Lessig mobilizes copyright reform

The Stanford University law professor, who was once the court-appointed "special master" in Microsoft's antitrust trial and is a noted Internet privacy and intellectual property advocate, on Monday launched an online petition as the first salvo in what he expects to be a long battle to change the way the U.S. government renews patents.

The goal of the petition is to convince Congress to require copyright holders to pay a $1 fee every 50 years in order to extend their copyrights.

The way it is now, Lessig says, copyrights are automatically extended whether or not their owners are alive or want their work protected by copyright. As a result, Internet information repositories are prohibited from including vast amounts of information, including film that curators expect to disintegrate before newly and automatically extended copyrights expire.

The germ of Lessig's petition was the Supreme Court's decision in January to uphold Congress' move to automatically extend copyrights by 20 years.

At that point, Lessig, the 11 plaintiffs he represented and their fellow public domain advocates ran out of legal recourse and have turned to legislative remedies. Now the activists are gathering evidence of public support with their petition, talking to legislators and warding off early opposition from Hollywood for their proposed dollar renewal fee.

Lessig spoke with CNET News.com about his campaign from his home in San Francisco.

What spurred it?
We've been working to put together this response to the Eldred decision for months. We've hammered out language for the bill that would comply with the Berne Convention (for the Protection of Literary and Artistic Works), which the U.S. is a signatory to. We're ready and eager to build a large grassroots organization of people who demand of Congress that it do something to restore some balance here. This petition is a first step toward going to Washington and saying that there's a large number of people who want you to consider this.

How long will you run the petition, or how many signatures will you get before presenting it to Congress?
We have not decided. I've never done something like this before.

Well, you've gotten up and said: Hey, if you care about copyright or privacy you'd better send money to the Electronic Frontier Foundation (EFF).
Yes, but I've never tried to mobilize a political movement. What we've found with this idea, after having taken it on the road for the past year, is that this is the first time we've had an issue that's unambiguous for most people. With Napster and file sharing, I had strong opinions, but there were strong and some compelling arguments on the other side. This issue doesn't cut both ways. If the copyright's not worth a dollar to you after 50 years, what reasonable person would say it should be extended?

In other words, if they won't even give us this, then who are the extremists in this debate? You either have to say the public domain should be abolished, or it's too much for us to pay a dollar to sustain the copyright of Mickey Mouse. Either of those two claims would be extreme in our tradition, and it's about time that the Congress do something to benefit the public domain that does not in any significant way burden copyright interests.

Speaking of your EFF pitch, you said at the time that it was better to give money to a group like that because talking directly to politicians was unproductive since they weren't interested in genuine debate. Have you had any more experience talking directly to politicians since making those remarks? Have you had any more luck?
I have, and I have been surprised. I think most want to do the right thing. The key is to give them that chance.

Who in Congress will you take these signatures to? Do you have anyone you think might sponsor a bill?
We've talked to a lot of congresspeople. I don't want to out anyone specifically, because the (Motion Pictures Association of America) has started a pretty substantial campaign to stop it.

Wait, I thought you said there were no reasonable people who were opposing this idea.
It is reasonable, but it already has a lot of enemies. The MPAA has started to talk to the congresspeople we've been talking to about why this is a bad idea.

Tell me why this is an Internet problem. Why should the tech industry care about this, particularly?
This is an extremely important issue for people to get. Before the Internet, long copyright terms sometimes didn't matter. What were you going to do with a book that was out of print before the Internet? How were you going to republish it? Now that we have the Internet, we can imagine taking an extraordinary amount of knowledge and culture and making it available on the Internet so that it can be provided for free to schools, to libraries, to other creators. This is a possibility that didn't exist when Congress originally abolished the requirement that you had to renew your copyright, in 1976. They did that because they thought it was an unnecessary burden, and there was not so much benefit in letting work pass into the public domain.

The Internet has now made the public domain a million times more valuable. So we have a chance to restore the material--if you don't have to get the permission. And we want Congress to reconsider what they've done in light of the potential that the Internet creates.

Can you give me a brief primer on how U.S. copyright law has evolved to get to its present state?
Until 1976, you had two copyright terms--the first lasted 28 years, and if it was renewed, then another 28 years. The benefit was that the vast majority of copyrights were not renewed--85 percent in 1973 were not. Congress changed the law in '76 so that you didn't have to renew, and it became the life of the author plus 50 years, or in the case of corporate work, work for hire, a fixed 75-year period. In 1992, Congress said the law applied to all existing copyrights, so nobody had to renew copyrights at all. In 1998, the Sonny Bono bill extended the term by 20 years, to 95 years for corporate works and life plus 70 years for individuals.

So in the next 20 years, no copyrights will pass into the public domain, although a million patents will in the same period. Congress was just trying to extend the term for the 2 percent of content that had commercial value, but they gave no thought to that vast majority of content that had no commercial value.

But wait, couldn't your opponents demolish that 2 percent statistic? Couldn't they say that, of course, the rest of this content has commercial value, at least potentially?
It's very important to think about the way copyrighted works go. They have two lives--one in print when publishers sell them, and then another when they go out of print as do most books within three years. But it's not the end of the life of the book. They exist in libraries, in archives, so when I say that 2 percent has commercial value, I mean that 2 percent of works created between 1923 to 1942 is being exploited in the traditional way by selling books or copies of videos.

If the rest of the content were to pass into the public domain, then there would be people like Brewster Kahle and his Internet archives, or Rick Prelinger and his film archives, which take film and sell stock footage but put a bunch of it on the Internet for free. They would be able to use this content in a commercial way but could do it because they wouldn't have to pay the extremely high fees to identify and clear copyrights. If you could remove the copyright burden, there would be a vast amount of commercial and noncommercial exploitation of this work--making it available to libraries in digital form, lowering the cost of running school libraries. People would build old film libraries, making that content available in a way it's not available right now.

It's one thing for the MPAA and sort of old media empires to oppose you on this thing. But how have more Internet-native media companies like AOL Time Warner responded?
I have not really approached AOL yet. We're not a lobbying organization, so we haven't spent a lot of time trying to contact companies directly. And I guess to the extent we've talked to people in the Valley about this stuff, people are generally very skeptical of long copyrights. Intel filed a brief on the Eldred case. Long copyrights are not helping innovation or growth here, and people understand that.

Who have you got on board already to get this movement mobilized?
There are a lot of these emerging organizations trying to reclaim the public domain. Public Knowledge is one. EFF is another. In this project, there has been about 25 who have been talking about how to organize this and it's become something very dear to my soul that we succeed. This is going to be the core of my effort for a good deal of time.