January 17, 2003 · Lessig
My inbox is a testament to the kindness of strangers. Thank you. Many ask, is there anything more that could be done?
The easy answer is no. The Supreme Court has ruled that Congress has the power perpetually to extend the terms of existing copyrights. This brief “experiment with the public domain,” as the NYT eloquently put it, is over. In twenty years, we can expect terms will be extended again. There is no good reason to expect anything different.
The hard answer is, well, yes, there is always the possibility of an amendment, except that an amendment would be impossibly hard. Article V of the Constitution maps two paths to an amendment. (1) is for Congress to propose an amendment (which would not happen here — ever); (2) is for the state legislatures to call for a “convention” which may propose amendments. In either case, amendments must be ratified by 3/4s of the states.
The second path has never been followed. People are afraid of it because the convention could in principle propose any amendment at all. As 3/4s of the states must ratify any amendment, that doesn’t seem terribly dangerous to me. But clearly, it would take a massive campaign to march through the states to succeed in getting such a proposal passed.
One kind soul asks, “would you be willing to work to amend the constitution.” If there were a commitment of sufficient resources to make the campaign real, obviously yes. Impossibly difficult tasks seems my calling these days. I’d be happy to become Mr., rather than Professor, Lessig, if there were a good reason to believe such a campaign could be supported.
But short of the impossible, there are many battles yet to be won. The opinion of the Court gives no support to restoring copyrights once expired. That means the challenges in Golan and related cases survives. And, as Jack Balkin forcefully argues, Eldred does nicely frame the unconstitutionality in the DMCA.
More importantly, there is a political campaign that must now be waged. The many organizations that have been fighting these issues have done an extraordinary job getting people to see what’s at stake. That battle has only begun. My hero Siva (which is easier to spell than Vaidhyanathan) has a great piece on Salon on just this point. And Bill Moyers has a piece on PBS tonight that will do lots to help others to see.
I, meanwhile, will be answering email. I should have that finished before the next Sonny Bono Act.