Why Republicans Should Love Larry Lessig -- Wall Street Journal r eview

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Fri, 26 Mar 2004 08:57:26 -0500
From: "sbaker () steptoe com" <sbaker () steptoe com>
Subject: Why Republicans Should Love Larry Lessig -- Wall Street Journal r 
eview
To: dave () farber net

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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