5. Fire Lots of Lawyers
I'm a lawyer. I make lawyers for a living. I believe in the law. I believe in the law of copyright. Indeed, I have devoted my life to working in law, not because there are big bucks at the end but because there are ideals at the end that I would love to live.
Yet much of this book has been a criticism of lawyers, or the role lawyers have played in this debate. The law speaks to ideals, but it is my view that our profession has become too attuned to the client. And in a world where the rich clients have one strong view, the unwillingness of the profession to question or counter that one strong view queers the law.
The evidence of this bending is compelling. I'm attacked as a “radical” by many within the profession, yet the positions that I am advocating are precisely the positions of some of the most moderate and significant figures in the history of this branch of the law. Many, for example, thought crazy the challenge that we brought to the Copyright Term Extension Act. Yet just thirty years ago, the dominant scholar and practitioner in the field of copyright, Melville Nimmer, thought it obvious.[10]
However, my criticism of the role that lawyers have played in this debate is not just about a professional bias. It is more importantly about our failure to actually reckon the costs of the law.
Economists are supposed to be good at reckoning costs and benefits. But more often than not, economists, with no clue about how the legal system actually functions, simply assume that the transaction costs of the legal system are slight.[11] They see a system that has been around for hundreds of years, and they assume it works the way their elementary school civics class taught them it works.
But the legal system doesn't work. Or more accurately, it doesn't work for anyone except those with the most resources. Not because the system is corrupt. I don't think our legal system (at the federal level, at least) is at all corrupt. I mean simply because the costs of our legal system are so astonishingly high that justice can practically never be done.
These costs distort free culture in many ways. A lawyer's time is billed at the largest firms at more than $400 per hour. How much time should such a lawyer spend reading cases carefully, or researching obscure strands of authority? The answer is the increasing reality: very little. The law depended upon the careful articulation and development of doctrine, but the careful articulation and development of legal doctrine depends upon careful work. Yet that careful work costs too much, except in the most high-profile and costly cases.
The costliness and clumsiness and randomness of this system mock our tradition. And lawyers, as well as academics, should consider it their duty to change the way the law works—or better, to change the law so that it works. It is wrong that the system works well only for the top 1 percent of the clients. It could be made radically more efficient, and inexpensive, and hence radically more just.
But until that reform is complete, we as a society should keep the law away from areas that we know it will only harm. And that is precisely what the law will too often do if too much of our culture is left to its review.
Think about the amazing things your kid could do or make with digital technology—the film, the music, the Web page, the blog. Or think about the amazing things your community could facilitate with digital technology—a wiki, a barn raising, activism to change something. Think about all those creative things, and then imagine cold molasses poured onto the machines. This is what any regime that requires permission produces. Again, this is the reality of Brezhnev's Russia.
The law should regulate in certain areas of culture—but it should regulate culture only where that regulation does good. Yet lawyers rarely test their power, or the power they promote, against this simple pragmatic question: “Will it do good?” When challenged about the expanding reach of the law, the lawyer answers, “Why not?”
We should ask, “Why?” Show me why your regulation of culture is needed. Show me how it does good. And until you can show me both, keep your lawyers away.
ACKNOWLEDGMENTS
This book is the product of a long and as yet unsuccessful struggle that began when I read of Eric Eldred's war to keep books free. Eldred's work helped launch a movement, the free culture movement, and it is to him that this book is dedicated.
I received guidance in various places from friends and academics, including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose, and Kathleen Sullivan. And I received correction and guidance from many amazing students at Stanford Law School and Stanford University. They included Andrew B. Coan, John Eden, James P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman, Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and Erica Platt. I am particularly grateful to Catherine Crump and Harry Surden, who helped direct their research, and to Laura Lynch, who brilliantly managed the army that they assembled, and provided her own critical eye on much of this.
Yuko Noguchi helped me to understand the laws of Japan as well as its culture. I am thankful to her, and to the many in Japan who helped me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki, Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama, and the Tokyo University Business Law Center, for giving me the chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu Yamagami for their generous help while I was there.
These are the traditional sorts of help that academics regularly draw upon. But in addition to them, the Internet has made it possible to receive advice and correction from many whom I have never even met. Among those who have responded with extremely helpful advice to requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David Gerstein, and Peter DiMauro, as well as a long list of those who had specific ideas about ways to develop my argument. They included Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt, K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker, Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt Wasserman, Miljenko Williams, “Wink,” Roger Wood, “Ximmbo da Jazz,” and Richard Yanco. (I apologize if I have missed anyone; with computers come glitches, and a crash of my e-mail system meant I lost a bunch of great replies.)
Richard Stallman and Michael Carroll each read the whole book in draft, and each provided extremely helpful correction and advice. Michael helped me to see more clearly the significance of the regulation of derivitive works. And Richard corrected an embarrassingly large number of errors. While my work is in part inspired by Stallman's, he does not agree with me in important places throughout this book.
Finally, and forever, I am thankful to Bettina, who has always insisted that there would be unending happiness away from these battles, and who has always been right. This slow learner is, as ever, grateful for her perpetual patience and love.
INDEX
The Index was removed by the quite evident reasons.
ABOUT THE AUTHOR
LAWRENCE LESSIG (http://www.lessig.org), professor of law and a John A. Wilson Distinguished Faculty Scholar at Stanford Law School, is founder of the Stanford Center for Internet and Society and is chairman of the Creative Commons (http://creativecommons.org). The author of The Future of Ideas (Random House, 2001) and Code: And Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of the boards of the Public Library of Science, the Electronic Frontier Foundation, and Public Knowledge. He was the winner of the Free Software Foundation's Award for the Advancement of Free Software, twice listed in BusinessWeek's “e.biz 25,” and named one of Scientific American's “50 visionaries.” A graduate of the University of Pennsylvania, Cambridge University, and Yale Law School, Lessig clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals.
Also By Lawrence Lessig
The Future of Ideas: The Fate of the Commons in a Connected World
Code: And Other Laws of Cyberspace
PREFACE
[1] David Pogue, “Don't Just Chat, Do Something,” New York Times, 30 January 2000.
[2] Richard M. Stallman, Free Software, Free Societies 57 ( Joshua Gay, ed. 2002).
[3] William Safire, “The Great Media Gulp,” New York Times, 22 May 2003.
INTRODUCTION
[1] St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.: Rothman Reprints, 1969), 18.
[2] United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that there could be a “taking” if the government's use of its land effectively destroyed the value of the Causbys' land. This example was suggested to me by Keith Aoki's wonderful piece, “(Intellectual) Property and Sovereignty: Notes Toward a Cultural Geography of Authorship,” Stanford Law Review 48 (1996): 1293, 1333. See also Paul Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984), 1112-13.
[3] Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong (Philadelphia: J. B. Lipincott Company, 1956), 209.
[4] See “Saints: The Heroes and Geniuses of the Electronic Era,” First Electronic Church of America, at www.webstationone.com/fecha, available at link #1.
[5] Lessing, 226.
[6] Lessing, 256.
[7] Amanda Lenhart, “The Ever-Shifting Internet Population: A New Look at Internet Access and the Digital Divide,” Pew Internet and American Life Project, 15 April 2003: 6, available at link #2.
[8] This is not the only purpose of copyright, though it is the overwhelmingly primary purpose of the copyright established in the federal constitution. State copyright law historically protected not just the commercial interest in publication, but also a privacy interest. By granting authors the exclusive right to first publication, state copyright law gave authors the power to control the spread of facts about them. See Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4 (1890): 193, 198-200.
[9] See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), ch. 13.
[10] Amy Harmon, “Black Hawk Download: Moving Beyond Music, Pirates Use New Tools to Turn the Net into an Illicit Video Club,” New York Times, 17 January 2002.
[11] Neil W. Netanel, “Copyright and a Democratic Civil Society,” Yale Law Journal 106 (1996): 283.
“PIRACY”
[1] Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).
[2] See Rochelle Dreyfuss, “Expressive Genericity: Trademarks as Language in the Pepsi Generation,” Notre Dame Law Review 65 (1990): 397.
[3] Lisa Bannon, “The Birds May Sing, but Campers Can't Unless They Pay Up,” Wall Street Journal, 21 August 1996, available at link #3; Jonathan Zittrain, “Calling Off the Copyright War: In Battle of Property vs. Free Speech, No One Wins,” Boston Globe, 24 November 2002.
[4] In The Rise of the Creative Class (New York: Basic Books, 2002), Richard Florida documents a shift in the nature of labor toward a labor of creativity. His work, however, doesn't directly address the legal conditions under which that creativity is enabled or stifled. I certainly agree with him about the importance and significance of this change, but I also believe the conditions under which it will be enabled are much more tenuous.
CHAPTER ONE: CREATORS
[1] Leonard Maltin, Of Mice and Magic: A History of American Animated Cartoons (New York: Penguin Books, 1987), 34-35.
[2] I am grateful to David Gerstein and his careful history, described at link #4. According to Dave Smith of the Disney Archives, Disney paid royalties to use the music for five songs in Steamboat Willie: “Steamboat Bill,” “The Simpleton” (Delille), “Mischief Makers” (Carbonara), “Joyful Hurry No. 1” (Baron), and “Gawky Rube” (Lakay). A sixth song, “The Turkey in the Straw,” was already in the public domain. Letter from David Smith to Harry Surden, 10 July 2003, on file with author.
[3] He was also a fan of the public domain. See Chris Sprigman, “The Mouse that Ate the Public Domain,” Findlaw, 5 March 2002, at link #5.
[4] Until 1976, copyright law granted an author the possibility of two terms: an initial term and a renewal term. I have calculated the “average” term by determining the weighted average of total registrations for any particular year, and the proportion renewing. Thus, if 100 copyrights are registered in year 1, and only 15 are renewed, and the renewal term is 28 years, then the average term is 32.2 years. For the renewal data and other relevant data, see the Web site associated with this book, available at link #6.
[5] For an excellent history, see Scott McCloud, Reinventing Comics (New York: Perennial, 2000).
[6] See Salil K. Mehra, “Copyright and Comics in Japan: Does Law Explain Why All the Comics My Kid Watches Are Japanese Imports?” Rutgers Law Review 55 (2002): 155, 182. “[T]here might be a collective economic rationality that would lead manga and anime artists to forgo bringing legal actions for infringement. One hypothesis is that all manga artists may be better off collectively if they set aside their individual self-interest and decide not to press their legal rights. This is essentially a prisoner's dilemma solved.”
[7] The term intellectual property is of relatively recent origin. See Siva Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York University Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York: Random House, 2001), 293 n. 26. The term accurately describes a set of “property” rights-copyright, patents, trademark, and trade-secret-but the nature of those rights is very different.
CHAPTER TWO: “MERE COPYISTS”
[1] Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112.
[2] Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), 53.
[3] Jenkins, 177.
[4] Based on a chart in Jenkins, p. 178.
[5] Coe, 58.
[6] For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 S.E. 68 (Ga. 1905); Foster-Milburn Co. v. Chinn, 123090 S.W. 364, 366 (Ky. 1909); Corliss v. Walker, 64 F. 280 (Mass. Dist. Ct. 1894).
[7] Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4 (1890): 193.
[8] See Melville B. Nimmer, “The Right of Publicity,” Law and Contemporary Problems 19 (1954): 203; William L. Prosser, “Privacy,” California Law Review 48 (1960) 398-407; White v. Samsung Electronics America, Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993).
[9] H. Edward Goldberg, “Essential Presentation Tools: Hardware and Software You Need to Create Digital Multimedia Presentations,” cadalyst, 1 February 2002, available at link #7.
[10] Judith Van Evra, Television and Child Development (Hillsdale, N.J.: Lawrence Erlbaum Associates, 1990); “Findings on Family and TV Study,” Denver Post, 25 May 1997, B6.
[11] Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002.
[12] See Scott Steinberg, “Crichton Gets Medieval on PCs,” E!online, 4 November 2000, available at link #8; “Timeline,” 22 November 2000, available at link #9.
[13] Interview with Daley and Barish.
[14] Ibid.
[15] See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16.
[16] Bruce Ackerman and James Fishkin, “Deliberation Day,” Journal of Political Philosophy 10 (2) (2002): 129.
[17] Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), 65-80, 175, 182, 183, 192.
[18] Noah Shachtman, “With Incessant Postings, a Pundit Stirs the Pot,” New York Times, 16 January 2003, G5.
[19] Telephone interview with David Winer, 16 April 2003.
[20] John Schwartz, “Loss of the Shuttle: The Internet; A Wealth of Information Online,” New York Times, 2 February 2003, A28; Staci D. Kramer, “Shuttle Disaster Coverage Mixed, but Strong Overall,” Online Journalism Review, 2 February 2003, availab
le at link #10.
[21] See Michael Falcone, “Does an Editor's Pencil Ruin a Web Log?” New York Times, 29 September 2003, C4. (“Not all news organizations have been as accepting of employees who blog. Kevin Sites, a CNN correspondent in Iraq who started a blog about his reporting of the war on March 9, stopped posting 12 days later at his bosses' request. Last year Steve Olaf- son, a Houston Chronicle reporter, was fired for keeping a personal Web log, published under a pseudonym, that dealt with some of the issues and people he was covering.”)
[22] See, for example, Edward Felten and Andrew Appel, “Technological Access Control Interferes with Noninfringing Scholarship,” Communications of the Association for Computer Machinery 43 (2000): 9.
CHAPTER THREE: CATALOGS
[1] Tim Goral, “Recording Industry Goes After Campus P-2-P Networks: Suit Alleges $97.8 Billion in Damages,” Professional Media Group LCC 6 (2003): 5, available at 2003 WL 55179443.
[2] Occupational Employment Survey, U.S. Dept. of Labor (2001) (27-2042-Musicians and Singers). See also National Endowment for the Arts, More Than One in a Blue Moon (2000).
[3] Douglas Lichtman makes a related point in “KaZaA and Punishment,” Wall Street Journal, 10 September 2003, A24.
CHAPTER FOUR: “PIRATES”
[1] I am grateful to Peter DiMauro for pointing me to this extraordinary history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87-93, which details Edison's “adventures” with copyright and patent.
[2] J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion Picture Producers (Cobblestone Entertainment, 2000) and expanded texts posted at “The Edison Movie Monopoly: The Motion Picture Patents Company vs. the Independent Outlaws,” available at link #11. For a discussion of the economic motive behind both these limits and the limits imposed by Victor on phonographs, see Randal C. Picker, “From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Prop- ertization of Copyright” (September 2002), University of Chicago Law School, James M. Olin Program in Law and Economics, Working Paper No. 159.
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