Broken Links and Broken Laws: Copyright Confusion Online

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Don't blame Columba Kilmacolm.

A religious man, and a lover of books, he borrowed a copy of St. Jerome's psalter from his old teacher Finnian and copied it himself word for word—by hand. His intention was to bring copies of St. Jerome to the masses. Finnian, a less charitable sort it seems, took exception to this and demanded Columba's copied manuscript be returned with the first copy. The resulting dispute came before the King, Dermott, who in a head-scratching bit of jurisprudence declared "as to every cow her calf, so to every book its offspring. Therefore, the copy of the psalter belongs to Finnian."

That was 6th Century Ireland, but the thinking behind copyright law has grown no less muddled since. Two major laws with implications to online copyright have been enacted within the last five years—The Sonny Bono Copyright Extension Act and the Digital Millennium Copyright Act (DMCA)—both of which include questionable provisions and cloudy expositions that may do more harm than good to content professionals.

Caught in a Mouse Trap 
A millenium and a half after Dermott's perplexing pronouncement, Eric Eldred, another idealistic lover of books, began posting on his Web site digital versions of out-of-print literary texts by authors running the gamut from Guy de Maupassant to Mark Twain.

That Eldred could do this at all was part of the larger concern already raising eyebrows among intellectual property lawyers. Namely, that copyright laws could never be enforced within this new medium seemingly perfectly designed to thwart them. (Copy, paste, send. Rip, mix, burn.)

As a result, the death-knell for copyright sounded early on, but like Twain said, rumors of its death were greatly exaggerated. In fact just the opposite appeared to take place when Sonny Bono decided that copyright protection should be extended 20 additional years—to the outrage of Eldred, who filed suit—and the Clinton Administration enacted the DMCA.

This spring, the Supreme Court will issue a ruling on Eldred v Ashcroft, the high water mark for those challenging the constitutionality of the Sonny Bono Extension. Eldred, the lead plaintiff, teamed up with lead lawyer, author (Code, The Future of Ideas) and Stanford professor Lawrence Lessig, who argued the case before the Court last October.

Eldred v Ashcroft is, more than anything, about the tradeoff between private interests (read: large multinational media companies) and the public domain. The implications of this are obvious when you consider the flagship example of the countermovement that gave the act the nickname the Mickey Mouse Law. Namely, that Steamboat Willie, the first copyrighted work containing Mickey Mouse, was to revert, under the old law, into the public domain in 2003 (to be followed shortly by Donald Duck, Goofy, and the rest of the Disney gang).

The law now stipulates that copyright protection exists for the lifetime of the artist, plus 70 years—an extension of 20 years. The problem with all of this, in the plaintiffs' view, is that the framers of the Constitution never intended for this much protection. Furthermore, adding 20 years to copyright protection retroactively has no real impact to the future creators of content, but it has an enormous effect on someone whose rights are about to expire. Congress originally interpreted the Constitutional language (exclusive rights shall be granted to authors and inventors "for limited times") to calculate a copyright term of 28 years. Yet since 1964, Congress has extended the term of existing copyrights 11 times.

The Eldred v Ashcroft Web site explains the plaintiffs' position: "The biggest effect of these laws is to make unavailable an extraordinary range of creative material for next generation's creators. Just as Walt Disney used the works of the Brothers Grimm to produce some of the best of the Disney stories, so too should the next Walt Disney be able to build upon the stories told by Disney."

But "freeing the Mouse", as the plaintiffs' motto goes, is not the central tenet of the cause. More so, "this case is about freeing the vast majority of creative work still under copyright that no one seeks to protect," the plaintiffs say. "Congress sacrificed all these works, just to protect a few valuable copyrights."

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