Meera Nair

Eight years after Eldred

In Posts on January 14, 2011 at 7:18 pm

January 15 marks a copyright anniversary — the Supreme Court of the United States handed down their decision for Eldred v. Ashcroft on January 15, 2003.

Eric Eldred produced html books from public domain material. In The Future of Ideas, Lawrence Lessig describes Eldred’s motivation; it began with his daughter’s school assignment about The Scarlet Letter. Finding no usable material on the Web, Eldred created an html copy and made it available for all. A legitimate action, given that Nathaniel Hawthorne died in 1864. Eldred’s interest in these early e-books continued and he created many more derivative works of public domain material. However, the 1998 extension of copyright term in the United States brought a halt to his plans to release work written by Robert Frost. Frost’s work, about to enter the public domain, became tied up for another twenty years.

With the aid of Lawrence Lessig and others, a legal challenge began. They argued that although the Copyright Clause within the United States Constitution allows Congress the right to grant authors exclusive rights, those rights were explicitly deemed to be for “limited times.” Continuous renewal of copyright defeats the intention that copyright should end. Moreover, retroactive copyright term extension compromises the freedom of speech guaranteed by the First Amendment.

The case was lost at all three levels of the American judiciary: the District Court, the Court of Appeals for the District of Columbia Circuit, and finally at the Supreme Court. Justice Ginsburg delivered the final opinion; with a 7-2 decision it was held that the 1998 Copyright Term Extension Act (CTEA), which extended copyright in the United States by 20 years for both new and existing works, did not violate the constitutional parameters of either the Copyright Clause or the First Amendment.

On January 16, 2003 the New York Times delivered an opinion of its own. An editorial titled, The Coming of Copyright Perpetuity summed up the mood that day:

In effect, the Supreme Court’s decision makes it likely that we are seeing the end of the public domain and the birth of copyright perpetuity. Public Domain has been a grand experiment and one that should not be allowed to die. The ability to draw freely on the entire creative output of humanity is one of the reasons we live in a time of such fruitful creative ferment.

When I read that editorial in 2003, I needed my library-paid subscription to retrieve it. Since then, NYT has made their work publicly available. As have many media outlets. Lessig’s loss at the Supreme Court spurred him onto further efforts — namely the founding of Creative Commons (CC). In eight years CC has blossomed across more than fifty jurisdictions; thousands of people have chosen to enhance the public domain by granting access to their own copyrighted material. And Robert Frost’s work — seemingly untouchable in 1999 — is available, as I discovered a few weeks ago. Presumably, his copyright holders do not object… With the passage of time, business and personal practices are finding co-existence in our digitally-connected world.

If future amendment of copyright is needed, ideally speaking, copyright terms should decrease. It remains that good works are financial remunerative, even after their copyright term has expired. The many editions of the works of Jane Austen and Lucy Maud Montgomery stand as testimonial. And the economic analyses conducted in the Eldred case illustrates how little commercial gain actually occurs, for most works, over a lengthy copyright term (see Justice Breyer’s dissent.)

But since the world is less than ideal, fair dealing becomes even more important. The public domain isn’t dead yet; fair dealing allows it to keep growing.

  1. Thank you for this excellent memorial. Since the Eldred case beginning in 1998, the public domain has increased, thanks to the internet and volunteers who care for our common culture. The need for a way to share works legally has only increased. Copyright law, which was invented to increase access to works, needs to be reworked to protect the public domain as well as authors and publishers. I’m looking forward to a movement toward such changes in about nine years, when the law in the US comes up for renewal. What kind of a blog will you write on the 20th anniversary of the decision?

    • And thank you for your kind remarks. The next twelve years are difficult to gauge. Old-school content industries continue to dominate political copyright debate. For instance, Canada is poised to change its Copyright Act; the first major revision since 1997. Yet the proposed amendments are closely aligned with the DMCA of 1998; the benefit of waiting has not been capitalized upon. However, on the international front, greater flexibility with law and broader negotiation are possible – consider Israel’s progressive moves with their amendment in 2007, and India’s polite, but firm, recent condemnation of the ACTA process. Much will depend on continued citizen engagement. On that note, I feel optimistic.

  2. [...] you’re going to write a panegyric to a failed court case (“Eight Years After Eldred”), at least have the intellectual integrity to admit that Larry Lessig blew that case in the U.S. [...]

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