Lessig Blog Archives

Jed Horovitz has produced an extraordinary film about the “culture wars” which may well not be around for long. You can get Willful Infringement on DVD. Many people should. When the lawyers find this, we’ll need archives stored in many places. (Note: the web page says I’m in the film, but only for a few seconds. The really great characters are two clowns.)

I know I said Dastar was decided correctly. I believe it was. But there is a line in the opinion that really gets me — for it is the only place in the opinion where the Court cites Eldred, and it cites it for a proposition that must be wrong.

Justice Scalia writes, “To hold otherwise would be akin to finding that �43(a) created a species of perpetual patent and copyright, which Congress may not do. See Eldred v. Ashcroft.” But this line show why it would have paid for the Court to pay more attention to the originalism in Eldred. For this line betrays a confusion about what “copyright law” was — at least — originally. And under an originalist reading of the copyright power, there would be no Copyright Clause problem with Congress requiring attribution for public domain works.

The confusion is the failure to distinguish “copyrights” from “authors rights.” As Ray Patterson argued over 30 years ago in “Copyright in Historical Perspective,” the framers understood “copy-rights” to be distinct from “auhors rights.” Authors rights protect the right to attribution, and to some degree, the right of integrity. These rights are related to the “moral rights” the Europeans speak of. They are fundamentally distinct from the “copy-right” — which was a right to control the publication of a work.

From an originalist perspective, then, it is true that Congress shouldn’t be able to grant a “copyright” — a right to control the publication of a work — for a perpetual time. But the right to attribution is not, from that perspective, a “copy-right.” And thus if there were another power of Congress that could support that right — the Commerce Power, for example — then a requirement of attribution should not run afoul of the copyright power.

Kevin Kelly writes with the following amazing story:

> Thought you’d enjoy this. I was researching some stuff today and read
> this amazing story in THE INVENTION OF PRINTING IN CHINA, by Thomas
> Carter (1955):
>
> Carter is describing the very first printed book in the world, the
> DIAMOND SUTRA, a intact copy of which was found in a secret cave
> chamber in Kansu China. The book was published on May 11, 868.
> That’s, what, some 1100 years ago. Here is the key: the very first
> book ever printed had a public domain notice. Here’s what Carter says
> [p. 56]:
>
> The book consists of six sheets of text and one shorter sheet with
> woodcut, all neatly pasted together so as to form one continuous roll
> sixteen feet long… At the end, printed into the text, is the
> statement that the book was “reverently made for universal free
> distribution by Wang Chieh on behalf of his two parents on the 15th
> of the 4th moon of the 9th year of Hsien-t’ung.”
>
> Designated Universal Free Distribution from day one.
>
> Wang Chieh would have signed the petition.

We have launched a petition to build support for the Public Domain Enhancement Act. That act would require American copyright holders to pay $1 fifty years after a work was published. If they pay the $1, the copyright continues. If they don’t, the work passes into the public domain. Historical estimates would suggest 98% of works would pass into the pubilc domain after 50 years. The Act would do a great deal to reclaim a public domain.

This proposal has received a great deal of support. It is now facing some important lobbyists’ opposition. We need a public way to begin to demonstrate who the lobbyists don’t speak for. This is the first step.

If you are an ally in at least this cause, please sign the petition. Please blog it, please email it, please spam it, please buy billboards about it — please do whatever you can. And most importantly, please help us explain its importance. There is a chance to do something significant here. But it will take a clearer, simpler voice than mine.