The Copyfight's Next Stage: We All Speak Up Together
January 18, 2012 ranks among the most momentous days in the recent history of the copyright reform movement. Who can forget the blackout protests against SOPA and its Senate counterpart PIPA? That day's actions boasted unprecedented scale, which included dozens of companies, thousands of websites, and millions of users acting together to defeat dangerous legislation. But the date also marks another, less cheerful event: exactly one year ago today, the Supreme Court released its decision in Golan v. Holder, a ruling that remains a disaster for the public domain. (You'll remember that in Golan, the Court upheld a law that took millions of works by foreign authors that were previously in the public domain and put them back under copyright protection.)
That single day in 2012 demonstrates the real dangers copyright policy poses to users, consumers, and creators and — at the same time — just how far we've come in fighting back. (Though, to be clear, we still have more work to do.)
Golan harkens back to an earlier era, sparked by the 1998 Copyright Term Extension Act — sometimes known as the Mickey Mouse Protection Act — and the 1994 Uruguay Round Agreements Act. Like the earlier Eldred v. Ashcroft, Golan centers around a constitutional challenge to the expansion of copyright. The argument goes like this: the Constitution grants Congress the power to make so-called intellectual property laws so long as those laws "promote the progress of science and useful arts"; retroactive copyright extensions and retractions from the public domain plainly do not serve that goal; thus, these laws stand in conflict with the Constitution.
This argument is correct, but it has proved frustratingly ineffective in the Supreme Court and in the halls of Congress. In Eldred, the Court approved retroactive extensions despite strong briefs from, among others, constitutional law experts, dozens of IP law professors, and world-famous economists. And in Golan, only the dissent bothered to note the obvious fact that ripping material out of the public domain "does not encourage anyone to produce a single new work". It's not just the Courts: all too often in Congress, debates about copyright law take place in a "reality-free zone".
While reasonable minds may disagree on some particulars in copyright, Congress and the courts often get the easy questions wrong. The resulting laws contravene not just the Constitution, but common sense. Why is this? Many rightfully point to the influence of entrenched interests. And certainly, those interested in increasing the scope and scale of copyright law — often led by the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) — wield considerable influence in Washington. That influence puts blinders on even well-meaning legislators, preventing them from enacting real evidence-based policies. (Of course, not all legislators fall into this category: take Senator Ron Wyden, and Representatives Darrell Issa and Zoe Lofgren, for instance, who were vocal opponents of PIPA and SOPA from the beginning.)
But January 18 reminded us of another important lesson: it's not just Congress and the courts who wield all the power in a democracy. It's the people, too. So when those in D.C. refused to fix a system gone awry and introduced SOPA and PIPA — threatening to dangerously increase the scope of copyright law again — the people took notice and acted. It's no wonder, of course: while policymakers have been busy extending copyright's reach, people have increasingly bumped up against it in their daily lives. Computers are copying machines, and many of us work at one each day, even carrying one around in our pockets. Even through the haze of copyright laws at their most bloated, people have seen glimpses of the power of unfettered networks — and want more.
As a result, the gap between the law on the books and how common sense suggests copyright should look has grown massive. That is unsustainable. In the anti-SOPA blackout protest, the public finally stood up and demanded that gap be closed. It spoke with such force that Congress had no choice but to listen.
The entrenched interests tried to paint this grassroots action as "dangerous" and a "gimmick," as a "misuse of power". The public knows better than that. Copyright must be reworked to serve the public interest, and those who benefit from lopsided laws will not let it go without a fight.
Over the past 15 years, copyright reform advocates have been frustrated by judges and legislators who won't engage with the facts and refuse to have a serious conversation about copyright. It turns out the public will, and has — leading to protests like the SOPA blackout or the street actions in Europe against the Anti-Counterfeiting Trade Agreement. When we all speak up together, we're impossible to ignore. January 18 taught us that the days of backroom deals and one-sided debates are over, so long as we remember that simple lesson.