The Fundamental Problem

After finally reading the briefs from Eldred v. Ashcroft, I have reinvigorated mentally gymnastics about the problem with the application – and continuing existence – of the DCMA. Of course, it’s clear that there is a problem – such a discrepancy between the market and the law is hardly reasonable. But I’ll leave that to those who have already discussed it at length and with much greater understanding than I could offer.

Now, when those aforementioned more experienced people argue this unreasonableness – nigh, the destructive effects of the current copyright laws, they lose. Napster, Eldred, etc. 9-0 opinions, losses. Why is that? The problem is, in a word, the judges.

They’re brilliant jursists, and they understand the law in a way that I can only dream of understanding it. But, they are old, or older, at least, and they’re lawyers (not artists).

They didn’t grow up when the internet was an integral part of daily life. I’m told that in 1996, in order to decide a First Amendment case, the Justices had to have their clerks set up stations to show said Justices exactly what this “internet” was. Certainly, now, they are more savvy, as a plethora of cases requiring an understanding of the internet have come before them in the interim. But I still have educated doubt, based on observation of any and all persons I know over the age of 50 and their internet usage, that the Justices really understand the breadth and potential of the internet.

So how do you argue a delicate point of law to people who aren’t making – and aren’t able to make – the factual distinctions between old media and new? How do you communicate with someone who thinks a RAM “copy,” i.e. a translated version of your data that exists on the hard drive for a millisecond, is a “copy” for copyright infringement purposes. Certainly, our laws were written with some underlying justification that would shed better light on purpose and intent than a blind statement that treats all mimicry as copyright copying.

The justices (and their lower part counterparts) are also clearly not artists. At least, the critical mass of judges making and writing these decisions are not treating the analysis as if they have any understanding of what it is to create art, or why one creates it. Reading the decisions as an artist is like reading a foreign language, a language that has no words for “expression” and “idea,” except the words for “thing” and “theme.” Here’s the skinny: artists create because they can’t not create. Professional artists create for a market sometimes, and might have to pick a subject matter in order to get paid. But no painter I have ever met decided not to paint something recreational because they weren’t sure whether they would get paid for it. So the baseline justification for copyright law as it exists post-DCMA is flawed.

Note, of course that the original copyright laws had no such flaw, as they were all about both exact copying and about book profits. They were written, quite clearly, for a different purpose than what thei offspring are used indiscriminately to do today.

On the other hand, the arguments the copyright-excess-proponents make are all based on profits, which judges see pretty often. It’s only logical that the same judges who understand profit and lost profit but don't understand the creative process or the medium would bend their understanding toward the profits.

Hopefully, someone in court soon – a high court, with a good case – can stand up and make some policy points that correspond to the entirety of young American and every artist that ever lived and end the inhibition of social capital that plagues us now. It will be tough, though, with all that age and lawyerness that sits on the bench.