Patent absurdity: how extended copyrights choke the economy

Washington Monthly, July-August, 2004 by Gordon Silverstein

Until now. As Lessig recounts, the dinosaurs of today's entertainment industry have had enormous success in suffocating the creative force of the Internet in its crib. Ever since Al Gore cast his eyes on the first Web browser--Mosaic, upon which was built Netscape, which was gutted by Microsoft to provide the foundation for Internet Explorer--the Web has offered the possibility of releasing the inner artist in all of us. The Web democratized our culture, enabling just about anyone with a high-speed connection to sample here and rift there, merrily ripping and burning and transforming their way through thousands of years of ideas, inspirations and innovations. This process liberated extraordinary creativity, expanding our stores of cultural knowledge, enriching the human experience, and paving the way for all sorts of new jobs, industries, and opportunities.

But every fairy tale has its evil-doer. And for those who make money buying and selling information--Jack Valenti, the retiring head of the Motion Picture Association of America, calls it "the copyright industry"--this infant technology looked like the apocalypse. And instead of joining in, or getting ahead of the pack, they opted to fight the intellectual-property equivalent of preemptive war, dispatching an army of lobbyists and lawyers to all fronts. Sonny Bono's copyright extension legislation severely restricted the scope and depth of the public domain; other laws imposed draconian punishments on seemingly minor infractions. Steal a CD from a shop in California, Lessig observes, and you may get hit with a $1,000 fine. Download a CD's worth of songs from the Web, and you may be writing a check for $1.5 million. Create a terrific new search engine that can be abused to pirate music files, and, Lessig reports, you could be sued for more than $15 million in damages--which is what happened to 19-year-old Jesse Jordan two years ago. As a freshman at New York's Rensselaer Polytechnic Institute, Jordan came up with a new twist for an intranet that linked his school's students, faculty, and research facilities. But the same tweak also made it possible to "share" the latest Limp Bizkit tune, and instead of trying to balance the costs (lost revenue to the Bizkits) against the benefits (a better internal search engine) the copyright industry hit Jordan with a tsunami of litigation. The eventual settlement required him to hand over every penny he had ever owned and saved, all $12,000 of it. You can be sure Jordan will think twice before he innovates again.

John Lennon's economy

Lessig is a lively writer. He knows how to tell a story, and he has good stories to tell, full of heroes and villains, the winners and losers of America's relentless march into the future. Yet he commits in book form the same error he made before the court two years ago. Though he does offer arguments about how and why copyright extension is a form of economic protectionism, they are scattered through the book, buried beneath a broad philosophic argument about the joys of a free and open culture, and sometimes obscured by Lessig's rather detailed exploration of the interrelationship of technology, law, and culture.