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The Education of Larry Lessig

By Jason Krause

January 2, 2004, 7:06 am CST

When Larry Lessig lost his very first case be­fore the U.S. Supreme Court last January, his immediate reaction was to take it personally.

The day after the decision came down in Eldred v. Ashcroft, 537 U.S. 186 (Jan. 15), Less­ig was despondent, frustrated and unable to sleep.

He noted on his Web site that someone had written, “‘Larry lost Eldred, 7-2.’ Yes, no matter what is said, that is how I will always view this case. … To have failed to get the court to see it is my failing.”

The well-respected Stanford University law professor thought he had gone to the court with an easy argument defending a simple principle. But the argument he was making would have upended American copyright law, some­thing the nation’s top judicial body was clearly not ready to do. During oral arguments, Justice Stephen G. Breyer worried aloud that if Lessig prevailed, “The cha­os that would ensue would be horrendous.” And he was one of the two justices who sided with Lessig.

In Eldred, Lessig challenged the 1998 Sonny Bono Copyright Terms Extension Act, a law that extended terms for existing copyrights from 75 years to 95 years. Lessig’s central ar­gument was that the U.S. Constitution says Congress shall offer copyright restrictions “for limited times.” But how can copyright be for a limited time, Lessig argues, if Congress keeps passing laws that prevent copyright protections from ever running out? Thanks to retroactive extensions like the Bono Act, works stretching back to the Great Depression are still restricted by copyright, even though at that time Congress only offered 28 years of protection.

But Lessig failed to get the court to see what its interest might be in stripping millions of pro­tected works of copyright–putting everything from obscure, out-of-print books to Walt Dis­ney’s Mickey Mouse into the public domain.

“Nothing before this court warrants construc­tion of the [act’s] 20-years term extension as a congressional attempt to evade or override the ‘limited times’ constraint,” wrote Justice Ruth Bader Ginsburg.

Lessig’s opponents argue that even though Congress has prevented copyright from running out for decades, that doesn’t mean that copyright is now perpetual. “Two hundred years is still a limited time,” says Fritz Attaway, the Motion Picture Association of Ameri­ca’s executive vice president for government relations.

Now on to Plan B

Though the Supreme Court rebuke clearly stung him, Lessig is back with a new, three-pronged plan to remake American copyright law. Eldred was one of those rare, one-shot cases that can redefine an issue, but now that it is gone, Lessig hopes to build a political movement around liberalizing copyright law. One prong is an ongoing effort to grow the grassroots organization he helped found in 2001, the Creative Commons. Its members are authors and publishers who willingly relinquish their copyright. He’s also proposing legislation that would counter some of the effects of the copyright extension law. And, after absorbing the lessons of Eldred, he is putting together a new judicial challenge.

From failure, Lessig has learned that you need to provide a compelling reason to overturn a law before the courts, Congress or public opinion will come around to your way of thinking. And to his way of thinking, he can provide that reason and thereby liberate oceans of thoughts in publications kept hidden under current law.

It may be that Lessig, who is one of the closest things to a celebrity law professor, is simply out of step with the legal mainstream. While most lawyers and lawmakers wor­ry that the law can’t keep up with the changes wrought by technology and the Internet, Lessig has spent most of the last decade worrying that the law is hobbling the Inter­­net. Through several influential and popular books, such as 2001’s The Future of Ideas, Lessig pressed the case that regulatory control was threatening to stifle creativity on the World Wide Web.

On book jackets and in publicity photos, Lessig looks like a caricature of a reedy English professor, with tiny glasses that give his face a severe, pinched look. But in person he has the demeanor of a tough-minded law prof, more The Paper Chase than Goodbye, Mr. Chips. Lessig is charismatic enough that he’s almost single-handedly created a movement around defending the Internet from regulations and liberalizing intellectual property laws. First as a law professor at Harvard, now from a position at Stanford in the heart of Silicon Valley, Lessig has gradually become a hero for technology geeks with a libertarian bent. Though he’s something of an idealist, Lessig also seems to have a deep streak of pessimism. In The Future of Ideas, he describes part of the book as the “dark half,” where he considers whether forces stifling creativity on the Net had already won.

And with the role he played, it is understandable that Lessig took the Eldred decision personally. While Eric Eldred was the plaintiff, Lessig was not just the lead attorney but the public face of the cause. Lessig works with grassroots organizations that push for Internet freedom, and he has garnered support from film preservation­ists, librarians and organizations of computer programmers. In addition, law professors like Duke

University’s James Boyle and Harvard’s Jonathan Zittrain have been working with Lessig. But on the Eldred suit, Lessig’s name stood out.

After the decision, an editorial in The New York Times opined that the defeat signaled a new era of perpetual copyrights. “There was a line in there that ‘the grand experiment in the public domain is dead,’ ” Lessig says. “To have something to do with the death of the grand experiment is awful.”

But while he initially took the decision badly, he didn’t wallow in it for long. The day the decision came out he found himself flying into Dulles Inter­national Airport near Washington, D.C., scene of the Eldred defeat and, he says, his “least favorite city.” But rather than brood, Lessig says he threw himself into writing an op-ed piece while still in the back of a taxi to his hotel. In it, he outlined an idea he’d been mulling for new copyright legislation. The New York Times published his piece days later, last Jan. 18.

The legislation he proposed in the Times, called the Eldred Act, would re-establish a piece of copyright law–a renewal clause–that disappeared in 1976. Under the Eldred Act, 50 years after something is created, the creator pays a $1 fee or a work falls into the public domain. That way, if no one is interested in using a work or no one renews it, it becomes public domain material. By doing so, the legislation lets companies like Disney keep their lucrative properties without putting unused works under restrictive copyright protections.

He also started e-mailing supporters, looking for new ways to challenge copyright law. He got in touch with people like Brewster Kahle, one of his biggest supporters during Eldred and a wealthy Silicon Valley entrepreneur turned Internet publisher and archivist. The two quickly began work on a new judicial challenge to replace Eldred.

Thanks to the fight over Napster and file trading on the Net, conflict between copyright law and the Internet is big news. But though Lessig is interested in topics like P2P music file sharing, he says that he will build his new challenge, like his old one, primarily around books and old movies and the way copyright law affects distribution.

A Shrinking Public Domain

The Eldred in Eldred v. Ashcroft is Eric Eldred, a Web publisher in New Hampshire who puts public domain books on the Internet. Eldred and others realized years ago that, thanks to the Internet, out-of-print books were no longer useless relics. All it takes is a computer, a scanner and a Web site to give the old works a new life.

However, congressional extensions were making it increasingly hard to find books without copyright restrictions. “Those of us scanning books have just a fraction of the works out there,” says Eldred. “If we’re cut off again in 2019 when copyright extensions are set to expire, the amount of works available to put online will again be vastly shrunk.” But why should copyright law change for a couple of Internet publishers? Lessig frequently cites a Congress­ional Research Service estimate that only 2 percent of works published between 1923 and 1942 have any commercial value.

Yet use of the 98 percent of works with no commercial value is restricted to protect the 2 percent that make a profit for copyright owners.

The point is not that people should be able to publish whatever they want on the Internet for free, but that millions of works are going to waste when they could be republished on the Web. Most people alive today probably aren’t even aware that there is a public domain, since the newest works there are from before the Great Depres­sion.

That makes it hard for Lessig to demonstrate the value of public domain works. “What’s important to get the court to focus on is that there was a radical change in copyright law between 1976 and 1998,” Lessig says. “Since 1962, [copyright has] been extended to 95 years, which makes it irrelevant to most people. It means we’ve lost a taste for and an understanding of the significance of the public domain. People are oblivious to it.”

The Disney Dilemma

the heart of his challenge in eldred was a belief that the Internet and digital technology make it possible for people to create and distribute new works made out of older ones if only copyright law would permit it. To Lessig, companies like Disney pushed Congress to extend copyright for a few valuable properties, unfairly keep­ing under copy­right protection various properties that no one is using otherwise.

To underscore what he sees as the unfairness of it all, Lessig and his supporters point out that Disney’s most famous works came from the public domain, like the Broth­­ers Grimm fairy tales.

“They’ve made their fortune off public do­main titles like The Hunch­back of Notre Dame,” says publisher Tim O’Reilly, founder of Se­bastopol, Calif.-based O’Reilly & As­so­ciates. “I can’t believe they’re so shortsighted as to say ‘we got ours’ and then do everything to kill off the public domain.”

Lessig’s challenge is to convince people that there is value to letting works fall into the public domain. “If the public domain was still only 30 years old today, that would mean all TV from the 1960s would be in the public domain and you could do whatever you want with it,” he says. “Given the digital technology out there, you’d have an explosion of creativity. We’d begin to see a vibrant public domain.”

But some copyright holders, especially big players in the entertainment industry, argue that extending its terms offers an extremely obvious benefit that outweighs any theoretical advantages from a larger public domain. They say copyright offers more incentive for companies to finance creation of new works.

“Where I depart from Lessig is that I believe the continuing revenue stream from the exploitation of works is an incentive to create more,” says Attaway, the motion picture association executive who is also its Washington, D.C., general counsel. “Disney makes money from an old release, which lets it create new films, generating more revenue, which finances even more films.”

It is a debate being argued on two completely different economic planes but over a single law that applies to both.

While waiting for the legislation to get traction in Congress, Lessig is plowing ahead with Kahle on a judicial challenge. He says the mistake he made in Eldred v. Ashcroft was that he focused on the semantic and constitutional arguments but failed to demonstrate that there was any harm involved.

“In the course of preparing for the case, I made a very conscious decision that I now regret,” he says. “Rather than stand before the Supreme Court and hammer them with the inequities of this extraordinary extension, my aim was to show that the government articulated a principle with no limit.”

The new challenge will be an applied challenge. That is, Lessig will argue that the law may not be unconstitutional, but its effect is.

In Eldred, Lessig asked the court whether copyright extensions were consistent with the “limited times” provision of the copyright clause. In the new case, Lessig and Kahle will argue that copyright terms have simply gotten so long as to be unduly burdensome on publishers of public domain works. In addition, they will argue that because the current copyright laws have no renewal provisions, the law unfairly locks up all works whether or not the copyright holders want that.

However, Lessig’s opponents say they’ve heard it all before. “In Eldred, they didn’t just focus on the limited times argument; they threw in everything and the kitch­en sink,” Attaway says. “I don’t really understand what’s new here. These arguments were rejected once already.”

The plaintiffs in the new challenge will be Kahle and Rick Prelinger, a San Francisco film preservationist who distributes films online. Web publishers like Kahle and Prelinger see this as their chance to finally open up the Internet to its full possibility as a publishing medium. “Kids today use the Internet like a library, which is wonderful and terrifying,” Kahle says. “It’s terrifying because the Net doesn’t have the best” of what there is to offer. “Kids are brought up on something less than ideal because a stupid law leaves thousands of books moldering when they could easily be published online.”

But to convince Congress and the courts that there is a need for change, Lessig needs a real movement. And if there is to be a movement, it begins with publishers like O’Reilly.

O’Reilly runs a publishing house about an hour north of San Francisco. It releases about 120 technical computer books a year. In April, O’Reilly announced his com­pany was adopting one of Lessig’s copyright schemes, called the “founders’ copyright.” Authors who sign on to this condition agree that their books will forfeit all copyright protection after 14 years, though they then have the option to renew for another 14 years–the same protection offered in the original 1790 U.S. copyright law. So far, the authors of 94 books (64 current titles, 30 out of print) have signed off on the founders’ copyright.

Critics are quick to point out that O’Reilly’s highly tech­nical, specialized books about computer programming are pretty much obsolete and useless after a year or two, so authors have little incentive to hang on to their copyright anyway. But O’Reilly says there is a point in that.

“The secret in publishing is that only a small number of works ever make money; a great majority are valueless,” he says. “But I’m an author, and if there’re a few people out there who might want to read my book, it’s more important to me that they can than it is that I make money.”

Lessig thinks that Creative Commons and founders’ copyright will help him demonstrate what the public domain can be like if he gets a new hearing in court or in Congress. If the Eldred legislation or the Kahle suit is to win any support, he must demonstrate that losing copyright protections is not a disaster, a point driven home by Justice Breyer’s comment that Eldred would cause chaos.

Breyer was worried that if the court struck down the Bono Act, it would mean the 1976 Copyright Act would be unconstitutional, too–something that would eliminate almost every copyright since 1976. Lessig says the court could have avoided knocking over the 1976 act, and even if that act fell, it would not be such a terrible thing.

“Breyer caused a panic when he blared about ‘chaos’–there was a moment of real shock in the room,” Lessig says. “It sounds like blood and destruction. But striking down the ’76 act wouldn’t cause chaos. The consequence of striking down the ’76 act is increased com­petition.”

Lessig notes that publishing houses such as Dover Press stay in business while publishing mainly public domain books. “They continue to sell and compete while publishing copies of the exact same book as other publishers,” he says. “You just have to offer a better product than your competitors.”

Lessig is so convinced that he is right, it seems to him a moral failing that more intellectual property lawyers are not with him. He complains that the American Bar Asso­ciation’s Intellectual Property Law Section tends to side with corporate interests in copyright disputes. “There’s no voice from the oth­er side,” he says. “The problem with the ABA is that it’s perceived to be the voice of corporate America–at least the intellectual property section has been captured.”

Though the ABA Intellectual Property Law Section prepared, but never filed, an amicus brief in support of the government position in Eldred, Lessig’s contention is questionable. In fact, the ABA Business Law Section recently gave Lessig its cyberspace law award.

“The ABA is a very complex organization that represents people across the spectrum,” says Morton Goldberg, who practices in New York City and is past chair of the Intellectual Property Law Section. Goldberg was involved in preparing the proposed ABA brief. “Within the Intellectual Property Law Section, we represent not just the copyright owners but copyright users, too.”

Changing Minds

There are signs Lessig’s campaign is starting to take hold. In August, Greg Dyke, the British Broadcasting Corp. director-general, announced the BBC plans to put its enormous TV and radio archives online and allow anyone to download them free for noncommercial use.

And Creative Commons has created an alternative license agreement that allows people to use licensed works with only a few conditions.

Though it’s gaining ground, the copyright movement has yet to get Congress’ attention. Lessig hopes his bill might be introduced during the next session. And he now says losing Eldred v. Ashcroft may have been the best thing to happen to his cause. Though it would have been nice to win, he says the defeat could help jump-start the political movement around copyright reform.

“By losing the case, you create a political need for political response and achieve more than if you win the case,” he says. “Some feminists have said that because they won Roe v. Wade in the Supreme Court, it relaxed the need for a feminist political movement.” Meanwhile, Lessig plans to keep hammering away at what he sees as a gross iniquity. Going back to one of his favorite statistics about unused copyright materials, he says, “I’m not going to stop until that 98 percent is liberated.”

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Jason Krause is a legal affairs writer for the ABA Journal.