For most legal scholars, the Supreme Court’s decision to uphold retroactive grants of copyright protection for formerly-public domain works in Golan v. Holder came as little surprise. The Court made it clear that it was doubling down on the framework set out in Eldred v. Ashcroft, largely deferring to Congress on these matters and giving wide latitude to what comports with the “traditional contours of copyright law.” What received less attention in the decision was the Court’s discussion of how a retroactive grant purportedly “promote[s] the progress of Science” as required by the Copyright Clause. And while it may seem like a largely academic point to some, the Court’s handling of the issue may actually be symptomatic of a legal system whose scholarship and case law have yet to catch up with the market realities of the digital age (or worse, may be actively ignoring them for political purposes).

In a short six-paragraph discussion at Section II(C) of the majority opinion in Golan, the Court tackles the contention that copyright legislation only serves its Constitutional aims if it spurs the creation of new works (which a retroactive grant, applying only to works already in existence, obviously does not):

Nothing in the text of the Copyright Clause confines the “Progress of Science” exclusively to “incentives for creation.” [Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323 (2002)], at 324, n. 5 (internal quotation marks omitted). Evidence from the founding, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science.

The reasoning here, which is fairly compelling, is that it’s not enough for a work to merely be created — for it to actually “promote the Progress of Science,” it has to be made adequately available for public consumption. Historically, a grant of copyright would incentivize this by providing the opportunity for monopoly profits to offset the cost of wide retail distribution. Problematically for the Court, however, this arrangement is no longer the most effective means to distribute a work; The Internet Archive told the Court as much in its amicus brief for Eldred:

Jack Valenti, President of the Motion Picture Association of America once said: “A public domain work is an orphan. No one is responsible for its life…it becomes soiled and haggard…” Jessica Litman, Digital Copyright 77 (2001). Before digital technology, Valenti may have had an argument – one could argue that it was so expensive to store, reproduce, and distribute physical works that keeping them out of the public domain may have resulted in more availability than letting them in.

With digital technology, however, this argument can no longer stand. Indeed, even Valenti now agrees that digital technology possesses the capacity to makes flawless copies trivial and worldwide distribution instantaneous. This ease of publishing and distributing means that material in the public domain is universally available.

It seems logical that, in an age where cheap hosting/bandwidth and peer-to-peer services have all but eliminated the transactional costs of making work available online, the dissemination of public domain content would be most widely promoted by not allowing monopolist copyright holders to place conditions on their replication and distribution (monetary or otherwise). Yet the Eldred majority ignored this sea-change in distribution methodology, deferring to Congress’s belief that increasing copyright protection “provide[s] copyright owners generally with the incentive to restore older works and further disseminate them to the public” — a belief based on hearings held in 1997, when the Internet had less than 70 million users and Congress had no idea how far public domain distribution methodologies would come.

In fact, surveying the various authorities marshaled by the Supreme Court to link copyright law with promoting greater distribution of works, it is striking how little post-Internet thought has been taken into account. The only actual case cited by Golan for the Court’s proposition (aside from Eldred) is Harper & Row, Publishers, Inc. v. Nation Enterprises (1985), which not only predates the publicly-available Internet, but concerned balancing the monetary incentive for a copyright owner to distribute (right of first publication) with the efficacy of that distribution (fair use quotation) – an economic analysis tacitly admitting that dissemination is bolstered by removing copyright protection. Justice Breyer’s dissent in Eldred reinforces this distinction, explaining that the Copyright Clause “assumes that it is the disappearance of the monopoly grant, not its perpetuation, that will, on balance, promote the dissemination of works already in existence.”

If it seems odd that the Supreme Court put so little critical thought into what promotes the widest distribution of a work in the digital age, the second-to-last paragraph of Section II(C) in Golan may be instructive. There, the court reveals the true engine of its decision:

A well-functioning international copyright system would likely encourage the dissemination of existing and future works. See URAA Joint Hearing 189 (statement of Professor Perlmutter). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103-412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIAA); id., at 244, 247 (statement of Smith, IIPA), thereby benefitting copyright intensive industries stateside and inducing greater investment in the creative process.

Here we see the focus of the court is less on the restored works and more on protecting the wider copyright industry; by placating the origin countries of restored works, Congress believes it is protecting future works in those territories from less-than-national treatment. These theories (offered up by current and former counsel to beneficiary trade associations and cited as such by the Court) are not necessarily inaccurate, but reinforce that Congress’s primary goal in plucking works out of the public domain is not to actually promote their widest distribution. Rather than admitting this, however, the Court contorts prior case law and, indeed, logic itself to pretend that a paywall will somehow make restored works more accessible.

To me, this is what is most upsetting about the Golan decision. If the Court wishes to defer to a starry-eyed Congress that believes in attenuated links between copyright restoration, foreign goodwill, and market opportunities, it is entitled to do so. But it should at least be willing to admit that, in isolation, the restoration itself does nothing to “promote the Progress of Science.” To the contrary, it locks up works that have already been created and could be disseminated more widely than ever possible under the restrictions of copyright law. Instead, the Court doesn’t give public domain advocates a leg to stand on, and perpetuates a Luddite understanding of distribution methodology to do so. Hopefully, the Court will someday come to realize that a public domain work is no longer an orphan – the entire Internet is its family.

One of the things I’ve never liked about copyright is its potential to be the functional equivalent of censorship. Sometimes this censorship comes about because an author didn’t get permission to create his work in the first place (see: Richard Prince, JD California). While this unfortunately turns judges into cultural gatekeepers, it’s been deemed a necessary balance between copyright law and the First Amendment, and harm to the public is arguably lessened by the fact that we don’t know what we’re missing; because the censored work is never able to reach and impact us, we’ve only lost the potential of its cultural contribution.

However, other times a work is created with the initial blessing of copyright, makes its mark on the public, then becomes effectively censored down the line due to licensing restrictions (see: The Wonder Years, Werewolf). This is much more culturally pernicious because it deprives the public of a work already in its lexicon, and the sense of loss is far more palpable as a result. Often, the only way to get the work back in the public’s hands is to perform triage, excise the no-longer-licensed content, and try to be happy with a bastardized version of the work (see: WKRP in Cincinnati, The State).

What’s interesting, however, is how we’ve seen the Internet step up to effectuate cultural preservation, when copyright law stands in the way. I recently picked up a DVD collection of Daria, one of the last good things MTV ever produced. The show had an immense impact on my childhood, in no small part because of how it helped frame pop culture for me with its liberal use of MTV-placed contemporary music, and I was incredibly excited to relive that experience. When I opened up the DVD case, however, I was greeted with the following message:

For those who can’t see the note, it says in the pertinent part:

“So let’s answer the big question right away: 99 percent of the music has been changed, because the cost of licensing the many music bites we used would have made it impossible to release the collection (and for many years did). So no, these aren’t the shows as aired, but more like one of those astronauts in a TWILIGHT ZONE episode who returns from space and his wife can’t figure out what’s changed about him, until it slowly dawns on her that instead of a cool song from 1997 playing when he walks into the room, it’s some tune she’s never heard. Yeah, it’s just like that.”

Needless to say, I was disappointed. As I Googled around for more information, I could see many other fans of the series felt the same, opining that, “when I watch the show without proper music it feels as though one of the main characters is missing,” and “even to those who say they didn’t pay much attention to the music, I think you’ll still sense an absence.” Then I stumbled across something else entirely. Something called “The Daria Restoration Project.”

Essentially, certain Daria fans had taken to combining the high-quality video and spoken audio of the official DVDs with the music that accompanied the original broadcasts, either sourced from old television recordings or by manually inserting the pertinent songs. They’re doing their best to preserve the fidelity of a major piece of culture that is currently only legally available to the public in crippled form.

And of course, their curating efforts are 100% illegal, punishable by hundreds of thousands (if not millions) of dollars in fines.

To be sure, copyright owners are supposed to be able to control how their works are used to create new works outside the bounds of ideas and fair use (though we don’t always get that right). However, allowing copyright licensing to prevent the public from accessing the proper versions of culturally-significant media, after their creation and initial publication has already been sanctioned, almost smacks of a marketplace parallel to the European “right of withdrawal.” It not only presents a huge hurdle to the preservation of certain works, but robs the public of the value they placed in that media while it was available to them.

While the Internet is not nearly as “lawless” as many would like us to believe, there are certainly pockets of it where the traditional rule of law is less readily applied. And though this poses a challenge to society in some aspects, there is also undoubted utility in having these pockets able to function in the interest of the public, the proper beneficiaries of copyright law, when the legal state of play so radically conflicts with that interest. As a law student, I’m not happy when I see pirates doing a better job than copyright owners at preserving and spreading culture; after all, the Supreme Court recently noted in its Golan decision that copyright law can serve its core purpose not only by incentivizing the creation of works, but the dissemination of them as well. Yet here we see copyright hurdles completely inhibiting the proper dissemination of legally-created works through economic censorship.

Well, as John Gilmore once said, “The Net interprets censorship as damage and routes around it.” So until copyright law manages to untangle itself and properly serve its own fundamental purpose, I’m glad we can rely on pirates to do its job for it.