October 7, 2011  ·  Lessig  · Reblogged from  Huffington Post

I’m a liberal. I believe in a woman’s right to choose. I believe gays should be free to marry. I believe that society has an obligation to help the worst off. I believe public education should be free and fantastic. The government should not be allowed to spy on me, or my neighbors, whether they are citizens or not. Business should not be allowed to pollute the environment. Markets, I believe, when properly regulated, produce extraordinary innovation and spread wealth. I believe no one should be permitted to buy an election, human or not. I believe equality is a means to a better society. Regulation is necessary to keep the powerful true. And swift and efficient justice is necessary when the powerful are not true. I believe in the Great Society, even if we’ve not found it yet. I listen to NPR. I am a card carrying member of the ACLU.

But I also believe that the only way to fix this Republic is through cross-partisan reform. We must, I believe, find a way to work with people we don’t agree with to make this Republic work again. People who think differently from how we do about a wide range of substantive policy questions — from taxation to regulation to Internet policy to federalism.

Yet as I walked through the #OccupyWallSt protest Wednesday, and asked people about such cross-partisanship, I was not encouraged. There is an anger and frustration among those on the Left. They feel they’ve tried compromise before. It got us this. They’re not interested in more of this. They want something different. They want change. The sort of change they can really believe in.

And I realized then just how hard it was going to be to get people to understand what cross-partisan must mean. It does not mean compromising on substantive issues. It does not mean finding the middle between Left and Right. It does not mean the incoherent “bipartisanship” that too often takes over DC — giving us the wars in Iraq and Afghanistan, the war on drugs, and the sort of justice system that executes Troy Davis.

It means instead a constitutional cross-partisanship: The recognition that however much we disagree about substantive issues, we have to be able to agree about the system within which we work out those substantive disagreements. That however much we disagree as Democrats and Republicans, there has to be a foundation of agreement as citizens — about at the very least the system within which disagreement gets resolved.

That system for us is a democracy. Or more precisely, a representative democracy, cabined by a constitution that both limits the power of government and checks the power of one branch against the others. It is the rules of the game. The terms upon which competition happens.

Sometimes those rules don’t work. Or they don’t work anymore. Sometimes they defeat the objectives of not just one side in a competition, but all sides. And when that happens, all sides need to stop the competition for a moment and fix the rules. All sides must cooperate to make competition between all sides work again.

This is the cross-partisanship that I mean.

The Republic that our framers gave us does not work anymore. It does not work for the Left. It does not work for the Right. Federalist 52 promised us a Congress “dependent upon the People alone.” The last 15 years have produced a Congress dependent upon the Funders primarily. Members of Congress spend between 30% and 70% of their time raising money to get back to Congress or to get their party back in power. As they do this, they obviously — obviously — bend themselves and their policies in a way that makes it easier for them to raise money. And as they do that, they send a clear message to America. Like a father fingering his Blackberry rather than playing with his kids, Congress shows us that we don’t matter. And like that kid, we get it. 75% of Americans believe “money buys results in Congress.” Only 12% of Americans have confidence in what Congress does.

12%. We need to keep that number in context. There were more who believed in the British Crown at the time of the Revolution than who believe in this Congress today. This Republic is lost. And it is way past time for us to get it back.

But we won’t get it back unless we find a way to work across the diversity that is America. Not to shove that diversity into a blender. But to find common ground about what’s gone wrong, and to commit to a common path to fixing it. We, as Americans, may not have common goals. We do, however, have a common enemy.

That enemy is the corruption of Congress. The single fact that most all of us agree about is that our Congress is bought, and our politics, corrupted. Not the buying of quid pro quo bribery. Congress is not criminal. But you don’t have to be a criminal to be corrupt. The corruption that is our Congress is in plain sight. It is legal, indeed, protected by the First Amendment. It is the bending and contorting to feed the fundraising frenzy that occupies the majority of the life of too many in Congress. And everyone — from Bill O’Reilly to Jon Stewart (really, watch) — should be able to agree that this corruption is at the root of the problems facing this Republic. And that until we remedy this corruption, this Republic will remain lost.

I was hopeful about #OccupyWallSt because it is the first mass movement that might accurately speak to this more fundamental corruption. For as I explained here before, the story of Wall Street is this story of government corrupted. Not just in the lead up to the collapse, but more brazenly and terrifyingly in the aftermath of that collapse — when Wall Street effectively blackmailed both Republicans and Democrats to block any meaningful reform. #OccupyWallSt should be to call out this corruption, and unite a movement across the nation to demand that we change the system that permits this corruption. This is the root in Thoreau’s “there are a thousand hacking at the branches of evil to one striking at the root.” This movement could be that one.

If it were, then it would be a million times more important than what happened in Madison. There was no way to understand the protests in Madison except as Democrat against Republican, as Left versus Right. The same with the Tea Party which, try as its leaders might, is only ever understood in America as the Right against the Left.

But as Tea Party Patriots co-founder Mark Meckler told a packed and rapt audience at Harvard last month, we have to find a way to resist the business model that depends upon “making us hate each other.” We must find a way to look beyond our differences, to bracket those differences, so we can fix the system within which those differences compete. We need a time out, to fix the rules so that politics is not just a game to feed the ratings of cable news and Comedy Central.

I agree with you, Mark Meckler, that there is a business model of hate. It is the business model of too many, and it is destroying this Republic. So let’s put the fight over Medicare or Social Security aside for a moment, and find a way to fix this Republic. Not by criticizing those who dress differently (as is the Fox News meme of the day about these protesters), but by recognizing the passion of people who love this country every bit as much as you, and by working to unite us against our common enemy: The corruption that is this Congress.

  • http://www.slumdance.com/blogs/brian_flemming/ Brian Flemming

    Congratulations on the breakthrough! I called Congresswoman Lofgren’s office, (202) 225-3072, and Congressman Doolittle’s, (202) 225-2511, to add my voice to the gratitude I hope they’re getting a lot of.

    Amazing to hear about Congresswoman Bono’s reaction. You’re right–it is easy to demonize the other side. (Then again, “forever minus a day…”)

    Hope this signals a great turn for the movement.

  • Lessig

    Brian, thanks for calling. That is a great idea!

  • Chris Tar

    Just wanted to mention that besides supporting this bill, Congresswoman Lofgren gives her official support for Howard Dean’s Presidential Candidacy on his blog which you mentioned down below in YOUR blog…

  • Jonathan

    That’s great news! And I hope that you try to get in touch with the Howard Dean people–I have been following his campaign and I haven’t seen any specific stances of his on technological issues but he seems to be an advocate for the common person and I imagine he would be very sympathetic to your stances on the public domain and on technology, if you discussed them. I have great hopes for both of your campaigns and I can only imagine the greatness the two of you could do by joining forces!

  • skywalkjw

    I’d first like to thank Professor Lessig for housing such an informative arena for the passing of information to us “cannon fodder” for the recording industry. I have a few questions/statements (some rhetorical). If anyone could help me understand someone of this or someone (Prof. Lessig or one of his “underlings”) could comment preferably, that would be greatly obliged.

    1. It’s the mega servers that will get pressed by legal action first or at least that’s how I’m “translating” the information transmitted publicly.
    2. The odds of the recording industry actually receiving damages is highly unlikely, bc someone could space their payments out over time thus not jumpstarting the supposed “flagging sales” of the industry during our economic woes and the absolute alienation of the consumers by the industry or something like what happened to Jesse Jordan will occur where they just confiscated his saved up “lunch money” or life savings…
    3. The media companies “scaring” ppl (CNN and other news coporations) own/are owned/or are closely affiliated with record labels so of course they’re attempting to cause a state of paranoia.
    4. Code 431.322.12 of the Internet Privacy Act signed by Bill Clinton has certain guidelines that prohibit someone from monitoring someone and doing certain things without a warrant.(I don’t know how much actual legal clout this has…)
    5. The companies can’t say “the artists suffer the most” because the companies abuse the artists and they only receive about 12% of the revenues according to a CNN.com chart(There is plenty of money to be made at concerts because if you have a good show, ppl will pay money to go, id est the 1000$ madonna and michael jackson concert tickets will always have a buyer…)
    6. They can’t prove a file is a file on a PC (it might be labeled incorrectly, i suppose they could download it…but that makes them hypocrites), you can also plead the 5th amendment if they ask you to produce information that is self-incriminating (the files which are the only proof, so you can’t produce them yourself…a big fuss was made over this in the Whitewater probe pertaining to Hubbell not wanting/having to produce documents that held incriminating evidence…I don’t know…)
    7. Age old argument of who is to say that you aren’t using it for yourself or archiving a personal database, and the ppl downloading aren’t downloading a double of the copy they have and own.
    8. There is a flood of ppl doing it, if they prosecuted everyone, there would be a serious logjam in the court system of the U.S. This is just like putting gum in a large crack on a face of the hoover dam.
    9. This will seriously disenfranchise the private recording industry and ppl will just move more towards indie music(or they’ll just cover the band and make the cover open for sharing…) These prosecutions can be assimilated to that of chopping of the head of a hydra (more will pop up in place…)
    10. Not all the lobbyists are clean. If you were to search their PC’s and all the government officials’, they’d sing a diff. tune. Another valid point is what will they do not “if”, but when their very own kids get caught.

  • Michael Chermside

    So, are there any particular things that I can do (people to call, etc) to support this bill? Ideally, I’d like to have the bill’s congressional sponsors say when is the politically “right” time to speak up (and to whom) in order to have the most chance of helping this towards actual passage.

  • http://home.telepath.com/~hrothgar Timothy R. Phillips

    Maybe Congresswoman Bono has truly modified her views on copyright to account for the public interest more than it was accounted for in the statements she made in 1998. Or maybe Congresswoman Bono sees this bill as a bone that she can throw to us dogs to keep us quiet. In any case we must remember in the true logic of copyright it is the copyright industries who should be the dogs groveling at the public’s table, not the public at the industries’. This bill, if enacted, will allow to lapse after 50 years those copyrights in which their owners have no interest. But it is from the lapse of copyright in works which have commercial value that the public gains the most immediate benefit, in the form of competing editions. In the same way, if an antibiotic were to remain under patent until many microbes had become resistant to it, the lapse of the patent, and the resulting lower prices, would benefit the public less than if the patent had expired during the time of the antibiotic’s greatest potency. So even if this bill is enacted (and that happy outcome is by no means assured) we should remember that there are reasons for moderating the term of copyright in valuable works just as there are for moderating the term of copyright in neglected works.

  • Dana Powers

    I speak only for myself here, skywalkjw, but I have signed the petition that is at the root of this thread and, although it addresses copyright policy, it is not relevant to the legal action you are asking about – the multiple RIAA suits against individual music file traders. Personally, I am strongly in support of copyright reform, but I also believe, as I’m sure many others do as well, that the RIAA has every right to bring suit against individuals who distribute copyrighted music files without permission. Many in the ‘copyright reform’ camp are dissappointed with the extent to which the RIAA (and others) try to incriminate technology itself (search engines, p2p networks, etc) as opposed to the individuals that misuse it; however, few (if any) of them also believe that copyright owners should not have some sort of recourse against unauthorized reproduction or use.

    I am very glad to hear that the Eldred Act is making some headway on the hill. I’m sure this pleases you, Larry, to no end, as it pleases the many thousands that have lent their signature to the cause. Great news!

  • http://www.kaax.org Kaa

    “her [Bono] motivations seemed quite genuinely to be about securing to artists continued reward from creativity.”

    Color me skeptical. Politicians dislike pissing off people and would very much like to appear to be on everyone’s side at the same time. Of course she was nice to you. But I bet she’s nicer to Rosen and Valenti. The current situation is, basically, a power struggle, and she’s definitely in the other camp.

    “This was a strange day of feeling Congress sometimes somehow might work.”

    Err… you know that Washington, DC is permanently submerged in a strong reality-distortion field? Thankfully the effects dissipate after a few days away from that city…

    Sorry for negativity, but the congresscritters’ record on doing reasonable things lately isn’t all that good…

  • http://www.strategiczero.com Matthew Cox

    I know it’s only a semi-answer to one of your questions, skywalkjw, but in a recent case, a court ruled that you have no reasonable expectation of privacy once you share files or a directory…if you are opening it up for anyone in the system to browse and download from, you are essentially waiving your right to privacy in this matter.

    I don’t like what the RIAA is doing any more than they like what I am doing, but the anger and the outrage, for the most part, is being directed at the wrong outlets. The laws currently governing this matter give the RIAA the right to do exactly what they are doing, and there’s no real point to getting all hot and bothered at them. The debate and the activism should be more properly funneled where it has a chance of being effective – at changing the rules of the game. Until then, I’ve removed the share tag from my music directory — I value my lunch and will pick and choose the battles, in order to maximize the potential for success.

    Viva La P2P!

  • Dishman

    Reflecting on Eldred…
    I’d add another requirement for retaining copyright:
    The copyright holder must register and preserve at least one copy (physical or digital) of the work.
    There would have to be some mechanism for making it available to the public domain, either through the Library of Congress or through the former copyright holder.
    This makes more sense to me than a fee.
    The copyright holder would be saying “I believe this piece of history is worth preserving, so I will preserve it”. Otherwise, the copyright holder would be required to step aside and let the public domain make that decision.