Lawrence Lessig's Personal Past and Supreme Court Future

Slyfox writes "Ever wonder how Lawrence Lessig became one of the most notable figures in the fight over free speech and intellectual property on the internet? Wired has an excellent article about Lawrence Lessig's life; it beginings with his start as a right-wing Republican, and continues by following the events of his life through law school, contributing to the Microsoft anti-trust case, and becoming a top cyberlaw expert. The article describes both his successes and failures, and it forshadows Lessig's biggest challenge yet: arguing Eldred v. Ashcroft before the US Supreme Court in October."

Comments

Eldred v. Ashcroft is semi-doomed

[Anonymous Coward]

There is no way the Supreme Court will award this one to the plaintiff (Eldred). The Constitution implies a sort of limit on copyright, but unfortunately it is totally ambiguous. In this sense, the case is already doomed. I expect the decision to be at least 7-2, and possibly even 9-0.

However, I suspect the justices are mostly sympathetic to the idea that there is significant erosion going on, that an intention of the Constitution is deliberately being ignored. To that end, the opinions will hopefully have harsh words for the legislators who passed this law, and may even contain a veiled threat to further extensions.

Re:Eldred v. Ashcroft is semi-doomed

[dmoynihan]

I dunno what'll happen. Scalia's on their side, hence the focus on harm to the public in Larry's final briefs. You will find many who share your viewpoint, of course.

But it was while surfing sites like LawMeme, GrepLaw, and Copyfight, among others that I thought about what might be the worst development to come out of this, from a copyright holder's standpoint.

You've got a whole generation of law students following along, rooting for Larry, and sharing his belief that copyright as currently constructed, only benefitting the holders, is wrong (Michael Hart's too-easily dismissed manifestoes, as the reporter condescendingly put it, echo this view).

And that same generation of law students may very well find a lot of other ways to beat up on the publishing industry (hint here: the industry's biggest market is schools, while prices are set rather high by a few players). It's quite possible that industry types will win the Eldred battle but lose the war.

We'll know soon enough.

Go get 'em, Larry.

When I grow up, I want to be a Karma Whore.

Re:Eldred v. Ashcroft is semi-doomed

[Fiver-rah]

There is no way the Supreme Court will award this one to the plaintiff (Eldred). The Constitution implies a sort of limit on copyright, but unfortunately it is totally ambiguous.

You missed the whole point of Eldred v. Ashcroft.

Eldred v. Ashcroft is not predicated on the argument that copyright must be limited. The argument goes like this. The copyright clause in the Constitution is trumped by the First Amendment. The First Amendment holds supremacy. The only reason copyright has subsequently been held to be constitutional is that on balance it promotes expression. That is, the Constitution establishes a quid pro quo--it gives copyright holders a temporary monopoly; in exchange, it encourages sharing of art and science. Thus, on balance, copyright promotes expression, and it's constitutional.

The argument Lessig makes is not that the "limited term" clause is violated. It is that the act violates the quid pro quo. It gives to copyright holders without maintaining anything in return. In fact, it takes from the public, which is in direct contradiction to the spirit of the founders. He argues that the extension of copyright does not make anyone more likely to express themselves. In fact, they retroactively extend copyright, which makes no sense in the context of the spirit of the Constitution. The point is to encourage expression, but the Sonny Bono Copyright Act applies to works which have already been expressed. As such, it does absolutely nothing to promote progress (and in fact may hinder it), and therefore it is an unfair limitation of the freedom of expression.

Lessig's argument is a first amendment one; the "limited term" argument really is just peripheral.

Re:Eldred v. Ashcroft is semi-doomed

[Xtifr]

There is no way the Supreme Court will award this one to the plaintiff (Eldred). The Constitution implies a sort of limit on copyright, but unfortunately it is totally ambiguous.

Did you read the article? That isn't the basis for this case.

From the article:

"But how would he frame it? The obvious way was to say that with its most recent extension, Congress had finally gone beyond any reasonable interpretation of what the framers could have meant by "limited." That approach hadn't worked in the past, so Lessig constructed a different argument. In Article 1, Section 8, the founding fathers not only instructed Congress what to do regarding copyright -- secure "for limited times to authors and inventors the exclusive right to their respective writings and discoveries" -- but also stated why they should do it ("to promote the progress of science and useful arts"). Of course, Lessig's complaint includes the idea that Congress' continual extensions make a mockery of the word "limited" (one professor called it perpetual ownership "on the installment plan"). But the main thrust of Lessig's argument rests on the fact that, as with previous extensions, the Copyright Term Extension Act not only grants new copyright holders a longer term of exclusivity, it grandfathers in previous works. A retroactive extension of copyright clearly violates the Constitution."

(Emphasis mine.)

If the argument were as doomed as you say, then I think it's unlikely the Supremes would have even agreed to hear the case in the first place. I agree that it still doesn't seem too likely to win, but I think it's a tad more plausible than you suggest. As it says, your approach has failed in the past, but that's why they're not using your approach.

Re:Eldred v. Ashcroft is semi-doomed

[Anonymous Coward]

Well, what I have said is based on what I have read of the 2-1 appeals court decision. I don't know what arguments Lessig used then, but the article implies his strategy was similar to that implied now.

You are right that Lessig is arguing based on the retroactive nature of the law. His idea is good, and I hope it works, but the court of appeals was not sufficiently sympathetic. IIRC in their opinion the only limit they found applicable in the copyright clause of the Constitution was the "limited time" business -- and that they interpreted to mean the time had to be finite, but could be of arbitrary length.

In my opinion the problem is that the framers of the Constitution did not express themselves clearly enough, partly because of time+political constraints, and partly because the practice of law has changed. It is clear to me that the phrase "limited time" was supposed to have some meaning, but now it does not.

I guess that if the Supreme Court agrees that the retroactive aspect is problematic, they may only invalidate the law as applied to works produced before 1998. Which would not be optimal, but I am glad that there is opposition to this law.

The DMCA has at least raised some people's conciousness about copyright law. I remember that when this law was passed, it basically received no mention on Slashdot.

Re:Eldred v. Ashcroft is semi-doomed

[dpilot]

Eldred v. Ashcroft??

Isn't Ashcroft against terrorists?

If Eldred is against Ashcroft, then Eldred must be a terrorist. If Lessig is arguing on behalf of Eldred, then Lessig must be a terrorist, too.

You know, the really annoying thing is that I'm SURE there are people who would seriously agree with this line of reasoning, if not come up with it, themselves.

Re:Eldred v. Ashcroft is semi-doomed

[wfrp01]

Eldred v. Ashcroft is not predicated on the argument that copyright must be limited. ... The argument Lessig makes is not that the "limited term" clause is violated.

In fact, if you read the brief, he does exactly that. The constitution makes provisions for both Free Speech and the types of protections that Patents and Copyright afford. This is not about Copyright being trumped by Free Speech. That would be like having two Popes trying to excommunicate each other. That could never happen... ;)

This is how the brief petioning the Supreme Court to hear the case begins:

This case is about the limits on Congress' Copyright Clause power.

Re:Eldred v. Ashcroft is semi-doomed

[wfrp01]

Did you read the article? That isn't the basis for this case.

Read the Petition to the Supreme Court to hear the case. That there should be limits on Copyright Clause is, in fact, the basis of this case.

Re:Eldred v. Ashcroft is semi-doomed

[smittyoneeach]

I read the Wired article. IANAL, but at a high level, the idea might be phrased as "Like a patent, a copyright ought to have a half-life", so that once people have been "reasonably" rewarded for their creativity, the rest of us can be enriched thereby without fear of prosecution.
Programmed my dad's cell phone so that, if mom calls, it rings Beethoven's 5th. Now, if we still had to pay a vig to Ludwig's descendents (or the current copyright holder), the phone would either a) cost more or b) not be marketed that way in the first place, and our world might be somehow diminished as a result.
Is the answer simply: create your own stuff? If the Mickey Mouse law offends you, ought you simply to create your own two-dimensional, annoying rodent? How much is "enough" difference to avoid a copyright infringement suit?
Truth is that lawyers are about money, not truth, and a ridiculous suit may ruin you despite best efforts.
Back on topic, Lessig is totally the man. The article spoke of him coding elaborate Word Perfect macros while clerking for the Sumpremes. (Diana Ross must have been thrilled). :)
At any rate, the possibility of a dude who GETS IT helping to shape public policy is welcome. He can run for President, and line his cabinet with the usual suspects. A personality for RMS! A shower and shave for ESR! A blue and green striped shirt for Linus! Go, Larry, Go!

Re:Eldred v. Ashcroft is semi-doomed

[PainKilleR-CE]

How does copyright stomp on my freedom of speech?

It abridges your right to perform copyrighted material (songs and plays for instance), to reproduce a copyrighted work in another form (freedom of press and possibly speech), and so on. The article points out that Disney used a great deal of public domain literature as the basis for some of it's most profitable works (and let's not forget the music in Fantasia), yet none of Disney's work has gone to public domain despite the long timeframe since their original creator's death (never mind the time from creation). What someone might have done with that work we'll most likely never know, though returning the copyright terms to their previous state will at least allow people to utilize those works that were about to lose their copyright protection when the law was passed.

They point out quite a few good examples, such as publishing public domain texts online, which if not a form of speech is most likely a form of press in which the retroactive nature of the law forced people to stop work that they had already begun in anticipation of those pieces going into the public domain.

Re:Eldred v. Ashcroft is semi-doomed

[The_Rook]

this comment brought to mind how the supreme court may rule on the case. that they will uphold the copyright term extension but strike down the retroactive portion of the staute.

Re:Eldred v. Ashcroft is semi-doomed

[PainKilleR-CE]

And seeing how many cover bands there are out there traveling the countryside, it can't be that hard to get permission to play all sorts of copyrighted material. Where's the damned problem?

Actually, considering all of the RIAA's drivel about protecting the artists from copyright infringement by Napster users, they generally don't keep track of what songs bands play live (even huge multi-platinum bands) in the US. This means that even though artists are supposed to get royalties for performances of their songs, many times they never see them, or never even know their songs are being performed by other artists in the first place. As soon as someone releases a CD, though, I'm sure someone takes notice.

So write your own damn material. This glomming on to the creative and hard work of others under the guide of "free speech" is disgusting.

I tend to agree with you. However, there is some legitimacy to the argument when you consider the history of covers in music and transitioning pieces from one art form to another. While the vast majority of covers are just the same thing done by a different band, there are definite examples of people truly being creative with someone else's piece (though the original writer doesn't always like the results). Personally, if I had never heard Jimi Hendrix, I could absolutely say that I disliked everything Bob Dylan's ever done. Hendrix made it clear to me that Dylan was a good writer, though not a good performer (and, obviously, not everyone agrees with me).

Re:Eldred v. Ashcroft is semi-doomed

[poot_rootbeer]

That would be like having two Popes trying to excommunicate each other. That could never happen... ;)

I assume that the winky-face indicates "Yes, I know it has happened about 40 times in the history of the Catholic Church, as recently as the 15th century," but other /. readers might not be aware of that.

And in each of those cases, the disputes were settled (sometimes with bloodshed) and the Church lived on. Which is exactly what will happen -- the Supreme Court will offer its interpretation of the balance to be struck between promoting expression and protecting copyright. And the Constitution will live on.

This case is about the limits on Congress' Copyright Clause power.

Limit on Congress' POWER is a different argument than limit on the lifespan of copyright itself.

How many billions ARE we talking about ?

[plierhead]

Its surprising no-one has put any numbers on the discussion - the Act "extended the duration of all existing and future copyrights for 20 years - just like that".

You'd have to imagine thats a gift of many many billions of dollars to the copyright holders. And while this is not a zero sum situation, someone has also suffered to some extent. That someone is the public domain, shich is us, the non-copyright holders.

I hope they win and overturn this foul legislation.

Getting others to fight for their freedom

[stendec]

Lawrence Lessig: Don't stand there gawping like you've never seen the Constitution before! Now, today, we're going to be fighting for our free speech ! That is, unless any of you got anything better to do. Well?! Anyone got anything they'd rather be doing than fighting for our free speech ?! Yes?!

Geek1: Well, to be quite honest, Mr. Lessig, I'd... rather be at home with the wife and kids.

Lawrence Lessig: Would you, now?!

Geek1: Yes, Mr. Lessig.

Lawrence Lessig: Right! Off you go! Now, everyone else happy with my 'lil plan... of fighting for our free speech a bit?

Geek2: Mr. Lessig!

Lawrence Lessig: Yes?!

Geek2: I've got a book I'd quite like to read.

Lawrence Lessig: Right! You go read your book, then! Now! Everybody else... quite content to join in... with my little scheme of fighting for our free speech ?!

Geek3: Mr. Lessig?

Lawrence Lessig: Yes?! What is it?!

Geek3: Well, I'm, uh, learning Perl.

Lawrence Lessig: Learning Perl?!

Geek3: Yes, Mr. Lessig.

Lawrence Lessig: And I suppose you want to go and practice, eh? Fighting for our free speech not good enough for you, eh?!

Geek3: Well...

Lawrence Lessig: Right! Off you go! Bloody geeks! I don't know what it's coming to. Right! Lawrence Lessig, fighting for our free speech !

Re:Getting others to fight for their freedom

[marko123]

Reminds me of the South Park episode with Russell Crowe.

Lawrence Lessig... FIGHTIN' ROUND THE WORLD!

Re:Getting others to fight for their freedom

[evilpenguin]

Well, I don't think it was shite, but it was stolen from Monty Python...

Re:Getting others to fight for their freedom

[neocon]

Intellectual Property, like flying pigs, cannot be found in nature.

True. Neither can representative government, property rights, or any of a hundred other necessary ingredients of a free and open society. Your point?

"Intent of the signers"

[billbaggins]

IANAL, nor an expert on Supreme Court matters.

As I understand it, one of the more important pieces of information considered in constitutionality cases like this is the "intent of the signers"---why it is that those guys wrote what they wrote. In this case, copyright- & patent-granting powers were given to the Congress "to promote the progress of science and useful arts". Like the article says, retroactively extending old copyrights will do nothing toward this end. On the contrary, extending copyrights will just make life more difficult for everyone who actively uses public-domain stuff, from Project Gutenberg to Moby (I assume. IANA Moby expert).

...time passes...

Damn. Just read the first few pages of the government's brief. I guess I should've realized that they've extended copyright terms before. All times but one, it seems, the extended term applied to all works currently under copyright. I guess that could count as precedent...

Re:"Intent of the signers"

[Happy go Lucky]

As I understand it, one of the more important pieces of information considered in constitutionality cases like this is the "intent of the signers"---why it is that those guys wrote what they wrote. In this case, copyright- & patent-granting powers were given to the Congress "to promote the progress of science and useful arts".

To a greater or lesser degree. It's a concept called "original intent" and there's actually some controversy about how broadly it should be applied.

The conventional wisdom is that conservatives (US definition) tend to favor a greater weight to original intent than do liberals. Personally, I think it's usually more likely to be advocates of judicial restraint who advocate the greater weight for original intent, while advocates of judicial activism (AKA "legislating from the bench") tend to not like anything that would constrain what they could do. But I digress...

At any rate, that's why legislators often put in a section in new acts which goes "The legislature of the State of Colorado finds..." so that an OI-favoring court will have some guidance. The line in the Constitution about promoting useful arts and sciences is exactly that kind of statement. It helps to understand the original purpose of Congress' power to establish a system of copyrights.

That being said, whether 17 years or 30 years or creator's-life-plus-seventy-years is the best length for promoting useful arts and sciences seems to me to be a question of fact, rather than a question of law. Traditionally, in systems derived from the English Common Law (UK, NZ, AU, and the entire US except for Louisiana state courts), juries decided questions of fact at the trial level and appellate courts were loath to touch questions of fact. If that's the operative question in Eldred v. Ashcroft, then the Supremes already threw me a curve ball by granting cert at all.

It seems to me that Lessig may want to try the Kitchen Sink theory of litigating: Brief everything but the kitchen sink. Then brief the kitchen sink. Retroactive changes to copyright terms could be construed as being ex post facto legislation (strictly forbidden by the Constitution) but for all I know that point has already been litigated and lost. IANAL either.

precedent is against this argument

[Anonymous Coward]

Here is a web page written by the remarkably unabashed copyright extenders. I agree with you that the retroactive extension does nothing to encourage the creation of new works. In fact, I strongly feel that it discourages new work, since new work often draws liberally on old works, often in ways that could be claimed to violate a copyright.

But, unless the web page I have linked to grossly misrepresents past copyright laws (which I doubt), there is incredibly strong precedent for new copyright laws to apply to preexisting works -- in fact, sometimes even to works which were not eligible for any form of copyright at the time of their creation.

For the Supreme Court to decide in favor of Eldred et al., it will have to invent a test which the Bono law violates, but which most previous laws do not. And the Constition provides little guidance for the specific parameters of this test.

Some Supreme Courts have been willing to strike out new territory for the Constitution in this fashion. But this one is not. The conservative members are strongly against reading between the lines except when absolutely necessary. I am sympathetic to this view myself, but unfortunately this will work against us in this case.

Just a tiny comment...

[penginkun]

If he were a democrat, would we have heard how he was a left-wing democrat? I'm just curious.

Re:Just a tiny comment...

[Flamerule]

The family was churchgoing, law-abiding, and above all, faithful to the Grand Old Party. "I grew up a right-wing lunatic Republican," says Lessig.
[emphasis added]

Yes.

Re:Just a tiny comment...

[evilpenguin]

I'll fall for the troll. Show me where any of the people you mention advocate the abolition of private property.

Re:Just a tiny comment...

[evilpenguin]

Wow! No, I'm just a Democrat, active in my local party, going to precinct caucases, voting, and in general being a citizen of these here United States. What are you doing? A web broswer is hardly a good tool for learning about democracy and politics. Libraries are still better places for learning economics and political science.

Have you read your:
o Adam Smith
o John Locke
o Jean-Jaques Rousseau
o Thomas Jefferson
o Thomas Paine
o Marx and Engels (don't grind your axe, you should know what they said)
o Abraham Lincoln
o William Graham Sumner
o Ayn Rand
o John Keynes
o Thorston Veblen
o Alexis De Tocqueville

And on more recent issues:
o David Stockman
o Robert Reich

There are countless others, but if you have read up on these folks and cen tell me what they have to say about wealth and power, then we can assume you are prepared to judge my education or lack thereof.

If you cannot, then I don't think a discussion between us would be particularly constructive or instructive. Try not to assume (note that I'm not assuming what you have read either way) what one knows from a two-sentence slashdot posting. Also it is best to avoid categorizing people based on their proximity to your own beliefs.

You will note some arch conservative thinkers on my list (along with some damned liberal ones). I haven't found a political philosophy that claims as its adherents all persons of intelligence and wisdom.

Again, I ask, where have any of the people mentioned in original post advocated the abolition of private property? And I am still waiting for an answer.

Re:Just a tiny comment...

[evilpenguin]

And of course it is "Jean-Jacques Rousseau." Sorry about the typo...

Read the Brief

[unsinged int]

If you thought the profile of Larry was interesting, I'd encourage you to read the brief (PDF) he filed for the Eldred case. IANAL so I at first thought I wouldn't understand it and almost didn't read it, but eventually I did about a month ago. It is very clear. Extraordinarily clear.

It's also interesting to read the opposing brief (PDF).

Good luck Larry.

Lessig's story sounds like a good candidate...

[guttentag]

...for Robert De Niro's screenwriting contest. He may not be a scientist or an engineer by title, but his work/quest/crusade marks him as someone who will have more influence on the Internet and the computer industry than the vast majority of engineers.

Re:Lessig's story sounds like a good candidate...

[Storm Damage]

And of course, every movie studio is going to be clamoring for the rights to produce a film romanticizing the fight *against* strong copyright laws...

My prediction

[Celandro]

Decision 6-3 for Eldrich

Majority decision(4 justices signing): Court of Appeals errored in deciding that the copyright law is immune from First Ammendment attack. Sent back to Court of Appeals for an actual trial

Minority supporting majority (2 justices signing): In addition to the majority statement, congress was incorrect in not considering the quid pro quo implied in the copyright section of the consitution. Giving to copyright holders, and not returning the favor to the public is inequitable and against the original intent of the signers.

Dissent (3 justices signing): What a bunch of quacks.. Congress can decide what limited means, what constitutes quid pro quo... Justices are writing the law... we love mickey mouse blah blah blah.

This is by far the most likely scenario. The copyright clause was written before the 1st ammendment, therefore ruling that it is immune from 1st ammendment analysis is quite wrong and getting 6 justices to agree on that should not be a problem. On the more general question of wether the law is invalid or not, the supreme court will not rule in general (although they will send very strong hints to lower courts), but sending it back to the lower court to reanalyze for first ammendment reasons is quite a good solution to the problem. In addition I suspect they will tell congress that they are being stupid and patents and copyrights were created under the same law, and giving 14 years to one, and 70 years + life of author to the other is rediculous.

If the Supreme court does say that the copyright laws are immune from first ammendment analysis it would contradict most of their previous rulings on the first ammendment. I feel this decision is basically open and shut on the 1st ammendment issue and a very long shot on the other 2 arguements.

Screw trademarks...

[Wee]

..let's do something about the USPTO. It's way out of hand...

-B

Re:Screw trademarks...

[Flamerule]

LOL... Copyrights... Eldred v. Ashcroft deals with copyrights. Copyrights, patents and trademarks.

Not to mention, it's the United States Patent and Trademark Office.

Now, after the useless corrections: it's hard to decide what's more fucked up in the US, copyrights or patents. Retarded patents offend the intellect and hinder tech innovation, but century-long copyrights help enforce the MPAA and RIAA's stranglehold on media in their respective industries. My solution: immediately change all copyright terms back to 14 years, as the Constitution specifies, and add a "Is this patent retarded?" test for patent examiners to focus on.

Re:Screw trademarks...

[Wee]

I had read the dead tree article a couple days ago. A friend and I were talking about trademark laws recently. Hilarity ensues.

I know what USPTO stands for.

The solution is to charge for patents what they cost to grant, and then hire competent examiners. Less patent applications equals fewer bogus/frivolous patents. Maybe. Perhaps there might be some technical solution to finding prior art, I don't know.

FWIW, I could care less about the RIAA/MPAA. Consumers will pay for whatever they shovel regardless of how long they can exclusively shovel it. Abusive patents, which are sometimes enforced "retroactively", hurt industry and consumers at a deeper level. Absurd patents in a rabidly litigious society are much worse than some sweat shop making bootleg Mickey Mouse ears, IMO.

-B

Re:Holy shit

[flonker]

Computer Science is no more about computers than astronomy is about telescopes.
-- E. W. Dijkstra

Re:Holy shit

[chyn]

Would you select a computer scientist who doesn't know his shit to write mission critical applications?

Arguing a case before the Supreme Court entails completely different requirements than arguing at a trial court. Of the thousands of cases which are appealed to the Supreme Court, only a tiny fraction of them are reviewed by the court. You can bet that if anyone is going up there to argue, he or she have to be exceptional. I don't think just anyone can go up there, present the case, and then be grilled by nine of the best legal minds in the country.

Considering that Lessig clerked for Scalia, taught as a law professor, performed for years as a public speaker, and has command of the necessary background knowledge, I don't think he'll have issues.

Rocky

[offpath3]

Does anyone else get this strange picture of Professor Lessig jogging up the steps in front of the Stanford Quad and Mem Chu (Memorial Church... in the middle of the quad) in sweats with Eye of the Tiger playing in the background?

Excellent article? Hah.

[clion999]

The article was not excellent. It was designed to marginalize him and turn him into a crazy guy tilting at government windmills. The headline in the print edition said Lessig wants to "smash" the copyright system. That's just plain false. He's a big believer in copyright-- he just doesn't want it to last forever. He wants there to be some balance between the public's rights and the copyright holder's rights. He's got a good compromise system that would force people to renew their copyrights if they were still valid. If people renewed, they would still get all of the protections today, but if they didn't the work would fall into the public domain. This is a great help for researchers, librarians and everyone else who needs to find a copy of something that's out of print. Did you realize that it's illegal to make a copy of something that's out of print? Yup. You could stilll get sued for $150,000 per copy! This proposals is just another dose of sanity for the system.

Wired didn't care about any of this. They didn't even mention it. They just painted him as a bit of a nutcase. Remember this is the same author (Steven Levy) who wrote a glowing review of the M$ Paladium system. Beware!

Re:Excellent article? Hah.

[unsinged int]

Thanks for the flamebait. What did you do? Read the first part about him wanting to smash the system and conclude the article sucks?

The article did not talk about him wanting to totally eliminate copyright. It mainly discussed his background, motivations, and the first couple rounds of the Eldred case. And I would hardly consider a bunch of quotes from people saying he is a law genius as "marginalizing him" into a "crazy guy."

Sensationalistic use of the word "smash" to get people to read it, yes. Incorrect content or an inaccurate portrayel, no. I have read Larry's books and the article is totally consistent with his views in the books. I thought it was a great supplement to the books since he doesn't really talk about his life in the books.

Re:Excellent article? Hah.

[Elwood P Dowd]

Be fair. Levy isn't evil, he's just naive. He wrote that fluff peice about Palladium, but he's also written articles with some good cypherpunk content that's been published in Newsweek. Sometimes he gets it, and often he doesn't. In order to make a story more interesting or readable for a lay-person, he'll often emphasize the wrong thing. I don't mind, because otherwise there's no way that lay-person was ever going to know about the subject in the first place. I don't think he's trying to undermine Lessig at all.

Not peripheral--rule against perpetuities

[Anonymous Coward]

The limited term argument is not as peripheral as you might suspect reading the above. There is a common law rule against perpetuities that says (harking back to law school) "no interest is good unless it must vest (if at all) within 21 years of some life in being at the time of creation of the intetest''. In effect, 21 years equals forever at common law, and forever is not a limited time such as the constitution mandates if Congress grants intellectual property rights at all, according to the grant of power to Congress by the constitution.

Before you ever get to look at the 1st amendment issues and balancing, you have to look at the limited grant of power to Congress in the case of IP, period. I would have to comment that I am not even vaguely familiar with the history of decisions in this area, but I suspect at lot of effort has been made to engage in the "balancing" types of consideration that has preoccupied the courts for the last century. Lawyers tend to cover all bases in a brief, and the longest and most convoluted arguments, making up most of the page count of the brief may be just make-weight, in the sense you are trying to argue there is no great harm (balancing act) if you rule as I suggest in my first paragraph. Arguing both law and fact, if you will.

The first copyright monopoly was for 4 years, if I remember correctly. There are fundamental limits on Congress' powers in this area in the explicit wording of the constitution, and the evidence is that the first congress understood what was meant by those limits. There seem to be good arguments that Congress does not even have the power to give an artist copyright on the artist's own works for the period of the artist's own life!!! In any event, there is a profound legal principle that nothing may last forever, and to say that the Gershwin heirs or Disney Inc. (or the heirs of Elvis or John Lenin) have any residual rights to their work more than 21 years beyond their death (or after the creation of Mickey Mouse, in the case of the inanimate Disney) violates the common law rule against perpetuities, and thereby certainly violates the limited power of Congress to grant monopoly rights for limited terms.

Sorry about the AC.

Incomplete Picture

[Artagel]

The article is at best an incomplete picture of Professor Lessig. While it is framed to show the roots of where he ended up, it could have been different.

Professor Lessig's primary interest, at least initially, was constitutional law. Actually, that makes the Eldred case a good case for him. If you read the briefs you will see that the parties are not especially approaching the case as a "cyberlaw" case.

I don't think the scope of his interest has been limited to being a great niche legal thinker. He wants to be broad, but is going to ride this particular wave for what it is worth. The article does do a good job of explaining why Lessig is important to a particular non-legal community now, and taken for that, it is nice.

Branches of government

[TFloore]

Blockquoteth the poster:

"I am a great admirer of Larry Lessig," says Jack Valenti, Hollywood's master lobbyist. "But Congress has the power to say what 'limited' is. It's there, it's unambiguous. Fifty-five men in Philadelphia decided it, and there's no way a court can overrule that."

Sorry, he's confused on the purpose of the 3 branches of US government.

The Legislative Branch makes the law.

The Executive Branch enforces the law.

The Judicial Branch interprets the law.

The Supreme Court specifically interprets the US Constitution. They have the last word on that.

Otherwise, there would be no "unConstitutional" laws... after all, Congress decided, so it must be right, right?

Re:Branches of government

[Artagel]

There is another view. It goes like this:

The Congress is supposed to interpret the Constitution before it passes a law, and adhere to the Constitution as Congress views it. Many senators and representatives ignore this role, and abdicate in favor of the Supreme Court. Perhaps because it is politically inconvenience (e.g. campaign finance reform).

The President is supposed to interpret the Constitution when he decides to sign a bill or enforce a law. Therefore, he can even stop unconstitional laws that have been passed before from working, and stop new ones from happening. No president (more accurately, Attorney General) attempted to enforce the law that attempted to overthrow the Miranda decision. That was an executive decision.

The Supreme Court (and other courts) interprets the Constitution in the cases before it. The fact that the other branches can be brought before the Supreme Court by others does not take away the Supreme Court's oath to protect the Constitution of the United States of America.

And the Supreme Court is right because they are last, not last because they are right. Lincoln wanted to keep the issues raised in the Dred Scott case alive, and keep presenting them to the Supreme Court to attempt to force a reversal. Supreme Court reversals of position are not common, but they do happen. Nobody should consider issues "over" because of one decision.

Re:Branches of government

[hubie]

As another example that the Supreme Court doesn't necessarily have the last word: in the 1830's the Cherokees successfully challenged the State of Georgia in the Supreme Court regarding the Indian Removal Act. The Supreme Court ruled in favor of the Cherokees, but President Jackson moved them out anyway.

The fameous Jackson quote went something like: "John Marshall [the Chief Justice] has made his decision; let him enforce it now if he can."

Re:Branches of government

[Catbeller]

Those who favorably compare Bush II to Jackson should take a bit of time to ponder what a genocidal jackass Jackson was.

Strong, yep. Opinionated, with the will to defy other branches of the government, yep.

But a genocidal racist who flouted the Constitution and the Supreme Court (let them come and enforce their decision!) he was as well.

Comparing the current admin's intransigence to Jackson's is damning with faint praise.

Show me the money

[gesualdo]

As long as the publishing industry has the deep pockets to pay well, many of those lawyers who are rooting for Lessig will loose some of their youthful enthusiasm and they'll end up fighting on behalf of the industry.

If we really believe that Lessig's arguement is just, we need to support him (and the EFF) financially.

What percentage of /.ers have given money to the EFF? I'd be interested to see some numbers; I'd certainly hope they are high.

Considering the bredth of slashdot's userbase, we should be able to come up with a ton of cash to compliment the posts, ideas, thoughts, humor, and time we spend here.

C
__

you call that "work"?

[the gnat]

From the article: Some days he clocked 11 hours.

11 hours? Pussy.

Re:Where Disney's Material Came From

[PainKilleR-CE]

It gets a little trickier when we consider "Hunchback" ... V. Hugo wasn't that long ago, but it is pretty clear that that stuff belongs in the public domain. I'm just not sure yet about Mickey & Donald.

Certainly copyrights can't be *forever*. But I do suggest people are making too much of this Disney business.

The vast majority of Disney's movies are on controlled release schedules, often not available for up to 20 years at a time. Some people consider this a good thing, but ultimately it's just a company milking old material for all it's worth (or more than it's worth if you really think about it). In fact, much of what Disney's done in my lifetime has simply been rehashing old characters for new series/movies. Is it really any different because Disney's doing it than if someone else was doing it? It's not like the original creators of most of these characters are still there.

Re:Holy shit

[frank_adrian314159]

nine of the best legal minds in the country

Well, at least eight and one Rehnquist operated puppet...

hope he looses (not flame)

[argoff]

For someone like me who hates copyrights, that's a hard thing to say - but the simple fact is this. The problem isn't the term of copyrights, but our very belief that it's allright gain benefit by restricting the copying practices of others to begin with. Copyright monopolies are like a vine that will never stop growing to choke off our freedoms until they are cut off at the root. The DMCA, infinite extensions, sentences worse than murders get, are only a symptom - not the cause.

The cause of all these problems is our own moral failure to see copyrights not as some type of incentive or property rights, but as the evil form of controll that they are. It reminds me of indentured servitude - it started out as short term, un-inheritable, for all races, and usually offered land at the end of the term. But unfortunately it set the seeds for a system of slavery that became unbearable and ripped the USA apart, now I see the same with "intellectual properties" - if we don't cut it off at the root, it will just come back to destroy us in another form.

CITA IS something for something

[satch89450]

In reading the opposing (government) brief, I found this interesting point: the CITA was designed to harmonize US Copyright with international copyright. Going back to the original establishment of Federal copyright, the original intent was to unify copyright among the States and common law. The CITA could be argued to continue the tradition by having the United States participate in a world-wide unification of copyright. This means that a content creator would not have to worry as much about the differences between US and European copyright.

Not exactly "something for nothing."

Also, these thoughts are a little late for the government to include in its argument to the court, so I don't feel as though I'm hurting that anti-CITA efforts by discussing them here.

s/CTIA/CTEA/g

[satch89450]

I previewed, I submitted, I goofed.

Re:Where Disney's Material Came From

[rollingcalf]

Please remember that the folklore Disney built on was hundreds of years old, if not thousands.

Wrong. Some of it like the classical music in Fantasia was hundreds of years old, but many others were much more recent. The last of the Grimm brothers died in 1863, not hundreds of years before Disney. Disney even released some works such as a short Cinderella film in 1922, which would not have been allowed if the Grimm brothers were granted "life plus 70 years" on their copyright. And Disney's "Steamboat Willie" film was based on Buster Keaton's "Steamboat Bill".

A lot of people want to make a quick buck selling merchandise based on characters they didn't have the creativity to invent themselves.

So, Walt Disney didn't have any creativity because he made works based on characters he didn't create himself? Like Snow White, Alice in Wonderland, Cinderella, and the rest? You seem to forget that artistic creativity can exist on top of previous creativity, just as scientific accomplishments are almost always based on someone else's prior accomplishments. Once material enters the public domain, people won't be able to make "a quick buck" very easily because anybody else in the world has the same material from which to do the same thing. The ones who will make any significant money are those who can use their own creativity to add value to the original creation, not the ones who merely disseminate what is already infinitely available elsewhere.

Big honking typo in that article

[May Kasahara]

I read it, and although it was indeed well-written, there was a very large factual error. As even the most casual animation history buff would know, Steamboat Willie was NOT the first Mickey Mouse cartoon; rather, it was the first Mickey short-- and the first American cartoon ever-- with synchronized sound. Steamboat Willie is the third Mickey film; the two silent ones that came before it were Plane Crazy and Gallopin' Gaucho.

The article does point out-- correctly-- that Disney's lobbying for copyright extentions has a lot to do with the Steamboat Willie and a many other early shorts. Willie stands out because of it's historical signifigance (all the more reason for it to enter public domain, IMHO), but it's often misquoted as being the first "Mickey". I hope Lessig doesn't use this misquote in his case against the Supreme Court. I'm all for the idea of copyright, but the lengthening of copyright extentions to protect such documents has gotten way out of hand. Obviously, this issue has been discussed in the animation industry for years, and there are many animators-- both working and retired, corporate and indie-- who are against the Copyright Term Extention Act, simply because it is detrimental to the cause of film preservation. Disney is supposed to have an incredibly well-maintained archive, but there are many, many non-Disney motion pictures that are deteriorating due to their owners' negligence.

An Alternative Would Then Be...

[jaaron]

Okay, I understand that there are many reasons to dislike current copyright laws, but that is not to say that intellectual property right protection, be it patents or copyrights are a bad idea. It is their misapplication and abuse that result in the mess we often see today. Otherwise what do you propose to take their place?

Without some sort of protection guaranteeing that I can recoup the investment costs of creation (be it research and development or simply the creative costs of writing a novel), what incentive do I have to create anything to begin with? Why should I contribute *my* ideas so that you can do whatever you want with them, without my permission and without my compensation? If I labor, I am entitled to require payment for my labor -- it is trade. If my labor is then primarily mental rather than material, why should I expect less for my work?

The need for proper balanced intellectual property protection is needed now more than ever because with today's technology is it easier now more than ever to reproduce someone's mental labor. Now, balanced protection is important, and arguing what is balanced is difficult and honestly I don't currently have a better solution. However, to claim that all copyright protection is wrong only shows that one wants to do nothing but be a freeloader, feeding off the creative works that *others* produce claiming that you, who have produced nothing, have some divine right to benefit as well.

Re:An Alternative Would Then Be...

[argoff]

When people "freeload" on information - this is not a burden on societies resources, and that people think of information like they would of pyhsical property is half the problem. Linux and it's developers are doing fine without this "protection", and I would be very happy if all of society adopted this alternative.

The copyright form of protection is a farce, it is like the plantation masters of the 1850's saying they had no incentive to grow cotton without laws that protect their slave properties. But it is not a form of protection, it is a form of controll over others.

The alternative is to let all information be free. If getting rid of copyrights causes someone to loose controll over say 100K worth of "intellectual property" in return for free use of billions of dollars worth of other "intellectual properties" then only a fool would consider it a loss.

Re:Holy shit

[Catbeller]

What frightens me about the remote-controlled puppet is that he (almost) never questions the lawyers.

He listens, but doesn't participate. Is it because, as some suggest, he usually has his mind made up already, before the proceedings? Or does he lack the mental equipment to participate?

Not idle questions. What is up with Thomas?