our history, when a work ended its commercial life, there was no
copyright-related use that would be inhibited by an exclusive right.
When a book went out of print, you could not buy it from a publisher.
-But you could still buy it from a used book store, and when a used book
-store sells it, in America, at least, there is no need to pay the copyright
-owner anything. Thus, the ordinary use of a book after its commercial
-life ended was a use that was independent of copyright law.
+But you could still buy it from a used book store, and when a used
+book store sells it, in America, at least, there is no need to pay the
+copyright owner anything. Thus, the ordinary use of a book after its
+commercial life ended was a use that was independent of copyright law.
</para>
<para>
The same was effectively true of film. Because the costs of restoring
-a film—the real economic costs, not the lawyer costs—were so high, it
-was never at all feasible to preserve or restore film. Like the remains of
-a great dinner, when it's over, it's over. Once a film passed out of its
-commercial life, it may have been archived for a bit, but that was the
-end of its life so long as the market didn't have more to offer.
+a film—the real economic costs, not the lawyer costs—were
+so high, it was never at all feasible to preserve or restore
+film. Like the remains of a great dinner, when it's over, it's
+over. Once a film passed out of its commercial life, it may have been
+archived for a bit, but that was the end of its life so long as the
+market didn't have more to offer.
</para>
<para>
In other words, though copyright has been relatively short for most
technologies is to enable the archive that Brewster Kahle dreams of.
Digital technologies now make it possible to preserve and give access
to all sorts of knowledge. Once a book goes out of print, we can now
-imagine digitizing it and making it available to everyone, forever. Once
-a film goes out of distribution, we could digitize it and make it
- available
-to everyone, forever. Digital technologies give new life to
- copyrighted
-material after it passes out of its commercial life. It is now
-possible to preserve and assure universal access to this knowledge and
-culture, whereas before it was not.
+imagine digitizing it and making it available to everyone,
+forever. Once a film goes out of distribution, we could digitize it
+and make it available to everyone, forever. Digital technologies give
+new life to copyrighted material after it passes out of its commercial
+life. It is now possible to preserve and assure universal access to
+this knowledge and culture, whereas before it was not.
</para>
<para>
<!-- PAGE BREAK 234 -->
-And now copyright law does get in the way. Every step of
- producing
-this digital archive of our culture infringes on the exclusive right of
-copyright. To digitize a book is to copy it. To do that requires
- permission
-of the copyright owner. The same with music, film, or any other
-aspect of our culture protected by copyright. The effort to make these
-things available to history, or to researchers, or to those who just want
-to explore, is now inhibited by a set of rules that were written for a
- radically
-different context.
-</para>
-<para>
-Here is the core of the harm that comes from extending terms:
-Now that technology enables us to rebuild the library of Alexandria,
-the law gets in the way. And it doesn't get in the way for any useful
-copyright purpose, for the purpose of copyright is to enable the
- commercial
-market that spreads culture. No, we are talking about culture
-after it has lived its commercial life. In this context, copyright is
- serving
-no purpose at all related to the spread of knowledge. In this
- context,
-copyright is not an engine of free expression. Copyright is a brake.
+And now copyright law does get in the way. Every step of producing
+this digital archive of our culture infringes on the exclusive right
+of copyright. To digitize a book is to copy it. To do that requires
+permission of the copyright owner. The same with music, film, or any
+other aspect of our culture protected by copyright. The effort to make
+these things available to history, or to researchers, or to those who
+just want to explore, is now inhibited by a set of rules that were
+written for a radically different context.
+</para>
+<para>
+Here is the core of the harm that comes from extending terms: Now that
+technology enables us to rebuild the library of Alexandria, the law
+gets in the way. And it doesn't get in the way for any useful
+copyright purpose, for the purpose of copyright is to enable the
+commercial market that spreads culture. No, we are talking about
+culture after it has lived its commercial life. In this context,
+copyright is serving no purpose at all related to the spread of
+knowledge. In this context, copyright is not an engine of free
+expression. Copyright is a brake.
</para>
<para>
You may well ask, "But if digital technologies lower the costs for
culture widely?"
</para>
<para>
-Maybe. Someday. But there is absolutely no evidence to suggest
-that publishers would be as complete as libraries. If Barnes & Noble
-offered to lend books from its stores for a low price, would that
- eliminate
-the need for libraries? Only if you think that the only role of a
- library
-is to serve what "the market" would demand. But if you think the
-role of a library is bigger than this—if you think its role is to archive
-culture, whether there's a demand for any particular bit of that culture
-or not—then we can't count on the commercial market to do our
- library
-work for us.
+Maybe. Someday. But there is absolutely no evidence to suggest that
+publishers would be as complete as libraries. If Barnes & Noble
+offered to lend books from its stores for a low price, would that
+eliminate the need for libraries? Only if you think that the only role
+of a library is to serve what "the market" would demand. But if you
+think the role of a library is bigger than this—if you think its
+role is to archive culture, whether there's a demand for any
+particular bit of that culture or not—then we can't count on the
+commercial market to do our library work for us.
</para>
<para>
I would be the first to agree that it should do as much as it can: We
market is not doing the job, then we should allow nonmarket forces the
<!-- PAGE BREAK 235 -->
-freedom to fill the gaps. As one researcher calculated for American
- culture,
-94 percent of the films, books, and music produced between
+freedom to fill the gaps. As one researcher calculated for American
+culture, 94 percent of the films, books, and music produced between
and 1946 is not commercially available. However much you love the
-commercial market, if access is a value, then 6 percent is a failure to
-provide that value.<footnote><para>
-<!-- f13. --> Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20
- December
-2002, available at
+commercial market, if access is a value, then 6 percent is a failure
+
to provide that value.<footnote><para>
+<!-- f13. -->
+Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20
+December 2002, available at
<ulink url="http://free-culture.cc/notes/">link #54</ulink>.
</para></footnote>
</para>
<para>
-In January 1999, we filed a lawsuit on Eric Eldred's behalf in
- federal
+In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal
district court in Washington, D.C., asking the court to declare the
Sonny Bono Copyright Term Extension Act unconstitutional. The two
-central claims that we made were (1) that extending existing terms
- violated
-the Constitution's "limited Times" requirement, and (2) that
- extending
-terms by another twenty years violated the First Amendment.
+central claims that we made were (1) that extending existing terms
+violated the Constitution's "limited Times" requirement, and (2) that
+extending terms by another twenty years violated the First Amendment.
</para>
<para>
-The district court dismissed our claims without even hearing an
- argument.
-A panel of the Court of Appeals for the D.C. Circuit also
- dismissed
-our claims, though after hearing an extensive argument. But
+The district court dismissed our claims without even hearing an
+argument. A panel of the Court of Appeals for the D.C. Circuit also
+dismissed our claims, though after hearing an extensive argument. But
that decision at least had a dissent, by one of the most conservative
judges on that court. That dissent gave our claims life.
</para>
it was simple: If Congress can extend existing terms, then there is no
"stopping point" to Congress's power under the Copyright Clause. The
power to extend existing terms means Congress is not required to grant
-terms that are "limited." Thus, Judge Sentelle argued, the court had to
-interpret the term "limited Times" to give it meaning. And the best
- interpretation,
-Judge Sentelle argued, would be to deny Congress the
+terms that are "limited." Thus, Judge Sentelle argued, the court had
+to interpret the term "limited Times" to give it meaning. And the best
+interpretation, Judge Sentelle argued, would be to deny Congress the
power to extend existing terms.
</para>
<para>
<!-- PAGE BREAK 236 -->
D.C. Circuit, Judge David Tatel. Both the most conservative and the
-most liberal judges in the D.C. Circuit believed Congress had
- overstepped
-its bounds.
+most liberal judges in the D.C. Circuit believed Congress had
+overstepped its bounds.
</para>
<para>
It was here that most expected Eldred v. Ashcroft would die, for the
briefs and preparing for argument.
</para>
<para>
-It is over a year later as I write these words. It is still astonishingly
-hard. If you know anything at all about this story, you know that we
-lost the appeal. And if you know something more than just the
- minimum,
-you probably think there was no way this case could have been
-won. After our defeat, I received literally thousands of missives by
-well-wishers and supporters, thanking me for my work on behalf of
-this noble but doomed cause. And none from this pile was more
- significant
-to me than the e-mail from my client, Eric Eldred.
+It is over a year later as I write these words. It is still
+astonishingly hard. If you know anything at all about this story, you
+know that we lost the appeal. And if you know something more than just
+the minimum, you probably think there was no way this case could have
+been won. After our defeat, I received literally thousands of missives
+by well-wishers and supporters, thanking me for my work on behalf of
+this noble but doomed cause. And none from this pile was more
+significant to me than the e-mail from my client, Eric Eldred.
</para>
<para>
But my client and these friends were wrong. This case could have
retell this story to myself, I can never escape believing that my own
mistake lost it.
</para>
+<indexterm><primary>Steward, Geoffrey</primary></indexterm>
<para>
-The mistake was made early, though it became obvious only at the
-very end. Our case had been supported from the very beginning by an
- extraordinary
-lawyer, Geoffrey Stewart, and by the law firm he had moved
-to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of heat
+The mistake was made early, though it became obvious only at the very
+end. Our case had been supported from the very beginning by an
+extraordinary lawyer, Geoffrey Stewart, and by the law firm he had
+moved to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of
+heat
<!-- PAGE BREAK 237 -->
from its copyright-protectionist clients for supporting us. They
- ignored
-this pressure (something that few law firms today would ever
+ignored this pressure (something that few law firms today would ever
do), and throughout the case, they gave it everything they could.
</para>
<indexterm><primary>Ayer, Don</primary></indexterm>
+<indexterm><primary>Bromberg, Dan</primary></indexterm>
+<indexterm><primary>Steward, Geoffrey</primary></indexterm>
<para>
There were three key lawyers on the case from Jones Day. Geoff
Stewart was the first, but then Dan Bromberg and Don Ayer became
an enumerated power had to be interpreted to assure that Congress's
powers had limits.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
The Rest were the four Justices who had strongly opposed limits on
-Congress's power. These four—Justice Stevens, Justice Souter, Justice
-Ginsburg, and Justice Breyer—had repeatedly argued that the
- Constitution
+Congress's power. These four—Justice Stevens, Justice Souter,
+Justice Ginsburg, and Justice Breyer—had repeatedly argued that
+the Constitution
<!-- PAGE BREAK 242 -->
-gives Congress broad discretion to decide how best to
- implement
-its powers. In case after case, these justices had argued that the
-Court's role should be one of deference. Though the votes of these four
+gives Congress broad discretion to decide how best to implement its
+powers. In case after case, these justices had argued that the Court's
+role should be one of deference. Though the votes of these four
justices were the votes that I personally had most consistently agreed
with, they were also the votes that we were least likely to get.
</para>
<para>
In particular, the least likely was Justice Ginsburg's. In addition to
her general view about deference to Congress (except where issues of
-gender are involved), she had been particularly deferential in the
- context
-of intellectual property protections. She and her daughter (an
- excellent
-and well-known intellectual property scholar) were cut from
+gender are involved), she had been particularly deferential in the
+context of intellectual property protections. She and her daughter (an
+excellent and well-known intellectual property scholar) were cut from
the same intellectual property cloth. We expected she would agree with
-the writings of her daughter: that Congress had the power in this
- context
-to do as it wished, even if what Congress wished made little sense.
+the writings of her daughter: that Congress had the power in this
+context to do as it wished, even if what Congress wished made little
+sense.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
-Close behind Justice Ginsburg were two justices whom we also
-viewed as unlikely allies, though possible surprises. Justice Souter
-strongly favored deference to Congress, as did Justice Breyer. But both
-were also very sensitive to free speech concerns. And as we strongly
- believed,
-there was a very important free speech argument against these
-retrospective extensions.
+Close behind Justice Ginsburg were two justices whom we also viewed as
+unlikely allies, though possible surprises. Justice Souter strongly
+favored deference to Congress, as did Justice Breyer. But both were
+also very sensitive to free speech concerns. And as we strongly
+believed, there was a very important free speech argument against
+these retrospective extensions.
</para>
<para>
The only vote we could be confident about was that of Justice
would not.
</para>
<para>
-Yet by what right did they get to choose which of the framers'
- values
-they would respect? By what right did they—the silent five—get to
-select the part of the Constitution they would enforce based on the
- values
-they thought important? We were right back to the argument that
-I said I hated at the start: I had failed to convince them that the issue
-here was important, and I had failed to recognize that however much I
-might hate a system in which the Court gets to pick the constitutional
-values that it will respect, that is the system we have.
+Yet by what right did they get to choose which of the framers' values
+they would respect? By what right did they—the silent
+five—get to select the part of the Constitution they would
+enforce based on the values they thought important? We were right back
+to the argument that I said I hated at the start: I had failed to
+convince them that the issue here was important, and I had failed to
+recognize that however much I might hate a system in which the Court
+gets to pick the constitutional values that it will respect, that is
+the system we have.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
Justices Breyer and Stevens wrote very strong dissents. Stevens's
-opinion was crafted internal to the law: He argued that the tradition of
-intellectual property law should not support this unjustified extension
-of terms. He based his argument on a parallel analysis that had
- governed
-in the context of patents (so had we). But the rest of the Court
-discounted the parallel—without explaining how the very same words
-in the Progress Clause could come to mean totally different things
- depending
-upon whether the words were about patents or copyrights.
-The Court let Justice Stevens's charge go unanswered.
+opinion was crafted internal to the law: He argued that the tradition
+of intellectual property law should not support this unjustified
+extension of terms. He based his argument on a parallel analysis that
+had governed in the context of patents (so had we). But the rest of
+the Court discounted the parallel—without explaining how the
+very same words in the Progress Clause could come to mean totally
+different things depending upon whether the words were about patents
+or copyrights. The Court let Justice Stevens's charge go unanswered.
</para>
+<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
-
<!-- PAGE BREAK 250 -->
-Justice Breyer's opinion, perhaps the best opinion he has ever
- written,
-was external to the Constitution. He argued that the term of
- copyrights
-has become so long as to be effectively unlimited. We had said
-that under the current term, a copyright gave an author 99.8 percent of
-the value of a perpetual term. Breyer said we were wrong, that the
- actual
-number was 99.9997 percent of a perpetual term. Either way, the
-point was clear: If the Constitution said a term had to be "limited," and
-the existing term was so long as to be effectively unlimited, then it was
-unconstitutional.
+Justice Breyer's opinion, perhaps the best opinion he has ever
+written, was external to the Constitution. He argued that the term of
+copyrights has become so long as to be effectively unlimited. We had
+said that under the current term, a copyright gave an author 99.8
+percent of the value of a perpetual term. Breyer said we were wrong,
+that the actual number was 99.9997 percent of a perpetual term. Either
+way, the point was clear: If the Constitution said a term had to be
+"limited," and the existing term was so long as to be effectively
+unlimited, then it was unconstitutional.
</para>
<para>
These two justices understood all the arguments we had made. But
<para>
It was first anger with the five "Conservatives." It would have been
one thing for them to have explained why the principle of Lopez didn't
-apply in this case. That wouldn't have been a very convincing
- argument,
-I don't believe, having read it made by others, and having tried
-to make it myself. But it at least would have been an act of integrity.
-These justices in particular have repeatedly said that the proper mode
-of interpreting the Constitution is "originalism"—to first understand
-the framers' text, interpreted in their context, in light of the structure
-of the Constitution. That method had produced Lopez and many other
-"originalist" rulings. Where was their "originalism" now?
+apply in this case. That wouldn't have been a very convincing
+argument, I don't believe, having read it made by others, and having
+tried to make it myself. But it at least would have been an act of
+integrity. These justices in particular have repeatedly said that the
+proper mode of interpreting the Constitution is "originalism"—to
+first understand the framers' text, interpreted in their context, in
+light of the structure of the Constitution. That method had produced
+Lopez and many other "originalist" rulings. Where was their
+"originalism" now?
</para>
<para>
Here, they had joined an opinion that never once tried to explain
<!-- PAGE BREAK 251 -->
power. And they joined an opinion that didn't even try to explain why
this grant of power could be unlimited, whereas the Commerce Clause
-would be limited. In short, they had joined an opinion that did not
- apply
-to, and was inconsistent with, their own method for interpreting
-the Constitution. This opinion may well have yielded a result that they
-liked. It did not produce a reason that was consistent with their own
-principles.
+would be limited. In short, they had joined an opinion that did not
+apply to, and was inconsistent with, their own method for interpreting
+the Constitution. This opinion may well have yielded a result that
+they liked. It did not produce a reason that was consistent with their
+own principles.
</para>
<para>
My anger with the Conservatives quickly yielded to anger with
</para>
<para>
As I read back over the transcript from that argument in October, I
-can see a hundred places where the answers could have taken the
- conversation
-in different directions, where the truth about the harm that
-this unchecked power will cause could have been made clear to this
-Court. Justice Kennedy in good faith wanted to be shown. I, idiotically,
-corrected his question. Justice Souter in good faith wanted to be shown
-the First Amendment harms. I, like a math teacher, reframed the
- question
-to make the logical point. I had shown them how they could strike
-this law of Congress if they wanted to. There were a hundred places
-where I could have helped them want to, yet my stubbornness, my
- refusal
-to give in, stopped me. I have stood before hundreds of audiences
-trying to persuade; I have used passion in that effort to persuade; but I
+can see a hundred places where the answers could have taken the
+conversation in different directions, where the truth about the harm
+that this unchecked power will cause could have been made clear to
+this Court. Justice Kennedy in good faith wanted to be shown. I,
+idiotically, corrected his question. Justice Souter in good faith
+wanted to be shown the First Amendment harms. I, like a math teacher,
+reframed the question to make the logical point. I had shown them how
+they could strike this law of Congress if they wanted to. There were a
+hundred places where I could have helped them want to, yet my
+stubbornness, my refusal to give in, stopped me. I have stood before
+hundreds of audiences trying to persuade; I have used passion in that
+effort to persuade; but I
<!-- PAGE BREAK 252 -->
refused to stand before this audience and try to persuade with the
- passion
-I had used elsewhere. It was not the basis on which a court should
-decide the issue.
+passion I had used elsewhere. It was not the basis on which a court
+should decide the issue.
</para>
<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
</para>
<para>
And even if I couldn't, then that doesn't excuse what happened in
-January. For at the start of this case, one of America's leading
- intellectual
-property professors stated publicly that my bringing this case was
-a mistake. "The Court is not ready," Peter Jaszi said; this issue should
-not be raised until it is.
+January. For at the start of this case, one of America's leading
+intellectual property professors stated publicly that my bringing this
+case was a mistake. "The Court is not ready," Peter Jaszi said; this
+issue should not be raised until it is.
</para>
<para>
After the argument and after the decision, Peter said to me, and
copyright was a good idea. We had won that battle over ideas. Where
<!-- PAGE BREAK 253 -->
-the decision was praised, it was praised by papers that had been
- skeptical
-of the Court's activism in other cases. Deference was a good thing,
-even if it left standing a silly law. But where the decision was attacked,
-it was attacked because it left standing a silly and harmful law. The New
-York Times wrote in its editorial,
+the decision was praised, it was praised by papers that had been
+skeptical of the Court's activism in other cases. Deference was a good
+thing, even if it left standing a silly law. But where the decision
+was attacked, it was attacked because it left standing a silly and
+harmful law. The New York Times wrote in its editorial,
</para>
<blockquote>
<para>
In effect, the Supreme Court's decision makes it likely that we are
seeing the beginning of the end of public domain and the birth of
-copyright perpetuity. The public domain has been a grand
- experiment,
-one that should not be allowed to die. The ability to draw
-freely on the entire creative output of humanity is one of the
- reasons
-we live in a time of such fruitful creative ferment.
+copyright perpetuity. The public domain has been a grand experiment,
+one that should not be allowed to die. The ability to draw freely on
+the entire creative output of humanity is one of the reasons we live
+in a time of such fruitful creative ferment.
</para>
</blockquote>
<para>
-The best responses were in the cartoons. There was a gaggle of
- hilarious
-images—of Mickey in jail and the like. The best, from my view
-of the case, was Ruben Bolling's, reproduced on the next page. The
-"powerful and wealthy" line is a bit unfair. But the punch in the face felt
-exactly like that.
+The best responses were in the cartoons. There was a gaggle of
+hilarious images—of Mickey in jail and the like. The best, from
+my view of the case, was Ruben Bolling's, reproduced on the next
+page. The "powerful and wealthy" line is a bit unfair. But the punch
+in the face felt exactly like that.
</para>
<para>
The image that will always stick in my head is that evoked by the
quote from The New York Times. That "grand experiment" we call the
"public domain" is over? When I can make light of it, I think, "Honey,
-I shrunk the Constitution." But I can rarely make light of it. We had in
-our Constitution a commitment to free culture. In the case that I
- fathered,
-the Supreme Court effectively renounced that commitment. A
+I shrunk the Constitution." But I can rarely make light of it. We had
+in our Constitution a commitment to free culture. In the case that I
+fathered, the Supreme Court effectively renounced that commitment. A
better lawyer would have made them see differently.
</para>
<!-- PAGE BREAK 254 -->
Congress allows for those works where its worth is at least $1. But for
everything else, let the content go.
</para>
+<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
-The reaction to this idea was amazingly strong. Steve Forbes
- endorsed
+The reaction to this idea was amazingly strong. Steve Forbes endorsed
it in an editorial. I received an avalanche of e-mail and letters
-expressing support. When you focus the issue on lost creativity, people
-can see the copyright system makes no sense. As a good Republican
-might say, here government regulation is simply getting in the way of
-innovation and creativity. And as a good Democrat might say, here the
-government is blocking access and the spread of knowledge for no
-good reason. Indeed, there is no real difference between Democrats
-and Republicans on this issue. Anyone can recognize the stupid harm
-of the present system.
+expressing support. When you focus the issue on lost creativity,
+people can see the copyright system makes no sense. As a good
+Republican might say, here government regulation is simply getting in
+the way of innovation and creativity. And as a good Democrat might
+say, here the government is blocking access and the spread of
+knowledge for no good reason. Indeed, there is no real difference
+between Democrats and Republicans on this issue. Anyone can recognize
+the stupid harm of the present system.
</para>
<para>
Indeed, many recognized the obvious benefit of the registration
work, commercial work that no longer had a commercial life, into the
public domain within fifty years. What do you think?
</para>
+<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
When Steve Forbes endorsed the idea, some in Washington began to pay
attention. Many people contacted me pointing to representatives who
projects / text-free-culture-lessig.git / commitdiff