Patent absurdity: how extended copyrights choke the economy

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity By Lawrence Lessig Penguin, $24.95

It's not often that a tenured professor at one of America's top law schools is willing to confess error. In the (copyrighted) words of rapper Eminem, Lawrence Lessig had one shot, one opportunity, one moment--and, Lessig admits, he let it slip. That moment came on Oct. 9, 2002, when he appeared before the United States Supreme Court to ask that it overturn the Sonny Bono Copyright Extension Act, a federal law that had been passed four years earlier. The result of a blitzkrieg of lobbying from movie moguls, record producers and a parade of Hollywood glitterati, the act stretched copyright protection from 50 years beyond the lifetime of the author or creator to 70 years, on the principle--according to its advocates--that intellectual property should be treated no differently than real estate or the family car. If it's yours, it's yours forever. And when you die, it goes to your heirs. If they can make a buck off your hard work, well, good for them. What's wrong with that?

For Eric Eldred, plenty. In 1995, Eldred, a New Hampshire native, had tried to engage his daughter's interest in literature by exploiting the Internet. He digitized such classic books as Nathaniel Hawthorne's The Scarlet Letter, making them text-searchable, and then went a step further, embedding the hypertext with links to maps, pictures, references, and other elements that could bring 17th-century New England to life for 21st-century readers. None of this was illegal as long as he stuck to Hawthorne, whose work had lost its copyright protection nearly a century ago. But when Eldred decided to add some of the work of New England's most famous poet to his collection, he ran into the Estate of Robert Frost--and the Sonny Bono Act. Under the law, nothing written since 1923 could be added to Eldred's Web site unless he could track down the copyright holders and secure their permission. This didn't sit well with Mr. Eldred, and like so many unhappy Americans before him, he got himself a lawyer--Lessig, a leading authority on the intersection between the Internet and intellectual property and a professor of law at Stanford University.

When Eldred v. Ashcroft eventually appeared on the Supreme Court's docket, Lessig had good reason to think this would be a winner. Not only did he understand the nascent field of cyber law as well as any lawyer around, but he also thought he understood what arguments would appeal to the court's conservative majority. Though this would be Lessig's first appearance before the court, he had spent time as a clerk to Justice Antonin Scalia. Before that, he had clerked for Circuit Court Judge Richard Posner, the bench's leading advocate of laissez-faire economics; later, he had taught at the University of Chicago. Lessig was convinced that he could win this case by making a very conservative argument to a very conservative court. He would focus on the Constitution itself, and on broad principles about the allocation and limits of power. Others urged him not to rely solely on the court's well-documented instinct to slap the congressional hand away from the cookie-jar of power; they argued that the court would only intervene if Lessig could convince the justices that this latest extension of copyright would do real damage to the United States and its economy.

But as he readily admits in his new book, Free Culture: How Big Media Uses Technology and the Law, to Lock Down Culture and Control Creativity, Lessig saw this as a rather pandering strategy. When Justice Anthony Kennedy explicitly noted that he didn't "see any empirical evidence" that extending copyright had "impeded progress," Lessig insisted on steering Kennedy away from the economics, inviting him back to the higher ground of constitutional theory. "Justice," Lessig said, "we are not making an empirical claim at all." Instead, he insisted, Eldred's claim was a nearly-pure question of interpretation involving the Constitution's copyright and patent clause and the court's duty to police the boundaries of congressional action. As it turns out, Lessig writes, that was "a correct answer, but it wasn't the right answer." The right answer, he now realizes, was that this sort of abusive copyright extension would produce "an obvious and profound harm."

Permission granted

Free Culture is Lessig's attempt to correct his error. Dedicated to Eldred, the client whose case Lessig eventually lost in a 7-2 decision, it is the product of a fertile mind dealing with a complex mix of politics, technology, law, culture, and economics. It features evil lawyers, powerful lobbyists, Hollywood's A-list of stars and producers, and a bevy of creative innovators whose innovations have been stymied by the threat--and reality--of monster lawsuits.

Before getting to the climactic tale of Eldred v. Ashcroft and his 30 minutes of oral argument before the Supreme Court, however, Lessig builds a case for the virtues of creative destruction in the service of progress. Once upon a time, he notes, if you owned a plot of land, your rights extended down to the core of the Earth beneath your lot and up to the heavens. When the airplane came along, however, it became obvious that those rights would have to be curtailed. When a pair of North Carolina farmers challenged the government's right to "take" the property between their land and the heavens in 1946 for the use of aircraft, the Supreme Court declared that such an "ancient doctrine" simply "has no place in the modern world." (Imagine if United Airlines had to negotiate fly-over rights with every home-owner between San Francisco and Washington, D.C.) The court sided with Congress, and the future--as they very nearly always have in American history.