June 17, 2003  ·  Lessig

Matthew Rimmer has a careful and insightful piece about Eldred v. Ashcroft. He has some good criticism of the Eldred Act.

Or at least, in the best of all possible worlds it would be good criticism. He says we need more radical reform. He worries about the burden on creators. True, the registration system was broken — because a government agency ran it. That needs to be fixed if any rebirth of registration is to do any good.

But the point about the need for something more radical bothers me. Sure, absolutely, we need something more. But how are we going to get there? There is no substantial push by ordinary people for the public domain. (Of course, there are 13,000 extraordinary people who get this, but only when you multiply them by 1,000 will we have a movement.)

Why don’t ordinary people get it? Because few understand why the public domain is valuable. Why don’t more see why the public domain is valuable? Because today the public domain is over 75 years old. It is ancient history for us, irrelevant to much of ordinary culture.

If the public domain were as young as it was for most of our history (30 years old, max), then losing it would mean something to most people. If the work of the 1960s and 1970s could easily be built upon, then taking that work away would excite a revolution. But the (brilliant) strategy of the copyright extremists has been to slowly remove the public domain, by slowing extending copyright. (Remember Hal in 2001, as Dave turns off his brain?) They have succeeded in making it irrelevant to most. The question now is how to make it relevant again.

In my view, reclaiming it would make it relevant. Exploding the content within the public domain in a context where it can be built upon and spread (ie, now, with the internet) will make people see again why the public domain is important. And if they see that, then they will again defend it.

It is this first step that the Eldred Act would achieve. The revival of a registration requirement would move content into a public domain quickly. (You can see the point with this Cabinet Magazine graphic.) And only then might we expect a public to demand more.

There are many who have written brilliantly about what is right in this context. Rimmer’s piece is an addition to that. But the hard problem is how to make the right real. That is what this movement needs now.

  • http://journalism.berkeley.edu/projects/biplog/ mary hodder

    I don’t believe that the public domain is irrelevant to ordinary culture. I think for people who do not think about this every day, the problem is conceptual and invisible. Simply making the problem explicit causes so many I speak with to immediately react in favor of the public domain, and to then get the problem. But given that each person needs a simple explanation of the concept in the first place, either in person or they need to consume it via a talk or in writing, on a blog, over the 9,000 other things vying for their attention each day, it’s going to take a lot of steps to get the critical mass needed to make the problem visible, resulting in a movement that can do something to correct the problem. But much like the environmental movement, the public domain movement can, one step at a time, conquer the same barriers of conceptual understanding. 30 years ago, people didn�t think about where their garbage went, or whether recycling was important. I hope it�s only 10 years until people think regularly about where human expression is owned and controlled and when it can be recycled appropriately. I think the issue is visability, verses relevance to our ordinary lives.

  • Dave

    When most folks think of copyright, I’m guessing they think of something that has commercial value and is copyrighted today.

    To clarify the importance of the public domain I think we ought to look to things that need to be in the public domain and boil it down to a good tagline

    -What if the bill of rights was pay-per-read?

    I realize that laws aren’t copyrightable, but sometimes a wee bit of fanaticism can drive home a point. Of course, someone out there probably has a far better motto; my point was mostly that simple sells.

  • http://peterme.com peterme

    I share Mary’s concern with the word “irrelevant.” I don’t think there’s a question as to whether the public domain, even at 75 years old, is *very* relevant for ordinary culture. In an absolute sense, it is.

    What you’re addressing is perceived relevance, which is a different matter (though also, obviously, important). And here you’re entering the realm where historians tread… Historians have an uphill battle in getting ‘ordinary folks’ to understand how the past is relevant to the now (and the future). Perhaps we should look to them for guidance?

  • starbuck

    The reason people don’t value or perhaps under-value the public domain is because it’s a public good. Any decent Economist will tell you the problems with assessing an accurate value for a public good.

  • http://www.alevin.com/weblog Adina Levin

    I don’t think 13,000 committed people is all that small.

    One of the flaws with the way elections work today is that small populations of committed and swing voters have a disproportionate impact on elections.

    I have a theory, which would be easy enough for a political research shop to prove, that people who care about copyright and related policy issues are more likely to be swing voters.

    Identify the population, aggregate our votes and our dollars, and watch the political dynamic change.

  • Vincent Omniveritas

    Have you ever considered, Larry, that the reason the vast majority of people aren’t swayed by your arguments about copyight is that they can recognize that your arguments are, frankly, crap? Just like your b.s. claim that Congress extended copyright terms eleven times, when in fact Congress extended them only four times? Why should any reasonable person pay attention to your polemical positions when it’s obvious that you’re deliberately misrepresenting easily determined facts, in a vain effort to support those positions?

    Give up, Larry. Maybe your little fans can’t, but the world can recognize a b.s. artist.

  • http://sethf.com/ Seth Finkelstein

    Politics is hard. The vast majority of people don’t care about anything. Swing voters? Heck, the petition-signers are more likely to go off and vote Libertarian, on the basis that those candidate have practically never been in office (and so are unsullied by the dirty world of real conflicts).

    There’s a vast gulf between what people are willing to do in terms of clicking a petition, which is costless and rah-rah, and the time-consuming (and often unrewarding) work of actually getting reforms passed.

  • Dave Ethington

    I think a larger issue is that most people don’t even have a clue about the length of copyright, how broad copyright protection is or what the intent of copyright originally was. Most people I talk to are suprised that “Happy Birthday” is still under copyright. When I ask people how long copyright lasts I usually get a response of “20 to 30 years”. Most of the people I talk to still think copyright requires registration and don’t know that every thing from the email they write to their four year old daughter’s finger painting is automatically under copyright protection.

    This is why it is such an uphill battle. There is such a vast knowlege gap between the content holders and their customers and between those of us trying to effect change and the population we are trying to reach. We need a lot more education on a much broader level before we’ll be able to get the momentum we need.

  • Lessig

    Ah, the new math of the copyright extremists. What we argued in Eldred, Mr. “Vincent Omniveritas,” was that Congress has extended the term of existing copyrights 11 times in 40 years. Here are those 11 statutes:

    (1) Pub. L. No. 87-668, 76 Stat. 555 (1962)
    (2) Pub. L. No. 89-142, 79 Stat. 581 (1965)
    (3) Pub. L. No. 90-141, 81 Stat. 464 (1967)
    (4) Pub. L. No. 90-416, 82 Stat. 397 (1968)
    (5) Pub. L. No. 91-147, 83 Stat. 360 (1969)
    (6) Pub. L. No. 91-555, 84 Stat. 1441 (1970)
    (7) Pub. L. No. 92-170, 85 Stat. 490 (1971)
    (8) Pub. L. No. 92-566, 86 Stat. 1181 (1972)
    (9) Pub. L. No. 93-573, Title I, � 104, 88 Stat. 1873 (1974)
    (10) Pub. L. No. 94-553, � 304, 90 Stat. 2572 (1976)
    (11) Pub. L. No. 105-298, � 102(b), 112 Stat. 2827 (1998)

    I’m not quite sure how you get four (or even four) out of that, but maybe you’re thinking about the four times that Congress extended the terms of copyrights prospectively — 1831, 1909, 1976, and 1998?

    Anyway, if you’re going to be both rude and wrong, at least have the decency to do it with your own name.

  • Lessig

    Right. “Irrelevant” is a misleading description. I don’t mean it is irrelevant. I mean it is, as Ms. Hodder nicely puts it, “conceptual and invisible.” I obviously believe that it is extraordinarily “relevant”; but like the tree falling in the forest, invisible relevant things are, for all practical purposes, irrelevant.

  • Anonymous

    Hey, Larry — get out your tear-stained copy of the Supreme Court’s ruling in Eldred v. Ashcroft, and actually read — for a change — the footnote on page 4. For your convenience, here’s what it says:

    “Asserting that the last several decades have seen a proliferation of copyright legislation in departure from Congress� traditional pace of legislative amendment in this area, petitioners [that would be you, Larry] cite nine statutes passed between 1962 and 1974, each of which incrementally extended existing copyrights for brief periods. See Pub. L. 87�668, 76 Stat. 555; Pub. L. 89�142, 79 Stat. 581; Pub. L. 90�141, 81 Stat. 464; Pub. L. 90� 416, 82 Stat. 397; Pub. L. 91�147, 83 Stat. 360; Pub. L. 91�555, 84 Stat. 1441; Pub. L. 92�170, 85 Stat. 490; Pub. L. 92�566, 86 Stat. 1181; Pub.
    L. 93�573, Title I, 88 Stat. 1873. As respondent (Attorney General Ashcroft) points out, however, these statutes were all temporary placeholders subsumed into the systemic changes effected by the 1976 Act. Brief for Respondent 9.”

    Two, four, whatever; when fact-checking a prevaricator such as yourself, sometimes the details get a little muddy; more your fault than mine. But the fact of the matter is that nine statutes that you attempted to misrepresent as copyright term extensions were in fact no such things. Now you might not agree with that presentation of the facts — you continued misrepresenting them even after the court made its ruling — but the problem for you is that the court agrees with those facts. That’s one of the reasons the pro-copyright side won in the Eldred case, and you and your little band of anti-copyright jihadistas lost — big time. The reason why your career in court, rather than as an utopian ivory-tower egghead, has been so undistinguished, is that you never learned such a simple lesson as, “Judges hate being fibbed to” — especially on easily ascertained matters of fact.

    And as for posting under a pseudonym here — hey, Larry, it’s your side that’s so keen for anonymous activities on the internet — so long as somebody else gets hurt. Not so convenient now, when it’s your nose that’s being tweaked, is it?

    And as for rudeness — believe me, most decent people agree that it’s far ruder to lie to people than to point out those lies, no matter how the latter is done. That’s another reason your “political” career is likely to be as undistinguished as your courtroom career.

    Ciao, loser.

  • Lessig

    What exactly could it mean to say that these were “placeholders subsumed into the 1976″ statute? All it means is that the 1976 statute did not extend the 9 previous extensions again. How does that AT ALL undermine the claim that 11 times in 40 years, Congress extended the term of existing copyrights? Because it didn’t extend them 12 times in 40 years, that means it didn’t extend it 11?

    Word to the wise, my angry friend: don’t believe everything the government says.

    Regarding anonymity: I don’t question your right to be anonymous. But your right doesn’t make it any less cowardly to call someone a liar and then hide behind an IP address. If what you’re saying is true, then why would you fear putting your name next to it? Then again, what you have said here is not true, so maybe that explains some of it.

  • Anonymous

    What does it mean? It means, as was pointed out to you before you plead your case at the Supreme Court, that Congress, far from extending copyright terms willy-nilly and at the dictate of large copyright holders as you so vociferously contend, in fact did no such thing. In fact, Congress so carefully and deliberately extended copyright terms (for the good of all), that “placeholder” extensions were necessary to accomodate that deliberative process. This is exactly what the footnote I cited refers to — which of course should be completely obvious to you, if it didn’t contradict your erroneous and polemical position.

    And if I’m not supposed to believe what the government says — in this case, the Supreme Court — why did you plead your case at a forum you consider so flawed? If you had won — fat chance — you would have been trumpeting it up and down the landscape, and shoving the ruling into the faces of those you wish to harm, instead of telling them “don’t believe it.”

    Word to the wise, loser — and another factual correction for you. I’m not your “angry friend.” I’m your amused opponent; amused at the sight of your and your extremist sycophants flailing around for support of a cause that you yourself admit virtually no-one else cares about. And since my side’s winning — much to your obvious chagrin — what would I have to be angry about?

    As for anonymity — if you were to post a little advisory on your blog, something to the effect of “Unlike those Verizon customers whose anonymous and illegal activities we support and applaud, participants in discussions in this forum are forbidden to post anonymously,” I’d be happy to show you the courtesy of acceding to your wishes. But that would expose your hypocrisy on this issue just a little too much, wouldn’t it? And besides, sometimes there are worthwhile reasons for wishing to remain anonymous — how do you know that I’m not one of your students, who doesn’t want to jeopardize his grade by publicly disagreeing with the Anti-Copyright Jihad’s Maximum Leader?

    Ciao, loser.

  • Lessig

    “In fact, Congress so carefully and deliberately extended copyright terms (for the good of all), that ‘placeholder’ extensions were necessary to accomodate that deliberative process.”

    Oh that’s funny, angry friend. Yes, yes, that’s it. Congress “carefully and deliberately extend[ing] copyright terms FOR THE GOOD OF ALL.” Sorry I missed that.

    But you can’t have it both ways: Either congress DID extend the terms 11 times (and then my claim that it did is not a “lie”) or congress DID NOT extend the term “carefully and deliberately.” I take it you’re agreeing then that Congress DID in fact extend the term of existing copyrights 11 times. But you say they didn’t do it “willy-nilly”: Whatever. “Willy-nilly” is your word, not mine. So again, I would ask, where exactly is the “lie” that you so bravely charge me with?

    I do hope that you are, as you say, not angry (not that what you say has been very reliable so far). You sure SEEM angry, with all your harsh and rude talk, calling people who disagree with you “little” etc. Seems a lot of something to work out there.

    But whatever, Mr. Winner, aka “Omniveritas.” Lessig-the-loser, and I’m sure some of the “little” people who doubt that Congress was motivated by the “good of all,” wish you all the best. You should go out and celebrate all your victories. No reason to waste your time with a bunch of losers.

  • http://www.bbcity.co.uk Tom Morris

    “Why don�t ordinary people get it?” Because 99% of people are idiots. Copyright term extensions are not exactly going to rock the political boat anytime soon. Why? Because it can’t be boiled down in to a snappy slogan. “Save Unborn Foetuses” can, “Women’s Right to Choose” can, “Don’t let them take our Guns!” can, but “Rebuild the public domain and reignite creativity by repealing copyright law extensions” isn’t.

    It’s the same reason why nobody has a clue about criminal law (my current speciality) and that the media portray an arrest as meaning a conviction etc.

  • Anonymous

    Well, Larry, since you seem incapable — perhaps willfully so — of understanding the footnote on page 4 of the Supreme Court’s ruling in Eldred v. Ashcroft, I’ll put it in terms you might be able to understand. You think Congress extended copyright terms eleven times; I think Congress didn’t — and the Supreme Court agrees with me. That’s one of the reasons why you and your side loses, and my side wins.

    And as for celebrating our victories — believe me, we do that all the time. And we’ll continue to do so. Every time we write a song, take a photo, publish a book, all with the benefit of that expanded copyright protection which has produced the greatest creative outpouring in the history of humanity. And if you don’t think that was for the benefit of all — then I can assure you that I regard you with more pity than anger.

    Ciao, loser — and liar.

  • Karl

    Hey VO, did you pay royalties last time you sang/played songs at one of your victory celebrations? If not, you’re a hypocrite of the highest order.

    By the way, the collapse of your defense of your position in the face of how compromised your beliefs had become by Professor Lessig’s observation was the most humorous part of all this, not your ‘witty’ repartee.


  • Lessig

    You still seem confused, Mr. Omniveritas. I said Congress extended the terms of existing copyrights 11 times. You have not yet pointed to anything that contradicts that claim. You have therefore not pointed to anything that makes me out to be a “liar.”

    What you point to is a statement by the government, repeated by the court, that tries to undercut the significance of the 8 extensions that we cited. The government, and the Court believe those extensions are less significant because they were “subsumed” into the 1976 Act. But all that means is that the 1976 act did not further extend the terms that had been exended already, some of them 7 times. imho, that doesn’t make the acts less significant; it makes them more significant — the idea that 8 congresses agreed to extend existing copyright terms in a 15 year period shows quite clearly that perpetual terms is the norm. But whether you think the 1976 Act makes the earlier extensions MORE or LESS significant, there is NO ONE WHO ARGUES (except you, Mr. Omniveritas) that “Congress didn’t” extend existing terms.

    As to the “expanded copyright protection which has produced the greatest creative outpouring in the history of humanity” — oh, please, Mr. Omniveritas, give it a break. Again, you are missing the point completely. The 11 extensions of existing terms in the last 40 years were for WORKS THAT ALREADY EXIST. You are confusing the extension of an EXISTING COPYRIGHT with the extension of a prospective term. Those extensions therefore have absolutely nothing to do with you “every time we write a song, take a photo, publish a book” since that is in the future, and the 11 extensions for existing works are for works in the past.

    So “pity” me, if you will, Mr. Omniveritas, if I don’t think that the extensions of copyrights for works that already exist don’t benefit “everyone.” I’m with the 17 economists, including the 5 Nobel Prize winnners, including Coase, Buchanan, Arrow, Friedman and Akerloff, who believe that those extensions benefited not “everyone,” but the special interests that funded Congress to pass them. But I take it they too are part of the jihad…

  • http://slicedbread.dnsalias.net Dan

    I’ve never seen such fervent anger on the side of those who want stronger IP protections. Usually it seems to be more of a calculated position to increase profit margins than any actual ideological convictions, so perhaps the apparent honesty of his position is the bright side to VO’s otherwise empty comments.

    It’s rare that you see someone who is skilled at the actual expression of his argument–I’ll give VO that much, that his diction and grammar are fine–and yet entirely misses every single point directed at him. Rather disturbing, too, I suppose. An argument is not really an argument if it consists of one side presenting evidence and logic and attempting to engage in generally academic debate while the other just says “nuh uh”. It’s not really worth engaging in, and I have to respect Prof. Lessig for following this through as much as he had.

    It’s also rather disappointing, though, that his personal blog–which I always found to be full of insight above the general rhetoric–has become full of name-calling and insensetivity, all caused by one individual. I hope this is the exception rather than the rule.

    If VO would like to actually answer some of Prof. Lessig’s responses to his earlier claims, I’d be interested to read what he has to say. As I said before, it’s rare to find an honest debate with more at heart than profit margins. But if he just wants to insult like a pre-adolescent craving attention, I don’t see any value in his continued presence here.

  • Karl

    I’m probably not the only one, but reading this whole thread I couldn’t help but be reminded of the case of IBEX in Code (p.78-82).

    This speaker obviously has a bit more in mind than simple personal attacks, but he seems to relish in his anonymity in much the same way.

    I won’t go nearly as far as to say that his motive could be some warped critique of the benefits of an open net, but it is something to think about amidst the flurry of inane chatter.

  • kien

    Valenti, Sherman, or Eisner? Place yer bets as to the identity of Larry’s angry little friend?

    My money’s on Valenti. His relatively recent “morality” speeches were as light on their feet and eloquent (while as devoid of content) as VO’s rants.

    Besides, I don’t think Sherman or Eisner are all that intellectually bright (while I have a huge amount of respect for their strategic business skills).

    Nicely done, Larry. It’s rare to see someone with the skill to debunk a troll without actually feeding it.

  • Lessig

    thanks, kien.


    (1) No challenge to Berne. The Act applies to American works only.
    (2) Yes, absolutely correct. In my view, the office should subsidize the registration process in the short run. In the long run, we should be moving to a system, ala the DNS, where there is a competitive system in registrars.
    (3) Damn right! Never again.

  • michael pettengill

    What I want to know is how the mickey mouse protection has made walt disney more creative. does the board of directors sit around a wegee board and get ideas from the great beyond?

    and why do the corporate holders of copyrights so resist compensating the authors of those works decades later. certainly anyone who assigned their rights 40 years ago couldn’t predict that he would his rights for the rest of his life.

    anyway, the reason most people don’t worry about the copyright extensions is that they “vote with their burning”. And its not just digital media – yeah there is the sign on the copier in every library, but no one pays that any more attention than smokers do to “smoking kills” labels on every pack.

    What I hope for is for students burned by lawsuits to decide to not buy cds or music, and instead create the music themselves. Sort of a gnu/linux/oss movement of music and art.

    The economics of music downloads are absurd – the company that happened to sign the artist, and then charges the artist for all promotion costs, and expects the artist to do the real promotion, is collecting the biggest cut for downloads handled by several other companies without doing anything. I’m sure that the music companies will, probably already have, sanction any artist that attempts to bypass the “system” that ensures their cut, even if the artist is a new artist without any connection to any of the existing corporate gatekeepers.