On February 24, 2003, Jack Valenti was the guest speaker for the annual Kip and Meredith Frey Lecture on Intellectual Property. In his half-hour talk, Mr Valenti spoke at great length on the need to frame the current intellectual property debate -- most notably in the fight against digital copyright infringement -- in moral terms. As Mr Valenti said repeatedly, the unauthorized downloading of copyrighted material is not only against the law, but is morally wrong. He stressed the need for an increased sense of morality on this nation's campuses, and for the nation's youth to realize that "being easy to get away with" is not a valid rationale for copyright infringement.

This response will not dispute any of his statements. I will not attempt to defend digital copyright infringement, nor will I argue that the entertainment industry somehow brought these copyright infringement problems upon itself through high prices, its attitude towards its customers, or any similar but oft-repeated rationale. Those arguments are not mine.

This response will, however, attempt to analyze another aspect of the Motion Picture Association of America's (MPAA) behavior within the context of this moral imperative. Mr Valenti himself said that just because you can get away with an act does not make that act morally valid. He cited the recent spate of corporate scandals, including Enron, Adelphia, WorldCom, and others, and admonished the CEOs of these companies for betraying the trust their employees and shareholders placed in them.

I would like to further his argument by saying that just because an act is legal, that does not necessarily make it morally right. In particular, I refer to a single aspect of the Sonny Bono Copyright Term Extension Act (CTEA) of 1998: the retroactive extension of existing copyrights. The Supreme Court upheld the constitutionality of this legislation in Eldred v. Ashcroft (2002), in a 7-2 vote, so it is not my place to comment on the legality of this legislation; that issue is well decided. However I would like to examine the morality of this legislation.

In the United States, the concept of copyright is established in the Constitution, Article I, Section 8, clause 8.

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.

Thus, in this country, copyright can be looked on as a contract between the citizens of this country and the artists -- or authors -- on the matter of creative works. The citizens agree to provide authors with a limited monopoly and the opportunity (as opposed to right) to be compensated for their creative works. This monopoly, in the form of copyright, is for the "limited times" as established by Congress. In return the authors agree that after that limited time expires, all people will have access to their work freely and may base new creations on this work; such work is said to be in the public domain. For example, the majority of Disney movies make good use of such works, re-inventing public domain stories as animated features.

The contract between an author and the public can be said to be "signed" when the author creates his writing by fixing it in some tangible medium: film, paper, CD, canvas, or in digital format. The duration of this contract is established by Congress, acting as the mediator between these two groups.

In 1998, Congress passed the CTEA, which included a provision that retroactively changed the duration of copyright on existing works. In effect, Congress modified the terms of the agreement in favor of the authors on works for which the contract had already been "signed." In some cases, artistic creations protected by copyright law were mere months from entering the public domain and becoming freely available for use by the general public. Yet these works will not become the property of the public until at least 2018; that is, unless Congress provides authors with another retroactive extension.

Were Congress' actions legal? Eric Eldred, a publisher dedicated to the idea that public domain literature should be available to people all over the world in digital form, sued the United States to overturn the CTEA. In 2002 the case went before the United States Supreme Court, and in a 7-2 ruling the Court held that Congress had acted within its power; the Court declared that it was legal for Congress to retroactively change the terms of this agreement for the great benefit of past authors, at the loss of current and future authors, and the public in general.

But were Congress' actions moral? As I asserted earlier, just because something is legal does not necessarily make it moral. I would find this case to be one in which that were true. Even in its opinion siding against Eldred, the majority opinion hinted that Congress had made a legal, but morally questionable decision.

"We are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be."

Regardless of the merits of a longer copyright term for future works, or future contracts in this context, Congress was morally lacking when it retroactively extended copyright terms on existing works. The CTEA, passed with the full support and blessing of Mr Valenti's organization, effectively went back on a decades-old agreement and changed the terms of a contract for their benefit, and the loss of the public at large.

I challenge Mr Valenti to justify the moral validity of the retroactive modification of this agreement.

-jdm