So I’ve got to go get onto a plane to go to my least favorite city (DC). My inbox is filling with kind emails from friends. Also with a few of a different flavor. It’s my nature to identify most closely with those of the different flavor. David Gossett at the law firm of Mayer Brown wrote Declan, “Larry lost Eldred, 7-2.” Yes, no matter what is said, that is how I will always view this case. The constitutional question is not even close. To have failed to get the Court to see it is my failing.

It has often been said that movements gain by losing in the Supreme Court. Some feminists say it would have been better to lose Roe, because that would have built a movement in response. I have often wondered whether it would ever be possible to lose a case and yet smell victory in the defeat. I’m not yet convinced it’s possible. But if there is any good that might come from my loss, let it be the anger and passion that now gets to swell against the unchecked power that the Supreme Court has said Congress has. When the Free Software Foundation, Intel, Phillis Schlafly, Milton Friedman, Ronald Coase, Kenneth Arrow, Brewster Kahle, and hundreds of creators and innovators all stand on one side saying, “this makes no sense,” then it makes no sense. Let that be enough to move people to do something about it. Our courts will not.

I will always be grateful to Eric Eldred, and our other plaintiffs, for putting his faith in this case. I will always regret not being able to meet that faith with the success it deserves.

What the Framers of our constitution did is not enough. We must do more.

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142 Responses to losing

  1. Phillip Winn says:

    We will do more, Mr. Lessig. Thank you for your efforts so far.

  2. Bill Sawyer says:

    Thanks. Thank you, Larry. When I hear people talk about IP, your name comes up. Your name comes up because you are the voice of us, the people who read and listen and learn from the works you fought for us to have freely. You were right. But we do live in an era in our country where what is right will often come in second to protecting our economy and national security, ad infinitum. Hang in there. We need people like Larry Lessig and Robin Gross and Linus Torvalds, et. al. One day, your for will catch on.


  3. Bill Sawyer says:

    …your goals rather. I can type. 😉


  4. Luke says:

    7-2 is a lot better than 9-0. An excellent effort. We’ll try harder now.

  5. Aaron Swartz says:

    If picking sides, it would seem the court is on ours. They strongly imply that the law is “debatable and unwise”, if not unconstitutional.

  6. Chad says:

    At least Breyer got it, and Stevens was close. I’m shocked that the original intent of the Framers didn’t pull Scalia and Thomas in too.

    You’ve fought a good fight, and we all live to battle another day.


  7. Jeff White says:

    We have now lost the battle, but the war has just begun. From reading the majority opinion, I never got the idea that “Larry lost Eldred.” I believe that the majority was simply facing an argument that had never been conceived before and was not entirely comfortable with going down the road we wanted at this time. While the textual arguments for the Copyright Clause’s limitations are strong, I don’t think the Court knew how to square them with history and exactly what accepting them would mean for the future of copyright law. The task now is to simply push forward. Since Lessig has consistently used parallels to the Interstate Commerce Clause, it bears noting that Lopez was a decision that was a long time in the making. Maybe we have lost Eldred I, and we might even lose Eldred II (which, of course, will occur in another 20 years). But as long as we keep the fight alive, the war is never over. It just changes form.

  8. I just sent this to Larry via e-mail, but wanted to post it publicly as well:

    Larry: Someone just told me that I should look at your blog. I owe you an apology; I really didn’t mean to imply that you lost the case. I think you did a fabulous job all along with it, and continue to believe that you should have won. That short-hand was the quickest way to tell Declan what I just learned had happened — and when I sent it I hadn’t realized he was going to circulate my e-mail. (He sent me a message saying he was going to, and I guess I could have instantly replied asking him not to — but I didn’t think through the implications of my one-liner.) In any event, my apologies if you took offense at the politech circulation.


  9. I’m half-way through the majority and I keep being suprised as they continue to fall back on “parity” with the EU, as if that legislative intent has any bearing on the constitutionality of the act. I wouldn’t call 7-2 “good,” although of course it is better than 9-0. I think it says that we’re going to the wrong source. With the court paticularilty worried at the present time about stepping on legislative toes (especially after past highly publicized decisions), they seen reluctant to consider interpretations that grant rights to the consumer at the expense of the big businesses who would quickly start a highly public media smear campaign. This defferance to the legislature implies that a) the legislature must be educated or changed, and; b) we need to go to the source — the people. “Free Mickey” is a great slogan, we need more like that, and we need more mainstream press, advertisements, and the like that emphasise the sheer lunacy of the current copyright scheme. Happy Birthday isn’t free? People will think about that.

  10. John Juergensen says:

    Indeed, Larry, thank you. Like so many others, I did not appreciate or understand the issues behind and consequences of the Sonny Bono act. And in ignorance, did nothing. But now, understanding what is fundamentally at stake, I am so *incredibly* motivated to take this to the next level. For that awakening, I am grateful to you and all the others who’ve led the battle so far. As with so many examples in U.S. history, the initial skirmish may have been lost, but the war is just beginning. Without you, though, that skirmish might never have taken place. That’s really something to be proud of.

  11. Dave Winer says:

    Hang in there Larry. You got through to a lot of new people with Eldred v Ashcroft. The Supreme Court won’t save us when it’s a matter of money, but they will (I believe) when it’s a matter of freedom.

  12. Frank Tobin says:

    Larry, please don’t despair. While you may have lost the case, you won me. You’ve won many others. Step out of being a lawyer for a moment and realize that SCOTUS is not the final judge. The future will grant you your peace; we’ll make you proud.

  13. Kevin Werbach says:

    Even if the movement is not better off losing the case, it’s better off from your having filed it and argued it. We’re talking about a paradigm shift here, and those don’t come easily.

  14. The hypocrisy of Disney et al stinks to high heaven–they make millions from Alice in Wonderland, Rudyard Kipling, etc., and then try to turn around and deny others the same opportunity? I did not see the possibility of defeat, and blame myself for complacency. We’ve got to fight it in Congress. It will be a long slog but as the implications of the decision sink in, even Congresspeople will act. Thanks for your efforts. You are needed more than ever now. The courts are simply NOT the way to go these days–the legislature is.

  15. Brandon Fesler says:

    I just posted my thoughts on Slashdot. This ruling is equivalent to the Great Library Fire of Alexandria — many one-of-a-kind films, books, and recordings are falling to dust and being lost forever, and nobody can do anything about it for fear of lawsuit.

    Larry, I know you must feel terrible right now, but the fight has just begun. These people CANNOT stop change; it will happen.

    We will proceed to make sure the change happens now, bloodlessly, because that is our mandate by history. We are living in the frontier, my friends. We must prevail, because the alternative is unthinkable.

  16. Karl Davis says:

    Thank you for all your work, Professor Lessig.

    You’ve given us something to fight for, and the war is far from over.

  17. Max Hyre says:

    Dear Professor Lessig:

    David Gossett may write “Larry lost Eldred”, but
    he’s wrong. As you observe, “[t]he constitutional
    question is not even close”, and the fact that seven of the
    Justices cannot see it is due to their own blinders, not to
    any failing of yours, nor of the amici, nor those at
    Openlaw, nor
    the EFF, nor any of the rest on the
    proud list of combatants for the right.

    I’m all too aware of the pain inflicted by self-doubt, but you
    must recognize the opposing, informed opinions of the tens (hundreds?) of
    thousands who followed your fight with the closest scrutiny. None of
    us believe you failed—the Supreme Court has failed the people, who
    must now use the Legislative branch to rebalance the law.

    Thank you for the sacrifices you, your family, and your friends
    have made on my behalf. I, for one, will now bring the fight to the
    political arena, to see that our common objective will be achieved.

    Best wishes,

    Max Hyre

  18. Simeon Scott says:

    DMCA + Paladium + this + the rest

    o/’ I’m gonna wait till they knock on my door
    o/’ I’m gonna wait till they dig up the floor boards
    o/’ Poland in Disneyland, wet dream control
    o/’ Super computer, the new contraband
    o/’ I’m gonna wait, we must make a stand
    o/’ Come with me now, stand with me now one more time
    — Midnight Oil – Tin Legs and Tin Mines

  19. Brandon Fesler says:

    Hear, hear, Max.

    We must win this fight — we WILL win this fight. I was angry about this subject before, but not I’m REALLY ticked off.

    Hell, some of Sherlock Holmes is still copyrighted. When’s the last time you took a horse and buggy for a taxi every day?!?

  20. lux says:

    I had the privilege of watching your argument in Eldred. Just wanted to say you have my thanks and gratitude for fighting the good fight for us all.

  21. Paul Jones says:

    The feminists are somewhat right. But more importantly look at how the
    story is being covered. Everywhere it’s about corporate influence and
    takings. For once it’s not about protecting artists, but about misuse of
    power and influence. The rhetoric of the AP and Reuters articles are
    nothing like what they would have been 2 years ago.
    BTW no one thinks “Larry lost Eldred” it’s been a funking wonder that it’s
    been kept alive and even more kept interest and built a strong public
    You are doing a great service to us all — and everyone (except perhaps
    Rosen — I think Valenti is enjoying a challenge) is glad, delighted, to work with you and knows more and more how important the work is.

  22. Max Clark says:

    Thank you for everything. This is not defeat. More people know about, and are beginning to understand the abuse of Copyright now than ever before. The war is not over, it is just beginning.

  23. JimDinMaine says:

    It is a sad day.

    What is the next step? Who is working on the specifics? Who can I contact?

    Never give up!

  24. Ken Hahn says:

    Thank you for all your hard work.

    I am sorry this is the outcome. I am indeed struck with a sense of grief for the future that may come if this is not turned around.
    You gave it your best, nothing more can be asked.

    I think you are on the right track with the creative commons.

    Thanks you again,
    One of many individuals that were pulling for you and your cause.

  25. Eliot Williams says:

    It sounds like you are beating yourself up a little too much. I think you may have gotten too attached to your position. If it makes you feel any better, I never thought you would get the cert. petition granted, much less win two justices.

  26. Ronni Rhodes says:

    I’m deeply disappointed in the Supreme Court verdict and
    have to agree that the unchecked powers of Congress regarding copyright are too omnipotent. Your efforts, however, have not gone unnoticed by those of us offended by the power of the media, and I appreciate your zeal and dedication to this worthy fight.

  27. Gonzalo Porcel says:

    While I am profoundly saddened by the short-sighted decision of today, I and many others will not let freedom and culture be locked away under key.

    I thank you for your work, your passion, your insightfulness. Know that your voice has resonated far and wide and that you are a light for many of us at this darkest hour.

    Get some sleep, take a break, a walk by the ocean if you can and let your spirit rest.

    Someone who has only met you through your writing but considers himself a humble friend.

  28. lcr says:

    The utility of a corporation is its ability to adapt rapidly to change. The driving force behind this adaptation is the degree of a corporation’s exposure to the threat of loss or liquidation. This separates it from government, which is usually percieved as adapting at a slower pace.

    If corporations are seeking and receiving increased protection from the correcting influence of the market, then they are casting doubt on their reason for existence. If they cannot survive in a free-market without heavy governmental intervention one area, it casts doubt on the wisdom of granting them the freedom from government intervention they seek in other areas. If they follow their current line to it’s logical conclusion, there is little need for a free market, only a market regulated to produce maximum revenue for monopolies, olgiopolies, and their controlling interests. That trend casts serious doubt upon the possibility of “free” markets to continue without self-destructing.

    At best this will result in a limited but livable environment dominated by a creeping fascism. At worst it will lead to corporations that believe they have a right to guaranteed markets allocated to them by governmental action and using increasingly totalitarian measures to secure them. Or it will produce a violent populist counter-reaction that will dissolve any of the benefits a proper free-market can convey in exchange for the gray but predictable security of a new command economy.

  29. “For when the One Great Scorer comes to mark beside
    your name, He marks not that you won nor lost,
    but how you played the game.” (Grantland Rice)

  30. Anatoly Vorobey says:

    Dear Professor Lessig,

    Thank you for all your efforts. They have not been in vain.

    This battle is lost, but the war is far from over.

  31. charlie says:

    A general that loses a battle but still has a fantastic backup plan for resistance–Creative Commons–is still an excellent general and can still win the war.

    So, to borrow from Cory Doctorow’s Creative Commons licensed text, we may still see a Bitchun Society where the people oust the corporations.

  32. bvw says:

    The golden coin of humility is bought dearly.

    This majority ruling is built on the slender weak reed, the minoroty opinions are stronger.

    I also fear the reed that this was built on. It burdens Congress with too much authority. Both the terms
    “general welfare” and “limited times” must have meaning.

  33. Dav says:

    If we can’t build on the past, let’s hyper-create the future. Thanks for inspiration, and fighting the fight.

  34. Larry,

    Your writings and your arguments have brought yet another beacon of light to the conflict between corporate desires and liberty. There will be more battles. SCOTUS has delivered a decision, but the court of public opinion has only begun to hear the arguments.


  35. You know, it takes great character to go up against the Supreme Court, lose, and then keep going and posting to your weblog no less. Just remember: life is a process, not an event. Keep fighting for us. You have my utmost respect.

  36. Reid Sutherland says:

    I’m not very great at posting comments. But something comes to mind whenever I see IP, copyright, or human rights battles. So here goes (it’s a bit cheesey, nothing profound):

    I remember in the movie “A Bug’s Life”, the grasshoppers kept ordering the lowly ants around. One ant in particular figured out that because of sheer amount of ants to grasshoppers, they could fight the grasshoppers and win. Well the grasshoppers also knew this, and made sure to be more and more fierce each time they engaged this ants. Well one day, the single ant was able to rally all the other ants together to fight the grasshoppers. Well, they fought, and they won.

    I guess I think of us, the citizens, as ants. And government, evil big business, etc., as the grasshoppers. One day when they’re are enough of us, we will all fight together and win.

  37. Larry, thanks for taking up this probably unwinnable (for the moment) battle, and I hope you can take heart from the fact that many of us who are out here in the trenches creating stuff (often free stuff, and for the past few thousand years, almost exclusively derivative stuff) are grateful for your effort.

    I’d like to reply to your comment, “We must do more.”

    I’m still hopeful that the war (which I take to be against the government’s erosion of basic freedoms, and intellectual freedom in particular) can be won through other avenues. Perhaps there’s little we can do if Disney wants to protect Mickey, and both Congress and the courts want to help them. That said, if the original patrons of Disney had had advance warning about these kinds of abuses, we can optimistically imagine they would have had the foresight and decency to find other sources of entertainment, and we wouldn’t have to live in this world. Perhaps they would have recognized that the price for that mouse and those movies was crushingly high.

    If the majority of creators are indeed on the same side of the fence on this issue, then there should be opportunities to be far-sighted about this now. I don’t expect the next big bestseller to come stamped with “we cede this book to the public domain as of 2023.” But if a smaller publisher did that, I’d buy their books and read them. And I’d send my own next book to that publisher first.

  38. Denise Goodson says:

    Mr. Lessig, your efforts were indeed worthy, if for no other reason bringing the issue to the light of public scrutiny, where none would have fallen otherwise.

    The Court majority took the easy route of ruling on the letter of the arguments involved rather than dealing with the larger issues at hand. That you had dissention (and such good, lucid dissents), showed that your arguments did get across.

    As an attorney, it must be nearly impossible not to think in terms of winning vs. losing, considering the nature of the system.

    However, this case has put you at the forefront of the issue in the legal world, either way. You do and will have an influence over how things proceed in the future. You will, should you choose, be involved in future challenges to this law, and certainly invovled in future fights against further extensions of copyright.

    Whether it seems so currently, know that you did well.

  39. Mimi Ito says:

    Was very sorry to hear the news on npr on my way in to work. I know this is small consolation, but here is one person who’s disappointment at the decision is leading to a stronger sense of mobilization. Larry, one major accomplishment is that you have pushed this into general public consciousness and debate.

  40. Eric Janssen says:

    Losing is losing but the good from this is public awareness. Public awareness does help nurture movements and those movements can influence congress to change the laws. While I doubt congress would ever reverse the existing law it will be much, much more difficult for them now to continue extending the copyright limits.

    If that’s a silver lining then it’s not a very satisfying one but it is a potential result of this entire ordeal. Who knows, maybe congress will actually decide to do the right thing regarding IP in the future. Great work!

  41. Erich Schwarz says:

    This is a bad day, and it’s a short-term win for what many of us think is the wrong side.

    It’s hard to be cheerful about this (duh!) but please try, because certainly somebody like yourself who has spent years of his life fighting this thing legally should be basically cheerful. You’re responsible for being good, not for being omnipotent. And the next round of political struggle will necessarily go more easily because this one was fought out.

  42. Greg Greene says:

    Ditto what Dave Winer and Kevin Werbach wrote. This will take a paradigm shift. That’s a long-term project. Losing one case — no matter how much that disappoints us — is just a minor setback.

    Hearty praise to Eric Eldred, to you, and to the rest of your legal team for all your hard work.

  43. Nathanael Nerode says:

    Congratulations on making the case so clearly and strongly. This is, of course, the Dred Scott (sp?) decision of free speech issues, and your name will be remembered with honor.

    It’s not your fault that the Supreme Court didn’t respect the Consistution. It didn’t respect the right to vote, either (Bush v. Gore). It didn’t respect legislative intent or the plain meaning of words (in the ADA cases). The only conclusion I can come to is that the majority of the U.S. Supreme Court are not qualified to be judges, and deserve impeachment. Unfortunately, it won’t happen.

    I see several things happening. One is the civil disobedience movement. Putting on the Internet ‘copyrighted’ works which are really in the public domain will grow more and more common, and more people will be honest and upfront about the fact that this *is* civil disobedience, and it is something to be proud about, not something to be ashamed about.

    Another is the development of international courts. I wonder how long it will take before a country can be sued in an international court for violating its own Consistution. Once it happens, this case belongs there.

    Finally, the disaffection of the people of the United States with antidemocratic government is growing. Look — we now have a President who lost the election — a Senate where well over half the population is represented by less than 10 senators out of 50 — and a House so heavily gerrymandered that it has almost no contested elections, and its makeup is nowhere close to representive of the people. As long as this is the case, we can expect little from the legislature or the executive.

    But this is not sustainable in the long run. People are refusing to answer polls, making gerrymandering much harder. The “corporatocracy” is being recognized, and consciously voted against, by more and more people every year. Eventually we will elect a new government which will reform the Supreme Court and enact a new Statute of Monopolies. I just don’t know when.

  44. The justices may have failed to see the point but hundreds of thousands of others have and are “doing more”. Your case persuaded me and many more people to lisence our stuff under a creative commons lisence, to release our ideas, and share our knowledge.

  45. ry rivard says:

    What sucks is that it isn’t just your loss, it’s everyone’s.

    But your efforts have made the trial possible and the loss lighter. We can now suffer because you’ve told us what we suffer, and that makes it all less sufferable.

  46. Max Kennerly says:

    Professor Lessig,

    You see this as a personal failure because you have too much faith in the wisdom of the law; the law is not reason free from passion, it is the body of codes men create to restrain one another. Three people, ordinary men like you and I, did not vote the way they should have. Nothing more has happened today.

    As someone who is just now applying to law school, I want to thank you for being an inspiration to me and the many others like me. Private interest and greed prevailed over public good and reason this time; then again, such was the case in every great political advance of the past 150 years, from the income tax, to the New Deal, to desegregation. They eventually succeeded despite the Supreme Court. So will we.

  47. Aaron Murray says:

    Thank you for your valiant effort, Mr. Lessig. This is not a total loss. The Court has just thrown the ball back into the hands of Congress, where the People have more sway. The war is far from over. If Congress can extend copy right to their liking, then they can chop it back down to size to the liking of the People.

    Again, thank you for your dedication. It has not gone unnoticed or unappreciated.

    – Aaron

  48. Dear Professor Lessig

    Much more appropriate is �Larry started Eldred�, for it was your continuous effort, leading this case, that brought the situation, the fight and the implications to the forefront of our consciousness. Of course, as you say, we should do more, but I am sure that this decision will certainly mobilize much more people. We take our rights for granted, and only when confronted by events such as this 7-2 we react, and open our collective eyes.
    Thank you, Professor Lessig, for opening our eyes, doing it so well and so thoroughly. We will do more.

  49. Evan Hunt says:

    I agree with everyone who says you shouldn’t despair–you did great work, and if nothing else, you’ve helped planted the seeds for a future generation to finish the task.

    Worst-case scenario: It’s only 15 years until the Bono act expires. A long time, but not a lifetime. 15 years ago no one but Richard Stallman was talking about copyright as a threat to freedom; now there are masses of us who understand the problem. In 15 more years, think how many more people will have tuned in to the issue! And a lot of them will be voters, and Congress will know it. Disney’s not going to find it so easy next time around.

    So let’s just keep fighting the fight. Victory usually goes to those with the long view.

    Meantime, I’d also like to suggest another line of attack. So Congress officially has the authority to protect Mickey Mouse and the other 2% of contemporary copyrights that still have commercial value. Could Congress also allow the copyrights to lapse on anything that hasn’t been in print for, say, 20 years? Can we lobby for such a change to the law? 98% of a loaf is better than none…

  50. crowbarcam says:

    Prof. Lessig,

    Don’t beat yourself up over this. You didn’t fail. It was 7 justices who failed. And even though they didn’t get the message, I did, and a lot of my friends did as well. Thank you for your efforts in pulling this case together and getting it out there for all to see.

    So, go punch something (preferably not a justice, because given the opportunity, we will be sending you back to deal with them again! 🙂 ), have a beer, take a breather, take a nap and when you’ve had a little down time, we’ll all get back to work for the next big battle. This was just our Alamo. It’s a tragic loss, but it’s the kind of tragic loss that gets people pumped to do more.

    Thank you again for your hard work,

  51. Nathanael Nerode says:

    …and you will be going back, probably. Someone has to defeat the ‘restoration’ provisions of the URAA, in Golan v. Ashcroft.

  52. Thanks to your efforts, Larry, the public has taken notice of the true worth of the public domain. Never again will Congress dare to make such a massive gift of public resources to corporate America. Though I don’t for a minute think Congress will turn on its benefactors and repeal the extension, nor that the IRS will consider it to be a taxable event, I wonder . . . how about a Constitutional Amendment that sets a limit on “limited times”? Hmmmm.

  53. Mary Minow says:

    I can’t believe what an outrage this is! Yes! The passions stirred up, and the strange bedfellows (Schlafley and Kahle!) created will lead to a new consciousness and we’ll get the law repealed by Congress. (well the next one) We’ll get people dedicating their works, and using new ways to create and share.
    You did a great job, and we appreciate it.

  54. Simeon Scott says:

    o/’ The word is about there’s something evolving
    o/’ What ever may come the world keeps revolving
    o/’ They say the next big thing is here
    o/’ That the revolution’s near
    o/’ But to me it seems quite clear
    o/’ That it’s all just a little bit of history repeating
    — Propellerheads – History Repeating

  55. Anonymous says:

    Anyone else interested in starting a organization to promote and support civil disobedience actions regarding ‘extended’ copyrights? Something to think about.

  56. Amanda Smith says:

    I’m so sorry.


    Justice is sweet and musical; but injustice is harsh and discordant.
    �Henry David Thoreau

  57. Larry,

    A heartfelt ‘thank you’ for helping to bring this issue to the bright light of day, and doing your level best within the letter of the law to create change. You tried, and did your best; that’s what matters most.

    An alternate view: Failure is incidental to the process of change; in fact, failure is necessary to achieve optimal change in organized, systemic environments. Thus, this ‘failure’ can be viewed as a necessary step to change – for the better – that we all know will eventually occur.

    It has been (your) initial effort – springing from passionate belief, based on studied intuition of what the contitution intends – that has provided a stimulus to change in copyright.

    Thus – idle flattery aside – all citizens owe you and your cause a debt. We can repay that debt through further, conscious diligence as regard our given rights in this matter.

    There’s an old Japanese acronym”
    “Fall down seven times, get up eight” – anonymous

    The above acronym reflects the determination inherent in the cause to change copyright. From your effort, we’ll see an intensification of the effort to change copyright law for the benefit of the greater good – a good that will untimately end with what you and those on your side have argued for all along.

    You have done good work…I encourage you to keep it up…

  58. I started my own site because of Mr. Eldred’s case.

    It’s not over.

  59. Giles Hoover says:

    Breathe deep and reflect on the “victory of awareness.” Thank you for your work — and your continued work on the next step.

    Mr. Moynihan comments (twice…;) that he’s started his own site as a result of this case; that’s probably true of more people that you might think. The Internet community is just beginning to find its voice and presence. Thanks to people like you, this voice will grow and strengthen.

  60. I think it is possible to lose a case and yet smell victory in the defeat. The many comments here are more than a tribute. They are but a small sampling of the support and appreciation that you have. In any event, you didn’t “lose” the case. The case was made, but the argument rejected, because it didn’t fit the mindset of the 7 judges in the majority. But mindsets change, and judges get replaced, and the battles go on. And the War sometimes ends in a surprising and (now) unimaginable way. I was never hopeful that the Supreme Court would decide Eldred the right way, but I do believe that more people will understand what is going on and that the law will start to shift in a direction that treats intellectual property not just as an asset to the grantee of the right, but also as an asset that has public value. And if it has public value then at some point the public interest is going to get protection too.

  61. Josh Humphries says:

    Thank you so much Larry. You did your best. For that, we can never repay you. Today is a dark day, but eventually, we WILL overcome!

  62. Brad Patrick says:

    Prof. Lessig:

    You care. Mr. Eldred and others care. Because you care, others have come to care. Because of this Court’s failure to check Congress, still others will come to care. The battle will continue. We will do more.

    “Nothing in the world can take the place of persistence. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent.” – Calvin Coolidge

  63. AKMA says:

    Prof. Lessig,

    Many thanks for taking up this case and arguing it with such vigor and insight. No apologies permitted–you’ve done us all a great favor, and we are not so ungracious as to hold you responsible for others’ lack of insight.

    Please keep up the fight on your front, and (as one who’s working at this from another angle) please use your prominence and influence to encourage and support as many of the constructive responses of resistance as you can. Remember that if the Supreme Court found your case dubious, the rest of us are having a terrible time convincing bosses, VCs, grant committees, partners, colleagues, loan officers, benefactors, and all the rest. We will win this struggle not principally with one decisive blow–great and strong though your case may be–but with hundreds of compelling demonstrations that unlimited-term copyright actually stifles the public interest, harms commerce, and undermines the general welfare. Help us make our case on the ground, and we’ll help you make your case in Washington.

  64. Read between the lines of this statement from the majority opinion:

    In sum, we find that the CTEA is a rational enactment;
    we are not at liberty to second-guess congressional deter-
    minations and policy judgments of this order, however
    debatable or arguably unwise they may be.

    In other words, the law is stupid, but constitutional. I also read between the lines of the angry words directed at the dissent to detect fear and uncertainty on the majority’s part. They aren’t entirely happy with their decision, so they make up for it with angry posturing.

    Yes, I would have pursued the case a little differently. I would have emphasized copyright clause balancing more, and first amendment balancing less. I would not have abandoned Prof. Patry’s argument that the CTEA provides nothing “to authors”. But I don’t see how anyone could have done better than Larry did. Ignorance of the importance of the public domain in literary expression has now infected even the Supreme Court. Until this court, or a subsequent one, clears its mind of this prejudice against an important safeguard of human intellectual freedom, the copyright interests will win in the courts as readily as in Congress.

  65. Prof. Lessig,

    Thank you for the great effort – the real result here wasn’t the ruling but instead the added level of knowledge about the harms of current system. After this ruling it’s painfully clear that the fight against ever widening copyright has to be done in international level. Hopefully that process starts now.

    Ville Oksanen
    Electronic Frontier Finland

  66. Rob Woodard says:

    Larry, no need to hang your head. You presented the case well. The problem was that the justices were more interested in interpreting the Constitution literally than looking outward at the future. Right there in black & white the majority opinion says (I paraphrase) “the plaintiffs contention that the CTEA represents the next stage in an open-ended extension of copyright terms is not supportable. We are not faced with a situation where terms have been extended over and over again.” So we must wait until the terms get extended again, then we can go back to them and ask them to check the power of the Congress. They read the law and the Constitution literally, and in that light the case had to be decided the way it was.

    Really, our problem was never with the Supreme Court; it just represented the easiest way to address the issues. What really needs to happen is we need to take back our government from the monied interests that control it; and I’m afraid that isn’t going to happen anytime soon.

  67. Anonymous says:

    Thank you for fighting. I’m very grateful for what you did. Even those two dissenting opinions are a victory, a small one. Thank you.

  68. Tim Hare says:

    Someone suggested copying and distributing copyrighted works as an act of civil disobedience. I don’t think I can condone that idea, as long as a copyright is legally held, but I do believe that the content owners have, through this case, created a situation where this will happen more, rather than less, often. Their enforcement and technology costs will constantly increase in an escalating war against the “pirates”. We saw this long ago with computer game copyrights. The ruling will not stop illegal copying, it will however possibly cause people to think twice before using a copyrighted item in a “fair use” way.

  69. JD Lasica says:

    A travesty of a ruling, which will have reverberations for decades to come. Let’s not forget this is the same court that was capable of installing a president by judicial fiat.

    Now the challenge before us is to take this cause out of the courts and into the public arena. We need to lay out the issues to the body politic, and then gain redress once the public understands what is at stake — and what rights they have just lost.

  70. Sebastian Morgan-Lynch says:

    Thank you.

  71. Jeppe says:

    Being a sore loser is sometimes the right thing. This is one of those times. I am curious about whether this ruling has any sort of global consequence aside from the US being the most powerful/influential nation in the world.

  72. Jeppe: yes of course it does. US trade negotiators will continue to press other countries to extend copyright laws to the same length as in the US, in the name of “harmonisation”. If the law had been overturned, they would have to have stopped doing this.

  73. mojo says:

    Well, a nice effort, Larry. Too bad the majority (it seems to me) got scared at the idea of declaring openly just how badly congress has overstepped it’s grant of power, and for how long. They seem to have quailed at the vision of the 1976 extension going down as well. That’s my reading, anyway.

    For myself, I’m more inclined to agree with Steven’s dissent. The main purpose of the Patent/Copyright clause is to enliven the public domain, and only secondarily to reward authors and inventors. It’s the old MEANS vs. ENDS quandry….

  74. bob young says:

    Larry, I’m not sure it is as dark a day as all that.

    Sure it would be better if the justices had seen it your way. But they did go out of their way to acknowledge that CETA stretches “limited times” to its logical maximum (note their comparisons with 99 year leases and the limits to perpetuities being a lifetime plus 21 years). And they also went out of their way to reaffirm their support of the the “fair use” provisions of the copyright act.

    At the very least you successfully put a serious obstacle in front of any future effort to further extend copyright.

    Well done.

    Cheers, Bob.

  75. Professor Lessig,

    Your fight matters not only to US citizen, but all over the world, and especially in Europe, without which there would not be the present escalation in lengthening copyright duration beyond any common sense. See Ville Oksanen’s post, above.

    For Europeans like us, you are a great hope – no matter if you have lost this battle. For us, you represent the struggle for freedom of speech on the internet – but not only: you are also the living demonstration that Eurocrats’ simplified view ot the “US peril” is deeply wrong.


    (from Switzerland, perhaps an even more luddite and restricted place than the EU)

  76. Jon Buller says:


    I’m not much of a poster, just a lurker, but this time I must say something. Thank you very much for your efforts. A few years ago I would have never thought this was wrong in any way. I was then shocked (but happy) to find out you got the cert. Now I’m sad and upset about the ruling, but at least I know the difference between where I was and where I am. It may be the same location, but the outlook and action to take are totally different, and that is only because of your efforts.

  77. Ulrich Kunitz says:

    Thumps up, Lawrence Lessig. This fight can’t be won in single combat. There is no freedom without people defending it. It’s just as simple as this.

  78. Gary Haubold says:

    Sir Lessig:

    YOU didn’t lose today, society did . . . . . for all the great research, briefs and presentation that went into your case, much of what the Justices decide seems to come solely from inside their heads, and not from the presentation of the case by opposing counsel.

    To put it another way, the Justices most definitely ARE NOT voting on which side best presented its legal case, they’re instead voting on . . . . well, something else, anyway.

    The fact is it’s not the role of the Supreme Court to overturn bad law, or even to overturn gosh-awful, enough-to-make-a-buzzard-puke law – their job is to overturn Unconstitutional law.

    Now the fight goes back to the legislature, where the bad guys won the first round but maybe not the last.

  79. Brian says:

    Larry, you did good. I doubt this case could have been won by anyone, and you did a great job of shining the light of publicity on the abuses committed by Disney and Congress. Thanks for your efforts, and keep up the good fight.

  80. Hell man, you put up the good fight.
    And as dozens have already said, much better than I could, the war is not lost, and you have brought it to the attention of many who would not have otherwise been aware of what was going on.
    I know it’s easier to believe the crtisisms than the support, but realize that the support is what’s real, the critisism rarely is.
    Be strong, and continue the good fight.

  81. Pizzette says:

    Mr. Lessig, it will be you who is remembered as the good guy with the rare gift of foresight. You have forced technology and intellectual property issues to the essential public policy point of “critical mass.” You have started a movement, and you’re the best leader we could have asked for. Thank you.

  82. Tom says:

    You fought a battle that was well worth fighting for – even if it didn’t lead to the success anticipated it (although you might not grasp it yet) *did* indeed start a movement. Your engagement for Creative Commons, the many websites and content creators already employing Creative Commons licenses, the thousands of websites linking to eldred.cc – if this isn’t a really powerful movement I don’t know what. While the Sonny Bono Act might not have been unconstitutional following the literal words of the constitution it is definitely unconstitutional considering the spirit of the constitution that the fouding fathers had in mind. But I think the Supreme Court was partly right: This is something that shouldn’t be resolved through the Courts but through political change – and your work did a lot to foster this political change that starts with an awareness of the people for the problems of the current copyright law. An awareness that you created – I’m from Europe and only due to your writings I came to realizing the problems and ridicolousness of the EU copyright law. This is one of the few things were the EU was the leading player and the U.S. followed behind – and it isn’t something we Europeans should be too proud of. I wish you the very best for your struggle for the public domain – keep up your good work!

  83. wayne a. lee says:

    I’ve only ever watched these kinds of copyright and freedom issues from the sidelines, more with passing interest than passion, so I am surprised to find myself *extremely* upset by this Supreme Court ruling.

    Just one question: what can I, an average joe, do to help change things?

    Thank you, Mr Lessig.

  84. You did a wonderful job, and you have my undying thanks. But the game was already rigged. This is a phenomenon I call “winning the debate, but losing the vote.”

    Congress is ruled utterly by Disney’s dollars, and will NEVER relent on making copyrights perpetual, whatever we few who understand the issues may say or do. The Supreme Court was our last and only hope — but our hope was misplaced. The dark future is here.

  85. David Coe says:

    I looked at cnn.com to see how the decision would be
    presented to more-casual observers. Some highlights:

    “A contrary ruling would have cost entertainment giants like
    The Walt Disney Co. and AOL Time Warner Inc. hundreds of
    millions of dollars.”

    This allows readers to think that this issue will affect directly
    their pocketbook – as the majority of Americans own stock, and
    many of those own stock in these companies, either directly or
    indirectly (in mutual funds).

    “AOL Time Warner, CNN’s parent company, had said that
    would threaten copyrights for such movies as ‘Casablanca,’
    ‘The Wizard of Oz’ and ‘Gone With the Wind.'”

    So, the story suggests that still-popular works would be
    “threatened,” as though the works would disappear in a cloud
    of smoke were the copyrights to end.

    The general public has a curious blind spot when it comes to
    the issue of increasing copy rights. Contrast this with the
    uproar that is heard when pharmaceutical companies apply for
    patent extensions (which often are granted because the FDA
    approval process is so lengthy). Imagine if Congress tried to
    grant pharmaceutical corporations 20 additional years of
    patent protection. I almost can see the red-faced politicians on
    the Sunday talk shows, decrying it as a pillaging of the
    American purse. This dichotomy causes me to wonder if the
    public’s blind spot results from the fact that virtually all major
    news sources are, necessarily, copyright holders themselves.
    Could this fact affect whatever “objectivity” we’ve come to
    expect from those who report news to us?

  86. chris says:

    Professor Lessig,

    I just wanted to say thank you. Please don’t beat yourself up, for you really have won by educating so many people (myself included) about the importance of this issue. The amount of time and energy you have spent so far on this case has been nothing short of amazing. If nothing else, you have woken many of us who were asleep at the wheel.

  87. Christopher Page says:

    Others have already said “thank you”; I won’t be the last to do so. You’ve done us all a very great service in fighting a pernicious abuse of the system the Founders set up. That the Court ruled for or against you is of no relevance to that fact. As long as we keep up that fight and do not lose heart, eventually, things will be made right.

    They have ignored us. They have laughed at us. Now they are fighting us. All that is left is for us to win.

  88. Dean says:

    Well done, Larry for fighting the good fight, setting a strong example and helping shape the future for the commons.

    It starts now and all of us must find ways to make our views heard and recognized.

    This is not a loss.

    This is not the end.

    This is merely the call to arms….


  89. Kevin Marks says:

    Not a loss, but a warning shot. Time to start a campaign to change the law in Congress. Disney, of course, are runnning advertisements again about ‘putting movies back in the vault’, just as they did a year ago.

  90. Laurie says:

    I am SO disappointed. How sad that Justice Breyer was the only one who really ‘got it.’

  91. Prof. Lessig,

    It isn’t a rationalization to say that this defeat could do more for the cause in the long term than a victory would have. When I first heard about the decision, I felt nothing but sadness. It has taken approximately 20 minutes for that sadness to turn into anger. And about one more minute to direct that energy toward the EFF’s PayPal account.

    Rocky Balboa wasn’t any less heroic for losing, and neither are you. (And I have no doubt your sequels will be better.) Eldred created a dramatic focal point, and it has helped to inspire untold numbers like me. I’m an indie filmmaker who never thought about copyright in any way but the Standard Valenti Dogma. Now it’s my mission in life to enlist other filmmakers in this struggle.

    The Supreme Court simply showed us how much harder we need to fight. Your heroic effort, which I have no doubt was the best that is humanly possible, will help to provide the inspiration we’ll need.

    Thanks for doing it.

    Brian Flemming

  92. Cynthia Johanson says:

    You did an amazing job for this case. You’ve inspired me to join the fight, and I look forward to hearing of your next step. Artists and authors all over the world need you more than ever now.

  93. Matthew Cruickshank says:


    The ‘Free Culture’ presentation was a turning point. It helped explain your argument like no other. With that presentation getting it was accessible to anyone.

    This decision is wrong. We’ll keep moving.

    Thank you.

  94. Mark says:

    Read the majority opinion.
    Read the dissenting opinions.
    Feel how the judges are puzzled about how this has happend.
    And feel the anger resulting from being unable to stop it.
    We didn’t win. But did we lose?

  95. Casca says:

    As a veteran of many a lost cause, I can now testify to the obvious. Right battle, wrong battlefield. Many things become painfully obvious after the fact, mostly because we very humanly allow our passions to blind us before the contest, and hell, if we didn’t do that, we’d never fight.

    If you need a balm to rest your mind when your eyelids close, try this. All copyright owners are technologically swimming against the tide, and it is only a matter of time before they become exhausted and slip beneath the waves. If you don’t believe me, go punch “Steamboat Willie” into your search function on Kazaa, mwahahahahaha.

    Finally, after a lifetime under activist courts, it is pleasant to see one that knows the bounds of constitutional constraint, even if the cause of justice was not advanced. They very correctly said, “Go talk to your Congressman”.

  96. Chris says:

    Thanks for trying.

  97. Andrew says:

    Professor Lessig should take heart; he didn’t lose. The issues in this case were lost almost five years ago when Congress passed the CTEA. I think that the Court’s decision today was probably correct. Don’t misunderstand – I think the CTEA is bad policy. But that’s what it is: policy.

    Professor Lessig no doubt firmly believes not only is the CTEA bad policy, but is unconstitutional as well. I’m not so sure that many others are able to make this distinction. People in general need to realize that they can not run to the courts every time they disagree with a law. Nothing in the Constitution prohibits legislative stupidity.

  98. Branko Collin says:

    Perhaps this is the wrong forum, but I would not know where else to post this. Some people have wondered about the next step, and I have an idea about that.

    First let me tell you my agenda: I don’t mind that much that Disney has a ludicrously long copyright on The Mouse. At least they’re still publishing it, and in doing so give back to the community.

    In my eyes, a far greater danger is the loss of less popular creations. Currently I am helping out at Digital Proofreaders to help preserve obscure books. I have got a web site that lists computer games in an obscure category (Dutch text adventures) of which the original carriers no longer carry: only if a hobbyist (illegally) copied the game, it still exists. I won’t publish the games themselves, but at least I can help more people try and remember them.

    Our heritage is threatened to be lost. Copyright law is not going to help us (for now), but surely it should be possible to make a law that punishes those who let the monuments under their care rot away? Unless of course, they are willing to give the monument to the public.

    Perhaps this is a useful angle of attack. Please mail me if there are better platforms for this idea.

  99. Neil Kandalgaonkar says:

    There are victories beyond a court opinion. It would have been great to see CTEA struck down as unconstitutional. But who knows — surely the next step then would have been for Congress to draft newer, more turbo-weaselly protection for the Mouse.

    Your reasoned and public argumentation of this case has created a rare consensus of the left and right on this issue. I am no lawyer, but I can think of no case where the “losing” side so utterly stripped the victors of any pretense to moral justification.

    Speaking as a programmer and occasional content creator, I appreciate how your ideas and efforts have enlightened me, and continue to change my own conduct.

    Finally, don’t burn out. You may want to retreat from the public stage a bit and that’s fine. You’ve done as much as any individual is reasonably expected to, and it’s up to the rest of us to take this battle to a wider arena. The light of your candle will spread now, even without you.

  100. Sean says:

    Prof. Lessig — about a year ago you took time out during a busy day of interviews with major publications to talk to an independent scholar and writer for a small web publication. We spoke about the future of fair use and education, and the erosion of the Public Domain. One of the intended byproducts of the current regime of copyright law is that a generation of kids will grow up uncritically accepting the notion that everything, including ideas, is owned by someone, that their imaginings must first be cleared by lawyers, that the only cultural productions that matter are those that come from Disney, AOLTW, and must be paid for by cash or credit card.
    Thank you for your efforts on behalf of Eldred, et al. We will work harder, resist more, and educate ourselves and others.

  101. kien says:

    No worries, Professor Lessig…you didn’t lose; not really. In fact, given all the current indications (especially the cover of the most recent copy of Wired magazine), your battle was simply to formalize a sentiment and reaction that has already manifested itself worldwide. You attempted to convince the Supreme Court to overturn a law that millions around the world are blatantly ignoring already.

    If there is any failure involved in this case, it is the failure of a system that permits mega-corporations to buy laws and the ambiguity of the language used by the Founding Fathers. It is also the failure of our ancestors to litigate this issue in the past (although they could arguably be forgiven since they didn’t have the Internet to crystallize the issue). These were the factors which appear to have either tied the Court’s hands or given them a legitimate excuse to avoid their duty (depending on one’s level of paranoia).

    Keep fighting the good fight…there’s a generation of future legislators reading The Future of Ideas as I type this.


  102. Professor Lessig:

    You did not “lose” 7-2; you foresaw the future in the approximate ratio the public did 48 hours ago, namely 2 in the vanguard for every 7 catatonic or blinkered by self-interest.
    But you have fought a tremendously bold and–until now–fairly lonely battle on the ramparts of those who would protect our hard drives, our PDA’s, and the ultimate digital convergence of all our content, from ourselves.
    You are no longer alone, and your argument (never say your loss!) forced the majority to write a crabbed opinion, surreally detached from common-sense, which is your finest achievement of all. (And I’ve read some SCOTUS opinions, being Stanford Law ’80.)
    “We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.”

  103. Nathanael Nerode says:

    * civil disobedience

    * campaign for pro-public-domain laws

    Each of these needs an organization. Do they exist yet?

    Personally, I’d also like:
    * campaign to amend the Constitution to eliminate life tenure for judges (since it evidently fails at its sole purpose, of keeping them independent).

  104. Brian says:

    They lost, we lost, you didn’t lose.

    One battle doesn’t win or lose a war.

  105. Let's FIGHT! says:

    Our mission:

    1)TOTAL EVICERATION of every argument made in the Majority opinion.

    2)A straightforward explanation of the long term negative consequences of this decision on the “average American”.

    We gotta let ’em know just how wrong they are and we have to keep on fighting. We have to fight harder and meaner if we want to win our freedom from their exploitation.

  106. vanderwal says:

    A sad day, but we still have faith.

  107. Nathanael Nerode says:

    The New York Times — front page note, selections from the opinion, two articles favorable to the People, and an editorial *strongly* supporting your case — should make a big difference in the court of public opinion.

    It isn’t just techies who will pay attention to this now.

  108. tom matrullo says:

    Forza! Much can be learned from negative moments and dark days: the lay of the land, the shape of the resistance, etc. Perhaps the real issue, underlying these many layers of law and constitutional consideration, is the failure of so much of our people and their government to see beyond the narrow confines of an onerous and no longer necessary economics of scarcity. This ruling will cause many much-loved works to remain inaccessible – neglected in vaults by owners who fail to see any “commercial value” in them. Unless, through civil disobedience if not otherwise, we demonstrate that other economies are possible, viable, and nurturing to creators and to lovers of art.

  109. Dirk van de Bunt says:

    The majority’s opinion reads like a rationalization of a predeterined result — sort of like the 2002 election case. Justice Breyer’s analysis is thoroughly persuaive.

    As he says, “A desire for parity between old copyrights and new copyrights cannot justify extending old copyrights when there is no rational justification for extending new copyrights … [it] is like asking Tom Thumb to support Paul Bunyan’s ox”.

    Thank you professor Lessig for your Bunyanesque efforts … they will have lasting and productive effects.

  110. Anthony Starks says:

    The Eldred decision forces me to compare it the the Dred Scott case:

    “They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”

    Chief Justice Roger B. Taney, Scott v. Sandford (1857)

    “In accord with the District Court and the Court of Appeals, we reject petitioners? challenges to the CTEA. In that 1998 legislation, as in all previous copyright term extensions, Congress placed existing and future copyrights in parity. In prescribing that alignment, we hold, Congress acted within its authority and did not transgress constitutional limitations.”

    Justice Ruth Ginsberg, Eldred v. Ashcroft (2003)

    Both justices used a strictly legal arguments, (Taney in that slaves were not citizens, Ginsberg in that limitted times were not violated) but blew it completely in regards to the larger question of freedom.

    Take heart — as you know in less than a decade we went from the Scott decision to the passing of the 13th, 14th, and 15th Amendments!

  111. Jeff Zugale says:

    Larry, thanks for all your hard work on creators’ behalf. It’s a shame the SC doesn’t stand for the “everyperson” anymore, but that’s just part of the times. I don’t think you failed at all; rather, you’re up against some pretty monumental forces of “history” here, and the swell of those forces is clearly toward the powerful special interests. Don’t beat yourself up, you’ve got a lot of guts.

    However, I’d like to post here my take, what I think may be the ONLY way for individual creators to combat corporate domination of intellectual property:


    Copyright, by law, can’t be transferred except by written contract; copyright owners retain all rights by default. So, if everyone with good ideas or stories or whatever simply FLATLY REFUSES to legally transfer copyright to a corporate entity… well, soon the corporations won’t have anything new to market and sell.

    There’s nothing wrong with a creator granting a limited-term license to a corporation to go ahead and exploit a creation as far as possible. “Hey, you can do whatever you want with it for 10 years, but then we have to renegotiate.” Of course, corporations can’t stand this; they want to make money on the creation forever – after a point, essentially doing nothing and getting paid for it (like record company back catalogs, or Disney merchandise). That is of course why they usually insist on work-for-hire arrangements that require you to forfeit all your rights to your creation. Forever. Throughout “The Universe.”

    However, if ENOUGH talented creative people can drop their “need” to “get famous” or “get rich quick” and can look the corps in the eye and say, “I’m not going to sell you my rights, period,” then maybe things will get more fair.

    Not easy, no. It means a lot of talented people would have to force themselves to be content working at some other job for a living… for a while. I think it can be done.

    Maybe I’ll try to start a movement. 😉

  112. Anonymous says:

    Because of the time-stamp problem it is hard to tell where the new comments are.

    Independent check:
    The time now is about 12:00 noon Pacific time on January 16th

  113. Professor Lessig,

    I deplore the Supreme Court’s decision because I value the shared resource of ideas that our culture has produced. The “forever minus a day” attitude that I have seen Jack Valente and others espouse won an undeserved victory. I thank you for your tireless efforts to protect the public interest and I will redouble my efforts to minimize my financial support for Disney and the other major supporters of this unconstitutional act.

    Thank you.
    Jesse S.A. Bridgewater

  114. Anonymous says:

    More on the time stamp problem: The post presently at the physical end of the display consists of the words “It’s a sad day…but thanks for all your work and keep up the campaign.”, is dated “Jan 16 03 at 6:43 PM” , and (if I recall right) was posted YESTERDAY, and even though it is now only about 12:07 PM Pacific time on January 16th.

  115. Anonymous says:

    We’re all screwed. There was so much riding on this, why didnt you wait until reasonable judges were on the court and at least do proper research on how to craft your argument to appeal to each of the judges?? I dont mean to be mean, and I do appreciate that you are on our side with the best intentions etc. And you are of course an excellent attorney no doubt. To me, this 7-2 verdict was pretty obvious, frankly 9-0 would have been less surprising that even 6-3. Now future courts will have this precedent of allowing Congress to place 1 million year copyright extensions. You should have studied each judge’s personality more carefully before proceeding with your argument and if you figure you couldnt get a majority, then not proceeded. Don’t you know that people reason differently? “simple logic” to one person is “silly irrationality” to another. I don’t think it was easy to get a majority with this court, no matter how craftily your made your argument. But from your argument I can tell you didnt even try. I could easily have crafted a better argument. Now what are we going to do? The general public has no clue and doesnt care about these issues. The public doesnt care to understand the effects of copyright monopolies. Only geeks know about this issue. And we all know geeks have no ability to launch an effective sustained publicity lobby campaign. Heck, most cant even get girlfriends. How are they supposed to get the public fired up by about how Disney is taking advantage of public domain while refusing to let the public have access to their own derived work. It’s unrealistic to expect any mobilization from geeks. I will take any bet that by 1923 Disney will re-extend copyright law to maintain their hold on Mickey Mouse. Seriously, I’d be willing to wager $1000 that Congress will re-extend copyrights again with the next 25 years. $500 more says bought by Disney. And after it passes, nobody’s going to be able to argue against it, thanks to the precedent this court was wonderfully given the opportunity to set.

  116. Anonymous says:

    Finally! There can be ethical justification for trading mp3’s. It is of course still illegal, but it’s not unethical, because the works have all been created by taking advantaged of unfair copyright monopolies that prevent others from making similar derived works for free.
    I am not saying people should trade mp3s, I am saying that those who do are ethically justified in their actions.

  117. Alexey Merz says:

    Well, you did the right things, Larry, but seven of nine did not. What a ghastly ruling.

    As an early-career scientist I have been watching Eldredge v. A. closely. Each time I publish a paper I must sign a form that turns my copyright interest over to the publisher. When the publisher is a professional society – particularly one of which I am a member – this is not a severe problem because I have a reasonable expectation that my work will be handled responsibly over the long run, even if the work does not pass into the public domain. More often I must donate (or spend grant money to transfer) the copyright to Blackwell (Molecular Microbiology) or Elsevier (Current Biology, Cell) or Macmillan (Nature). Given the nature of consolidation in the publishing industry over the last few years I do not have any assurance that my work will be well-treated by its new, for-profit, beholden-solely-to-shareholders owners.

    Until today I had as consolation some reasonable expectation that my work would ulitmately pass into the public domain, even if it is mishandled in intervening years. This is no loger true: as of today I have no assurance that my or my colleagues’ scientific work will EVER pass into the public domain where it belongs and where the public has every right to expect it to reside. (Added irony is provided by the fact that a huge proportion of said science is paid for by tax dollars.) The SCOTUS decision has violated the founders’ explicit mandate that copyright exists to promote science (and the useful arts).

    Now as scientists we MUST build alternative structures (e.g., the Public Library of Science) which will allow us to communicate our work AND ensure that it will pass into the commons.

  118. Wah says:

    Dammit Lessig, this is b.s. You couldn’t even convince the Supreme Court to turn over a dumb law written by a corporate Congress? A Congress that has to campaign for their jobs over the airwaves that are owned and operated by the same companies that own the majority of copyrighted material in the country? What kind of God are you, anyway?

    Oh, wait Lawrence Lessig? The one that wrote a book about this stuff? The mortal one? Umm, yea, sorry about that.

    Really though, I had a discussion with a few of my co-workers here at work tonight. It took about 10 minutes of simple banter to convince them that maybe ‘Happy Birthday’ and ‘The Wizard of Oz’ didn’t really need all that much protection anymore. And that Walt Disney fella really isn’t doing much to promote the arts and sciences from beyond the grave.

    I mean, how can you argue with Justices that say, ‘Well, sorry, Congress did it before and they can do it again.’ No seriously, how can you argue that? I might need to in about 19 years.

    Thanks for your hard work. Lighten up on the pessimism though, as long as we breathe, we can fight. We get it. We’re right. That goes a long way at the end of day. Mostly because it carries over into the next one.

  119. Adam Varn says:

    Mr. Lessig:

    You have inspired an entire generation to pay attention to their rights and learn to defend and fight for what they believe, even in the face of insurmountable odds. The fight will be hard, and the fight will be long but history will show this to be a mere pebble in the long race towards fair rights towards consumers.

    You are a leader to many and a hero to all. Thank you for your tireless efforts.

  120. I’d first like to thank Professor Lessig for his tireless, intelligent and eloquent work in bringing this issue before the Supreme Court, and Mr. Eldred for serving as plaintiff. I’ve come to view this issue as one that will define what kind of a society we will become in the years ahead when the practical problems of free communication will cease and it is only our own
    desire for control and manipulation that will divide people, not into races and states but into producers and consumers.

    The fight is far from over. The Supreme Court had an opportunity to place the rights of the citizenry ahead of corporations and reaffirm the insight and intelligence of our founding fathers, but chose instead to remain firmly seated on the sideline. So be it. It is now our responsiblity to keep the debate alive, to bring this issue before the public and to make them understand that the elements which make our culture great are going to remain forever in the hands of media conglomerates. If the Supreme Court will not step in and perform
    their role in upholding the ideals of the Constitution, then we as individuals must strike the harder road and remove legislators who
    choose to squander our inheritance of the public domain to shore up
    the broken business models that currently dominate music, print and

    I hope Professor Lessig continues in his fight. He certainly has my
    admiration and thanks.

  121. Victor Copyrightholder says:

    Face it, Lessig — the Supreme Court took you and your b.s. arguments apart like a two-dollar watch. (Very satisfying that the majority opinion’s page 4 footnote caught you essentially lying about the number of times that Congress has extended copyright duration — but then, you knew you were lying about that, didn’t you?) Time to slink back to Stanford, Larry, and give up — because outside of your preaching to your tiny choir, nobody’s listening to you. With this on top of your embarrassing Microsoft debacle, when are you going to realize exactly what a loser you are?

  122. Eric Rolph says:

    Our documentary distribution company will fight on your side of the cause by releasing work under creative commons copyright. We’re already gearing up to release 10% of our catalog free on the net as soon as we hammer out some of the more difficult technical issues (namely bandwidth costs).

    Keep on fighting!

  123. Prof. Lessig, thank you for taking up this fight and bringing it the attention it needs. Now it’s time for us to do our jobs. We need to write our congressmen and remind them that they represent us, not Disney, not AOL-Time Warner. We need to vote those responsible for passing the Sonny Bono law out of office. And when none of that works, civil disobedience can make this law impossible to enforce, but that will only work with some coordination and organization.

    It’s time for us, as freedom-loving citizens, to not only take the next step, but to walk this long road.

  124. Lucian says:

    You have awakened us to the need, Lessig. The verdict can hardly be counted as a loss. It is time for the rest of us to lay our hands on the plow.

    Thanks for showing us how.

  125. Scott Bauer says:

    I think you were a bit too hard on yourself with this posting… as hinted at in the later “Silent Five” posting, it’s hard to open the eyes of someone who doesn’t want to look.

    And though this is a loss in preserving the public domain, I wonder if – buried in Justice Ginsburg’s opinion — their isn’t some additional strength added to “fair use” – enough, perhaps, that attempts to limit Fair Use might run afoul of these arguements in the future?

  126. Ken Tsang says:

    Prof. Lessig:
    Thank you for fighting for us. Your passion has enlightened me and countless others.
    You have our support for the next round. We will do more.

  127. Stan Krute says:

    The court confirmed what many of us
    have felt for a while:

    The GOP’s goal in reshaping the judiciary
    has nothing to do with abortion rights,
    tough sentences for criminals, or states’

    It is all about creating a judiciary which
    honors corporate interests whenever those
    interests are threatened.

    Luckily, in our time we have the great
    route-around tool, the internet. Watch
    out, suckahs, we have just begun to
    change this planet.


  128. Stan Krute says:

    Chad noted:

    > I�m shocked that the original intent of
    > the Framers didn�t pull Scalia and Thomas in too.

    Chad: I hate to shatter your illusions — but Scalia
    and Thomas will only honor original intent when to
    do so serves the interests of the powerful. They are
    happy to write new law whenever they need to.


  129. Stan Krute says:

    Dave Farquahar wisely noted:

    > We need to write our congressmen and
    > remind them that they represent us,
    > not Disney, not AOL-Time Warner.

    Yep, that’s it.

    Unfortunately, we may have to send some
    $$$ — cash is especially valued by whores — to get
    their attention, until the tide of history
    becomes unavoidably obvious.

    nope, not cynical, quite idealistic, just not naive

  130. ed johnson says:

    It’s a sad day…but thanks for all your work and keep up the campaign.

  131. Stan Krute says:

    A Fearless Anonymous poster wrote:

    > why didnt you wait until reasonable judges were on the court

    Got a date when that’s gonna be the case ?


  132. Anonymous says:

    Stan, I just hope you were there for all those other battles where Congress overstepped its bounds and the Court saw fit to rubber stamp ’em. It took us sixty-odd years to get Lopez, the tiniest limitation on Congressional boot-stomping of the Framer’s intent, don’t get all teary-eyed that the Court didn’t rubberstamp your vision of a free-for-all on someone else’s property.

    Yes, Lessig, et al. are right. The Constitution provides for limited terms for patents, writings and useful inventions — and Congress (the place you should be yelling about, not the Courts, who do get things wrong from time to time. Say what you will about Robert Bork, he had a point about that) but if you want to get that book out of someone else’s catalog, pay for the damned thing or hush up.

    The internet is cool and all, but it’s not the freaking trebuchet that’ll break down the walls of private property. If you don’t protect intellectual property, you’ll get something even worse in the long term — 17th Century English-style Corporate Charters granting exclusive rights to whole areas of thought, commerce or whatever — or, in the universe of patents, you’ll get secrecy, not openness.

  133. Jerrod Hansen says:

    Mr Lessig-

    Don’t despair. You fought a good fight and while you may have lost among the 7 Justices, you’ve convinced me of the importance of these issues. I’m doing what I can to raise awareness among my circle of acquaintences and have faith that eventually we’ll be able to get things on the right track. As bleak as it is, the Court was right in pointing out that it is *just* a matter of new laws. Big business didn’t always own Congress and it is defeatist to assume that they always will. We shall carry on.

    Thank you for your constant efforts. We’ll do what we can.

  134. Dallis Radamaker says:

    Thanks for the great work, Prof. Lessig. I think its right that you lost on the constitutional issue (for some of the reasons you yourself suggest in your remarks about Roe v. Wade) but share your concern that the public domain must be better protected in the digital age. Your efforts have played a major role in raising public consciousness in this area, which will now play out in the legislative arena, where it belongs…

  135. Stan Krute says:

    Dear Courageous Anonymous Poster

    > don�t get all teary-eyed that the Court
    > didn�t rubberstamp your vision of a free-for-all
    > on someone else�s property.

    You know that this is not what this is about, and
    you know that’s not what I’m upset about.

    > if you want to get that book out of someone
    > else�s catalog, pay for the damned thing or hush up

    I write books. I publish books. I buy books. So
    I’m afraid I won’t be able to hush up on any
    of those grounds.

    I also believe, to paraphrase Rush Limbaugh, that
    any gifts of creation that I have are on loan from
    a higher power.

    As a result of that belief, and the belief that my
    creativity is only growing as I age, not diminishing,
    I feel quite happy to receive a 14 or 18 or 26 year
    copyright, and then have my material enter the
    public domain. I’ll make my fair return, and then
    I’m happy to give back to the remarkable reality
    and the particular culture that gave me my gifts
    of creativity and the opportunity to make a living off
    of them.

    And, when it comes time to dance off this mortal
    coil, I’ll be happy to have the worms take the
    lead in returning my material husk to that great
    public domain of the soil.

    As to protecting the rights of large monied interests
    to grab control of the greatest country in the history
    of this planet — been fightin’ that for years, and will
    continue to do so until the aforementioned worms
    get their richly-deserved feast.


  136. George Dafermos says:

    You should rest assured that you didn’t lose. By any means. When all the people I know are adamant that a prolonged copyright regime makes no sense and that everyone I know of is convinced that it’s hightime the public ‘s got control of delicate forms of social and technical ingenuity, then you haven’t lost. At first, it dawned on me that your efforts are a true awakening: ownership should remain at the hands of the people and should serve the goals of the people and society. For a man who’s having all cyberians by his side and has gained the whole world’s undivided attention, you have won. And in my eyes, there is nore respect and encouragement for you now. Don’t lose your nerve. We will either fall or stand alltogether. And as long as we keep standing, we haven’t lost.


  137. Ka-Ping Yee says:

    Larry — I share your pain today.

    In my own life, I have also experienced the strain of fighting the battle of reason against overwhelming opposition. I cannot know exactly how you feel, but perhaps I understand a tiny fraction of it.

    It was a pleasure to speak to you at the Creative Commons launch.

    You are an inspiration to me, and have been an inspiration to many thousands. Please rest now, take some time to take care of yourself, and rest assured that we will redouble our efforts to build a strong and healthy public domain.

    Eyes forward!

    — ?!ng

  138. “An invasion of armies can be resisted, but not an idea whose time has come.” – Victor Hugo

  139. Michael says:

    Clearly a bit over my head, but the kind of reading that makes me think.

  140. Anonymous says:

    In 1790, copyright terms 14 years long (28 years for bestsellers). In 1909, copyright terms were extended to 28 years (and 56 years for bestsellers). In 1976, copyright terms were extended to 75 years (and 150 years for bestsellers), AND they were applied retroactively: old copyrights dating back to 1901 were reinstated along with copyrights for bestsellers dating back to 1826. In 1998, copyright terms were extended to 95 years (and 190 years for bestsellers), AND old copyrights dating back to 1903 were reinstated along with copyrights for bestsellers dating back to 1808. With this in mind, there are plenty of questions involved in this copyright debate:

    Why should little-known manuscripts which have been out of print since the 12th century BCE face the prospect of being recopyrighted every time Shakespeare’s copyright on Romeo & Juliet (which is MUCH OLDER than Disney’s copyright on Steamboat Willie) is about to expire?

    Why should artificial copyrighted trademarked megacorporations (which are NOT and shouldn’t be considered citizens!) try to pressure Congress into making copyright terms last until some time after forever is over?

    Why should Harriet Beecher Stowe continue to get paid for writing Uncle Tom’s Cabin (an 1851 bestseller) until the year 2041?

    How many more times do Shakespeare’s works need to be recopyrighted?

    Does being required to pay royalties to sing Row-Row-Row Your Boat (or ANY song, for that matter) at a campire make sense?

    How ridiculous can copyright terms get!

  141. Anonymous says:

    PERCEPTION (given in a previous post): Life is a process, not an event.
    REALITY: Life is an event, not a process! (Calling something a process DOESN’T automatically make it one!)

  142. More To Think About says:

    Some more copyright conerns:

    Why should everything pre-1710 be copyrighted indefinitely?
    Why should The Book Of Mormon (an 1831 bestseller) remain copyrighted until the year 2021?
    Wake me when the dominion of Disney, Shakespeare, and MTV over popular culture in this galaxy is broken!

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