Does Congress have the right under the Constitution to extend copyright protection for ever-longer periods of time? Should the law treat intellectual and physical property differently? What are the key economic aspects of digital property? How much, if any, control should we put over the Internet? How does the evolution of creative culture build on past creation?
These are just some of the questions that Lawrence Lessig of Stanford Law School has been thinking and writing about. He is the author of Code and Other Laws of Cyberspace: How Will the Architecture of Cyberspace Change the Constitution? and The Future of Ideas: The Fate of the Commons in a Connected World. He recently argued before the Supreme Court in Eldred v. Ashcroft that Congress's extension of copyright protection is unconstitutional.
I recently sat down with Lessig to discuss some of the economics of intellectual property.
"So long as each copyright extension is itself a limited term, then you still have a limited term.... It's the sort of thing your child says when you say, take one cookie and the child takes five. The child says, I did take one. Five times."
Roberts: Let's talk about the Eldred case that ended up in the Supreme Court challenging the Sonny Bono Act. Give us a little background on the Sonny Bono Act and the goal of the case.
Lessig: The Constitutional background is that the Constitution requires that copyrights be granted for the purpose of promoting progress, the progress of science, and they be granted for only limited terms. But our Congress has gotten into the practice of extending the terms of copyright that they've already granted. So in the last forty years, they've extended the terms of existing copyrights eleven times. In 1998, Congress extended the term again, this time, the longest they've ever extended existing terms, 20 years. So for the next 20 years after that passage, no work would pass into the public domain from copyright expiration at all.
To keep that in context, in the same 20 years, one million patents would pass into the public domain. So we brought a challenge after the Bono act was passed claiming that this practice showed that Congress was no longer respecting the requirement that the terms be limited, but in effect, copyright had become perpetual, on the "installment plan" as Peter Jazsi put it.
Our claim was that the court should step in to attempt cut back on this practice to guarantee that the constitutional vision of work once created and earning its copyrighted return should pass into the public domain for others to build upon.
Roberts: Seems kind of open and shut. The Constitution says copyright should be for a limited duration. The Congress seems to make it perpetual. What issue came into play in the 7-2 decision upholding the extension?
Lessig: There's an argument that what Congress is doing is respecting the Constitution. And then there's the historical practice which led the Court to do what it did. The argument is, Well, as long as each extension is itself a limited term, then you still have a limited term. That's an argument which ordinary people laugh at. It's the sort of thing your child says when you say, take one cookie and the child takes five. The child says, I did take one. Five times. But it's a technical way of saying Congress is complying with the Constitution. And what the Supreme Court said was that because Congress had done this in the past, that had established a practice of deference to Congress's decisions in the past.
Roberts: Let's go back to the details. Any copyrighted material before 1923 is in the public domain. Anything after that is protected. Correct?
LL: It's a little bit more complicated. We used to have a very sensible system. It required that you both register and renew your copyright in order to gain copyright protection. So work after 1923 had to have been renewed in order to continue the copyright protection. But in the 1990s, Congress passed a statute that basically said you didn't even have to renew any existing copyrights. So there's a period of time where copyrighted works were subject to falling into the public domain if they were not renewed and a bunch of that work did fall into the public domain. But from now on it's automatic and will continue to be.
Another part of this problem which we emphasized but the Court didn't take account of, was that it's so hard to know what material is available and what material is not available. There are no good records of who copyright owners are (because renewal isn't required anymore) and not even a requirement of registration. You can't even know who's claiming a copyright over what. So there's this mass of unsorted material out there that could or could not be available for public use creating vast uncertainty. As we said, just at the time that technology is enabling all sorts of new creativity, to build on this material and do stuff with it, the law is getting in the way and locking it up. Supposedly for just another 20 years, but I'd bet a lot that—
Roberts: Just by chance it might be extended again?
Roberts: Any thoughts on a voluntary system that might be a clearinghouse for the issue of information as to who holds the copyright and resolve the uncertainty issue?
Lessig: One of the projects I'm putting most of my time into now is called "Creative Commons." Creative Commons has a number of projects that are trying to solve this and related problems. Trying to move more material voluntarily into a place where people can build on it. We're about to announce a project called the Public Domain Project which will attempt to figure out which stuff is properly registered and what is not. So there are voluntary efforts to do this but it's an extraordinary amount of effort to do what we argued the Constitution already said had to happen.
Roberts: Let's turn to the economics and incentives of copyright. What's the economic case for limiting copyright privilege? Some people would argue that extending copyright protection gives people the incentives through higher profits to create more intellectual property, music, art and so on. Why should it be limited?
Lessig: You have to distinguish between extending the term of existing copyrights and extending copyrights into the future. If you're talking about extending copyrights into the future, then the question is what's the marginal incentive that the next twenty years creates. Given the length of copyrights right now, the answer is: almost nothing.
Lessig: Because the copyright term right now for corporate works, before the Bono Act, was 75 years. It's now 95 years. If you ask, what's the discounted present value of that additional 20 years, it's almost nothing.
Roberts: You're talking about a new work, created today.
Lessig: Right. Prospectively. We did a calculation. Copyright term right now gives the copyright owner 99.8% of the value of a perpetual term. Nobody can in good faith argue that any new incentives are being created by this new extension going forward. With respect to existing works, by definition it's not creating any incentives to produce because you're just granting a windfall to works that have already been produced. No matter what we do, Gershwin will not produce anything else. That extension is nothing more than what economists would call "rent-seeking," using property as a cover. I'm working on a piece right now on this. It's an interesting twist on public choice theory. We're now in an era where rent-seekers typically turn to property as their technique of choice. Property sounds so harmless and good. The natural conception is that it's always incentive-producing. But property can be just as much a rent-seeking device as monopoly. And that's increasingly what happens.
Roberts: What's the difference between copyrights and patents? Why doesn't the political process respond to that rent-seeking opportunity there as well in the case of patents?
Lessig: There are a couple of differences. The patent term, at least, has been more rational over the last 200 years. Copyrights and patents began at the same length. Patents got fourteen years, copyrights could be renewed after fourteen years. But patents have stayed around there. It's now just twenty years from the time of filing the patent. I think that the real reason is that the people who get the benefit from patents are also the people who pay the price of longer terms. Most invention in this context is invention that builds on other works so if you increase the term you might get a benefit but you're also paying the cost because of the additional terms that you get. There has been a tendency in Congress to try and extend term-drug patents is the best example. But because the political interests are so strong on the other side, there's been a nice political movement against the extension of patents in the context of drugs. So it happened for a while but now there's a fairly strong political movement that would resist any effort by drug companies to extend the terms of existing patents. So the political process hasn't failed in as significant way as in the case of copyright.
Roberts: You argue in The Future of Ideas that copyright holders are often shortsighted or highly risk-averse. They overestimate the costs of losing their protection. The creators of content are very apprehensive, perhaps rationally, of losing their copyright or intellectual property right. But when information is free, will the benefits ultimately redound to the creators?
Lessig: I would distinguish between three groups. One is creators. One is holders of copyrights who need not be the creators. One is a subgroup of sorts—the families and relatives of the creators. With respect to creators, I'm a strong believer in the copyright system for creativity. Creators get a copyright. They get to control it, for a limited time and it should be more narrowly limited than it is right now. But still, I think they deserve that type of protection. They, once they've created the work, aren't in the position of continually exerting control over how the work is used or who gets to use it. It's really the publishers, which is the second group, and the family, which is the third group.
The publishers, such as the recording industry or the movie industry, aren't so much defending the rights of creators, they're defending a certain business model. They have a certain vision about how they're going to make money. The music industry, for example, is going to make money by selling copies of pieces of plastic. They're going to control distribution as much as they can. They're going to earn rents by controlling the distribution. They have a concentrated market-that's their ticket, their cash cow for earning their returns. The Internet comes along and threatens that way of doing business. So they launch a holy war, Jack Valenti calls it a terrorist war, against these new technologies. Not so much because he's keen to protect creators, because creators have all sold their rights to these people. They don't have any more they're going to get from it. It's more because they're trying to protect a business model. That is completely illegitimate-to use the law to protect a business model as opposed to protect the return from a particular kind of creative work. It seems to me inconsistent with what has been our tradition in the context of technology changing the way we distribute content.
The third group, the relatives, have a much more invidious type of interest. A lot of them just want to make money. That's fine.
Roberts: A pretty common urge.
Lessig: Yes. But a bunch of them really have a strong desire to control how that work is used. So you can't produce Porgy and Bess without an African-American cast. You can produce Shakespeare however you want to produce Shakespeare. You can produce Shakespeare with Peter Pan characters. You can do anything you want with Shakespeare because it's in the public domain and that produces an extraordinary incentive for people to be innovative with how they're going to produce it. They're going to create new versions and it's going to be constantly alive the way Shakespeare companies around the world constantly keep Shakespeare alive. But Porgy and Bess is going to stay the way Porgy and Bess was.
Lessig: Because they continually control the copyright.
Roberts: The Gershwin estate?
Lessig: Yes. And they get to say how the copyright gets to be used and they say it only gets to be used in these ways. Again, I don't have a problem with that control for a limited time. But when it's over a century after the work is created? At some point the work should become free for culture to build on it. The most dramatic example of this is Margaret Mitchell's Gone With the Wind and the recent book, The Wind Done Gone by Alice Randall. They basically had to litigate through two courts to have the right to publish that book, essentially a critical commentary on Gone With the Wind. People say, eventually the courts got it right, but what they forget is that on the way to getting it right you had to spend tons of money on lawyers. But publishers don't have money to spend on lawyers. And that produces a publishing industry that's extraordinarily conservative. Never willing to take any risk. Because just having to answer a complaint is enough to destroy any profit that existed.
Roberts: Going back to Porgy and Bess, if Gershwin were composing today, in today's intellectual property regime, surely he could bequeath the rights to Porgy and Bess to his estate with the proviso that they allow it to be liberated. Or he could freeze it the way it's been frozen. Shouldn't he have the right to keep it static or liberate it as he sees fit?
Lessig: Not for this length of time, no. Copyright shouldn't be anywhere close to what it is right now. In my book I proposed a system where you'd have to renew after every five years and you get a maximum term of 75 years. I thought that was pretty radical at the time. The Economist, after the Eldred decision, came out with a proposal—let's go back to 14 years, renewable to 28 years. Nobody needs more than 14 years to earn the return back from whatever they produced.
Roberts: The alternative view is that it's their property. Maybe not exactly the same as physical property, but isn't the creator entitled to control his or her creation?
Lessig: I think all property is the same. All property should be protected and limited in the public interest. All property is. You own a house, you can't say, no you can't put a sidewalk in front of my house—that's an easement that's forced on you by the law. You own a house—there are a million things you can't do with your house. And how many bits of property sitting around your house are 150 years old? There's a formal sense in which you're allowed to own your property forever, but what property do we have that's survives more than ten years? Real property naturally limits itself through its own destruction and limitations so that it's not really a terribly destructive burden to say that real property goes on forever subject to lots of different restraints.
Copyright has always been understood as a way to create enough incentive for someone to create something and then to allow that creation to pass into the public domain. The copyright question is how long do you have the right to control whether people can build upon the ideas you've released into the culture. You take a bunch of ideas and you bend culture in a certain way. Margaret Mitchell's work bent American culture in a certain way. I grew up with a Southern mother who had a vision of the South as informed by Margaret Mitchell's work. If you're going to bend culture in a certain way, culture has the right to bend back. The idea that the reaction is going to be 100 years after you've produced your work is crazy.
Roberts: Mickey Mouse's first cartoon, "Steamboat Willie" built upon the Buster Keaton movie, Steamboat Bill, Jr. and if today's world of copyright had existed then, maybe Buster Keaton would have been able to stop the creation of Mickey Mouse. That's the road to stagnation. But where do you draw the line for physical property? Is eminent domain's power unlimited? We can't force you to put up blue drapes inside your house in the name of the public interest. And even in the case of eminent domain, political forces often determine the definition of public interest.
Lessig: In both types of property, our legal tradition has said we should define and enforce property rights that benefit the public good. The difference between copyright and real property was reflected in the Constitution itself, which says that if the State takes your house through eminent domain, it must pay you compensation. The Takings Clause says if you take for public purpose, you must give compensation. And the Constitution says that if Congress gives you a copyright, it must take it back after a limited time without any compensation at all. There's no "compensation clause" for the copyright law. I agree that they're both in some sense property, but the law and our tradition has understood a wide range of property. The legal limitations on this wide range of property are very different. But the one thing that's clear is that there's a night and day difference between the limitations built into the property protection under copyright vs. real property. Copyrights are supposed to be taken back after a limited time with no compensation at all, whereas real property is supposed to be forever.
Roberts: Let's talk about the Digital Millennium Copyright Act, the DMCA. What is its significance and why are some people so mad about it?
Lessig: When cyberspace was born, everyone said it would be the end of copyright. And that's because the architecture of cyberspace made it possible to perfectly copy digital copy and distribute it for almost nothing. That made it hard for businesses to depend on controlling copies to survive in that world. Many of us said that's just a temporary phase that cyberspace will go through. There's a lot of incentive for people to go out there now and to build lots of technologies to re-impose control over digital objects. And as we've seen in the last ten years, that's exactly what has happened. There has been an explosion of technologies for controlling copyrighted material. These are copyright protection systems.
But whenever you have a copyright protection system, there's an incentive to circumvent the system. So if you lock up your material, people have an incentive to break the locks and get access to that material. What the Digital Millennium Copyright Act makes it a crime to develop or use technologies that are designed to circumvent copyrighted material. Now that sounds fine. That sounds like making it a crime to develop lock-picking devices or to pick a lock and break into people's houses. The problem is that copyright protection systems can protect the copyrighted material more strongly than the law does. So for example, the law guarantees fair use. As the Court said in the Eldred case, this is a constitutional requirement of the First Amendment, that you have fair use. But if you lock your copyrighted material using a digital wrapper, there's no guarantee that anyone will be able to exercise fair use with respect to that copyrighted material.
Roberts: But wouldn't creators of content have an incentive to insure that fair use and other uses were still possible and therefore limit how technology interferes with sharing created material?
Lessig: We haven't seen that. The technology has gone in the opposite direction. And that's because fair use isn't a rational thing for individuals to choose, it's a rational thing for the system as a whole. I as an individual author would like to say you can't quote my work unless you promise to say something nice about it. Or you can't quote my work in a negative review. So individuals always have an incentive to avoid fair use—
Roberts: Some fair use.
Lessig: Yes, but the point is that the law guarantees fair use and the technology takes it away. The Digital Millennium Copyright Act comes in and says if you circumvent the technology, you've violated the law. And the strong complaint against that statute is that even if you violate the technology for a purpose that would have been completely legal under copyright law, you've violated the law. So for example, if you wanted to get access to a copyrighted work to enable it to be read aloud to a blind person, that's fair use. If you circumvent to enable that, that itself should be a completely protected circumvention. But tools to circumvent for that purpose are banned by the Digital Millennium Copyright Act.
It's not even clear you needed the law to back up the technology because the technology is very good. But if you needed the law to back up the technology, the law should only have backed up the technology as broadly as copyright law extends, not broader. But instead it has expanded the scope of copyright protection beyond anything that was originally intended by the Copyright Act.
Roberts: You've written eloquently about threats to the creativity of distribution of material over the Internet that come from what we've been calling "publishers," people who control content ex post. In The Future of Ideas you talk about emergent order, the spontaneous order that is the Internet and the creativity that order engendered. That book was really an alarm bell to wake people up and say there's a lot of creativity that emerges from this uncontrolled Internet, but the people with an economic stake in the old order are going to try and guide that system in various ways. Are you still as pessimistic as you were when you wrote that book a few years ago?
Lessig: I've written two very pessimistic books and after each book, someone has said to me, your book's too pessimistic. And in both cases those people have come back to me later on and said they weren't pessimistic enough. There are no good signs right now in the context of the issues we're talking about. Things are actually much worse than I imagined they would be. I expected the Supreme Court to step in with the Eldred case and set a tone that would help us achieve some sort of balance. But the Supreme Court has absolved itself of any responsibility. So it's now just a political battle where all the money in the world is aligned on one side of these issues. The stakes are clearly strongly tilted against the positions that we've taken.
Roberts: And by "we," you mean?
Lessig: People who want to preserve a platform for innovation and growth. That should include the technology industries and more and more they're getting it. Intel for example, has been very good at understanding the threat to its business if the systems to control things are expanded and developed. So there has been some recognition on that side. But look at Hollywood. An extraordinary lobbying campaign has been waged in Washington for forty years to get them to see Hollywood's view of what content protection should be. And Hollywood's view does not maximize the incentive for innovation and creativity. It's a view that maximizes the power of existing industries of creativity. History has taught us that when we have this conflict, we should let the underdogs compete and not use the law to crush the underdogs.
Roberts: But isn't there evidence for a more cheerful and optimistic outlook? I understand your concerns and yet content today is still profuse—an extraordinary array of creative material is being created across every form of human creativity—movies, books, art, music, technology, medicine and so on. You could argue that it could be even more extraordinary or that future creativity will wither. But the world around us looks pretty good. And even if it does wither, isn't there always the possibility of an "end run" where the market responds to these alleged straitjackets and offers alternative forms of distribution?
Lessig: There's been this bizarre inverted set of trends. You're right. On the one hand, as technology makes it easier for people to be creators, there's been an explosion of types of creativity. But my question and focus has been, to what extent is creativity allowed into the mainstream of distribution. In 1970, 10% of the films run in major first run theaters were foreign films. That number is now down below half of one percent. Is that a product of foreigners not knowing how to make films anymore? Or is it a product of the increased concentration of distribution that favors a certain types of films over others? As the market structure of major media distribution has changed, the flavor of the content has changed. More creative work is being produced, yet the major channels won't allow it in.
One thing I talk about in the beginning of The Future of Ideas is this bizarre world of copyright clearances you need in order to do a film. It sounds almost trivial. But the consequences of this is, if you've produced a film that hasn't gone through this copyright clearance, you just won't be released for major distribution.
That separates the market between independents who can't afford this sort of absurdity when they produce a film, and people within this traditional system who can afford to have a gaggle of lawyers follow them around watching what they do and clearing all the rights. The legal system is creating a barrier for independent non-mainstream creators to get their work passed easily into the mainstream. I'm not saying it will never happen. You take a video camera and do something about a haunted event on a mountainside. That movie can be released. But you want to do a critical commentary on some issue in popular culture today?
Todd Haynes did this amazing movie called The Karen Carpenter Story. Karen Carpenter was a bulimic who basically starved herself to death. So Todd Haynes did this movie, the Karen Carpenter story as played out through Barbie dolls. It's just Barbie dolls in the whole movie with Karen Carpenter music in the background. He wasn't allowed to release that movie. He was sued into silence because of the use of the Barbie dolls and the use of the music.
The First Amendment limits the ability of law to be used by powerful people to protect themselves against criticism. It's bizarre that when we switch channels to the copyright channel people use the law to stop criticism.
Roberts: You could argue there's a distinction between Barbie dolls and a powerful politician, but our culture's an important part of our political and economic system.
Lessig: I gave this talk once and someone said, you don't understand. You're always free to make a movie as long as you don't use popular culture in the movie. You look around and we live in a world which is completely suffused with popular culture. You're not allowed to talk about it unless you get permission of the culture owners? It's a kind of slavery over culture.
The next book I'm writing is called Free Culture and it's meant to evoke a link to the free labor movement, the first effort to express limits on the power of people to exercise control through private contracts over how other people create and express their creativity. People who were in favor of free labor were not against labor contracts, they were not against being paid for labor, they were not against the market-they were against extremes in all three of those cases. It's the same thing with the free culture movement. It's against extremes, especially when it stifles the opportunity for people to be critical. Especially right now.
We live in a time when our culture is increasingly tone-deaf to legitimate criticisms around the world. If there's ever a time when we have to open up the opportunity for people to be critical and spread their creative message it's now. Yet, just at this time, there's this copyright war that's shutting down channels of communication in the name of defending property rights. But in defending those property rights what you're also doing is disabling an extraordinary system of expression that could be doing our democracy an extraordinary bit of good.