Yesterday was the IP world's equivalent of the last day of the 2011 regular baseball season -- that unbelievable night when Tampa pulled off a surprise extra-inning win, the Orioles spoiled the season-long expectations of Red Sox fans, and the Cardinals advanced as a wild card into a postseason that concluded with the Cards taking the stage as World Champs. On Wednesday, January 18, 2012, some of the world's most popular websites -- including Google, Wikipedia, and Craigslist -- led a highly visible advocacy campaign against the Hollywood-backed Stop Online Piracy Act (SOPA) that succeeded in raising public awareness about a bad piece of legislation and making several of members of Congress reconsider their support of the new law. On the same day, though, the Supreme Court decided in a 6-2 ruling that Congress could constitutionally remove works from the public domain in order to comply with international copyright treaties.
As Jessica Litman chronicles in her great book Digital Copyright, the major American media industries have become accustomed to being able to draft intellectual property legislation that Congress passes into law (with a few exemptions thrown in for teachers, libraries, and others with the clout or goodwill to carve out a small exception for themselves). Based on past precedent and the vibe on Capitol Hill back in December, the passage of SOPA appeared to be as sure of thing as making a bet in July that the Red Sox would reach the playoffs. The successful lobbying of the technology industries, high profile web blackouts, and the concerns the Obama administration expressed over the weekend about SOPA, however, has dashed those expectations. It bears repeating that the anti-SOPA efforts are not endorsements of commercial piracy. Some new legislation addressing the needs of media creators in the age of digital file-sharing should pass into law, but it cannot be so broadly drafted with the potential to chill culture and free speech (see Danny Kimball's essay in Antenna for a more lengthy analysis of the problems in SOPA and PIPA legislation).
The Supreme Court's decision regarding the public domain, however, marks a setback to American culture and the balance of copyright law (and it's here, alas, that my underdog baseball metaphor runs out of steam). To give the Supreme Court the credit they're due, there were a number of issues at play in Golan v. Holder, including the reciprocity of trade agreements.
Nevertheless, I think the Court made the wrong call, and I can't help but wish that we could take some of yesterday's same concern and creative advocacy expressed against SOPA and direct it toward preserving the public domain. If the anti-SOPA movement is about keeping the pipes of the net open for culture, then preserving the public domain is about the culture that moves through those pipes. A robust public domain ensures that old works can freely circulate and remain available for artists to remix and use as the basis for new creative works (these new works, by the way, can be copyrighted and make money -- just ask the producers of the 3D Alice in Wonderland or the publisher of Pride and Prejudice and Zombies). A robust public domain opens the potential for more projects like the Media History Digital Library, which offers broad access to historic magazines and trade papers. The public domain also unleashes creative possibilities for these projects. In the case of the MHDL, for instance, we are already thinking about how we can use computer analytics to look for patterns across film history that are hard or impractical to detect reading page-by-page or keyword searching. Because the data we are analyzing belongs in the public domain, we can share it widely for re-use and re-analysis.
Congress should not be able to embark on the slippery slope of restoring copyrights to works that have already entered the public domain. If the American media industries lobby for new laws that further extend the duration of copyright protection or restore copyright status to American works that belong to the public domain, let's make sure we go to bat for the public domain in the same way we did against SOPA!
Cross-posted on Erichoyt.org.