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

[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

[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.

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 !

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.

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.

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.

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?

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.

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."

you call that "work"?

[the gnat]

From the article: Some days he clocked 11 hours.

11 hours? Pussy.

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

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.

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.