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Is What’s Black and White and Eldred All Over?
Nicholas Johnson

Iowa Intellectual Property Law Association Annual Meeting
Amana, Iowa
October 25, 2002

Children’s Riddle: What’s black and white and red all over?
Answer: The newspaper.
The Issues in Brief
History and Original Intent
Who Cares?
Other Expansions of Copyright
Digitization and the Internet
Developing Some Modest Proposals
Fair Use
Parties and Philosophies
A Possible Solution

On October 9, 2002, the copyright case of Eldred v. Ashcroft was argued before the U.S. Supreme Court -- following which it disappeared behind the curtain that shields the Court’s pre-decisional, secret deliberations.1  When next seen it will be a written opinion, or opinions. It will be "the law."

Meanwhile, the issues raised by the case – the possible constitutional limits on Congress’s power to extend copyright terms – can provide the kinds of topics that make for spirited luncheon table debate among professors of copyright or constitutional law.

But the implications of the Court’s eventual decision, and the public policy issues that will come springing out of this legal Jack-in-the-box, will affect every person who reads books, listens to music, watches movies – and, especially, uses the Internet.

The full range of those issues, and the persons who will be directly and indirectly affected by them, cannot be fully grasped at this time by anyone, let alone summarized in a brief talk. But even an overview will provide some indication of their significance.

The Issues in Brief

The plaintiffs in Eldred filed suit against the U.S. Attorney General for a declaration that the Copyright Term Extension Act of 1998 (CTEA)2  is unconstitutional. Each plaintiff is a business or organization that relies in some way on public domain books, sheet music, films, or other creative material. They argue that they would be injured by the loss of access to the  additional material that, but for the act, would soon come into the public domain.

We haven't the time to explore all the intricacies of the constitutional issues raised by the case. But that is not necessary to our consideration anyway. It is enough to summarize the basics. In doing so I offer apologies to those who are thoroughly familiar with the case, specialists in the field, or who otherwise find this explanation overly simplistic.

The Constitution expressly gives Congress the power to create the intellectual property rights called copyright. The provision granting this power is somewhat unique in that it provides both the ends (“to promote the Progress of Science”) and means (“by securing for limited Times to Authors . . . the exclusive Right to their respective Writings”).3

At the time this clause was written, incidentally, the word “science” had the broader meaning of “knowledge” or “learning.”4  Thus, the purpose of copyright, the goal Congress was constitutionally authorized to pursue, was that of promoting, or increasing, the quantity and quality of the total body of human knowledge. Indeed, Congress’s first copyright law, in 1790, was titled "An Act for the Encouragement of Learning" (as was the Statute of Anne of 1710 on which it was modeled).5

In exercising its copyright power, Congress has provided not only the “limited times” for the initial grants of “exclusive rights,” but the limited times for renewal terms as well.

Over the years these terms have been extended from the initial grant in 1790 of 14 years plus a 14-year renewal. By the time of the law challenged in Eldred, a 25 year old author who lived to the age of 80 would be entitled to  125 years of exclusive rights in copyright (life plus 70 years) for the works he created in his 25th year.

The Eldred plaintiffs find a number of constitutional problems with this.

Finally, plaintiffs make the First Amendment argument that by restricting their ability to use material that would, but for the law, be available to them and others as a part of the public domain, Congress has made a “law abridging the freedom of speech.”7

The U.S. District Court and Court of Appeals majority rejected most of these arguments. They have said there is no First Amendment right to violate a copyright. The means clause does not restrain the ends clause; that is, Congress is constitutionally free to make the “limited times” period as long as it wishes, so long as each extension has some precise limit. And Congress may add extensions to renewal terms retroactively without the constitutional need for any additional “progress” or “originality” from the grantee.

History and Original Intent

Looking at the words alone, one can reasonably argue either side of the “limited times” dispute.

What is much harder to argue is that the drafters would find the repeated extensions that have now produced 125-year copyrights to be consistent with their original intent.

As Justice Sandra Day O’Connor is reported to have said during the Eldred oral argument, “I can find a lot of fault with what Congress did. This flies directly in the face of what the framers of the Constitution had in mind . . ..”8  The New York Times’ headlined its critical editorial, “An Abuse of Copyright.”9

Original intent may not be decisive. Some may not even think it relevant. But to the extent one cares about the original purposes of the constitutional copyright provision, and Congress’s first effort to implement it in the 1790 legislation, it is necessary to review the history.10

Sometime in the middle of the 16th Century the Crown began issuing the “letters patent” that were the equivalent of monopoly rights. Gradually they came to be awarded, not for new innovations, but as political rewards. Following the 1598 grant of a monopoly for playing cards, the British court held that patents for existing rather than new inventions were simply invalid. However, the court’s decision was insufficient to stop the practice. Finally, the Statute of Monopolies was enacted in 1624, invalidating all patents. One of the exceptions was for new inventions, for which a term of 14 years was provided.

The equivalent of monopoly copyright rights were owned, not by authors, but by printers and booksellers under the terms of the Licensing Act of 1662 until its expiration in 1695. That act did grant them monopoly rights in perpetuity. However, when they petitioned the parliament for a continuation of this practice they were expressly rebuffed.

The Statute of Anne of 1710 was specifically designed to break their monopolies in perpetuity in two ways. It made the authors, not the booksellers and printers, the rights holders. It also limited the term of those rights to an initial 14 years, with the possibility of a 14-year renewal for a living author.

The drafters of the Constitution were well aware of this history, of the abuses from monopolies in general and literary monopolies in particular, and the terms of the Statute of Anne. Indeed, the act of 1790 was modeled very closely after its British predecessor.

Charles Pinckney proposed constitutional language that authors receive “exclusive rights for a certain time” (emphasis added). This language was rejected in favor of James Madison’s proposal of “copy rights for a limited time” (emphasis added).11

Thomas Jefferson wrote to James Madison that he would have preferred language that read, “Monopolies may be allowed to persons for their own productions in literature . . . for a term not exceeding __ years [Jefferson’s blank] but for no longer term and for no other purpose.”12

Thus, it is relatively clear that the drafters of this constitutional provision were expressly intent on taking exclusive copyright rights away from the large literary businesses and giving them to authors, and that they wanted the terms given even those authors to be limited to a maximum of 28 years. (Actually, Jefferson’s preference, quoted above, would seem to be the absence of renewal terms of any length.)

So it is sadly ironic that today’s U.S. Congress, confronted with the lobbying pressures from the equivalent of Britain’s 17th Century booksellers and printers, has repeatedly given in to those pressures rather than providing some measure of the resistance Parliament was able to muster.

Who Cares?

Those who pressured Congress (with the additional millions in campaign contributions, some would charge “paid Congress”13) for the 1998 act’s extensions of prior extensions were primarily representatives of the major, global corporations – and their trade associations – engaged in profiting from intellectual property. This includes motion picture studios, recording companies, and book publishers -- in short, the modern equivalent of the booksellers and printers of old.

Indeed, because of Disney’s effort to extend its copyright protection for early Mickey Mouse cartoons, the bill was sometimes referred to by its opponents as the “Mickey Mouse Protection Act.”14

These companies and industries have legitimate concerns about outright theft of their intellectual property.

Suppose a movie studio executive has invested $80 million in a motion picture. Before he can even get his film into American theaters he gets reports that it is selling on the streets of major cities around the world in the form of unauthorized videotapes. It would be understandable if he becomes a little upset.

But this concern – the theft and sale of very popular and valuable commercial intellectual property – normally involves products that are copyright, and well within their original grant for “limited times.”

If one considers the total quantity of copyright material, there are simply not that many examples of books, music or films, that are still producing substantial cash flow for owners well into that original term. The number that are doing so throughout a renewal term are fewer still.

When a firm does own such a property, however, it is also understandable why it would like to keep that revenue stream flowing. The law may or may not permit the copyright extension. There may be good public policy reasons for continuing the owner's monopoly – or not. But the desire is at least understandable – as with Disney’s efforts to continue the cash flow from Mickey Mouse.

One of the problems with the CTEA’s broad remedy, however, is precisely its breadth. Although the CTEA has economic consequences for the owners of two percent of the copyrights, it is a severe restriction on the public’s access to the other 98 percent as well.

As the plaintiffs’ counsel of record, Lawrence Lessig, recites, there were 3,350,000 copyright registrations between 1923 and 1942 (a period of relevance to the CTEA’s retroactive extensions). The owners of no more than 425,000 of these (or 13 percent) even bothered to apply for a renewal term. Thus, we can assume the other nearly three million owners had either long since stopped receiving any remuneration from the original work, or were quite willing to have it become part of the public domain.

And of these 425,000, only 49,000 – less than two percent of the original 3.35 million – represent books, music and films that continue to earn royalties.15

So what’s the problem? Suppose someone wants to use a bit of material still protected by copyright that has long since ceased to produce any revenue for the owner. Why would that owner not grant permission? That being the case, what’s wrong with requiring that the new user go through the formality (and courtesy) of asking for, and getting, that permission?

What’s wrong arises in at least three contexts.

Consider the plaintiffs in Eldred.16

Eric Eldred, the lead petitioner, founded Eldritch Press17 in 1995. He creates free versions of public domain books which he then posts to the Web.

Dover Publications reprints, in high quality paperback form, books in the public domain, including fiction and children’s books.

Luck’s Music Library and Edwin F. Kalmus & Co. trade in classical orchestral sheet music.

Just because of the costs of tracking down copyright owners, Higginson Book Company waits for them to enter the public domain. Tri-Horn International has a similar problem with its books about golf history.

One of the most compelling cases is that of the American Film Heritage Association and Moviecraft, Inc. The former is a non-profit group devoted to the physical preservation of old films. The latter is a related commercial firm engaged in film preservation.

Unlike most books, films exist neither in large numbers of multiple copies nor in a material form with a long life span. Films left too long without being either reproduced or otherwise preserved, can disintegrate into dust and be lost forever.

Thus, to extend the copyright term on a film – when the copyright owner is either unknown, can’t be tracked down, or the cost of doing so is prohibitive – may well prove to be the film's death sentence.

Other Expansions of Copyright

Lengthening the potential term of copyright from 14 to 125 years is not the only way in which the restrictions of copyright have reduced the intellectual property commons called the public domain.

(a) In the 18th Century, the primary protection afforded by the copyright laws was for books and pamphlets. It created the ability of one printer to prevent another from resetting a work in type, printing copies, and selling them to the detriment of the first printer's potential profit.

Today, the subject matter has been extended to include, among other things, "choreographic works," "motion pictures," "sound recordings" and "architectural works."18

(b) From the original exclusive right to reproduce and distribute (a printed work), the rights granted by copyright have expanded to include as well such things as the creation of "derivative works," and the display and performance of a musical or dramatic work.19

(c) From the original requirement that a printer "register" a book for copyright, or at least include a "copyright notice" somewhere within it, a copyright is now created "in original works of authorship fixed in any tangible medium of expression."20

In other words, every page of a student's notes, every doodle on a restaurant napkin, every e-mail stored on a hard drive, is "copyright" at the moment of creation -- since (if it's an "original work") a ball point pen's markings on a piece of paper constitutes something "fixed" in the "tangible medium of expression" we call paper.

The implications of this for the public domain -- or, rather, the exclusion by copyright from what would otherwise have been in the public domain -- are enormous. Copyright, once primarily the concern of the few who owned both printing presses and copyrights to hundreds of books, now covers the billions of creations of all of us.

And the impact of computers hasn't helped.

Digitization and the Internet

Digitization, computers, the Internet and World Wide Web, have really come to complicate copyright considerations.

My own experience in this regard involves three books that I wanted to scan and make available as links from my Web page. Two were books I had authored in the early 1970s: How to Talk Back to Your Television Set and Test Pattern for Living. The third was a book written by my deceased father in 1930: Because I Stutter. Each is long out of print. The original publishers had morphed into other corporate entities and had never expressed any interest in reprinting the books.

As it happened, in each case ultimately I was able to get a response from someone. Even if their authority was as unclear to them as it was to me, I had at least made a good faith effort. A person with some responsibility had been put on notice of what I intended to do. If the copying still involved risk of legal liability it was a risk I was willing to assume.

But isn’t that kind of silly? Why should there be any requirement for permission in such a case?

In each instance I owned such interest as the author, or author’s estate, might have in royalties from these books. The publishers (to the extent they could even be identified) had expressed no interest whatsoever in reprinting (or otherwise profiting) from them. All I wanted to do was to make the books  available, for free, to anyone who would still find their contents of interest or use. In no sense could my actions be characterized as selling someone else’s property in order to profit from it myself. Finally, judging by the number of hits they receive, the material seems to be serving at least enough purpose that others are willing to take the time to download it.

What generalizations can we draw from the current state of copyright, as impacted by the Internet -- including my experience? What proposals might we advance for improving the current state of the law?

Developing Some Modest Proposals

The increase in the range of materials subject to copyright, as well as the range of rights a copyright vests in the owner, are not the only multiple variables we must consider.

The range of potential copyright violations are also quite wide.

At one extreme are those who are making substantial profit by copying, and selling, the entirety of the individual works of others -- for example, the books,  videotapes, music CDs and computer software the relevant industries assert is costing them billions of dollars.

At the other extreme are many examples of de minimus violations, reasonably implied consent, or what is actually statutorily protected as "fair use."

For example, every visit to another's Web site involves copyright violations. The Webmaster's exclusive right to "display" the page is violated as soon as it pops up on the viewer's screen. Simultaneously, it is being "reproduced" in cache on the viewer's hard drive. Obviously, if it is purposely saved to the hard drive, copied again to a floppy, printed out, or e-mailed to a friend as an attachment, those are additional violations.

As a practical matter, it is not much of a stretch to say that any creator of a Web page (a) knows that viewers will do these things, (b) may even be using meta tags or listing the page with search engines in an effort to increase the number of such "hits," and (c) has therefore provided users his implied consent that they do so.21

The fact remains, however, that it is very likely no express license provides viewers such rights, and that since the page has been "fixed in a tangible medium" (a hard drive) it is copyright. Obviously, extending the term of that copyright just makes matters worse.22

In between de minimus and outright, multi-billion-dollar theft, are the hundreds of fact situations involved in hundreds of years of copyright litigation that must be left to a semester-long course in copyright law.

Fair Use

No discussion of copyright, even a simplistic overview, would be complete without at least some reference to the doctrine of “fair use.” Fair use refers to the copyright law’s provision that there are some uses of copyrighted material, under some conditions, that are statutorily declared to be “not an infringement of copyright.”23

The contemplated contexts enumerated include “teaching” and “scholarship” and “news reporting” and “criticism.” Among the four factors to be considered are “the nature” of the work and “the portion used.” Fiction and works of art are given somewhat more protection than non-fiction and factual accounts.24

“The portion used” by anyone necessarily ranges between the entirety of the work and a de minimus quotation of a word or two. Not surprisingly, the amount that will be found by a court to have been within “fair use” will vary with the circumstances and contexts. For example, The Nation magazine’s use of 300 words from former President Ford’s 200,000-word book, A Time to Heal – a quantity one would think normally well within the bounds of fair use – was found not to be “fair use,” in part because it constituted “the heart of the work.”25

The two factors given greatest weight, however, are the first and fourth – both of which relate to the economic impact of the use. The first includes an examination of “whether such use is of a commercial nature.” The fourth refers to the effect upon “the potential market for or value of” the work.26

Do these two factors, itemized within the fair use provisions of section 107, provide a precedent, an opening, to a possible policy resolution of the interests represented by the combatants in the Eldred case?

Parties and Philosophies

(1) At the risk of overstating their position, today’s “booksellers and printers” – the global, muti-media conglomerates that own most of the world’s most valuable copyrights – view as ideal, and seem to be working toward, the 16th Century position of their predecessors: copyrights in perpetuity. From their corporate, profit-maximizing perspective, all intellectual property should be owned, and the means found to charge all the users of it as much as the market will bear.

(2) At the other end of the continuum are the anarchists and hackers who seemingly believe that all intellectual property should be theirs for the taking, and that copyright laws should be ignored until they can be repealed.

(3) Shy of that extreme position are individuals, most of whom have never even been tempted to steal physical property from a store or other owner, who nonetheless think – or at least act – as if intellectual property is different.

And it is. Steal my car and I have to walk. Make a copy of my copyrighted book or CD and I can still read and listen to music.

We are taught to share from the time we are in kindergarten. To loan books – even cars and clothes – to one’s friends is considered a friendly, socially positive thing to do. Now, with digitally encoded music, videos or computer software, it is often easier to make a copy for a friend than to loan the original and maybe not get it back.

Moreover, it sometimes happens that the more a bit of intellectual property is stolen (shared) the more valuable it becomes.

The concept of “shareware” makes the point. Corporations develop, and sell, computer software. If you want it you have to buy it – often only to discover it isn’t what you thought. Some others, individuals who write computer programs, make a living by giving it away and encouraging users to copy and share it as widely as possible. How do they make a living? They ask for contributions of, say $25, from anyone who likes and regularly uses the program. This can produce as much as $100,000 or more a year. Users respond positively to what they consider this more reasonable marketing method.

The Grateful Dead encouraged, rather than forbid, their fans to make recordings of concerts. This not only developed a loyal following of appreciative fans, it also increased revenues from concerts and CD sales.27

The irony of programs as “property” was brought home by the instructions in the software manuals of the 1980s. They opened with stern warnings about the illegality of copying the software. But the very next page of instructions would contain the advice, and instructions, on why and how to make backup copies on floppies.

Of course, it is one thing to “violate copyright” when the owner is authorizing you to do so. It is quite another when he is not.

The point is simply that intellectual property really is different, in a variety of ways, from physical property. It is easy to copy. Copying does not physically “take” anything from the owner as a result of the copying. (There is, of course, the possibility of lost future revenue – but only if it can be shown that, but for the copying, there would have been a sale in fact. This is often not the case.) Users are sometimes authorized to make copies. And it is understandable that there would be some confusion about the matter – even among those with a vague awareness that what they are doing is wrong.

 (4) There is a fourth group. It includes individuals who believe the Internet and Web are human creations with orders of magnitude more potential for global education and democracy than anything that has come before.28

They believe that one of the central features of the Internet’s value is that its content is free, that it exists as an intellectual property commons – much as the drafters viewed the purpose of copyright in the Statute of Anne and the 1790 Act – acts “for the encouragement of learning.”

That doesn’t mean they are cyberterrorists, willing to steal, and post, copyright material of commercial value more for ideological purposes than for the utility of the content. It does mean that these individuals contribute to the Internet. They share with the world’s cybercitizens not only their own creations, but those of others they take the time to scan, or otherwise copy, and post. They regularly search the two billion-plus pages on the Web for data, information, opinion and creative works they find useful in their own research and writing – or just daily living.

A Possible Solution

How can these various interests and philosophies be reconciled? Perhaps they can’t. Nor is this the time and place to lay out the details of a solution even if it was clear what they were.

But this much now does seem clear.

We cannot rely alone on distinctions involving the commercial purposes of the user.

For example, some musicians want their music to be available for free over the Internet – whether entire CDs, an individual cut or two, or merely brief excerpts from those cuts. This can be a profitable marketing model, especially for new groups, and an end-around the recording studios.

Other studios and musicians do not.

For users to prepare and file-share their music – a sort of Robin Hood theft and distribution of musical wealth to unknown strangers – is no less a violation of owners’ rights because the property is redistributed for free not fee.

However, we can distinguish between the widespread availability and use of copyrighted works of substantial commercial value, primarily used for commercial purposes, and the availability and use of works the value of which is other than commercial. To some extent, this is already done in the fair use provisions of section 107. So there is precedent for it in copyright law. And we should make every effort to modify that law as necessary to expand and encourage, rather than discourage, the non-commercial uses of copyrighted material.

The Supreme Court said as much in the Sony case:

[A] use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect ther author’s incentive to create. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing benefit.29
It’s not clear what can be done about Mickey Mouse – or even what should be. When millions of dollars can be spent on lobbying and campaign contributions to protect the hundreds of millions of dollars that come from highly commercial properties, the task of resistance is daunting.

It is at best ironic that, but for the earlier limits on copyright – limits Disney now opposes – it never could have profited from “Snow White and the Seven Dwarfs,” and the numerous other folktales and stories in the public domain that contributed to its becoming a multi-billion-dollar enterprise.30  As plaintiff’s lead counsel, Lawrence Lessig, puts it, as a result of Disney’s successful efforts to obtain the extensions of the CTEA, now “no one can do to Disney as Disney did to the Brothers Grimm.”31

But it is also true that Disney has made its own substantial investment in Mickey Mouse, and its other properties, over the years. It does seem somehow wrong that someone should now be able to come along and appropriate those properties to his own profit.

But those interests have been, and will be, worked out in Congress and the Supreme Court.

The issue left for the rest of us is how we can maximize the contribution of that 98 percent of copyright material that could provide far more benefit to humanity – at little or no loss to the “owners” – if it were part of the intellectual property commons, the public domain.

For example, consistent with the Court’s comment in Sony, set forth above, why should there be any limitation at all on an individual’s posting to the Web otherwise copyrighted material if (a) the one doing the posting derives no commercial benefit from doing so, and (b) she can reasonably conclude that the adverse economic impact on the “owner” is somewhere between de minimus and none at all.

A copyrighted book that is still in print, in bookstores, and can be easily ordered when not, should be, and is now, entitled to protection. A book that, although still under copyright, has been out of print for years and shows no likelihood of being reprinted, is now, but should not be, accorded the same protection. A newspaper archive of all the stories in, say, the New York Times over a period of years is of value. But an individual who posts a single story from a prior issue is unlikely to affect either the number of Times subscriptions or the value of its archive.

For those who do profit from the use of relatively valueless copyright material, the user could be charged a minimal compulsory copyright fee. (It could be calculated on the basis of the substantiality of the contribution of the material used as a proportion of the new work, and as a percentage of the gross revenue from the use.) Without requiring the user to track down the copyright owner, the money could be paid to the Copyright Office. If the owner never comes forward to claim it, the funds could revert to that Office after a period of years.

To prevent such uses entirely, or charge higher, negotiated, fees, the copyright owner of a generally unavailable work would bear the burden of proof that its “market” or “value” had (or would be) significantly harmed by the use. The goal would be to encourage the uses envisioned by the drafters of the constitutional provision and the 1790 Act. Dog-in-the-manger hoarding32  would not be legally protected.33

Obviously, these and other proposals need a great deal more thought and work. But however the Supreme Court may resolve the issues in the Eldred case, that work will still lie before us.


1.  The U.S. Court of Appeals opinion below is published at 239 F.3d 372 (D.C. Cir. 2001), petition for rehearing,and rehearing en banc, denied, 255 F.3d 849 (D.C. Cir. 2001). The federal district court’s memorandum opinion is found at 74 F.Supp.2d 1 (1999).

2.   Sonny Bono Copyright Term Extension Act (CTEA), Pub. L. No. 105-298, Title I, 112 Stat. 2827-28 (amending 17 U.S.C. secs. 302, 304).

3.   "The Congress shall have 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." U.S. Const. art. I, sec. 8, cl. 8.

4.   Brief for Petitioners, p. 15, n. 4.

5.   An act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned. Sec. 1, ch. 15, 1 Stat. 124 (1790). An Act for the Encouragment of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned, 8 Anne, ch. 19 (1710) (Eng.). From Brief Amici Curiae of Tyler T. Ochoa, et al., in Support of Petitioners (hereinafter "Ochoa Brief"), p. 3, nn. 4 and 5.

6.   Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) (holding plaintiff's telephone book not entitled to copyright protection against defendant's copying because plaintiff's efforts in arranging the entries alphabetically by last name did not contribute sufficient originality to qualify for copyright).

7.   "Congress shall make no law . . . abridging the freedom of speech, or of the press . . .." U.S. Const. amend. I.

8.   “Copyright Extension Law Argued Before Supreme Court,” AP, Oct. 9, 2002,2933,65221,00.html (last visited Oct. 24, 2002). As for the relevance of the fact it “flies directly in the face of what the framers . . . had in mind,” Justice O’Connor continued, “but is it unconstitutional?”

9.   “An Abuse of Copyright,” The New York Times, Oct. 11, 2002 (last visited Oct. 22. 2002). The Washington Post headlined, “Copyrights and Wrongs,” The Washington Post, Oct. 16, 2002, p. A24 (last visited Oct. 24, 2002). For links to these and other published comments, see Lawrence Lessig, Stanford Law School (last visited Oct. 24, 2002).

10.   The historical description which follows is drawn from the Ochoa Brief generally.

11.   Quoted from James Madison, Notes of Debates in the Federal Convention of 1787 (Ohio Univ. Press 1966) in Ochoa Brief, p. 14.

12.   Letter from Jefferson to Madison (Aug. 28, 1789), in 15 The Papers of Thomas Jefferson 367-68 (Princeton 1958), quoted in Ochoa Brief, p. 18, n. 69.

13.   The contributions reportedly totaled over $6 million and included $1.5 million from Disney alone. See generally, Hal Plotkin, “Free Mickey: Stanford Law Professor Seeks to Overturn the Sonny Bono Copyright Extension Act,” SF Gate, Sep. 26, 2002 (last visited Oct. 17, 2002); Dennis Karjala, “Judicial Review of Copyright Term Extension Legislation,” 36 Loyola L.Rev. 199, 232 n. 121 (2002), [pdf p. 34] (last visited Oct. 24, 2002); Tyler T. Ochoa, “Patent andd Copyright Term Extension and the Constitution: A Historical Perspective,” (Mar. 6, 2002) (last visited Oct. 24, 2002).

14.   Michael May, “Fighting the Mickey Mouse Protection Act,” TomPaine.common sense: A Public Interest Journal, (last visited Oct. 17, 2002).

15.   Brief for Petitioners, p. 7.

16.    The following descriptive references to petitioners is drawn from Brief for Petitioners, pp. 3-6.

17. (last visited Oct. 24, 2002).

18.   17 U.S.C. sec. 102. (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (a) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

19.   17 U.S.C. sec. 106. "Subject to sections 107 through 120, the owner of a copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission."

20.   See 17 U.S.C. sec. 102, note 18, supra.

21.   And how should the law of copyright deal with "linking"? Assume two Web sites, and two Webmasters, A and B. Should it be legal for A to highlight a bit of text or other object on his Web page which, when “clicked” on by a user’s mouse, will take that user directly to B’s site?  It seems reasonable to assume B has granted A the implied consent to link to her site. After all, it will only increase the number of hits on B’s site – something she is trying to encourage.

As an illustration of how totally different Web “publishing” is from conventional publishing, however, what if A’s link goes, not to B’s opening main page, but directly to a document located deep within the directory structure at B’s site? This is called “deep linking.”

So what’s the problem? The problem is that such a link bypasses the Web page B wants users to see before using her links to reach that document and any other pages she may make available. B’s main Web page may contain advertising that provides B revenue only if a user hits on the main page. It may contain links to other material users might find of interest, and that B would like for them to know about.

Deep linking is, in other words, the Internet’s equivalent of a hard copy book’s footnotes. Were a reader to use a book’s footnotes, and go directly to the page cited, the reader would not necessarily see the title page, or table of contents of the referenced source. The difference, of course, and one of the more wonderful qualities of the Internet, is that a Web document’s “footnote” can take the reader not only to the citation to supporting authority, but to the full text of that authority with a simple click – rather than a trip to the library, or the wait for an interlibrary loan.

Not withstanding its benefits, however, deep linking has been a cause for copyright controversy. See, e.g., Madeleine Schachter, Law of Internet Speech 498-505 (2001).

22.   Professor Lawrence Lessig, plaintiffs’ lead counsel in Eldred, is also the creator of a partial solution to this problem that offers a Web page creator the free use of a simple set of abbreviations of alternative copyright licensing provisions. For more information, see the Creative Commons, (last visited Oct. 17, 2002). (“These licenses will help you tell others that your works are free for copying and other uses – but only on certain conditions.”)

23.   17 U.S.C. sec. 107. “Notwithstanding the provisions of sections 106 and 106A the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include – (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

24.   “The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.” Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), IV.

25.   Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).

26.   See note 23, supra.

27.   “The Deadheads were notorious for making bootleg copies of concerts for themselves and their friends. The practice was sanctioned by the band members, who knew that it helped create more, not less, interest in their concerts.” Carl M. Cannon, “Cybertarians at the Gate,” National Journal, Sep. 7, 2002, p. 2540, 2541. Michael May reports, “[Rick] Prelinger knows firsthand that giving away older material won’t kill a business. Since 1996, his Web site,, has been giving away educational, commercial, and amateur films from the American past. . . . ‘For a long time, I followed a model of scarcity,’ says Prelinger. ‘I figured that the more control I had over these films, the more valuable they would be. In fact, the opposite has proven to be true, the site has attracted paying customers for my other films, or those wanting higher quality copies than can be downloaded.’” Michael May, “Fighting The Mickey Mouse Protection Act: A Copyright Law That Favors Corporations Over Creativity,” TomPaine.common sense: A Public Interest Journal, (last visited Oct. 17, 2002).

28.   Members of this group may or may not also engage in file sharing of cuts from music CDs, or other illegal use of intellectual property of commercial value. But that is not their primary interest or activity.

29.   Sony Corp. v. Universal City Studios, 464 U.S. 417, 450-51 (1984).

30.   “What makes this sorry tale even more ironic is that the Disney Corporation’s fortune was itself built largely from commercially successful animated reproductions of free public domain works from the 19th Century, including Alice in Wonderland, Snow White and the Seven Dwarfs, Pinocchio, Cinderella, The Hunchback of Notre Dame, and The Jungle Book.” Hal Plotkin, “Free Mickey: Stanford Law Professor Seeks to Overturn the Sonny Bono Copyright Extension Act,” SF Gate, Sep. 26, 2002 (last visited Oct. 17, 2002).

31.   Steven Levy, “Lawrence Lessig’s Supreme Showdown,” Wired, Issue 10-10, Oct. 2002 (last visited Oct. 17, 2002).

32.  "A dog was lying in a Manger on the hay which had been put there for the cattle, and when they came and tried to eat, he growled and snapped at them and wouldn't let them get at their food. 'What a selfish beast,' said one of them to his companions; 'he can't eat himself and yet he won't let those eat who can.'"

"Moral: People often begrudge others what they cannot enjoy themselves."

The Dog in the Manger: An Aesop Fable, Ongoing Tales, Old Time Fairy Tales (Antelope Publishing Children's Electronic Books), (last visited Oct. 23, 2002).

33.   It may be too soon to conclude, however, as the saying has it, “That dog won’t hunt.” Michael May quotes Rick Prelinger: “’For example, how much money do you think Disney can make off its racist World War II cartoons?’ asks Rick Prelinger, who owns the copyrights to more than 45,000 films. ‘They are practically worthless. But it looks good on the balance sheet to overvalue them, and keep the exclusive rights. If they are scrutinized, these guys could be the Enrons of the entertainment industry.’” Michael May, “Fighting The Mickey Mouse Protection Act: A Copyright Law That Favors Corporations Over Creativity,” TomPaine.common sense: A Public Interest Journal,

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