Givings and the next copyright deferment

Fordham Law Review

Volumn 77, Issue 2, 2008, Pages 809-850

  Bowen Jr , Lindsay Warren ^a  

^a NONE

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EID: 58049186345     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (282)

1. Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 (codified as amended in scattered sections of 17 U.S.C.).
2. Gideon Parchomovsky & Kevin A. Goldman, Fair Use Harbors, 93 VA. L. REV. 1483, 1484-85 (2007).
3. 537 U.S. 186 (2003).
4. 17 U.S.C. § 301 (2000) (changing the length of copyright protection for works published after 1978, works created before 1978, or works in the renewal term of copyright in 1998, rather than just new works).
5. Eldred, 537 U.S. at 222.
6. Id.
7. Id. at 220-22.
8. See, e.g., Brief of Amicus Curiae Intel Corporation in Partial Support of Petitioners at 10, Eldred, 537 U.S. 186 (No. 01-618) (stressing a link between a steady decrease in the availability of public domain material and slowing of technical innovation); Brief of Amici Curiae National Writers Union et al. in Support of Petitioners at 25, Eldred, 537 U.S. 186 (No. 01-618) (describing the "expense, hardship and uncertainty, all of which stifle the creative process" on new artists who are forced to license underlying works); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354, 394-95 (1999) (arguing that media "enclosure" will foster private censorship); James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, LAW & CONTEMP. PROBS., Winter/Spring 2003, at 33, 33-40 (2003) (describing the "first" and "second" enclosures); Peter K. Yu, The International Enclosure Movement, 82 IND. L.J. 827, 828-40 (2007) (extending the debate over "the enclosure of the public domain" to international pharmaceutical intellectual property disputes).
9. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985).
10. Benkler, supra note 8, at 359 ("A world dominated by Disney, News Corp., and Time Warner appears to be the expected and rational response to excessive enclosure of the public domain.").
11. See, e.g., Cory Doctorow, Creative Commons, LOCUS ONLINE FEATURES, NOV. 8, 2007, http://www.locusmag. com/Features/2007/11/cory-doctorow-creative-commons.html; David A. Harding, Stallman's Copyright Versus Community Speech 26 March 2007, GNUISANCE.nET, Apr. 11, 2007, http://gnuisance.net/blog/t/ 2007/rms-report-2007.html; Eben Moglen, Talk to the Internet Society, New York Chapter, at Jefferson Markey Library in Greenwich Village, New York City: Free Software and Free Media (May 3, 2006), available at http://en.wikisource. org/wiki/Free-Software-and-Free-Media; see also XKCD: A Webcomic of Romance, Sarcasm, Math, and Language, http://xkcd.com/343/(last visited Oct. 17, 2008) (depicting a hero who learns "about the monstrosity that is U.S. Copyright law" from Lawrence Lessig and faces down katana-wielding RIAA executives with the help of activists Richard Stallman and Cory Doctorow).
12. Paul M. Schwartz & William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 YALE L.J. 2331, 2334 (2003); see also Craig W. Dallon, Original Intent and the Copyright Clause: Eldred v. Ashcroft Gets It Right, 50 ST. LOUIS U. L.J. 307 (2006).
13. Eldred, 537 U.S. at 187-88; Schwartz & Treanor, supra note 12, at 2334.
14. Shakespearian clown Launcelot Gobbo faced a similar task in choosing between two authorities, an imaginary angel and devil, in The Merchant of Venice: "'Conscience,' say I, 'you counsel well;' '[f]iend,' say I, 'you counsel well....'" WILLIAM SHAKESPEARE, THE MERCHANT oF VENICE act 2, sc. 2. Gobbo eventually followed the fiend, ignoring any possible market-based approach to his problem. Id.
15. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
16. This Note uses the term "deferment" because, as in loan deferment or draft deferment, it connotes a delay in performance of a duty, rather than a reprieve from a looming deadline. Other commonly used terms have been cited as containing value judgments about the provenance of creativity and the desirability of the public domain. The most commonly used phrasing of an "extension" that prevents works from "falling into the public domain" is loaded in the direction of the moral rights of copyright holders. Such an understanding misses the perspective of the public, which is denied a benefit when the public domain date is deferred. See Tyler T. Ochoa, Origins and Meanings of the Public Domain, 28 U. DAYTON L. REV. 215, 256 (2002) (decrying "the commonly used phrase 'fallen into the public domain' [because] [i]t sounds as if the work has fallen into a black hole, never to be heard from again"); Chris Sprigman, The Mouse that Ate the Public Domain: Disney, the Copyright Term Extension Act, and Eldred v. Ashcroft, FINDLAW'S WRIT, Mar. 5, 2002, http://writ.news.findlaw.com/commentary/20020305-sprigman.html ("The linguistic convention by which works 'fall' when they enter the public domain is revealing: immanent in the phrase is the notion that a work is debased when no longer copyrighted. Perhaps it is this view that allows statutes that shrink the public domain to gain widespread support."). On the other hand, activists who prefer to speak of "freeing" works from copyright also are loading their language. See Mark Helprin, Op-Ed, A Great Idea Lives Forever. Shouldn 't Its Copyright?, N.Y. TIMES, May 20, 2007, at A12 ("'Freeing' a literary work into the public domain is less a public benefit than a transfer of wealth from the families of American writers to the executives and stockholders of various businesses.....").
17. See, e.g., Daniel A. Farber, Conflicting Visions and Contested Baselines: Intellectual Property and Free Speech in the "Digital Millennium," 89 MINN. L. REV. 1318 (2005) (calling the debate "a culture war of sorts").
18. Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007); see also Kahle v. Gonzales, 474 F.3d 665, 667 (9th Cir. 2007).
19. Commission Proposal for a European Parliament and Council Directive Amending Directive 2006/116/EC of the European Parliament and of the Council on the Term of Protection of Copyright and Related Rights, at 15-16, COM (2008)464 final (July 16, 2008) [hereinafter European Proposal], available at http://eur-lex.europa.eu/LexUriServ/LexUri Serv.do?uri=COM:2008:0464:FIN: EN:PDF.
20. See, e.g., LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY aND tHE LAW tO LOCK DOWN CULTURE AND CONTROL CREATIVITY 228 (2004).
21. U.S. CONST. amend. V ("[N]or shall private property be taken for public use, without just compensation.").
22. Abraham Bell & Gideon Parchomovsky, Givings, 111 YALE L.J. 547 (2001).
23. Eldred v. Ashcroft, 537 U.S. 186, 212 n.18 (2003) ("[C]opyright law serves public ends by providing individuals with an incentive to pursue private ones."); see also Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985) ("By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas."); William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325, 333 (1989) (characterizing the copyright doctrines of fair use and the idea/expression dichotomy as "attempts to promote economic efficiency").
24. U.S. CONST. art. I, § 8, cl. 8.
25. See LESSIG, supra note 20, at 24-25.
26. See, e.g., Act of Feb. 3, 1831, ch. 16, § 1, 4 Stat. 436, repealed by Act of July 8, 1870, ch. 230, § 86, 16 Stat. 198, repealed by Act of March 4, 1909, ch. 320, § 1(b), 35 Stat. 1075.
27. 144 CONG REC. S205-06 (daily ed. Jan. 29, 1998) (statement of Sen. Leahy).
28. Id. (quoting U.S. CONST. art I, § 8, cl. 8.)
29. "The utility of this power will scarcely be questioned. The copy-right of authors [is], in Great Britain ... a right at common law.... The public good fully coincides in both cases with the claims of individuals. The states cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of congress." THE FEDERALIST NO. 43 (James Madison); see also William M. Landes & Richard A. Posner, Infinitely Renewable Copyright, 70 U. CHI. L. REV. 471, 472-73 (2003) (agreeing that "it was English practice that provided the model and inspiration for the Copyright Clause of the Constitution and for the early federal copyright statutes").
30. See Eldred v. Ashcroft, 537 U.S. 186, 246-47 (2003) (Breyer, J., dissenting). See generally Schwartz & Treanor, supra, note 12.
31. See Eldred, 537 U.S. at 260 (Breyer, J., dissenting).
32. *406-07 (describing a Roman civil law protecting copyright by securing rights of artists but not of scribes).
33. The most recent incarnation of the censorship law that reserved exclusive rights to publish in the Stationer's Company had expired fifteen years before. Paula Baron, The Moebuis Strip: Private Rights and Public Use in Copyright Law, 70 ALB. L. REV. 1227, 1237-38 (2007). The statute, in part, admonished that "[p]rinters, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing ... books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families." Statute of Anne, 1710, 8 Ann., c. 19 (Eng.).
34. See Statute of Anne, 1710, 8 Ann., c. 19 (Eng.). Several states also had common law copyright, which remain in place for unfixed works only. See, e.g., CAL. CIV. CODE §§ 980-982 (West 2008).
35. See Schwartz & Treanor, supra note 12, at 2387-88. It is worth noting that James Madison was involved in the debates over the Act and appeared to support its basic aim of expanding copyright beyond the narrowest of enumerated powers. Id. at 2388.
36. Id.
37. See, e.g., White-Smith Music Publ'g Co. v. Apollo Co., 209 U.S. 1, 8-9 (1908); Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59-60 (1884). These cases were precursors to modern cases like Lotus Development Corp. v. Borland International, Inc., 516 U.S. 233 (1996) (per curiam), and Franklin Computer Corp. v. Apple Computer, Inc., 464 U.S. 1033 (1984).
38. See, e.g., Baker v. Selden, 101 U.S. 99 (1879).
39. See, e.g., Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4901).
40. One example of this was the "Gentlemen's Agreement," which was a forerunner to the modern doctrine of fair use. Parchomovsky & Goldman, supra note 2, at 1504-05.
41. Doris Long & Richard Bilder, Recent Books on International Law, 96 AM. J. INT'L L. 755, 756 (2002).
42. "[T]he enjoyment and the exercise of these rights shall not be subject to any formality." Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended on Sept. 29, 1979, 25 U.S.T. 1341, 828 U.N.T.S. 221; see also Justin Hughes, Size Matters (or Should) in Copyright Law, 74 FORDHAM L. REV. 575, 615 n.236 (2005).
43. Hughes, supra note 42, at 615.
44. Neil Netanel, Alienability Restrictions and the Enhancement of Author Autonomy in United States and Continental Copyright Law, 12 CARDOZO ARTS & ENT. L.J. 1, 13-14 (1994) ("In contrast to the utilitarian approach that dominates American copyright doctrine, Continental jurists have generally been reluctant to see copyright as a sui generis, instrumentalist construct.").
45. Irwin Karp, Final Report, Berne Article 18 Study on Retroactive United States Copyright Protection for Berne and Other Works, 20 COLUM.-VLA J.L. & ARTS 157, 166 (1996).
46. John R. Kettle III, Dancing to the Beat of a Different Drummer: Global Harmonization-and the Need for Congress To Get in Step with a Full Public Performance Right for Sound Recordings, 12 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1041, 1074 (2002).
47. Edward Lee, The Public's Domain: The Evolution of Legal Restraints on the Government's Power to Control Public Access Through Secrecy or Intellectual Property, 55 HASTINGS L.J. 91, 177 n.418 (2003) ("Significantly, after joining Berne and enacting the Berne Convention Implementation Act to comply with its obligations under Berne, the United States did not adopt a copyright restoration provision." (citing Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, § 7, 102 Stat. 2857-58 (codified as amended in scattered sections of 17 U.S.C.))); see also William Parry, The United States and International Copyright Law: From Berne to Eldred, 40 HOUS. L. REV. 749, 751-52 (2003); Dennis S. Karjala, Harmonization Chart Comparing Terms in U.S. and E.U., http://homepages.law.asu.edu/∼dkarjala/OpposingCopyrightExtension/legmats/ Harmonizatio nChartDSK.html (last visited Oct. 17, 2008).
48. Compare Mazer v. Stein, 347 U.S. 201, 219 (1954) ("The economic philosophy behind the clause empowering Congress to grant.. . copyrights is the conviction that [it] is the best way to advance public welfare through the talents of authors...."), with Netanel, supra note 44, at 14 ("[European jurists] have devoted substantial effort and imagination in the attempt to assimilate copyright within, or at least place it in relation to, the classical Roman law subdivision of rights: personality rights... real rights... and personal rights. . . ."). But see Greenberg, supra note 32, at 11 ("[Copyright] now also serves, in the United States, as the creative persons' equivalent of droit morale.").
49. An Act to Amend and Consolidate the Acts Respecting Copyright, ch. 320, 35 Stat. 1075, 1080 (1909) (repealed 1976).
50. Protection was secured instead by publication with a copyright notice, such as the now-familiar "©" symbol. Id. at 1077-79.
51. STEAMBOAT WILLIE (Walt Disney Productions 1928); see also IMDb: The Internet Movie Database, Steamboat Willie (1928), http://www.imdb.com/title/tt0019422/(last visited Oct. 17,2008).
52. Professor Lawrence Lessig refers to Steamboat Willie as a borrowed "knockoff' of Buster Keaton's Steamboat Bill, Jr., while other commentators express doubt that it is even a parody. LESSIG, supra note 20, at 23; Lessig Blog, "It's Simple" Says the MANes, http://lessig.org/blog/2004/04/its-simple-says-the-manes.html (April 2, 2004, 20:10 EST). Contra Stephen Manes, Let's Have Less of Lessig, FORBES.COM, Apr. 2, 2004, http://www.fbrbes.com/2004/04/02/cz-sm- 0402manes-print.html.
53. Jesse Green, Building a Better Mouse, NY. TIMES, Apr. 18, 2004, at AR 1.
54. See Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 757-58 (9th Cir. 1978) (finding no fair use in underground comics depicting Mickey and his friends in sexual and drugrelated activity); Lawrence Lessig, Protecting Mickey Mouse at Art's Expense, N.Y. TIMES, Jan. 18, 2003, at A17; Andrew O'Hehir, Mickey Mouse Is the Devil, SALON.COM, Apr. 16, 2001, http://archive.salon.com/ent/feature/2001/04/16/billy/print.html (chronicling the crusade of anti-Disney activist and performance artist Bill "Reverend Billy" Talen).
55. 17 U.S.C. § 302(a) (2006).
56. This work for hire provision is now an essential component of the motion picture and other right-holding industries. However, it seems, at first glance, to be directly contrary to the text of the Copyright Clause's protection for "Authors." U.S. CONST. art. I § 8.
57. H.R. REP. NO. 94-1476, at 47 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5660 ("Since [the 1909 Copyright Act] significant changes in technology have affected the operation of the copyright law."). In 1992, the Copyright Renewal Act removed the requirement of formally applying for the extension, making renewal automatic for current rightsholders. Pub. L. No. 102-307, 106 Stat. 264, 265 (1992) (codified at 17 U.S.C. § 304(a)).
58. H.R. REP. No. 94-1476, at 65-74, reprinted in 1976 U.S.C.C.A.N. 5659, 5678-88; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 574-77 (1994).
59. Campbell, 510 U.S. at 576-77. Notably, one of the four factors in determining fair use is the existence of harm to any potential market a copyrighted work might have. Parchomovsky & Goldman, supra note 2, at 1495.
60. 17 U.S.C. § 104A.
61. See id. § 1101; see also Adam Regoli, The Next (and Last?) Constitutional Copyright Case, 6 VA. SPORTS & ENT. L.J. 243, 247 (2007) ("The importance of [Trade- Related Aspects of Intellectual Property Rights (TRIPs)] to the United States cannot be overstated. As the largest producer of intellectual property in the world by far, the United States has a significant stake in attempting to assure that intellectual property receives protection around the world." (footnote omitted)).
62. Lee, supra note 47.
63. Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 (codified as amended in scattered sections of 17 U.S.C.).
64. Id. § 102(b)(1)-(2). But see Joseph Menn, Disney's Rights to Young Mickey Mouse May Be Wrong, L.A. TIMES, Aug. 22, 2008, at 1 (outlining a recently popularized controversy over copyright formalities that could mean that Steamboat Willie copyrights are invalid on other grounds).
65. Pub. L. No. 105-298, § 102(b)(3)(A)-(B), 112 Stat. 2827, 2827.
66. See, e.g., John Kay, Comment: Musicians' Demands for Copyright Extension Are Off Key, FIN. TIMES, Dec. 12, 2006, at 15 ("In 1998, the Disney Corporation persuaded US Congress to extend the company's exclusive rights to Mickey Mouse and its stable of cartoon characters.").
67. See 141 CONG. REC. 6550-53 (1995) (statement of Sen. Hatch); see also 141 CONG. REC. S261 (1995) (statement of Rep. Moorhead); Marc Shugold, Copyright Fight Transcends Cat and Mouse, DENV. ROCKY MOUNTAIN NEWS, Oct. 5, 2002, at 7D (quoting Fred Koenigsberg, a lawyer representing copyright holders in Eldred, saying that, "[t]he European Union is our largest trade partner," and because U.S. copyright would be twemty years shorter that the E.U.'s without the CTEA, "the money from 20 years of copyright protection would be lost. That's millions of dollars."); see also Milne ex rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1041 (9th Cir. 2005) (granddaughter of A.A. Milne "motivated by the recent enactment of the CTEA and its favorable treatment of authors' heirs" suing copyright assignee); Orrin Hatch, Toward a Principled Approach to Copyright Legislation at the Turn of the Millennium, 59 U. PITT L. REV. 719, 732-34 (1998) ("Among the primary justifications [for the] life-plus-70 term... was the conclusion that the life-plus- 50 term is no longer sufficient to protect two generations of an author's heirs."); Shugold, supra (giving further justification for the extension as providing greater protections for authors "plus two generations, so that [an] author's grandchildren could realize royalties").
68. Karjala, supra note 47.
69. Eldred v. Ashcroft, 537 U.S. 186, 193 (2003).
70. Schwartz & Treanor, supra note 12, at 2364.
71. Id. at 2333 n.11, 2348.
72. Eldred v. Reno, 239 F.3d 372, 380 (D.C. Cir. 2001).
73. United States v. Lopez, 514 U.S. 549, 567 (1995).
74. LESSIG, supra note 20, at 219-20 (discussing Eldred v. Ashcroft).
75. See generally Eldred v. Ashcroft, 537 U.S. 186, 193(2003).
76. See Schwartz & Treanor, supra note 12, at 2390-91.
77. See Reply Brief for the Petitioners at 2-7, Eldred, 537 U.S. 186 (No. 01-168).
78. See id. at 10-12.
79. See Schwartz & Treanor, supra note 12, at 2345-46 (summarizing Eldred's argument that "for all retroactive extensions, it makes no economic sense to create an incentive for work that has already been produced" (internal quotation marks omitted)).
80. See id. at 2333 n.11,2348.
81. Such scholars included George A. Akerlof, Kenneth J. Arrow, Timothy F. Bresnahan, James M. Buchanan, Ronald H. Coase, Linda R. Cohen, and Milton Friedman. See Brief of George A. Akerlof et al. as Amici Curiae in Support of Petitioners at 1A, Eldred, 537 U.S. 186 (No. 01-618); LESSIG, supra note 20, at 232.
82. See Brief of George A. Akerlof et al. as Amici Curiae in Support of Petitioners, supra note 81, at 1-3.
83. LESSIG, supra note 20, at 232; see also Brief of George A. Akerlof et al. as Amici Curiae in Support of Petitioners, supra note 81, at 11-12.
84. According to Robert Cooter, "'rent' refers to profits from passive ownership, as opposed to profits from productive activity." ROBERT D. COOTER, THE STRATEGIC CONSTITUTION 116 (1999), available at http://works.bepress.com/cgi/viewcontent.cgi? article=1039&context=robert-cooter. "Rent-seeking," in public choice theory, exists when an interested minority out-organizes more diffuse groups in order to influence legislation that benefits them. See DANIEL A. FARBER & PHILIP P. FRICKEY, LAW and PUBLIC CHOICE, a CRITICAL INTRODUCTION 15 n. 10 (1991). This behavior is often termed rent-seeking when the harm to society at large is greater than the benefits bestowed on the interested minority. Id. at 34. The means by which influence is brought to bear is generally political lobbying and electoral support for individual politicians whose self-interest in being re-elected makes them unreliable stewards of the public good. Id. at 20,22 & n.45.
85. See Brief of George A. Akerlof et al. as Amici Curiae in Support of Petitioners, supra note 81, at 5-8, 10-11, 14-15; see also Schwartz & Treanor, supra note 12, at 2348.
86. Eldred, 537 U.S. at 204, 212-13.
87. Id at 221, 264.
88. See Schwartz & Treanor, supra note 12, at 2350; see, e.g., Eldred, 537 U.S. 249-52, 255 (Breyer, J., dissenting).
89. Eldred, 537 U.S. at 199.
90. Id. at 209.
91. Id. at 204.
92. Id. at 200.
93. The Court went on to say, Congress' consistent historical practice of applying newly enacted copyright terms to future and existing copyrights reflects a judgment stated concisely by Representative Huntington at the time of the 1831 Act: "[J]ustice, policy, and equity alike forb[id]" that an "author who had sold his [work] a week ago, be placed in a worse situation than the author who should sell his work the day after the passing of [the] act." The CTEA follows this historical practice by keeping the duration provisions of the 1976 Act largely in place and simply adding 20 years to each of them. Id. at 204 (alterations in original) (citations omitted).
94. Id. at 199.
95. Id at 221.
96. Id. at 254-55 (Breyer, J., dissenting).
97. Id.
98. Id. at 255.
99. Id. at 226 (Stevens, J., dissenting) ("It would be manifestly unfair if, after issuing a patent, the Government as a representative of the public sought to modify the bargain by shortening the term of the patent in order to accelerate public access to the invention. The fairness considerations that underlie the constitutional protections against ex post facto laws and laws impairing the obligation of contracts would presumably disable Congress from making such a retroactive change in the public's bargain with an inventor without providing compensation for the taking."). But see Symposium, Panel II: Mickey Mice? Potential Ramifications of Eldred v. Ashcroft, 13 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 771, 784 (2003) [hereinafter Symposium, Mickey Mice?] (statement of Eben Moglen, Professor, Columbia University Law School, assuming that Congress could have chosen to shorten the length of copyright).
100. Eldred, 537 U.S. at 226 (Stevens, J., dissenting).
101. Kahle v. Gonzales, 474 F.3d 665, 666 (9th Cir. 2007).
102. Id.
103. Id. at 668.
104. Golan v. Gonzales, 501 F.3d 1179, 1192-96 (10th Cir. 2007).
105. Id. at 1183-84.
106. Id at 1182-83.
107. Golan v. Gonzales, No. Civ.01-B-1854(BNB), 2005 WL 914754, at *16-17 (D. Colo. Apr. 20, 2005).
108. Golan, 501 F.3d at 1192-96.
109. Id at 1189.
110. Id at 1196.
111. See id. at 1193. The dissent in Eldred made it clear that the free speech rights that the Court considered and denied in Eldred included "music fees that may prevent youth or community orchestras, or church choirs, from performing early 20th-century music." Eldred, 537 U.S. at 251 (Breyer, J., dissenting).
112. Schwartz & Treanor, supra note 12, at 2332; see also Greenberg, supra, note 32, at 4 (characterizing the term as "probably accurate" but "a bit incendiary").
113. See generally LESSIG, supra note 20. As Professor Lessig writes, he uses "free culture" in the sense of "free speech" and "free market" rather than "free beer" (as irresistible as the latter connotation may be). Id. at xiv.
114. See supra Part II.A.
115. Boyle, supra note 8, at 54; Neil Weinstock Netanel, Asserting Copyright's Democratic Principles in the Global Arena, 51 VAND. L. REV. 217, 248-49 (1998) (referring to copyright as a "necessary evil"); Mark S. Nadel, How Current Copyright Law Discourages Creative Output: The Overlooked Impact of Marketing, 19 BERKELEY TECH. L.J. 785, 789 (2004) (positing that copyright may hinder the goal of spurring creativity).
116. LESSIG, supra note 20, at 243-44.
117. Benkler, supra note 8, at 358.
118. See LESSIG, supra note 20, at 243-44.
119. Lessig points out that today's mass media (film, radio, cable television, and the recording industry) is the product of willful infringement, legitimized by Congress. Id.; see also Nadel, supra note 115, at 790 (arguing that copyright encourages low-quality "blockbuster" entertainment at the expense of more artistic endeavors).
120. There are numerous examples of government (beginning with the Founders) using similar mechanisms to hold property in trust for the citizenry, sometimes charging a usage fee to private citizens, including the Land Grants, and the beds of navigable rivers. See Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845); see also Boyle, supra note 8, at 59.
121. See, e.g., Landes & Posner, supra note 23, at 332; see also LESSIG, supra note 20, at 83 (refusing to recognize a difference between the ownership of ideas and expressions).
122. Henry E. Smith, Intellectual Property as Property: Delineating Entitlements in Information, 116 YALE L.J. 1742, 1771 (2007).
123. See id.
124. See Brief of George A. Akerlof et al. as Amici Curae in Support of Petitioners, supra note 81, at 12-15.
125. This idea is not unique to the Free Culture movement. See generally Landes & Posner, supra note 23.
126. See generally Boyle, supra note 8.
127. See, e.g., Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985) (characterizing copyright as "the engine of free expression"); supra notes 44, 48.
128. Eldred v. Ashcroft, 537 U.S. 186, 193 (2003).
129. Matthew Dean Stratton, Note, Will Lessig Succeed in Challenging the CTEA, Post- Eldred?, 15 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 893, 916 (2005). As a partial solution to the problem of rightsholders not being able to easily voluntarily disclaim copyright protections when they are unwanted, Electronic Frontier Foundation and Professor Lessig's Creative Commons organization have provided creators with more convenient licenses to allow public domain-like use of otherwise protected works. See generally Creative Commons, About, http://creativecommons.org/ about/(last visited Oct. 17, 2008).
130. MARYBETH PETERS, U.S. COPYRIGHT OFFICE, REPORT on ORPHAN WORKS: A REPORT of the REGISTER of COPYRIGHTS 1 (2006), available at http://www.copyright.gov/orphan/orphan-report-full.pdf.
131. Kahle v. Gonzales, 474 F.3d 665, 666-67 (9th Cir. 2007).
132. McGraw Hill Cos. v. Google Inc., No. 05-CV-8881 (S.D.N.Y. filed Oct. 19, 2005); Author's Guild v. Google Inc., No. 05-CV-8136 (S.D.N.Y. filed Sept. 20, 2005). For more discussion of orphaned works, see supra Parts II.C.l, III.B.
133. Reza Dibadj, Regulatory Givings and the Anticommons, 64 OHIO ST. L.J. 1041, 1047-51 (2003).
134. See, e.g., Shi-Ling Hsu, Fairness Versus Efficiency in Environmental Law, 31 ECOLOGY L.Q. 303,321 (2004).
135. See generally Green, supra note 53.
136. See LESSIG, supra note 20, at 216 ("[T]he practice [of extending copyright protection] had become .. . lucrative for Congress. Congress knows that copyright owners will be willing to pay a great deal of money to see their copyright terms extended. And so Congress is quite happy to keep this gravy train going. [This is] '[c]orruption' not in the sense that representatives are bribed. Rather, 'corruption' in the sense that the system induces the beneficiaries of Congress's acts to raise and give money to Congress to induce it to act. There's only so much time; there's only so much Congress can do. Why not limit its actions to those things it must do-and those things that pay? Extending copyright terms pays.").
137. Id. at 218 (citations omitted).
138. Symposium, Mickey Mice?, supra note 99, at 784 (Professor Moglen, commenting).
139. Noam Cohen, Taking the Copyright Fight Into a New Arena, N.Y. TIMES, July 2, 2007, at C3.
140. Schwartz & Treanor, supra note 12, at 2350-53, 2369.
141. See id. at 2387.
142. Id.
143. See Brief for Petitioners at 23-25, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-168); Schwartz & Treanor, supra note 12, at 2383.
144. See Eldred, 537 U.S. at 246-47 (Breyer, J., dissenting).
145. Schwartz & Treanor, supra note 12, at 2383-84.
146. Id.
147. Id. at 2384 (quoting Letter from James Madison to Thomas Jefferson (Oct. 17. 1788), in 1 THE REPUBLIC of LETTERS: THE CORRESPONDENCE BETWEEN THOMAS JEFFERSON and JAMES MADISON 1776-1790, at 562, 566 (James Morton Smith ed., 1995)).
148. Id. at 2334 (referring to Lochner v. New York, 198 U.S. 45 (1905)).
149. See Schwartz & Treanor, supra note 12, at 2359-61, 2400, 2411 (describing the jurisprudential aftermath of Lochner and positing that a decision for Eldred might not endure). It is also worth noting that the Court's decision in United States v. Lopez, 514 U.S. 549 (1995), a precedent that Professor Lessig thought would be determinative in Eldred, involved a federalism argument that was not implicated in Eldred. Rather than asserting the inability of Congress to pass a certain kind of law, Lopez stood for the proposition that the individual states, and not the federal government, properly held that power. See James E. Fleming, The New Constitutional Order and the Heartening of Conservative Constitutional Aspirations, 75 FORDHAM L. REV. 537, 537 (2006) (arguing that Lopez "really just sent a message to Congress that there is no general federal police power" rather than signaled a revolution in the Court's jurisprudence); Symposium, Panel III: United States v. Martignon-Case in Controversy, 16 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1223, 1270 (2006) (statement by Hugh Hanson, Professor of Law, Fordham University School of Law, pointing out that "[t]he real issue has been the respective legislative roles of Congress and the states," and that federalism concerns are inapposite to intellectual property legislation).
150. Schwartz & Treanor, supra note 12, at 2367-68.
151. LESSIG, supra note 20, at 18, 79.
152. Richard Koman, Eldred Opinion Met with Anger, Determination, O'REILLY POLICY DEVCENTER, Jan. 16, 2003, http://www.oreillynet.com/pub/a/policy/2003/01/16/Eldred.html.
153. Id.
154. Id.
155. See The Copyright Term Extension Act of 1995: Hearing on S. 483 Before the S. Comm. on the Judiciary, 104th Cong. 42 (1997) (statement of Jack Valenti, President, Motion Picture Association of America). But see Green, supra note 53 (reporting artists and media figures' assessments that Mickey Mouse has become a "deracinated" character through Disney's failure to reimagine what has become its corporate logo).
156. Philip Glass and several classical composers took a similarly long view in an amicus brief in Eldred. They argued that, in their genre, sixty years to reach public acceptance is not such an unusual wait. Brief of Symphonic and Concert Composers Jack Beeson et al. as Amici Curiae Supporting Respondent at 10-12, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618). Echoing testimony given to Congress during hearings on the CTEA, the composers added that after a long and productive career, they should be able to provide for their children and grandchildren in the same manner as successful people in other areas. Id. at 15-16; see also Eldred, 537 U.S. at 207-08 n.15 (recounting congressional testimony of Bob Dylan and Quincy Jones).
157. Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 293 (1996).
158. Keith Sharfman, The Law and Economics of Hoarding, 19 LOY. CONSUMER L. REV. 179,189-90(2007).
159. See Landes & Posner, supra note 23, at 326.
160. Id.
161. See id. at 328.
162. For an illustration of this concept of the purpose of copyright, see Smith, supra note 122, at 1745-48.
163. The classic explanation of the terms "rights" and "privileges" can be found in Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALEL.J. 710 (1917).
164. Smith, supra note 122, at 1766, 1772-73.
165. See BLACK'S LAW DICTIONARY 4 (8th ed. 2004); Smith, supra note 122, at 1772-73.
166. See BLACK'S LAW DICTIONARY 4 (8th ed. 2004); Smith, supra note 122, at 1766, 1772-73.
167. Smith, supra note 122, at 1766, 1772-73.
168. Id.
169. Id.
170. See Schwartz & Treanor, supra note 12, at 2343. This argument did not convince the Court, which saw any deferment granted as part of the copyright holders' bargained-for exchange, see Eldred v. Ashcroft, 537 U.S. 186, 189 (2003), but it nonetheless illustrates petitioner's economic point.
171. LESSIG, supra note 20, at 215-16.
172. Eldred,537 U.S.at 189.
173. Landes & Posner, supra note 23, at 332.
174. See Eldred, 537 U.S. at 251 (Breyer, J., dissenting) ("The older the work, the more likely it will prove useful to the historian, artist, or teacher."). Professor Joseph Liu makes a similar point in the fair use context, saying that "fair use should be greater for Mickey Mouse than for Harry Potter." Joseph P. Liu, Copyright and Time: A Proposal, 101 MICH. L. REV. 409,410 (2002) (citations omitted).
175. WALL-E (Pixar Animation Studios 2008).
176. LEGALLY BLONDE (Metro-Goldwyn-Mayer 2001).
177. Letter from Marybeth Peters, Register of Copyrights, to Sen. Orrin G. Hatch & Sen. Patrick Leahy (Jan. 23,2006), in PETERS, supra note 130.
178. Jason Schultz, The Myth of the 1976 Copyright "Chaos" Theory, available at http://www.lessig.org/blog/archives/jasonfinal.pdf.
179. Id. at 2.
180. PETERS, supra note 130, at 3.
181. See LESSIG, supra NOTE 20, AT 51; PARCHOMOVSKY & GOLDMAN, supra NOTE 2, AT 1498.
182. LESSIG, supra note 20, at 185-86.
183. Golan v. Gonzales, 501 F.3d 1179, 1182 (10th Cir. 2007).
184. See Parchomovsky & Goldman, supra note 2, at 1487.
185. See id. at 1487-88.
186. See, e.g., Mark A. Lemley, Should a Licensing Market Require Licensing?, LAW & CONTEMP. PROBS., Spring 2007, at 185, 198 (noting that Google could "potentially be liable for a minimum of $1.5 billion in statutory damages and a maximum of $300 billion" (footnote omitted)).
187. For a more complete discussion, see Parchomovsky & Goldman, supra note 2.
188. In 1998, Professor Richard A. Epstein discussed the constitutionality of the CTEA in a givings framework. See Richard A. Epstein, Rule of Law: Congress's Copyright Giveaway, WALL ST. J., Dec. 21, 1998, at A19. The scope of this Note, however, does not include any possible constitutional mandate for givings; it focuses on the Eldred debate in the givings context. As to this approach, the relevant literature only contains one short mention by Professor John F. Duffy, who said that the idea "seems commendable whether the giving is in physical property or not." John F. Duffy, Intellectual Property Isolationism and the Average Cost Thesis, 83 TEX. L. REV. 1077, 1094 (2005).
189. Michael A. Heller & James E. Krier, Deterrence and Distribution in the Law of Takings, 112 HARV. L. REV. 997, 998-99 (1999). See generally Bell & Parchomovsky, supra note 22.
190. Bell & Parchomovsky, supra note 22, at 563.
191. Id. at 549 n.3.
192. Id.
193. See id. at 554.
194. Although Abraham Bell and Gideon Parchomovsky do not address the topic, the Supreme Court has long upheld the power of local and state governments to charge special assessments to landowners who benefit from improvements, see Londoner v. Denver, 210 U.S. 373, 385-86 (1908), as well as for the federal government to charge user fees. Massachusetts v. United States, 435 U.S. 444, 463 n.19 (1978) ("A user-fee rationale may be invoked whenever the United States is recovering a fair approximation of the cost of benefits supplied.").
195. "[N]or shall private property be taken for public use, without just compensation." U.S. CONST. amend. V.
196. See Bell & Parchomovsky, supra note 22, at 552-53 (explaining how diminutions in wealth trigger takings compensation and the efficiency rationale for the Takings Clause is to curb the eminent domain power).
197. Id. at 552.
198. Id. at 553, 578.
199. For a discussion of takings jurisprudence regarding trade secret data (which is a form of intellectual property), see Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1004-05 (1984). The Court looked at the assignability of the data, ability of the data to serve as the res for a court proceeding, and "reasonable investment-backed expectations." Id. at 1005.
200. Bell & Parchomovsky, supra note 22, at 554.
201. Id. at 563.
202. Id. at 558-59.
203. Id. at 558.
204. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014 (1992).
205. Bell & Parchomovsky, supra note 22, at 559.
206. For an extended example of how zoning rights affect the city of Bespin, see id. at 559. This Note in no way advocates the draining of wetlands.
207. Id. at 590; see also Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104(1978).
208. See Bell & Parchomovsky, supra note 22, at 554.
209. Id. at 590-91. Like takings, there can be no bright-line rule for when a giving has taken place and when it has not. Id. at 560, 562.
210. Id. at 591.
211. Id at 593.
212. Id at 555.
213. Id. at 568 (describing Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455 (Mich. 1981)).
214. Bell & Parchomovosky, supra note 22, at 556.
215. See id. at 595-96 (explaining that givings to large groups are not likely to be the result of special interest politics); see also id. at 551-52 n.16 (explaining that the limitations on takings can be seen as an implicit limitation on givings).
216. Id. at 595-96.
217. Id. at 573, 580.
218. 304 N.W.2d 455.
219. 545 U.S. 469 (2005).
220. Bell & Parchomovsky, supra note 22, at 587-88.
221. Golan v. Gonzales, 501 F.3d 1179, 1181 (10th Cir. 2007); Kahle v. Gonzales, 474 F.3d 665, 666 (9th Cir. 2007).
222. See, e.g., Symposium, Mickey Mice?, supra note 99, at 780, 784 (statements of Professor Moglen, calling Sonny Bono a "moron [who] skied into a tree," marking Steamboat Willie as "the moment at which the thugs take over culture in the United States," and referring to copyright lawyers as "hirelings of the thugs in Hollywood"). The symposium was held after the oral arguments, but before the ruling in Eldred. It nonetheless provides a snapshot of arguments for and against the CTEA that continued long afterwards. See also Manes, supra note 52 (calling Professor Lessig "an intellectual bully" with "radically silly ideas"); The Secret Diary of Steve Jobs, http://fakesteve.blogspot.com/2007/02/one-thing-joumal-almost-got-right-24.html (Feb. 24, 2007, 10:37 EST) (an anonymous Steve Jobs parody site unparodically describing "anticopyright free-everything law professor types" as "anti-business loonies" and "anti-corporate radicals" who are possibly even "cynical[ly] shakfing] down big companies and lin[ing] their own pockets, while wrapping themselves in some flag of do-gooderism and spouting lots of horse shit about protecting consumers and defending freedom"). For an explanation of the parodic Steve Jobs diary, its popularity, and its well-placed readership, see Brad Stone, A Mystery Solved: 'Fake Steve' Is an Editor, N. Y. TIMES, Aug. 6, 2002, at C1.
223. Symposium, Mickey Mice?, supra note 99, at 812.
224. Id. at 822-23; see also Jeffery Rosen, Roberts v. The Future, N.Y. TIMES, Aug. 28, 2005, at 50 (quoting Lawrence Lessig's speculation that Congress might enact another deferment in 2019 and that only a broad political coalition can persuade the Court to block it).
225. See, e.g., Lawrence Lessig, Copyright's First Amendment, 48 UCLA L. REV. 1057, 1071 (2001) (quoting Copyright Term Extension Act of 1995: Hearing on S. 483 Before the S. Comm. on the Judiciary, 104th Cong. (1995) (statement of Professor Peter Jaszi). It is worth noting that such plans have been advanced by individual congresspersons, industry, and creators. See, e.g., 144 CONG REC. H9952 (Oct. 7, 1998) (statement of Rep. Mary Bono) ("Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution."); id. (referencing "Jack Valenti's proposal for [a copyright] term to last forever less 1 day"); Helpern, supra note 16 ("The genius of the framers in making this provision is that it allows for infinite adjustment. Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw.").
226. LESSIG, supra note 20, at 292. Other movement scholars, notably, Professor Moglen, have stated that all copyright should be abolished. Symposium, Mickey Mice?, supra note 99, at 824.
227. These limitations did not allow the deferment for existing works. See supra Part I.C.
228. LESSIG, supra note 20, at 292.
229. See generally Eldred v. Ashcroft, 537 U.S. 186 (2003).
230. Fullilove v. Klitznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring).
231. See supra Part I.D. 1.
232. See supra Part I.D.2.
233. LESSIG, supra note 20, at 215-16 (quoting Peter Jaszi).
234. In football, "moving the chains," refers to the referee's 10-yard indicators, connected by chains, which are used to determine if the offense has advanced the ball that distance and thus retains possession. See NAT'L COLLEGIATE ATHLETIC ASS'N, 2008 NCAA FOOTBALL RULES AND INTERPRETATIONS, rule 1.2, art. 7, at FR-25 to FR-26 (2008), available at http://www. ncaapublications.com/Uploads/PDF/Football_Rulesadc982b5-03fb-4e27-828c-c 2d26b95e6cl.pdf; see also CHARLES P. PIERCE, MOVING THE CHAINS: TOM BRADY AND THE PURSUIT OF EVERYTHING 9 (2007).
235. Brief for the Respondent at 28, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618).
236. See supra Part I.C.
237. Schwartz & Treanor, supra note 12, at 2386.
238. Id.
239. See supra Part I.C.
240. See generally Landes & Posner, supra note 29.
241. Id. at 472.
242. Id. at 518.
243. Lessig, supra note 54; see also Pamela Samuelson, Preliminary Thoughts on Copyright Reform Project, 2007 UTAH L. REV. 551, 566 (supporting "periodic renewals of copyright claims for a small registration fee").
244. Symposium, Mickey Mice?, supra note 99, at 827.
245. See European Proposal, supra note 19, at 13.
246. Id.
247. Michael Botein & Edward Samuels, Compulsory Licensing v. Private Negotiation in Peer-to-peer File Sharing, J. INTERNET L., Dec. 2007, at 1, 21; Katherine Kelly, For of All Sad Words of Tongue or Pen, the Saddest Are "It Might Have Been," 31 WM. MITCHELL L. REV. 793, 803-04 (2005).
248. William Fisher, Digital Music: Problems and Possibilities, http://www.law.harvard.edu/faculty/tfisher/Music.html (last visited Oct. 17, 2008).
249. LESSIG, supra note 22, at 301.
250. Id. at 301-02; see also supra Parts II. A, II.C.l.
251. Posting of Saul Hansell to Bits Blog, Nokia and Universal's Proposed Music Tax, http://bits.blogs.nytimes.com/2007/12/04/nokia-and-universals- proposed-music-tax/(Dec. 4, 2007, 16:05 EST).
252. See Parchomovsky & Goldman, supra note 2, at 1488-89.
253. In fact, Justice Ruth Bader Ginsburg cited the fair use exception and idea/expression dichotomy as reasons why First Amendment rights were not implicated by the CTEA. Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003).
254. Pamela Samuelson, Professor of Law, Univ. of Cal., Berkeley Sch. of Law, 2008 Robert L. Levine Lecture at Fordham University School of Law: Unbundling Fair Use (Apr. 30, 2008) (lecture handout on file with author).
255. See supra notes 23, 127 and accompanying text.
256. See, e.g., supra notes 37-38.
257. See supra note 23 and accompanying text.
258. See supra notes 121-26.
259. See supra Part I.D.4.
260. Licensing is only one possible way of valuation of copyright. The actual methods used to determine market rate for givings charges is beyond the scope of this Note.
261. Disney made $4.5 billion in retail revenue from Mickey Mouse in 2003. Green, supra note 53. This is a powerful incentive for Disney to continue to push legislation to preserve it's copyright. However, no other character comes close to this sort of revenue. Id.
262. See supra note 99.
263. See supra Part I.D.3.
264. Posner & Landes, supra note 23, at 361.
265. Involuntary or unknown copyrights will be swept away with the enactment of a minimum givings charge system. Deferments will only be granted when the charge is paid and records of this payment must necessarily be kept by the government. Works whose copyright has outlived economic usefulness will likely be given up to the public domain.
266. LESSIG, supra note 20, at 25; Smith, supra note 122, at 1766-69.
267. See supra note 129.
268. See generally Kahle v. Gonzales, 474 F.3d 665 (9th Cir. 2007).
269. See supra note 120 and accompanying text.
270. See supra note 218 and accompanying text (discussing a taking of privately owned property in Poletown).
271. See SHAKESPEARE, supra note 14.
272. See supra note 148 and accompanying text.
273. See supra Part II.B.
274. William M. Landes and Judge Richard A. Posner analyzed the proposal on an economic basis, not a legal one. See Landes & Posner, supra note 29, at 473.
275. Eldred v. Ashcroft, 537 U.S. 186, 208 (2003).
276. See Landes & Posner, supra note 29, at 518.
277. Rightsholders who would argue that, instead of being an unearned gift, copyright deferment is a right and a givings charge is instead a tax or a taking, are begging the question of perpetual copyright and proving the need for givings charges to ameliorate the tension between rational basis review and the "limited Times" phrasing of the Constitution.
278. Commentators within Disney and the licensing industry, for example, thought that the Mickey Mouse character potentially could earn from $1 billion to $1.8 billion more per year as of 2004. Green, supra note 53.
279. See supra note 44.
280. See Bell & Parchomovsky, supra note 22, at 566-67.
281. See supra Part I.E.3 (describing the connections between givings and Takings Clause jurisprudence).
282. The trademark registration and appeals process is codified at 15 U.S.C. §§ 1053-1071 (2006).