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«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»

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They taught people how to hack their Aibo dog, not with a machete but with code, to teach the dog to dance jazz. When they did this, they received a letter from Sony that said, “your site contains information providing the means to circumvent Aibo wares copy protocol, constituting a violation of the anti-circumvention provisions of the DMCA”. 18 To circumvent the code’s restriction on your ability to do stuff with your dog is a crime, even if the underlying act is not a crime. Let me assure you I know foreign audiences are often confused about it – it is not a crime in the United States to dance jazz. Outside of Georgia, even your dog can dance jazz without legal regulation. Here code ‘controls’ and the law says you cannot circumvent the code even for a legitimate purpose.

George Eliot (1872).

Aristotle (350 BC).

Letter sent to aibopet.com and cited in Lawrence Lessig, Free Culture.

Add these changes together – term, scope, reach and force. Then add into the mix a topic which I know you are all familiar with, increasing media concentration. If you put all these forces together you reach a conclusion which is very hard for us to accept about who we have become, because never in the history of our tradition have fewer exercised more legal control over the development and spread of our culture than now. Not even when copyrights were perpetual, because they only regulated the single copying of a book. Never has the scope of regulation been as powerful and never before has it extended as widely. This is the change that copyright has undergone – radically transforming the nature of its regulation in just a couple of hundred years.

In 1998 Eric Eldred decided he wanted to become a civil disobedient.

Eldred was running an online website, which was publishing public domain materials and in 1998 he expected to publish the work of Robert Frost, because a series of Frost poems were to enter the public domain then.

Congress decided in 1998 to extend the term of copyrights by 20 years, including existing copyrights, and Eric Eldred announced he was going to fight this change by just violating the law. A naïve law professor (namely me) called up Eric Eldred and told him this was a really bad idea, that copyright law was an extraordinarily punitive law to break in the United States, and this mode of testing it was likely to land him in prison, rather than achieving his ultimate objective of publishing this work freely. We said we would help him sue – to declare the Sonny Bono Copyright Extension Act unconstitutional, the Act otherwise known in the public press as the ‘Mickey Mouse Protection Act’.

Our claim was that this violated the progress clause. The core idea behind the progress clause is a quid pro quo – ‘this for that’. We grant you a copyright in exchange for your creative work. In 1923 the Government said to Frost, “we’ll give you a 56 year monopoly, if you create something new” and Frost said, “fine” and he did create amazing poems and literature which earned the benefit of that 56 year monopoly. But when that monopoly was extended for works that already exist, the quid pro quo of this for that was breached. This was for nothing because the work existed that the copyright was being extended for, and no matter what Congress did it would not get Robert Frost to produce any new work in 1923. This was a monopoly in exchange for nothing. It is like a contract with the State to build a bridge for a million dollars and then at the end of your completion, you say to the State, “I want two million dollars before I deliver the bridge to you”.

This extension of course was part of a pattern. There were eleven extensions of existing terms in the last forty years. Always these extensions occurred as famous copyrights were about to expire. That dynamic is totally predictable in a world where it is permitted to extend monopolies for existing works, because those who have the benefit of the monopoly for the existing work are willing to spend the net present value to guarantee that monopoly is extended. In a Supreme Court, seven, eight thousand miles away, the question was asked, “Are there limits on this copyright?” and the Supreme Court answered, “No”. What Congress was doing was OK.

“There was no reason to believe”, the Supreme Court wrote, “that these copyright terms would be perpetual”. They may be perpetual along the instalment plan, but all the Supreme Court believed the Constitution required was that Congress should give the perpetual terms in particular chunks. Congress was free to do this, the limited times clause notwithstanding. At least, and here is the silver lining, so long as it does not change the ‘traditional contours of copyright’.

There were two dissents in that case: Justice Breyer and Justice Stevens.

Justice Breyer’s was the more ambitious dissent. He asserted that the existing copyright term was already a perpetual term. He asserted this because he could do some math, and what he calculated with his math was that a 95 year term, was the equivalent of 99.9998 percent of the value of a perpetual term. If you have the value of a perpetual term, and you put on the top of it the 95 year term, it already was 99.9998 percent of the value of the perpetual term. And Justice Breyer calculated that 98 percent of the work whose copyright was being extended was no longer commercially available anyway. This was an extension for a very small proportion of work, ignoring the burden on the balance of work.





Justice Breyer’s dissent inspired follow-on litigation. This is what we call Eldred Version 2, the case of Kahle v Ashcroft, 19 which the Ninth Circuit is scheduled to hear arguments some time in 2005. The insight motivating Kahle is that 98 percent of authors are not benefiting from the copyright term extension. This case focused on the 98 percent and its focus is to use the First Amendment to assert limitations on Congress’ power to restrict access to that work. How do we have the right to use the First Amendment?

The silver lining gives us that right, because what the Court said in Eldred is that so long as Congress does not change the traditional contours of Decision of the Ninth Circuit was handed down 22 January 2007, and is available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1FABEA163F4C714A8825726B00 5A12F0/$file/0417434.pdf?openelement (accessed 7 February 2007).

copyright further First Amendment reviews are not required. By implication, if Congress changes the traditional contours of copyright further First Amendment review is required. As I have demonstrated to you, Congress has changed, in as fundamental a way as possible, the traditional contours of copyright by changing the system of formalities.

For 186 years of our history, formalities defined the scope of copyright’s regulation and that scope, of course, was tiny compared to its scope today, guaranteeing that its force would be felt by a narrow, filtered class of works and the balance of works would enter the public domain. That changed from a system that filtered out works not needing copyright’s protection from works that did. This change is as traditional a contour of copyright as any could be and the claim is that that change in 1976 of a traditional contour of copyright gets us First Amendment review, and if we get First Amendment review, then the presumption of deference that led the Eldred Court goes out and ordinary First Amendment review means we win. Or at least we get Congress inspired enough to re-create a filter, to attempt to take the full range of works burdened by the extension of copyright and separate out those that need or could benefit from the continued extension from those that would not. This opens a way for those works that would not normally to pass to the public domain, so that the burden of copyright is narrowly tailored to those which would actually benefit from an extended term.

I do not predict the Court will go our way. I remember when I was explaining Eldred to one of the most cynical members of the American Legal Academy, he said to me, “while you have convinced me that you are right, that under the Supreme Court’s jurisprudence you should win, according to the rules the Supreme Court has enunciated for limiting Congress’ powers, and that this is precisely the kind of case where Congress’ power has gone too far, when is the last time that the Supreme Court ever ruled against all the money in the world?” And I said to him, “that is an extremely cynical, boring way to think about the way courts function. I do not think that is the way courts function at all”. But I had to stop and think, when is the last time the Court ruled against all the money in the world? Even when they struck down segregation, it was only a bunch of poor, southern racists they were actually acting against. The major actions have never been, in this context, where all the money in the world is against a bunch of crazy academics. This reminds us perhaps of the limits of what courts will do.

I offer these stories not to predict anything about the court, but to remind us of this question: “Does copyright have limits?” I think properly phrased, the answer to that question, right now in the United States, is: “no, it doesn’t”. But it is our objective I think to imagine: what if there were limits? What would they be for? Why would we have them?

For example, let me tell you a couple of stories about copyright’s affect in the United States right now. In 2002, Robert Greenwald produced the movie, Uncovered. Uncovered is the story about America’s involvement in the Iraq war and the decisions leading to our engagement in that war. In 2004, Robert Greenwald wanted to produce an updated version of that movie, including a one minute clip from an interview the President of the United States gave on NBC’s Meet the Press. He requested permission from Meet the Press to include the one minute clip in the film. They denied him permission. What they said to him initially was, “it’s not very flattering to the President”. Now, what is going on in this dynamic? In a world where Presidents have fewer press conferences, in a context of increasing concentration and therefore vicious competition to get access to people like the President, there is a strong incentive for the press to be nice to the President, to create a protective space where he knows he can enter and speak without these words being used in ways that might embarrass him. It privatises the presidency and this is a predictable consequence of copyright extending its power and the concentration of the media interacting with that extension.

Here is a more dramatic example in this story. In 2004, Robert made another film, Outfoxed, about the Fox News Channel. The Fox News Channel sells itself as a ‘Fair and balanced news channel’ and you would think, if you know anything about the way truth is to function, ‘fair and balanced’ would produce ‘truth’. People would understand the truth in such a context. There was a careful study done of what people who watched Fox News believe about the world. The survey found that the more likely you were to watch Fox News Channel, the more likely you were to have completely incorrect assumptions about what was happening.

Whatever your view of Fox News or Fox News commentators like Bill O’Reilly, this is a significant issue of political import in the United States right now. The charge of ‘fair and balanced’ is an issue which has been litigated and continues to be a defining feature of how the network thinks of itself. To make this film, it was important that Robert Greenwald have the right to use clips from this Network. The Network was not going to give permission for Greenwald to use these clips, so he needed to rely on a doctrine called ‘fair use’. If these uses were fair he was safe; if they were not fair, then he is personally liable – not his corporation – for millions of dollars in damages. And here is the trick: you can only know whether the uses are ‘fair’ after you have been sued. You face this choice – whether to produce the work and risk millions of dollars in personal damage, or not to produce the work and stay safe and sound.

Fox’s response to the movie was significant in indicating what it thought about the copyright system. Fox called this ‘piracy’. Roger Ales, the President of Fox, said, “any news organisation that does not support our position on copyright is crazy. Everybody should stand up and say these people don’t have the right to take our product any more; it puts journalism at risk”. The idea that pointing out that someone is inconsistent puts journalism at risk shows just how far the concept of journalism has moved from what its ideals should be.

The risk here, the real risk, is a system that creates huge legal exposure for someone who wants to make political commentary about one of the most important forces in American political life. That is the free speech issue copyright risks. But it is not just that issue which is important, for of course, Fox presents the other side of the copyright question quite well. It was hugely successful as a film in the United States. DVD sales were No. 1 in Amazon for months. That drove penetration into theatres that otherwise was never expected. It was not a big success here in Australia. One reason we might speculate about that has to do with the decision made by certain companies about whether advertisements would be permitted. For when the film was advertised or advertising was sought for the film, certain organisations owned by this corporation refused to run the ad. You could not advertise this film that was critical of Fox because the owner of the advertiser sought not to have that message displayed. This is the monopoly issue that copyright raises – free speech and the monopoly issue rolled into one.



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