June 1, 2004
Dear sirs:
On behalf of the Science Fiction and Fantasy Writers of America (www.sfwa.org), I submit our response to and comments on your copyright litigation, Kahle v. Ashcroft.
However altruistic your litigation's goals, we believe your approach is ill-conceived. We invite you to withdraw or appropriately limit/modify it in light of the arguments we lay out in our position letter.
In the meantime, in the interests of free speech and honest discourse, we request that you post this letter in a suitable place on your CIS Web site, with appropriate links to your litigation. We will likewise post any reply you wish to make on the SFWA Web site, www.sfwa.org.
Very truly yours,
David A. Smith
Chair, Contracts Committee
June 4, 2004, 1:19 PM
Mr. Smith,
Thank you for your letter.
As you know, Kahle v. Ashcroft raises a constitutional claim. If we are right that the existing copyright regime violates the constitution, I assume the SFWA does not believe an unconstitutional regulation of the creative process should be allowed to stand. If we are wrong, then of course the existing system remains, though our hope is even then, attention to the inefficient burdens of copyright might suggest reform.
Of course, that reform need not be limited to a return to inefficiencies of the past. Burdensome registration requirements are not the only alternative to the burdensome absence of any effective record of what work is protected and what work is not.
One other point: It is not accurate to say that before the changes in 1976, a work was not copyrighted until registered. In fact, there was copyright under state law immediately upon fixation (and sometimes even without fixation); the relevant FEDERAL question happened after a work was "published." Publication was the act that dedicated a work to the public domain, unless protection was claimed.
I'm happy to have a link to your letter posted on our site. Can you send me a link? We'll invite others to contribute to the conversation around this as well.
Thank you again.
Lawrence Lessig
June 7, 2004, 5:21 PM
Dear Professor Lessig:
Good to hear from you, and thanks for agreeing to post SFWA's letter. As soon as we have it up on the SFWA Web site (www.sfwa.org), I'll send you its URL so you can link directly there. And we'll do the same once we have the URL from your site.
Beyond the legal question your litigation has posed as to the CTEA's constitutionality, there is also the more important question of its policy merits. Here I believe you have unintentionally presented us with a false dichotomy: Either the CTEA is unconstitutional (in which case the unconstitutional provisions are struck down irrespective of their policy implications), or it is constitutional but bad policy and should be reformed.
Setting aside the narrow question of constitutionality (about which our letter gives our perspective), SFWA does not concede the CTEA is flawed in a policy sense; hence, I believe the motivating premise behind your litigation—that there is an urgent need to overhaul the CTEA, either via a constitutionality overturn or via a legislated amendment or restatement—remains far from proven, based on the evidence you have so far provided.
Your position seems to assume that all problems arise for all works, and that all these problems are caused by the CTEA. Our letter demonstrates that some problems of the type you cite arise for some works (an unknown but evidently very small fraction of all works subject to the CTEA). Without addressing whether these problems—in whatever magnitude per work and frequency of works affected—are caused by the CTEA, we recommend changes other than disposing of the CTEA.
In your view, to advocate for a reform as radical as wiping out a broad statute on constitutionality grounds may require only a narrow holding of unconstitutionality in some constituent part for some harmed properties. That is not my view, nor will it win you many adherents. Such advocacy requires not only demonstrating constitutionally-based harm to some but also reasonable demonstrations that your cure—rescission—is worse than the disease. To show this, I encourage you to demonstrate that no other, less painful change, could accomplish the same thing.
SFWA and I submit that these latter tests, your litigation and campaign have not yet met—and we sent you our position partly to encourage you to develop and refine your arguments.
Quite possibly SFWA may have common cause with you in the realm of artists' freedom for derivative creations. Speaking for myself a fiction author and not a lawyer, I think I should be able to use in my fiction concepts and symbols whose very success (spurred in part by copyright protection) has brought them into the public domain. Sherlock Holmes is in the public domain; Mickey Mouse is not; Barbie and Elvis may or may not be depending on who you ask; yet everybody knows who they are. As such, they are all part of the American consciousness and should be legitimate grounds for new artistic expression without violating such copyrights as remain to their creators.
If that extended fair use is your goal—as I think you told the Washington Post—that is a goal I (and possibly SFWA, although on this point I cannot speak for the organization right now) could support. In its pursuit, are there not approaches—legal and political—much better than seeking to overturn the entire CTEA statute?
David 6/7/04
PS I appreciate your technical correction regarding pre-1976 copyright at the state level. Since the CTEA is a Federal statute, we were focusing on the Federal copyright scheme, but we'll note the distinction in subsequent materials.
June 9, 2004, 4:03 PM
David (if I may, and please call me Larry):
Thanks for the email. I'm encouraged that you're eager—as are we—to strengthen fair use, and there are lots of projects we've launched to do exactly that. But re this litigation, let's be precise: The core claim we are making is Count 1. That claim is not that copyright terms can't be extended, but that any extension should have some sort of filter to separate out valid/valued copyrights from works no longer needing copyright. That mechanism could of course be extremely simple—a "one click" registration program-and no doubt even that would cause some burden to existing authors. But between the (what could be trivial) burden to authors and the real and significant burden to those who would spread creative work caused by the existing lack of formalities, we think the latter is the greater harm. I can see your position if your view is—regardless of the harm to society, we care only about the harm to SFWA. Then there's no way I can answer against you on that: no doubt, I believe copyright owners should bear more of the burden to sustain copyright protection. But if you think society is better off in the non-formality world of today, then, with respect, I believe you are incorrect, and at least there's a ground upon which to disagree.
Either way, the essence of Count I would not eliminate CTEA—just require its repassage with the proper formalities inscribed.
Jun 12, 2004, 12:03 AM
Dear Larry:
Sorry for the delay; work-reality interposed itself on our dialog. SFWA's statement is posted at http://www.sfwa.org/contracts/sfwa-ctea.pdf, with an introduction and links to your litigation at http://www.sfwa.org/contracts/ctea.htm. I believe that you make a persuasive policy case—with which I and many others agree—on two points:
1. Copyright term ought to be finite and tied to a natural boundary relative to its creator ( (e.g. the author's lifetime plus something). When copyright horizons outstrip that boundary (or its format is transmogrified by vesting in or creation by an indefinite-lived entity like a corporation), they could be self-perpetuating and, in practice, perpetual.
2. Regardless of copyright's duration, it applies to the core seminal work that reaches an outer bound defined somewhere by fair use, legitimate derivative, and absorption into the zeitgeist. That boundary lies at the balancing point of tension between these two competing objectives. It should be drawn fairly; an overweening copyright could render fair use toothless and thus squeeze derivation-de-novo (to coin a phrase) into an ever-vanishing space, especially in a legal space of self-perpetuating copyright.
But even if you and I stipulate that these are observed policy flaws in portions of the CTEA, Count 1 (the heart of your case) makes a constitutional claim ("this extension provision is unconstitutional") whose proposed remedy is an advisability measure ("any extension should have some sort of filter"). For us, the one does not follow from the other; I don't see how the mechanic of potential future extension should be the hinge on which constitutionality stands or falls.
Constitutionality arguments can be content-free. Laws can be good policy but unconstitutional. They can also be bad policy yet entirely constitutional. Now, if one is right on the constitutionality, it's a nifty shortcut—you can sidestep all policy discussion and prestidigitate past the policy merits. In several other contexts, I have seen constitutionality arguments fired as a kind of silver bullet seeking to avoid having to engage at a political level. (Hey, if you can get five of the magic nine to see it your way, who cares what the elected representatives think, much less the general public?) Sometimes that's the only way to go.
But if the constitutionality is wrong or problematic, it's isolating, since it makes no appeal to those on whose behalf relief is being sought ... and therefore can alienate advocates from their natural allies. So if it's not the only way to go, its pursuit can blind its pursuers to other avenues that might be more promising, if slower and messier.
Here you and I lack common ground on constitutionality, but we are gaining common ground on policy. Perhaps more broadly, the issues are political and policy, rather than legal.
In our parochial context, we at SFWA are uncomfortable—not for ourselves, but for the creative class as an entirety, and for all consumers of creativity—with your litigation's sweeping generalizations about all works; WFH and different-media are clearly distinguishable, both as to problem and as to likeliest venue of appropriate remedy. This is our area of expertise and experience. Our letter makes these points, both in concept and with real examples, and you have not addressed them. I wish you would, both for us and for you. After all, if your silver bullet does take down the CTEA, they become topics for discussion in a different forum. In the meantime, I believe your campaign needs to acknowledge these—and refine your position—before it can expect to garner support from the writing community. Such consensus building can do no harm to your case—and would if sustained help your case, especially at higher levels of judicial review. Meanwhile, consensus building would in fact create a second (and in my view superior) policy strategy in the event that the constitutionality challenge fizzles.
In short—and here I speak as one who has personally fought public-policy battles in both legal and political forums—I believe the change you seek will come from means not legal but political. If so, the ultimate audience to whom appeal should be not the Supreme Court's 9 appointees, but Congress's 535 elected representatives. Persuading a majority of them requires building a consensus for change more than simply trying to trump policy (wise or misguided) with constitutionality.
Which, I think, starts with stakeholders like us. In that vein, let's continue the dialog to expand our grounds common and shrink our grounds uncommon.
David
June 23, 2004
David,
Thanks for the email, and I apologize too for the delay in responding. I guess I'm not sure how far away we are. We view the risk of a finding of unconstitutionality as a strong incentive for congress to address the concern re orphans. If congress did address that—in time—then it would moot the case. So this is not either/or: If Congress took seriously its obligations, then the need for constitutional review would be reduced.
We'll post a link on our site.
Thanks again.
Larry