hiding a lightning-fast intellect. To this day, Valenti plays the simple, humble man. But this Harvard MBA, and author of four books, who finished high school at the age of fifteen and flew more than fifty combat missions in World War II, is no Mr. Smith. When Valenti went to Washington, he mastered the city in a quintessentially Washingtonian way. In defending artistic liberty and the freedom of speech that our culture depends upon, the MPAA has done important good. In crafting the MPAA rating system, it has probably avoided a great deal of speech-regulating harm. But there is an aspect to the organization's mission that is both the most radical and the most important. This is the organization's effort, epitomized in Valenti's every act, to redefine the meaning of “creative property.” In 1982, Valenti's testimony to Congress captured the strategy perfectly: No matter the lengthy arguments made, no matter the charges and the counter-charges, no matter the tumult and the shouting. Reasonable men and women will keep returning to the fundamental issue, the central theme which animates this entire debate: Creative Property owners must be accorded the same rights and protection resident in all other property owners in the nation. That is the issue. That is the question. And that is the rostrum on which this entire hearing and the debates to follow must rest. The strategy of this rhetoric, like the strategy of most of Valenti's rhetoric, is brilliant and simple and brilliant because simple. The “central theme” to which “reasonable men and women” will return is this: “Creative property owners must be accorded the same rights and protections resident in all other property owners in the nation.” There are no second-cla** citizens, Valenti might have continued. There should be no second-cla** property owners. [Page 118] This claim has an obvious and powerful intuitive pull. It is stated with such clarity as to make the idea as obvious as the notion that we use elections to pick presidents. But in fact, there is no more extreme a claim made by anyone who is serious in this debate than this claim of Valenti's. Jack Valenti, however sweet and however brilliant, is perhaps the nation's foremost extremist when it comes to the nature and scope of “creative property.” His views have no reasonable connection to our actual legal tradition, even if the subtle pull of his Texan charm has slowly redefined that tradition, at least in Washington. While “creative property” is certainly “property” in a nerdy and precise sense that lawyers are trained to understand, it has never been the case, nor should it be, that “creative property owners” have been “accorded the same rights and protection resident in all other property owners.” Indeed, if creative property owners were given the same rights as all other property owners, that would effect a radical, and radically undesirable, change in our tradition. Valenti knows this. But he speaks for an industry that cares squat for our tradition and the values it represents. He speaks for an industry that is instead fighting to restore the tradition that the British overturned in 1710. In the world that Valenti's changes would create, a powerful few would exercise powerful control over how our creative culture would develop. I have two purposes in this chapter The first is to convince you that, historically, Valenti's claim is absolutely wrong The second is to convince you that it would be terribly wrong for us to reject our history We have always treated rights in creative property differently from the rights resident in all other property owners They have never been the same And they should never be the same, because, however counterintuitive this may seem, to make them the same would be to fundamentally weaken the opportunity for new creators to create Creativity depends upon the owners of creativity having less than perfect control [Page 119] Organizations such as the MPAA, whose board includes the most powerful of the old guard, have little interest, their rhetoric notwithstanding in a**uring that the new can displace them. No organization does. No person does. (Ask me about tenure, for example.) But what's good for the MPAA is not necessarily good for America. A society that defends the ideals of free culture must preserve precisely the opportunity for new creativity to threaten the old. [Page 133] Law: Duration When the first Congress enacted laws to protect creative property, it faced the same uncertainty about the status of creative property that the English had confronted in 1774. Many states had pa**ed laws protecting creative property, and some believed that these laws simply supplemented common law rights that already protected creative authorship. This meant that there was no guaranteed public domain in the United States in 1790. If copyrights were protected by the common law, then there was no simple way to know whether a work published in the United States was controlled or free. Just as in England, this lingering uncertainty would make it hard for publishers to rely upon a public domain to reprint and distribute works. That uncertainty ended after Congress pa**ed legislation granting copyrights. Because federal law overrides any contrary state law, federal protections for copyrighted works displaced any state law protections. Just as in England the Statute of Anne eventually meant that the copyrights for all English works expired, a federal statute meant that any State copyrights expired as well. In 1790, Congress enacted the first copyright law. It created a federal copyright and secured that copyright for fourteen years. If the author was alive at the end of that fourteen years, then he could opt to renew the copyright for another fourteen years. If he did not renew the copyright, his work pa**ed into the public domain. While there were many works created in the United States in the first ten years of the Republic, only 5 percent of the works were actually registered under the federal copyright regime. Of all the work created in the United States both before 1790 and from 1790 through 1800, 95 percent immediately pa**ed into the public domain; the balance would pa** into the pubic domain within twenty-eight years at most, and more likely within fourteen years. This system of renewal was a crucial part of the American system of copyright. It a**ured that the maximum terms of copyright would be granted only for works where they were wanted. After the initial term of fourteen years, if it wasn't worth it to an author to renew his copyright, then it wasn't worth it to society to insist on the copyright, either. [Page 134] Fourteen years may not seem long to us, but for the vast majority of copyright owners at that time, it was long enough: Only a small minority Of them renewed their copyright after fourteen years; the balance allowed their work to pa** into the public domain. Even today, this structure would make sense. Most creative work has an actual commercial life of just a couple of years. Most books fall out of print after one year. When that happens, the used books are traded free of copyright regulation. Thus the books are no longer effectively controlled by copyright. The only practical commercial use of the books at that time is to sell the books as used books; that use—because it does not involve publication—is effectively free. In the first hundred years of the Republic, the term of copyright was changed once. In 1831, the term was increased from a maximum of 28 years to a maximum of 42 by increasing the initial term of copyright from 14 years to 28 years. In the next fifty years of the Republic, the term increased once again. In 1909, Congress extended the renewal term of 14 years to 28 years, setting a maximum term of 56 years. Then, beginning in 1962, Congress started a practice that has defined copyright law since. Eleven times in the last forty years, Congress has extended the terms of existing copyrights; twice in those forty years, Congress extended the term of future copyrights. Initially, the extensions of existing copyrights were short, a mere one to two years. In 1976, Congress extended all existing copyrights by nineteen years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the term of existing and future copyrights by twenty years. The effect of these extensions is simply to toll, or delay, the pa**ing of works into the public domain. This latest extension means that the public domain will have been tolled for thirty-nine out of fifty-five years, or 70 percent of the time since 1962. Thus, in the twenty years after the Sonny Bono Act, while one million patents will pa** into the public domain, zero copyrights will pa** into the public domain by virtue of the expiration of a copyright term. [Page 135] The effect of these extensions has been exacerbated by another, little-noticed change in the copyright law. Remember I said that the framers established a two-part copyright regime, requiring a copyright owner to renew his copyright after an initial term. The requirement of renewal meant that works that no longer needed copyright protection would pa** more quickly into the public domain. The works remaining under protection would be those that had some continuing commercial value. The United States abandoned this sensible system in 1976. For all works created after 1978, there was only one copyright term—the maximum term. For “natural” authors, that term was life plus fifty years. For corporations, the term was seventy-five years. Then, in 1992, Congress abandoned the renewal requirement for all works created before 1978. All works still under copyright would be accorded the maximum term then available. After the Sonny Bono Act, that term was ninety-five years. This change meant that American law no longer had an automatic way to a**ure that works that were no longer exploited pa**ed into the public domain. And indeed, after these changes, it is unclear whether it is even possible to put works into the public domain. The public domain is orphaned by these changes in copyright law. Despite the requirement that terms be “limited,” we have no evidence that anything will limit them. The effect of these changes on the average duration of copyright is dramatic. In 1973, more than 85 percent of copyright owners failed to renew their copyright That meant that the average term of copyright in 1973 was just 32.2 years. Because of the elimination of the renewal requirement, the average term of copyright is now the maximum term. In thirty years, then, the average term has tripled, from 32.2 years to 95 years [Page 136] Law: Scope The “scope” of a copyright is the range of rights granted by the law. The scope of American copyright has changed dramatically. Those changes are not necessarily bad. But we should understand the extent of the changes if we're to keep this debate in context. In 1790, that scope was very narrow. Copyright covered only “maps, charts, and books.” That means it didn't cover, for example, music or architecture, More significantly, the right granted by a copyright gave the author the exclusive right to “publish” copyrighted works, That means someone else violated the copyright only if he republished the work without the copyright owner's permission, Finally, the right granted by a copyright was an exclusive right to that particular book, The right did not extend to what lawyers call “derivative works.” It would not, therefore, interfere with the right of someone other than the author to translate a copyrighted book, or to adapt the story to a different form (such as a drama based on a published book), This, too, has changed dramatically, While the contours of copyright today are extremely hard to describe simply, in general terms, the right covers practically any creative work that is reduced to a tangible form, It covers music as well as architecture, drama as well as computer programs, It gives the copyright owner of that creative work not only the exclusive right to “publish” the work, but also the exclusive right of control over any “copies” of that work. And most significant for our purposes here, the right gives the copyright owner control over not only his or her particular work, but also any “derivative work” that might grow out of the original work. In this way, the right covers more creative work, protects the creative work more broadly, and protects works that are based in a significant way on the initial creative work. At the same time that the scope of copyright has expanded, procedural limitations on the right have been relaxed. I've already described the complete removal of the renewal requirement in 1992. In addition to the renewal requirement, for most of the history of American copyright law, there was a requirement that a work be registered before it could receive the protection of a copyright. There was also a requirement that any copyrighted work be marked either with that famous © or the word copyright. And for most of the history of American copyright law, there was a requirement that works be deposited with the government before a copyright could be secured. [Page 137] The reason for the registration requirement was the sensible understanding that for most works, no copyright was required. Again, in the first ten years of the Republic, 95 percent of works eligible for copyright were never copyrighted. Thus, the rule reflected the norm: Most works apparently didn't need copyright, so registration narrowed the regulation of the law to the few that did. The same reasoning justified the requirement that a work be marked as copyrighted—that way it was easy to know whether a copyright was being claimed. The requirement that works be deposited was to a**ure that after the copyright expired, there would be a copy of the work somewhere so that it could be copied by others without locating the original author. All of these “formalities” were abolished in the American system when we decided to follow European copyright law. There is no requirement that you register a work to get a copyright; the copyright now is automatic; the copyright exists whether or not you mark your work with a ©; and the copyright exists whether or not you actually make a copy available for others to copy. Consider a practical example to understand the scope of these differences. If, in 1790, you wrote a book and you were one of the 5 percent who actually copyrighted that book, then the copyright law protected you against another publisher's taking your book and republishing it without your permission. The aim of the act was to regulate publishers so as to prevent that kind of unfair competition. In 1790, there were 174 publishers in the United States. The Copyright Act was thus a tiny regulation of a tiny proportion of a tiny part of the creative market in the United States—publishers. [Page 138] The act left other creators totally unregulated. If I copied your poem by hand, over and over again, as a way to learn it by heart, my act was totally unregulated by the 1790 act. If I took your novel and made a play based upon it, or if I translated it or abridged it, none of those activities were regulated by the original copyright act. These creative activities remained free, while the activities of publishers were restrained. Today the story is very different: If you write a book, your book is automatically protected. Indeed, not just your book. Every e-mail, every note to your spouse, every doodle, every creative act that's reduced to a tangible form—all of this is automatically copyrighted. There is no need to register or mark your work. The protection follows the creation, not the steps you take to protect it. That protection gives you the right (subject to a narrow range of fair use exceptions) to control how others copy the work, whether they copy it to republish it or to share an excerpt. That much is the obvious part. Any system of copyright would control competing publishing. But there's a second part to the copyright of today that is not at all obvious This is the protection of “derivative rights.” If you write a book, no one can make a movie out of your book without permission. No one can translate it without permission. CliffsNotes can't make an abridgment unless permission is granted. All of these derivative uses of your original work are controlled by the copyright holder. The copyright, in other words, is now not just an exclusive right to your writings, but an exclusive right to your writings and a large proportion of the writings inspired by them. It is this derivative right that would seem most bizarre to our framers, though it has become second nature to us. Initially, this expansion was created to deal with obvious evasions of a narrower copyright. If I write a book, can you change one word and then claim a copyright in a new and different book? Obviously that would make a joke of the copyright, so the law was properly expanded to include those slight modifications as well as the verbatim original work. [Page 139] In preventing that joke, the law created an astonishing power within a free culture—at least, it's astonishing when you understand that the law applies not just to the commercial publisher but to anyone with a computer. I understand the wrong in duplicating and selling someone else's work. But whatever that wrong is, transforming someone else's work is a different wrong. Some view transformation as no wrong at all—they believe that our law, as the framers penned it, should not protect derivative rights at all. Whether or not you go that far, it seems plain that whatever wrong is involved is fundamentally different from the wrong of direct piracy. Yet copyright law treats these two different wrongs in the same way. I can go to court and get an injunction against your pirating my book. I can go to court and get an injunction against your transformative use of my book. These two different uses of my creative work are treated the same. This again may seem right to you. If I wrote a book, then why should you be able to write a movie that takes my story and makes money from it without paying me or crediting me? Or if Disney creates a creature called “Mickey Mouse,” why should you be able to make Mickey Mouse toys and be the one to trade on the value that Disney originally created? These are good arguments, and, in general, my point is not that the derivative right is unjustified. My aim just now is much narrower: simply to make clear that this expansion is a significant change from the rights originally granted.