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.