An article published by Chris Ruen of the SeattleWeekly was the starting point of a heated dispute. The author claims that “copyright and the first amendment coexisted for 200 years”, but is this true or not? Let’s find out.
Published on February 20, 2012, the article focuses on the life of Aaron Swartz, the 26-year-old computer whiz who promoted the idea of open-source software, while also getting involved into the movement that stopped SOPA.
Not long after being published, “The Misplaced Zeal of Aaron Swartz” was commented upon with quite a fervent passion; some people agreed with what Chris Ruen had to say, others did not.
“Misplaced zeal? Swartz was fighting for open access to documents that we, the taxpayers, funded. He wasn’t advocating for ripping off music or books. Your quote from him also isn’t given its full context,” a comment on the article reads.
“There’s a degree to which the author is sort of arguing not against Swartz but against the version of Swartz that has been turned into a martyr for political purposes by some in the tech lobby. Swartz had a lot of wide-ranging interests in democratic systems and social justice beyond technology issues, and I wish his mourners would remember him for those interests and not just his ideas about “free information.” But I guess that’s too much to ask since the EFF and their ilk don’t really care about basic economic justice issues the way that Swartz did,” another person wrote.
Chris Ruen also got the attention of Tech Dirt, where Mike Masnick is taking a shot (or rather several shots) at his theories.
“First Amendment and copyright have co-existed—without terrible controversy—since the founding of the republic. Our Founding Fathers included a copyright clause in the Constitution (Article I, Section 8, clause 8), and in 1790 approved the first federal copyright law—before the Bill of Rights was even adopted. There are free-speech exceptions to copyright, such as Fair Use provisions, but Swartz’s idea that the Supreme Court had some obvious “blind spot” was quite wrong. As described by the Supreme Court, copyright “is the engine of free expression,” Chris Ruen wrote.
The allegation is quite exaggerated. Just as Mike Masnick points out, the original Copyright Act of 1790 was only applied to maps, charts, and books, covering areas of interests like printing, reprinting, publishing and vending. Furthermore, you had to register your creation – there was a period of 14 years in which the copyright holder had the right over his or hers creation, with the possibility of renewing that right for another 14 years.
According to the 1790 Copyright Act, one had to print the entire work of a right holder in order to be considered an act of copyright infringement.
As for now, the US copyright law applies to basically anything, from an e-mail you send, to the posts you write on Facebook, and that without registration. Moreover, the (new) US copyright law (active since 1976) applies not just for entire works, but also for small snippets, with a very limited number of exceptions. Last but not least, one’s right over his or hers work lasts for his or hers entire life, plus another seventy years, and is applied for foreign works as well.
“Then, combine today’s copyright with the massive technological change that is personal computing, mobile devices and the internet, which has created a massive amount of personal communications in digital “fixed” form (thus making much of it copyrightable) and we are talking about two situations that are not even remotely comparable,” Mike Masnick rightfully points out.
With that in mind, saying that copyright and the First Amendment go hand in hand without much conflict is, the least to say, obtuse.
A point also argued by Swartz, who said that the Supreme Court has turned a blind eye to the issue. A perfect example of how the justice system fails to make a difference between copyright and the First Amendment is to be found in the book published by David Lange and Jefferson Powell – No Law: Intellectual Property in the Image of an Absolute First Amendment. Chapter 4 of the book highlights the mistakes made by Justice Ginsburg in her ruling in the Eldred case:
Justice Ginsburg’s treatment of the plaintiff’s threshold claim, that the Court should apply some sort of heightened scrutiny, is nothing less than bizarre. Unless she (and the other members of the majority) failed to see the Act as having any cognizable impact on any constitutionally protected expression at all, a student of the First Amendment cases would expect that the Court’s initial response would be to determine which level or form of heightened scrutiny was appropriate, and then apply the proper scrutiny. The opinion takes a different approach, however — one that appears essentially indifferent as to the reasoning the Court customarily uses in deciding First Amendment claims. Despite acknowledging (a bit later on in the opinion) the plaintiffs’ reliance on a case, Turner Broadcasting Systems, Inc. v. FCC, which did employ intermediate level scrutiny, Ginsburg restates their argument as a “plea for imposition of uncommonly strict scrutiny” to the Act, implying (incorrectly) that there is something “uncommonly strict” about the use of intermediate scrutiny in reviewing content-neutral laws. (We presume she was not, more simply but even more strangely, mischaracterizing, as “strict scrutiny” in the doctrinal sense, the plaintiffs argument that Turner — thus, intermediate scrutiny — was the appropriate mode of analysis. If we are wrong about this, it would reenforce, in a different way, the air of inattention that hangs over the First Amendment discussion in Eldred.)
Having set up, however inaccurately, the threshold inquiry into the proper level of scrutiny, Justice Ginsburg then immediately drops the issue. Instead, she continues with a number of observations amounting to asserations, each apparently meant to undermine the need for any sort of judicial scrutiny of the Act.
The book continues with explaining each of these statements, and how little sense they’re making.
Nor can mere chronological proximity take the place of actual evidence in making claims about the Founders’ views. The infamous Sedition Act of 1798 was enacted “close in time” to the First Amendment’s adoption, but it has long been settled that the Sedition Act, rather than bein a valuable early interpretation of the First Amendment, was a violation of the amendment. As the Court observed many years ago, “[a]lthough the Sedition Act was never tested in this court, the attack upon its validity carried the day in the court of history.” In other words, the founding generation, or many members of it, were capable of making a mistake about the implications and application of the First Amendment and, in the case of the Sedition Act, actually did so, even after a full debate on the constitutional issues. In the First Amendment context, it is clear that the “free speech principles” that the Founders constitutionalized cannot be narrowly defined in terms of the Founders’ practices.