Feb
16
EU members, read this book
Posted by Dirk Avery at 8:36 am under Copyright, Supreme Court.
Before the EU proposal to extend copyright, sound-recording protection from 50 to 95 years becomes law, it “would need approval by the European Parliament and a majority of the EU’s 27 governments, whose votes are weighted by population size.” Of course, whenever copyright extension comes up, Lessig comes to mind. EU citizens and policy makers should read Lessig’s book, Free Culture, before deciding.
It’s not often that a tenured professor at one of America’s top law schools is willing to confess error… When Eldred v. Ashcroft eventually appeared on the Supreme Court’s docket, Lessig had good reason to think this would be a winner. [H]e… thought he understood what arguments would appeal to the court’s conservative majority… He would focus on the Constitution itself, and on broad principles about the allocation and limits of power… But as he readily admits in… Free Culture, Lessig saw this as a rather pandering strategy. When Justice Anthony Kennedy explicitly noted that he didn’t “see any empirical evidence” that extending copyright had “impeded progress,” Lessig insisted on steering Kennedy away from the economics, inviting him back to the higher ground of constitutional theory… [H]e insisted, Eldred’s claim was a nearly-pure question of interpretation involving the Constitution… and the court’s duty to police the boundaries of congressional action. As it turns out, Lessig writes, that was “a correct answer, but it wasn’t the right answer.” The right answer, he now realizes, was that this sort of abusive copyright extension would produce “an obvious and profound harm…” Free Culture is Lessig’s attempt to correct his error. Dedicated to Eldred, the client whose case Lessig eventually lost in a 7-2 decision, it is the product of a fertile mind dealing with a complex mix of politics, technology, law, culture, and economics… It features evil lawyers, powerful lobbyists, Hollywood’s A-list of stars and producers, and a bevy of creative innovators whose innovations have been stymied by the threat–and reality–of monster lawsuits.
Before getting to the climactic tale of Eldred v. Ashcroft… before the Supreme Court, however, Lessig builds a case for the virtues of creative destruction in the service of progress. Once upon a time, he notes, if you owned a plot of land, your rights extended down to the core of the Earth beneath your lot and up to the heavens. When the airplane came along, however, it became obvious that those rights would have to be curtailed. When a pair of North Carolina farmers challenged the government’s right to “take” the property between their land and the heavens in 1946 for the use of aircraft, the Supreme Court declared that such an “ancient doctrine” simply “has no place in the modern world.” (Imagine if United Airlines had to negotiate fly-over rights with every home-owner between San Francisco and Washington, D.C.) The court sided with Congress, and the future–as they very nearly always have in American history.
Washington Monthly (July-August 2004) (emphasis added).
Related
- Open letter to Lessig on net neutrality
- Lessig for Congress?
- IP’s purpose: economic incentive or progress?
- Incentive and the public domain
Story added…
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