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Monday, February 03, 2003

Our Opinion

Privatizing Public Domain


On January 15, ruling in Eldred v. Ashcroft, the Supreme Court upheld the constitutionality of the 1998 Sonny Bono Copyright Extension Act. It was an undisguised triumph of special interests — and very bad law — over the public good. Our readers will remember that we wrote about this egregious legislation a few months ago (see “Culture and Copyright: Free Mickey Now!” November 1, 2002); we expressed hope at the time that the Supreme Court would “find the current legal regime regarding copyright not only unconstitutional but, in fact, a fundamental breach of any rational, democratic, and pluralist notions of intellectual freedom and creative exchange.” (The law extended copyright protection for individuals from 50 to 70 years after an author’s death and from 75 to 95 years for corporations. As we wrote earlier, “it’s made a mockery of constitutional protection of creative rights, and condemned the very notion of culture to perpetual servitude to corporate profit.”) In the event, the Court has ruled against both the spirit and letter of Article 1, Section 8, of the constitution, and upheld a law that The New York Times has accurately condemned as “the beginning of the end of public domain and the birth of copyright perpetuity” (“The Coming of Copyright Perpetuity,” January 16).

Let’s be clear. The issue is not copyright, or the natural and incontestable right of individuals to protect their intellectual and creative property. In fact, the 1998 copyright extension was, as we said in November, a cynical and philistine attack on the very notion of creative and artistic freedom opposed by writers and scholars, as well as by countless intellectual and professional associations, including, most tellingly, the American Library Association and the National Writers Union. Unusually wrongheaded and blatantly biased, the Supreme Court ruling will make freedom of expression — especially critical expression, such as satire and parody — infinitely more difficult and problematic. Why? A couple of recent examples should suffice to illustrate where we are headed.

Two years ago, Margaret Mitchell’s estate sued to block publication of The Wind Done Gone, a parody — which is to say, as all parodies are, a critical reading — of Gone With the Wind. Alice Randall, author of The Wind Done Gone (and, not at all coincidentally, an African American woman) “reimagined” Mitchell’s 1936 ideological classic from the standpoint of a black female slave. To quote the flap copy of Ms. Randall’s book, she “explodes the world created in Gone With the Wind, a work that more than any other has defined our image of the antebellum South,” and takes “sharp aim at the romanticized, whitewashed mythology perpetrated by this Southern classic.” For some strange reason, Mitchell’s “copyright” protectors were not amused. So they did what it seems that more and more Americans do nowadays when it comes to the great and noble battlefield of ideas: they sued.

And they won. For infringement of copyright. Naturally, Houghton Mifflin, which published Ms. Randall’s book, was appalled, and immediately appealed. It also released a denunciation of the suit in which the head of its trade division stated: “In all my years of publishing, I have never been faced with an attempt to block publication of any book, let alone a work with such an important and biting message.” In a decision of transparent common sense, the 11th US Circuit Court of Appeals in Atlanta ruled, of course (indeed, almost indignantly), that the injunction imposed by the lower court had been an “extraordinary and drastic remedy” tantamount “to unlawful prior restraint in violation of the First Amendment.” Unfortunately, it appears to be a short-lived victory.

Actually, Houghton Mifflin and Ms. Randall didn’t “win”; quite the opposite, they settled out of court (America’s increasingly standard method of democratic debate) with the Mitchell estate, having agreed to make an unspecified contribution to (we’re not making this up) Morehouse College. This affair was more or less quickly followed by the battle over Lo’s Diary, a novel by Italian author Pia Pera that (essentially) lampoons Lolita. Once again, the author’s estate sued the book’s publisher, Farrar, Straus and Giroux (one of the most prestigious literary houses in America), for “copyright infringement.” And, once again, “settlement” was reached, this time involving royalty-sharing. Ms. Pera’s book, incidentally, was originally published in Italy and subsequent editions were translated and published in Germany, Spain, and other countries without any problems whatsoever — but, then again, the United States is apparently the only nation in the world with such a profound devotion to “copyright.”

By the way, defending the creative right of Ms. Randall and Ms. Pera to engage with — and intellectually contest and even ridicule — preexisting works does not mean validating, and certainly not concurring with, these acts of literary opposition. No one, in other words, is saying that Ms. Randall’s work is of the quality of Margaret Mitchell’s or that Ms. Pera’s novel can stand comparison with that of Vladimir Nabokov. (We have no opinions in either case, and do not care to; legally, they’re irrelevant issues.) The point is that the two writers have the right to their say — and to what are in fact fictional, quite imaginative, and thoroughly legitimate forms of literary criticism. What is striking in both cases is that the publishers that published these books were among America’s most important firms, known for their intellectual weight and extensive editorial criteria.

What is most disturbing about the Supreme Court’s decision, in fact, is precisely how extreme, how immoderate, it is. It is, at least as far as copyright and intellectual-property law is concerned, a kind of latter-day Plessy v. Ferguson (the 1896 decision that legalized segregation), both in its willful distortion of the constitutional issues it was asked to adjudicate and in the kind of legal havoc it irresponsibly bequeaths to us all. As so often in the less-than-sterling history of the Supreme Court — and of our nation — it will not be the majority decision that will be morally vindicated by history, but the dissenting opinions. In this case, the two dissenting justices could not have been more scathing or frank.

In a 29-page dissent, Associate Justice Stephen G. Breyer did not mince his words. He begins by stating:

The economic effect of [the Sonny Bono Copyright Extension Act] — the longest blanket extension since the Nation’s founding — is to make the copyright term not limited but virtually perpetual. Its primary legal effect is to grant the extended term not to authors, but to their heirs, estates, or corporate successors. And most importantly, the practical effect is not to promote, but to inhibit, the progress of “Science” — by which word the Framers meant learning or knowledge.

He concludes:

It is easy to understand how the statute might benefit the private financial interests of corporations or heirs….But I cannot find any constitutionally legitimate, copyright-related way [stress added] in which the statute will benefit the public. Indeed, in respect to existing works, the public harm and the virtually nonexistent public benefit could not be more clear.

…This analysis leads inexorably to the conclusion that the statute cannot be understood rationally to advance a constitutionally legitimate interest. The statute falls outside the scope of legislative power that the Copyright Clause, read in light of the First Amendment [stress added], grants to Congress. I would hold the statute unconstitutional.

Associate Justice John Paul Stevens was even more caustic, actually calling his colleagues to constitutional account — and therefore to their obligations — in his dissent’s closing admonition and reference to Marbury v. Madison.

Congress set in place a federal structure governing certain types of intellectual property for the Republic. That Congress exercised its unquestionable constitutional authority to create a new federal system securing rights for authors and inventors in 1790 does not provide support for the proposition that Congress can extend pre-existing federal protections retroactively.

…Precisely put, the question presented by this case does not even implicate the 1790 Act, for that Act created, rather than extended, copyright protection. That this law applied to works already in existence says nothing about the First Congress’ conception of their power to extend this newly created federal right….

By failing to protect the public interest in free access to the products of inventive and artistic genius — indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause — the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress’ actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure. It is not hyperbole to recall the trenchant words of Chief Justice John Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison…(1803). We should discharge that responsibility….

The irony, of course, is that the Reagan appointees to the Supreme Court continually (and misleadingly) invoke “original intent” to disguise their reactionary legal prejudices. Funny how original intent was nowhere to be seen or heard in the majority opinion of this fundamentally unsound — and, as far as original intent is concerned, clearly unconstitutional — decision.

What the honorable justices of the Supreme Court have, in the end, done is to undermine a fundamental pillar of intellectual freedom and cultural expression in a democratic society: public domain. In truth, as is their ideological wont, they have provided “legal” cover for its privatization. And so it goes. As one area of public life after another — education, health, criminal justice — is expropriated by “private enterprise,” it is inevitable that the last barriers against this rampant disarticulation of our communities will be torn down. Now, even ideas, even art, even culture, will, in these United States, become the exclusive property, not of individuals — let’s not kid ourselves — but of a handful of global corporate behemoths. Undoubtedly, some of you are thinking, “Frankly, my dear, I don’t give…” — but you know what we mean; frankly, we don’t want to be sued for copyright infringement.

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