Patent Absurdity

For Eric Eldred, plenty. In 1995, Eldred, a New Hampshire native, had tried to engage his daughter’s interest in literature by exploiting the Internet. He digitized such classic books as Nathaniel Hawthorne’s The Scarlet Letter, making them text-searchable, and then went a step further, embedding the hypertext with links to maps, pictures, references, and other elements that could bring 17th-century New England to life for 21st-century readers. None of this was illegal as long as he stuck to Hawthorne, whose work had lost its copyright protection nearly a century ago. But when Eldred decided to add some of the work of New England’s most famous poet to his collection, he ran into the Estate of Robert Frost–and the Sonny Bono Act. Under the law, nothing written since 1923 could be added to Eldred’s Web site unless he could track down the copyright holders and secure their permission. This didn’t sit well with Mr. Eldred, and like so many unhappy Americans before him, he got himself a lawyer–Lessig, a leading authority on the intersection between the Internet and intellectual property and a professor of law at Stanford University.

When Eldred v. Ashcroft eventually appeared on the Supreme Court’s docket, Lessig had good reason to think this would be a winner. Not only did he understand the nascent field of cyber law as well as any lawyer around, but he also thought he understood what arguments would appeal to the court’s conservative majority. Though this would be Lessig’s first appearance before the court, he had spent time as a clerk to Justice Antonin Scalia. Before that, he had clerked for Circuit Court Judge Richard Posner, the bench’s leading advocate of laissez-faire economics; later, he had taught at the University of Chicago. Lessig was convinced that he could win this case by making a very conservative argument to a very conservative court. He would focus on the Constitution itself, and on broad principles about the allocation and limits of power. Others urged him not to rely solely on the court’s well-documented instinct to slap the congressional hand away from the cookie-jar of power; they argued that the court would only intervene if Lessig could convince the justices that this latest extension of copyright would do real damage to the United States and its economy.

But as he readily admits in his new book, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Lessig saw this as a rather pandering strategy. When Justice Anthony Kennedy explicitly noted that he didn’t “see any empirical evidence” that extending copyright had “impeded progress,” Lessig insisted on steering Kennedy away from the economics, inviting him back to the higher ground of constitutional theory. “Justice,” Lessig said, “we are not making an empirical claim at all.” Instead, he insisted, Eldred’s claim was a nearly-pure question of interpretation involving the Constitution’s copyright and patent clause and the court’s duty to police the boundaries of congressional action. As it turns out, Lessig writes, that was “a correct answer, but it wasn’t the right answer.” The right answer, he now realizes, was that this sort of abusive copyright extension would produce “an obvious and profound harm.”

Free Culture is Lessig’s attempt to correct his error. Dedicated to Eldred, the client whose case Lessig eventually lost in a 7-2 decision, it is the product of a fertile mind dealing with a complex mix of politics, technology, law, culture, and economics. It features evil lawyers, powerful lobbyists, Hollywood’s A-list of stars and producers, and a bevy of creative innovators whose innovations have been stymied by the threat–and reality–of monster lawsuits.

Before getting to the climactic tale of Eldred v. Ashcroft and his 30 minutes of oral argument before the Supreme Court, however, Lessig builds a case for the virtues of creative destruction in the service of progress. Once upon a time, he notes, if you owned a plot of land, your rights extended down to the core of the Earth beneath your lot and up to the heavens. When the airplane came along, however, it became obvious that those rights would have to be curtailed. When a pair of North Carolina farmers challenged the government’s right to “take” the property between their land and the heavens in 1946 for the use of aircraft, the Supreme Court declared that such an “ancient doctrine” simply “has no place in the modern world.” (Imagine if United Airlines had to negotiate fly-over rights with every home-owner between San Francisco and Washington, D.C.) The court sided with Congress, and the future–as they very nearly always have in American history.

Until now. As Lessig recounts, the dinosaurs of today’s entertainment industry have had enormous success in suffocating the creative force of the Internet in its crib. Ever since Al Gore cast his eyes on the first Web browser–Mosaic, upon which was built Netscape, which was gutted by Microsoft to provide the foundation for Internet Explorer–the Web has offered the possibility of releasing the inner artist in all of us. The Web democratized our culture, enabling just about anyone with a high-speed connection to sample here and riff there, merrily ripping and burning and transforming their way through thousands of years of ideas, inspirations and innovations. This process liberated extraordinary creativity, expanding our stores of cultural knowledge, enriching the human experience, and paving the way for all sorts of new jobs, industries, and opportunities.

But every fairy tale has its evildoer. And for those who make money buying and selling information–Jack Valenti, the retiring head of the Motion Picture Association of America, calls it “the copyright industry”–this infant technology looked like the apocalypse. And instead of joining in, or getting ahead of the pack, they opted to fight the intellectual-property equivalent of preemptive war, dispatching an army of lobbyists and lawyers to all fronts. Sonny Bono’s copyright extension legislation severely restricted the scope and depth of the public domain; other laws imposed draconian punishments on seemingly minor infractions. Steal a CD from a shop in California, Lessig observes, and you may get hit with a $1,000 fine. Download a CD’s worth of songs from the Web, and you may be writing a check for $1.5 million. Create a terrific new search engine that can be abused to pirate music files, and, Lessig reports, you could be sued for more than $15 million in damages–which is what happened to 19-year-old Jesse Jordan two years ago. As a freshman at New York’s Rensselaer Polytechnic Institute, Jordan came up with a new twist for an intranet that linked his school’s students, faculty, and research facilities. But the same tweak also made it possible to “share” the latest Limp Bizkit tune, and instead of trying to balance the costs (lost revenue to the Bizkits) against the benefits (a better internal search engine) the copyright industry hit Jordan with a tsunami of litigation. The eventual settlement required him to hand over every penny he had ever owned and saved, all $12,000 of it. You can be sure Jordan will think twice before he innovates again.

Lessig is a lively writer. He knows how to tell a story, and he has good stories to tell, full of heroes and villains, the winners and losers of America’s relentless march into the future. Yet he commits in book form the same error he made before the court two years ago. Though he does offer arguments about how and why copyright extension is a form of economic protectionism, they are scattered through the book, buried beneath a broad philosophic argument about the joys of a free and open culture, and sometimes obscured by Lessig’s rather detailed exploration of the interrelationship of technology, law, and culture.

The economic argument is really quite simple, and powerful. The costs of copyright extension are significant, and the benefits are slim. Just how many extra songs would John Lennon and Paul McCartney have written if they knew that their efforts would profit not only their children and grandchildren, but also their great-great-great grandchildren? Probably not many. On the cost side, 17 economists–including Nobel laureates George Akerloff, Ronald Coase, and Milton Friedman–filed an amicus brief on Eldred’s side, rightly arguing that copyright extension not only artificially raises consumer costs, but also has the effect of reducing innovation, which, in turn, poses a real threat to the engines of the American economy.

This is just as true for scientific and industrial patents as it is for books, movies, and other creative products. Both copyright and patent protection are authorized by the constitution, not to protect personal property but “to promote the progress of science and useful arts.” Intellectual property in books, movies, art, and design is just as important to the American economy in the Information Age as were patents on machine tools, transmissions, and coal furnaces in the preceding Industrial Era.

Innovation and invention are tricky. If there were no copyrights and patents, there would be far less incentive to innovate. On the other hand, if copyrights and patents lasted as long as the sky is blue, we wouldn’t get very far, either. Innovation and invention rarely come in breakthrough “Eureka!” moments, but rather are the product of small, incremental additions and transformations of what already exists. Sir Isaac Newton (no slouch when it came to innovation) once wrote that he might have seen further than most, but he did so “by standing upon the shoulders of giants”–Copernicus, Kepler, Galileo, and others. Artistic creation works the same way. Mel Gibson didn’t come up with the storyline for The Passion of the Christ all on his own. There would be no West Side Story without Shakespeare’s Romeo and Juliet. And we won’t even mention the debt owed by Disney to the Brothers Grimm. (Okay, we’ll mention Snow White, Cinderella, and Sleeping Beauty.) Each of these transformative adaptations built on material that had no copyright protection, material that was in the public domain. That freedom allowed their creators to innovate and, not incidentally, build an enormously profitable industry in the creative arts–an industry that is now among America’s most robust.

As the Nobel economists put it in their Supreme Court brief, “new fiction retells old stories, new documentaries reuse historical footage, and new music re-mixes and transforms old songs.” Excessively long copyrights force new artists to pay the second- and third-generation offspring of the original artists for the use of work they themselves had no hand in creating. This is hard enough when dealing with the tiny fraction of materials that have retained their commercial value over the decades, but sometimes nearly impossible when you want to use things that lost their commercial value years ago–or, more likely, never had any at all. Either way, Sonny Bono’s law covers it all, and forces today’s innovators to find out who owns those rights to negotiate with them, and maybe even to take out expensive insurance to protect themselves in case they slip up in the process. All of which is time-consuming and expensive when you are dealing with famous authors and artists, but even worse when you have to track down relatives of obscure or even unknown creators. These transaction costs raise the price of innovation, sometimes prohibitively. And as Lessig reminds us, there are cultural costs as well. Rights-holders not only set a price for the use of the creations they control, but they also get to decide who uses them and how, skewing the nature of what is produced. Excessive copyrights make it more likely that the only derivative works produced are those that please the rights-holders. Permission, Lessig reminds us, “is not often granted to the critical or the independent.”

In America, culture and economics have long been tightly tied together, a connection made all the more compelling when we consider the sorts of opportunities–cultural and economic–that are made possible by a marriage of old content with the digital technology of the Internet Age. Among the other parties filing a brief on behalf of Eldred was the Intel Corporation, hardly an enemy of capitalism or of the sanctity of intellectual property. Intel’s lawyers argued that “a healthy and vibrant public domain” is critical to “speed the rate of technological innovation and network build-out.” Limiting the public domain would limit the range and depth of content available. And without that content, the Intel brief said, the Internet will never reach its full potential. If the public domain shrinks, Intel insisted, “the need and demand for a full range of new technologies and innovation will also decline. One cannot exist without the other.”

Lessig’s book is not a plea for plagiarism, piracy, or stealing. It’s really a very simple and modest call to just calm down. Before we unleash the full fury of the American legal system against technologies we don’t yet understand, he argues, let’s see where this thing is headed, what it can (and can’t) do, and then balance the costs against the benefits. Unfortunately, Lessig’s lawsuit didn’t help. Arguably, his biggest error wasn’t failing to make a case for economic harm before the Supreme Court–it was in taking this case to court in the first place. Eldred was the first time the Court really considered the meaning of the word “limited” in the copyright and patent clause, which delegates to Congress the power to protect intellectual property “for limited times.” Now they have effectively handed Congress a certificate of constitutionality signed by the Court. And their decision may have the perverse effect of permitting Congress to extend copyright almost indefinitely. After all, if it is okay to protect a copyright for the lifetime of an author plus 70 years, it’s not that big a leap to extend it to the term Valenti has long advocated: “Forever, minus one day.” And if that logic works for copyrights, why not for patents? Before Eldred, this was an open and untested question. Now it’s been tested, and the “copyright industry” has won. You may be sure the “patent industry” won’t be far behind. Lessig has inadvertently blazed the trail to a goal he virtuously fought against.

The place to engage this battle was–and is–on Capitol Hill, where the armies of the “copyright industry” won an easy battle with little organized public opposition. It’s true that the Supreme Court can and sometimes does ride to the rescue, but if they don’t, you may be worse off then you were before. In politics, a loss today has no bearing on your ability to fight again tomorrow–in law, it does, even if only at the margins.

It won’t be an easy fight, of course. Hollywood has huge advantages in any political struggle: deep pockets and direct access to America’s eyes and ears, not to mention that these folks sure know how to sell a message. But these obstacles are not as insurmountable as they might seem. Americans believe in the future. And if the full implication of the Constitution’s copyright and patent clause were made plain and clear, it could well be one of the few issues that might appeal to both conservatives (who are unsympathetic to pleas for government protectionism) and liberals (who are unsympathetic to the pleas of Big Business and Big Media) alike. We’ve already had a taste of what an informed public can do, even against long odds and fat wallets. When the Federal Communications Commission in June 2003 issued an ill-considered decision that would have allowed Big Media to become even bigger, it was shocked into retreat by a massive public outcry that seemed to emerge from nowhere. Lessig’s book is not an easy read. But it has terrific raw materials for a creative, innovative, entrepreneurial politician in search of a “vision thing” that might actually resonate among Democrats and Republicans alike. Any takers?

Gordon Silverstein, assistant professor of political science at the University of California, Berkeley, is completing a new book titled How Law Kills Politics.

Gordon Silverstein, assistant professor of political science at the University of California, Berkeley, is completing a new book titled How Law Kills Politics.