The Recording Industry v. James Madison, Aka "publius": the Inversion of Culture and Copyright

• Jurisdiction: United States,Federal
• Citation: Vol. 35 No. 01
• Publication year: 2011

SEATTLE UNIVERSITY LAW REVIEWVolume 35, No. 1FALL 2011

The Recording Industry v. James Madison, aka "Publius": The Inversion of Culture and Copyright

Liam Seamus O'Melinn(fn*)

I. Copyright Before Culture: The Recording Industry v. James Madison, aka "Publius"

In midsummer, the recording industry stunned the nation by announcing its intention to file suit against the estate of Founding Father and former President James Madison. An industry spokesman declared that Madison would be sued for plagiarism and copyright infringement and that the industry would ask for injunctive relief as well as statutory damages:We are bringing this suit in order to show people that even those who placed the intellectual property clause in the Constitution are not immune to its strictures. Most people who revere the Founding Fathers do not realize just how dishonest they really were. We will not allow a Pirate to hide behind the mantle of President, and we know only too well how to expose the identities of pirates who seek the shield of anonymity. 'Publius' will be treated no differently.

In response to a question about whether Madison's intimate connection with the Patent and Copyright Clause of the Constitution should afford him a special place in understanding the purpose and extent of the copyright power, the spokesman replied, "The true father of American copyright is an English philosopher named John Locke, who understood so much better than our own Founders what the purpose of American copyright was."

He further indicated that two more defendants would be named: Madison's alma mater, Princeton University, because the university had "for more than 250 years ignored its obligation to teach its students that there is a fundamental norm against unauthorized copying and that copyright protection is a right recognized by both common and natural law." Additionally, Benjamin Franklin would be named on the basis of his unauthorized transmission and publication of a series of private letters.

Would James Madison, Benjamin Franklin, and Thomas Jefferson have downloaded copyrighted works if they had the technological means to do so? That is one of the questions presented by the recording industry's seemingly fanciful suit, a suit that presents an unusual opportunity to compare the ethos of copyright at the time of the Founding Fathers with copyright in the present day. To put the issue differently, does the vision of copyright currently espoused by the music and movie industries represent a fundamental departure from the traditional contours of copyright law?

This question could hardly be more timely. On March 7, 2011, the U.S. Supreme Court decided to hear Golan v. Holder, a case involving the constitutionality of section 514 of the Uruguay Round Agreements Act, which granted copyright to foreign works already in the public domain in the United States.(fn1) Golan invites the Court to reconsider its admonition in Eldred v. Ashcroft that congressional copyright legislation that departed from the "traditional contours of copyright" should be adjudicated under a high level of scrutiny.(fn2) The Court has proclaimed the importance of tradition in other recent cases as well. For example, in eBay v. MercExchange, a case holding that injunctions should not issue as a matter of course in patent infringement actions, the Court called attention to the importance of history.(fn3) Justice Thomas's majority opinion asserted that there was a well-settled course of equity practice governing injunctive relief in patent suits going back to the time of the nation's founding,(fn4) and Chief Justice Roberts's concurrence insisted that "a page of history is worth a volume of logic."(fn5)

Moreover, history has once again become a subject of central concern to intellectual property scholars. Both Adam Mossoff and Justin Hughes seek to develop a richer historical context in which to situate the origin of intellectual property law.(fn6) Both Hughes and Mossoff challenge the shared wisdom of scholars on the character of intellectual property law in the early republic on two points in particular: first, that the inspiration for the law was purely utilitarian rather than rights-based, and second, that copyright and patent were not thought of as property in the early years. Thus, both argue a different theory of the rationale behind the creation of patents and patent law, and both authors call for further investigation into the history of the law. Their studies indicate a renewal of scholarly interest the history of copyright and patent.

The expansion of copyright, with regard both to the subject matter that is eligible for protection and the degree of protection offered, is also a subject of current scholarly interest. Copyright was originally unavailable for musical compositions or photographs, and scholars have detailed the processes by which copyright was extended to music(fn7) and photos.(fn8) There is also a burgeoning literature on the relationship between creativity and copyright in music and art, much of which focuses on borrowing and remixing issues.(fn9)

Less attention has been paid to the process by which records became entitled to copyright protection. This is an important area of inquiry because even though the recording industry poses as the defender of a timeless norm prohibiting unauthorized copying, records did not originally fit the contours of copyright law. Copyright for sound recordings was once controversial, and in resolving the controversy, the law dedicated itself to some improbable propositions with consequences stemming from the quiet operation of the common law theory. In the broadest sense, these consequences can be understood as an inversion in the relationship between copyright and culture.

At the outset, it will be helpful to clarify two points. This Article argues that the development of the law has resulted in what I have termed "the inversion of culture and copyright." What is meant by this phrase is that while copyright is formally justified by its critical role in fostering creativity and the development of culture, it has actually taken pride of place so that culture is being forced to take on the shape of its copyrighted container. The notion that copyright exists in order to encourage creativity has grown into a dogmatic proposition that there is no creativity without copyright, which is obviously false in a factual sense. Nonetheless, it is becoming truer and truer in a legal sense; that is, the law requires us to believe in an essential connection between copyright and a flourishing culture, even when there may be no connection. Next, the phrase "common law copyright" can be vague and confusing; in fact, this has frequently been an advantage to the advocates of common law copyright. In this Article, the phrase is used interchangeably with "natural law copyright," and signifies a belief that copyright is a natural right that preceded any statute.(fn10) Additionally, the phrase is commonly, but not necessarily, associated with a belief that copyright should be perpetual.

The public domain is also the subject of much scholarly inquiry.(fn11) This issue is a cognate one because the expansion of copyright has often come at the expense of the public domain. Indeed, this issue is at the heart of Golan.(fn12) The extension of copyright to sound recordings represents one of the most important instances of the struggle between copyright and the public domain; the inversion of culture and copyright that is the hallmark of common law copyright theory reflects our misunderstanding of the relationship between copyright and the public domain. It is true in some sense, as Jane Ginsburg puts it, that the "public domain is all the rage." Yet, it is also true that the public domain has an equivocal status, and that to the American legal mind, the public domain stands a distant second to the private domain of copyright. Noted copyright theorist Zechariah Chafee, Jr. once described copyright as the "Cinderella of the law."(fn13) In its current state, the public domain is the place Cinderella would go to if she fell on hard times, and in large measure, this is the result of forcing culture to take on the contours of copyright.

Ginsburg challenges what she takes to be "anachronistic assertions of the 'immemorial' quality of today's aggressive concept of the public domain." This Article argues that when we consider the issue as a question regarding the relative priority of culture and copyright, it is rather the theory of common law copyright that is anachronistic, based on improbable propositions, and aggressive.

Further, this Article addresses a question about the nature of common law copyright that has been raised by implication but rarely tackled head-on. Why has common law copyright endured? Numerous scholars have demonstrated that common law and natural law copyright are fictions. As Jessica Litman observes, historians of copyright have "persuasively debunked" the notion of a "common law literary property right in 17th century England."(fn14) Nonetheless, common law copyright has been remarkably tenacious, and no amount of debunking seems sufficient to overcome it. This Article explores the problem by focusing not only on the myth of common law copyright but also on the mythology of common law copyright. What is the source of the common law vision, if not the law? As Litman writes of the nineteenth-century natural...