Lawrence Lessig Sees Public Domain Sinking in a Sea of Overregulation
Stanford law professor says digital age should usher in creative use of digital materials, not prosecution of 12 year olds for downloading music.
Published: Thursday, April 22, 2004
"We have no good reason for the kind of regulation we've got right now."
Isn't the biggest issue about American copyright law the problem of piracy, illegal downloading of music and films from the Internet? Stanford law professor Lawrence Lessig would reply with a resounding no. While firmly endorsing the right of content providers to protect their intellectual property, Lessig in an April 22 talk at the UCLA Law School contended that a stream of federal legislation over the last thirty or forty years has drastically rewritten the tradition of American constitutional law at the expense of rights of the society at large. Lessig's talk was sponsored by the Ronald W. Burkle Center for International Relations. The core of Lessig's argument can be summarized in a few points:
- The copyright clause of the U.S. Constitution treated intellectual property differently from other property. Fearing a monopoly by publishers and placing a high value on general education, it granted only a short period of protection after which books passed into the public domain.
- The revision of the copyright law in 1976 by removing the requirement that content creators must register their work or need to actively renew the copyright at a halfway point to get the full period of protection radically increased both the length of copyright and the number of works that fall under this law.
- Some 98% of all published works or films go out of commercial production after the first year, but are kept out of the public domain for many decades because they are not distinguished from the small number of works that have ongoing commercial value.
- Because every act on the Internet involves making a copy, acts that were legal under previous technologies become crimes on a computer as everything digital requires permission to use.
- The film and music industries have been so fearful of new digital technologies that they have been unwilling to explore new business models but have instead successfully persuaded Congress to adopt draconian penalties for even completely noncommercial copying.
- The enormous extension of the duration and applicability of the copyright laws threaten to cripple the emergent digital technologies, to criminalize the next generation, and to thwart the potential of the digital age to promote a far more creative culture than the consumer couch potato culture of the last generation.
Lawrence Lessig's talk was in part to call attention to his latest book, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, which is sold in bookstores, but which he has also decided to give away free on the Internet (see his Stanford website: http://www.lessig.org/).
The Progress Clause of the Constitution
Lessig began by quoting Article 1, Section 8, Clause 8, of the U.S. Constitution, which states the purpose of granting copyright: "To promote the progress of science and useful arts." That is, the purpose of copyright is not to protect property rights of authors, but to encourage a public good, "progress." Notably, the writers of the Constitution felt that this was best done by balancing the interests of authors and the public by granting only a short copyright and requiring that authors must apply for it and actively renew it.
Lessig framed his discusson in terms of law and technology. "I want to think about the way law and technology both benefit and burden progress. Technology benefits progress when technology lowers the cost of spreading and advancing culture. Technology can hinder progress when it raises the cost of spreading or advancing culture. And likewise law benefits culture when it grants rights like copyright. And law burdens culture when it grants rights like the copyright rights that we have existing today. . . .
"So let us think about the ways that progress is spread. There is an institution that you might think of as a core piracy institution in American life, and it has been there for many hundreds of years. It is called a library. Libraries are places where people for free get access to knowledge. It has been an ideal from the founding that free public libraries would define one aspect of what we meant by progress. It was to promote progress. To guarantee in an Enlightenment sense anyone access to this knowledge whether they pay or not. This spread culture and knowledge widely, because it subsidized access to culture and knowledge and guaranteed, regardless of one's status, access to what made our culture the way it was."
The irony of our current situation, Lessig said, is that whereas in the past the law placed very little limit on the free spread of culture and technology was the big hurdle because of the costs of printing and buildings, today, just as the technology is making the spread of information extremely cheap and easy, the law is locking up the culture with a one-size fits all approach to intellectual property that is really molded around the protection of corporate copyrights of a very small number of currently valuable properties, mainly in film and music.
Walt Disney Creativity
For Lessig, encouraging people to contribute to their culture is a high value. And since creativity is a social activity, he feels that it requires a live public domain they can draw on. In the days, not that long ago, when copyrights were short and only applied to exact copies, not to derivative works, much of the valuable copyrighted material of our own day came into existence -- in ways that would be illegal today. The authors grabbed existing works by others as a takeoff point for a new adaptation, generally without credit or attribution. Lessig takes Walt Disney as a prime example: "In 1928, a hero of mine, Walt Disney, produced Steamboat Willie." Here he showed a clip from Disney's first successful sound cartoon, in which Mickey Mouse is a roustabout on a river steamer. "And it was from Steamboat Willie that we then got Mickey Mouse. So in a sense it is from Steamboat Willie we got Mickey Mouse, from Mickey Mouse we got the Disney Corporation.
"Now what you might not know is that in 1928 also there was another creative genius doing creative work. His name was Buster Keaton." Keaton produced a film that year, before Disney's cartoon, called Steamboat Bill, Jr. The Disney cartoon was heavily based on the Keaton film. "Steamboat Willie was built on Steamboat Bill. So in a sense it is from Steamboat Bill, Jr., that we got Steamboat Willie. From Steamboat Willie we got Mickey Mouse, from Mickey Mouse we got the Disney Corporation." In fact, Keaton's film was also "stolen" from a popular song of the day called Steamboat Bill. "This is a kind of creativity," Lessig continued. "It is a creativity we should celebrate and remember. You could call it Disney creativity. . . . It is the ability to take the culture that is around you and to mix your creative efforts with it and to release it to others, to express your creativity building upon the culture that is ours. That's a creativity that we have forgotten today." He added that a very large part of Disney's successful filmography consisted of adaptations of other people's work, from Snow White to Pinnochio to the music used in Fantasia.
Squeezing Out the Public Domain
When Disney made Steamboat Willie most of the fairly small number of works that were copyrighted at all passed into the public domain in about 32 years -- in today's terms that would make everything produced in 1972 or earlier available for free reprinting or as material for reworking. "We had a rich public domain from which people could draw to build this Walt Disney creativity. . . . this was a relatively free legal culture within which culture got built."
Beginning in 1976, however, radical changes were made and have since been deepened in the copyright laws whose effect has been to limit the public domain to works that are almost 100 years old. The very idea of a public domain may pass out of American law, Lessig suggested, if the major media corporations are able to continue to successfully present their side of this issue to Congress. "We are in the middle of a war," he said. "A war which my friend Jack Valenti [Chairman and Chief Executive Officer of the Motion Picture Association] refers to as a terrorist war, where our children are the terrorists. This is a war being waged, in a sense, against digital technologies, because certain industries view digital technologies to be equivalent to their death."
Four Radical Changes in the Copyright Laws
Lessig pointed to four radical changes in copyright legislation enacted since 1976 at the urging of corporate media lobbyists. These were changes in the dimensions of copyright terms, scope, force, and reach.
Term: From 14 Years to 95 Years and Counting
"So think about the term. When we founded the republic, copyright term was 14 years, renewable once to 28 years if the author was alive when the first term expired. The term is now the life of the author plus 70 years, which for someone who produces in the pattern of Irving Berlin would mean a copyright of over 140 years for the most famous work of Irving Berlin.
"And because copyright for most of our history required renewal, that simple change in terms understates the dramatic differences that have been produced by this change in law. Because the old law required that copyrights be renewed after a fixed term, that meant that the average term was never more than 32 years. But the new law doesn't require renewal. So the average term is the maximum term, which again is life plus 70 or for corporate works almost a century."
Actually it is even worse than that, as the Sonny Bono Copyright Term Extension Act of 1998, extended copyright for living authors from life plus 50 years to life plus 70 also automatically extended all existing copyrights of already dead authors to 95 years, which means that works written in 1923 will only enter the public domain in 2018.
Scope: You Get It Whether You Want It or Not
At the same time that copyrights have grown longer, the Congress has also thrown out the requirement that you have to register to get or renew them. "For a hundred and ninety years of our republic, copyright law insisted on certain formalities. It was a conditional regime. You got the benefit of copyright protection if you raised your hand and asked for it. If you registered your work. If you marked your work. If you renewed your work. Then you got the protection of the law. Now our system has no required formalities for a work to gain the benefit of a federal copyright."
One unplanned consequence of this change when combined with digital technology is that intellectual property as ephemeral as email is technically automatically copyrighted. Thus forwarding an email without permission can be construed as a felony should some company or individual choose to initiate a lawsuit. This provision of the law was recently invoked by the Diebold company, manufacturer of electronic voting equipment, to threaten lawsuits against universities that permitted individuals to post company emails circulated by whistleblowers that discussed flaws in the Diebold equipment.
When copyright required some effort by the author, the large majority of published works either were not copyrighted in the first place or the copyright was not renewed. Of course, publishers and film companies would always renew copyrights on books that remain in print or films that have some chance of being revived. But for the vast majority of our cultural products there was no interest because they were no longer of commercial value.
"In 1930," Lessig pointed out, "there were 10,027 books published in the United States. In 2000, 174 of those books were still in print. Something like 9,853 books had fallen out of print, were no longer available in a commercial marketplace from the commercial publisher. Every year that pattern is true. Very quickly, almost 98% of books published pass out of publication. So this story about 1930 is not just because 1930 was a bad year for authors. It is a story which is true across the history of publication. Creative work passes through two lives. One life is its commercial life. And the second life is its life beyond a commercial life where it is shared and spread through some other technology."
But enormously long copyrights combined with the absence of any national register of copyright holders because registration or renewal are no longer required mean that the 98% of books that you cannot buy from a publisher you also cannot reprint or digitize for a library because there is no way to clear the copyrights. These so-called orphan works are the vast majority of the output of our writers and they are locked away because they are treated in the same category by the law as valuable copyrights for the handful of works that do remain in print.
"In the period between 1800 and 1996," Lessig said, "we don't have good data, but we can estimate something like 25% of published work was actually registered for copyright; 75% passed into the public domain immediately. And 28 years after that, only 3% of that work remained under the regulation of copyright. But now of course this tiny regulation of a tiny part of the creative process has been transformed because we have given up the requirement of formalities. After 1976 the copyright protection is automatic, extended to all creative work reduced to a tangible form regardless of the steps taken by the author. So this end of formalities produces an unconditional copyright regime, which means that this 25% is now 100%, and after 28 years the 100% is still 100%. The law automatically protects all creative work within its scope for the full term of copyright whether the author wants that protection or not."
Change in Force: Code in Machines, Not Humans, More and More Determines What You Can Do with Your Recordings
Before digital technology and the Internet, complaints that copyright had been violated were heard by a judge, who determined whether there was fair use of material or if an author's rights were violated. Now in many cases content providers and manufacturers of technology build in code that indiscriminately prevents uses that may be perfectly legal. Lessig gave the example of his Adobe eBook Reader. People can pay to download contemporary ebooks into the reader, but there is also a vast, usually very old, public domain literature that can be read in this software.
Lessig has a copy on his Adobe eBook Reader of Middlemarch, written by George Eliot in 1871 -- a book in the public domain even under today's extended limits. "Click on the permissions to Middlemarch, you are told that you are allowed to copy 10 text selections to the clipboard every 10 days. You are allowed to print 10 pages every 10 days. And you are allowed to use the read aloud button to read the book aloud." Another book in his reader was never copyrighted in the United States at all. "Click the permissions. You may not copy any text selection to the clipboard. You may not, using your own printer, print any pages from this book, according to the permissions granted. But you are allowed to use the computer to read the book aloud."
Similarly, Sony's current minidisk recorders are programmed to download any MP3 file from a computer a total of three times, after which the technology will stop working for that file. MP3 is an audio standard that is used to distribute many kinds of audio file, from a small band recording its own, uncopyrighted, music, to reading books aloud by either humans or computers. The designation MP3 does not indicate whether the material it contains is under copyright or not, or what rights to it the person trying to record it has. The machine is programmed to treat all copying above the number 3 as illegal, without human oversight, and there is no appeal.
"Where does this control come from?" Lessig asked. "It doesn't come from the law. The law doesn't give the author this level of regulatory power over the technology. The control here comes from the code through which this technology is delivered. And increasingly we have added laws to back up that control through code."
Change in Reach: Every Use of the Internet Is a Copy, So the Law Regulates Everything
Before digital technology, almost all uses of a book or a piece of music were legal, because they did not involve making a copy. And there was a fairly clear law regarding fair use copying for noncommercial uses. "Enter the Internet, where every act is a copy. And this happy picture of unregulated ordinary uses transforms, because if every act is a copy, every act is presumptively regulated by copyright law. . . requiring permission from the author."
Concentration of Ownership
To this uncomfortable picture, Lessig added the extensive concentration of ownership of the media in recent decades. He referred to "a handful of corporations who control this opportunity to remake and transform culture," adding, "Never has the law regulated as powerfully. And granted the power of that regulation to a smaller group of people."
A New Library of Alexandria, Aborted
As an example of the costs of this dramatic extension of copyright controls, Lessig cited the founder of the Internet Archive, Brewster Kahle, who has had the ambition to create an online library of all the books of our Western culture, to rival the ancient wonder, the Library of Alexandria. Technically, for the first time in history, this is not hard to do. Amazon.com has already done something like this for 120,000 books, but because of copyright law does not permit anyone to read the books, only to use the files to find books that mention particular topics.
Kahle is prepared to limit his online library to out-of-print works that no longer have commercial value. Even that is impossible under current law. "Were he to make these books available on the Internet under the law as it is now, he would have to clear the rights first. Now sane people think, there must be a simple way to do that. There must be a list kept somewhere of who the copyright owners are so he knows who to ask before he makes the works available. But the reality, as any lawyer knows, is that there is no such list. There is no such place. There is no easy way to identify, even to identify, who the copyright owners are, much less securing any permission that they might have the right to withhold. So this opportunity of taking the 10,000 books from 1930 and the 11,000 books from 1931 and so on and making them available -- not to compete with publishers, but just to make the knowledge available -- is burdened by a legal system that requires permission first."
Erosion of Fair Use and Felony Prosecution of Noncommercial Uses
As copyright law has grown to include derivative rights and merged with the Internet where text, images, and sound files are widely distributed, previously accepted protections of fair use for personal consumption or for small nonprofit use have been sharply reduced and placed under a legal cloud where almost any use in digital format may be met with felony prosecutions and astronomical fines greatly disproportionate to the "crime" committed. Lawrence Lessig commented:
"When you imagine the opportunity for democracy and the opportunity for creativity and you see these two opportunities restricted by this legal regulation, for what is it that we are restricting this freedom? What right is there that is being infringed by this extraordinary potential that would justify this unprecedented level of regulation? This war has costs, like any war. Some of these costs are direct. Some are collateral. The direct costs are the obvious. Many burdens on progress, on libraries, on economic growth. . . .
"But it's the collateral costs which in some sense are even more profound. For when we wage this terrorist war on our children, we send them a very clear message. We produce in that clarity a kind of extreme. And that extreme has an extraordinarily damaging consequence for our culture. So they sue 12 year olds for downloading content off the Internet, and the response from that action is that increasingly our children reject the idea that any rules should govern here at all."
Up to now, however, the legislators have seemed intent on increasing prohibited acts and jacking up the penalties. "Just last week Congress considered a proposal to make peer-to-peer file sharing a felony if you opened up your computer with a Kazaa client on it. Yet another felony you can commit from the safety of your own bedroom. That is their response to this transformation. But our response should increasingly be to find a way to wage peace here. To find a system of legal regulation that fits the law to this new technology. That makes sense of this new technology by enabling the potential it offers while assuring the legitimate interests of the creator are recognized."
How to Fix the Copyright Law
The question period drew Lawrence Lessig out on what activities should be prohibited by copyright enforcement and on ways in which the existing laws could be made more reasonable. "I am wildly in favor of copyright," Lessig declared. "I think it is important to empower creators so they don't depend upon patronage as a way to have the incentives to create. And I certainly understand how new technologies coming along make old businesses fearful because the new technologies might change the way that they are able to make money. And so I don't support the idea that people should be allowed to download music regardless of the copyright restrictions. I am not in favor of that activity. And I certainly don't favor piracy of movies, for example."
His disagreement, he said, was with the stance by the media giants and their lawyers "that total control is what's necessary."
He gave an example from his appearance before the U.S. Supreme Court in Eldred v. Ashcroft in January 2003, where he had argued against the 20 year extension of copyright of the 1998 Sonny Bono Copyright Term Extension Act. He lost the case, but afterward he said he received calls from people who worked for Hollywood studios. "They said, 'There are many people here who want you to win.' And I said, 'How can that be?' They said, 'You can't begin to imagine the extraordinary archive of material that we have here that we can't use.' 'Why can't you use it?' 'Because you can't clear the rights. Because you don't know who the rights holders are.'" He added, "This burden of legal regulation means that they can't build out of these resources any more than anybody else can. And they said, if you win, then we can take twenty-year-olds or nineteen-year-olds and let's set them free on this content and produce amazing remixes of this content that is economically valuable."
The Public Domain Enhancement Act
After losing the Eldred case, Lessig has been working with others to get new legislation drafted in Congress that can meet the demand of the content industry to protect its valuable properties while freeing the great mass of orphan works. This has been introduced as a bill in Congress.
"It is now called the Public Domain Enhancement Act. The Public Domain Enhancement Act says, fifty years after something is published you have to pay $1 and register the work. We know from historical data that 95% of creative work would pass into the public domain after fifty years under this regime. Because for 95% of this creative work there would be no interest in paying the dollar. So whether you think it is 85% or 95%, it's a huge amount. The estimates of Justice Bryer in the Eldred case were closer to 98%. A huge amount of work would pass into the public domain. The only thing we are asking of the creator is to pay $1. So when we made this proposal the MPAA [Motion Picture Association of America] started going around the Hill lobbying against the proposal. They were against this idea. Why? Well they gave a lot of arguments. One of them was, it burdens poor copyright owners. The ones who can't afford the dollar. Those people will be burdened by this system.
"The point is, where is the extremism in this debate? If you are not even willing to think about compromising there, to liberate, not Disney, not Disney's content, but an extraordinary amount of content that other people could do things with, if you are not even willing to compromise there, then who is the extremist in this debate? That is part of what this bill has demonstrated."
He reported that the bill now has 12 cosponsors in the House. "Senators Leahy and Hatch have now decided they are going to ask the Copyright Office to evaluate how to implement this proposal. Because both of them, in some sense, upon reflection, begin to recognize what the problem is."
An Antidote to the Couch Potato Culture
Asked why he focused on consumers as creators rather than consumers as users, Lessig replied, "You are totally right that I focus primarily on the creative reuse of content. Because I think that we have a picture of the 'consumer' which is the couch potato. And that is the consumer of the last 80 years, years in which the Soviet analogy has become so strong. We are the couch potato culture. We get culture fed to us. But what studies of how children use computers are demonstrating is that children using computers are not these people who just consume. They create." He cited a study by the Pew Trust "which shows that 44% of people using the Internet have created and contributed stuff back to the Internet. So this technology is producing a different kind of consumer. One who is a creator as well as a consumer. And my real objective is to get people to focus on the creator half, not the consumer half."
How Eric Eldred Drew Lessig into the Fray
The last questioner of the day asked Lawrence Lessig what had attracted him to this issue. He said it was because of Eric Eldred, the man for whom Eldred v. Ashcroft is named. Eldred is a retired computer administrator who lives in Derry, New Hampshire. In an attempt to get his daughters interested in Nathaniel Hawthorne, he started his own public domain website, which he calls the Eldritch Press (www.eldritchpress.com), where he posts classic works of literature. When the Sonny Bono Copyright Term Extension Act was passed in 1998, it meant Eldred would have to wait twenty years for the next group of public domain books to become available. He was about to do something rash.
Lawrence Lessig recalls: "I came to the copyright debate because Eric Eldred had just had a story written about him where he said he was going to engage in civil disobedience by publishing works that should have fallen in the public domain but didn't fall into the public domain because of the Sonny Bono Copyright Term Extension Act. The eleventh extension of copyright terms in the last forty years. And I looked at this act and looked at the constitutional text and said I don't get it. I don't see how it is possibly constitutional. And that was where I began the process of undertanding how extreme the law had become. Deep down I am fundamentally a lawyer. I love the law. I love what the law does. I love the traditions and values of the law and it seemed to me it had been corrupted by an obvious set of interests. I am not saying they are evil, but its an obvious set of interests that had captured the law and changed it.
"The more I saw of the harm that was being done to values that I thought were fundamental, the more I thought somebody needs to resist it. So I had this naive thought that we would race into the Supreme Court and say, Hey, you originalists on the Surpeme Court, look at the original meaning of the Constitution and look at what Congress has done, and strike it down. Well, of course, the originalists were sleeping that day and so the Supreme Court upheld the Copyright Term Extension Act. And that has forced us to build something that is much harder to build. And that is a movement of people who recognize the importance of the tradition that we had and defend it by demanding that their Congresspeople do what is consistent with that tradition and resisting the extremism that continues to define the debate right now."