Eric Eldred

Cofounder of Creative Commons

• Born: 1943
• Place of Birth: Florida

Primary Company/Organization: Creative Commons

Introduction

Eric Eldred has been a computer engineer, analyst, and computer systems administrator at various times in his career. His most significant efforts, however, have not been in any technical specialty but in the legal and economic realms, to expand public access and the list of works in the public domain. Running his own organization, Eldritch Press, to make works in the public domain available over the World Wide Web, he has been restricted by the provisions of the Copyright Term Extension Act (also known as the Sonny Bono Act), which extended the time that authors and their estates—both personal and corporate copyrights—are in effect. The result was Eldred's attempt, through the Supreme Court case Eldred v. Ashcroft(2003), to overturn the copyright extensions and challenge the constitutional power of Congress to extend copyrights.

Early Life

Eric Eldred was born in 1943 in Florida and attended Harvard University, graduating in 1966. Shortly afterward, he began working at Massachusetts General Hospital as a respiratory therapist, a term of his status as a conscientious objector during the Vietnam War era. He stayed at the hospital until 1987.

While working at the hospital, Eldred became interested in computers, eventually returning to Harvard (through its extension school) to study programming and technical writing. During the late 1980s and the early 1990s, he worked in various companies in computer industry and along the Route 128 beltway, including Apollo Computer, the Cahners publishing company, and the Government Services Division of Wang Computer. His jobs involved engineering, analysis, writing, and computer systems administration.

Among his activities before his Supreme Court battle, Eldred worked for Project Gutenberg, scanning public domain texts that were then uploaded to Project Gutenberg's website. Eldred next started his own publishing house, Eldritch Press, which made public domain texts available on the Internet. The server for Eldritch Press was located in his home, and he was involved in every step of the process of making texts available for public access. One of Eldred's major projects for his publishing house was to upload all of the works of Nathaniel Hawthorne. (In addition to his other pursuits, Eldred is an independent scholar specializing in Hawthorne and his works.)

In the late 1990s, Eldred wanted to make a set of poems by Robert Frost, published as New Hampshire (1923), freely available to the public. It was this projected initiative that brought Eldred into direct conflict with copyright law, which had been amended to extend copyrights beyond the term of the 1976 law. The result would be a case brought before the Supreme Court, Eldred v. Ashcroft, in an effort to bring literary (and other) works into the public domain.

Life's Work

In 1998, the Copyright Term Extension Act was passed by both houses of Congress. Commonly referred to as the Sonny Bono Act, the law made significant modifications to copyright terms that had been legislated in 1976. Under the terms of the new law, copyright protection for intellectual property would run for seventy years beyond the death of the author or creator, an extension of twenty years. For corporate copyrights (such as those held by Disney or film studios), the copyright protection was extended from seventy-five years to 120 years after the time of creation or ninety-five years from the time of release or publication, whichever came first.

Although the new act protected authors and corporations, it adversely affected those who wanted to expand the body of works considered in the public domain. Organizations that made works freely available over the Internet—such as Archive.org, Project Gutenberg, and the Eldritch Press—would not, therefore, be able to scan, upload, and distribute materials created after 1923 (the baseline year for determining public domain) until 2019.

As a result, in January 1999, Eldred launched a lawsuit, Eldred v. Reno (Janet Reno was then attorney general of the United States). The case named the current attorney general of the United States as a representative of the U.S. government; the case would later become known as Eldred v. Ashcroft (John Ashcroft succeeded Reno as attorney general). In 2002 Eldred vs. Ashcroft went before the Supreme Court for a hearing.

Eldred's lawyer was Lawrence Lessig. Lessig's area of specialization involved cases in which loosened constraints resulting from new technologies came into conflict with legislation enacted before the technologies came into existence. One of the major issues in this conflict, copyright law, was one of his area of specialization. In addition, Lessig had a thorough academic background, teaching at Stanford, Harvard, and the University of Chicago.

Although Eldred brought the case, he was not alone. He was joined by several organizations, including Dover Publishing (which specializes in reprints of older works in the public domain), the Higginson Book Company, and two publishers of sheet music. Legal support from Harvard's Berkman Center for Internet and Society was present during the hearing. On the side of the defense was the U.S. government, supported by several parties with substantial interests at stake. First, there was the Walt Disney Company; because it was the foremost supporter of the copyright extension, the law was sometimes known as the “Mickey Mouse Protection Act.” The Motion Picture Association of America (then run by Jack Valenti, a former aide to President Lyndon Johnson), the Recording Industry Association of America (RIAA), and the American Society of Composers, Authors and Publishers (ASCAP), joined as well.

Lessig's argument was based on the definition of constitutional powers. Congress, Lessig argued, had acted unconstitutionally by extending the time limits granted to copyright holders. Lessig also argued that copyright extensions should be seen as a restriction on free speech as defined in the First Amendment to the Constitution. The government argued that the Constitution specifically stated that Congress could create the terms of copyright for a limited time but did not specify what that time limitation might be. In any event, there was nothing in the Constitution to prohibit Congress from making any changes to existing copyright laws. The government also argued that the case had earlier been upheld in appellate courts. (The fact that lower appellate courts had upheld this view had seemed to many to guarantee that the case would never be heard in the Supreme Court, and the fact that the high court accepted the case had surprised many observers.)

In January 2003, the Supreme Court handed down its decision, by a 7–2 majority, that Congress had acted within its constitutional rights to extend the copyright time limits. The dissenters in the Court did not question that Congress could extend copyrights but that extensions would deprive Americans of free access to creative works.

Eldred no longer performs all of the system administration tasks for Eldritch Press, which were taken over by ibiblio, “the public's digital archive,” an organization based at the University of North Carolina at Chapel Hill.

Personal Life

Eldred is divorced and has triplet daughters. In 2002, Eldred began his Internet Bookmobile program, traveling to various locations, especially schools and libraries, to make it possible for people to own their own free copies of public domain books. In 2004, Eldred attempted to print and distribute free copies of Walden at Walden Pond. Because he did not have a permit, State Park management forced him to stop the printing and distribution. After gaining legal assistance from the Berkman Center at Harvard, he returned the following year to distribute free copies. His Internet Bookmobile, which eventually traveled across the country from Boston to San Francisco, had two purposes. The first was to bring attention to the issues surrounding public domain books. The other was to educate librarians and teachers concerning the use of technology to make information available to wider audiences.

Eldred was one of the founders of Creative Commons, an organization that works to bring issues concerning public access and the public domain to the attention of the public as well as to devise and help manage a licensing process whereby individuals who create works can allow limited access to their works as part of the copyright process.

Bibliography

Balganesh, Shyamkrishna. "The Institutionalist Turn In Copyright." University of Chicago Press Journals, The Supreme Court Review, vol. 2021, www.journals.uchicago.edu/doi/abs/10.1086/719042?journalCode=scr. Accessed 6 Mar. 2024.

Biegel, Stuart. Beyond Our Control? Confronting the Limits of Our Legal System in the Age of Cyberspace. Cambridge: MIT, 2001. Print.

Bollier, David. Viral Spiral: How the Commoners Built a Digital Republic of Their Own. New York: New Press, 2008. Print.

Clark, Drew. “A Mickey Mouse Copyright Law?” National Journal 34.41 (2002): 2990. Web. 25 July 2012.

Posner, Richard A. “The Constitutionality of the Copyright Term Extension Act: Economics, Politics, Law, and Judicial Technique in Eldred v. Ashcroft.” Supreme Court Review 2003 (2003): 143–62. Print.

Schwartz, Paul M., and William Michael Treanor. “Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property.” Yale Law Journal 112.8 (2003): 2331–14. Print.