[wordup] Lessig on the Future of the Public Domain

[Adam Shand]

Via: http://slashdot.org/article.pl?sid=02/04/06/147233&mode=thread&tid=99
From: http://www.oreillynet.com/pub/a/network/2002/04/02/lessig.html

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.

Resources:

* Openlaw's page on the Eldred case
* A History of Copyright in the U.S. (Assoc. of Research Libraries)
* The Future of Ideas
* Lessig Home Page
* O'Reilly Emerging Technology Conference -- P2P, Web Services,
  Wireless, and Beyond

Richard Koman is a freelance writer and the editor of several O'Reilly
titles on Web design and javascript.