September 22, 2002
A Stanford Professor Is One Supreme Court Decision Away From Ending Copyrights on Thousands of Movies, Books and Songs.
By DAVID STREITFELD
Times Staff Writer
Larry Lessig is a 41-year-old Stanford University law professor who still looks like a graduate student, someone who has spent years in library stacks researching arcane subjects, miles from the real world. He's very pale and very quiet, as if he doesn't want to bother the fellow in the next cubicle. His hair sometimes sticks straight up, but he doesn't notice. Lessig has a student's idealism, too; he wants to change the way the world does business.
The entertainment industry, Lessig feels, is locking up old movies, books and songs that long ago should have transcended private ownership and become the property of the people, just as Thomas Jefferson, James Madison and the other framers of the Constitution intended. At stake, he says, is not only our common cultural heritage, but also the freedom that writers and musicians and filmmakers must have to interpret, reinterpret, adapt, borrow, sample, mock, imitate, parody, criticize--the very lifeblood of the creative process.
But Lessig doesn't merely want to free the past. He wants to free the future as well. That's something else that the entertainment companies want to lock up. The laws they are proposing and the technologies they are developing, he says, will make creativity on the Internet a wholly owned subsidiary of the Recording Industry Assn. of America and the Motion Picture Assn. of America.
His immediate target is a 1998 law that extended copyright protection an additional 20 years. It was a measure so obscure that the Senate passed it unanimously, with no debate and little public discussion. But it so outraged Lessig that he mounted what has become the first constitutional challenge of copyright limits to ever reach the Supreme Court. On Oct. 9, the former Supreme Court law clerk will try to persuade the justices to end private ownership of hundreds of thousands of artistic works, including some of America's most cherished. If he gets the court to agree, both the past and the future will change.
"The world won't end," he says. "Hollywood will just have to find a different way to make money."
During the past three years, as his copyright lawsuit has wended its way through the courts, Lessig has been talking it up in forums around the country and Europe. Walt Disney, he is always careful to say, is his hero.
Disney, one of the most popular artists of the 20th century, knew what a bountiful resource the past could be. He refashioned the Brothers Grimm's dark fairy tale "Snow White" into an upbeat charmer. He took Perrault's "Cinderella" and made it an enduring fable of pluckiness. "Alice in Wonderland," "The Jungle Book," "Pinocchio," "The Three Little Pigs," "Treasure Island" were all adapted from classics and became classics themselves.
What outrages Lessig is that Disney and other entertainment companies don't want this process repeated with their own works. They want very much to continue earning money by keeping their copyrights forever. Toward that end, Congress has extended copyright 11 times in the past 40 years, effectively locking away everything that Disney and every other entertainment company have ever produced.
If copyright laws lock up the past, they also are a very potent instrument for controlling the Internet. To a group of computer programmers in Monterey, Lessig recounts an anecdote about Sony's robot dog, Aibo. An Aibo fan wrote a software program to make the dog dance to jazz. When the fan posted the code on the Internet so that other Aibo enthusiasts could teach their own dogs to dance, Sony lawyers contacted him and told him he had violated the Digital Millennium Copyright Act. Even though you've spent $1,500 for an Aibo, Sony still has control over how you play with it.
"Ours is less and less a free society," Lessig says. "The law is trying to make creativity a regulated industry."
Lessig was a professional singer as a child, which gives him a natural ease on stage. His audiences often applaud mightily. But no one writes to Congress protesting how copyright is being abused on the Net. No one holds demonstrations. "We have this culture of passivity," he says. "Most people like being spoon-fed culture. Look at the reaction to shutting Napster down. There was none. It's like we're the Soviet Union after communism. We've had 80 years of massive broadcast culture. It's the only way we know to experience the world."
His lawsuit, officially titled Eldred v. Ashcroft, is a way of forcing the issue. It's a measure of the strength and importance of Lessig's case that he will be opposed in court by Theodore B. Olson, the U.S. Solicitor General himself, and not some government underling. Olson won all eight cases he argued before the Supreme Court last term.
The court will consider the passage in the Constitution that states "to promote the progress of science and useful arts," Congress should grant copyright only for "limited times." For Congress in 1790, the limit was 14 years, plus another 14 if the creator was still alive. By that standard, "Snow White," made in 1937, would have joined Shakespeare, Jane Austen and Mark Twain in the public domain in 1965. Instead, "Snow White" is now due to enter the public domain in 2032--unless, of course, copyright is extended again.
Lessig will argue that the extensions give the entertainment companies "a perpetual term on the installment plan." For the benefit of big campaign contributors, he contends, Congress is perverting what the framers intended. Olson will respond that since copyright is not literally perpetual, Congress' extensions are constitutional.
There's another wrinkle, one that speaks to Lessig's anger over the broadening of all forms of copyright. Congress, by giving an additional 20 years to copyright holders, is also abridging freedom of speech, he argues. If the justices buy that point, new legislation would have to take Lessig's case into account. It could act as a brake on the entertainment industry's constant search for new legal tactics to put the Internet in lockdown mode while it frisks everyone for unauthorized content.
"The Supreme Court isn't owned by Hollywood," Lessig says. "I'm quite confident they'll see that a free culture is a free speech issue. The law will be struck down."
It's already getting hard to remember what it was like before the internet brought a million different voices into your home. If you grew up in the 1970s and lived in a small town, the way Lessig did, culture and news were one-way streets. If you wanted to react to something, you could write a letter to the newspaper that they probably wouldn't print, or send a screed to a fanzine that no one except a few like-minded souls would see. The local department store sold a few books and some popular records, but anything the slightest bit out of the mainstream had to be special-ordered--if you even knew about it and if it even existed.
The Internet blew through all those barricades and limitations. In its mid-1990s heyday, the Net was all about experimentation and openness, a place where no one needed a printing press to publish an article or a record company to distribute music or Wall Street's approval to start a company, where the only constraint on innovation was the imagination.
But nothing ordained that it had to stay that way. Very quickly, in fact, various interests got busy lobbying for laws and developing technology that would turn the Net into a closed system. It will bring entertainment directly to your eyeballs and eardrums for a moment, for a price. "Once you start down this road, there's only one logic, and that's the logic of total control," says Duke University law professor James Boyle. "It's a world of pervasive monitoring, because the creator has to get his money at every stage."
One reason there's been little uproar about this is that the entertainment industry is very good at seizing the high ground. It long ago took control of all the good words in this fight: Pirate. Thief. Hacker. Stealing. It racheted up the invective, too. An Assn. of American Publishers official last year called librarians who believed in free content--a central principle of libraries for a few centuries--"Ruby Ridge or Waco types." Jack Valenti, chief executive of the Motion Picture Assn. of America, calls the struggle against unauthorized copying a "terrorist war." In a February op-ed piece in the Washington Post, he asserted that "the movie industry is under siege from a small community of professors."
An industry with about $70 billion in worldwide revenues being thwarted by a handful of scholars, none of whom could get within a mile of Morton's on Oscar night? "When I read that," says Boyle, "I had a Monty Pythonesque image of a siege of this massive castle by a tiny number of individuals armed only with insults. 'Now open your gates,' they were yelling, 'or we shall taunt you once again.' "
Yet Valenti might be right when it comes to Lessig. "He thinks we ought to rise up against Disney like the Serbians attacking Milosevic," says novelist and cyber-rights activist Bruce Sterling.
Lessig doesn't boycott mass culture. His wife, Bettina, volunteers that he's always eager to see the latest blockbuster--"Minority Report," "The Sum of All Fears." He just wants to get rid of the lawyers. Disney's most enduring creation, he points out in his lectures, was directly derived from another work: Mickey Mouse was a parody of Buster Keaton's "Steamboat Bill." Nowadays, doing a parody like Mickey on or off-line would be an open invitation to a lawsuit. That's what Alice Randall got when she tried last year to publish "The Wind Done Gone," a parody of "Gone With the Wind" done from the slaves' point of view. The heirs of Margaret Mitchell slapped Randall with a lawsuit, claiming she was infringing on the copyright of the 1936 original. Publication of the novel was held up until an appeals court said it could be released on free speech grounds.
When Mitchell wrote her novel, she expected it would enter the public domain in 1992. With the extensions, this key piece of American culture is off-limits until 2031. "Creativity always builds off the past," Lessig says, "and if you call that theft, you don't understand what creativity is."
Valenti says that "what Larry and some of his cohorts believe is in the digital world everything ought to be available to everyone. No constraints on the rights of creative property at all."
While this isn't what Lessig thinks, the strange thing is that it's pretty close to what the framers of the Constitution believed. Indeed, what's odd about the current copyright fight is how much it's a contemporary remake of an issue that was discussed, litigated and decided during the 18th century.
Before 1710, the Stationers' Company, a guild of printers, controlled the publication and sale of all works in England, including those of authors who had been dead for thousands of years. The Stationers scoffed at the idea that their monopoly should be in any way limited. For one thing, they warned, if the system were dismantled it would ruin the economy. Equally important, they said, they had a moral right. No other property gets taken away after 10 or 20 years, they wrote in a broadside, so why should books? It's an argument that the music and movie industries are still making today.
Nevertheless, the Statute of Anne in 1710 established a limited copyright term of 14 years. The Stationers spent the next 60 years alternately ignoring and challenging the law as they tried to suppress the Scottish publishers, who followed their own rules and were thus the Internet pirates of the era. But in a landmark case in 1774, the Stationers' monopoly was finally broken and the past was freed.
When the U.S. Constitution was drawn up several years later, this history was still fresh. Jefferson wanted to put a "restriction against monopolies" in the Bill of Rights, right alongside trial by jury and freedom of the press. He, like the other framers, hated concentrating power in the hands of a few, and didn't like the idea of the past calling the shots on the future either. The earth belongs to the living, Jefferson wrote Madison on Sept. 6, 1789: "The dead have neither powers nor rights over it."
The Eldred case, which could do so much to affect the nature of copyrights, was sparked by a book that had been out of copyright for a century. Emma, Annie and Bonnie Eldred, teenage triplets in Derry, N.H., were assigned "The Scarlet Letter" in school. They didn't like it. Nathaniel Hawthorne's classic tale of sex, shame and redemption seemed fussy and obscure--a slog, in fact. The girls grumbled to their father, a civilian computer contractor for the Navy who was retired on disability and thus had lots of time to ponder the problem.
Eric Eldred wondered if the Internet could help, which wasn't as inevitable a thought in 1995 as it would be now. He found the entire text of the novel on the Net, but the typeface was so ugly and the typographical errors so plentiful it was a strain to read. So Eldred set about making his own online version. He scanned in the text, proofreading it and adding annotations and glossary definitions and features like an 1879 review of the novel by novelist Anthony Trollope. And since "The Scarlet Letter" is more easily understood in the context of Hawthorne's other works, Eldred scanned in "The House of the Seven Gables," "Twice Told Tales," "The Marble Faun," "A Wonder-Book" and just about everything else Hawthorne ever wrote, annotating them as well.
By the time he was done, his site was getting about 3,000 visits a day from students around the globe. It had been applauded by Hawthorne scholars and won a commendation from the National Endowment for the Humanities. Eldred had also seen Bonnie, Annie and Emma graduate from high school. Never enticed by literature, they all became dancers.
Their father, though, had found a calling. There's an old Ray Bradbury story about how, in a time of future suppression, literature remains alive by people essentially becoming the classic writers, literally embodying their work so it doesn't disappear. It was a tale Eldred took to heart. He was Hawthorne, preserving his words and presenting them to the future. He soon became Oliver Wendell Holmes, Ring Lardner, William Dean Howells, Louisa May Alcott, Henry James, as well as lesser-known late 19th and early 20th century masters, including John Boyle O'Reilly, author of the forgotten 1890 classic "Canoeing Sketches," and H.M. Tomlinson's definitive 1912 account of life on a tramp steamer, "The Sea and the Jungle." Since all this work was in the public domain, Eldred didn't have to track down the author or ask anyone's permission or pay any fees. He was one small part of a movement that was putting thousands of old books online, for free, for the betterment of all. The Web was becoming a library. No student would ever be confused by Hawthorne again.
Then the politicians got involved. On Oct. 7, 1998, Congress passed the Sonny Bono Copyright Term Extension Act, named after the late congressman and singer who believed, said his widow, Rep. Mary Bono, that "copyright should be forever."
Before the Bono act, copyright limits expired 75 years after publication, which means that Eldred was only a few months away from posting Hemingway's "Three Stories and 10 Poems," first published in 1923. The following years, the door would have slowly open on modern culture: "The Great Gatsby," "The Maltese Falcon," early works by Willa Cather and Wallace Stevens, "The Sun Also Rises," "Winnie the Pooh," "Rhapsody in Blue," "Show Boat," the best of Irving Berlin, Ring Lardner and Virginia Woolf, the first talkies.
And Mickey Mouse. The law when it comes to a creation such as Mickey is complex because trademark enters the picture. Still, Mickey, who first gained fame in "Steamboat Willie" in 1928, was too lucrative a part of the Disney company, too tied up in its corporate image, to risk. Disney donated money to 18 of the 25 sponsors of the Bono act in the House and Senate, and lobbied heavily for its passage.
By extending copyright protection for an additional 20 years, the Bono act essentially functions as a dam, preventing any work from entering the public domain until 2019--an estimated 400,000 books, movies and songs. A handful of classics will remain available, in print or on CDs or DVDs. Everything else will quietly crumble--literally, in the case of the negatives of many films. And for what? Eldred wondered. Just to keep up Disney profit margins and enrich the heirs of Gershwin and Hemingway?
It was a blow against the Internet, too. A traditional library with physical books can stock and lend out whatever it wants, whether the volume is in copyright or not; an Internet library like Eldred's is restricted to material in the public domain. "Companies don't want you to be able to get anything on the Internet for free," Eldred says. "They just want to sell you their own versions on pay-per-view."
Annoyed and depressed by the Bono act, he contemplated civil disobedience--publishing works from 1923 and '24 until he was arrested. He announced he was shutting down his site. He wrote letters. He fulminated. He became, in short, an activist, which is how Larry Lessig, then teaching at Harvard, heard about him, sought him out and filed a lawsuit on his behalf.
Patricia Lessig was pregnant with her third child in late 1960 when she went to see "Village of the Damned," a horror flick about a rural town whose womenfolk are mysteriously impregnated by aliens. The women give birth to a race of superhumans capable of reading minds and imposing their will on others. Four decades later, when Patricia contemplates her super-achieving son, the movie offers the only reasonable explanation. "I think he came from outer space."
There is something unearthly about Lessig. He grew up in Williamsport, Pa., where his father, Jack, started a steel-fabricating business that ultimately employed about 150 people. Jack ticks off his son's most memorable qualities: Never indecisive, never seemed to fail in anything, and whatever he got into, whether it was starting a newspaper in the fourth grade or running a Jerry Lewis-style telethon, he became the leader. "He was always about four or five steps ahead of everyone," says Jack.
Lessig wanted someday to be president, and made a good start. He was valedictorian of his high school class, president of the Pennsylvania Teenage Republicans and the youngest member of any delegation to the 1980 Republican convention. Lessig was a sophomore at Penn by then, running a state campaign for a man named Jim Ketcham. Despite Ronald Reagan's long coattails that year, Ketcham lost.
If the campaign cured him of the desire for a life in politics, graduate studies in philosophy at Trinity College at Cambridge University undercut his Republicanism. Studying under the long shadow of Ludwig Wittgenstein, the dark prince of Cambridge philosophers, Lessig learned that the way to influence a seemingly intractable debate was by reframing it, getting both sides to confront something they hadn't seen before. It's a technique that has served him well in the Eldred case.
While attending Yale Law School, Lessig did a summer internship at the highly regarded Chicago law firm of Miller Shakman & Hamilton. "He was the best any of us had ever seen, and our collective experience stretched back decades," remembers Barry Miller, now an assistant U.S. attorney. That ecstatic recommendation helped get Lessig a clerkship with Richard Posner, probably the best-known and most influential appeals court judge in the country.
"He was rather like Ralph Nader, but brighter," says Posner. In addition to Lessig's intensity and moral zeal, Posner was struck by something else, something Nader doesn't exhibit: a restlessness. "You know that novel by Somerset Maugham, 'The Razor's Edge'? The fellow in that book was someone who was searching for something meaningful, just like Larry. He ends up at a monastery in Nepal. He doesn't want to or can't lead a normal life."
Lessig used his spare energy to travel, trying to see what other people were taking for granted. He hitchhiked through communist Eastern Europe, smuggled a mechanical heart valve for a Jewish dissident into the Soviet Union by hiding it in his pants, read 30 classic novels in 30 days during a trip to Costa Rica. In the house he and Bettina, a lawyer with Bay Area Legal Aid, bought and are remodeling in San Francisco, his passport lies open on a table, as if it might be needed any minute.
The final rung on his educational ladder was the ultimate for any law student: a Supreme Court clerkship, during the 1990-91 term. In his interview with Antonin Scalia, Lessig coolly critiqued the justice's recent rulings. Scalia, who likes to be challenged by his clerks, gave Lessig the job. That annoyed Scalia's other clerks, all of whom correctly suspected Lessig was not a judicial conservative. "We weren't on speaking terms for much of the year," says one of them, Chris Landau.
Lessig first stepped onto the public stage in late 1997, when U.S. District Judge Thomas Penfield Jackson appointed him a "special master" in the Microsoft case. His task would have been to conduct hearings and issue a recommendation to the court, which would have given him an enormously influential role in the most important antitrust case in a century. But Microsoft didn't want anyone to be a special master, and certainly not Lessig: The company claimed he was biased, and tried to prove it by digging up an old e-mail in which Lessig had teasingly equated installing a Microsoft product on his computer with selling his soul to the devil.
Ultimately, an appeals court ruled against the involvement of a special master. Lessig has forgiven Microsoft but not himself for blowing his big moment.
"There's a great song by Sarah McLachlan called 'Angel'--'You spend all your time waiting/ for that second chance/ for a break that would make it OK . . . ' There's a certain sense I'm always feeling that I'm making up for Microsoft. I just want the chance to do some work, some real work, which could do some good."
After Clinton signed the Bono act, Lessig was in a hurry to challenge it. He thought the retroactive extension so obviously ridiculous, so clearly unconstitutional that he thought there would be dozens of suits. He wanted to be first. Eldred v. Reno, as it then was called, was filed Jan. 11, 1999, in U.S. District Court in Washington. Opposition by the Hollywood studios, the music companies and the book publishers was understandable. But even copyright lawyers fundamentally sympathetic to Lessig didn't think much of the case--which turned out to be the only challenge to the law.
Peter Jaszi, an influential copyright scholar at American University, was one of the early skeptics. "It's not so much that we thought it was a terrible idea but that it was just unprecedented," he says. "Congress has been extending copyright for 180 years, and this is the first time someone said it violated the Constitution."
U.S. District Judge June Green confirmed the skeptics' fears. Without letting the matter go to trial, she ruled in favor of the U.S. government on Oct. 28, 1999. The appeals court split its Feb. 16, 2001, decision, ruling 2-1 that Congress had not overstepped its bounds. Lessig appealed to the Supreme Court, but there seemed little reason for hope.
The high court postponed a decision on taking the Eldred case three times last January. Lessig plunged into despair. He thought the court would decline but needed to give one justice time to write an opinion disagreeing with the decision. The likely candidate was Justice Stephen G. Breyer, who had written a Harvard Law Review article in 1970 suggesting "we should . . . hesitate to extend or strengthen" copyright.
Larry and Bettina were in Hawaii. He slept a lot, stared into space. "He's a perfectionist. At everything," says Bettina. "He turned into an abyss of inconsolableness."
On Feb. 19, the court decided to take the case, which meant at least four justices decided it was worth hearing. The legal community was surprised. Most major shifts by the Supreme Court are widely anticipated, arriving in the wake of broad-based social movements and multiple lawsuits spanning several years, says University of Chicago legal historian Dennis Hutchinson. "Solitary crusading individuals are very unusual, and law professors acting on their own don't fare very well either," he says. Hutchinson could recall only one case involving law professors: Tileson v. Ullman, from 1943, an effort by Yale law professors to make it legal for doctors to prescribe contraceptives if a woman's health was in danger. The case was dismissed on procedural grounds.
The entertainment industry can only hope for a similar escape. The Supreme Court, Jack Valenti says hopefully, is merely having some "legal fun."
The mere fact that the court took the case has affected the entertainment business. Peermusic, a major independent music publisher based in the Bay Area, has been putting a clause in catalog acquisition contracts saying that the value will be cut if Bono is struck down. But what's more problematic is a deal that was done before the court took Eldred.
Peermusic had acquired the catalog of Hoagy Carmichael and was working to "rejuvenate it," as they say in the business. The studios were reacquainted with songs such as "Stardust" and "Georgia on My Mind"; negotiations were underway with a store chain to sell a line of products based on Carmichael's romantic allure; a musical is in the works.
But if Bono falls, "Stardust" goes in the public domain immediately, and "Georgia" follows in three years. "There's no incentive for us to do what we're doing if we don't have an opportunity to earn renumeration," says chief executive Ralph Peer II. "I would predict interest in the Carmichael repertoire would take a nose-dive."
Unless, of course, it increases as studios use work that they earlier would have had to pay for and singers record tunes that are suddenly freely available. Those who favor expirations for copyright point to what happened with Frances Hodgson Burnett's "The Secret Garden," the ageless tale of a boy and girl spiritually renewed after discovering a hidden garden on a Yorkshire estate. First published in 1911, the work entered the public domain in 1986. There are now at least 12 print versions of the book as well as two online versions. There has been a TV adaptation, a musical, a big-budget Warner Bros. movie, a cookbook and, undoubtedly, numerous student reworkings.
No one owns "The Secret Garden" anymore, and consequently everyone owns it. Probably the same would happen to Winnie the Pooh and Mickey, but Disney would not give them up without a fight. "Winnie the Pooh" was published in 1926, which means if the law is overturned, it immediately comes out of copyright. This would shave millions off the bottom line of its publisher, Dutton, a division of the British conglomerate Pearson. What's less clear is how such a decision would affect Disney, which controls the merchandising rights and makes a billion dollars a year from Pooh fruit juice and other items.
Could someone start selling their own Pooh fruit juice? Disney would say no, because it has a trademark on the Pooh characters, and trademarks, unlike copyrights, never expire. But at least one appeals court ruling, issued in Missouri in 1890, gives scant comfort to Disney.
In that case, a publisher had reissued a Webster's Dictionary from 1847 that had gone out of copyright. They were sued by the G. & C. Merriam Co., the original publishers of both that dictionary as well as several subsequent Webster's. Merriam argued that their trademark on the Webster's brand was being infringed by an upstart. Samuel Miller, a Supreme Court justice who was sitting in on a circuit court, slapped them down, writing that he didn't believe that "a party who has had the copyright of a book until it has expired may continue that monopoly indefinitely, under the pretense that it is protected by a trademark or something of that sort."
At the end of August, Lessig was speaking before what he swore would be his last audience, a gathering of the Free Software Foundation in San Francisco. He had the Eldred case to attend to; he was going to Japan for the fall semester; he was finally running out of energy. But he agreed to be a guest at a dinner for big donors to the foundation, and he spoke in a rented club for those who only had $10 to contribute.
Introducing Lessig, software activist Henri Poole says he isn't even going to try to get people at the club to stop playing pinball for the next half-hour because he knows that's impossible. Lessig gamely begins anyway--warning, cajoling, trying to inspire. "Everything that Washington proposes gets worse than the thing they did before," he says.
In March, Democratic Sen. Ernest F. Hollings of South Carolina introduced legislation that would require CD players, televisions and computers to block unauthorized copyright material. Opponents dubbed it the "police state in a computer."
On July 25, Howard L. Berman, the Democratic representative whose district includes North Hollywood and part of the San Fernando Valley, co-sponsored the Peer-to-Peer Piracy Prevention Act. It would allow anti-copyright vigilantism, giving Hollywood immunity for "disabling, interfering with, blocking, diverting, or otherwise impairing" home computers that might hold illegal copyrighted material.
Not since the Licensing Act of 1662 reaffirmed the power of the Stationers' Company to conduct searches and seizures of illegal books and presses has the state given such authority to a private entity. "Hollywood is terrified" by the Eldred case, Lessig tells the programmers, "but whatever victory we can win in the courthouse they can take away with new legislation."
He says he's pleading with them. "This war is being waged whether you participate or not. It will be won whether you're on the field or not. The question is by whom."
After he is finished, a college student comes up and starts talking in a sort of animated fury. This fellow lives in Berman's district. What would be better, he wants to know: to talk sense into Berman or go work for his opponent? "What do we do?" he says. "When do we start?"
A soldier has been enlisted for the battle. It's just one guy, and who knows if he'll even follow through. But Lessig considers it a successful evening.
David Streitfeld is a Times staff writer based in the Bay Area.
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