Authors living off welfare and writing for free is not a coherent copyright plan

On Wednesday, March 22, 2017, the United States Supreme Court issued a decision in Star Athletica LLC v. Varsity Brands, Inc. The majority opinion shed light on the rather thorny issue of conceptual separability; a test for which there was absolutely no agreement. In a 6-2 decision, with Justice Ginsburg only concurring in the result and preferring not to reach the issue of conceptual separability, the Court held that “an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two-or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.” (Slip op. at 17)

As I wrote the day after the decision was issued, the statement from the Court that most bothered me was an unnecessary and rather uniformed statement made by Justice Breyer in dissent, and joined by Justice Kennedy. In his dissenting opinion, Breyer cited with approval the view that a copyright in a book is nothing more than a tax on readers, which is as ludicrous as it sounds.

Breyer wrote:

Years ago Lord Macaulay drew attention to the problem when he described copyright in books as a “tax on readers for the purpose of giving a bounty to writers.” 56 Parl. Deb. (3d Ser.) (1841) 341, 350. He called attention to the main benefit of copyright protection, which is to provide an incentive to produce copyrightable works and thereby “promote the Progress of Science and useful Arts.” U. S. Const., Art. I, §8, cl. 8. But Macaulay also made clear that copyright protection imposes costs. Those costs include the higher prices that can accompany the grant of a copyright monopoly. They also can include (for those wishing to display, sell, or perform a design, film, work of art, or piece of music, for example) the costs of discovering whether there are previous copyrights, of contacting copyright holders, and of securing permission to copy. Eldred v. Ashcroft, 537 U. S. 186, 248–252 (2003) (BREYER, J., dissenting). Sometimes, as Thomas Jefferson wrote to James Madison, costs can outweigh “the benefit even of limited monopolies.” Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 Papers of Thomas Jefferson 443 (J. Boyd ed. 1956) (Jefferson Letter). And that is particularly true in light of the fact that Congress has extended the “limited Times” of protection, U. S. Const., Art. I, §8, cl. 8, from the “14 years” of Jefferson’s day to potentially more than a century today. Jefferson Letter 443; see also Eldred, supra, at 246–252 (opinion of BREYER, J.).

Rarely will you ever see so much nonsense packed so tightly, even in a Supreme Court opinion.

Several things jump out immediately upon reading this passage. First, it seems that Justice Breyer likes citing his own dissenting opinions, here providing himself in a previous decision as a source for one utterly ridiculous statement.

There is a cost associated with discovering whether there are previous copyrights and securing permission to copy? Is Justice Breyer really suggesting that the grant of rights to copyright holders is too onerous for copycats and plagiarists to bear? What about this radical idea Justice Breyer – don’t copy what you didn’t create! If you cannot acquire the rights then just don’t copy, period.

To lament the lengths copycats and plagiarists must go to secure rights from copyright holders is truly bizarre. The Copyright Act is already full of fair use provisions that carve away at the heart of what Article I, Section 8, Clause 8 of the Constitution defines as an exclusive right. But let’s not pretend – a copyright is anything but exclusive. Not only are there generous fair use provisions available to the public to use copyright matter the instant that it is created, but there is an independent creation defense. So, if you create what I created and you didn’t copy then you too have a copyright and the original creator has absolutely no recourse. Call me crazy, but that doesn’t sound very exclusive to me.

Another thing that jumps out when you read Justice Breyer’s dissent is this notion that a copyright is somehow a tax.

The word “tax,” when not associated with the traditional meaning of a government-required levy, is defined as “a burdensome charge, obligation, duty or demand.” Calling a copyright a tax is simply inappropriate, and extremely disrespectful to content creators who increasingly find it difficult if not impossible to find even a modest level of remuneration for the fruit of their labors. It also shows a complete and total lack of understanding of the industry, and while I don’t expect anyone to know everything about everything, if Justice Breyer is going to pontificate he really ought to know what he is talking about and not speak from a position of ignorance.

In April 2016, I had the opportunity to interview Mary Rasenberger, the Executive Director of the Author’s guild. Rasenberger had a very dire message about the state of the industry from the author’s perspective, a message based on fact. She explained:

And this takes me back to the fact that most authors having a hard time now. We did a survey of our members about a year ago.

We kept hearing from our members and others, just anecdotally, that they’re doing worse, they’re having a harder time making a living now than they used to. So about a year ago, right after I came to the Guild, we thought, well, let’s try to put some numbers on this and see if there is any truth to this being a general trend. We found from our survey that in general authors are in fact doing much worse. The mean income for full-time authors is down 30% from 2009 when we last did a survey—that’s a huge drop.   And it’s even more shocking when you look at the actual dollars. The mean income went from $25,000 in 2009 to $17,500 in 2015. That’s getting very close to the poverty line. It was always known that you don’t go into writing to get rich. Sure, some authors do very well, but they are the very, very few and far between. Most professional authors earn at best a middle class living. So the problem with the decrease in income to authors in the last six years is that writing as a profession becomes unsustainable. If you can’t keep writing for a living, you’ve got to do something else, and many authors are starting to. People who’ve written books their entire careers, who have written a dozen or so books, they’re having to find other types of work. Our culture suffers as a result because we don’t have professionals writing the types of books that will further our literary culture, further our knowledge, our sense of our place on the world—the kinds of books that have a good chance of standing the test of time.

The only thing Rasenberger potentially gets incorrect is that $17,500 may already be below the poverty line depending upon where you live and the size of the family unit.

Tax means “a burdensome charge.” Authors who are making a wage that is at or below the poverty line create a burdensome charge for readers? Well when you put it that way what Justice Breyer wrote just sounds stupid.

I’m sure Breyer’s defenders will point to the money made by large publishing companies that make large sums selling the books written by those extraordinarily small number of blockbuster authors, but I don’t see where Breyer left any room for nuance or factual reality for that matter. What about the overwhelming majority of authors who make practically nothing? What about the fact that nonsense like this said when it is unnecessary to say influences the law that affects all rights holders and all disputes? There is a reason judges, and in particular Justices of the Supreme Court, are not supposed to say more than is necessary to decide a case. Without consideration of a multitude of important issues seemingly innocuous statements can easily be absurd in the broader context, not to mention set bad precedent.

In my original article on this case I lambasted Breyer for calling a copyright a monopoly, which anyone who is at all knowledgeable about copyrights knows is just not true. I won’t regurgitate that argument here, but suffice it to say that not only are there those generous fair use rights, but stopping infringement in the Internet Age is practically impossible. Yet we have at least two Justices of the United States Supreme Court who think they know enough about the subject matter to conclude that a copyright provides owners a monopoly. As a content creator, I’ve never seen any evidence of any monopoly power, and I seriously doubt those authors that live at or below the poverty line have seen evidence of such monopoly power either. Perhaps Justice Breyer can explain to those authors who live at or below the poverty line why their copyrights are so troubling to him and why they are nothing more than money-grubbing monopolists that require busting.

When you are a Supreme Court Justice and not accountable to anyone you get to say ridiculous things, cite yourself and leave a mess in your wake. The rest of us just have to deal with the nonsense and hope such myopic views of the world based on a complete lack of understanding won’t do real harm. Unfortunately, in recent years, the Supreme Court has done far more harm than good. I guess we just have to try and survive for now.



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Join the Discussion

14 comments so far.

  • [Avatar for Gene Quinn]
    Gene Quinn
    April 3, 2017 07:15 pm

    no_ice_cream_for_you —

    Just wanted to let you know that I fished your comment out of the spam folder. My guess is the obviously fake name and obviously fake e-mail address is what provoked the spam filter to catch it. I don’t always notice comments when they get caught in the spam folder. Just wanted to let you know, and remind others, of the hazards of using obviously fake e-mail addresses. It may seem funny, but that more than anything seems to lead to comments getting spammed.

  • [Avatar for no_ice_cream_for_you]
    April 3, 2017 11:11 am

    lol. Well, as far as I am concerned, you are all part of the problem.

    “At least while living, an individual should be able to enjoy those rights. Arguably, should an author/artist pass on too soon, some benefit should accrue to their heirs as well.”

    This to me is far too long. 14+14, or 28, is more reasonable. Jack Valenti’s fixed time = one day less than forever, which we is where we pretty much are, is ridiculous. The individual authors wanting 100+ year copyrights are just as greedy as the corporations–they just aren’t as successful as collecting the fruits of their greed.

    “patent protections are too long.”

    Who said that? A 20 year patent term seems reasonable. As did as a 28 year copyright term. Notice how close 20 is to 28, but how much less 20 is than “life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication”?

    As for EB’s comment, thanks for the laugh. I will leave it to the masses to find the humor.

    In conclusion, I will just add copyright law looks EXCATLY how I would expect an area of law written by Hollywood to look.

    Remember folks, these are the laws that allow the guy who stole your new printing press to give you an involuntary 2% royalty but throw you in jail if you use that printing press to print someone else’s book sometime within the next century. But, what we really need is more copyright laws. Once my eye rolls forward, I’ll be able to go back to working the rest of the day . . .

  • [Avatar for angry dude]
    angry dude
    March 31, 2017 01:53 pm

    ceruleanverde @9

    if full legal rights (for their entire duration whatever it is) were not passed from inventors/authors to their heirs we would have a lot of prematurely dead inventors and authors :):):)

  • [Avatar for angry dude]
    angry dude
    March 31, 2017 01:49 pm

    copyright and patent protections are too long ???

    I hear this nonsense again and again and here is what any informed person has to say:

    from my (inventor’s perspective whos patent has been infringed for many years)
    I say:
    Give me just 5 years of REAL protection instead of giving me 20 years of bs patent “protection” not worth the sh1tty paper its written on…

    And REAL protection in patent case means possible jail time for willful and deliberate corporate infringers (CEOs etc)

    same with copyrights

  • [Avatar for Eric Berend]
    Eric Berend
    March 31, 2017 09:56 am

    @ 8., ‘Breyers_ice_cream_copyrights’:

    I look upon your comment, as something out of a theater of the absurd. You pursue a tortuously distorted logical path, to arrive at your rhetorical destination. Pointing to 300-pound authors, the very few that truly exist; yet, you roundly ignore the 2000-pound ‘gorilla’ of content aggregators and distributors?

    Actually, the “ultra-wealthy” in this case are, almost always, these content aggregators and distributors; those who traditionally would, for example, chortle about “owning talent”; in their cavalier celebration of contracts routinely assigning copyrights to them by naive musicians, for the opportunity to gain royalties – contracts that IMO, by the way; should be subject to scrutiny according to the doctrine of unconscionability.

    These days, their descendants are the venues and fora of the Internet, the “portals”, “platforms”, “segments” (i.e., ‘b2b’, back in the day) and specialized networks built on TCP/IP and authentication, etc. They benefit handsomely from the generation of content, the copyrights of which becomes instantaneously owned by them, and for which little is paid; except the costs of sustaining the infrastructure and software running said fora.

    Do you really think that major publishing and content distribution industry interests would be the heft behind lobbying efforts for generations, if the primary beneficiaries were your phantom so-called “ultra-wealthy authors”; then, if anything, these same politically powerful forces would have lobbied in an exactly opposite way.

    Nay: the Facebooks, Googles, Microsofts (Bing, etc.), RIAAs, “Chengdu ________ (insert industry here) Mfg. Co.’s”, etc., of the world; those for who intellectual property rights should benefit only wealthy aggregators and infringers of enormous size – these are the very entities that benefit most, from extensions of copyright terms.

  • [Avatar for ceruleanverde]
    March 31, 2017 09:28 am

    I don’t feel it is too long. Works of authorship, music and art are too often ripped off by those lacking the creativity to produce them and monetized by corporations without any benefit to the originator. At least while living, an individual should be able to enjoy those rights. Arguably, should an author/artist pass on too soon, some benefit should accrue to their heirs as well. It should be easier and less expensive to register and protect them as well. Better, easier public registers of contacts and ownership would help a lot. There are registries that are difficult to locate and require memberships to search. This contributes to enforcement problems.

  • [Avatar for Breyers_ice_cream_copyrights]
    March 31, 2017 08:30 am

    Only had time to skim, and copyright is not my area, BUT, I wonder if his point isn’t that copyright becomes a tax whose burden outweighs it’s benefit when copyright is too long (“that is particularly true in light of the fact that Congress has extended the “limited Times” of protection, U. S. Const., Art. I, §8, cl. 8, from the “14 years” of Jefferson’s day to potentially more than a century today.”)

    I do wholeheartedly agree with this statement, and believe that copyright protection is far, FAR, too long. And, although I have no facts at this time to back up the belief, it is my feeling that If an investigation were to be conducted, it would indicate that long copyrights are only any real benefit to the ultra-wealthy authors, rather than the middle-class or poverty level creators.

  • [Avatar for Pamela Rinehart]
    Pamela Rinehart
    March 31, 2017 08:05 am

    Couldn’t agree more

  • [Avatar for Eric Berend]
    Eric Berend
    March 31, 2017 07:24 am

    As to copyright law specifically, my above comment bears on the main topic here; in that, wherever one goes, the manifest contempt of intellectual property creators by Justice Breyer permeates his every decision, dissent, opinion and dicta. Justice Kennedy is not much better.

    And, just what is it about this particular area, that draws such opprobrium from such supposedly esteemed jurists? Their conduct amounts to virulent hatred.

    We authors, musicians, inventors, playwrights, composers and stage performers, etc., are treated with disdain and derision; almost as if considered to be a plague of locusts requiring elimination, or some sort of ‘poor sister’ relation, to be accorded a mere dunce status over in the corner of the room (so to speak).

    When snobbery substitutes for the manifest duties of a Supreme Court Justice, driven home with mailicious zeal; then, what sort of mens rea does this imply, in the ‘crime’ of destruction of an enormous fortune and continuing damage to the economy of the U.S.A. in the future, for the sake of a few favored industrial pirates?

  • [Avatar for Eric Berend]
    Eric Berend
    March 31, 2017 06:34 am

    There is a friend of mine who is a seminal author in an area of personal and social interaction who saw his copyrighted writings ripped off; Google simply copying and posting works online; and threats made on his person and livelihood, when he tried to assert his rights and defend himself in social media, where parties responsible hid quite effectively behind Section 230.

    I, in my naivete, did not realize the maelstrom against patents, bearing a similar contempt and avarice for intellectual property rights; that this portended. More fool I.

    That author, by the way, was correct at least in the assumption of the economic value of his works, seeing others turn it into a multi-million dollar industry (not “billions” – no need to ‘reach’, here). Moreover, some of the memes involved, became generally adopted and affected certain gender-based conventions – an enormous social scope of effect, for which many authors find additional value in affecting society itself. Fame, reputation, celebrity, even infamy, have a value that is perceived beyond monetary renumeration, as well.

    And, lest this seem frivolous or inappropriate: ‘The Lovers’ (Les Amants) and ‘Slaugterhouse Five’, anyone? Does this not have a correlation with ‘step back’ ‘s apt criticisms of SCOTUS “Witch Law” decisions? Who here; if anywhere; does not recall, “…I know it when I see it…”? *[1]

    Jacobellis v. Ohio, 378 U.S. 184 (1964)
    “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [‘hard-core pornography’], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

    Isn’t this directly analogous to the spurious, non-statutory concept of “abstract” as introduced in Alice/Mayo, among other tortured and strangely decided SCOTUS and CAFC case reviews?

    Miller v. California, 413 U.S. 15 (1973)

    Those with any reasonably comprehensive knowledge of U.S. jurisprudence, will be familiar with the follow on to Jacobellis (op cit) and Roth v. United States, 354 U.S. 476 (1957); articulating a line of cases reaching back to the 1868 English case Regina v. Hicklin.

    Here, it is well known that the Supreme Court provided guidance in that a majority of the Justices agreed on a definition of “Obscenity” that could be applied in State courts.

    When, will inventors, patentees and patent owners, along with patent practitioners, gain the same respectable regard and bright-line clarity, to which we are Constitutionally entitled? Where, is this recognition of correct legal principles and the responsibilities of its judicial guidance function in the structure of U.S. jurisprudence, in the sordid machinations of the current and recent SCOTUS?

    Board of Education v. Pico, 457 U.S. 853 (1982) (aka “Island Trees School District v. Pico”)

    “As noted earlier, nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools. Because we are concerned in this case with the suppression of ideas, our holding [457 U.S. 853, 872] today affects only the discretion to remove books.”

    Popularly known as the “Slaugterhouse Five” case, the esteemed Justices’ decision; despite a plurality of opinion; provided a clearly defined, bright-line standard.

    Do we benefit from such a standard, where recent patent law rulings and opnions of the current Court, are concerned?


    What we have been subjected to in their shoddy dispensation; often with wholly inappropriate, barely concealed derision as to our legitimate Constitutional standing, statutory rights and equitable interests; is, as Gene and ‘step back’ have often explicated: a murky morass of arbitrary, sentimental, inherently self-contradictory and unduly perplexing legerdemain, masquerading as legitimate judicial contemplation.

    *[1] – Of course, in Justice Stewart’s place, it wasn’t easy being philosophically positioned between the formidable personalities of Justice Frankfurter and Justice Brennan. In my humble opinion, the candidates selected and appointed by recent Presidents and Congresses leave much to be desired, by comparison; it’s been a real circus since the contention over Judge Bork. This part of our Constitutional process is, if not ‘broken’, clearly under duress – political cowardice, partisan posturing and influence peddling rule the day, over principle and at least an appearance of propriety.

  • [Avatar for Befuddled PA]
    Befuddled PA
    March 31, 2017 06:02 am

    The Scotus have just about hammered the last nails on the cofin of the US Patent system (RIP), with their stupid and scientifically ignorant decisions (Benson, Fluke, Alice, “abstract” circular definitions and so on). Now they are bored out of their minds without anything to destroy so they target the copyright system with such ignorant and superficial “learned opinions”.

  • [Avatar for Night Writer]
    Night Writer
    March 30, 2017 04:41 pm

    That statement from Breyer is just stunning. Great illustration Gene.

    So, why does Bryer take a salary for his work? Isn’t it a tax on the citizens to receive justice? Shouldn’t we expect Bryer to work for free?

  • [Avatar for step back]
    step back
    March 30, 2017 02:54 pm

    Absolute power corrupts absolutely. 🙁

  • [Avatar for angry dude]
    angry dude
    March 30, 2017 01:59 pm

    forgive my ignorance,

    but I just don’t get it how those scotus dudes are even allowed to decide on such complex matters as copyrights and patents ?

    I know just a little bit about patents but not copyrights

    but those scotus justices are apparently know-it-all dudes – patents ,copyrights, technology, art, science, literature, real estate, US constitution, you name it – they know it all…

    unbelievable, simply unbelievable

    such a f@#$%^&$ mess

    The doc said ‘to the morgue’, to the morgue it is!