Patent absurdity: how extended copyrights choke the economy

Washington Monthly, July-August, 2004 by Gordon Silverstein

In America, culture and economics have long been tightly tied together, a connection made all the more compelling when we consider the sorts of opportunities--cultural and economic--that are made possible by a marriage of old content with the digital technology of the Internet Age. Among the other parties filing a brief on behalf of Eldred was the Intel Corporation, hardly an enemy of capitalism or of the sanctity of intellectual property. Intel's lawyers argued that "a healthy and vibrant public domain" is critical to "speed the rate of technological innovation and network build-out." Limiting the public domain would limit the range and depth of content available. And without that content, the Intel brief said, the Internet will never reach its full potential. If the public domain shrinks, Intel insisted, "the need and demand for a full range of new technologies and innovation will also decline. One cannot exist without the other."

Last rights

Lessig's book is not a plea for plagiarism, piracy, or stealing. It's really a very simple and modest call to just calm down. Before we unleash the full fury of the American legal system against technologies we don't yet understand, he argues, let's see where this thing is headed, what it can (and can't) do, and then balance the costs against the benefits. Unfortunately, Lessig's lawsuit didn't help. Arguably, his biggest error wasn't failing to make a case for economic harm before the Supreme Court--it was in taking this case to court in the first place. Eldred was the first time the Court really considered the meaning of the word "limited" in the copyright and patent clause, which delegates to Congress the power to protect intellectual property. "for limited times." Now they have effectively handed Congress a certificate of constitutionality signed by the Court. And their decision may have the perverse effect of permitting Congress to extend copyright almost indefinitely. After all, if it is okay to protect a copyright for the lifetime of an author plus 70 years, it's not that big a leap to extend it to the term Valenti has long advocated: "Forever, minus one day." And if that logic works for copyrights, why not for patents? Before Eldred, this was an open and untested question. Now it's been tested, and the "copyright industry" has won. You may be sure the "patent industry" won't be far behind. Lessig has inadvertently blazed the trail to a goal he virtuously fought against.

The place to engage this battle was--and is--on Capitol Hill, where the armies of the "copyright industry" won an easy battle with little organized public opposition. It's true that the Supreme Court can and sometimes does ride to the rescue, but if they don't, you may be worse off then you were before. In politics, a loss today has no bearing on your ability to right again tomorrow--in law, it does, even if only at the margins.

It won't be an easy fight, of course. Hollywood has huge advantages in any political struggle: deep pockets and direct access to America's eyes and ears, not to mention that these folks sure know how to sell a message. But these obstacles are not as insurmountable as they might seem. Americans believe in the future. And if the full implication of the Constitution's copyright and patent clause were made plain and clear it could well be one of the few issues that might appeal to both conservatives (who are unsympathetic to pleas for government protectionism) and liberals (who are unsympathetic to the pleas of Big Business and Big Media) alike. We've already had a taste of what an informed public can do, even against long odds and fat wallets. When the Federal Communications Commission in June 2003 issued an ill-considered decision that would have allowed Big Media to become even bigger, it was shocked into retreat by a massive public outcry that seemed to emerge from nowhere. Lessig's book is not an easy read. But it has terrific raw materials for a creative, innovative, entrepreneurial politician in search of a "vision thing" that might actually resonate among Democrats and Republicans alike. Any takers?