Copyright in the Balance: LJ Talks with Lawrence Lessig

Stanford University professor Lawrence Lessig is certainly no stranger to the library community. Considered the nation's most eminent legal scholar on the nexus of copyright, technology, and the Constitution, he is the highly regarded author of the landmark works Code and Other Laws of Cyberspace (Basic Bks.) and, most recently, The Future of Ideas (Random). In these works he eloquently defends the need to balance creators' rights with public benefits. Now, in a more direct way than ever before, Lessig carries the hopes of the library community, and by extension a largely unknowing public, squarely on his shoulders.

In a promising sign for libraries and the public, the U.S. Supreme Court agreed in February 2001 to review whether Congress overstepped its bounds in 1998 when it passed the Sonny Bono Copyright Term Extension Act, extending copyright terms for another 20 years. Lessig will argue the case, Eldred v. Ashcroft, on behalf of a group of online publishers that offer digital editions of public domain books for free over the Internet. Two lower courts already ruled against the plaintiffs, but hopes are high in the library community that the third time could be the charm.

"I think you have to see at it as a very good sign that the court has agreed to look at the case," Miriam Nisbet, legislative counsel for the American Library Association (ALA), told LJ after the Supreme Court announced it would hear the case. "It would have been very easy for the Court not to look at yet another copyright case so close on the heels of Tasini. Obviously, there is something here that interests [them]."

Much is as stake for the library community. Since 1960, copyright terms have been extended 11 times, from 28 to 95 years and applied retroactively. According to a brief filed by University of California–Berkeley law professor Mark Lemley, if allowed to stand, the latest copyright extension means that roughly 10,000 books published in 1930, of which fewer than 200 remain in print, could be kept from the public domain for an additional 20 years. If overturned all 10,000 works could be made available to the public in downloadable, digital editions.

Yet the fight against term extensions is just one battle in a much broader copyright war being waged against the public interest and libraries, which are often its representatives. LJ recently caught up with a busy Lessig to talk about Eldred, copyright, and other challenges threatening the work of libraries.

LJ There's a line about copyright extensions from American University law professor Peter Jaszi, to the effect that in the United States we have perpetual copyright on the installment plan.

LL (chuckles) That's right...

LJ Just how important is the Eldred case for the future of copyright, both in terms of its immediate impact should you win and in terms of what it would mean down the road?

LL Well, I think one of the biggest problems is that Congress has been convinced by the copyright lobby that it is completely unrestrained by the Constitution in enacting copyright law, and therefore it doesn't feel the obligation to balance the interests between copyright owners and future creators and the public in getting access to copyrighted materials. Now, if we win, it will in a very specific context strike down the perpetual extensions of copyright. So work will once again fall into the public domain. But more significantly, I think the only way the court can articulate an opinion that means that we win would be to articulate a principle that when enacting copyright laws Congress needs to be much more careful in balancing those rights.

LJ There is a diverse array of amicus briefs filed on behalf of Eldred, including 15 library groups. On the other side, there are but a few large, well-funded lobbies. Is this a statement about our democracy, how you can literally see the public lined up on one side and on the other side you see, well, money and lobbyists, which are often a lot more important to legislators?

LL Of course, yes. And, well, I'm quite confident about what's more important to legislators. Not because they are corrupt, but because legislators just hear the view of those who are around them, and the people who can afford to be around them, in this case, that's the copyright interest. The Supreme Court is different. They are not surrounded by a bunch of lobbyists. They call it the way they see it.

LJ The copyright industry has been very good at focusing the digital debate on piracy rather than on fair use or the diminishing public domain. Can the Eldred case have an effect on that perception?

LL This simplistic notion of what copyright is and how people think about it is weakening the debate substantially. We need to be much more aggressive in calling people on this rhetoric, because it's just wrong. It's just not the case that copyright has ever been understood to mean that if you use a copyrighted work in a way unintended by the copyright owner that's "theft." Much more fundamentally, who are the real thieves out there? The public domain was supposed to be fed with new work beginning in 1998 that's been taken away from the public. It's been taken away by Congress legislating to extend the terms of existing copyrights. I think that is theft from the public as much as there is theft going on in other contexts. Now, that's not to say there isn't theft going on. I think piracy is horrendous. But in this moment of transition between the past and the future, we've got to allow new systems to develop in a way that we can evaluate what is going to make sense and what isn't. Then we can worry about enforcing laws against "theft."

LJ Another of the library community's major concerns is the Digital Millennium Copyright Act. The anticircumvention provision makes it a crime to break encryption, even to access the material for purposes covered by fair use. Doesn't this allow copyright owners to exercise greater control not just over how information is used but, more fundamentally, how it is accessed in libraries and elsewhere?

LL I think libraries are the ones most directly affected by the anticircumvention provision. The presumption about copyright is that it has always been a narrow protection against a commercial competitor. It has never been an entitlement for copyright owners to control the use of copyrighted work. That's just not what copyright is about. So it was because copyright owners couldn't control the use of copyrighted works that we have libraries. Libraries buy works and make them available to other people in a way in which copyright owners may not always like. But with new technologies, copyright owners now can control the use of copyrighted works. Copyright owners now just need to wrap content in digital form, and if a library tries to simply facilitate what it's always done, the library is branded a thief. That is a massive expansion of the power copyright owners have over their content. There needs to be a much better debate because the thing that's at stake here is the concentration and control over the future of our culture. People need to recognize how copyright has changed in a relatively short time—50 years—and decide whether the values that marked the Constitution's framing are going to be valuable to us in the future.

LJ On yet another front, Sen. Ernest Hollings (D-SC) introduced a bill this year (the Consumer Broadband and Digital Television Promotion Act) that would mandate standardized copy protections on all machines. Isn't that a bit draconian?

LL I am astounded by the ease with which the Senator has embraced this narrow, protectionist perspective as opposed to the perspective that is interested in assuring vibrant competition for consumers. The bill's supporters' perspective is that we're not talking about competition, we're talking about piracy. That's just false. This legislation is not just a way to deal with piracy, it's also a way to concentrate power over the future of digital creation. I'm happy to have a conversation on how to deal with piracy, and there are lots of techniques we could use to combat piracy, but I don't think the way we avoid piracy is to give the keys to the future to the industries that controlled the last century's distribution of content.

LJ Case in point, you had a Morpheus server, a file-sharing technology that could be extremely useful to a library, on your web site to distribute content, and you were forced to shut it down, correct?

LL Yes, it's still shut down. I'm sure I could get Stanford to allow me to set it up again, but I've had this case.

LJ Some have put forward the comparison that outlawing the operation of a Morpheus server is like outlawing a crowbar because it can be used to break into a car. Is that too facile an analogy?

LL I think that's a good analogy. These technologies like Morpheus are ambiguous. They can be used for good, and they can be used for evil. Certainly when they're used for evil purposes, like facilitating massive piracy, they ought to be prosecuted. But when they are used for good, people ought to have a right to use them. Just think about another technology out there that is ambiguous—the handgun. There are people who say there is a good use of the handgun. But clearly there are bad uses of the handgun. But for some reason we don't entirely ban the use of the handgun. If we don't ban technologies that kill people, I don't think we should ban technology that could be used for lots of completely legitimate purposes, like enabling blind people to read text or to move text between computers. These things that are completely fair uses are now being interfered with by copyright holders' [digital rights management (DRM)] technologies. If we don't have the right to use technology on our side to get around these DRM technologies, the right of fair use will have been erased.

LJ Another thing librarians are interested in is the recently announced Creative Commons project. Can you tell us a little about your involvement with that?

LL The aim of the Creative Commons is to respond to another kind of pathology that has been created by the current copyright regime. It is almost impossible to identify content that you have the right to use as a creator without licensing it from someone else. This is caused in part because copyrights never end. But it's also because the United States gave up the very salutary practice of requiring copyright owners to mark and register their work. That means there is basically no way to know when you look at a work if it is actually protected, or who you have to get permission from to use that work. So we're developing technology to make it simple for creators to mark their work and share it on the Internet—to say you can use my work in the following ways, such as for noncommercial uses or with attribution. We're trying to get a commonsense response. Fundamentally, the changes in the law that said we should require no formalities from someone to get and enjoy copyright protection has no connection to what ordinary people understand the responsibilities to be for claiming some kind of property rights. When ordinary persons have a bit of property, they pay taxes, they register, there's lots of little requirements. In the context of intellectual property, that whole idea of responsibility to the other side has disappeared, and the consequence is that it has become an enormously expensive system to negotiate. Now, that's a good thing for some of these creators and the holders of copyright. The more expensive it is to negotiate, the narrower the group…able to negotiate the system, and so I don't think today's copyright industry minds that it takes 20 lawyers to do any particular transaction.

LJ In The Future of Ideas, you posit that despite the tremendous potential of the Internet to distribute information, the future could actually turn out quite darkly, with more control of information, both legislatively and through technology. What's your worst-case, best-case scenario for the next 20 years?

LL The trend that troubles me the most is the way in which the power to innovate is increasingly being concentrated in the hands of relatively few creators. In the context of artistic creation, if you want to produce films or music, just the legal costs of engaging in that creative activity, because of the permissions necessary to effect that creativity, are so expensive. That is solely a consequence of the concentration of copyright and the extension of the reach of copyright power. What I find most significant, being a Constitutional scholar, is that this is exactly the problem the framers were trying to avoid when they granted copyright for limited periods of time.

LJ And that problem was...?

LL They were trying to avoid replication of the problem that existed in England where copyright was concentrated in the hands of booksellers. Booksellers controlled creativity because they chose what was produced and what wasn't. And booksellers were more concerned with their long-term successes, like Shakespeare, rather than artists who were not yet known. In some ways those constraints are repeating themselves. But what's striking is that the concentration and the effect of control is much greater today than it was then. Then there was a monopoly because of the ability to run a printing press. Today, control is much broader, granted by copyright laws, and that will translate into a much more significant restriction on the free growth of culture.

LJ So in 20 years...

LL The concern 20 years in the future is that we have a bleak, boring center of cultural production, which is these megamedia companies that get to call the shots of what gets produced and what doesn't, and the loss of the cultural vibrancy that comes with diverse, decentralized, unconnected, independent institutions for creating and distributing content. That's the dark story. The bright side, however, is that this trend toward concentration is reversed by technology and by legal principles that enable a much greater diversity of creativity.