October 9 is the day the U.S. Supreme Court has set aside to hear arguments
in the case known as "Eldred vs. Ashcroft." The subject of the case - a 20
year extension to copyright protection - may seem obscure, but the outcome
of this case may well change the shape of copyright law (and intellectual
property law in general) in the U.S. for a long time.
The specific details of this case are as follows. Eric Eldred operates the
Eldritch Press, a collection of
books which are in the public domain. Mr. Eldred's plans to add a number
of new works, including poems by Robert Frost, were thwarted by the "Sonny
Bono Copyright Term Extension Act," which added twenty years to copyright
terms. Works that were in the public domain were suddenly brought back
under copyright protection, and thus could no longer be posted publicly.
And works that were about to enter the public domain - the famous example
(and seeming motivation for the copyright extension) being Micky Mouse -
now will not for another two decades.
Constitution describes the congressional power to regulate intellectual
property in typical, terse fashion:
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
The key points here are (1) the statement that promoting the progress of
science and the arts is the purpose of granting a monopoly right to
intellectual property, and (2) the phrase "limited times." The
plaintiffs in Eldred vs. Ashcroft (the case is being argued by none other
than Lawrence Lessig) are making the claim that the new, longer copyright
terms go beyond any reasonable "limited time," and that they no longer
promote the creation of new works. After all, the authors whose works
benefit from the extra 20 years of protection are dead; even the strongest
economic incentives are unlikely to motivate them to produce anything of
any interesting quality. The plaintiffs in this case are asking the court
to rule that the Congress has exceeded its constitutional authority in
making this law, and that the law should thus be void.
The Supreme Court is an unpredictable institution; it could do almost
anything in response to this case. It is also a slow institution. The
case will be argued on the 9th, but the eventual ruling will not be heard
until sometime next year.
How is all of this relevant to free software? There is an ongoing push in
the U.S. to establish absolute control over ideas in many forms. As
Mr. Lessig has argued many times, the concept of an intellectual commons,
with ideas available to all, is being pushed aside. But that commons is
the source of much that intellectual property owners want to protect.
Disney took "The Little Mermaid" from the commons, but wants to hold on to
its rather less gory version forever.
Free software benefits from a deep commons of shared ideas and code. Those
who feel threatened by free software would like to fight it by withholding
ideas from that commons. Whether the issue is file formats, network
protocols, or patented algorithms, the problem is the same: monopolies on
ideas reduce the commons from which free software developers can draw. The
expansion of intellectual property monopolies in the U.S. has gone
unchallenged for years, with results like copyright extension, the DMCA,
and future delights like the CBDTPA.
Eldred vs. Ashcroft has the potential to put limits on the expansion of
intellectual property law and the fencing off of the intellectual commons.
It could be the turning point in this battle - but it could turn in either
direction. We can only wish the best of luck to the plaintiffs in this
fight, and thank them for making the effort.
(See also: the Eldred vs. Ashcroft page).
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