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The cyber-crusaders behind the attempt to roll back the 1998 Copyright Term Extension Act ( see Eldred v. Ashcroft, 537 U.S. 186 (2003)) are at it again. This time, Stanford professor Lawrence Lessig and his Cyberlaw Clinic asked a Northern California district court to strike the Copyright Renewal Act of 1992, which automatically renewed so-called orphan works, copyrights in works created from 1964 to 1977. Not one to shy away from controversy, the clinic also asked the district court to reconsider the Supreme Court’s Eldred decision in light of the “fundamental” changes Congress made to the U.S. copyright system over the last 30 years. Although the clinic made some interesting policy arguments, it once again failed to articulate a sound legal basis to back up its claims. Accordingly, the District Court dismissed the clinic’s entire action under Federal Rule of Civil Procedure 12(b)(6). Recently, the clinic appealed the dismissal, but based on the dearth of logic and law in support of the clinic’s position, it is hard to imagine how the 9th Circuit could justify striking the 1992 act. Essentially, the clinic’s beef centers on the landmark changes Congress made to the U.S. copyright regime beginning with the Copyright Act of 1976. Prior to the 1976 act, an author obtained a copyright by registering a work with the U.S. Copyright Office and marking the work with a copyright notice. A copyright lasted for an initial term of 28 years. An author (or the author’s heirs) could secure an additional 28-year term by filing a renewal notice during the last year of the initial term. The conventional wisdom behind the renewal framework was to give a naive author a chance to renegotiate a deal midway though the potential life of a copyright. The renewal provision also allowed for a deceased author’s heirs to reclaim their inheritance, regardless of deals made by the author during the author’s life. In an effort to harmonize U.S. law with international standards, Congress enacted the 1976 act, which radically changed both the formalities for obtaining copyright protection as well as the structure and length of the copyright term. Under the act, an author no longer had to register a work to obtain a copyright. Instead, copyright protection applied as soon as the author fixed a work in a tangible medium (e.g., wrote it down on paper). The 1976 act also got rid of the somewhat paternalistic renewal term system for new works. Authors of new works received protection for a term consisting of their life plus 50 years. In 1992, Congress went further in eliminating the vestiges of the antiquated renewal system by enacting the Copyright Renewal Act, which automatically renewed all copyrights (i.e., added 47 years to the copyright term) for works created between Jan. 1, 1964, and Dec. 31, 1977 (the 1976 act went into effect on Jan. 1, 1978). The clinic asserts that the 1992 Copyright Renewal Act in conjunction with the 1976 act has changed the U.S. copyright system from a “conditional” system, whereby authors had to take affirmative steps to secure initial and renewal terms of protection, to an “unconditional” system, in which authors receive one lengthy term of protection whether they want it or not. The clinic points out that under the old conditional system, almost half of all works published in the United States went unregistered and, therefore, had no copyright protection. Of those works that were registered, less than 20 percent received renewal terms. Under the current unconditional system, each of these works (regardless of registration) would receive copyright protection for a term of roughly 100 years (regardless of renewal). Based on these facts, the clinic argues that unconditional systems are fundamentally unfair because they result in increased restrictions on copying of material that would not have been protected under a conditional system. The clinic’s argument is flawed, however, since it essentially assumes its own conclusion. The clinic assumes that the pre-1976 conditional system struck the proper balance between the rights of authors and the rights of copyists while the post-1976 unconditional system does not. This assumption, however, is far from proven. In fact, the pre-1976 conventional wisdom points to the opposite conclusion. For example: • As of 1976, the United States was the only significant nation clinging to a conditional copyright system. • The formalities of the federal copyright registration process made it virtually inaccessible for all but professional authors. • The formalities of the U.S. system prevented U.S. authors from receiving reciprocal foreign protection. • Federal copyright protection coexisted with state common law that often provided unlimited protection for unregistered works. • Congressional hearings had determined that the “unclear and highly technical” renewal requirements were “one of the worst features of present copyright law.” • Important works, such as Frank Capra’s movie “It’s a Wonderful Life,” fell into the public domain due to inadvertence. In light of these facts, the clinic’s assumption that the old conditional system was per se fair and the current unconditional system is per se unfair is specious at best. Finally, in addition to being logically flawed, the clinic’s case is legally flawed as well. As the Eldred Court made clear, it is up to Congress, not the courts, to decide how best to pursue the objectives of the copyright system. As such, courts will apply the most deferential standard to Congress’ determination of the scope of rights that should be granted to authors. The clinic tries to sidestep congressional deference by arguing that the Copyright Renewal Act raises First Amendment concerns. The clinic, however, already made (and lost) this argument in Eldred. As the Eldred Court correctly noted, U.S. copyright law has built-in First Amendment protection in the form of the idea/expression dichotomy (only expression is eligible for copyright) and the fair use doctrine, which affords “considerable latitude for scholarship and comment.” Unless Congress attempts to change these fundamental contours of copyright protection, “further First Amendment scrutiny is unnecessary.” In light of its insurmountable legal hurdle, the clinic must have some motive other than winning for pursuing its action. Perhaps the clinic hopes that the publicity generated by its case will help to sway public opinion against the current copyright system. In today’s electronic age, however, most would-be copyists are also budding authors. With this in mind, it’s hard to imagine that the clinic, or anyone for that matter, could galvanize the public behind a single copyright theory. Mark Scarsi is a partner in O’Melveny & Myers’ Los Angeles office. Before entering the legal profession, Scarsi worked for seven years as a software engineer focusing on the development of computer hardware and software solutions for strategic naval defense objectives. This article first appeared on the ALM Web site Law.com.

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