In a decision marked by much internal dissent - bordering on outright cattiness - the United States' Supreme Court voted 7-2 to uphold the decision to give copyright holders a 20 year rights extension.
It doesn't quite merit up there as a crime alongside book-burning, but it does isolate the public from a vast body of literature, art and information we could otherwise freely enjoy and appears to point the intellectual thermostat in the United States to "permafrost". The original copyright law provided works of the "sciences and useful arts" with a protection for 14 years. Congress "may" extend this protection if a justification to the arts could be proved.
The Supremes ruling yesterday confirmed that Congress can and damn well should extend it as long as it sees fit. The challenge to the Sonny Bono Copyright Act - the most recent in a succession of extensions to US copyright legislation which brings the term up to 70 years - was brought by an Internet book publisher, Eric Eldred of Eldrich Press, who challenged the right of Congress to extend the legislation willy-nilly.
But why is this so surprising?
A partisan high court composed of Judges that could readily discard lifelong convictions when the time came to install a President (as they did in December 2000, in arguing that halting the Florida ballot recount would be unnecessary interference in States' rights) would surely lose little sleep over defending "property owners". While the decision robs Internet users of the works of F.Scott Fitzgerald, Sinclair Lewis, and Sherwood Anderson, not to mention America's greatest composers - Robert Johnson, Louis Armstrong and George Gershwin - it preserved the Disney Corporations claim to the market the Mouse™.
And while the heavens wept, the Judges fought it out.
As dissenting Judges Breyer and Stevens drew on history, a sneery majority opinion from Judge Ginsberg (check the footnotes) declaimed "wishful thinking". Somehow, you get the impression that the battle lines had been drawn from the start, and reason had little part to play in the final decision.
The decision is a defeat for Stanford's Lawrence Lessig, who had devoted much of his time (which could have otherwise been profitably spent defending pigopolists such as Disney) to the case, while he mobilized a brilliant popular campaign against the ludicrous Bono act.
"If there is any good that might come from my loss, let it be the anger and passion that now gets to swell against the unchecked power that the Supreme Court has said Congress has," wrote Lessig, in his online journal.
"When the Free Software Foundation, Intel, Phillis Schlafly, Milton Friedman, Ronald Coase, Kenneth Arrow, Brewster Kahle, and hundreds of creators and innovators all stand on one side saying, 'this makes no sense,' then it makes no sense. Let that be enough to move people to do something about it. Our courts will not."
Much less quoted on the boards tonight was Lessig's conclusion:
"What the Framers of our constitution did is not enough. We must do more."
Indeed. The constitution may be a thing of great beauty - but it hasn't saved America from becoming a tyranny.
A place that votes to preserve Mickey Mouse instead of Gershwin, Fitzgerald and Satchmo - three artists to take to any planet - clearly isn't looking after its own. The cause needs to reclaim the word "property" from the ludicrous formulation "intellectual property", and it needs to assert a common culture over corporate wisdom.
Coming up soon before the Supremes is an even more significant case that could reshape America for the benefit of Americans, only the odds are stacked heavily against it succeeding. This cause doesn't have Flash animations or Slashdot, or the blogosphere on its side. In fact, the forces mobilized against this range from Microsoft to the New York Times and the TV networks.
The Supremes will soon vote on whether corporations - like your friendly Disney - ought to enjoy the same free speech rights as you or I. In other words, can these artificial creations - which have few responsibilities - deny the common will by claiming First Amendment privileges?
This underfunded and forlorn challenge seeks only to put American business inline with the responsibilities of businesses everywhere else in the world, but a victory could allow - if only we take the opportunity - to assert the power we (remember, the people?) have by right. A right we have tended to forget to use.
The details are here, in a beautifully written piece by Thom Hartmann that will serve as America's epitaph if sit on our hands, and don't assert what Lessig did. Which is but a simple thing: we are bigger than they are. ®