Free Culture by Lawrence Lessig (ereader iphone .TXT) 📖

Eldred's library was not simply a copy of certain public domain works, though even a copy would have been of great value to people across the world who can't get access to printed versions of these works. Instead, Eldred was producing derivative works from these public domain works. Just as Disney turned Grimm into stories more accessible to the twentieth century, Eldred transformed Hawthorne, and many others, into a form more accessible--technically accessible--today.

Eldred's freedom to do this with Hawthorne's work grew from the same source as Disney's. Hawthorne's Scarlet Letter had passed into the public domain in 1907. It was free for anyone to take without the permission of the Hawthorne estate or anyone else. Some, such as Dover Press and Penguin Classics, take works from the public domain and produce printed editions, which they sell in bookstores across the country. Others, such as Disney, take these stories and turn them into animated cartoons, sometimes successfully (Cinderella), sometimes not (The Hunchback of Notre Dame, Treasure Planet). These are all commercial publications of public domain works.

The Internet created the possibility of noncommercial publications of public domain works. Eldred's is just one example. There are literally thousands of others. Hundreds of thousands from across the world have discovered this platform of expression and now use it to share works that are, by law, free for the taking. This has produced what we might call the "noncommercial publishing industry," which before the Internet was limited to people with large egos or with political or social causes. But with the Internet, it includes a wide range of individuals and groups dedicated to spreading culture generally.1

As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection of poems New Hampshire was slated to pass into the public domain. Eldred wanted to post that collection in his free public library. But Congress got in the way. As I described in chapter 10, in 1998, for the eleventh time in forty years, Congress extended the terms of existing copyrights--this time by twenty years. Eldred would not be free to add any works more recent than 1923 to his collection until 2019. Indeed, no copyrighted work would pass into the public domain until that year (and not even then, if Congress extends the term again). By contrast, in the same period, more than 1 million patents will pass into the public domain.

This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in memory of the congressman and former musician Sonny Bono, who, his widow, Mary Bono, says, believed that "copy- rights should be forever." 2

Eldred decided to fight this law. He first resolved to fight it through civil disobedience. In a series of interviews, Eldred announced that he would publish as planned, CTEA notwithstanding. But because of a second law passed in 1998, the NET (No Electronic Theft) Act, his act of publishing would make Eldred a felon--whether or not anyone complained. This was a dangerous strategy for a disabled programmer to undertake.

It was here that I became involved in Eldred's battle. I was a constitutional scholar whose first passion was constitutional interpretation. And though constitutional law courses never focus upon the Progress Clause of the Constitution, it had always struck me as importantly different. As you know, the Constitution says,

Congress has the power to promote the Progress of Science . . . by securing for limited Times to Authors . . . exclusive Right to their . . . Writings. . . .

As I've described, this clause is unique within the power-granting clause of Article I, section 8 of our Constitution. Every other clause granting power to Congress simply says Congress has the power to do something--for example, to regulate "commerce among the several states" or "declare War." But here, the "something" is something quite specific--to "promote ...Progress"--through means that are also specific-- by "securing" "exclusive Rights" (i.e., copyrights) "for limited Times."

In the past forty years, Congress has gotten into the practice of extending existing terms of copyright protection. What puzzled me about this was, if Congress has the power to extend existing terms, then the Constitution's requirement that terms be "limited" will have no practical effect. If every time a copyright is about to expire, Congress has the power to extend its term, then Congress can achieve what the Constitution plainly forbids--perpetual terms "on the installment plan," as Professor Peter Jaszi so nicely put it.

As an academic, my first response was to hit the books. I remember sitting late at the office, scouring on-line databases for any serious consideration of the question. No one had ever challenged Congress's practice of extending existing terms. That failure may in part be why Congress seemed so untroubled in its habit. That, and the fact that the practice had become so lucrative for Congress. Congress knows that copyright owners will be willing to pay a great deal of money to see their copyright terms extended. And so Congress is quite happy to keep this gravy train going.

For this is the core of the corruption in our present system of government."Corruption" not in the sense that representatives are bribed. Rather, "corruption" in the sense that the system induces the beneficiaries of Congress's acts to raise and give money to Congress to induce it to act. There's only so much time; there's only so much Congress can do. Why not limit its actions to those things it must do--and those things that pay? Extending copyright terms pays.

If that's not obvious to you, consider the following: Say you're one of the very few lucky copyright owners whose copyright continues to make money one hundred years after it was created. The Estate of Robert Frost is a good example. Frost died in 1963. His poetry continues to be extraordinarily valuable. Thus the Robert Frost estate benefits greatly from any extension of copyright, since no publisher would pay the estate any money if the poems Frost wrote could be published by anyone for free.

So imagine the Robert Frost estate is earning $100,000 a year from three of Frost's poems. And imagine the copyright for those poems is about to expire. You sit on the board of the Robert Frost estate. Your financial adviser comes to your board meeting with a very grim report:

"Next year," the adviser announces, "our copyrights in works A, B, and C will expire. That means that after next year, we will no longer be receiving the annual royalty check of $100,000 from the publishers of those works.

"There's a proposal in Congress, however," she continues, "that could change this. A few congressmen are floating a bill to extend the terms of copyright by twenty years. That bill would be extraordinarily valuable to us. So we should hope this bill passes."

"Hope?" a fellow board member says. "Can't we be doing something about it?"

"Well, obviously, yes," the adviser responds. "We could contribute to the campaigns of a number of representatives to try to assure that they support the bill."

You hate politics. You hate contributing to campaigns. So you want to know whether this disgusting practice is worth it. "How much would we get if this extension were passed?" you ask the adviser. "How much is it worth?"

"Well," the adviser says, "if you're confident that you will continue to get at least $100,000 a year from these copyrights, and you use the 'discount rate' that we use to evaluate estate investments (6 percent), then this law would be worth $1,146,000 to the estate."

You're a bit shocked by the number, but you quickly come to the correct conclusion:

"So you're saying it would be worth it for us to pay more than $1,000,000 in campaign contributions if we were confident those contributions would assure that the bill was passed?"

"Absolutely," the adviser responds. "It is worth it to you to contribute up to the 'present value' of the income you expect from these copyrights. Which for us means over $1,000,000."

You quickly get the point--you as the member of the board and, I trust, you the reader. Each time copyrights are about to expire, every beneficiary in the position of the Robert Frost estate faces the same choice: If they can contribute to get a law passed to extend copyrights, they will benefit greatly from that extension. And so each time copyrights are about to expire, there is a massive amount of lobbying to get the copyright term extended.

Thus a congressional perpetual motion machine: So long as legislation can be bought (albeit indirectly), there will be all the incentive in the world to buy further extensions of copyright.

In the lobbying that led to the passage of the Sonny Bono Copyright Term Extension Act, this "theory" about incentives was proved real. Ten of the thirteen original sponsors of the act in the House received the maximum contribution from Disney's political action committee; in the Senate, eight of the twelve sponsors received contributions.3 The RIAA and the MPAA are estimated to have spent over $1.5 million lobbying in the 1998 election cycle. They paid out more than $200,000 in campaign contributions.4 Disney is estimated to have contributed more than $800,000 to reelection campaigns in the 1998 cycle.5

Constitutional law is not oblivious to the obvious. Or at least, it need not be. So when I was considering Eldred's complaint, this reality about the never-ending incentives to increase the copyright term was central to my thinking. In my view, a pragmatic court committed to interpreting and applying the Constitution of our framers would see that if Congress has the power to extend existing terms, then there would be no effective constitutional requirement that terms be "limited." If they could extend it once, they would extend it again and again and again.

It was also my judgment that this Supreme Court would not allow Congress to extend existing terms. As anyone close to the Supreme Court's work knows, this Court has increasingly restricted the power of Congress when it has viewed Congress's actions as exceeding the power granted to it by the Constitution. Among constitutional scholars, the most famous example of this trend was the Supreme Court's decision in 1995 to strike down a law that banned the possession of guns near schools.

Since 1937, the Supreme Court had interpreted Congress's granted powers very broadly; so, while the Constitution grants Congress the power to regulate only "commerce among the several states" (aka "interstate commerce"), the Supreme Court had interpreted that power to include the power to regulate any activity that merely affected interstate commerce.

As the economy grew, this standard increasingly meant that there was no limit to Congress's power to regulate, since just about every activity, when considered on a national scale, affects interstate commerce. A Constitution designed to limit Congress's power was instead interpreted to impose no limit.

The Supreme Court, under Chief Justice Rehnquist's command, changed that in United States v. Lopez. The government had argued that possessing guns near schools affected interstate commerce. Guns near schools increase crime, crime lowers property values, and so on. In the oral argument, the Chief Justice asked the government whether there was any activity that would not affect interstate commerce under the reasoning the government advanced. The government said there was not; if Congress says an activity affects interstate commerce, then that activity affects interstate commerce. The Supreme Court, the government said, was not in the position to second-guess Congress.

"We pause to consider the implications of the government's arguments," the Chief Justice wrote.6 If anything Congress says is interstate commerce must therefore be considered interstate commerce, then there would be no limit to Congress's power. The decision in Lopez was reaffirmed five years later in United States v. Morrison.7

If a principle were at work here, then