Eldred Provides Intellectual Groundwork for Piracy Compromise
WASHINGTON, D.C. - The Supreme Court’s recent Eldred decision highlights the necessity of copyright for the protection of consumers’ interests. That is the view of legal scholar and industry expert James V. Delong put forth in his new study, “Intellectual Property in the Internet Age: The Meaning of Eldred.”
In Eldred v. Ashcroft, the Court upheld the validity of the 1998 Sonny Bono Copyright Term Extension Act. But, according to DeLong, the real battle ran deeper than a mere extension to include the very future of intellectual property online.
DeLong maintains that Eldred makes the point that copyright is not, in his words, a “zero sum game” because its exercise or expansion is not a loss for freedom of expression. “The Court made clear that it does not share the plaintiffs’ anticopyright Weltanschauung,” he writes. “[It] rejected the argument that the interest of the public…is at odds with the interests of creators. Rather their interests are congruent.” He cites Eldred: “[The] assertion that ‘copyright statutes must serve public not private, ends’…misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.”
He challenges as “simplistic and wrong” plaintiffs’ argument that any expansion of copyright is an attack on the public domain. Rather, maintaining (as does the court) that it “encourage[s] the production of works that would otherwise be unborn,” he says “copyright, far from creating a zero-sum game between creators and consumers, creates a positive sum, mutually beneficial marketplace in which all parties are made better off.” That an amicus brief filed by 53 professors would overlook this is, to DeLong, “perturbing.” He also challenges plaintiffs’ suggestion that copyright is tantamount to an economic monopoly, calling it “disingenuous.”
DeLong is senior fellow and director of the Center for the Study of Digital Property at The Progress & Freedom Foundation. He has written widely on technology and copyright-related issues. He is a magna cum laude graduate of Harvard Law School.
The Progress & Freedom Foundation is a market-oriented think tank that studies the impact of the digital revolution and its implications for public policy. The Foundation is a 501(c)(3) nonprofit organization founded in 1993.