THE FIRE OF GENIUS:

Lawrence Lessig's Supreme Showdown: The Great Liberator Lawrence Lessig helped mount the case against Microsoft. He wrote the book on creative rights in the digital age. Now the cyberlaw star is about to tell the Supreme Court to smash apart the copyright machine. (Steven Levy, October 2002, Wired)

In Lessig's view, the wigheads in Philadelphia had laid out a bargain for creators of intellectual property: We want you to develop original art and science, so we'll give you an incentive - a temporary monopoly on the use of your work. In theory, this means that Walt Disney would lay out the money to make a cartoon knowing that he'd have a certain number of years to collect the royalties. Yet granting Walt (or his heirs) a longer period for works created before most of us were born doesn't promote progress; Steamboat Willie is already here. Obviously, a retroactive extension can't provide an incentive - "Gershwin isn't going to write any more music," notes Lessig. To the contrary, the cause of "art and science" actually suffers under retroactive extensions, because works that otherwise would have been returned to the public are kept in private hands.

Lessig's arguments are controversial. Intellectual property lawyers generally never considered them: The very basis of their universe is the assumption that Congress can do whatever it wants with the copyright clause. "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." When Lessig went to his colleague Arthur Miller, he heard much the same thing: Of course Congress can do this. (Miller later wrote an amicus brief in defense of the law.)

Lessig's response is fairly unlawyer-like. "This is one of those issues where you're not permitted to disagree," he says. "There are a lot of issues where that's fair. This is not one of them. They're just plain wrong. I believe that if they weren't working for clients who had millions of dollars hanging on it, if we sat down in good faith and talked about it, they'd come around to seeing it my way."

It does seem like this is a balance that needs to be struck. Protect the idea for long enough that the thinker can profit by it, but then let it revert to public domain.
Posted by Orrin Judd at October 5, 2002 10:13 AM