One of the things I truly love about the Internet’s influence on human psychology is that there seems to be something about the act of typing publicly in real-time that makes so many of us into armchair experts on just about any subject we choose. This is particularly striking when it comes to complex legal matters, and if you are unfortunate enough to find yourself engaged in a “discussion” about copyright, you will invariably encounter invocations of the Constitution and proclamations of reason from people who are not legal professionals of any kind, let alone intellectual property law. Whenever I hear someone use the terms “copyright maximalist” or “copyright monopoly,” it reminds me of social conservatives who use the term “activist judges” to sweep away some legal principle that doesn’t square with their personal agendas.
Several months ago, Registrar of Copyrights Maria Pallante made a statement in an interview that was not only innocuous, but also happened to be correct. She said that “Copyright is for the author first and the nation second.” Silicon Valley’s Representative Zoe Lofgren, however, decided to take Pallante to task in a Congressional hearing; and TechDirt editor Mike Masnick got his righteous knickers in a twist over the whole non-issue. Masnick posted several articles blasting Pallante and provoking reader comments from some of the great armchair, Constitutional scholars of our times (no doubt, you’d know them by their avatars). One of these experts posed the following question, which is probably more telling than any of the ham-handed legal opinions put forth: “In this climate, is it still a realistic expectation to ask the public to allow artists to be full time artists?” If I read that statement out of context, I’d assume it came from a conservative politician who transparently disapproves of the NEA, and opaquely hates all us wierdo, liberal, artsy elitists. In other words, “Get a real job. You can write books, make movies, compose music as a hobby.” And, yes, this is the vision of technocrats and their supporters.
I try very hard not to presume any more legal expertise than the average citizen who hasn’t been to law school. As an exercise in logic, however, I find it impossible to see how the one-sentence clause in the Constitution on copyright could function in any other way than that described by Pallante — i.e. that creative work won’t benefit the public until it first benefits the creator(s); and both history and the rulings of numerous courts bear this out. But don’t take my word for it.
For anyone who is truly interested in dispassionate, professional, and well-written analysis of copyright fundamentals, it is hard to find a better source than Terry Hart, a young lawyer with a specialty in intellectual property law, who hosts the blog Copyhype, named by the ABA Journal as one of the top 100 legal blogs in the U.S. For example, I recommend Terry’s recent post on this this no-so-controversial statement by Maria Pallante.
People like Representative Lofgren and Mike Masnick have an axe to grind for a specific industry, and people like me and others who speak out from the point of view of creators can get more than a little emotional, especially when we encounter sentiments like the one above asking whether the “public should allow” us to make creative work a profession. So, I think it’s important, and frankly calming, to step away from the shouting and read the work of someone like Terry from time to time.
