In a recent Woody Allen movie, Midnight in Paris, Owen Wilson’s character delivers a slightly garbled version of a famous William Faulkner quotation: “The past is never dead. Actually, it’s not even past.” (Wilson says, “The past is not dead! Actually, it’s not even past.) Faulkner, who did a stint as a Hollywood screenwriter, would likely have been pleased. But his estate had another reaction: it sued.
The Faulkner estate argues, absurdly, that using the quote was a copyright violation. Also last week, the Supreme Court heard a copyright case that could make it illegal to resell books, music and even household objects without the permission of the manufacturer, which could affect everything from garage sales to buying used books online.
Copyright has been getting out of control for some time, but the Faulkner lawsuit and the Supreme Court case show just how bad things are getting. If the courts and Congress do not put a halt to this expansion, copyright owners will be able to lock up more and more intellectual property — and force people to pay for doing things that should be protected as free expression.
The nation’s founders put protection of copyright and patents in the Constitution because they rightly saw it as a way to encourage artists and scientists to create. Samuel Johnson may have been overstating things when he said, “No man but a blockhead ever wrote except for money.” But ensuring that authors and musicians are decently paid for their work certainly encourages them to create.
The trouble is, copyright owners have gotten a lot more assertive about promoting their rights — far too assertive. A low point came in 1998, when Congress passed a law that allows rights owners — very often corporations who own the rights to works created by artists who are long dead — to add an extra 20 years to the length of their copyright.
The Faulkner estate’s suit is an example of another troubling trend: copyright holders’ increasing willingness to sue over even minor uses of their work. Copyright law allows for “fair use” — that is, it allows people to use parts of copyrighted books, music and video under certain circumstances, including when the amount of the work used is not excessive and it is being put to a creative or scholarly use. The Woody Allen quote should clearly be protected as fair use.
If it is not, artists will have to be a lot more careful when they make even glancing references to the work of other artists. That would be troubling because much art builds on what came before it. Faulkner did this as much as anyone. His book The Sound and the Fury took its title from a passage in Macbeth. Absalom, Absalom! was lifted from the biblical Book of Samuel.
The case the Supreme Court heard last week could push copyright law even further — and make trouble for people who are mere consumers. The publisher John Wiley & Sons is suing a Thai native who studied in the U.S. and sold low-cost textbooks that his family sent him from overseas. The textbooks in question were “gray market” goods. They sell for far less in Thailand than in the U.S., so by importing and reselling them, he was able to pocket the difference. The publisher argues that the sale violated its copyrights.
The case poses a challenge to the “first sale” doctrine, which allows people who buy copyrighted items to resell them as they wish. John Wiley & Sons argues that the doctrine does not apply to goods made overseas — and that if the defendant in the case wanted to sell the books in the U.S., he had to get its permission first. If John Wiley & Sons wins the case and copyright law is read too broadly, it could make it difficult for American consumers to resell all sorts of foreign-made goods.
In the worst-case scenario, it could mean that people who want to sell their belongings at a garage sale or on eBay — or donate them to Goodwill — would have to get permission from the copyright owners. At oral argument last week, Justice Stephen Breyer pointed out that Toyota has a copyrighted sound system and GPS device. If the “first sale” doctrine erodes, he noted, car owners might have to get permission from the copyright owner for each feature if they want to resell their car.
It is fashionable in some circles these days to argue that “information wants to be free” and that copyright should be radically rolled back or eliminated. That goes too far — it benefits all of society if creative people are fairly compensated. But even if information does not want to be free, it should not be as expensive as the Faulkner estate and John Wiley & Sons would like to make it.