Supreme Court Copyright Challenge

Absorbing profile of Larry Lessig and his challenge to the copyright extension of 1998 in the LA Times mag

But Lessig doesn’t merely want to free the past. He wants to free the future as well. That’s something else that the entertainment companies want to lock up. The laws they are proposing and the technologies they are developing, he says, will make creativity on the Internet a wholly owned subsidiary of the Recording Industry Assn. of America and the Motion Picture Assn. of America.

His immediate target is a 1998 law that extended copyright protection an additional 20 years. It was a measure so obscure that the Senate passed it unanimously, with no debate and little public discussion. But it so outraged Lessig that he mounted what has become the first constitutional challenge of copyright limits to ever reach the Supreme Court. On Oct. 9, the former Supreme Court law clerk will try to persuade the justices to end private ownership of hundreds of thousands of artistic works, including some of America’s most cherished. If he gets the court to agree, both the past and the future will change.

”The world won’t end,” he says. ”Hollywood will just have to find a different way to make money.”

During the past three years, as his copyright lawsuit has wended its way through the courts, Lessig has been talking it up in forums around the country and Europe. Walt Disney, he is always careful to say, is his hero.

Disney, one of the most popular artists of the 20th century, knew what a bountiful resource the past could be. He refashioned the Brothers Grimm’s dark fairy tale “Snow White” into an upbeat charmer. He took Perrault’s “Cinderella” and made it an enduring fable of pluckiness. “Alice in Wonderland,” “The Jungle Book,” “Pinocchio,” “The Three Little Pigs,” “Treasure Island” were all adapted from classics and became classics themselves.

What outrages Lessig is that Disney and other entertainment companies don’t want this process repeated with their own works. They want very much to continue earning money by keeping their copyrights forever. Toward that end, Congress has extended copyright 11 times in the past 40 years, effectively locking away everything that Disney and every other entertainment company have ever produced.

If copyright laws lock up the past, they also are a very potent instrument for controlling the Internet. To a group of computer programmers in Monterey, Lessig recounts an anecdote about Sony’s robot dog, Aibo. An Aibo fan wrote a software program to make the dog dance to jazz. When the fan posted the code on the Internet so that other Aibo enthusiasts could teach their own dogs to dance, Sony lawyers contacted him and told him he had violated the Digital Millennium Copyright Act. Even though you’ve spent $1,500 for an Aibo, Sony still has control over how you play with it.

”Ours is less and less a free society,” Lessig says. ”The law is trying to make creativity a regulated industry.”

Lessig was a professional singer as a child, which gives him a natural ease on stage. His audiences often applaud mightily. But no one writes to Congress protesting how copyright is being abused on the Net. No one holds demonstrations. ”We have this culture of passivity,” he says. ”Most people like being spoon-fed culture. Look at the reaction to shutting Napster down. There was none. It’s like we’re the Soviet Union after communism. We’ve had 80 years of massive broadcast culture. It’s the only way we know to experience the world.”

His lawsuit, officially titled Eldred v. Ashcroft, is a way of forcing the issue. It’s a measure of the strength and importance of Lessig’s case that he will be opposed in court by Theodore B. Olson, the U.S. Solicitor General himself, and not some government underling. Olson won all eight cases he argued before the Supreme Court last term.

The court will consider the passage in the Constitution that states ”to promote the progress of science and useful arts,” Congress should grant copyright only for ”limited times.” For Congress in 1790, the limit was 14 years, plus another 14 if the creator was still alive. By that standard, “Snow White,” made in 1937, would have joined Shakespeare, Jane Austen and Mark Twain in the public domain in 1965. Instead, “Snow White” is now due to enter the public domain in 2032–unless, of course, copyright is extended again.

This case echoes remarkably the situation in the 18th century:

Before 1710, the Stationers’ Company, a guild of printers, controlled the publication and sale of all works in England, including those of authors who had been dead for thousands of years. The Stationers scoffed at the idea that their monopoly should be in any way limited. For one thing, they warned, if the system were dismantled it would ruin the economy. Equally important, they said, they had a moral right. No other property gets taken away after 10 or 20 years, they wrote in a broadside, so why should books? It’s an argument that the music and movie industries are still making today.

Nevertheless, the Statute of Anne in 1710 established a limited copyright term of 14 years. The Stationers spent the next 60 years alternately ignoring and challenging the law as they tried to suppress the Scottish publishers, who followed their own rules and were thus the Internet pirates of the era. But in a landmark case in 1774, the Stationers’ monopoly was finally broken and the past was freed.

When the U.S. Constitution was drawn up several years later, this history was still fresh. Jefferson wanted to put a ”restriction against monopolies” in the Bill of Rights, right alongside trial by jury and freedom of the press. He, like the other framers, hated concentrating power in the hands of a few, and didn’t like the idea of the past calling the shots on the future either. The earth belongs to the living, Jefferson wrote Madison on Sept. 6, 1789: ”The dead have neither powers nor rights over it.”