January 25, 2007  ·  Lessig

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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.

  • http://sethf.com/ Seth Finkelstein

    With *enormous* trepidation, realizing you’re justifiably extremely disappointed at the outcome (my sympathies), putting aside my better judgment that I have a lot more to lose than I have to gain, and fully aware of who I’m writing to … I offer the following analysis:

    You’re looking at this from the wrong angle. I don’t *like* the opinion, but I understand what it’s saying: In a nutshell, the view is _Eldred_ established that anything having to do with PROCEDURAL aspects of copyright – terms, renewal, registration – gets only “rationality review” and deference to Congress. That First Amendment scrutiny is only triggered by CONTENT aspects of copyright – fair use, idea/expression dichotomy.

    That’s why they keep saying it’s like _Eldred_, it’s like _Eldred_ – they mean it’s a procedural aspect of copyright. You say it’s not like _Eldred_ because it’s a *different* procedural aspect of copyright. But they reply that all that matters is that it’s a procedural aspect (“Thus, Eldred’s explicit holding that efforts to achieve parity are constitutionally valid refutes Plaintiffs’ claim that eliminating the renewal requirement should trigger First Amendment scrutiny.”)

    So if you go down the road of saying “But it’s a BIG procedural change. Huge. Massive. Gigantic. … “, they’ll likely just bounce you back again. The opinion will probably boil down to “Yeah, it’s huge, it’s big, it’s gigantic, but it’s *still* a procedural change and not a content change, and we already told you what we think of that” (they heard you the first time – “Eliminating the renewal requirement dramatically increased the average copyright term and correspondingly decreased the number of works currently entering the public domain.”).

    Somehow, the connection has to be made that the procedural aspects turn into F
    irst Amendment aspects where a difference in decree becomes a difference in kind. But the current approach is not working (“They place particular emphasis on the increased possibilities for archiving and disseminating expressive content over the Internet and the detrimental impact the change from an opt-in to an opt-out system has on those efforts. Plaintiffs articulate policy reasons behind their position; they do not, however, provide a legal argument explaining why we should ignore the clear holding of Eldred.”).

  • Country Bumpkin

    Lawrence Lessig, I’m a big fan of yours, sorry the case was lost. IANAL, and I’m having trouble figuring out what you’re trying to say. Could you translate this post for thick-headed lay people like me?

  • Ryland

    In your (and Kahle’s) complaint, you asked the court to declare the CTEA unconstitutional under the First Amendment. The Eldred case was all about the CTEA. The Supreme Court correctly pointed out that the First Amendment is taken into account because copyright law does not protect ideas and there is the fair use and library exception provisions. It further stated, again we are talking about the CTEA (Eldred) here, “But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”

    So when you say you are surprised Chief Judge Schroeder asked what the difference between Kahle and Eldred, the shows there is no difference and the Judge was right in asking. And the court was right in saying that you made the same argument concerning the CTEA, but just different wording, in Eldred.

    I would add that if we are going to argue “traditional contours of copyright protection”, I note that you limited it to American copyright law whereas the Supreme Court didn’t. I say that because America got its “traditional” formalities originally from England and the Statute of Anne. England adopt the life plus in 1842 and dropped its formalities in 1911. The Berne adopted life plus 50 in 1908. So one could easily say that tradition was life plus 50 years and it was the US that was not following “traditional contours of copyright protection” until it adopted life plus 50 years in 1976.

  • James Day

    Your graphs don’t come remotely close to illustrating the effect of a change from opt-in system to opt-out system. What of all the unregistered published works, apparently not illustrated in any way?

    The apparent similarity with Eldred is that removing the formalities for existing works with a registered copyright is equivalent to an unconditional extension of their term, already rejected as an argument.

    A more interesting argument may be the effectively forced subjection of all published works – specifically those without a registered copyright – to the copyright system. But even this is subject to the argument that it’s merely a formality, even though to try to reproduce the prior system would require the creation of a massive bureaucracy to track works where the author does not want a copyright but favors the free reproduction of the work without administrative hassle… which is impossible now because you need the administrative hassle to so indicate.

  • http://www.copyrightings.blogspot.com Kevin

    My sympathies on the loss; it really is too bad.

    What are your plans for pursuing the case?

  • three blind mice

    In a nutshell, the view is _Eldred_ established that anything having to do with PROCEDURAL aspects of copyright – terms, renewal, registration – gets only “rationality review” and deference to Congress.

    Seth Finkelstein, in his usual dispassionate manner, appears to hit the nail on the head.

    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.

    the “tradition” seems to be that it is well within the constitutional authority of the U.S. congress to determine the procedures which “promote progress” in the arts and sciences. that seems to be the “clear holding” of Eldred.

    instead of seeing this as a defeat, why not see it (as we do) as a victory for democracy?

  • kt

    I would concur with mr. f, in that they are clearly saying that if the Supreme Court has seen found it legal in one instance to extend past copyrights to comply with new ones, that it shouldn’t be extraordinary to find it holds in this case at all.

    I have two suggestions: One, that a new democratic controlled congress may be easier to lobby on the policy issue, and I stress may because they are beholden to large interests, and that it could be added to the 2008 conversation.

    Two: on challenging legal grounds. Perhaps now would be the time to take up SANTA CLARA COUNTY v. SOUTHERN PAC. R. CO., 118 U.S. 394 (1886). That is, clearly, the framers of the constitution did what they could to create a state in which an individual retained the greatest freedom against the collective. By granting corporations personhood in this argument, that court created a power imbalance of copyright unforseen by the founders who thought they would only be created by governments in the public interest. Instead, you have a class of “persons” whose interest is legally defined as increasing money, instead of “progress in the arts and sciences.” I do not know if anyone could reargue case law more than 100 years old, but I would suggest either litigating this somehow, or lobbying to make it so that non-persons who take advantage of copyrights and patents must reorganize themselves to make “progress in the arts and sciences” their number one duty, not fiduciary to shareholders.

    I do not think this would be any easier than the current path, but may present a legal path as opposed to policy. Not that these suggestions have much to do with Kahle, other than to show that the “people” who lobbied most heavily for increased copyright succeeded because they were able to accumulate resources far beyond the average individual.

    If one were to go down another path, one might look at the contracts being used by corporations to generate un-bylined corporate newsletters, “advertorial,” success stories, marketing materials… Are these promoting the arts, as understood by the framers. Why do they get copyright? Why shouldn’t they have to “opt-in”?

    Sorry this is rambling, IANAL…


  • http://commlaw.org Andy

    I don’t get it. Did you reintroduce the argument of extended terms in addition to the opt-in/opt-out change?

  • Anon

    If I undersatnd, I believe the issue is as follows:

    OptIn: of items produced, a percentage is copywritten.
    OptOut: oddly same items produced, but much more are copywritten.

    Meaning: Taking out the formalness did not increase number of items created but instead decreased the number of items that could be used publicly. Hence, the laws attempt did not increase the amount of information that was generate but had a negative effect on what could be used. This was not the original intent of those law.

  • http://www.eaves.ca David Eaves

    Lessig Comment post

    Two quick thoughts:

    I’ve email you an alternative format for your graph as well as some thoughts. However, I thought I would post them here as well since others may be able to improve on my proposal (the graph can be downloaded here). I haven’t done it up all pretty but I do think it has few interesting facets:

    1. It doesn’t place (c) and PD content in competition (a traditional graph makes it look like they are racing against each other)
    2. The traditional graph risks making the (c) material appear to be a small sliver on top of PD materials, this version eliminates that risk.
    3. It highlights the total aggregate published material ((c) +PD) (although I know I need to find a better way than negative numbers to express the PD material)
    4. It emphasizes PD and (c)’s relative ‘market share’

    The other variable not considered in your chart is the rate at which published material might disappear. It may sound odd, but I imagine that a significant amount of published material is lost through accident (and theft? – is this considered lost?). For example a library burning down or a server crash may destroy the only copies of some content. This material would be eliminated from aggregate total. This ‘rate of erosion’ is probably higher among PD content than (c) content since (c) owners have a greater incentive to protect/backup/etc� their content. I might assume that (c) material is lost/destroyed at a rate of .05% a year, whereas PD content is lost/destroyed at a rate of .2% percent a year. (0f course the numbers may be higher after the opt-out rule takes effect, but then all of my variables have plucked out of thin air…). I’m not sure if this is sufficiently relevant or if you agree but I think it occurs and would make the gap between (c) and PD even greater.


  • rodander

    Sorry you lost, but I don’t think you were on the right side of the argument anyway, as three blind mice said.

    I wasn’t at oral argument, obviously. But my suggestion to you is that when the Chief Judge keeps asking “How was this case different from Eldred?”, you are obviously not convincing him that the two are different. You make little progress by believing your own position (“The cases were plainly different.”) and having a “huh” moment. And the decision reflects that.

    As Chief Justice Roberts said recently at Northwestern, lawyers need humility and ought to pretend that they are not necessarily right.

    “We get hundreds and hundreds of briefs, and they’re all the same,” Roberts told a crowd of eager law students and faculty members last week at the Northwestern University School of Law in Chicago. “Somebody says, ‘My client clearly deserves to win, the cases clearly do this, the language clearly reads this,’ blah, blah blah. And you pick up the other side and, lo and behold, they think they clearly deserve to win.”

    How about a little recognition that it’s a tough job? Roberts asked.

    “I mean, if it was an easy case, we wouldn’t have it.”

    From the Washington Post.

  • Jim Carlile

    Sadly, I think most judges and others ‘in authority’ are so blinded by conventional notions of property rights and the marketplace that they go numb at any argument that relies upon other premises. They just don’t get it.

    That’s especially the case when you consider the personal backgrounds of the people who have been getting the judicial appointments during the last twenty years or so. They don’t know what you’re talking and they probably don’t care. It’s like trying to explain Mozart to a gopher.

    I’m not sure what the solution is– casual infringement, a “use it anyway” mentality?

  • https://www.youtube.com/channel/UC18TSkOSqFTVv0Uv6DspRzQ Sandra In California (The Last

    One argument you did not make which believe is worth making is authors of religious works usually do not want them copyrighted because the purpose in writing a religious work is to convert people to your religion. Although religious persons seeking new converts could specifically opt out of copyright, that would require the filing with the US Copyright office and the payment of fees. As a result nobody does it.
    In any event I appreciate and support your efforts and if you file any new cases along these lines I would appreciate being added as a co-plaintiff. Sam Sloan (Sandra is my daughter)