A Modest Proposal for Preventing Readers from Being a Burden to Authors, and for Making Them Beneficial to Publishers
It is a melancholy thing to walk through a used bookstore and see thousands of volumes changing hands with no means of remuneration for their authors. It is worse to see a library lend one book to hundreds of strangers, each of whom walks away knowing what was in it. And worst of all, friends of the machines now argue that any book, once purchased, may be closely examined, and used to produce new writing with neither payment nor permission.
I think it is agreed by all parties that we have sunk to this infelicitous state only because a series of short-sighted and mistaken court decisions has moved us farther and farther from the sacrosanct words of the Founding Fathers, as enshrined in our beloved Constitution.
But my intention is not to lament the errors of the past, but to relitigate them. Fortunately, our current Supreme Court has not hesitated to right what it sees as the wrongs of its predecessors.
I therefore humbly propose that we petition the Court to revisit the following cases, which I hope will not be liable to the least objection:
Preliminary: the Constitution. Let us begin with Article I, Section 8, Clause 8 Wikipedia, which empowers Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." It says nothing of fair use, first sale, or the distinction between ideas and expression. These are Congressional and judicial inventions, and a strict constructionist Court will strike all of the cases and laws that created them.
1. Folsom v. Marsh (1841) Wikipedia. Justice Story held that some uses of a protected work, judged by their purpose, the amount taken, and their market effect, need no permission. This ultimately became the fair use doctrine (§107). Story was wrong, because deriving new value from a work is a taking: in plain language, theft of private property. Nothing in the Constitution supports this type of judicial activism, which confiscates the author's property and creates public rights at the author's expense.
2. Bobbs-Merrill Co. v. Straus (1908) Wikipedia. A publisher forbade resale of a novel for less than one dollar, lest the market for full-priced books be damaged. It was denied; the Court held that copyright controls the first sale of a copy, not what the owner does with it afterward, even though the book obviously contains the publisher's protected work. This is the first-sale doctrine (§109). Overruling Bobbs-Merrill will return resale, lending, and libraries to the copyright holder's discretion, where they belong. Improvident booksellers will be forbidden to sell our intellectual property into virtual bondage.
But what if fair use and the first sale doctrine are allowed to stand? In that case we must claw back the author's rights one at a time. Many others besides these I omit, being studious of brevity.
3. Baker v. Selden (1880) Wikipedia. A copyright in a book explaining a bookkeeping system did not give its author rights in the system itself. This ruling establishes that copyright protects expression, not ideas, methods, or knowledge (§102(b)). But AI model training steals this unprotected material. Overruling Baker will restore to authors their rights in the knowledge their books convey. This knowledge is theirs to license if and only if they choose, and only to whom they choose.
4. Feist Publications v. Rural Telephone (1991) Wikipedia. The Court held that facts are not copyrightable and expressly rejected the "sweat of the brow" doctrine, under which effort alone earned protection. Rural had, by all accounts, worked very hard on its telephone directory; the Court did not consider this relevant. Authors work hard too, and they deserve to control subsequent use of their work. If a book has been written by humans, and for humans, only the IP owner can allow it to be read by non-humans. Overruling Feist will restore the authors' rightful claim to the fruits of their labor.
5. Campbell v. Acuff-Rose Music (1994) Wikipedia. The Court made "transformative" use central to fair use and held that commercial purpose does not by itself defeat it. It also retreated from Harper & Row v. Nation Enterprises (1985) Wikipedia, which had called market effect "the single most important element" of fair use. Under Campbell, no factor is decisive: the four are "to be explored, and the results weighed together." By reversing Campbell and reinstating Harper & Row's ranking, we can return economic harm to its proper place as the decisive factor in fair use.
6. Sony v. Universal (1984) Wikipedia. Must we wait until the horse has bolted to bar the gate? It is equally absurd to imagine that we must show actual harm in order to collect damages, when we know it is possible the harm will occur. Yet for noncommercial uses, such as recording TV shows at home, Sony requires a copyright owner to prove a meaningful likelihood of future harm. This must be overturned, and the recorder must be required to prove that he or she never lent the tape to a neighbor who might otherwise have watched the broadcast, thus harming the IP owner.
7. American Geophysical Union v. Texaco (2d Cir. 1994) Wikipedia. Texaco counts only markets that are traditional, reasonable, or likely to be developed, and Bill Graham Archives v. Dorling Kindersley (2d Cir. 2006) Wikipedia holds that an owner cannot claim a transformative market simply by offering to license it. Both must be overruled so that authors may be justly compensated for markets they might someday enter. How can we justify constraining an author's imagination? How does this help the author "promote the Progress of Science"?
8. Sega Enterprises v. Accolade (9th Cir. 1992) Wikipedia. The court held that copying an entire work is fair use when it is the only way to reach the unprotected ideas inside. AI developers rely on exactly this: copy the whole book, and keep only what the law leaves free. But once the body of the work has been so crudely violated -- often by literally destroying the original book -- it cannot be made whole again. This bell cannot be unrung.
9. Eldred v. Ashcroft (2003) Wikipedia. Some will object that striking these doctrines raises First Amendment concerns, since Eldred described fair use and the idea/expression distinction as copyright's built-in free speech accommodations. The objection is absurd on its face. One cannot say that quoting a book copyrighted by another is free speech any more than one can say that expropriating Jeff Bezos's yacht for a bachelor party is freedom of assembly. It is a pity to lose Eldred, which otherwise upheld a twenty-year extension of copyright terms, but sacrifices must be made.
Conclusion. None of this requires new legislation, only a Court willing to read the Constitution as it was written, and right the wrongs of nearly two centuries. Authors will control their work, and the Progress of Science and useful Arts will proceed under the watchful eye of copyright holders, as the Founders intended.