Wednesday, January 18, 2012

Golan v. Holder and SOPA: A Lesson In Civics

(A favorite protest sign, captured by Phillip Stearns)

Today is apparently destined to be a really important day in the history of intellectual property law in the modern age. Two things happened that impact the public as consumers of art and media, and when seen in the context of each other, these two events highlight what might be the real problem in getting the law to match with what these consumers actually value. 

I'd be willing to wager that if you're here, you noticed today that Wikipedia (and countless other sites) went dark or changed their usual look to protest something called SOPA. (Interestingly, the references in this post are nearly all to Wikipedia, so those won't be visible until presumably after midnight.) SOPA (and its cousin PIPA) is very complicated, and you should go learn all about it. But something you might not have noticed also happened that is a little arcane and tangential to the more pressing issues of internet censorship and modern copyright. But you should still know about it. So here's the rundown.

Some time long ago, America signed onto a complex international agreement so that we could get the benefits of other nations doing what we wanted with respect to copyright law. But we didn't really do the same for them; for years, international works sold in America had shorter copyright terms than American works sold here.

The result was that a bunch of these international works fell into the public domain before they would have had they been afforded equal treatment under our laws. People started using them free from copyright restrictions (not a TON of people, but it's kind of unclear exactly how many works, let alone important ones, are affected).

Anyway, America one day decided to get their act together and start doing what they were supposed to have already been doing under their international obligations. So, they extended the length of protection for these international works up to the same length as their American counterparts.

But what, you might ask, of all of those works that fell into the public domain before they were supposed to because of our lapses as an international partner? Aren't the people who created these works being deprived of what is rightfully theirs (i.e. a number of extra years' worth of profits)? Simple, says congress: these works would now be pulled OUT of the public domain and become protected again!

Today, the United States Supreme Court held that this was a perfectly acceptable solution.

This, on its face, could strike you one of two ways. One, you might say that it's obviously fair for international works released in America to get the same protection as American works released at the same time. Anything else would be unjust and might also be a symbol of America's hubristic visions of superiority, the same visions that allegedly have started wars and ruined our economy. In short, this result could be seen as an important step in America's realization that we need to be team players with all of the other people on this planet.

But then there's the other view: this new law stands for the proposition that congress can take public property and reclaim it for private individuals if they think it's necessary (and not even necessary, maybe just rationally related to the government's interests). I recognize the scariness of this, and I do feel that this is a bad sign. But not for the reasons you might think.

Obviously, this issue is complex, and I think both of these approaches to what is happening here are legitimate. But at first blush, I think it's worth recognizing that if congress had taken seriously America's promise to the rest of the world, we'd never have had this problem. These works would just still be under copyright law. 

But that's beside the point. There's a more important fallacy buried here. The idea that this ruling finally removes the sanctity of the public domain is a confusing one. It implies that there was any sanctity in the first place. In this instance, the international works that fell into the public domain did so accidentally, not because of some sort of altruistic principles. In fact, they fell into the public domain because of America's greed and attitude of exceptionalism. That's not exactly the purity that some critics of this ruling would wish were at play.

Essentially, the problem of this constriction of the public domain is a problem of our own making, and not even a copyright problem, but a POLITICAL problem.

This quote from Techdirt captures this pretty well:
The truth is that Congress is the one who could fix this by actually fixing copyright law and making it clear that the Court's interpretation was wrong. But, instead, because Hollywood pays the bills, they only make copyright law worse.
And that's important. This case, and cases like it, stand for the principle that the constitution doesn't limit congress's power to delineate the boundaries of the public domain as long as they are doing so to reasonably achieve their goals. We can't expect the court to fix copyright; it's just plain NOT THEIR JOB. And we apparently can't trust congress to do it, because we can't trust congress to do ANY of the things we think are important.

That's the heart of the matter. Today's decision is not the court abdicating its duties as the paragon of good copyright policy; it's the court reiterating that it's not their job to make policy at all, so we need to get our congresspeople to make good policy. 

And that's also what is at the heart of the SOPA and PIPA protests.

SOPA-protest-like mechanisms and mentalities to fix things like this, not our faith in 9 people in robes.

This case isn't a disaster of copyright policy, it's a civics lesson. I hope we're all paying attention.