Finding a Balance
If Eric Eldred and Dan Wallach have illustrated anything other than the confused state of current copyright law, it's that there is more money to be lost than made in the digital wilderness. At least that seems to be the position of Congress and the major media players who lobby it. Until the Internet is more opportunity than threat to the copyright holder, it will be difficult to strike a reasonable balance between private interests and the public domain.
But where should that balance be found? "The public has an interest in having public domain access to media conceived during its own lifetime," says Wallach. "If books, movies, and songs were not public domain until long after the deaths of the children to whom they were originally marketed, then those children never had any public domain benefit from those works. That seems to be a good litmus test for finding a balance."
In The Future of Ideas, Lawrence Lessig offers a similarly reasonable and explicit solution: "Work that an author publishes should be protected for a term of five years once registered, and that registration can be renewed fifteen times" Lessig declares. "If the registration is not renewed, then the work falls into the public domain."
To push ideas like these forward, Lessig and Eldred have teamed up again in a not-for-profit project called Creative Commons, an attempt to establish a set of more flexible intellectual property licenses that content creators can use—free of charge—to set their own rules for others' use of their work.
"Many people may prefer an alternative to this "copyright by default," particularly those who do their creating on the Internet" they say on their Web site. "Ironically, there is no easy way to announce that you intend to enforce only some your rights, or none at all. At the same time—and again because copyright notice is optional—people who want to copy and reuse creative works have no reliable way to identify works available for such uses. We hope to provide some tools that solve both problems: a set of free public licenses sturdy enough to withstand a court's scrutiny, simple enough for non-lawyers to use, and yet sophisticated enough to be identified by various Web applications."
It's a worthy effort that deserves to succeed, and hopefully will go a long way toward filling in the holes in DMCA and delineating infringement from fair use. Eldred v Ashcroft, on the other hand, faces a tougher road. It's worth noting the Sonny Bono Extension originally passed the Senate without a single vote against it; Eldred and Lessig, alas, are being given little chance of victory. The Justices, while seemingly sympathetic to the cause, remain wary of their jurisdiction.
"It is hard to understand how, if the overall purpose of the Copyright Clause is to encourage creative work, how some retroactive extension could possibly do that. One wonders what was in the minds of the Congress," Justice Sandra Day O'Connor said in the argument phase. "But", she added, the question is, "is it unconstitutional?"
Columba Kilmacolm, not incidentally, was canonized St. Columba for his troubles, and is today the patron of bookbinders and poets. This spring, we'll see whether the Court is moved by his spirit—and applies the wisdom of King Solomon or the confusion of King Dermott to the Eldred case.
Eldred v Ashcroft
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