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Lessig on the Future of the Public Domain

by Richard Koman
04/02/2002

Shall we have a public domain, or not? Will creative works remain forever in the possession of their creators (or the companies who pay the creators), or will cultural icons and works that have captured the public imagination eventually be allowed to be commented on, referred to, and satirized? Would such a policy represent lethal blows to a company's brand identity (think Mickey Mouse)? We may know the answer soon, as the Supreme Court has agreed to consider the case of Eric Eldred.

Eldred, a publisher of public domain works in HTML form, sued the federal government over Congress' passing of a law that extended existing copyrights for another 20 years (the 11th time in the past 40 years this has happened). The Constitution plainly allows Congress to grant authors an exclusive right "for limited times." If Congress is allowed to continually extend the time period, Eldred argued, the Framers' intent of "limited" protection is slowly being transformed to "unlimited."

So far the courts have not agreed; the District Court and the Court of Appeals rejected the argument, saying that Congress is free to issue extensions. On a First Amendment argument Eldred also made, the courts held that copyright is "categorically immune" from First Amendment scrutiny.

Eldred’s plight is described in The Future of Ideas, Lawrence Lessig's heartfelt argument for the public domain and an "innovation commons." Lessig will be a keynote speaker at the O'Reilly Emerging Technology Conference later this spring, from May 13-16, in Santa Clara, Calif.

The Eldred case is now before the Supreme Court, and as Lessig discusses in this interview, he is optimistic that the Supremes will choose to preserve the public domain by limiting Congress' ability to extend copyrights into perpetuity.

Richard Koman: Let's start by just looking at the world since the publication of The Future of Ideas. What, if anything, has changed since publication, in terms of general awareness of the issues you raised, and in the landscape in Washington?

Lawrence Lessig: Well, there's both good news and bad news. The good news is the Supreme Court's accepting of the Eldred case, which means that we'll have a real chance to argue that perpetual extension of copyright terms is inconsistent with our constitutional tradition. And if we succeed, that will be a very important step in checking the power of copyright interests to control the future of innovation at what I call the content level of the network.

On the bad news side, the ability of the content owners to characterize and motivate the political process in the name of defending their core "property rights" has expanded. So the IT industry is slowly coming around to resisting their pressures, but not fast enough. And Washington is moving much more quickly to actually implement the type of controls that would expand their power than I thought they would have.

Koman: What is Washington doing specifically?

Lessig: Well, for example the consideration of Sen. (Fritz) Hollings' (D-S.C.) SSSCA (Security Systems Standards and Certification Act) bill. Although that bill itself might not be passed this session, certainly there's strong pressure from the Hollywood interests to get something like that passed, which would essentially require that devices [with anti-copying technology] become copyright police and thereby interfere with the process of innovation in a pretty significant way.

Koman: What have you heard from readers in terms of the call to action you issued in your book?

Lessig: Well, I actually get tons of emails all the time from people saying, "So what can I do? What's the next step? Where do I go to sign up?" So that's been reassuring and rewarding. I just wish there were some easy direction to push them in because I don't think we have the infrastructure established yet to support a strong movement to the other side.

I mean there are organizations like EFF that are doing a lot, and there are congressmen like Boucher who are doing something. But, you know, I'm not in the business of building a political movement, so there's only so much that I can do. But the reactions have been much stronger and more engaged than I expected. So I guess that's good news.

Koman: So you're getting reaction from the grassroots level, but in terms of the people who have a business interest in changing the path that we're now taking, which would include Silicon Valley, especially in light of SSSCA, have you seen anything in terms of movers and shakers that could really have a voice here, outside the grassroots?

Lessig: There has been a reaction. I don't want to get too specific about this because a lot of it's in the form of confidential conversations. But I do think that inside of key organizations in the Valley there is a recognition of the threat that I was writing about. And whether there's agreement all the way down on the details or just in general, there seems to be strong agreement that something needs to be done to assure that the opportunity for innovation continues.

Koman: You're involved in an effort called Creative Commons. Can you tell us about that?

Lessig: We're developing a way to lower the cost for people who want to make part or all of their work available to people in a public domain way. One of the biggest problems of the copyright system is the huge costs of lawyering that it creates. And one good definition of the public domain is that it's a lawyer-free zone. Stuff that's in the public domain is usable without worrying about getting anybody's permission to do that.

That's why in one sense we're pushing to advance the public domain, but as a compromise position we're also pushing to enable people to make their work available in the public domain in an extremely easy way. So we're going to build machinery to build licenses that allow people to mark their content as available in any number of ways to the public domain, so that search engines can find and link to that content, and people can easily get it and understand the terms under which they're getting it.

Koman: So in a case of some music file-sharing system where an artist might want to have their music in MP3 format be freely downloadable and tradable ....

Lessig: Right, for non-commercial use or something like that.

Koman: For non-commercial, yes.

Lessig: They could express that in a very easy way, and then we'll just have an easy way to see what exactly the terms are for this.

Koman: But there isn't really any way in existing music systems to display any license information about the file, it's just filename.mp3.

Lessig: Yes, the problem is both displaying the license information and displaying licensing information in an understandable way. Even if they link to a license that's in what they call English, it's written in a way that is extremely hard to understand. So we're trying to make it much easier to make stuff available in ways which computers and people can understand.

Koman: What is the relative health of the open source movement? It seems like Linux has somewhat stalled; at least the idea of Linux being a competitor to Windows on the desktop is pretty much dead. JBoss, an open source implementation of a Java application server, is not able to get any level of acceptance from Sun. AOL continues to stymie the open source IM clients. On the other hand, Microsoft is embracing, if you can call it that, open source through the shared source initiative. Apple has FreeBSD under the hood of OS X. So is open source continuing to show the advantages of the commons, or is it sort of a mixed bag?

Lessig: No, I think it's actually quite alive and well. I think if people thought that the success of open source would be its ability to dominate the last-generation model of the desktop environment, then of course it's been a failure. But I don't think that's the picture of whether open source is a success or not. I think its explosion in the context of embedded systems, its continuing lock on the basic infrastructure of the Web and the Internet generally, and its continued offer of a neutral platform that other people can build on, will continue to draw people to the open source and free software context in a way that will be a strong competitor to proprietary systems.

I think that people have learned from the history of the last 10 years, the costs that go with aligning too strongly with proprietary systems and that drives people to be skeptical of exclusively proprietary systems. Now I'm not someone who believes that the world would be great if there were no proprietary systems. I don't oppose proprietary software. I think the objective is a useful or balanced mix between proprietary and non-proprietary, and in that sense I think open source is still a very strong player.

Koman: So do you see the proprietary world as embracing some of the virtues of open source?

Lessig: Right, I do. And I wouldn't, you know, necessarily call their embrace, an embrace of open source yet. I mean Microsoft sees obviously a gain in the community feedback to software development and that's why they're encouraged to develop shared source. I wouldn't call shared source open source. Obviously, believing in the commons, I think that's a good idea itself. But I think the more fundamental tests will be whether the basic infrastructure of code in very important systems, not all, but very important systems, continues to be made available in an open source or free software way.

Koman: I guess you have a partial victory, or a provisional victory I should say, in the Supreme Court taking Eldred, but up to this point there were a number of disappointing decisions. Overall are you optimistic or pessimistic about your chances in the court and in Washington?

Lessig: You mean with Eldred?

Koman: I'm asking in more general terms, the general policy decision of public domain versus property rights.

Lessig: Well, that argument is only really framed in the context of Eldred. This case challenges the practice of Congress to systematically extend the terms of existing copyrights. Eleven times in the last 40 years Congress has extended the term of existing copyrights. And this is a practice which they've gotten into because copyright holders see great advantage to extending their copyrights, so that they continue to milk returns from their particularly successful properties.

But the problem is that this means that there's nothing feeding the public domain. And if there's nothing feeding the public domain then other creators won't have stuff to build on the way Disney, for example, built on the Grimm Fairy Tales. And so Eldred is a constitutional challenge of this process.

The challenge says that the Constitution plainly recognizes -- in fact, constitutionalizes -- the public domain by saying that copyrights can only be granted for "limited times." And, I'm fairly optimistic the Court will agree that limited times means what it says, "limited," and that it's no longer limited if every time it's about to expire Congress is allowed to extend it.

Now if we succeed in that, I think that will support not just this particular case, but a number of cases which are trying to reassert the balance between public domain and copyright. But this is, I think, so far the only case directly raising that kind of question.

Now you're right, we haven't won so far, but you know, we got zero votes in the district court, we got essentially two votes in the Court of Appeals. We got at least four votes so far in the Supreme Court to at least hear the case, so we're going in the right direction.

Koman: Right. I guess I was referring more to the decisions in the DeCSS case and the Felten case.

Lessig: Those cases raise very different kinds of legal questions. The Felten case was not really decided on the merits, it was decided on whether there was sufficient reason for the court to consider the matter at that time. And the DeCSS case is an important battle that we have so far lost, but that's more about the relationship between copyright and the First Amendment than it is about the importance of the public domain right now.

Koman: In the context of 9/11, in which issues of privacy, security, and freedom on the Net have a different import than they did before, are you more concerned about government control of content as opposed to corporate control of access?

Lessig: Obviously, the answer is yes, although I still think that the important thing to watch is how these two things interact. Because the government's anxiousness to support identification systems will be fed by commercial systems that would support identification systems. So that there will be a relaxation of the need to assure balance in the protection of privacy, you're hearing more of a concern to protect government control. I think the two feed together, so I don't think there's a good reason yet to give up the concern about commercial. Although I do agree, the government's going be pushing it more than I thought before.

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Richard Koman is a freelancer writer and editor based in Sonoma County, California. He works on SiliconValleyWatcher, ZDNet blogs, and is a regular contributor to the O'Reilly Network.


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