Terry Hart takes the EFF to task for their misleading take on copyright history

Copyhype blogger Terry Hart wrote a thoughtful response yesterday to an post on the Electronic Frontier Foundation’s blog by Mitch Stoltz that purported to be  analysis (and rebuttal)  of what he called the MPPA’s “copyright agenda”.  The piece published Monday was in response to MPAA CEO Chris Dodd’s recent  remarks at a L.A. Copyright Society event earlier this month.  Dodd said:


What would Jefferson think about the current state of copyright law?

First, the men who met in Philadelphia during that summer of 1787 and drafted the Constitution, considered copyright so important to unlocking the creative potential of the citizens of this new country, that they explicitly empowered Congress to incentivize creativity through patent and copyright legislation.

According to Stoltz’s EFF’s piece, the MPAA chief got it wrong.

Dodd claims that copyright as we know it is what “the founders of this republic intended.” Hardly. The first copyright act in the U.S, passed in 1790 by some of the same people who helped write the Constitution and the Bill of Rights, was very limited. It covered only books, maps, and charts – not music, theater, pamphlets, newspapers, sculpture, or any other 18th-century creative medium.  The Founders’ copyrights lasted 14 years, with an option to renew for another 14.  Today, of course, copyright covers nearly all written, visual, sculptural, architectural, and performing art, not to mention computer software and games, and it lasts for the author’s life plus 70 years.  We suspect that if anyone had described today’s copyright system to, say, Thomas Jefferson, he would have been shocked.  By all means, let’s look at how the Founders thought copyright should work, as one guidepost for fixing today’s law.

But according to Terry Hart, in this case, it’s really the EFF that got it wrong by conveniently ignoring the complete copyright picture as it’s evolved over time:

What’s curious is that the EFF would focus so much on the provisions rather than the principles of early U.S. copyright law (never mind how incorrectly they stated the former) yet leave out so many provisions in current copyright law that the early acts lacked. For example, the 1790 Copyright Act included no statutory recognition of fair use, the first sale doctrine, or the idea/expression dichotomy; no prohibition on protecting government works by copyright;13 no exceptions for libraries, educational institutions, or non-profit groups; no centralized registration system or deposit requirement.

The grave inaccuracies contained in just a few short sentences should leave little surprise that the EFF is on shaky ground concluding that their views on copyright would be compatible with the Founders…

You can read Hart’s full piece here.  It’s well worth it if you’re looking for a more balanced perspective on what the true intent of our founding fathers may have been when it comes to copyright.