Three hundred years earlier, copyright started out as a private monopoly—the Stationers’ Company (the guild of booksellers) got together and decided to respect each others’ rights to print certain books. In 1557, the crown granted a royal charter to the Company permitting them to destroy “unlawful” books, leading to a form of crown-sponsored censorship that lasted for 150 years.
Extremely suspicious of copyright because of the abuses that had come before, the Founding Fathers explicitly limited its scope in the Constitution. In fact, as Loren points out, copyright is the only clause in the grant of powers to Congress that has an explicitly-stated purpose: "to promote the Progress of Science and useful Arts."
But over the last couple of hundred years, the balance has shifted away from promoting science and useful arts and toward filling the coffers and enhancing the control of copyright holders. This ends up leading to a de facto form of censorship as rights-holders are able to prevent otherwise fair uses simply by having more money with which to fight would-be fair users in court.
One thing that particularly interested me in the article was the mention of the landmark fair use case, pitting 2 Live Crew against Orbison Music in the matter of their parody of “Oh Pretty Woman”. This is a pretty well-known case, and is often brought up in any discussion of parody as legal fair use.
I had always assumed the Supreme Court case had been decided in favor of 2 Live Crew, as the song was a fair use—but Loren points out that in actuality the Court remanded the case to a lower court for reconsideration, but instead Orbison Music saw which way the wind was blowing and entered into a licensing agreement with 2 Live Crew.
2 Live Crew was fortunate. The group had the resources to fight all the way to the Supreme Court that repeatedly emphasized the importance of the promotion of the progress of science and the useful arts as the ultimate aim of copyright. But, in the end, even for 2 Live Crew’s parody, a license from the copyright owner was the result. The need for a license, of course, grants to the copyright owner the power to deny that license which is the power to censor certain kinds of speech.
But others aren’t so lucky. If an author wants to use a particular quote from a song as an epigram for his book, he can still be sued by the rights holder. Even if a court would end up finding his use fair, how is he supposed to find the money to fight it out? Why would he even bother to fight it out rather than just drop it?
The article is very thorough, and Loren explains, the history of the laws, the theory behind the laws, and the harm being caused by the changes to the modern copyright system in ways that most readers can easily understand. This is the kind of article to show to someone who does not understand why copyright reform is so important—or who is not even aware of it at all.
Related: The discussion that followed Are ‘second-hand e-books’ possible?