Starr, Paul, The American Prospect
In April 20, a federal judge named Charles Pannell, Jr., barred Houghton Mifflin from publishing Alice Randall's novel The Wind Done Gone--a takeoff on Gone With the Wind from a slave's perspective--on the grounds that the book's borrowings of characters and scenes constitute "piracy." The ruling has prompted widespread critical derision and may well be overturned on appeal, but it ought to serve as a wake-up call about the trend toward excessive protection of intellectual property rights.
American law originally took a highly restrictive view of copyright. The Constitution authorizes Congress to give authors and inventors the "exclusive right" to their writings and discoveries, but it gets two important provisos: The rights are to be for "limited times" and the purpose of granting them is "to promote the progress of science and useful arts" Other provisions of the Constitution granting powers to Congress are silent as to purpose, but the copyright and patent clause explicitly says that the object is a public benefit. Or as a committee of Congress put it nearly a century ago, copyright is "not based upon any natural right that the author has in his writings ... but upon the ground that the welfare of the public will be served"
In 1790 the first copyright act set the length of protection at just 14 years, renewable for another 14 only if the author was still living. Interpreting the Constitution strictly, courts before the twentieth century refused copyright to much published matter, such as commercial information, which seemed to them neither science nor art. And they gave a narrow interpretation to the scope of copyright, denying one best-selling writer about Southern plantation life, Harriet Beecher Stowe, ownership of her fictional characters. Legislators and judges worried that copyright was a form of monopoly and that extending its duration and scope would mean restricting competition and the progress of knowledge.
These concerns have had waning influence during the past century, and in recent years the law has swung decisively in favor of broader intellectual property rights. Under the influence of intensive lobbying from the entertainment and information industries, Congress has expanded copyright with little thought to the effects on the public. By the time Margaret Mitchell published Gone With the Wind in 1936, the duration of copy right was up to 56 years; if it had been left unchanged, the book would be in the public domain today. But Congress has lengthened copyright 11 times in the past four decades, extending it to the author's lifetime plus 70 years. Judges are also increasingly likely to find infringement by those who abridge or borrow copyrighted material, although exceptions are allowed for "fair use" which is supposed to include parody and social commentary.
The same trend in favor of intellectual property claims has characterized patent law. …