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From the issue dated October 25, 2002
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A Bookworm's BattleEric Eldred, inspired by the Internet, takes a copyright case to the Supreme CourtBy ANDREA L. FOSTER Derry, N.H. Eric Eldred is taking on the federal government in a U.S. Supreme Court
But here in this town of 34,000, where Scotch-Irish Presbyterians settled in 1719 to escape persecution, few people, apart from the local librarians, are aware of the high-profile court case, Eldred v. Ashcroft. Mr. Eldred, who has lived here for 25 years, is challenging the constitutionality of the Sonny Bono Copyright Term Extension Act, which added 20 years to copyright protection. The 1998 act lengthened the copyrights on creative works to 70 years from 50 years after the creator's death. It protects works for hire for 95 years, up from 75 years. "Am I supposed to know about him?" Chris Dornin, political reporter for the weekly Derry News, asks a visitor. That's just how Mr. Eldred wants it. At 59, he is unassuming, shy, and soft-spoken. Yet his passion for publishing on the Internet is unmistakable. He envisions a society in which literacy and democracy are advanced through the online dissemination and discussion of great literature. Literature, he says, should not be "locked up in a library and accessible [only] to high priests of academia ... People have as much power as a printing press" in their own computers. Harvard University's Berkman Center for Internet and Society, which spearheaded the lawsuit, approached Mr. Eldred after The New York Times ran an article in January 1999 about his struggle with copyright law. Jonathan L. Zittrain, a Harvard law professor who has helped craft the legal challenge -- along with the center's Lawrence Lessig and Charles R. Nesson -- says Mr. Eldred is a striking example of how one person's efforts to advance scholarship and the public domain have been stifled by Congress's kowtowing to entertainment interests. "You basically couldn't ask central casting for a better face," Mr. Zittrain says. "There's none of the sort of ego that one stereotypically encounters with people on a mission." At the door of the 18th-century house he shares with his wife, Julie, Mr. Eldred is expressionless, with little to say. His face and gray hair are partly hidden by a Red Sox cap. Upstairs, lined floor to ceiling with books, he enters his home office. It is dark, musty, and also crowded with books, with a small space for a computer and scanner. He recommends a drive into town to talk at a diner or the library. Working at home, Mr. Eldred, a former computer administrator, runs a Web site (http://www.eldritchpress.org) that makes great literature freely available. He has a fondness for Hawthorne, although the works of many other writers, like Mencken, Conrad, and Chekhov, are there, too, The site also features works about boats -- he owns a 27-foot sloop -- as well as a tribute to his mother, the late Bonnie Eldred, who was a poet and self-taught marine biologist. "It mirrors him," says Mr. Zittrain. "It's clean and simple. This is not a site with pop-up ads and his name all over it." Helping His Daughters Mr. Eldred started the site in 1995, inspired to help his triplet daughters wade through the antique prose of The Scarlet Letter, which they were assigned to read in middle school. Mr. Eldred's electronic text has hyperlinks throughout to explain difficult words and phrases. The site also includes links to color illustrations that accompanied a 1915 edition of the book. His work on The Scarlet Letter motivated him to create a separate Web site on Hawthorne geared to high-school students and college undergraduates. It features a complete list of the author's works, readings about his life, criticism of his literature, correspondence with Melville, and museums and libraries that maintain Hawthorne collections. One page, "How to Get an 'A' on Your Scarlet Letter Assignment," admonishes students not to be "crybabies": Don't rely on Cliffs Notes or a movie adaptation of the book. Don't turn in someone else's work. "We are trying to challenge you," Mr. Eldred writes. "Some of you students need to have older people ask you to do something hard, that you might fail at." In October 1997, the National Endowment for the Humanities named the Hawthorne site one of the 20 best humanities sites on the World Wide Web. "There's so much information on it. He's done a terrific job," says Leland S. Person, head of the English department at the University of Cincinnati and treasurer of the Nathaniel Hawthorne Society. Its Web site links to Mr. Eldred's. Donna M. Campbell, an associate professor of English at Gonzaga University, praises Mr. Eldred's Web site on William Dean Howells. Mr. Eldred offered his Web postings on the author to the William Dean Howells Society, and they are now on the society's Web site. "He formatted the Howells novels beautifully," says Ms. Campbell. "He's been very, very important in terms of providing reliable online text. He explains where he got it and what he's done with it." Mr. Eldred keeps track of the expiration dates of copyrights on American literary classics, so he can copy them to his site, using an Epson scanner and software with optical character recognition. He intended to republish Horses and Men, a short-story collection by Sherwood Anderson, and New Hampshire, a collection of Robert Frost poems. Both works, published in 1923, were set to enter the public domain in 1998 under the 75-year copyright protection in place before the Copyright Term Extension Act took effect. The Sherwood Anderson Trust holds the rights to Horses and Men. It is unclear who holds the rights to New Hampshire. Frost's farm is a tourist site in Derry, and Mr. Eldred says New Hampshire "has nice woodcuts that are not reproduced in later works." He wanted to republish Horses and Men without editors' punctuation changes in subsequent editions. "Taking out a comma changes the way a poem is read, a lot," says Mr. Eldred. "I'd rather leave that up to the reader than make those choices for them." Dashed Plans But his plans were dashed when Congress approved the Copyright Term Extension Act in early October 1998, which keeps the works out of the public domain for another 20 years. What's more, the House of Representatives that month approved the Digital Millennium Copyright Act, which barred people from circumventing technologies designed to restrict access to copyrighted works. Mr. Eldred got mad. He fired off messages to the news media. He shut down his Web site for five days in protest and urged people to write to President Clinton. The president signed both bills in late October. The Copyright Term Extension Act, Mr. Eldred wrote in an Internet posting in November 1998, was "marginalizing the library, diminishing the public domain. ... By allowing distant heirs and publishers with obsolete technology to maintain control, even the author's intent and original works may not be protected." The act was named for the late Sonny Bono, an entertainer and, toward the end of his career, a member of the U.S. House of Representatives. Congress said the act would help authors and songwriters, like Mr. Bono. But Mr. Eldred argues that such creative people would still create their works without the extra 20 years of copyright protection. It wasn't a good year for Mr. Eldred. He was forced to quit work as a computer-systems administrator because of numbness and pain in his arms, which kept him awake at night. A doctor diagnosed the problem as repetitive stress injury and recommended splints. That injured his thumbs, says Mr. Eldred. His chronic pain was later determined to be a symptom of thoracic outlet syndrome, in which the nerves of the upper body are compressed. He underwent physical therapy but couldn't return to work. He started receiving worker's-compensation benefits and, when they ended, Social Security disability payments. He channeled his anger with Congress into action when the Berkman Center recruited him as the lead plaintiff in a lawsuit against then-Attorney General Janet Reno. The suit, filed in January 1999, asked the U.S. District Court for the District of Columbia to declare the Copyright Term Extension Act unconstitutional. Other plaintiffs included Dover Publications Inc., of Mineola, N.Y., which publishes paperback books, and Luck's Music Library Inc., of Madison Heights, Mich., which sells and rents sheet music for classical works. The suit argues that the act violates Article I, Section 8, of the U.S. Constitution, which grants Congress authority to confer copyrights for "limited times." By repeatedly extending copyrights -- which originally were 14 years in length -- Congress had failed to limit copyright protection, the plaintiffs said. Copyright is intended to provide an incentive for artists and authors to create new works. But how can it, the lawyers ask, if copyright extensions apply retroactively, long after an author's death? Since, as a rule, people don't create works until they are at least adolescents, 95 years of copyright protection would seem necessary only if authors routinely lived well beyond 110 years, the suit points out. An amended complaint asserts that the act violates the First Amendment, because it restricts the ability to publish. Judge June L. Green, of the district court, and, subsequently, the U.S. Court of Appeals for the District of Columbia Circuit, didn't buy the arguments. Congress has the authority to decide the meaning of "limited times" under the copyright clause of the Constitution, the judge said. The act does not violate the First Amendment, either, she said, because there is no First Amendment right to use the copyrighted works of others. Mr. Eldred's legal challenge may seem like an audacious act for a quiet bookworm. But, in fact, he has been challenging the government for years. After graduating from Harvard with a major in philosophy in 1966, he became active in Students for a Democratic Society. He once spent the night in jail for blocking the entrance of a Boston hospital to protest what he and the radical group considered its racist policies. As a member of the Boston Draft Resistance Group, he boarded buses with draftees headed for physical exams and tried to persuade them that it would be wrong for them to fight in the Vietnam War. He was drafted to serve in the war but won conscientious-objector status and went to work as a respiratory therapist at Massachusetts General Hospital. Later he was promoted to chief pulmonary technologist and managed a laboratory. He also became the resident computer expert for many physicians. He went on to work as a computer consultant and supervisor at several software and publishing companies. Mr. Eldred's Web site displays his skepticism of authority. Before the arrest of Theodore J. Kaczynski, in 1996, government officials had said that the Unabomber might have drawn inspiration for his acts from Conrad's novel The Secret Agent. "I thought it was absurd," says Mr. Eldred, noting that Conrad wrote with irony about the anarchist leanings of Verlac, the character who sets about bombing an observatory. So Mr. Eldred posted the text of the work on his site, along with an article from The Washington Post on the government's theory. Although in court he is fighting only the latest extension of copyright, Mr. Eldred really wants copyright policy completely overhauled, to favor consumers over creators. Creative works, he says, should become part of the public domain unless the creators deliberately copyright them. Under current law, a work is copyrighted automatically upon its creation. He also says it may be desirable for literature to be copyrighted for only 14 years -- as it was at first, in 1790 -- with authors permitted to renew the copyright for another 14 years. He struggled over whether to appeal the case to the Supreme Court, seeking advice from a community of online publishers called the "book people." They share ideas through an e-mail list about disseminating and preserving literature and scanning books into computers. The group took its name from Fahrenheit 451, the Ray Bradbury novel about a society in which all books are burned because they're seen as upsetting the status quo. A secretive network of "book people" emerges to preserve works of literature by memorizing them. Support From Scholars Mr. Eldred was wary of an appeal because he was afraid that the Supreme Court justices would issue a ruling that not only agreed with the government but also strongly affirmed the notion that copyrights are akin to natural property rights. "Is that not worse off than leaving the matter ambiguous?" he asked his compatriots. Their response was indeterminate, and he decided to take the risk, along with the other plaintiffs. Surprisingly, the justices agreed to hear the case. The Supreme Court usually accepts a case only when lower courts disagree in their decisions. Scholarly groups came out in full force for Mr. Eldred, filing about a dozen legal briefs in support of his lawsuit. His supporters include 15 library associations, 5 professors of constitutional law, 53 professors of intellectual-property law, 17 economists, and various academic-affiliated groups, including the College Art Association, and the Consortium of College and University Media Centers, and the National Humanities Alliance. Their legal briefs said the Copyright Term Extension Act grants copyright holders too much control over the dissemination of creative works, constraining the ability of scholars and teachers to discuss and study literature, art, and movies. On the other side, the government's side attracted copyright holders like AOL Time Warner Inc., the Association of American Publishers, Dr. Seuss Enterprises, the Motion Picture Association of America, and the Recording Industry Association of America. Their briefs argue that the Constitution leaves it up to Congress to decide whether to extend copyrights, that the 1998 act makes U.S. copyright law more harmonious with Europe's, and that applying copyright safeguards to existing works encourages copyright holders to restore and disseminate their works. After going before the Supreme Court this month, Mr. Lessig, who argued Mr. Eldred's case, spoke to reporters on the front steps of the court building. When he finished, reporters asked for Mr. Eldred. After a brief search, he was found talking to Mr. Lessig's parents and was pulled aside to answer reporters' questions. Mr. Eldred had similarly tried to stay in the background at a party for him and his legal team on the eve of the arguments before the Supreme Court. Hardly anyone noticed when the plaintiff, wearing his Red Sox cap, entered the room. When Mr. Lessig entered, the crowd fell silent to allow him to speak. And Mr. Eldred, like a concerned parent, told him to go home and get some sleep. For online publishing to have a chance to flourish, Mr. Eldred knew, his lawyer would have to be fully alert the next morning. "My focus is on discovering and trying to help other people with the tools to be able to do this themselves," he says, "rather than relying on a university or a professor or anybody else to give this to them." http://chronicle.com Section: Information Technology Volume 49, Issue 9, Page A35
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Copyright © 2002 by The Chronicle of Higher Education