January 25, 2007 · Lessig
So as noted by some, Kahle v. Gonzales was decided Monday. After the oral argument, the result was not a surprise. The reasoning of the opinion, however, is. (I’m going to restrict these comments to part I of the opinion).
A clue that we were in for this sort of surprise was the question asked again and again by Chief Judge Schroeder, how was this case different from Eldred? This was one of those “huh?” moments in the argument. For sure, there was one similarity — I was arguing this case, and I argued Eldred. But beyond that similarity, the cases were plainly different.
In Eldred, among other requests, we asked the Court to apply First Amendment review to a statute that extended existing copyright terms. In this case, we were challenging the shift from an opt-in system of copyright (where you get a copyright if and only if you take affirmative steps) to an opt-out system (where copyright automatically covers everything). (These two claims are obviously different — we could just as easily be attacking the opt-in/opt-out distinction prospectively, rather than retrospectively. There’s thus no necessary connection between them.)
In Eldred, we were applying ordinary First Amendment law to say that this speech regulation ought to get First Amendment review. In this case, we were applying the rule announced in Eldred, that First Amendment review was limited to changes in the “traditional contours of copyright protection.”
So again, the question, how we the cases different?, was puzzling.
That puzzle was not lifted by reading the opinion. Though the Court acknowledged that there had been a change from an opt-in to an opt-out system of copyright, the court held that because Eldred had resolved a “similar” claim, it would not “ignore the clear holding of Eldred” (about, apparently, not the same claim, but a “similar” claim.)
I don’t quite get this negative horse-shoe principle of judicial decision making (you’re close enough to a losing case to lose). For the claim in Eldred is neither “similar” in form, and is certainly not “similar” in substance.
First form: Again, in Eldred, we asked the Court to test the extensions of existing copyrights under the First Amendment. The Court declined our request — not because, as the government essentially argued, the only First Amendment question for copyright laws is whether Congress had changed “fair use” or “idea/expression,” but because the Court found that Congress had a tradition of extending existing terms whenever it extended terms prospectively, and it was not going to upset that tradition. As the Court thus wrote, so long as Congress doesn’t change the “traditional contours of copyright protection” “no further First Amendment review” is required.
This is, as I’ve written before, a very sensible, Scalia-like test. It essentially says: Where there’s 200 years of tradition behind a practice, we’re not going to question it now. But when Congress changes that tradition, this new regulation, like any regulation of speech, should be subject to ordinary First Amendment review.
Our claim in Kahle was fundamentally different. We were not arguing that First Amendment review should apply to a 200 year old tradition. We were instead asking that First Amendment review be applied to a radical change in that tradition. Beginning in 1976, Congress had changed perhaps the most significant tradition in American copyright law when it moved from an opt-in to an opt-out system. For 186 years, copyright applied only where the copyright holder took affirmative steps to claim it. That requirement profoundly affected the scope and reach of copyright. Our claim was not that Congress couldn’t make such a change. But instead, it was simply that any such change must be tested under the First Amendment.
The “traditional contours of copyright protection” claim was new in Eldred. Ours was the second case to raise it since Eldred. As nothing in Eldred was based upon an argument that Congress had changed a “tradition,” Eldred clearly could not have held anything vis-a-vis a claim about a changed tradition. Logically speaking — or perhaps better, accurately speaking — there’s thus no way that Eldred’s “clear holding” could have touched the claim plaintiffs made here.
Substance: But again, the Court was moved by its apparent view of substance, not form. It said our claim was “similar,” not the same. And if it isn’t similar in form (as I’ve just argued), the Court must have believed it was similar in substance.
Indeed, that’s the plain import of the 5 paragraph section of the opinion addressing the claim. Because the Court in Eldred had said that the CTEA was simply “plac[ing] existing and future copyrights in parity,” any statute that did that was essentially the same.
But again, Eldred didn’t say the CTEA was exempt from First Amendment review because it put “existing and future copyrights in parity.” It said the CTEA was exempt because there was a long tradition of putting “existing and future copyrights in parity.” Here, there obviously was no long tradition. Our whole point was that the tradition had changed.
More fundamentally, even if there is a “similarity” in the result (i.e., that terms for existing copyrights and future copyrights are in parity), there is a radical difference in the effect of these two changes. The Court thought in substance, this was the same in Eldred. In substance, however, Eldred is but a jot compared to the massive change effected by the move from an opt-in to an opt-out system of copyright.
I should have thought that difference was intuitive and obvious. It is obvious I was wrong about that. So I’ve been struggling since Monday to think about a way to show, graphically, the difference between an opt-in and opt-out regime, as compared with the change effected by Eldred. That difference is what the above graphs try to demonstrate. The green in the graph is the simulated stock of works in the public domain from 1791-1978; the red is the simulated stock of works under copyright from 1791 to 1978.
As you can see, there is huge difference in the effect on the public domain in moving from a regime with formalities (e.g., an opt-in system) to a regime without formalities. And there is a tiny difference (not even perceptible) on the long term public domain in moving from a system that permits retrospective extensions (what I call “Eldred Extensions” to one that does not.)
Why does this difference matter? Because if you accept the Supreme Court’s view that copyright is to be an “engine of free expression,” by creating incentives to create and spread new work, the difference between an opt-in and opt-out regime is that the opt-out regime burdens a vast amount of speech with absolutely no connection to this “engine of free expression.” What the “filter” (as the 9th Circuit put it) of formalities did was to remove copyright regulation where presumptively it was doing no further good — where the work had no continuing commercial value. It thus removed regulation over precisely that speech that could not benefit from copyrights’ regulation anymore.
These cases are thus neither “similar” in the formal claims they make, nor in the actual effect on the public domain that each attacks. The only thing similar, again, is that I’ve been involved with the cases, and that the courts can’t yet be bothered to reason seriously about these matters.
These graphs are the product of a model I developed. The model is plainly beta, and I’d be really grateful for any help in verifying it, or in any ideas about how better to describe (graphically) the significance of the difference. If you’ve got talents in this area, please read the Extended Entry. There you’ll find a link to the model and an explanation of how it works. I’m eager to be shown my mistakes here, or a better way to make this obvious point.
The model simulates the effect on the stock of work in copyright and in the public domain from 1791 to 1978. During that period, copyright was an opt-in system of regulation. During that period, Congress twice extended existing copyright terms. (In 1831, Congress increased the initial term of copyright from 14 to 28 years; works in their existing term could opt-in to that extension. In 1909, Congress increased the renewal term of copyright from 14 to 28 years. Works in their renewal term could get the benefit of that extension if they registered for the extension).
I’ve built the model so you can simulate the effect on the stock of works in the public domain or under copyright if you switched off formalities (you do that by assuming 100% of the works published satisfied formalities). I’ve also built it so you can simulate the effect on the stock of works in the public domain or under copyright if you switched off the retroactive extension of existing copyrights (by setting the % taking advantage of the extension to the normal rates for renewal in with the 1831 extension, and 0% for the 1909 extension). Note, the model does not assume anything about any endogenous effects. For example, you might think that eliminating formalities would increase the rate of publication. I’ve not tried to specify that, but the model does allow you to change the growth of publications.
Again, this is a beta model. I’d be very grateful for any errors identified, or for a better specification of the same. After a review by a couple friends, I will post any corrections to this. At that time, I’ll also include any corrections noted in the comments.
You can access the model here.
And you can access a description of the variables here.