Hold the Line: Stop Copyright Rendition!

In 1948, Twentieth-Century Fox released the Cold War's first anticommunist film,, the soundtrack of which featured music by Russian composer Dimitri Shostakovich. Shostakovich himself never saw the film.
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In 1948, Twentieth-Century Fox released the Cold War's first anticommunist film, Iron Curtain, the soundtrack of which featured music by Russian composer Dimitri Shostakovich. Shostakovich himself never saw the film, so it was presumably under orders from the Stalin regime that his name soon appeared on a copyright infringement suit filed in this country. Had the suit succeeded it would have effectively suppressed the movie. But it did not succeed: Shostakovich's music then lay in our public domain and thus its rights holders had no say in how it could be used.

The public domain is a valuable guarantor of both free trade and free expression which is why there is much at stake in a Supreme Court case to be argued this Wednesday, October 5. The plaintiffs in Golan v. Holder are challenging a 1994 law that has allowed scores of foreign authors to revive defunct copyrights. Allowing such "copyright rendition," as I call it, has raised again the classic question of how best to balance the two contending aspects of copyright law -- private control and public access.

There's no way to know how that balance will be struck in the current instance, but it should at least be noted that the Court has a tradition of siding with access. As Chief Justice Rehnquist once wrote: "We have often recognized the monopoly privileges that Congress has authorized... are limited in nature and must ultimately serve the public good."

Congress has not always shared that insight, invariably extending existing monopolies when petitioned by rights holders. The law being challenged in Golan was largely the fruit of lobbying by U.S. copyright-based industries. Software, film, television, movie, and recording companies petitioned Congress with the long-term goal of getting other nations to restore rights to U.S. works that had fallen into the public domain abroad. Having no control over foreign law, however, the singularly wishful strategy was to restore the copyrights of foreign authors in this country, in hopes that other nations would reciprocate.

In giving these industries what they wanted, the Congress not only unsettled established business and creative practices, it revived a problem that -- as I outlined in a previous post -- our Founders worried about centuries ago: it is ever the case that monopolies can as easily be used to suppress as to encourage both speech and trade.

To give just a few of many recent examples: during the 2008 campaign, Fox News demanded that John McCain remove his YouTube commercials because they infringed Fox's copyrights; the estate of poet Countee Cullen refused to let Poet Laureate Robert Pinsky use Cullen's work in a documentary after learning that the context hinted at Cullen's homosexuality; the Church of Scientology has regularly sought to silence critics with claims that they infringe on the Church's copyrights.

It is true that in such cases copyright's "fair use doctrine" offers a defense, and fair use should certainly be more widely claimed. At the same time, few speakers have the time or money to engage in litigation. A recent fair use case brought against the estate of James Joyce took years to resolve and cost almost a quarter of a million dollars. Even when a use is patently fair, most speakers will fall silent when threatened with a lawsuit.

Unless, of course, what they use lies in the public domain. Fair use, the Supreme Court has said, is one of the "traditional First Amendment safeguards"; so it is, but the strongest safeguard of all is the bright line drawn by the limited term.

That bright line, moreover, was originally drawn to harmonize with several others. Samuel Johnson's 1755 Dictionary, the one that the Founders knew, illustrates its definition of "limited" with the phrase "limited monarchy," and, in so doing, reminds us that limiting monopolies was a key way in which British jurists checked the powers of their king. Transported to the American context, then, the limit of copyright must be understood as one way in which the framers checked the powers of Congress and squared copyright with the First Amendment.

Which brings us back to that 1948 movie. If you teach the Cold War, and hope to show Iron Curtain to your students, good luck. As an unintended consequence of copyright rendition, that film has now disappeared from domestic distribution, Congress having managed to do what Stalin never could.

The limits the founders built into copyright were meant not only to engender a public domain but, by the same token, to curb the Congress's power to do favors for its friends. "Limited monarch," "limited times," "limited powers": by such phrases do we nominate the constraints that are the preconditions of liberty.

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