[IP] Why Republicans Should Love Larry Lessig -- Wall Street Journal r eview
Delivered-To: dfarber+@xxxxxxxxxxxxxxxxxx
Date: Fri, 26 Mar 2004 08:57:26 -0500
From: "sbaker@xxxxxxxxxxx" <sbaker@xxxxxxxxxxx>
Subject: Why Republicans Should Love Larry Lessig -- Wall Street Journal r
eview
To: dave@xxxxxxxxxx
Dave,
I think you'll enjoy this. My editor tells me I own the copyright, so I can
give you permission to distribute it (it will probably by up on
OpinionJournal over the weekend as well).
Stewart
FREE CULTURE
By Lawrence Lessig
(The Penguin Press, 345 pages, $24.95)
By Stewart Baker
IN FEBRUARY 1774, the citizens of Edinburgh celebrated with ?bonfires and
illuminations? when a Scottish printer finally overturned a copyright
monopoly that had allowed English booksellers to lock up the works of
Shakespeare (and a host of other authors) for nearly two centuries.
Larry Lessig?s ?Free Culture? is the modern incarnation of those Edinburgh
bonfiresa bright and spark-filled polemic against the music and movie
moguls whom Mr. Lessig reviles as ?copyright extremists.?
And pretty successful extremists they?ve been, too. When the 20th century
began, copyright was a flimsy thing. It lasted for 28 years unless renewed.
To obtain even that protection, the publisher had to deposit or register a
work with the Library of Congress and print a notice claiming copyright at
the front of every volume. And he could do little or nothing to prevent
noncommercial copying.
Today, after a century of sustained lobbying, copyright lasts more or less
forever95 years for most corporate copyrightsand it can be acquired with
no formalities at all: no public notice, no deposit, no registration. As a
result, copyright is everywhere; it belongs to anyone who has ever written
an e-mail. Infringement is everywhere, too; every e-mail you forward puts
you at risk of liability, since even noncommercial copying is now prohibited.
Meanwhile the cost of liability has become staggeringand often divorced
from the harm suffered by the alleged victim. Even in cases where the
violation has caused no injury, ?statutory? damages of up to $150,000 are
awarded for every work copied. Plus attorneys? fees, of course. While the
state of California can fine a teenager who shoplifts an $18 compact disc
no more than a $1,000, Mr. Lessig notes, the record companies could sue him
privately for $1.5 million if he intentionally copied the same set of songs.
Combining legal sophistication with a storyteller?s knack, Mr. Lessig
mourns the effect of all these changes on the public domain. Artists, he
says, can no longer borrow freely from the past, at least not without a
crack legal team. He tells of one filmmaker whose authorized tribute to
Clint Eastwood required a year of grinding legal effort just to clear
rights to the clips it includedand of another who learned that showing
three seconds from a real television show in the background of one scene
would cost him $10,000.
The result, Mr. Lessig believes, is an unprecedented restriction on
creativity. A shrinking public domain, copyright?s sprawling scope and
savage liability rules effectively bar artists from doing what Walt Disney
didadapting a shared cultural vocabulary into new stories. Mr. Lessig
fears that artistic innovation is being corporatized and drained of life
and that the same fate could overtake technological innovation as well.
From Internet radio to digital television, new technologies are now
routinely held hostage, condemned in advance by the record and movie
industries as mere tools for pirates.
Well, they should know. As Mr. Lessig reveals, the recording industry was
just another new-age pirate when it began. In a 1906 copyright hearing,
Sen. Alfred Kittredge thundered against the new technology: ?Imagine the
injustice of the thing. A composer writes a song.... Along come the
phonographic companies... and deliberately steal the work of the brain of
the composer? by, uh, recording it. And Hollywood, that staunch defender of
intellectual property, owes its very existence to filmmakers who fled New
Jerseythen the center of the industryto escape Thomas Edison?s lawsuits
over unauthorized use of his patented cameras.
?Free Culture,? in short, is an insightful, entertaining brief for changing
our copyright policy. There is just one problem. Mr. Lessig aims most of
his arguments at people like himselfstandard-issue Howard Dean liberals.
Bad choice. He should be talking to conservatives. Viewed up close,
copyright bears little resemblance to the kinds of property that
conservatives value. Instead, it looks like a constantly expanding
government program run for the benefit of a noisy, well-organized interest
grouplike Superfund, say, or dairy subsidies, except that the benefits go
not to endangered homeowners or hardworking farmers but to the likes of
Barbra Streisand and Eminem.
It looks like Superfund in other ways, too. Copyright is a trial lawyer?s
dreama regulatory program enforced by private lawsuits where the
plaintiffs have all the advantages, from injury-free damages awards to
liability doctrines that extract damages from anyone who was in the
neighborhood when an infringement occurred.
So far, copyright interests have managed to avoid the reputation earned by
the trial lawyers. But that may be changing as copyright litigation
continues to spread. Mr. Lessig describes the recording studios? assault on
MP3.com, which in 2000 launched a service that let customers listen to
songs online if they had already purchased the CDs. Within a year, the
studios had sued MP3.com into insolvency; one studio then purchased the
remnants and, standing in the shoes of the defunct company, brought a
malpractice suit against MP3.com?s lawyers for advising it that the
online-listening service was lawful. Using the same tactics in 2003, a
couple of studios, after killing off Napster, sued the venture capitalists
who?d had the temerity to invest in it in the first place.
And that?s just the beginning. Recently, David Boies, famous for his
representation of Al Gore, signed a rich contingent-fee deal to pursue a
claim that Linux open-source software violates his client?s copyright. Last
month, he launched test cases against DaimlerChrysler and AutoZone. If he
prevails, businesses all across the country could find themselves paying
big damages simply for having purchased Linux servers. It?s asbestos
litigation for the Internet age.
That ought to be enough to wake up the business half of the Republican
coalition. As for social conservatives, it?s no accident that the rise in
offensive mass entertainment has coincided with the growth in copyright?s
reach. The more you subsidize an industry that treats the coarsening of our
culture as, well, as its business model, the more coarsening you?re going
to get. So if conservatives really want Janet Jackson?s attention, not to
mention MTV?s, they should stop lobbying the FCC and start asking why
obscene and indecent performances should be given 95 years of statutory
protection.
Big Copyright is one special interest that Republican strategists should
love attacking. What?s to fear, that Hollywood will end its generous
support of Republican candidates? And talk about wedge issues. Voters under
40 are already more Republican than any other generation. What if the
administration stood with them on this issue, proposing a cap on the
damages that the industry can extract from college students for downloading
music? Say, $1 a song, or even $10, instead of $150,000. Karl Rove could
put that on the table, sit back and let John Kerry choose between his
contributors and our kids.
If that happens, Mr. Lessig could end up next to Ralph Nader in the
pantheon of liberals that the Republican Party has learned to love.
Mr. Baker is a technology lawyer in Washington.
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