May 22, 2003  ·  Lessig

Timothy Phillips, one of the most active people pushing to reclaim the public domain, writes in a comment to my post yesterday,

“�Monitor the issue ?� Why doesn�t the representative introduce the bill, if it has not already been introduced ?”

Why Timothy? Because as one person who had spoken to someone on the hill wrote me, “no congressperson yet sees ANY possible benefit to them from introducing this bill, and they all see SIGNIFICANT political costs. This is like taking on the NRA, but these people have more than one movie star on their side.”

May 21, 2003  ·  Lessig

So I’ve gotten tons of mail from people who have taken up the challenge to spread the idea of the Eldred Act. I’ll be reporting on this feedback over time. Christopher Kantarjiev sent a letter to Congresswoman Eshoo (CA, Democrat) who represents Stanford. Here’s her reply:

> Thank you for your e-mail about the U.S. Supreme Court’s decision to
> uphold the constitutionality of the Sonny Bono Copyright Term Extension
> Act (CTEA), which adds 20 years to the terms of existing and future
> copyrights.
> The case of Eldred v. Ashcroft challenged the constitutionality of CTEA,
> charging that CTEA fails constitutional review under both the Copyright
> Clause’s “limited times” prescription and the First Amendment’s free
> speech guarantee. The framers of the Constitution wanted to promote
> science and arts by allowing Congress to grant exclusive rights to
> creations “for limited times.” Congress has extended this period
> gradually over time and the Court held that Congress acted within its
> authority and did not transgress Constitutional limitations when it passed
> While I appreciate the importance of the public domain and I remain
> dedicated to preserving such fundamental rights as freedom of speech and
> freedom of the press, I do believe that Congress must also act to ensure
> the international protection of copyrighted works. We must balance the
> tensions between these two sets of interests carefully.
> As you mentioned in your email, one possible compromise is the Eric Eldred
> Act, which takes a common sense approach to move unused copyrighted work
> with no continuing commercial value into the public domain. The Eric
> Eldred Act has not yet been introduced in the Congress, but I shall
> continue to monitor this issue, keeping your important thoughts in mind.
> If you have any other questions or comments, let me hear from you. I
> always appreciate hearing from my constituents and ask that you continue
> to inform me on issues you care about. I need your thoughts and benefit
> from your ideas.
> Sincerely,
> Anna G. Eshoo
> Member of Congress

“common sense” — I count that as good news. Keep those letter going…

May 16, 2003  ·  Lessig

About a month ago, I started sounding optimistic about getting a bill introduced into Congress to help right the wrong of the Sonny Bono Copyright Term Extension Act. I was optimistic because we had found a congressperson who was willing to introduce the bill. But after pressure from lobbyists, that is no longer clear. And so we need help to counter that pressure, and to find a sponsor.

The idea is a simple one: Fifty years after a work has been published, the copyright owner must pay a $1 maintanence fee. If the copyright owner pays the fee, then the copyright continues. If the owner fails to pay the fee, the work passes into the public domain. Based on historical precedent, we expect 98% of copyrighted works would pass into the public domain after just 50 years. They could keep Mickey for as long as Congress lets them. But we would get a public domain.

The need for even this tiny compromise is becoming clearer each day. Stanford’s library, for example, has announced a digitization project to digitize books. They have technology that can scan 1,000 pages an hour. They are chafing for the opportunity to scan books that are no longer commercially available, but that under current law remain under copyright. If this proposal passed, 98% of books just 50 years old could be scanned and posted for free on the Internet.

Stanford is not alone. This has long been a passion of Brewster Kahle and his Internet Archive, as well as many others. Yet because of current copyright regulation, these projects — that would lower the cost of libraries dramatically, and spread knowledge broadly — cannot go forward. The costs of clearing the rights to makes these works available is extraordinarily high.

Yet the lobbyists are fighting even this tiny compromise. The public domain is competition for them. They will fight this competition. And so long as they have the lobbyists, and the rest of the world remains silent, they will win.

We need to your help to resist this now. At this stage, all that we need is one congressperson to introduce the proposal. Whether you call it the Copyright Term Deregulation Act, or the Public Domain Enhancement Act, doesn’t matter. What matters is finding a sponsor, so we can begin to show the world just how extreme this debate has become: They have already gotten a 20 year extension of all copyrights just so 2% can benefit; and now they object to paying just $1 for that benefit, so that no one else might compete with them.

If you believe this is wrong, here are two things you can do: (1) Write your Representative and Senator, and ask them to be the first to introduce this statute; point them to the website, and ask them to respond. And even more importantly, (2) blog this request, so that others who think about these issues can get involved in the conversation.

I have given this movement as much as I can over the past four years, and I will not stop until we have reclaimed the public domain. Stay tuned for more litigation, and more ideas from Creative Commons. But please take these two steps now.

March 26, 2003  ·  Lessig

The Mexican Congress is about to consider a revision to its copyright law. Among it many changes, the law will extend the term of copyright from life-plus-70 to life-plus-100. (And no doubt thus beginning yet another cycle of “harmonization” around the world.) Worse, at the end of the copyright term, the government has the right to charge royalties for works in the “public domain.”

This is apparently something new for government regulators. Usually governments nationalize first, and then (and as a result) kill the industry nationalized. Mexico plans to innovate on this pattern: kill the public domain first, and then nationalize after.

The insanity in this system is astonishing. But here’s the message Mexico has got to understand: it will be easier for Mexicans to consume Hollywood content over the next 150 years than it will be for Mexicans to cultivate and preserve their own culture. Is promoting Hollywood really what the Mexican Congress is for?

March 13, 2003  ·  Lessig

So I received a copy of the March 31 issue of Forbes with a note from the editor in chief: “You might be interested in one of the editorials on page 28.” On page 27-28, Steve Forbes endorses the idea of the Eldred Act. More good news about progress on that front soon, but I am proud to count Mr. Forbes as someone who gets it. Now if we could only find an equivalently prominent Democrat.

March 12, 2003  ·  Lessig

Orin Kerr is a careful and powerful critic (in the good sense of that term) of much in the law of cyberspace. He has posted a careful and powerful criticism of my post yesterday. So too have others. But the line I agree with most strongly in Orin’s post is: “the public domain will be best served if Eldred is treated as a launching point for legislative reform, not an example of judicial foul play.”

Agreed. And as I’m the least qualified person to comment on the matter (as I’m the most biased person who has a view on the matter), my efforts are devoted to the future, not this past. My claim was not “foul play” or, as others have said, “corruption.” It was instead the sort of criticism that one can only make of an institution one respects: consistency. The obligations of consistency about principle across cases extend at least to those justices who believe in the principle. They don’t extend to justices who have dissented from the principle. Thus the burden or justifying and distinguishing Lopez falls on those who signed the Lopez/Morrison opinions. The other four (three of whom wrote the opinions in this case) are not, in my view, bound by that principle to say anything.

The point is not that a distinction couldn’t be drawn. The point is that they didn’t draw it. And the point is not that the Court must respond to every argument an advocate makes. But when two federal judges frame their dissent on the basis of a principle that also frames the petition upon which cert was granted, a certain decency would suggest something more than silence.

But I leave it to others to resolve the ethics of judicial principle as they apply to this case. There is lots of work to do that will matter much more.

March 11, 2003  ·  Lessig

So as the cruel master of fate would have it, on the day that the Eldred case officially ended, I was at Disney World. I was tricked into going to Disney World. I thought the conference was “in Orlando.” But Orlando has apparently morphed into Disney World, and so when yesterday the Court refused a request to rehear the case (totally expected), I learned the news while drinking coffee from a Mickey mug.

With that decision, a self-imposed silence about these things ends too. I accepted this silence after a respectful but strong rebuke by a friend. He objected that it was wrong for me to suggest that “the silent five” were acting without principle. I disagree. I do believe their decision lacked principle, but I also see that it was right to complain about the context within which I was making that charge.

So we filed a petition to rehear the case that made the claim of principle in as careful and balanced a way as possible. Again, such petitions are never granted any more. But if there is a place to express such criticism, respectful of the institution and tradition that these justices serve, it was in this form, without the pressure of publicity.

This stage is now over. I apologize for the silence. More hopeful stuff soon.