once more into the breach, my friends?

My inbox is a testament to the kindness of strangers. Thank you. Many ask, is there anything more that could be done?

The easy answer is no. The Supreme Court has ruled that Congress has the power perpetually to extend the terms of existing copyrights. This brief “experiment with the public domain,” as the NYT eloquently put it, is over. In twenty years, we can expect terms will be extended again. There is no good reason to expect anything different.

The hard answer is, well, yes, there is always the possibility of an amendment, except that an amendment would be impossibly hard. Article V of the Constitution maps two paths to an amendment. (1) is for Congress to propose an amendment (which would not happen here — ever); (2) is for the state legislatures to call for a “convention” which may propose amendments. In either case, amendments must be ratified by 3/4s of the states.

The second path has never been followed. People are afraid of it because the convention could in principle propose any amendment at all. As 3/4s of the states must ratify any amendment, that doesn’t seem terribly dangerous to me. But clearly, it would take a massive campaign to march through the states to succeed in getting such a proposal passed.

One kind soul asks, “would you be willing to work to amend the constitution.” If there were a commitment of sufficient resources to make the campaign real, obviously yes. Impossibly difficult tasks seems my calling these days. I’d be happy to become Mr., rather than Professor, Lessig, if there were a good reason to believe such a campaign could be supported.

But short of the impossible, there are many battles yet to be won. The opinion of the Court gives no support to restoring copyrights once expired. That means the challenges in Golan and related cases survives. And, as Jack Balkin forcefully argues, Eldred does nicely frame the unconstitutionality in the DMCA.

More importantly, there is a political campaign that must now be waged. The many organizations that have been fighting these issues have done an extraordinary job getting people to see what’s at stake. That battle has only begun. My hero Siva (which is easier to spell than Vaidhyanathan) has a great piece on Salon on just this point. And Bill Moyers has a piece on PBS tonight that will do lots to help others to see.

I, meanwhile, will be answering email. I should have that finished before the next Sonny Bono Act.

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18 Responses to once more into the breach, my friends?

  1. bvw says:

    >’This brief �experiment with the public domain�’

    But it’s not a question of public domain, rather one of individual liberty. A person with a book in hand — can he have the liberty to use it however he shalll want?

  2. bvw says:

    ‘This brief �experiment with the public domain,� as the NYT eloquently put it, is over.’

    The copyright and patent clause protect individual liberty, not the “public domain”. (In current understanding of “public domain”). Is a man free to do with property he has in hand as he will? Not if he has a crib of music in hand, while under copyright. Should a government bear the cost of enforcing that limitation of liberty?

    It’s not the commons but Liberty that is under attack when that virtual and limitlessly expansive form of property called “IP” is not kept well-chained.

  3. Burningbird says:

    Larry, I know you’re currently discouraged, but I think you’re making some assumptions that are not necessarily warranted by the results, specifically that the Supreme Court is allowing Congress the right to increase the copyright extension in perpetuity. And I would be cautious about encouraging an amendment to the constitution over this issue. We couldn’t get one with the ERA, which has some significant impact on the population at large, also.

    The course you suggest at the bottom — the political campaign — now that’s the way to go. Even then, there is no guarantee that the country at large will agree with you, at least on this issue. Still, one should try. Or leave to others to try if you’re exhausted from your efforts, and no one could blame you.

    I would wish, though, that you celebrate the strength of our system that allowed you to make your arguments against an industry and against congress, and that we’ve all had a chance to personally experience the workings of the Supreme Court. Some good among the torn hopes, couldn’t we say?

  4. Paul Jimenez says:

    What’s needed is a way to make the issue hit home with Congresscritters. Make it obvious that copyright extension is bad. The ideal thing would be to find the owner of some copyright that Congress is (unintentionally) violating, and point out to them that they should be charging Congress for this use, even though whatever-it-is was published ages ago. Nothing makes you care about an issue like being hit in the face with it. Anyone have any ideas of where to find such an item? or even where to look?

  5. Gutenberg started it! says:

    The second path has never been followed.

    The second path was followed once, in 1787. The Constitutional Convention of 1787 was called simply to correct and amend the Articles of Confederation. They began by throwing it out altogether. So we do have precedent, but clearly it is not the way if you only want to amend.

  6. Dan Conti says:

    To ‘burningbird’, i would have to disagree with you about perpetual copyright extensions. Indeed it appears that the court has clearly stated that this extension, like all previous extensions, is within the capacity of the congress. Although i have not fully read everything, from what i have read the court’s opinion is that they would only act if congress passed a bill extending copyrights eternally, since that would explicitly violated the ‘limited’ extension allowed to congress.

    I would also have to agree with prof. lessig that congress is unlikely to ever amend the constitution on this issue; this ranks right up there with proper campaign finance reform on their list of things to do (funny that). As i was writing this, however, i remembered the 94 congressional elections, where republicans explicitly campaigned on a list of reforms they wanted to enact, one of which was presidential line item veto. If a climate such as that one existed before, where a party was disadvantaged to the point that they proposed limiting congressional power to appeal to the masses, it seems likely that it would happen again. Perhaps the democrats, battered and bruised, will think of this for 2004?

  7. John Raphone says:

    This is a really said thing to hear, I was hoping that the Sony Bono Act would be overtuned and that I could watch the origional Mickey Mouse cartoon and listen to Gershwin without working about royalties and copyrights. Its a said day for America. 🙁

  8. Mikael Pawlo says:

    >My hero Siva (which is easier to spell than Viadhyanathan)

    It is spelled Vaidhyanathan, stupid! .-)



  9. R. Eric Billings says:

    I believe that there are other paths, beyond those that would modify the U. S. Constitution, that would bring the situation to a better state than it is currently in. Of course, “better” is subject to interpretation, so I will start with my personal philosphy on the way that IP should work.

    To promote the progress of the sciences, intellectual property should be available for access and review at all times. I have absolutely no problem with extending the copyright term so long as they continue to publish the work so that I can, if I so chose, go puchase or rent a copy. However, when the laws are used to “bury” some form intellectual property, I do have a problem with the situation.

    Disney provides perfect examples for both situations. In the former category, I include the films of Mickey Mouse, because those are available for purchase or rental pretty much at my whim. The the latter category, one film stands out – the Song of the South.

    No one would blame Disney for wanting to avoid the results of re-releasing that film to the theaters, or releasing it on DVD. As a pure business decision, I, myself, would try to quietly bury that film. However, from the perspective of the powers that the Constitution provides to Congress, there is no provision that says that Congres can make a law that allows a business to try to bury the past. Yet that is exactly what the current Copyright law allows – any company in the same situation as Disney (owning politically sensitive intellectual property that would be convenient if everyone just forgot that existed) can bury that intellectual property.

    I wonder if the Court could be convinced to set limits on the Copyright laws that would take the form of “use it or lose it” for intellectual property.

    That thought can be carried one steo further – have Congress alter the Copyright laws to include a “use it or lose it” clause. At the very least, the term Intellectual Property implies that there is some kind of economic value – and this value can be taxed. Intellectual property that is unavailable for public consumption is tax revenue that is being denied to all levels of government (in the form of sales and income tax), and with the current economic climate, we might be able to do something with this.

    R. Eric Billings


  10. J Kende says:

    I realize this may be the wrong place and time to mention this, but I doubt it will be the last… There is a way to fight and win this battle we find ourselves in. It may simply be beyond what many people think of as possible – although to me it smacks of pure common sense. This country of ours is founded on the principal of self-governance. That we “the people” can rise and run our own government. What i feel the Eldred case hammers home is that other than overturning the DMCA in court, this battle really isnt one for the courts. I think it was clear that the Supremes were trying very much to make that point. If we want not just to fight, but to *win*, we cannot rely on the courts to overturn laws for us – to govern for us. If we want to win we must take the fight directly to both houses of congress. We must *become* congress. I could personally think of few better things than Lessig for Senator of California in 04. I dont think this – and a much wider campaign to gain the heart and soul of our highest legislative body – is really a question of whether it should or could be done… rather it is a question of how. Since the 04 political season has already started, maybe i was wrong… maybe this is the right time and place to begin discussing this.

  11. Andrew Cory says:

    Has anyone called their congresspeople? I did, as soon as I heard about the decision. With all due respect to Professor Lessig, he is a lawyer, and thinks like one. The simple solution to the problems posed by the Bono act was not to start a lawsuit, and was certainly not to take such a suit to the supreme court. As much as I respect the professor for doing so, that�s doing things the hard way…

    The easier solution, and the one that is more likely to work, is to get another law passed. Call it the Lessig law, get Congressman Honda (whom I believe to be Professor Lessig�s own representative) to sponsor it, get big media companies with a lot to gain by it (say, the NY times) behind it financially. And some dark night, when no one is looking, sneak it onto a defense allocation bill…

    This is easier than any other suggestion I�ve read, and it has a much higher chance of winning…

  12. Marc Shepherd says:

    So, why did the Court take this case? There was no circuit split, and despite the importance we attach to the issue, there was no public groundswell for the Court to take up the Bono act.

    Absent a circuit split or a public groundswell, the Court doesn’t normally take up a case just to say they agree with the decision below. Therefore, I’d guess that at least two more Justices thought initially that they might reverse. I wonder who the two could’ve been?

  13. Dan Conti says:

    The point is moot anyways; running for senate and losing would kill any momentum an attempted movement would have, since prof. lessig would be perceived as the head of the movement. The effort would be better spent on crafting an shared agenda and getting various senate candidates to sign on. The agenda would have to encompass a variety of issues, not just copyright, but perhaps it could be generally described as the “Public Protection Acts” or something similar – the guiding concept being that the peoples rights and security need to be protected, and this can be achieved or aided through the passage of a predetermined set of bills. Think of the republicans in 1994.

    Besides, i wonder if a professor would make a good politician; politics can be an uncomfortable place for the honest.

  14. J Kende says:

    All of these points are why I think it is a good idea to begin lengthy discussion about such things. A campaign, whether for a single senate seat, or for a more appropriate much broader coordinated effort, would be pointless and harmful if its intent from the very begining was not to win. Winning is possible. It happens every year that one candidate or another does actually win. Yes other candidates inevitably lose… but no one is saying that campaigns are not hard. They are *campaigns* after all. The question is not whether it is hard, but whether it is worthwhile in the context of many other complimentary approaches (like passing a law, challenging the DMCA in court, and continuing to counter bad tech/code with good tech/code). The question is, can it be done and how…

    I would be very interested to see a loose network of people that believe it is worthwhile and can be done, to begin to discuss more seriously the question of how. This could be done in the context of a broad based campaign agreeing on a political consensus of issues, going out and attempting to draft like-minded candidates with a genuine shot of winning (like Lessig). Honestly I know such things are begining to happen regardless of those who dont believe in the likelyhood of success (try thinking back to the 94 republican revolution – groundswells arent that uncommon – they just take building of infrastructure to make them happen.. much like large multiyear tech projects). Sure it was a bit foward, in a tongue in cheek sort of way, for me to post about it here… but I figured it was worth a little poke to see what it stirs up. I just think its time we start putting ourselves where our mouths are and fight directly for what matters to us. Like Glenn Reynolds is fond of saying: A pack, not a herd.

  15. Dan Conti says:

    I tend to agree with what you have said. The important part of the republicans in 94 is limiting congressional power was an explicit part of their agenda: line item veto is the item that comes first and foremost to mind, and they gave this power to a democrat. This is the political last resort; saying you will make a sacrafice of power in the name of “what is right”. Lone rangers in this game (such as mccain of arizona on the issue of campaign finance reform) have a hard battle to fight with this. Organized groups (republicans in 94 with line item veto) send a clear message, one that voters place faith in.

    The time is really opportune for a similar situation now, headed by the dems. They are desperate to regain seats, they are lacking a clear agenda, and they are in this situation at a time when voters are wondering how much of their liberty will be lost to corporations or in the name of national security.

    All of this, naturally, strays from the issue at hand. But the fact of the matter is that nobody will campaign on reforming copyright law because the masses do not perceive this as a big enough issue; this is one of the ansillary issues that people will sacrafice for the sake of voting for well rounded candidates. I do not mean to trivialize it in any way, this is simply the reality of how the masses perceive issues such as this. And in the end, whether it is a limit placed on congress’ ability to extend copyrights, or a taxation system, or a lottery on which items remain under copyright, it’s still copyright reform. It’s a “for it” or “against it” item on a politicians resume as far as the average voter is concerned.

    So i’ll stop spamming now, with this closing advice: look at the 2004 elections as an opportunity and the time leading up to that as positioning time. Putting a bill in front of the current congress probably wont yield very positive results. Providing a piece for a larger puzzle may be the best investment of time.

  16. FatHed says:

    Opps, I guess the 28th article would have to be a bit different, what would happen if the author was a company, those can last longer than governments.

  17. Nathanael Nerode says:

    The amendment I’d propose is the one removing life terms for Judges. Also the ERA. Also an explicit statement of the Right to Privacy.

    I’d be willing to do the work for the Constitutional Convention option in *my* state, New York.
    Although at this point the state of NY law is so much more progressive than federal law that I’ve been toying with starting a secession movement. Of course, the so-called ‘federalists’ on the US Supreme Court routinely declare that federal law overrides state law when it’s an issue where the *liberals* want state law to be valid…

    We still need a narrowly targeted civil disobedience movement, focused narrowly on publishing long-out-of-print “copyrighted” works and forcing them to sue us every. single. time. It will be tricky: the organization must not do any of the publication itself; that must be done by individuals who are willing to take the chance of getting sued.

    Every suit would be a public relations fiasco for the plaintiffs, provided every individual publishing was well-coached on what to say, namely something like this: “I want to share my favorite 90-year-old work with the public. The plaintiffs won’t even publish it, they just want to prevent people from reading it. I have nothing against copyrights, except when they mean that nobody can read my favorite, harmless, 90-year-old books. If the copyright owner published it, I would be happy to stop doing so.”
    The purpose of the organization would be careful design of exactly how to get the message across.

    This is specifically what I mean by civil disobedience. I want to focus it solely on the issue of unavailable works. This would, in a way, form a counterpush to the legal campaign for the Eldred Act or a similar Use-It-Or-Lose-It act, since all of the protesters’ activities would become legal if the appropriate legislation was passed.

  18. I saw you speak in Paris last year. It was truly inspiring. Don’t despair. Your memes are spreading…

    michael heraghty

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