Writing on the American Open Technology Consortium blog, Doc Seals analyzes the Eldred case in terms of legal, political, and metaphorical impact:
The third is metaphorical. I believe Hollywood won because they have successfully repositioned copyright as a property issue. In other words, they successfully urged the world to understand copyright in terms of property. Copyright = property may not be accurate in a strict legal sense, but it still makes common sense, even to the Supreme Court. Here’s how Richard Bennett puts it:
The issue here isn’t enumeration, or the ability of Congress to pass laws of national scope regarding copyright; the copyright power is clearly enumerated in the Constitution. The issue, at least for the conservative justices who sided with the majority is more likely the protection of property rights. In order to argue against that, Lessig would have had to argue for a communal property right that was put at odds with the individual property right of the copyright holder, and even that would be thin skating at best. So the Supremes did the only possible thing with respect to property rights and the clearly enumerated power the Constitution gives Congress to protect copyright.
Watch the language. While the one side talks about licenses with verbs like copy, distribute, play, share and perform, the other side talks about rights with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate, infringe, and steal.
While it’s always nice to see yourself quoted, I think this analysis is overly complex. Copyright law is simply a Congressional prerogative, according to the clear language of the Constitution. It’s an area of law in which there has been very little litigation, so case law must defer to the black-letter law emanating from Washington unless or until there’s a gross overstepping of authority in the part of Congress, and simply extending the term from n years to n + 20 doesn’t hit that mark.
The proper venue for modification of copyright law is Congress, not the courts, and it’s more than a little interesting to speculate about what might have happened if the effort spent on the Eldred case had been instead directed to lobbying Congress for the last four years.
In some sense, Hollywood benefits from a robust public domain at least as much – and probably more – than the public, as has been noted in many of the denunciations of the apparent hypocrisy of Disney building its empire largely on the backs of public domain stories.
A compromise that keeps the public domain growing by the absorption of works of little commercial value while protecting Mickey Mouse for the Disney Corp. isn’t a hard thing to work out politically, and that’s the direction that public domain advocates should be headed, according to the dissenting opinions in Eldred in particular.
The irony of this case is that the public domain advocates, to a man strong believers in democracy, chose to press the issue before the least democratic branch of government when the path to success leads through the most democratic branch, the legislative. But lobbying is a messy business, and lawsuits are crisp, clear, and final.
Well put.
To clarify one point, I think it appears that we’ve only pressed the issue in the Supreme Court because Larry Lessig has been singularly energetic and effective, while those of us who should be working on other fronts have failed almost across the board. Myself included.
Larry has called the pro-commons rank & rile to task on this issue, many times, to little effect — so far, at least.
Lobbying is also more than a messy business; it’s an expensive one. And commons-friendly companies with the pockets to support a lobbying effort — Intel, Dell, Apple, Gateway — haven’t stepped up (well, Andy Grove and a couple others from Intel have, but not to great effect).
Money or not, we need to work on some achievable goals, like the compromise you suggest. That’s a good first step.
Contrary to popular belief, lobbying isn’t necessarily expensive if you do it right; I lobbied the California Legislature for several years to reasonably good effect for fathers and the children of divorce. What you need is somebody in DC who’s connected enough to get meetings with the lobbyists who represent affected industries and persistent enough to get meetings with friendly legislators. In the beginning, you’ll be shuttled off to staffers, but when you find the right member (of Congress), you’ll get to meet them in person.
If you’re not in Washington, you can ask your local Congressman for a meeting, and you may find them sympathetic.
The main thing is that it’s a matter of personal contact, flexibility, and persistence.
What Richard says is right on, except that he left one very important item out of the last sentence:
Don’t be an asshole.
When I was standing in line for the oral arguments, the guy in front of me had on an EFF baseball cap, sandals with no socks, and jeans. A nice guy–we talked quite a bit, he and I and a gentleman from an IP lawyers association–but I thought to myself, “We’re going into the presence of the highest court in the land, and you aren’t wearing socks! What are you thinking?”
I don’t mean to take him to task–maybe those were the best clothes he had (I’ve been there)–but if he’d shown up like that for a citizen’s lobbying day that I was running, I’ve told him to go home.