Free Culture, Lawrence Lessig [best value ebook reader txt] 📗

were to be protected, did not, the Europeans thought, properly respect the dignity of the author. My right as a creator turns on my creativity, not upon the special favor of the government.

That's great rhetoric. It sounds wonderfully romantic. But it is absurd copyright policy. It is absurd especially for authors, because a world without formalities harms the creator. The ability to spread "Walt Disney creativity" is destroyed when there is no simple way to know what's protected and what's not.

The fight against formalities achieved its first real victory in Berlin in 1908. International copyright lawyers amended the Berne Convention in 1908, to require copyright terms of life plus fifty years, as well as the abolition of copyright formalities. The formalities were hated because the stories of inadvertent loss were increasingly common. It was as if a Charles Dickens character ran all copyright offices, and the failure to dot an i or cross a t resulted in the loss of widows' only income.

These complaints were real and sensible. And the strictness of the formalities, especially in the United States, was absurd. The law should always have ways of forgiving innocent mistakes. There is no reason copyright law couldn't, as well. Rather than abandoning formalities totally, the response in Berlin should have been to embrace a more equitable system of registration.

Even that would have been resisted, however, because registration in the nineteenth and twentieth centuries was still expensive. It was also a hassle. The abolishment of formalities promised not only to save the starving widows, but also to lighten an unnecessary regulatory burden imposed upon creators.

In addition to the practical complaint of authors in 1908, there was a moral claim as well. There was no reason that creative property should be a second-class form of property. If a carpenter builds a table, his rights over the table don't depend upon filing a form with the government. He has a property right over the table "naturally," and he can assert that right against anyone who would steal the table, whether or not he has informed the government of his ownership of the table.

This argument is correct, but its implications are misleading. For the argument in favor of formalities does not depend upon creative property being second-class property. The argument in favor of formalities turns upon the special problems that creative property presents. The law of formalities responds to the special physics of creative property, to assure that it can be efficiently and fairly spread.

No one thinks, for example, that land is second-class property just because you have to register a deed with a court if your sale of land is to be effective. And few would think a car is second-class property just because you must register the car with the state and tag it with a license. In both of those cases, everyone sees that there is an important reason to secure registration--both because it makes the markets more efficient and because it better secures the rights of the owner. Without a registration system for land, landowners would perpetually have to guard their property. With registration, they can simply point the police to a deed. Without a registration system for cars, auto theft would be much easier. With a registration system, the thief has a high burden to sell a stolen car. A slight burden is placed on the property owner, but those burdens produce a much better system of protection for property generally.

It is similarly special physics that makes formalities important in copyright law. Unlike a carpenter's table, there's nothing in nature that makes it relatively obvious who might own a particular bit of creative property. A recording of Lyle Lovett's latest album can exist in a billion places without anything necessarily linking it back to a particular owner. And like a car, there's no way to buy and sell creative property with confidence unless there is some simple way to authenticate who is the author and what rights he has. Simple transactions are destroyed in a world without formalities. Complex, expensive, lawyer transactions take their place.

This was the understanding of the problem with the Sonny Bono Act that we tried to demonstrate to the Court. This was the part it didn't "get." Because we live in a system without formalities, there is no way easily to build upon or use culture from our past. If copyright terms were, as Justice Story said they would be, "short," then this wouldn't matter much. For fourteen years, under the framers' system, a work would be presumptively controlled. After fourteen years, it would be presumptively uncontrolled.

But now that copyrights can be just about a century long, the inability to know what is protected and what is not protected becomes a huge and obvious burden on the creative process. If the only way a library can offer an Internet exhibit about the New Deal is to hire a lawyer to clear the rights to every image and sound, then the copyright system is burdening creativity in a way that has never been seen before because there are no formalities.

The Eldred Act was designed to respond to exactly this problem. If it is worth $1 to you, then register your work and you can get the longer term. Others will know how to contact you and, therefore, how to get your permission if they want to use your work. And you will get the benefit of an extended copyright term.

If it isn't worth it to you to register to get the benefit of an extended term, then it shouldn't be worth it for the government to defend your monopoly over that work either. The work should pass into the public domain where anyone can copy it, or build archives with it, or create a movie based on it. It should become free if it is not worth $1 to you.

Some worry about the burden on authors. Won't the burden of registering the work mean that the $1 is really misleading? Isn't the hassle worth more than $1? Isn't that the real problem with registration?

It is. The hassle is terrible. The system that exists now is awful. I completely agree that the Copyright Office has done a terrible job (no doubt because they are terribly funded) in enabling simple and cheap registrations. Any real solution to the problem of formalities must address the real problem of governments standing at the core of any system of formalities. In this book, I offer such a solution. That solution essentially remakes the Copyright Office. For now, assume it was Amazon that ran the registration system. Assume it was one-click registration. The Eldred Act would propose a simple, one-click registration fifty years after a work was published. Based upon historical data, that system would move up to 98 percent of commercial work, commercial work that no longer had a commercial life, into the public domain within fifty years. What do you think?

When Steve Forbes endorsed the idea, some in Washington began to pay attention. Many people contacted me pointing to representatives who might be willing to introduce the Eldred Act. And I had a few who directly suggested that they might be willing to take the first step.

One representative, Zoe Lofgren of California, went so far as to get the bill drafted. The draft solved any problem with international law. It imposed the simplest requirement upon copyright owners possible. In May 2003, it looked as if the bill would be introduced. On May 16, I posted on the Eldred Act blog, "we are close." There was a general reaction in the blog community that something good might happen here.

But at this stage, the lobbyists began to intervene. Jack Valenti and the MPAA general counsel came to the congresswoman's office to give the view of the MPAA. Aided by his lawyer, as Valenti told me, Valenti informed the congresswoman that the MPAA would oppose the Eldred Act. The reasons are embarrassingly thin. More importantly, their thinness shows something clear about what this debate is really about.

The MPAA argued first that Congress had "firmly rejected the central concept in the proposed bill"--that copyrights be renewed. That was true, but irrelevant, as Congress's "firm rejection" had occurred long before the Internet made subsequent uses much more likely. Second, they argued that the proposal would harm poor copyright owners--apparently those who could not afford the $1 fee. Third, they argued that Congress had determined that extending a copyright term would encourage restoration work. Maybe in the case of the small percentage of work covered by copyright law that is still commercially valuable, but again this was irrelevant, as the proposal would not cut off the extended term unless the $1 fee was not paid. Fourth, the MPAA argued that the bill would impose "enormous" costs, since a registration system is not free. True enough, but those costs are certainly less than the costs of clearing the rights for a copyright whose owner is not known. Fifth, they worried about the risks if the copyright to a story underlying a film were to pass into the public domain. But what risk is that? If it is in the public domain, then the film is a valid derivative use.

Finally, the MPAA argued that existing law enabled copyright owners to do this if they wanted. But the whole point is that there are thousands of copyright owners who don't even know they have a copyright to give. Whether they are free to give away their copyright or not--a controversial claim in any case--unless they know about a copyright, they're not likely to.

 

At the beginning of this book, I told two stories about the law reacting to changes in technology. In the one, common sense prevailed. In the other, common sense was delayed. The difference between the two stories was the power of the opposition--the power of the side that fought to defend the status quo. In both cases, a new technology threatened old interests. But in only one case did those interest's have the power to protect themselves against this new competitive threat.

I used these two cases as a way to frame the war that this book has been about. For here, too, a new technology is forcing the law to react. And here, too, we should ask, is the law following or resisting common sense? If common sense supports the law, what explains this common sense?

When the issue is piracy, it is right for the law to back the copyright owners. The commercial piracy that I described is wrong and harmful, and the law should work to eliminate it. When the issue is p2p sharing, it is easy to understand why the law backs the owners still: Much of this sharing is wrong, even if much is harmless. When the issue is copyright terms for the Mickey Mouses of the world, it is possible still to understand why the law favors Hollywood: Most people don't recognize the reasons for limiting copyright terms; it is thus still possible to see good faith within the resistance.

But when the copyright owners oppose a proposal such as the Eldred Act, then, finally, there is an example that lays bare the naked self-interest driving this war. This act would free an extraordinary range of content that is otherwise unused. It wouldn't interfere with any copyright owner's desire to exercise continued control over his content. It would simply liberate what Kevin Kelly calls the "Dark Content" that fills archives around the world. So when the warriors oppose a change like this, we should ask one simple question:

What does this industry really want?

With very little effort, the warriors could protect their content. So the effort to block something like the Eldred Act is not really about protecting their content. The effort to block the Eldred Act is an effort