Copyright law wasn’t always a corporate welfare program. The first federal copyright law, from 1790, only allowed a 14-year copyright, with the possibility of an additional 14-year extension if the right holder were still alive. That bill, signed into law by George Washington, didn’t even take up an entire page when it was published in the newspaper. But current copyright statutes, in comparison, would fill a thick book. And the general trend has been to give more and more protection to those intellectual property owners who have money to hire lobbyists and lawyers.
We can’t even pretend that these extensions protect the rights of composers—no songwriter in history has lived long enough to survive a current-day copyright term. Even Irving Berlin, who died at age 101 in 1980, couldn’t outlive the rights to his songs. In 2015, if you want to sing “White Christmas” or another classic Berlin hit on record or in public, be prepared to fill up the stockings of the corporate owner.
Over at The New Yorker, Louis Menand has proposed that the philosophical arguments about copyright and intellectual property are ultimately irrelevant to the real battle, which is between the corporate/industry haves and have-nots interested in monetizing content or the capacity to look for it.
At bottom, the argument about copyright is not really a philosophical argument. It’s a battle between interest groups. Baldwin points this out—although, like everyone who takes a position on copyright, he also thinks that his is the philosophically defensible one. In the copyright wars, there are many sets of opposing stakeholders. Much litigation involves corporate entities, which have the financial resources to pursue cases through the courts. In these copyright battles, the main antagonists are the businesses that own copyrighted goods and the businesses that don’t.
Let’s call the first type of business Hollywood and the second type Silicon Valley. Hollywood, along with the music industry and the publishing industry, which are the other major analog-era corporate interests, makes money by producing and distributing content. Silicon Valley makes money by aggregating other people’s content. Hollywood fears pirates; Silicon Valley fears paywalls. Silicon Valley accuses Hollywood of “monopoly” and “artificial scarcity,” and talks about the democracy of the Internet. Hollywood accuses Silicon Valley of “free riding” and “contributory infringement, ” and talks about protecting the dignity of the artist. But each side is only trying to defend its business model.
Freelancers versus salaried content creators is another interest-group antagonism. Most of the people who are critical of the length of copyright protection today are academics. (Patry is an exception, but he’s the senior copyright counsel at Google.) This is probably not unrelated to the fact that academics have almost no financial stake in copyright. The research and writing they do is part of their job as employees of universities, or as the recipients of external, usually taxpayer supported grants. They don’t depend on sales to survive.
Freelancers, on the other hand, are unhappy with what they regard as the erosion of their right to control copying, which they see, for example, in the legally sanctioned practice of posting “snippets” on sites like Amazon, iTunes, and Google Books. Musicians and other artists tend to regard the Internet as a place where anything goes, an ungovernable Barbary Coast. On the Web, the general rule—known as a “take-down notice”—is that you can post almost anything as long as you take it down when the rights holder complains. No harm, no foul. There are some technical preconditions that the poster has to meet to earn the protection, but this does not seem to freelancers to be a very effective way to discourage copying.