What's So Eminent About Public Domain?

The copyright lobby makes a dubious case for IP protection


Pop Quiz: What do these two stories have in common?

  • A large pharmaceutical company announces plans to build a facility in Connecticut. In return, the city agrees to raze several dozen homes and businesses in an adjacent working-class neighborhood for redevelopment into high-rise condos, a five-star hotel, and private office buildings. When some of the residents don't want to sell, the city uses its power of eminent domain to force them out, citing increased tax revenues as a justification for the taking.
  • A computer science professor purchases a DVD at Best Buy. When he brings it home, he discovers that his computer, which runs the Linux operating system, isn't able to play it because Linux DVD-playing software isn't available in the United States. Fortunately, the software is available from a Hungarian website. He downloads it and watches his movie.


According to James V. DeLong, senior fellow at the Progress and Freedom Foundation (and a Reason contributing editor), that DVD player isn't just a piece of software. It's a "code cracking tool" that might make it possible (although not legal, of course) to engage in piracy. And allowing consumers to have such dangerous tools is akin to allowing local governments to seize their constituents' homes and businesses for the benefit of private developers.

That's what DeLong told Congress earlier this month at a hearing on the implications of the Supreme Court's Kelo v. New London decision, which allowed an eminent domain taking along the lines described above.

DeLong is not the only one exploiting the backlash against the Kelo decision to promote a dubious intellectual property agenda.

Consider the case of Google Print, an ambitious effort to create a full-text search engine of every book ever published. Google launched the project late last year with much fanfare. The project has the potential to replace yellowing card-catalogs and clumsy keyword-based library searches with a book search product as powerful and comprehensive as Google's search engine for the web.

But the publishing industry filed suit on October 19, claiming that the project amounts to theft of their property. In a letter published recently in The New York Times, Authors' Guild president Nick Taylor contended that Google is "exercising a renegade notion of eminent domain" when it scans publishers' books without their permission.

Or consider the newly formed Property Rights Alliance (a project of Grover Norquist's Americans for Tax Reform) which sponsored a panel at last month's State Policy Network meeting in which lobbyists from the movie and recording industries shared the podium with grassroots activists fighting eminent domain abuse. The Alliance's founding press release lamented that "recent Supreme Court decisions gutting physical and intellectual property rights have left little choice but to unify and organize."

That's strange, because there haven't been any recent Supreme Court decisions "gutting" intellectual property rights. Intellectual property holders scored a whopping 9-0 victory in MGM v. Grokster, which ruled the Grokster file-sharing service illegal. And copyright holders prevailed by a vote of 7-2 in the 2001 decision of New York Times v. Tasini, which dealt with the use of copyrighted material in online databases.

Or consider the 2003 case of Eldred v. Ashcroft, which asked whether Congress may retroactively lengthen copyright terms. In that case, such notorious socialists as Milton Friedman and Ronald Coase signed an amicus brief urging the court to strike down the extensions. And pinko rags such as The Wall Street Journal and The Economist criticized the extensions. But the Supreme Court still sided with copyright holders in a 7-2 decision.

Copyright holders have been batting a thousand at the Supreme Court over the last decade. So why the complaints? The PRA and its allies know the real copyright debate isn't about whether intellectual property should be protected (virtually everyone agrees that it should) but over recent attempts to expand copyright far beyond its traditional boundaries. Those expansions are hard to defend, so copyright hawks are doing their best to change the subject.

The Eldred decision is a good example. Until 1909, an author could receive copyright protection for no more than 56 years, after which the work would fall into the public domain. But thanks to industry lobbying, Congress extended the terms in 1976, and again in 1998. As a result, no copyrights have fallen into the public domain since the 1970s unless their owners chose not to renew them. There's every reason to think Congress will grant another extension around 2018, when the current terms begin to expire. Despite the Constitutional requirement that copyrights be "for limited times," Congress has effectively made them perpetual, one extension at a time.

The 1998 Digital Millenium Copyright Act, which DeLong defends in his testimony, was another expansion of copyright powers. It prohibits any device that "circumvents" a copy-protection scheme, regardless of whether the circumvention violates anyone's copyright. Linux DVD players are just one example of devices rendered illegal under the act. It's also illegal to transfer legally purchased music from the iTunes Music Store to a non-Apple MP3 player without Apple's permission. And it is illegal to sell software that "circumvents" the copy-protection scheme in Adobe's eBook format, even for an entirely legitimate purpose, such as allowing a blind person to use screen-reading software.

Maybe giving copyright holders control over the technology platforms that play their content is the only way to combat piracy. But DMCA supporters don't seem very interested in making that argument. Instead, they pile on hyperbole and overheated rhetoric. In a recent article, DeLong sarcastically accused DMCA opponents of seeking to "abolish intellectual property rights in favor of some mystical commune wherein all IP is free as the air and creators are compensated by government." Needless to say, the DMCA-reform legislation he was criticizing does no such thing. It merely loosens the anti-circumvention rule created by the DMCA, essentially returning us to the copyright environment of the mid-1990s. That was hardly an era of IP anarchy.

The Google Print controversy fits the same pattern. The Authors' Guild claims that Google Print "seizes private property." Yet in reality, the excerpts of copyrighted books shown by the service would be far too short to be of use to anyone looking for a free copy. And under copyright law, the use of short excerpts has traditionally qualified as fair use. If the Authors' Guild prevails, it will leave copyright owners with much greater control over how their content is used than they have traditionally enjoyed in the pre-Internet world. And even if they lose, readers will still have to purchase the full book if they want to read more than a few sentences.

By lumping together the very real threat of the government taking people's land with an imaginary threat of IP anarchists abolishing intellectual property, the copyright industry and its allies hope to portray themselves as defenders of traditional property rights. The problem is that their own copyright agenda is a radical departure from America's copyright traditions. If there really is a good case for expanding the rights of copyright holders, they should be able to make it without misleading analogies to the Kelo decision.

Tim Lee is an editor at the Show Me Institute, based in St. Louis.