In his talk at SXSW, Larry Lessig expressed disappointment and surprise that the Supreme Court ruled against Eldred.
He argued the case using a good conservative legal argument. According to the intent of the framers of the constitution, copyright holders should be granted a limited monopoly in order to catalyze the creation of more work. Nevertheless Congress has extended copyright terms well beyond the plain meaning of “limited term”, and well beyond the incentive for artists to create new works. Despite the clear legal case, the justices still ruled in favor of extending copyright.
The conclusion Lessig draws is to be pessimistic about the court and political system. Instead, he’s working build market share for more moderate licenses, using the Creative Commons approach.
On the one hand, I don’t think it’s necessary to be quite so pessimistic with respect to the political process.
On the other hand, I don’t think Lessig is pessimistic enough about the influence of money on politics.
Also, the success of Creative Commons depends on new, profitable distribution channels for content. I believe that it’s possible, but I don’t see the way from here to there yet.
Courts, Politics, and Dred Scott
The Eldred case is the Dred Scott case of copyright law. In 1857, the Supreme Court argued that Dred Scott must remain a slave, despite the fact that he had been living in free states.
Although there was legal precedent and a good case to free Dred Scott, common knowledge accepted slavery as a fact of life and a part of the system. The court was able to rule as it did, because slavery was a reasonable outcome at the time.
Today, common wisdom holds that intellectual property is property, like a house or an automobile. Just as it would be unnatural and communistic for the government to seize one’s house and give it away after fifty years, it is “stealing” to take creative works and give them to the public domain.
The idea that “content is property” was pervasive in the late-90s, when the DMCA and copyright extensions were being passed. Media corporations were almost the only voices speaking to Congress.
That picture has changed. Geeks, who were largely technolibertarian five years ago, are aware that the government isn’t going to wither away, and we need to wake up in order to preserve civil liberties. The mainstream media is covering the story now – there was a front page NY Times article on Eldred.
And there’s a good story to tell to the public at large. Snow White, Pinocchio, and Mickey Mouse came from the public domain. New culture is built from old culture. We need to keep telling that story. When common sense changes, congress and the courts will act differently.
All the Money in the World
One reason for Lessig’s pessimism with the political process is that the advocates of closed culture have “all the money in the world.”
The US political process is dominated by money. The cost of running a campaign has doubled in the last decade. Politicians spend 80% of their time raising money. Politicians need money, corporations want law, corporations buy politicians.
In his speech, Lessig gave a moving re-interpretation of a Jack Valenti speech, citing values like democracy and freedom. But we don’t live in a democracy any more, we live in an oligarchy. Money rules.
If we don’t develop effective ways to reduce the role of money in politics, the wealthier side of an issue will continue to be able to buy the law. I’m trying to think globally and act locally on this issue, but I don’t see a clear way out.
The goal of the Creative Commons project is to build market share for new, more moderate content licenses that reserve some rights for content creators, and create fewer restrictions on the reuse of content. For example, a new Creative Commons license for music permits sampling, but doesn’t permit copying the whole song.
The success of Creative Commons depends on getting non-trivial market share in terms of dollars, not just units (as the market analysts put it). How many authors will follow Cory Doctorow by publishing their work online? (Cory’s license enables readers to freely download and copy the work, as long as they attribute it, don’t resell it, and don’t make derivative works). How many musicians will follow Janice Ian, who argued that Napster helps her career.
If a hundred thousand bloggers, writing for love and fame, use Creative Common licenses, that will put more culture in the public domain. But it won’t change the way business is done.
Most creators sell their soul to publishers, in the futile hope that publishers will market their books and music, and turn them into stars. In theory, there are new business models for freer content, but there are few success stories yet.
What will be the Creative Commons equivalent of IBM, which uses Open Source Software to make billions of dollars in hardware and consulting sales?
I believe there’s an opportunity, but I can’t see the commercial business model yet.
What do you think?