August 2, 2005 | By Corynne McSherry

EFF15: The Best Laid Plans . . .

I didn't plan to become a copyfighter.

As a fresh-faced grad student, I was planning to spend my life as an academic, writing about the social construction of property through the lens of feminist legal theory. But the plan started going a little haywire when I started looking at ownership of the body, which led me to Moore v. Regents of the University of California (a 1990 case about property rights in human tissues) and Vanna White v. Samsung Electronics America (a 1993 publicity rights case that turned on the burning question of whether it is possible to distinguish Vanna White from a robot). Which led me to the award-winner for best case title, Carson v. Here's Johnny Portable Toilets, Inc. (I think you can guess what this one's about). And so on. Before long, I was hooked on the questions these cases raised. How, for example, did we all become committed to the notion that ideas, names, likenesses, expressions, symbols, etc., could be owned?

I looked at the history, especially the comments of some of the folks that invented modern IP, and discovered that it wasn't easy to convince people that ideas or expression should be owned at all. I discovered that part of what convinced them was (1) a promise that IP rights would be limited by doctrines such as fair use and first sale; and (2) a promise that eventually the works would enter the public domain. I discovered that significant new technologies have almost always provoked struggles over the proper balance between public and private domains of information.

Thus armed with a little knowledge, I came back to the present and looked around again. In my own university, professors, administrators, and publishers were fighting over the best way to own academic works -- but precious few were asking about the best way to share them. In Congress, legislators were passing draconian legislation like the Digital Millennium Copyright Act and the Copyright Term Extension Act. With the blessing of the courts, the US Patent Office was approving silly patents like a method for "expanding web documents by merging with linked documents" (thank you, IBM). In short, there were plenty of folks lined up to define and defend a private domain of new technologies. But who was standing up to defend the public domain?

If you're reading this, you probably know the answer: the Electronic Frontier Foundation. Along with just a few other organizations, EFF was fighting the good fight in the courts and in the Congress. And sometimes, against extraordinary odds, EFF was winning.

Fast forward a few years, and I am proud to say I am now the newest member of the EFF legal team. Happy birthday EFF! And thanks for letting me join you in time to blow out the candles and make a wish.


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