Larry Lessig has been getting hammered online for a column in which, while calling The Grey Album a Gray Area, he nevertheless approved of its creation. (There are over half as many links to the item as there are to this entire blog.)
The "Creative Commons License" (which Lessig has pushed on his site) does allow creators to forbid "derivative works," so analysts like Scott Mathews were quick to scream "hypocrite."
Many of Lessig's own commentaries on the law make heavy use of recent decisions and discussions. But I'm no lawyer. My question is, "What Would Jefferson Say?"
Jefferson, it should be noted, was not in Philadelphia to debate the Constitution. He was serving as Ambassador to France. But he and James Madison, who had more of a hand in the crafting of the document than anyone else, carried on a full correspondence. Jefferson's view was that copyright is a "monopoly," and he wanted such rights strictly limited within the document. (The photo of Jefferson on Mt. Rushmore is from a PBS Special on Jefferson's black descendants.)
"The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of fourteen years; but the benefit of even limited monopolies is too doubtful to be opposed to that of their general suppression." In other words, Jefferson approved of copyright and patent rights, but wanted their terms strictly limited.
Much later, while President himself, he wrote this to Isaac MacPherson:
"Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody... The exclusive right to invention [is] given not of natural right, but for the benefit of society."
The very idea of copyright was a compromise. It's a monopoly given as an incentive to create more. It is not a "natural right," as is, say, your right to freedom of conscience.
To the extent that copyright extends beyond limited terms, to the extent that it limits new art, it becomes not a copyright but a copywrong. There is no doubt whatsoever in my mind that this is the case, not just with EMI's attempts to suppress the Grey Album, but to the 1998 copyright law revisions generally -- both the Bono Copyright Extension and the DMCA.
A conservative jurist, one who cared about "original intent" as something real, not just another way of getting to where they want to go (as it is with, say, Antonin Scalia), would declare the Grey Album legal, and the 1998 Acts illegal. Between Lessig the Grey and Jefferson the White, I prefer Jefferson the White.
Nice obligatory cheap shot at Scalia. Clearly you agree with Stevens' dissent in Eldred. What would you say about Ginsburg's rebuttal of that point: (a) that even though the Supreme Court had never looked at copyright extension, individual justices had in cases where they sat as circuit judges, and (b) Congress retroactively extended existing copyrights to simultaneously bring them into parity with new copyrights.
-Brad
Permalink to CommentIf principles are to mean anything, they retain their meaning even when the result of using that principle goes against your policy thesis.
Otherwise, they're cloaks we wear to mask our intentions.
So if you're going to claim adherence to "original intent" as a principle, then you apply it in all situations, even Eldred.
Or, if you're honest, you admit to having no principles.
Permalink to CommentIt's an argument. Note how it's based on actions of Congress, not the Constitution. Or what the Founders intended. Which is supposed to be what the conservative doctrine of "original intent" was all about.
I guess that's "not operative" when the result isn't what the politicians want. Which is why I have a hard time putting the terms "principle" and any particular politician (even a Supreme Court justice) together in the same sentence without cackling hysterically.
Permalink to CommentThis is Scott Matthews, and I do hope that you didn't read my questions on this topic as a "scream." The original letter to Dave Farber's IP list can be found here:
http://www.interesting-people.org/archives/interesting-people/200403/msg00051.html
I just wanted to add that I'm unclear about the benefit of discussions of "natural law" when it comes to copyright -- for example, if I were to make and sell unauthorized copies of an independent's work (regardless of term), would "natural law" speak to that?
In any case, thanks for taking an interest.
-Scott
Permalink to CommentDana... What percentage of US exports do IP products account for? Do you think that strong IP protections at home and ongoing pressure on other countries to comply with the minimum terms of the Berne convention and crack down on piracy are important to the US's role in the global economy?
Curious... -Brad
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