Library Juice Copyright Supplement

This week, Library Juice issued a pathfinder on copyright issues as a supplement. It inludes links to numerous articles and sites you may not have seen if you are interested in copyright, and a full article by Mark Anderson from EXTRA!, which I am copying here, with permission:When Copyright Goes Wrong

From advancing knowledge to protecting property

By Mark K. Anderson

EXTRA! May/June, 2000 Vol. 13, No. 3

Think fast: Why do we have copyright?

If you responded that the reason for intellectual property laws is to
protect creators from theft and piracy, then your answer is certainly in
accordance with prevailing media coverage of copyright, trademark, and
patent issues today. However, according to the Constitution, it\'s also

In Article I, Section 8, Congress is given power to \"secur(e) for limited
times to authors and inventors the exclusive right to their respective
writings and discoveries.\" But unlike any other assignation of
legislative rights or duties in the Constitution, the copyright clause
also explicitly lays out why Congress is being granted the power in
question: \"To promote the progress of science (i.e. knowledge) and the
useful arts.\"

That is, the Constitution dictates that government create a body of legal
code that awards temporary monopolies to creators in order to encourage
them to create. There\'s now a growing chorus of American voices, though,
who charge that Congress has lost sight of its constitutional mandate, and
is instead so tightening intellectual property restrictions that it
effectively inhibits the progress of science and the useful arts.

\"It\'s always important to remember that coyright is a restriction on free
speech, and it\'s a constitutionally granted restriction on free speech,\"
said Siva Vaidhyanathan, faculty fellow at New York University and author
of the forthcoming book, _Copyrights and Copywrongs: How Corporate
Copyright Threatens Creativity and Free Speech in America_. \"Therefore,
we need to be careful when we play wih copyright, because it can have some
serious effects on public discourse and creativity.\"

Such recen legislation as the Digital Millenium Copyright Act (1998), the
Sonny Bono Copyright Extension Act (1998) and the No Electronic Theft Act
(1997) have all extended the power and duration of copyright
protections. (The latter two laws were, it should be noted, upheld by a
federal district court in Washington, D.C. last year.)

The 1998 copyright extension tacked on 20 more years to copyright -
meaning works for hire are given 95 years before hitting the public
domain, while anything copyrighted by an individual continues to belong to
her estate for 70 years after her death. Whether or not these provisoins
remain within the realm of the constitutionally mandated \"limited time\"
has been the subject of much debate in recent years.

Now on appeal at the Washington, D.C. Federal Circuit Court is the case of
Eldred v. Reno, in which five plaintiffs have challenged the
constitutionality of the recent copyright extensions. They charge that,
in ratcheting up the maximum copyright term 11 times from 59 years in 1962
to 95 years in 1998 - that is, 36 years in 36 years - Congress has been
playing a carrot-on-a-stick game with copyrights. In the words of the
complaint, \"While formally, under each of these extensions, the term is
limited, the practice of continually extending copyright terms
retroacively means that Congress, in effect, is granting copyright holders
more than a \'limited term.\'\"

Ceasing and desisting

The universality of patents, copyrights and trademarks is another area of
concern. The satirical weekly paper The Onion (3/26/98) was only joking
when it reported that \"Microsoft Patents Ones, Zeroes.\" But NYU\'s
Vaidhyanathan is far from alone in his concern that America has veered too
far toward such a technocratic dystopia.

Take the case of the Evolution Control Committee, an Ohio multimedia
group. Two years ago this trio produced a 7\" vinyl record that spoofed
the hyper-violence of the evening news by cuting and pasting together a
series of Dan Rather soundbites and CBS Evening News theme songs into a
montage of death-and-destriction non-sequiturs. Last January, a lawyer
from CBS sent a cease and desist letter to the ECC\'s record label, Eerie
Materials, claiming the single (\"Rocked By Rape\" - the Dan Ratherism that
forms the song\'s chorus) violated CBS\'s intellectual property rights.
Although the label potentially had a fighting chance in court - the
Supreme Court ruled in 1994 that parody is a protected form of fair use -
Eerie instead opted to cave in to CBS\'s demands. (At press time the ECC
was continuing to offer the work via its website, .)

In 1998, the New York RAcing Association sued equine artist Jeness Cortez
for violating its intellectual property rights by including its Saratoga
racetrack in her paintings, and in a separate action a company that owned
the racehorse Cigar sued her for painting the horse\'s likeness. While a
protracted legal battle came out in her favor, the experience was enough
to lead Cortez to quit her profession, citing, as she told the Albany
Times Union (9/1/98), \"a lot of legal bellyaches and bills from NYRA and
disdainful treatment.\"

In the case of Prof. David Stowe of Michigan State University, who sought
to study 1940\'s cartoons from Down Beat magazine for their sexual and
racial stereotypes, court action was not even needed. In a move that\'s
becoming increasingly common in academic circles today, the magazine
refused to grant Stowe permission for fear that his study would make the
publication look bad. Although Stowe may have ultimately had he law on
his side - the legal definition of \"fai use\" in the Copyright Act of 1976
allows for scholarsly study of otherwise copyright-protected materials -
the legal costs and headaches were too prohibitive to consider pursuing
such work.

As a final example, las January Norwegian police arrested 16-year-old
programmer Jon Johansen. He had developed a program to play DVD video
discs on a Linux computer system - which the DVD industry has to date
refused to support. However, for breaking DVD encryption to create an
\"interoperable\" platform - a legal procedure under the Digital Millenium
Copyright Act - he was arrested for copyright violation. U.S. District
Judge Lewis Kaplan granted a preliminary injunction against distributing
his program over the internet.

Favoring the established

A piece of music, a painter\'s career, a scholar\'s study, a computer
program. Each of these losses to society, taken one by one, may not be
considered cause for great public concern. But as part of an emerging
pattern - and there are hundreds more of these individual cases - they
suggest that despite the anti-piracy rhetoric that frames most media
discussions of intellectual property protections today, the real problem
with copyright is that Congress has forsaken its constitutional charge.

\"What happens is our copyright laws, in general, favor the established and
hurt the emerging,\" Vaidhyanathan said. \"They favor the old guy and hurt
the new guy.\"

The public has forgotten that America originally was a nation of copyright
pirates - the leaflets and pamphlets that spurred the Revolutionary War
were typically underground publications that violated colonial copyright
provisions. The fact that America is now a nation that enshrines
copyright zealotry stems in part from the rhetorical shift that has taken
place over the last 100 years. We no longer speak of copyrights as
government-granted monopolies - which carries a negative, miserly

\"In the 20th Century, the rhetoric of copyright is all about property,\"
Vaidhyanathan said. \"And when the rhetoric is about property, the
argument ends. No one can be for theft. And therfore it\'s impossible to
have a really intelligent, sensitive and fruitful discussion in public
about what sort of copyright system would be best for us. Instead you
have very emotional gestures toward ownership, like \'That\'s my song.\'\"

Critics of copyright extremism do not argue for elimination of copyrights;
they instead seek a balance of public access vs. private ownership more in
accordance with the Constitution\'s expressed intentions.

As Paul Rapp, the lawyer who defended Cortz against the New York Racing
Association, put it, \"Unless government comes in with a heavy hand and
starts erecting walls, I think this whole thing is going to take place
outside of the courts. People from time to time will ge thrown in jail
for doing something wacky. But I\'ve got a feeling that it\'s going to take
place in an extralegal and virtual realm.\"

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