Lessig

Tomorrow the Supreme Court will hear arguments in Eldred v. Ashcroft. In the past weeks, and especially the past week, I've received an extraordinary amount of mail, ranging from wishes of good luck, to demands that I "win." And as well has the press been extraordinary. (Check out Google's cool new service for a list. Even Declan is reporting the story, if only to report that the Ayn Rand Institute has pronounced me a Marxist (along with Milton Friedman, Ronald Coase, James Buchanan and Phyllis Schlafly I assume.)).

When we brought this case 4 years ago, there were many allies who said that there was no way we could win. The reason they were right four years ago is that the world did not yet see how important these issues are, and just what's at stake. In four years, that has changed. Not because we brought this case, or because of anything I've done in this case, but because of an extraordinary number of people who have been pushing to make this issue understandable.

It is extremely hard to win a case like this. I have given it everything I have, and I believe we are right, and have a good shot in showing it. But the important lesson from the attention this case is getting now is this: There is an extraordinary passion and energy out there for the ideals that Eric Eldred and others represent, and that if we do something to push these ideas, we can have an effect.

Thank you for the extraordinary outpouring of support. But please, regardless of what happens here, let us not lose the momentum. Freeing culture is what our framers did; we can do it again, regardless of what 5 justices on the Supreme Court say.

So there's an extraordinary (and extraordinarily interesting) range of reporting about the argument before the Court. As I was on the front line, let me add a bit more. My hope in doing this is to put this in a bit of context, and to highlight at least what we should be looking for. (EV predicts a 6-3 victory, which is significant, because he and I have a bet, and he took the other side.)

Aaron reports Brewster's statement to him that "it was a dance for which I don't know the steps." That's close. I think the better analogy for someone viewing an oral argument for the first time is the first time you see a cricket match. There are some moves you are certain you know are bad (a swing and a miss); but there's lots that plays into something you can't quite get till you know the context of the game. Here, then, the context of the game, as well as the moves from last Wednesday.

This is an amazing story of activism and political will. Lots to learn from this amazing nation.

Long before I downloaded Mosaic 1.0, my obsession was constitutional law. It still is. If there is one intellectual passion that has lived the longest in my life, it is how a country makes sure its constitution lives. I spent many years studying the emerging democracies in the former soviet republics. I spent many years writing about how our Court can best protect our constitutional values over time. This, it turns out, is an extraordinarily hard question, for which we have no good answer.

So as a constitutionalist, I must confess that the greatest part of this debate about Eldred is that it has now become framed -- at least in the public space -- as a debate about what the appropriate role of the Supreme Court is. This is precisely the right question to ask, as the Washington Post's very smart editorial asks it. As Eldred's attorney, it is of course my role to say that the answer is easy, and indeed, the nice thing about picking one's cases is that the proper answer in my role is the answer I genuinely believe. There has been great controversy about the Court's intervention in the context of federalism, but as I firmly believe, there should be no similar controversy in the context of the Copyright Clause (again, the text is clear, and the Court unanimously has affirmed that the text is a grant of power and a limitation).

But however the Court resolves this case, it will be teaching us something important about what a constitution means: either that the Court can interpret express limits to give them effect (and hence my clients win), or that the Court interprets the limits on its own power such that there is only so much it can do to police a Congress out of control (and hence, a principle of judicial restraint wins). I, of course, prefer giving the constitution's limits effect over a restraint that defeat the constitution's aim. But either way, these are results of principle, not politics. As one person emailed me, either result "reaffirms something important and good" of at least this part of our government.

Herein the difference between a brilliant mind and a lawyer's mind. While we brought a law suit, Brewster built a bookmobile. A public domain bookmobile, which he drove across the country to show the value of the public domain in a tangible, and unmistakable, way. Richard Korman has written an excellent account of this perfect way to make the Eldred point.

Dave's valid call for more and different software to cycle us out of Andy Grove's "Valley of Death" reminds me of a favorite interview that helped me write my last book. Marc Andreessen described the environment in which innovation flourished in the valley -- when the platform for innovation was neutral, and innovators did not fear the power of others to crush their innovation. Power in the software market was Andreessen's concern. Power in the content market drives much of Markoff's. But the point in both cases is the same: give the past a veto over the future, and the future will be vetoed.

I don't have the full interview typed up, but here's the chapter from the book. Marc's stuff begins on page 265.

It is wonderful to see that the spirit of my hero, Walt Disney, still lives at that amazing company. See their latest work drawn from the public domain. Creativity the way it was meant to be.

I've just finished replying to the more than 500 emails I received about the Eldred case. Despite my con-law musings, it is extraordinarily hard to read these emails without a profound sense of just what's at stake. Missive after missive describes the burden of the existing system, and how 20 more years of control will stifle creative work. These half-a-thousand emails should be worth one word at least -- REVERSED.

In a bunch of these emails, however, there were two recurring questions that I wanted to clarify.

Ted Shelton continues to do web logging credit in his careful and fair reply to my reply to ... well you get the picture. And more importantly, he does this space credit for his patience in waiting for a reply. I apologize for the delay, but because his last post has helped me understand and frame this a bit better, the conversation continues.

Dave bravely (given the excitement about Mitch's latest contribution) defend's Don Park's concern that the Open Source Applications Foundation will fuel an "erosion in the sense of value for software." That is an important and valid concern, but it needs to be kept in context.

Aaron points to a wonderful page by John Mark Ockerbloom at the University of Pennsylvania listing books that are in the public domain elsewhere but not, because of the Copyright Term Extension Act, in the United States. Check out the books you are not allowed to download. Makes me proud to be an alum.

Dennis Karjala has been fighting copyright term extensions just about as long as anyone. His wonderful page has some of the best material from the beginning of this battle through the case in the Supreme Court. Check out the letter from artist Daryl Hanson about the effects of CTEA on his ability to create.

Aaron makes the nice point that there should be an analog to "fair use" in the context of patent law. This is actually a point explored by a number of legal scholars, most extensively by Maureen A. O'Rourke in a 2000 paper that does not seem to be online. But he grounds his claim on the "the conflict between these two have, in copyright at least, traditionally been resolved by the concept of 'fair use.'"

Not true, or better, that's government speak. "Fair use" is one mediating device between the First Amendment and copyright. The Court has never held, and it would make not sense to hold, it is the only mediating device. It is a central part of our First Amendment claim in Eldred that there are other mediating devices between the First Amendment and copyright -- i.e., duration. And that just as the government concedes that if "fair use" were changed by Congress, or if Congress decided to copyright ideas as well as expressioin, then "undoubtedly" ordinary First Amendment analysis would apply, so too if Congress changes the duration of existing copyrights, ordinary First Amendment analysis should apply. This was the argument of the author of the notion (adopted by the Supreme Court in Harper) that there is a "definitional balance" between the First Amendment and copyright--Nimmer--as he concluded that retrospective changes of copyright violated the First Amendment and the Copyright Clause.

I'm trying to think about other things, but when my Dad won't stop sending me articles about the case, it gets hard. Today he sent me this piece by Professor Marci Hamilton which concludes that "Mickey has the better of the argument." But I wonder whether Mickey would have the better argument if the real arguments that we make are considered.

This letter by Adam Smith on behalf of the "New Democrat Network" asking Cybersecurity Czar Richard Clarke to avoid GPLd software deserves a response. Here's a short one by me. And if you agree, then you should respond here.

Ted Shelton ends his reply with a nice question: why should the protection for software "be different from copyright property in the first place." That is the issue on which the only real disagreement lies (the other disagreements are illusory, caused I trust by my own lack of clarity).

Alot of us have been talking up the importance of spectrum policy, and about the extraordinary opportunity that free spectrum (or unlicensed spectrum) creates for the next great internet revolution. Sarah Lai Stirland has a great piece framing the debate. I think Michael Powell might get this. If he does the right thing, it could be the most important governmental decision affecting the internet in 40 years.