A constitutional test case becomes the seed for a movement.
Once the value of the public domain became evident, and a few visionaries realized that the commons needed to be protected somehow, an important strategic question arose: Which arena would offer the best hope for success — politics, culture, technology, or law?
The real answer, of course, was all of the above. Building a new digital republic would require a wholesale engagement with the politics of effecting democratic change and the challenges of building a cultural movement. It would require the invention of a shared technological infrastructure, and the development of legal tools to secure the commons. All were intertwined. But as a practical matter, anyone who aspired to stop the mass-media-driven expansions of copyright law had to choose where to invest his or her energy. In the mid-1990s, Lawrence Lessig decided that the greatest leverage would come through law.
Lessig, usually referred to as Larry, had the knowledge, talent, and good timing to conceptualize the politics of digital technologies at a ripe moment, the late 1990s, when the World Wide Web was exploding and people were struggling to understand its significance. However, Lessig was not content to play the sage law professor dispensing expertise at rarefied professional and scholarly gatherings; he aimed to become a public intellectual and highbrow activist. Through a punishing schedule of public speaking and a series of high-profile initiatives starting in 1998 and 1999, Lessig became a roving demigod-pundit on matters of the Internet, intellectual property, and cultural freedom.
In the course of his frequent travels, he had a particularly significant rendezvous at the Starbucks on Church Street in Cambridge, Massachusetts. It was November 1998. A month earlier, Congress had enacted the Sonny Bono Copyright Extension Act. Lessig was eager to meet with one Eric Eldred, a retired navy contractor, to see if he would agree to be a plaintiff in the first federal case to challenge the constitutionality of the copyright clause.
Eldred was a book enthusiast and computer programmer who had reached the end of his rope. Three years earlier, in 1995, he had launched a simple but brilliant project: a free online archive of classic American literature. Using his PC and a server in his home in New Hampshire, Eldred posted the books of Nathaniel Hawthorne, Henry James, Wallace Stevens, and dozens of other great authors whose works were in the public domain. Eldred figured it would be a great service to humanity to post the texts on the World Wide Web, which was just beginning to go mainstream.
Eldred had previously worked for Apollo Computer and Hewlett-Packard and was experienced in many aspects of computers and software. In the late 1980s, in fact, he had developed a system that enabled users to post electronic text files and then browse and print them on demand. When the World Wide Web arrived, Eldred was understandably excited. “It seemed to me that there was a possibility of having a system for electronic books that was similar to what I had done before. I was interested in experimenting with this to see if it was possible.” 82
So Eldred set out to build his own archive of public-domain books: “I got books from the library or wherever, and I learned how to do copyright research and how to scan books, do OCR [opticalcharacter recognition] and mark them up as HTML [the programming language used on the Web],” he said. “I just wanted to make books more accessible to readers.” 83
Eldred didn't realize it at the time, but his brave little archive, Eldritch Press, embodied a dawning cultural archetype — the selfpublished digital work meant to be freely shared with anyone in the world, via the Internet. Thanks to the magic of “network effects” — the convenience and value that are generated as more people join a network — Eldred's Web site was soon receiving more than twenty thousand hits a day. A growing community of book lovers came together through the site. They offered annotations to the online books, comments, and links to foreign translations and other materials. In 1997, the National Endowment for the Humanities considered the site so educational and exemplary that it formally cited Eldritch Press as one of the top twenty humanities sites on the Web.
Although it was only a one-person project, Eldritch Press was not just an idiosyncratic innovation. The convergence of telecommunications, personal computers, and software in the 1990s, otherwise known as the Internet, was facilitating an explosion of new genres of public expression. We are still grappling with how this new type of media system is different from broadcasting and other mass media. But we do know this: it invites mass participation because the system doesn't require a lot of capital or professional talent to use. The system favors decentralized interactivity over centralized control and one-way communication. Ordinary people find it relatively inexpensive and versatile. Since everyone has roughly the same access and distribution capacities, the Internet is perhaps the most populist communication platform and egalitarian marketplace in human history.
This was not the goal of the computer scientists who invented the Internet, of course. Working under the auspices of the U.S. military, they were chiefly concerned with building a communications system that would allow academic researchers to share computerized information cheaply and easily. The idea was that intelligence and innovation would arise from the “edges” of a “dumb” network, and not be controlled by a centralized elite in the manner of broadcasting or book publishing. The Internet — a network of networks — would be a platform open to anyone who used a shared set of freely accessible “protocols,” or standardized code, for computer hardware and software. *4
What was radically new about the network architecture was its freedom: No special qualifications or permissions were needed to communicate or “publish.” No one needed to pay special fees based on usage. Anyone could build her own innovative software on top of the open protocols, It is a measure of the system's power that it has spawned all sorts of innovations that were not foreseen at the outset: in the 1990s, the World Wide Web, instant messaging, peer-to-peer file sharing, and Web logs, and, in the 2000s, podcasts, wikis, social networking software, and countless other applications. The open, shared protocols of the Internet provided an indispensable communications platform for each of these innovations to arise.
In building his online archive, Eric Eldred was part of this new cultural cohort of innovators. He not only shared Richard Stallman's dream — to build an open, sharing community. He also came to share Stallman's contempt for the long arm of copyright law. The problem, in Eldred's case, was the corporate privatization of large portions of the public domain. In the 1990s, the Walt Disney Company was worried that its flagship cartoon character, Mickey Mouse, would enter the public domain and be freely available for anyone to use. Mickey, originally copyrighted in 1928, was nearing the end of his seventy-five-year term of copyright and was due to enter the public domain in 2003.
Disney led a concerted campaign to extend the term of copyrights by twenty years. Under the new law, all works copyrighted after January 1, 1923, would be privately controlled for another twenty years. Corporations would be able to copyright their works for ninety-five years instead of seventy-five years, and the works of individual authors would be a private monopoly for the author's lifetime plus seventy years. Thousands of works that were expected to enter the public domain in 1999 and following years would remain under copyright until 2019 and beyond.
Congress readily enacted this twenty-year giveaway of monopoly rights on a unanimous vote, and without any public hearings or debate. Disney was the most visible beneficiary of the law, prompting critics to dub it the Mickey Mouse Protection Act. But its more significant impact was to deprive Americans of access to an estimated four hundred thousand cultural works from the 1920s and 1930s. Books by Sherwood Anderson, music by George Gershwin, poems by Robert Frost, and tens of thousands of other works would remain under private control for no good reason. The law was the eleventh time in the course of four decades that Congress had extended the term of copyright protection. American University law professor Peter Jaszi complained that copyright protection had become “perpetual on the installment plan.”
The law was astonishingly inefficient and inequitable as well. To preserve the property rights of the 2 percent of works from this period that still had commercial value, the law also locked up the remaining 98 percent of works (whose owners are often unknown or unable to be located in order to grant permissions). Indeed, it was these “orphan works” — works still under copyright but not commercially available, and with owners who often could not be found — that represent an important “feedstock” for new creativity. The Sonny Bono Act showered a windfall worth billions of dollars to the largest entertainment businesses and authors' estates.
At a more basic level, the copyright term extension showed contempt for the very rationale of copyright law. Copyrights are intended as an inducement to authors to create works. It is a government grant of monopoly property rights meant to help authors earn money for producing books, music, film, and other works. But, as Lessig pointed out, “You can't incent a dead person. No matter what we do, Hawthorne will not produce any more works, no matter how much we pay him.” Jack Valenti replied that longer copyright terms would give Hollywood the incentive to preserve old films from deteriorating and make them available.
The copyright term extension act privatized so many of the public domain books on the Eldritch Press Web site, and so offended Eldred's sense of justice, that in November 1998 he decided to close his site in protest. The new law meant that he would not be able to add any works published since 1923 to his Web site until 2019. “I can no longer accomplish what I set out to do,” said Eldred. 84
As luck had it, Larry Lessig was looking for an Everyman of the Internet. Lessig, then a thirty-seven-year-old professor at Harvard Law School, was looking for a suitable plaintiff for his envisioned constitutional test case. He had initially approached Michael S. Hart, the founder of Project Gutenberg, the first producer of free electronic books. At the time, the project had nearly six thousand public-domain books available online. (It now has twenty thousand books; about 3 million books are downloaded every month.) Hart was receptive to the case but had his own ideas about how the case should be argued. He wanted the legal complaint to include a stirring populist manifesto railing against rapacious copyright holders. Lessig demurred and went in search of another plaintiff. 85
After reading about Eldred's protests in the Boston Globe, and meeting with him over coffee, Lessig asked Eldred if he would be willing to be the plaintiff in his envisioned case. Eldred readily agreed. As a conscientious objector and draft resister during the Vietnam War, he was ready to go to great lengths to fight the Sonny Bono Act. “Initially, I volunteered to violate the law if necessary and get arrested and go to jail,” Eldred said. “But Larry told me that was not necessary.” A good thing, because under the No Electronic Theft Act, passed in 1997, Eldred could be charged with a felony. “I could face jail, fines, seizure of my computer, termination of my Internet service without notice — and so all the e-books on the Web site could be instantly lost,” he said.
It was the beginning of a landmark challenge to the unchecked expansion of copyright law. The case would turbocharge Lessig's unusual career and educate the press and public about copyright law's impact on democratic culture. Most significantly, it would, in time, spur the growth of an international free culture movement.
Since Lessig looms so large in this story, it is worth pausing to understand his roots. Raised by culturally conservative, rock-ribbed Republican parents in central Pennsylvania, Lessig was a bright kid with a deep enthusiasm for politics. “I grew up a right-wing lunatic Republican,” Lessig told journalist Steven Levy, noting that he once belonged to the National Teen Age Republicans, ran a candidate's unsuccessful campaign for the Pennsylvania state senate, and attended the 1980 Republican National Convention, which nominated Ronald Reagan for president. Larry's father, Jack, was an engineer who once built Minuteman missile silos in South Dakota (where Lessig was born in 1961), and who later bought a steelfabrication company in Williamsport, Pennsylvania. 86
Lessig initially thought he would follow in his father's footsteps, and so he went to the University of Pennsylvania to earn degrees in economics and management. Later, studying philosophy at Trinity College in Cambridge, England, he faced growing doubts about his deep-seated libertarian worldview. Hitchhiking through Eastern Bloc countries, Lessig gained a new appreciation for the role of law in guaranteeing freedom and making power accountable. “There were many times when people in Eastern Europe would tell me stories about the history of the United States that I had never been taught: things like the history of how we treated Native Americans; and the history of our intervention in South America; and the nature of our intervention in South East Asia,” Lessig told Richard Poynder in 2006. “All of those were stories that we didn't tell ourselves in the most accurate and vivid forms.” These experiences, said Lessig, “opened up a channel of skepticism in my head.” 87
Lessig's sister Leslie once told a reporter that Larry came back from Cambridge a very different person: “His views of politics, religion, and his career had totally flipped.” 88 No longer aspiring to be a businessman or a philosopher, Lessig set his sights on law and entered the University of Chicago Law School in 1986. He transferred the next year to Yale Law School (to be near a girlfriend), groomed himself to be a constitutional law scholar, and graduated in 1989.
Although he now considered himself a liberal, Lessig spent the next two years in the service of two of the law's most formidable conservatives. He clerked for circuit court judge Richard Posner in 1988–89, followed by a year clerking for Supreme Court justice Antonin Scalia during the 1990–91 term. His educational odyssey complete, the thirty-year-old Lessig settled into the life of a tenured law professor at the University of Chicago Law School.
One of Lessig's early scholarly concerns — adjudication — was not exactly a warm-up for tub-thumping activism. But it did curiously prefigure his later interest in using law as a tool to effect political change. In a 1993 law review article, Lessig wondered how courts should interpret the law when public sentiment and practice have changed. If a judge is going to be true to the original meaning of a law, Lessig argued, he must make a conscientious “translation” of the law by taking account of the contemporary context. A new translation of the law is entirely justified, and should supplant an old interpretation, Lessig argued, if prevailing social practices and understandings have changed, The important thing in interpreting law, therefore, is “fidelity in translation.” 89
Lessig elaborated on this theme in a 1997 article that spent twenty-seven dense pages pondering how two different Supreme Courts, separated by nearly a century, could look to identical words in the Constitution and reach precisely opposite conclusions. *5 It is not as if one Court or the other was unprincipled or wrong, Lessig wrote. Rather, any court must take account of contemporary social norms and circumstances in “translating” an old law for new times. Lessig called this dynamic the "Erie-effect," a reference to the U.S. Supreme Court's 1938 ruling in Erie Railroad Co. v. Tompkins. The Erie-effect is about the emergence of “a kind of contestability about a practice within a legal institution,” which prompts “a restructuring of that practice to avoid the rhetorical costs of that contestability.” 90
Lessig described how an Erie-effect might be exploited to catalyze a political shift (paraphrased here): identify a socially contested law, aim to force the conflicting social practice into the foreground by inflaming conventional discourse, and then argue for a change in legal interpretation in order to relieve the contestability that has been alleged. 91 If the conflict between the law and actual social practice can be made vivid enough, a court will feel pressure to reinterpret the law. Or the court will defer to the legislature because the very contestability of the law makes the issue a political question that is inappropriate for a court to resolve. One notable instance of the Erie-effect in our times, Lessig pointed out, was the successful campaign by feminist law scholar Catherine MacKinnon to define sexual harassment in the workplace as a form of illegal discrimination. The point was to transform popular understanding of the issue and then embody it in law.
Lessig was not especially focused on tech issues until he ran across Julian Dibbell's article “A Rape in Cyberspace,” which appeared in the Village Voice in December 1993. 92 The piece described the social havoc that ensued in an online space, LambdaMOO, hosted at Xerox Palo Alto Research Center. One pseudonymous character “raped” another in the virtual space, using cruel words and graphic manipulations. The incident provoked an uproar among the thousand members of LambdaMOO, and had real emotional and social consequences. Yet, as Dibbell pointed out, “No bodies touched. Whatever physical interaction occurred consisted of a mingling of electronic signals sent from sites spread out between New York City and Sydney, Australia.”
For Lessig, the LambdaMOO “rape” had an obvious resonance with Catherine MacKinnon's arguments in her 1993 book Only Words. Does a rape in cyberspace resemble the harms inflicted on real women through pornography? Lessig saw intriguing parallels: “I really saw cyberspace as a fantastic opportunity to get people to think about things without recognizing the political valences. That's all I was interested in; it was purely pedagogical.” 93
To explore the issues further, Lessig developed one of the first courses on the law of cyberspace. He taught it in the spring semester of 1995 at Yale Law School, where he was a visiting professor, and later at the University of Chicago and Harvard law schools. During the Yale class, an exchange with a student, Andrew Shapiro, jarred his thinking in a new direction: “I was constantly thinking about the way that changing suppositions of constitutional eras had to be accounted for in the interpretation of the Constitution across time. Andrew made this point about how there's an equivalent in the technical infrastructure [of the Internet] that you have to think about. And then I began to think about how there were norms and law and infrastructure — and then I eventually added markets into this — which combine to frame what policymaking is in any particular context.” 94
This line of analysis became a central theme of Lessig's startling first book, Code and Other Laws of Cyberspace, published in 1999. 95 Code took on widespread assumptions that the Internet would usher in a new libertarian, free-market utopia. Cyberlibertarian futurists such as Alvin Toffler, Esther Dyson, George Gilder, and John Gilmore had routinely invoked cyberspace as a revolutionary force that would render government, regulation, and social welfare programs obsolete and unleash the transformative power of free markets. 96 In the libertarian scenario, individual freedom can flourish only if government gets the hell out of the way and lets individuals create, consume, and interact as they see fit, without any paternalistic or tyrannical constraints. Prosperity can prevail and scarcity disappear only if meddling bureaucrats and politicians leave the citizens of the Internet to their own devices. As Louis Rossetto, the founder and publisher of Wired, bluntly put it: “The idea that we need to worry about anyone being ‘left out' is entirely atavistic to me, a product of that old economics of scarcity and the 19th century social thinking that grew out of it.” 97
Lessig was more wary. In Code, he constructed a sweeping theoretical framework to show how freedom on the Internet must be actively, deliberately constructed; it won't simply happen on its own. Inspired by conversations with computer programmer Mitch Kapor, who declared that “architecture is politics” in 1991, Lessig's book showed how software code was supplanting the regulatory powers previously enjoyed by sovereign nation-states and governments. The design of the Internet and software applications was becoming more influential than conventional sources of policymaking — Congress, the courts, federal agencies. Code is law, as Lessig famously put it.
What was worrisome, Lessig warned, was how relatively small changes in software code could alter the “architecture of control” governing the Internet. The current architecture was not necessarily stable and secure, in other words. Moreover, any future changes were likely to be animated by private, commercial forces and not publicly accountable and democratic ones. Lessig illustrated this point with a disarmingly simple drawing of a dot representing an individual, whose range of behaviors is affected by four distinct forces: software architecture, the market, law, and social norms. Each of these factors conspires to regulate behaviors on the Internet, Lessig argued — and commercial forces would clearly have the upper hand.
Code was a powerful and sobering rebuttal to libertarian assumptions that “keeping government out” would safeguard individual freedom. Its analysis quickly became the default conceptual model for talking about governance on the Internet. It helped situate many existing policy debates — Internet censorship, digital privacy, copyright disputes — in a larger political and policy framework. Although many readers did not share Lessig's pessimism, Code helped expose an unsettling truth — that a great many legislators, federal agencies, and courts were largely oblivious to the regulatory power of software code. They didn't have a clue about the technical structures or social dynamics affecting life on the Internet, let alone how existing law would comport with this alien domain.
Code was widely praised and widely read. But it was only one project of that period that catapulted Lessig to international prominence. In the mid-1990s, Charles Nesson, a bold-thinking, highflying evidence professor at Harvard Law School, was organizing the Berkman Center for Internet & Society. The new project aspired to study “the most difficult and fundamental problems of the digital age,” and show public-interest leadership in addressing them. Nesson, who had become modestly famous for his role in the W. R. Grace litigation chronicled in Jonathan Harr's A Civil Action, recruited Lessig to be the Berkman Center's marquee star in 1997. It was an irresistibly prestigious and visible perch.
This was demonstrated within months, when Judge Penfield Jackson tapped Lessig to be a “special master” in one of the most important antitrust cases in a generation, U.S. v. Microsoft. 98 Lessig's assignment was to sift through the welter of technical claims and counterclaims in the case and produce a report with recommendations to the court. The government alleged that Microsoft had abused its monopoly power in its sales of its operating system and Web browser, particularly in “bundling” the browser with the Windows operating system.
Microsoft soon raised questions about Lessig's neutrality as a special master. Among other objections, the company cited his book's claim that software code is political and a passage that said Microsoft was “absolutely closed” compared to an open-standards body. It also dredged up an e-mail in which Lessig facetiously equated using Micosoft's Internet Explorer with “selling one's soul.” After nearly eight weeks on the job, the Court of Appeals, citing a technicality, took Lessig off the case, to his enduring disappointment. He has been deeply frustrated by the implication that he had been removed for bias (the court made no such finding) and by his abrupt banishment from a plum role in a landmark case.
Back at the Berkman Center, however, there were plenty of opportunities to influence the digital future. The center was a hothouse of venturesome ideas and eccentric visionaries. It was a place where John Perry Barlow could drop by to talk with Lessig and Berkman co-founder Jonathan Zittrain, one of the early cyberlaw experts. The center drew upon the ideas of intellectual property guru William (Terry) Fisher; Charles Nesson, who specialized in launching Big Ideas; and a self-renewing batch of bright law students eager to make their mark on a hip and emerging field of law. Richard Stallman at nearby MIT was an occasional visitor, as was MIT computer scientist Hal Abelson, who combined deep technical expertise with an appreciation of the social and democratic implications of digital technologies. It was during this time, in 1998, that Lessig and Abelson jointly taught The Law of Cyberspace: Social Protocols at Harvard Law School. The class was an attempt to make sense of some novel legal quandaries exploding on the Internet, such as computer crime, identity authentication, digital privacy, and intellectual property.
While nourished by the work of his academic colleagues, Lessig was determined to come up with ingenious ways to do something about the distressing drift of copyright law. It was important to take the offensive. Notwithstanding the pessimism of Code, Lessig's decidedly optimistic answer was to gin up a constitutional challenge to copyright law. Many legal experts and even sympathetic colleagues were skeptical. Peter Jaszi, a leading intellectual law professor at American University, told a reporter at the time, “It's not so much that we thought it was a terrible idea but that it was just unprecedented. Congress has been extending copyright for 180 years, and this is the first time someone said it violated the Constitution.” 99 Others worried that an adverse ruling could set back the larger cause of copyright reform.
In the spirit of the commons, Lessig and his Berkman Center colleagues decided that the very process for mounting the Eldred lawsuit would be different: “Rather than the secret battles of lawyers going to war, we will argue this case in the open. This is a case about the commons; we will litigate it in the commons. Our arguments and strategy will be developed online, in a space called ‘openlaw.org.' Key briefs will be drafted online, with participants given the opportunity to criticize the briefs and suggest other arguments. . . . Building on the model of open source software, we are working from the hypothesis that an open development process best harnesses the distributed resources of the Internet community. By using the Internet, we hope to enable the public interest to speak as loudly as the interests of corporations.” 100
Emulating the open-source development model was a nice touch, and perhaps useful; dozens of people around the world registered at the Openlaw site and posted suggestions. Some of the examples and legal critiques were used in developing the case, and the model was later used by lawyers in the so-called DeCSS case, in which a hacker broke the encryption of a DVD. But it turns out that open, distributed creativity has its limits in the baroque dance of litigation; it can't work when secrecy and confidentiality are important, for example.
The case, Eldred v. Reno — later renamed Eldred v. Ashcroft when the Bush II administration took office — was filed in federal district court in Washington, D.C., on January 11, 1999. 101 The complaint argued that the Copyright Term Extension Act violated Article 1, section 8, clause 8, of the Constitution, which provides that copyright protection shall be of limited duration. It also argued that the Term Extension Act violated the free speech clause of the First Amendment. In some respects, the case could never have been waged without the foundation of legal scholarship produced in the 1990s, which rehearsed a great many of the arguments presented to the Court. In opposition were motion picture studios, the music industry, and book publishers. They argued that Congress had full authority under the Constitution to extend copyright terms, as it had done since the beginning of the republic.
In October 1999, the U.S. District Court brusquely dismissed the case without even holding a trial. Lessig and his Berkman colleagues were not entirely surprised, and quickly set about filing an appeal with the U.S. Court of Appeals for the District of Columbia Circuit. Going beyond the Openlaw experiment at Berkman, they enlisted the support of several lawyers at Jones, Day, Reavis & Pogue. On appeal, Lessig was allowed to argue the case personally to a panel of judges. But once again, in February 2001, the case was dismissed. Lessig considered it a significant victory that it was a 2-1 ruling, however, which meant that a further appeal was possible. Lessig was also encouraged that the dissenter had been the court's most conservative member, Judge David Sentelle. Lessig requested that the full circuit court hear the case — a petition that was also rejected, this time after picking up support from a liberal dissenter, Judge David Tatel.
Normally, this would have been the end of the road for a case. Very few appeals court cases are accepted for review by the U.S. Supreme Court, particularly when the case has not even been argued at trial and no other courts have passed judgment on the statute. So it was quite surprising when the Supreme Court, in February 2002, accepted Eldred for review and scheduled oral arguments for October 2002.
At this point, Lessig realized he needed the advice and support of some experienced Supreme Court litigators. He enlisted help from additional lawyers at Jones, Day; Alan Morrison of Public Citizen Litigation Group; Kathleen Sullivan, the dean of Stanford Law School; and Charles Fried, a former solicitor general under President Reagan. Professor Peter Jaszi and the students of his law clinic drafted an amicus brief.
A key concern was how to frame the arguments. Attorney Don Ayer of Jones, Day repeatedly urged Lessig to stress the dramatic harm that the Bono Act was inflicting on free speech and free culture. But as Lessig later confessed, “I hate this view of the law. . . . I was not persuaded that we had to sell our case like soap.” 102 Lessig was convinced that the only way Eldred could prevail at the Supreme Court would be to win over the conservative justices with a matter of principle. To Lessig, the harm was obvious; what needed emphasis was how the Sonny Bono Act violated “originalist” principles of jurisprudence. (Originalist judges claim to interpret the Constitution based on its “original” meanings in 1791, which includes a belief that Congress has strictly enumerated powers, not broad legislative discretion.)
“We tried to make an argument that if you were an originalist— in the way these conservative judges said they were in many other cases — then you should look to the original values in the Copyright Clause,” said Lessig. “And we argued that if you did that then you had to conclude that Congress had wildly overstepped its constitutional authority, and so the law should be struck down.” 103 Flaunting the harm caused by the copyright term extension struck Lessig as showy and gratuitous; he considered the harm more or less selfevident. In the aftermath of a public debate that Lessig once had with Jack Valenti, a questioner on Slashdot, a hacker Web site, suggested that Lessig would be more persuasive if he asserted “a clear conception of direct harm . . . than the secondary harm of the copyright holders getting a really sweet deal.” Lessig conceded that such a focus “has been a weakness of mine for a long time. In my way of looking at the world, the point is a matter of principle, not pragmatics. . . . There are many others who are better at this pragmatism stuff. To me, it just feels insulting.” 104
And so, despite warnings to the contrary, Lessig's legal strategy relied on a call to uphold originalist principles. Having clerked for Justice Scalia and Judge Posner, Lessig felt that he understood the mind-set and sympathies of the conservative jurists. “If we get to the Supreme Court,” Lessig told Slashdot readers in December 2001, “I am certain that we will win. This is not a left/right issue. The conservatives on the Court will look at the framers' Constitution— which requires that copyrights be granted for ‘limited times' — and see that the current practice of Congress . . . makes a mockery of the framers' plan. And the liberals will look at the effect of these never-ending copyrights on free speech, and conclude that Congress is not justified in this regulation of speech. The Supreme Court doesn't give a hoot about Hollywood; they will follow the law.” 105
Lessig took pride in the fact that thirty-eight amicus briefs were filed on behalf of Eldred. They included a wide range of authors, computer and consumer electronics companies, and organizations devoted to arts, culture, education, and journalism. Besides the usual suspects like the Free Software Foundation, Electronic Frontier Foundation, and Public Knowledge, supporting briefs were filed by fifteen economists including Kenneth Arrow and Milton Friedman, Phyllis Schlafly of the Eagle Forum, and the Intel Corporation.
At oral arguments, Lessig immediately confronted a skeptical bench. Justice Sandra Day O'Connor worried about overturning years of previous copyright term extensions. Justice William Rehnquist proposed. “You want the right to copy verbatim other people's books, don't you?” And when Justice Anthony Kennedy invited Lessig to expound upon the great harm that the law was inflicting on free speech and culture, Lessig declined the opportunity. He instead restated his core constitutional argument, that copyright terms cannot be perpetual. “This was a correct answer, but it wasn't the right answer,” Lessig later confessed in a candid postmortem of the case. “The right answer was to say that there was an obvious and profound harm. Any number of briefs had been written about it. Kennedy wanted to hear it. And here was where Don Ayer's advice should have mattered. This was a softball; my answer was a swing and a miss.” 106 No justices spoke in defense of the Sonny Bono Act.
Yet they had clear reservations about the Supreme Court's authority to dictate the length of copyright terms.
A few months later, on January 15, 2003, the Supreme Court announced its ruling: a 7-2 defeat for Eldred. The majority opinion, written by Justice Ruth Bader Ginsburg, did not even raise the “enumerated powers” argument or engage with originalist philosophy. “We are not at liberty to second-guess Congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be,” Ginsburg wrote. 107 She likewise ignored the idea that there is a “copyright bargain” between the American people and copyright holders, which entitles the public to certain rights of access to the public domain. As for copyright's impact on free speech, Ginsburg invoked the fair use doctrine and the “idea/expression dichotomy” (the notion that ideas are freely available but expression can be copyrighted) as sufficient protections for the public. She ignored the fact that both doctrines were (and are) under fierce assault.
Justices Stephen Breyer and John Paul Stevens accepted Lessig's arguments, and wrote separate dissents. Breyer — a respected scholar of copyright law since his famous 1970 essay “The Uneasy Case for Copyright” 108 —agreed that copyright terms had effectively become perpetual, and that the law was therefore unconstitutional. Stevens complained that the majority decision reneged on the copyright bargain and made copyright law “for all intents and purposes judicially unreviewable.”
In assessing the broad impact of the Eldred ruling, copyright scholar Siva Vaidhyanathan cited law professor Shubha Ghosh's observation that the Eldred ruling had effectively “deconstitutionalized” copyright law. Eldred pushed copyright law
farther into the realm of policy and power battles and away from principles that have anchored the system for two centuries. That means public interest advocates and activists must take their battles to the public sphere and the halls of Congress. We can't appeal to the Founders' wishes or republican ideals. We will have to make pragmatic arguments in clear language about the effects of excessive copyright on research, teaching, art and journalism. And we will have to make naked mass power arguments with echoes of “we want our MP3” and “it takes an industry of billions to hold us back.” 109
The Eldred case had a paradoxical effect. Early on, Lessig had said, “We didn't want to make it a big political cause. We just wanted to make it an extension of the existing Supreme Court jurisprudence, because we realized that the only way to win the case was to win the conservatives' view, and the conservatives were not likely to be motivated by great attacks on media concentration.” 110 The upshot of the Court's ruling was to intensify the political battles over copyright law. While such resistance was already growing, the Eldred ruling and the publicity surrounding it spawned a new generation of “copyfighters.” Lessig had wanted to protect the commons through law, only to find that the courts were unwilling to offer any help. Any answers would now have to be pursued through politics, culture, and technology — and ingenious uses of law where feasible. How to proceed in this uncharted territory became the next challenge, as we see in chapter 4.
After four years of relentless work, Lessig was frustrated and dejected. “I had failed to convince [the Supreme Court] that the issue was important,” he wrote in a frank confessional, “and I had failed to recognize that however much I might hate a system in which the court gets to pick the constitutional values that it will respect, that is the system we have.” 111 For a constitutional law scholar, it was a rude awakening: constitutional originalists could not be taken at their word! Scalia and fellow justice Clarence Thomas had declined to stand behind their jurisprudential principles.
Yet Lessig had certainly been correct that Eldred would not succeed unless it convinced the Court's conservative majority. The fact that the originalist gambit failed was perhaps the strongest message of all: nothing would convince this Court to rein in the excesses of copyright law.
Even before the Supreme Court had delivered its ruling, Lessig admitted his misgivings about the power of law to solve copyright's failings: “The more I'm in this battle, the less I believe that constitutional law on its own can solve the problem. If Americans can't see the value of freedom without the help of lawyers, then we don't deserve freedom.” 112 Yet mobilizing freedom-loving Americans to seek redress from Congress was also likely to be doomed. Hollywood film studios and record companies had showered some $16.6 million and $1.8 million, respectively, on federal candidates and parties in 1998. Legislators know who butters their bread, and the public was not an organized influence on this issue. No wonder a progressive copyright reform agenda was going nowhere.
Four years after the Eldred ruling, Lessig had some second thoughts about the “Mickey Mouse” messaging strategy. Opponents of the copyright term extension, including Lessig, had often flaunted Mickey motifs in their dealings with the press and railed at the “Mickey Mouse Protection Act.” Yet in 2006, Lessig lamented to one interviewer that “the case got framed as one about Mickey Mouse. Whereas the reality is, who gives a damn about Mickey Mouse? The really destructive feature of the Sonny Bono law is the way it locks up culture that has no continuing commercial value at all. It orphaned culture. So by focusing on Mickey Mouse, the Court thought this was an issue of whether you believed in property or not. If, however, we had focused people on all the culture that is being lost because it is locked up by copyright, we might have succeeded.” 113
The lasting impact of the Eldred case, ironically, may have less to do with the law than with the cultural movement it engendered. The lawsuit provided a powerful platform for educating the American people about copyright law. A subject long regarded as arcane and complicated was now the subject of prominent articles in the New York Times, Salon, computer magazines, wire services, and countless other publications and Web sites. A cover story for the Los Angeles Times's Sunday magazine explained how the case could “change the way Hollywood makes money — and the way we experience art.” Wired magazine headlined its profile of Lessig “The Great Liberator.” Lessig himself barnstormed the country giving dozens of presentations to librarians, technologists, computer programmers, filmmakers, college students, and many others. Even Lessig's adversary at the district court level, Arthur R. Miller, a Harvard Law School professor, agreed, “The case has sparked a public discussion that wasn't happening before.”
Lessig's orations often provoked the fervor of a revival meeting — and led to more than a few conversions. This may appear surprising because Lessig, with his receding hairline and wireframe glasses, strikes an unprepossessing pose. In the professorial tradition, he can sometimes be didactic and patronizing. But on the stage, Lessig is stylish, poised, and mesmerizing. His carefully crafted talks are intellectual but entertaining, sophisticated but plainspoken— and always simmering with moral passion. He typically uses a customized version of Keynote, a Macintosh-based program similar to PowerPoint, to punctuate his dramatic delivery with witty visuals and quick flashes of words. (Experts in professional presentations have dubbed this style the “Lessig Method,” and likened it to the Takahashi Method in Japan because slides often use a single word, short quote, or photo.) 114
More than a sidebar, Lessig's public speaking has been an important aspect of his leadership in building a commons movement. His talks have helped some fairly sequestered constituencies in technical fields — computer programming, library science, Internet policy, copyright law — understand the larger political and cultural significance of their work. The results have sometimes been galvanizing. As one veteran hacker told me in 2006, “There's a whole connoisseurship of Lessig talks. He's a little past his peak right now — but there was a period where, like when he gave the lecture at OSCON [a conference of open-source programmers], when he was done, they wanted to start a riot. People were literally milling around, looking for things to smash. He was saying to these people who worked on open source, ‘There's a larger world context to your work. The government is doing things — and you can stop them!' ” 115
Following oral arguments before the Supreme Court, the movement — such as it was — had a rare gathering of its leaders. Public Knowledge co-hosted a luncheon for those who had aided the lawsuit. The diners spanned the worlds of libraries, computers, Internet publishing, public-interest advocacy, and many other fields. The event was held at Washington's Sewall-Belmont House, where the National Woman's Party once led the fight for women's suffrage. This prompted Gigi Sohn, president of Public Knowledge, to declare, “We, too, are building a movement.” 116
So after arguing — and losing — before the U.S. Supreme Court, what does a copyright superstar do for an encore?
A seed had already been planted at the Starbucks meeting four years earlier. Eldred recalls telling Lessig, “I think this case is very important, and I think you're the right guy for this. But at the same time, I'd like to talk to you about something else. I really think that we need to start up some sort of a copyright conservancy, which would be sort of like a nature conservancy. It would allow people to donate books to the public domain; we could then take ownership of them. They could maybe have a tax deduction for them, and we could — instead of having the book privately owned — they would be in the public domain, maybe before the copyright term expired. We could sort of have an independent group maintain this conservancy, and allow the books to be put on the Internet for free.”
Eldred remembers that Lessig “was sort of stunned. He didn't have anything to say for a little while. We sort of looked at each other, and I think he was very shocked and surprised that I said that. And he said, ‘I don't think we can do it until we've done the work on the copyright term extension act suit, but I promise to do it.'” 117
82. Interview with Eric Eldred, August 1, 2006; Daren Fonda, “Copyright Crusader,” Boston Globe Magazine, August 29, 1999, available at ‹http://www.boston.com/globe/magazine/8-29/featurestory1.shtml›; and Eric Eldred, “Battle of the Books: The Ebook vs. the Antibook,” November 15, 1998, at ‹http://www.eldritchpress.org/battle.html›.
83. Interview with Eric Eldred, August 1, 2006.
*4. The Internet protocols that enable different computers and networks to connect despite their differences is TCP/IP, which stands for TransmissionControl Protocol/Internet Protocol. These protocols enabled the commons known as the Internet to emerge and function, and in turn to host countless other commons “on top” of it.
85. Richard Poynder interview with Lawrence Lessig, “The Basement Interviews: Free Culture,” April 7, 2006, p. 26, available at ‹http://poynder.blogspot.com/2006/03/basement-interviews.html›. See also Steven Levy, “Lawrence Lessig's Supreme Showdown,” Wired, October 2002, pp. 140–45, 154–56, available at ‹http://www.wired.com/wired/archive/10.10/lessig.html›. Project Gutenberg is at ‹http://wwwgutenberg.org›.
87. Poynder interview with Lessig, April 7, 2006.
88. Levy, “Lawrence Lessig's Supreme Showdown.”
89. Lawrence Lessig, “Fidelity in Translation,” Texas Law Review 71, no. 1165 (May 1993).
90. Lawrence Lessig, “Erie-Effects of Volume 110: An Essay on Context in Interpretive Theory,” Harvard Law Review 110, no. 1785 (1997).
*5. The Erie ruling held that federal common law, previously recognized by the U.S. Supreme Court in 1842, was unconstitutional.
91. Ibid., p. 1809.
92. Julian Dibbell, “A Rape in Cyberspace: How an Evil Clown, a Haitian Trickster Spirit, Two Wizards, and a Cast of Dozens Turns a Database into a Society,” Village Voice, December 21, 1993, pp. 36–42, reprinted in Mark Stefik, Internet Dreams: Archetypes, Myths, and Metaphors (Cambridge, MA: MIT Press, 1997), pp. 293–315, Dibbell quote at p. 296.
93. Interview with Lawrence Lessig, March 20, 2006.
95. Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999).
96. Esther Dyson, George Gilder, George Keyworth, and Alvin Toffler, “Cyberspace and the American Dream: A Magna Carta for the Knowledge Age,” Progress and Freedom Foundation, August 1994, available at ‹http://www.pff.org/issues-pubs/futureinsights/fil.2magnacarta.html›.
97. David Hudson, interview with Louis Rossetto, “What Kind of Libertarian,” Rewired (Macmillan, 1997), p. 255.
98. Steven Levy, “The Great Liberator,” Wired, October 2002, and Poynder interview with Lessig, April 7, 2006.
99. David Streitfeld, “The Cultural Anarchist vs. the Hollywood Police State,” Los Angeles Times Magazine, September 22, 2002, p. 32.
101. Eldred v. Reno (later, Eldred v. Ashcroft), 537 U.S. 186 (2003), affirming 239 F. 3d 372.
102. Lessig, “How I Lost the Big One,” Legal Affairs, March/April 2004, available at ‹http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp›.
103. Lessig interview with Richard Poynder, April 7, 2006, p. 25.
104. “Lawrence Lessig Answers Your Questions,” Slashdot.org, December 21, 2001, Question 1, “The question of harm,” posted by “caduguid,” with Lessig response, available at ‹http://interviews.slashdot.org/article.pl?sid=01/12/21/155221›.
105. Lessig response to question 11, Slashdot.org, “Will the extension of copyright continue?” posed by “Artifice_Eternity,” available at ‹http://interviews.slashdot.org/article.pl?sid=01/12/21/155221›.
106. See ‹http://www.supremecourtus.gov/oral_arguments/argument_transcripts/01-618.pdf›. See also Lessig, “How I Lost the Big One,” and Linda Greenhouse, “Justices Hear Arguments in Challenge to Copyrights,” New York Times, October 10, 2002. A number of Supreme Court opinions in the Eldred case can be found at the Openlaw archive at ‹http://cyber.law.harvard.edu/openlaw/eldredvreno›. The Loyola Los Angeles Law Review held a symposium on Eldred v. Ashcroft, available at ‹http://llr.lls.edu/volumes/v36-issue1›.
107. 537 U.S. 186 (1993). See also “Court Majority Says It Won't Second-Guess Congress,” New York Times, January 16, 2007, p. A22.
108. Stephen Breyer, “The Uneasy Case for Copyright,” Harvard Law Review 84, no. 281 (1970).
109. Siva Vaidhyanathan, “After the Copyright Smackdown: What Next?” Salon, January 17, 2003, at ‹http://www.salon.com/tech/feature/2003/01/17/copyright.print.html›.
110. Interview with Poynder, April 7, 2006, p. 25.
111. Lessig, “How I Lost the Big One.” See also Lessig, Free Culture (New York: Penguin, 2004), pp. 228–48.
112. Lessig response to Question 11, “Cyberspace Amendment,” posed by “kzinti,” in Slashdot, available at ‹http://interviews.slashdot.org/article.pl?sid=01/12/21/155221›.
113. Interview with Poynder, April 7, 2006, pp. 26–27.
114. Garr Reynolds's blog on professional presentation design, “The ‘Lessig Method' of Presentation,” October 5, 2005, available at ‹http://presentationzen.blogs.com/presentationzen/2005/10/the_lessig_meth.html›.
115. Interview with Aaron Swartz, October 10, 2006.
116. Amy Harmon, “Challenge in Copyright Case May Be Just a Beginning,” New York Times, October 14, 2002.
117. Interview with Eric Eldred, August 1, 2006.
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