Looking at it another way…

     This first portion of Netanel’s text describes in brief some of the collisions between the copyright law and the First Amendment. In offering peppered examples of potential tensions without adopting solid theory of the First Amendment’s bounds, and by holding the normative discussion to later chapters he renders his first three chapters largely immune to strong criticism, simply because we aren’t sure what his arguments are yet. That being said, I’ll take a moment to discuss some of my own thoughts on copyright and free speech in the context of Netanel’s text.

Maybe Not the Most Popular of Views

     I’ll premise this by stating that I don’t have a First Amendment background, so the suggestions I offer here are very likely very wide from the mark of current First Amendment jurisprudence. I write this section because after reading Netanel’s text, I wasn’t terribly compelled by the anecdotes he offers to win us over to this side. Its not that I think he’s wrong necessarily, but the following describes why I was not particularly moved.

     That being said, it might be useful to divide the issues of one example: the Mickey Mouse Air Pirates. How we frame the First Amendment Question seems critical in the analysis of how far it ought to reach into copyright’s domain. Netanel might conflate the two a bit overmuch, but again it’s hard to tell since he hasn’t adopted a particular theory of the First Amendment. I suggest looking at the First Amendment implications as containing at least two separate levels of concern.

     Borrowing a bit from Copyright to interpret the First Amendment, I think we should focus on the difference between ideas and expression. In the case of the Air Pirates we have at the idea level a parodic critique of American values, a form of political speech or perhaps a matter of individual autonomy with strong First Amendment implications. On the other hand is what we can call perhaps pure copyright value- expression and fostering of the creativity for its own sake or more broadly the cultural benefit of society (this may have some first amendment concerns, but as pure expression I feel is distinctly weaker than protection of the ideas behind the expression).

     In this instance, forcing the authors of the comic to express their opinions by other means, or perhaps in a format more easily protected as a legitimate parody (although I’m not sure what the state of parody fair use was in the 70’s or the actual extent of copying engaged in by these authors) wouldn’t in an absolute sense necessarily do significant harm to the pure First Amendment concern if we conceive of it as protecting the content of ideas in their speech- content, which could still be communicated with less obvious references to Disney copyrights.

     The stronger issue implicated feels like the creative expressive side- creation for the sake of creation, which although arguably does have some strong First Amendment concerns insofar as we conceive of it as protecting individual autonomy or expression, rather than political discourse, these concerns don’t loom as large in my mind and are probably overshadowed by whatever we might have to say about moral rights of the first author. In instances where our expression threatens to step on the toes of an original author (or successor in interest), I think the First Amendment should not be too heavily concerned with how we are permitted to express our ideas, so long as we are able to communicate them.

     Actual instances where the idea and the expression are so intertwined that the idea is lost without the vehicle of expression borrowed from the first author, I think, would be a more compelling case, but also fewer in number. I make this assumption based on the lack of what I would call compelling examples provided by Netanel. Perhaps the translation of Mein Kampf by Cranston falls into this category, but that case is so unique in its historical context and of course he wasn’t prevented from printing his own anti-Nazi propaganda with less infringing material. Certainly, Else didn’t lose much of the creative or expressive value of his work by digitally removing 4.5 seconds of Homer Simpson.

     The reach and affect of the second author’s work may be diminished, but its essential core, its worth measured by the ideas in its content should largely remain unchanged. Essentially the loss seems more of a cultural loss in the form of a different (or even left unmade) creative work, rather than the loss of the value behind the ideas in their speech. It’s not clear to me why the law should organize itself around maximizing the efficacy of a given point of view, at the expense of value to the original author.

     Netanel may be suggesting that this would be a legitimate end of the First Amendment in his discussion of “Expressive Diversity” on pg. 40.  “A public discourse comprising multitudinous genres and formats but that, because of copyright, lacks sufficient opportunities for effective, oppositional expression would fail to meet the goal of expressive diversity”. [emphasis added]. 

     While I agree that a vibrant and diverse body of critical literature/film/etc. is preferable for a First Amendment concerned with fostering public discourse, but it seems like a step apart to go further and say that such preferences override the concerns at operation in the Copyright Act. His references to subsidized mail rates for newspapers (pg. 36) are interesting, but I’m not sure that those policy choices are necessarily rooted in the First Amendment as I am unfamiliar with the legislative history.  Furthermore, postal benefits were conferred by cross-subsidizing from the postage rates charged to everyone using the mail, rather than by forcing a small class of content producers to bear the burden, while only sharing in part of the benefit.  That situation is true with all government spending on some level, but in the case of copyright, the scale or ratio of disproportion is much higher.

     His point certainly isn’t invalid, I’m just not convinced we want to take the step of invoking the First Amendment as the vehicle to achieve the end, rather than a general policy preference.  However, since we don’t know yet how far he’s going to take his First Amendment argument, its hard to know what to say.
    

    Lastly to this point, I won’t assert, and hazard a guess that the position might be untenable under close scrutiny, that as an empirical matter most authors do need the powerful economic incentive to create provided by the Copyright Act’s long-running property right in original work. But I do offer up the suggestion (while leaving the duration of the right aside) that having strong property rights in copyrighted work does comport with our sense of entitlement to the fruits of one’s labor, possibly so much that we aren’t as concerned with the marginal instances of preventing some expressions from reaching the marketplace in a given form. If anywhere, I think the current system is most vulnerable to attack on grounds of duration.

Litigation

     The point on which I agree with Netanel most strongly is the problem of getting legitimate uses to market, that is to say the actual navigation of cease and desist or takedown orders by the legitimate user. A limited solution that made clearer the bounds of fair use does seem preferable to prevent the kind of chilling of speech powerful publishers can force on smaller content producers. My skepticism is limited to any broadening of the right- say to include Google’s, Cranston or Republic’s uses.

Give and Take

     Insofar as Netanel’s position is correct that copyright is stepping on the toes of the First Amendment, I think one interesting solution would be to move to a broader regime of compulsory licensing. Such a system is already in place for such things as cable television provider access to broadcast programming and a limited system is in place for musical compositions. It would seem a fair trade off in some circumstances, as it would dramatically reduce the shoe leather transaction costs of authors like Jon Else, and if tailored properly could reduce the actual cost of the license too.

     There certainly are a number of problems with such a scheme, but it seems to be effectively what he is advocating in referencing Else, Free Republic, Cranston and possibly Google (if indeed we were meant to sympathize with their position)- this or perhaps fair use as a matter of law, without a payment to the first copyright holder. I can agree that 4.5 seconds in the background of a documentary would warrant a finding of fair use, or should fit within a compulsory license regime, but I wonder about drawing of the boundaries for that system. I’m not sure how any rule could sweep up enough of the conduct he describes to fix the problem, without rendering itself susceptible at the margins to costly litigation over the boundaries, leaving us back where we started with fair use- letting powerful publishers threaten authors into not creating. At that point it almost seems a problem with our court system and financial inequities between potential parties. I’d love to see a solution though.

Free Speech and Long-running Copyright Control

     Largely ignored so far are the economic underpinnings of the Copyright Act. Whether or not FOX needs $10,000 as a minimum license fee from every minor user as an incentive to continue producing “The Simpsons” is probably answered in the negative. But it seems a legal fiction that we’re stuck with because we hesitate to say “you’ve made enough money already”.

     On that note, I think an area to attack the copyright law on speech oriented grounds, is against its duration- life plus seventy years is a rather long time. I won’t go into much detail since I don’t actually understand the economics behind it (I know Prof. Picker will have something to say on this note), but my sense is that in its current length, the actual economic incentive value of a copyright has nearly the same economic incentive as a perpetual copyright- even were we do dramatically reduce the term of years offered, the same statement would hold true. This is besides the point that it seems very few copyrights are relevant for that long. Apart from a few cartoons created in the early half of the 20th Century, it’s not clear that many copyrights need that much protection and the duration is chilling speech for the benefit of a few super-winners.

     This is what made The Wind Done Gone such a compelling example in my mind. It would be interesting to see in the discussion a proposal of rights that decay over time to reconcile the economic realities with the First Amendment concerns, rather than a uniform property right that simply expires in a form unchanged from its conception. I hope Netanel picks up on this point a bit later.

In sum

     Overall I think the text thus far is pretty good and doesn’t have much to say that is terribly controversial. I’m not sure that I agree with the particulars of what he is suggesting, but then given that we’re still uncertain as to his position, I don’t think I could be certain.

Comments

[Ross Tucker]

My understanding of the economic incentives from copyright terms is that the previous "life of the author + 50 years" captured all of the expected returns that authors would reasonably believe to obtain from their works (and I'm guessing that the previous 28 years + 28 year renewal probably captured most of the returns as well considering the short shelf life of most works). So tacking on another 20 years, we shouldn't expect authors to create anything that they wouldn't have created before. And of course, extending the extension retroactively to preexisting works doesn't incentivize any creation, unless we think that authors will write more books or produce more movies in the anticipation of future extensions (thinking that Congress will probably extend the copyright term again in 10 years when Disney's copyrights are close to expiration again). But we already established that extensions probably aren't incentivizing more creation.

One argument that I remember from the Eldridge case that I don't think gets discussed much in the book is that Congress, by extending copyright terms for existing works, is essentially creating a perpetual copyright (contrary to the Constitution's provision that authors' rights be secured "for limited times". The majority didn't seem concerned that Congress keeps extending copyright terms, even though Sonny Bono's widow, Mary Bono, talked about trying to grant a perpetual copyright. Unfortunately for her, the pesty Constitution got in the way:

"Actually, Sonny wanted the term of copyright protection to last forever. I am informed
by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti’s proposal for term to last forever less one day. Perhaps the Committee
may look at that next Congress."

(See http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=1998_record&position=all&page=H9952)

I'm just curious if Congress keeps extending copyright terms, would the Supreme Court ever sustain a challenge to these extensions? Would it go along with forever less one day? Life of the author plus 10,000 years? Why does life of the author plus 70 years pass muster?

[Edward Somers]

Just to add some legitimacy to what I was trying to say about the economics of long-running copyright duration, I found a passage in the Landes & Posner book describing the incentive structure of perpetual vs. limited copyrights. Rather than try to explain it, I'll simply quote from it in whole:

"Suppose a copyright on a particular work would yield $1 per year in perpetuity at a discount rate of 10 percent. Under a system of perpetual copyright, the present value of this infinite stream of income would equal $10 (=1/r). Under a limited copyright term (=t) the present value would be (1-e^-rt)/r. So if t = 25 and r = .10, the present value of $1 per year for twenty-five years is 9.18, which is more than 90 percent of the present value of a perpetual copyright. If the value of the copyright depreciates by, say, 5 percent a year, the difference in present value between a perpetual and twenty-five year copyright is only about 2.5 percent ($6.67 versus $6.51)"