History of Creative Commons/Legal History

Expansion of Copyright

Copyright laws in the United States have expanded over time. While much of this expansion happened gradually, it is important to remember that the greatest expansions of copyright occurred in the twentieth century, most notably in 1909 and 1976. The 1909 revision to the copyright act broadened the scope to afford protection to all works of authorship, and music in particular. The 1976 revision, passed in anticipation of joining the Berne convention changed the basis for copyright terms. Instead of lasting for a set number of years, copyright now expired 50 years after the death of the author.

As copyright terms lengthened, copyright terms were extended for some works that were previously scheduled to fall into the public domain.Thus, a work that would have fallen into the public domain in 1980 according to the law under which it was initially published may in fact still be under copyright as of this writing in 2018.

Sonny Bono Copyright Term Extension Act

Congress passed the Sonny Bono Copyright Term Extension Act in 1998. This act was named in memory of the congressman and former musician Sonny Bono, who had died in January of that year. His widow, Mary Bono, claimed that Bono believed "copyright should be forever."

The act lengthened the copyright terms previously extended in 1976. Works created after the passage of the act would be protected for seventy years after the author's death, rather than the previous fifty. Works which were under copyright at the time the act was passed had their copyright term extended to ninety-five years.

Several copyright holders lobbied on behalf of this act, including Disney, the Gershwin family trust, and the grandchildren of Oscar Hammerstein. These copyright holders sought to prevent the copyrights they held from expiring. Disney's intervention is especially famous; they act prevented Steamboat Willy, the first appearance of Mickey Mouse, from falling into the public domain. Thus, this law is popularly (and derisively) known as the Mickey Mouse Protection Act.

Because it lengthened the term of copyright both for new works and for works that were protected at the time of its passage, the law effectively prevented any copyrightable works from entering the public domain between 1998 and 2019.

Eldred vs. Ashcroft

Eldred vs. Ashcroft was a challenge to the copyright act. When the 1998 act extended copyright terms once more, Eric Eldred and other users of public domain works sued. Eldred, a retired programmer, was also a hobbyist internet publisher and literacy advocate who digitized works of literature in the public domain and made them freely available. The extension of the copyright terms prevented him from digitizing the works that received extended protection.

Eldred and constitutional law professor Lawrence Lessig filed a lawsuit together in 1999, arguing that the Sonny Bono Copyright Term Extension Act was unconstitutional. Their argument rested on the Progress Clause, which states that copyrights may be granted for limited times, and the First Amendment. That is, continually extending the term of copyright so that new works never fall into the public domain created, in essence, perpetual copyright, which limits the ability to criticize or comment on a work while it is still current.

The district court and DC Court of Appeals refused to hear the case, but the Supreme Court took it up in 2002. However, the Court ruled 7-2 against Eldred. In oral arguments, it appeared that the precedent set by many previous copyright extensions weakened Lessig's claims. To Lessig's disappointment, the ruling did not address the question of limited powers upon which much of his argument had rested. Justices Stephen Breyer and John Paul Stevens wrote dissenting opinions. Stevens dissented on the grounds of a parallel in patent law. Breyer argued that the copyright law had become so long as to be essentially unlimited.

Founding of Creative Commons

Lessig, along with collaborators, founded the Creative Commons in 2002 to provide an alternative to traditional copyright.

As they were working on Eldred vs. Ashcroft, Lessig and Eldred assembled a group of people to help, including MIT professor Hal Abelson. This group was called the Copyright Commons, but Eric Saltzman suggested changing the name to Creative Commons, which stuck. Lessig explains that this was intended as a grass-roots movement to support authors who don't want or need all the rights that copyright affords. In a 2002 press release, Creative Commons declared: "The Creative Commons will provide a free set of tools to enable creators to share aspects of their copyrighted works with the public. ... We stand on the shoulders of giants by revisiting, reusing, and transforming the ideas and works of our peers and predecessors."

The Creative Commons founders also believed that creating an explicit guarantee of legal protections would encourage participation in the open-source movement.

The William and Flora Hewlett Foundation contributed one million dollars to help begin the movement.