Copyright discourse has been knocked off its moorings. Rights holders would have you believe that the foundational purpose of the copyright law is to protect their exclusive ability to reap the financial windfalls their works generate (case in point: the Authors Guild’s recent derision of HathiTrust and the Google Books Library Project as “ad hoc approaches to digitization that endanger our literary culture”). Although this argument is just as unconvincing as it is unappealing to most ordinary Americans, it has come to be reflected in our public policy because, quite simply, it is supported by interest groups that support the politicians who control our copyright law and regulations. Chief among these groups is the Motion Picture Association of America (MPAA), Hollywood’s trade association and lobbying leviathan. Political contributions database Open Secrets reveals that the MPAA has given $5,500 in contributions to House Judiciary Chairman Bob Goodlatte (VA-6) in the 2014 election cycle and the Wall Street Journal reports that the organization contributed about $600,000 to organizations that play a political role in 2012.
As we all know, however, Hollywood produces a great deal of artful fiction — and we can add the notion that copyright exists principally to protect rights holders to the lot. We need to dispel this notion once and for all and reset copyright upon its constitutional underpinnings. In short, we, as users and creators of content, need to recast the discussion by conserving our founders’ conception of copyright. Article 1, Section 8, Clause 8 of the Constitution empowers Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Any fair interpretation of this clause acknowledges that the granting of exclusive rights to authors and inventors is a means to an end, and that the “end” is the promotion of arts and science. In other words, copyright, as the framers imagined it, is best understood as a means of promoting the public interest. Notable copyright scholars have been advancing this idea for decades. Influential thinkers like Ray Patterson, Peter Jaszi, Jessica Litman and Lydia Pallas have all made some iteration of the argument that our copyright law was written to protect the public against any confluence of political interests that might lead to policies that restrict access to content. In “The Purpose of Copyright,” Pallas writes:
In 1557, the desires of the booksellers and the desires of the crown coincided. The crown perceived the need to gain greater control over “the dangerous possibilities of the printed word” and so granted a royal charter to the Stationers’ Company that limited most printing to only members of the company…The framers of the United States Constitution, suspicious of all monopolies to begin with, knew the history of the copyright as a tool of censorship and press control. They wanted to assure that copyright was not used as a means of oppression and censorship in the United States. They therefore expressly provided for the purpose of copyright: to promote the progress of knowledge and learning.
Despite their intellectual heft, leading copyright scholars who have taken up the cause of users’ rights have been unable to impact public policy discussions in any significant way. But one refreshing thought is that the dawn of the digital age affords users’ rights advocates a new opportunity to animate the arguments of these scholars with a populist flair. For a growing number of consumers of books, music and video, digital is the preferred medium. Many within this cohort lament the fact that the copyright rules that apply to the analog world do not always apply to the digital world. They are exasperated or even enraged by what they perceive to be copyright’s failure to acknowledge their established rights to privacy, free expression, accessibility, and more when it is applied to digital content.
What they need is a resonant, commonsense message that will reinforce their conviction that copyright should meet their expectations as digital users — and what message could be better than: “When the founding fathers conceived of copyright, they were thinking of you.” If we co-opt reputable think-tanks, influential public officials and other influential players in the policymaking process to spread this message, we may just be able to start a new discussion on copyright, starting at the grassroots: One which places a premium on the law’s true intent, not on the arguments of moneyed interests.