Why the Bono act is Unconstitutional

Michael Reinhardt in an interesting thread in TidBits discussion board TidBits Talk summarized the rationale for the challenge to the Sonny Bono act. Basically, as he points out (and I’m cribbing here), Congressional power to enact law is based on specific permissions or “grants” in the Constitution, primarily found in Art. I, section 8. The clause which authorizes copyrights is Art I, Sec. 8, Clause 8: “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.”
Reinhardt adds “The crux of the argument being used to challenge the Sonny Bono Act is that extending existing copyright terms does not promote the progress of Science and the useful Arts, and therefore Congress had no authority to pass the act (the act is unconstitutional).

Copyright – History Revisited

This is long, and probably very boring, so if you want to skip to the good stuff just read these three pieces:

 

 

Our copyright laws are derived, albeit at a distance, from the prohibitive censorship of the British Stationer’s Office in the sixteenth century. The Stationer’s office censored, prohibited, and by virtue of the Star Chamber court, impounded, burned and branded offending presses, books, and printers. Milton, in 1644, having suffered though the Stationer’s restrictions during the English Civil War, passionately argued against a resurgence of censorship via the 1643 Licensing Act which proclaimed “That no Book, pamphlet, or paper shall be henceforth Printed, unless the same be first approv’d and licenc’t” in his Aeropagitica. Though Milton was a staunch supporter of the current puritanical state, he was also a staunch advocate for freedom of the press, and freedom of information, and he argues that information must be made easily available in order for rational people to be able to make good decisions. His arguments would apply equally well in our current mercenary licensing environment.

From the beginning, copyright law was meant to be a way of controlling information via publishing. Gradually control was moved from the government to the creator. Current copyright laws have changed so much in the last fifteen years that we’ve partially moved back to the restrictive atmosphere Milton wrote about—though for commercial reasons, rather than political ones.

Unlike the 1643 Act however, current copyright places control in the hands of a few large publishers, those who can, like Disney, successfully lobby Congress, as happened with the Sonny Bono Copyright Extension Act of 1998, which extended existing and future term limits on copyrighted works for an additional 20 years, for a total of seventy years after the death of the author. Keep in mind, please, that there’s a separate rule for a “corporate” author, that is, a work created “for hire” when the rights owner, the “author” if you will, is a corporatation—like, say, Disney. “Works for hire” were already protected for 75 years. Keep in mind too, that this law, like most of the previous changes, is retroactive. So works published in the 1920s that would have been available, aren’t going to be.

Right now Sonny Bono 1998 act is being contested, in the Eldred vs. Ashcroft case. Michael Dalton, in his piece for Monday, February 25, 2002 on “Mickey Mouse legislation” points to an interesting Salon interview of Eldred and Bjorklund, who both want to republish books whose copyright would have expired, had the law not been changed. In an age where information, data, is even more important, and can be distributed more efficiently than ever before, a few very wealthy and influential corporations are deliberately trying to stifle the spread of information, and the rights of creators, by lobbying Congress to enact increasingly restrictive copy right laws.

Lawrence Lessig, an intellectual property attorney, a faculty member at Stanford, and the lead attorney in the Eldred vs. Ashcroft Bono challenge, has a fascinating article in American Spectatorabout the changes in copyright law, and the future of the net.

The change has been gradual—Lessing offers a short history of the evolution of copyright law—but essentially copyright now means the life of the author plus seventy years, thanks to Sonny Bono. That means a publisher—or these days, a publishing conglomerate—essentially controls access and distribution of the content for that time. It doesn’t matter if the work is out of print, it’s still covered by copyright.

The Bono act has severely limited Brewster Kahle’s plans for a digital library, an Internet Library to rival the fabled (albeit historic) library of Alexadria. Kahle and his group have already created the Internet Archive and the Wayback Machine. Now he wants to create a library as big as the world. Kahle was the inventer of WAIS. This is someone who actually makes data available in useful ways. He’d like to do a lot more–if he could get rights to share the data. You can read his amici curiae in which he points out:

This library will expand our understanding of “public access.” It will make information accessible in formats that uniquely support and promote creativity in the arts and sciences – allowing individuals to clip and sample millions of words, films, and music recordings with ease. At the same time digitization will greatly reduce the cost of preserving our cultural history and eliminate deterioration caused regularly through the physical handling of cultural artifacts. Through digitization, we can inexpensively open the full contents of this new library to the public, especially to those for whom access has been a half-kept promise—the distant, the deaf, and the blind. A universally accessible archive of print, audio, and visual materials is within our grasp.

I’m very much in favor of artists retaining their creative control, and being recompensed for the sweat of their brow, but not into perpetuity. Never mind Mickey Mouse and fiction, think about the way copyright effectively prevents poor nations from access to current technology data. I’m not in favor of giant publishing conglomerates making money in perpetuity.

Distinctions

Dave Winer uses analogy to distinguish Frontier, the environment (framework?) Manilla runs on, from Radio. He writes:

Frontier is our mainframe. It’s centralized. It includes Manila, a deep and powerful browser-based content management system. Where Radio is designed for individuals, Frontier is designed for communities and organizations, workgroups—groups of people.

I think that’s key. But it also seems to me that an organization running Frontier/Manilla might still want to license Radio for its end users.

I’m still struggling to grasp Radio. It’s so enormously powerful, with so much potential that I find it slippery.

E-Portfolios

According to the Chronicle of Higher Education, “More and more institutions are encouraging—or even requiring—students to create “electronic portfolios” that highlight their academic work and help them reflect on their campus experiences.” The article goes on to say “This month, Indiana University – Perdue University at Indianapolis and the University of California at Los Angeles formed a consortium to develop e-portfolio software”—at 10,000.00 an institution.

As much as I’ve encouraged, even evangelized, the creation of digital portfolios for graduate students, I think the consortium idea, and the price, is a bit daft. Frankly, I’d use some of the excellent blog tools that are already out there. Although BloggerPro doesn’t seem to have a license option, either Manilla or Moveable Type look possible to me as portfolio creation,management and hosting solutions. A school would create a couple of portfolio templates, make them available, add some custom locally written documentation and tutorials, encourage the interested students and faculty to learn the ten basic tags of HTML, and there you are!

The Virtues of Blogging

Andrew Sullivan, has, I think, hit upon one of the key virtues of the blog as a tool for journalism; he writes in his “Blogger Manifesto” that “Peer-to-peer journalism, I realized, had a huge advantage over old-style journalism. It could marshall the knowledge and resources of thousands, rather than the certitudes of the few.”

Blogging-as-journalism then shares the advantages of open source software—you have hundreds, perhaps thousands, of bug finders, fixers, and coders working because they want to. And I think this “open source” effect is one of the potential side effects of using blogs for instruction. You are helping students find a voice, a personal commitment to their words and thoughts, and you are teaching them to think about audience, one of the central requirements of good writing. These are all Good Things.

Since I started really thinking about blogs—and deliberately reading and researching them—I’ve slowly realized that one could argue that my central Celtic Studies Resources site is a blog, a blog with categories, and stories.