Lawrence Lessig is on a roll...

Not to be confused with "Let's Roll," the famous words of Todd 
Beamer, just before he and fellow passengers fought to retake control 
of Flight 93, hijacked by terrorists on Spetember 11. The  Todd M. 
Beamer Foundation now seeks to trademark "Let's Roll" to sell 
T-shirts and coffee mugs to raise money for the charity.

Let's Roll provides a classic example of how "ideas" quickly 
promulgate through a "free" society. The term became a rallying cry 
for our nation, used in speeches by President Bush and a popular song 
by Neil Young. Now a "charitable" group seeks to "control" it's use 
to raise money.

Lessig might well be considered to be a crusader for the freedom of 
ideas. An advocate for creativity and innovation, fighting against 
those who seek "perfect control," by co-opting the very technologies 
that threaten the ever increasing control over content that Congress 
has granted to powerful constituents over the past century.

Lessig and his colleagues won a surprising victory this week, as the 
Supreme Court agreed to hear a copyright case filed by Lessig, 
challenging the 1998 Sonny Bono Copyright Term Extension Act. One 
could well imagine the elation of Lessig and his colleagues after 
hearing of this victory. After decades of setbacks - 11 Congressional 
extensions of copyright terms in the past 40 years -   those who 
interpret the Constitution requirement that copyrights have a 
"limited term" literally, finally see a window of opportunity...Let's 
Roll!

Lessig has written a book entitled, "The Future of Ideas," in which 
he examines the conflict between the Constitutional intent to move 
the creative work of authors and inventors into the public domain 
quickly, and the desire of Intellectual Property owners to have 
"perfect control" over their creations.

An excerpt from the book has been published with the author's 
permission by The American Spectator, and is currently published on 
the web at Gilder.com. IT is lengthy, but well worth the read for 
those of use who are concerned about the future of digital media, 
DTV, MPEG-4 et al.

I have not asked permission to reproduce the excerpt here. Somehow I 
don't think that Gilder, the American Spectator or Lawrence Lessig 
will mind. As a result of reading this I am going to buy Lessig's book.

This excerpt is focused primarily on the current debate about 
copyrights, however, Lessig  makes several point that are universally 
true about the current battles for "perfect control" that are highly 
relevant to the discussions on the OpenDTV and MPEG4IF lists. And at 
the end, he connects his remarks to the issue of patents as well. If 
you don't have time to read the entire piece, please read the 
following three paragraphs...


"But the Internet itself is also changing. Features of the 
architecture-both legal and technical-that originally created this 
environment of free creativity are now being altered. They are being 
changed in ways that will re-introduce the very barriers that the 
Internet originally removed.

"There are strong reasons why many are trying to rebuild these 
constraints: They will enable these existing and powerful interests 
to protect themselves from the competitive threat the Internet 
represents. The old, in other words, is bending the Net to protect 
itself against the new."

. . .

"The urgency in the field of patents is even greater. Here again, 
patents are not per se evil; they are evil only if they do no social 
good. They do no social good if they benefit certain companies at the 
expense of innovation generally. And as many have argued 
convincingly, that's just what many patents today do."


Regards
Craig Birkmaier
Pcube Labs



http://gilder.com/AmericanSpectatorArticles/Lessig/Control.htm


Control & Creativity

The future of ideas is in the balance

By Lawrence Lessig

The Internet puts two futures in front of us, the one we seem to be 
taking and the one we could. The one we seem to be taking is easy to 
describe. Take the Net, mix it with the fanciest TV, add a simple way 
to buy things, and that's pretty much it.

Though I don't (yet) believe this view of America Online, it is the 
most cynical image of Time Warner's marriage to AOL: the forging of 
an estate of large-scale networks with power over users to an estate 
dedicated to almost perfect control over content, through 
intellectual property and other government-granted exclusive rights. 
The promise of many-to-many communication that defined the early 
Internet will be replaced by a reality of many, many ways to buy 
things and many, many ways to select among what is offered. What gets 
offered will be just what fits within the current model of the 
concentrated systems of distribution. Cable television on speed, 
addicting a much more manageable, malleable and sellable public.

The future that we could have is much harder to describe. It is 
harder because the very premise of the Internet is that no one can 
predict how it will develop. The architects who crafted the first 
protocols of the Net had no sense of a world where grandparents would 
use computers to keep in touch with their grandkids. They had no idea 
of a technology where every song imaginable is available within 
thirty seconds' reach. The World Wide Web was the fantasy of a few 
MIT computer scientists. The perpetual tracking of preferences that 
allows a computer in Washington state to suggest an artist I might 
like because of a book I just purchased was an idea that no one had 
made famous before the Internet made it real.

Yet there are elements of this future that we can fairly imagine. 
They are the consequences of falling costs, and hence falling 
barriers to creativity. The most dramatic are the changes in the 
costs of distribution; but just as important are the changes in the 
costs of production. Both are the consequence of going digital: 
Digital technologies create and replicate reality much more 
efficiently than non-digital technology does. This will mean a world 
of change.

Skip ahead to just a few years from now and think about the new 
potential for creativity. The cost of filmmaking is a fraction of 
what it was just a decade ago. The same is true for the production of 
music or any digital art. Digital tools dramatically extend the 
horizon of opportunity for those who could create something new.

And not just for those who would create something "totally new," if 
such an idea were even possible. Think about the ads from Apple 
Computer urging that "consumers" do more than simply consume:

Rip, mix, burn.
After all, it's your music.

Apple, of course, wants to sell computers. Yet their ad touches an 
ideal that runs very deep in our history. For the technology that 
they (and of course others) sell could enable this generation to do 
with our culture what generations have done from the very beginning 
of human society: to take what is our culture; to "rip" it-meaning to 
copy it; to "mix" it-meaning to re-form it however the user wants; 
and finally, and most important, to "burn" it-to publish it in a way 
that others can see and hear.

We now have the potential to expand the reach of this creativity to 
an extraordinary range of culture and commerce. Technology could 
enable a whole generation to create-remixed films, new forms of 
music, digital art, a new kind of storytelling, writing, a new 
technology for poetry, criticism, political activism-and then, 
through the infrastructure of the Internet, share that creativity 
with others.

The future that I am describing is as important to commerce as to any 
other field of creativity. Though most distinguish innovation from 
creativity, or creativity from commerce, I do not. The network that I 
am describing enables both forms of creativity. It would leave the 
network open to the widest range of commercial innovation; it would 
keep the barriers to this creativity as low as possible.

Already we can see something of this potential. The open and neutral 
platform of the Internet has spurred hundreds of companies to develop 
new ways for individuals to interact. Public debate is enabled, by 
removing perhaps the most significant cost of human 
interaction-synchronicity. I can add to your conversation tonight; 
you can follow it up tomorrow; someone else, the day after.

The technology will only get better. And contrary to the 
technology-doomsayers, this is a potential for making human life 
more, not less, human.

But just at the cusp of this future, at the same time that we are 
being pushed to the world where anyone can "rip, mix [and] burn," a 
countermovement is raging all around. To ordinary people, this slogan 
from Apple seems benign enough; to the lawyers who prosecute the laws 
of copyright, the very idea that the music on "your" CD is "your 
music" is absurd. "Read the license," they're likely to demand. "Read 
the law," they'll say, piling on. This culture that you sing to 
yourself, or that swims all around you, this music that you pay for 
many times over-when you hear it on commercial radio, when you buy 
the CD, when you pay a surplus at a large restaurant so that they can 
play the same music on their speakers, when you purchase a movie 
ticket where the song is the theme-this music is not yours. You have 
no "rights" to rip it, or to mix it, or especially to burn it. You 
may have, the lawyers will insist, permission to do these things. But 
don't confuse Hollywood's grace with your rights. These parts of our 
culture, these lawyers will tell you, are the property of the few. 
The law of copyright makes it so, even though the law of copyright 
was never meant to create any such power.

Indeed, the best evidence of this conflict is again Apple itself. For 
the very same machines that Apple sells to "rip, mix [and] burn" 
music are programmed to make it impossible for ordinary users to 
"rip, mix [and] burn" Hollywood's movies. Try to "rip, mix [and] 
burn"  Disney's 102 Dalmatians and it's your computer that will get 
ripped, not the content. Software, or code, protects this content, 
and Apple's machine protects this code.

This struggle is just a token of a much broader battle, for the model 
that governs film is slowly being pushed to every other kind of 
content. The changes we will see affect every front of human 
creativity. They affect commercial as well as noncommercial, the arts 
as well as the sciences. They are as much about growth and jobs as 
they are about music and film. And how we decide these questions will 
determine much about the kind of society we will become. It will 
determine what the "free" means in our self-congratulatory claim that 
we are now, and will always be, a "free society."

It is best described as a constitutional question: It is about the 
fundamental values that define this society and whether we will allow 
those values to change. Are we, in the digital age, to be a free 
society? And what precisely would that idea mean?

FREE SPEECH?
FREE BEER?

Every society has resources that are free and resources that are 
controlled. Free resources are those available for the taking. 
Controlled resources are those for which the permission of someone is 
needed before the resource can be used. Einstein's theory of 
relativity is a free resource. You can take it and use it without the 
permission of anyone. Einstein's last residence in Princeton, New 
Jersey, is a controlled resource. To sleep at 112 Mercer Street 
requires the permission of the Institute for Advanced Study.

Over the past hundred years, much of the heat in political argument 
has been about which system for controlling resources-the state or 
the market-works best.

That war is over. For most resources, most of the time, the market 
trumps the state.

This, however, is a new century; our questions will be different. The 
issue for us will not be which system of exclusive control-the 
government or the market-should govern a given resource, but whether 
that resource should be controlled or free.

So deep is the rhetoric of control within our culture that whenever 
one says a resource is "free," most believe that a price is being 
quoted-free, that is, as in zero cost. But "free" has a much more 
fundamental meaning-in French, libre rather than gratis, or for us 
non-French speakers, and as the philosopher of our age and founder of 
the Free Software Foundation, Richard Stallman, puts it, "free, not 
in the sense of free beer, but free in the sense of free speech." A 
resource is "free" if 1) one can use it without the permission of 
anyone else; or 2) the permission one needs is granted neutrally. So 
understood, the question for our generation will be not whether the 
market or the state should control a resource, but whether that 
resource should remain free.

This is not a new question, though we've been well trained to ignore 
it. Free resources have always been central to innovation, creativity 
and democracy. The roads are free in the sense I mean; they give 
value to the businesses around them. Central Park is free in the 
sense I mean; it gives value to the city that it centers. A jazz 
musician draws freely upon the chord sequence of a popular song to 
create a new improvisation, which, if popular, will itself be used by 
others. Scientists plotting an orbit of a spacecraft draw freely upon 
the equations developed by Kepler and Newton and modified by 
Einstein. Inventor Mitch Kapor drew freely upon the idea of a 
spreadsheet-VisiCalc-to build the first killer application for the 
IBM PC-Lotus 1-2-3. In all of these cases, the availability of a 
resource that remains outside of the exclusive control of someone 
else-whether a government or a private individual-has been central to 
progress in science and the arts. It will also be central to progress 
in the future.

Free resources have nothing to do with communism. (The Soviet Union 
was not a place with either free speech or free beer.) Neither are 
the resources that I am talking about the product of altruism. I am 
not arguing that there is "such a thing as a free lunch." There is no 
manna from heaven. Resources cost money to produce. They must be paid 
for if they are to be produced.

But how a resource is produced says nothing about how access to that 
resource is granted. Production is different from consumption. And 
while the ordinary and sensible rule for most goods is the "pay me 
this for that" model of the local convenience store, a second's 
reflection reveals that there is a wide range of resources that we 
make available in a completely different way.

The choice is not between all or none. Obviously many resources must 
be controlled if they are to be produced or sustained. I should have 
the right to control access to my house and my car. You shouldn't be 
allowed to rifle through my desk. Microsoft should have the right to 
control access to its source code. Hollywood should have the right to 
charge admission to its movies. If one couldn't control access to 
these resources, or resources called "mine," one would have little 
incentive to work to produce these resources, including those called 
mine.

But likewise, and obviously, many resources should be free. The right 
to criticize a government official is a resource that is not, and 
should not be, controlled. I shouldn't need the permission of the 
Einstein estate before I test his theory against newly discovered 
data. These resources and others gain value by being kept free rather 
than controlled. A mature society realizes that value by protecting 
such resources from both private and public control.

No modern phenomenon better demonstrates the importance of free 
resources to innovation and creativity than the Internet. To those 
who argue that control is necessary if innovation is to occur, and 
that more control will yield more innovation, the Internet is the 
simplest and most direct reply. For the defining feature of the 
Internet is that it leaves resources free. The Internet has provided 
for much of the world the greatest demonstration of the power of 
freedom-and its lesson is one we must learn if its benefits are to be 
preserved.

>From the economics of "real space"-where records are now made, books 
are still written, and film is primarily shot-to the virtual domains 
where they increasingly are distributed, the context of creativity 
has been transformed by the Internet. Many of the constraints that 
affected real-space creativity have been removed by the architecture, 
and original legal context, of the Internet. These limitations, 
perhaps justified before, are justified no more.

But the Internet itself is also changing. Features of the 
architecture-both legal and technical-that originally created this 
environment of free creativity are now being altered. They are being 
changed in ways that will re-introduce the very barriers that the 
Internet originally removed.

There are strong reasons why many are trying to rebuild these 
constraints: They will enable these existing and powerful interests 
to protect themselves from the competitive threat the Internet 
represents. The old, in other words, is bending the Net to protect 
itself against the new.

MICKEY MOUSE
BLOAT

The distinctive feature of modern American copyright law is its 
almost limitless bloating-its expansion both in scope and in 
duration. The framers of the original Copyright Act would not begin 
to recognize what the act has become.

The first Copyright Act gave authors of "maps, charts and books" an 
exclusive right to control the publishing and vending of these works, 
but only if their works had been "published," only after the works 
were registered with a copyright registry, and only if the authors 
were Americans. (Our outrage at China notwithstanding, we should 
remember that before 1891, the copyrights of foreigners were not 
protected in the United States. We were born a pirate nation.)

This initial protection did not restrict "derivative" works: One was 
free to translate an original work into a foreign language, and one 
was free to make a play out of a novel without the original author's 
permission. And because of the burdens of registering, most works 
were not copyrighted. Between 1790 and 1799, 13,000 titles were 
published in America, but only 556 copyright registrations were 
filed. The vast majority of creative work was free for others to use; 
and the work that was protected was protected only for limited 
purposes.

After two centuries of copyright statutes, the scope of copyright has 
exploded, and the reach of copyright is now universal. There is no 
registration requirement-every creative act reduced to a tangible 
medium is now subject to copyright protection. Your e-mail to your 
child or your child's finger painting: both are automatically 
protected.

This protection is not just against competing publications. The 
target is not simply piracy. Any act of "copying" is presumptively 
regulated by the statute; any derivative use is within the reach of 
this regulation. We have gone from a regime where a tiny part of 
creative content was controlled to a regime where most of the most 
useful and valuable creative content is controlled for every 
significant use.

The first Congress to grant copyright gave authors an initial term of 
14 years, which could be renewed for 14 years if the author was 
living. The current term is the life of the author plus 70 
years-which, for an author like Irving Berlin, would mean a 
protection of 140 years. More disturbingly, we have come to this 
expanded term through an increasingly familiar practice in Congress 
of extending the term of copyright both prospectively (to works not 
yet created) and retrospectively (to works created and still under 
copyright).

In the next 50 years, it extended the term once again. In the last 40 
years, Congress has extended the term of copyright retrospectively 11 
times. Each time, it is said with only a bit of exaggeration, that 
Mickey Mouse is about to fall into the public domain, the term of 
copyright for Mickey Mouse is extended.

You might think that there is something a bit unfair about a regime 
where Disney can make millions off stories that have fallen into the 
public domain but no one else but Disney can make money off Disney's 
work-apparently forever. But even if the scope of controlled content 
has grown, in principle there remains a constitutional limitation on 
this expansion. Some content is to stay in the commons, even if most 
useful content remains subject to control.

PIANO ROLLS

Control is not necessarily bad. Copyright is a critical part of the 
process of creativity; a great deal of creativity would not exist 
without the protections of the law. Large-budget films could not be 
produced; many books would not get written.

But just because some control is good, it doesn't follow more is 
better. As conservative Federal Circuit Judge Richard Posner has 
written, "The absence of copyright protection is, paradoxical as this 
may seem, a benefit to authors as well as a cost to them." It is a 
benefit because, as we've seen already, creative works are both an 
input and an output in the creative process; if you raise the cost of 
the input, you get less of the output.

More important, limited protection has always been the rule. Never 
has Congress embraced or the Supreme Court permitted a regime that 
guaranteed perfect control by copyright owners over the use of their 
copyrighted material. As the Supreme Court has said, "The Copyright 
Act does not give a copyright holder control over all uses of his 
copyrighted work."

Instead, Congress has struck a balance between assuring that 
copyright owners are compensated and assuring that an adequate range 
of material remains in the public domain for others to draw upon and 
use. And this is especially true when Congress has confronted new 
technologies.

Consider the example of "piano rolls." In the early 1870s, Henri 
Fourneaux invented the player piano, which recorded music on a punch 
tape as a pianist played the music. The result was a high-quality 
copy (relative to the poor quality of phonograph recordings at the 
time) of music, which could then be copied and played any number of 
times on other machines. By 1902, there were "about seventy-five 
thousand player pianos in the United States, and over one million 
piano rolls were sold."

Authors of sheet music complained, saying that their content had been 
stolen. In terms that echo the cries of the recording industry today, 
copyright holders charged that these commercial entities were making 
money off their content, in violation of the copyright law.

The Supreme Court disagreed. Though the content the piano player 
played was taken from sheet music, it was not, the Court held, a 
"copy" of the music that it, well, copied. Piano roll manufacturers 
(and record companies, too) were therefore free to "steal" the 
content of the sheet music to make money with their new inventions.

Congress responded quickly to the Court's decision by changing the 
law. But the change was an interesting compromise. The new law did 
not give copyright holders perfect control over their copyrighted 
material. In granting authors a "mechanical reproduction right," 
Congress gave authors the exclusive right to decide whether and on 
what terms a recording of their music could be made. But once a 
recording had been made, others had the right (upon paying 2 cents 
per copy) to make subsequent recordings of the same music-whether or 
not the original author granted permission. This was a "compulsory 
licensing right," which Congress granted copiers of copyrighted music 
to assure that the original owners of the copyrighted works would not 
get too much control over subsequent innovation with that work.

The effect of this compromise, though limiting the rights of original 
authors, is to expand the creative opportunity of others. New 
performers had the right to break into the market, by taking music 
made famous by others and re-recording it, after the payment of a 
small compulsory fee. Again, the amount of this fee was set by the 
statute, not by the market power of the author. It therefore was a 
far less powerful "exclusive right" than the exclusive right granted 
to other authors.

This balance is the rule, not the exception, when Congress has 
confronted a new technology affecting creative rights. It did the 
same thing with the first real "Napster" in our history-cable 
television. Cable TV was born stealing the content of others and 
re-selling that content to consumers. Suppliers of cable services 
would set up an antenna, capture the commercial broadcasts made by 
television stations, and then resell those broadcasts to their 
customers.

The copyright holders did not like this "theft." Twice they asked the 
Supreme Court to shut it down. Twice the Court said no. So it fell to 
Congress to strike a balance between cable TV and copyright holders. 
Congress in turn followed the model set by player pianos: Cable TV 
had to pay for the content it broadcast, but the content holders did 
not have an absolute right to grant or deny the right to broadcast 
its content. Instead, cable TV got a compulsory licensing system to 
guarantee that cable operators would be able to get permission to 
broadcast content at a relatively modest level. Thus content holders, 
or broadcasters, couldn't leverage their power in the television 
broadcasting market into power in the cable services market. 
Innovation in the latter field was protected from power in the former.

These are not the only examples of Congress striking a balance 
between compensation and control. For a time there was a compulsory 
license for jukeboxes; there is a compulsory license for music and 
certain pictorial works in noncommercial television and radio 
broadcasts; there is a compulsory licensing scheme governing 
satellite television systems, digital audio home recorders and 
digital audio transmissions.

These "compromises" give the copyright holder a guarantee of 
compensation without giving the copyright holder perfect control. The 
epitome of copyright's protection, they represent the aim to give 
authors not perfect control of their copyrighted work, but a balanced 
right that does what the Constitution requires-"promote progress."

The unavoidable conclusion about changes in the scope of copyright's 
protections is that the extent of "free content"-meaning content that 
is not controlled by an exclusive right-has never been as limited as 
it is today. More content is controlled by law today than ever in our 
past. In addition to limited compulsory rights, an author is free to 
take from work published before 1923; is free to take noncreative 
work (facts) whenever published; and is free to use, consistent with 
fair use, a limited degree of others' work. Beyond that, however, the 
content of our culture is controlled by an ever-expanding scope of 
copyright.

SAVE PORN,
KILL NAPSTER?

Courts are policy makers, and they must ask how best to respond. 
Should they respond by intervening immediately to remedy the "wrong" 
said to exist as a result of the Internet's concussive impact? Or 
should they wait to allow the system to mature, and to see just what 
harm there is?

In the context of porn, privacy and taxation, courts and the 
government have insisted that we should wait to see how the network 
develops.

In the context of copyright, the response has been different. Pushed 
by an army of high-powered lawyers, greased with piles of money from 
PACs, Congress and the courts have jumped into action to defend the 
old against the new.

Ordinary people might find these priorities a bit odd. After all, the 
recording industry continues to grow at an astounding rate. Annual CD 
sales have tripled in the past ten years. Yet the law races to 
support the recording industry, without any showing of harm. (Indeed, 
possibly the opposite: when Napster usage fell after the 
court-restricted access, album sales fell as well. Napster may indeed 
have helped sales rather than hurting them.)

At the same time, it can't be denied that the Net has reduced the 
ability that parents have to protect their children. Yet the law 
says, "Wait and see, let's make sure we don't harm the growth of the 
Net." In one case-where the harm is the least-the law is most active; 
and in the other-where the harm is most pronounced-the law stands 
back.

Indeed, the contrast is even stronger than this, and it is this that 
gets to the heart of the matter.

The Internet exposes unprecedented realms of copyrighted content to 
theft, but it also makes it possible (with the proper code) to 
control the use of copyrighted material much more fully than before. 
And it opens up a range of technologies for production and 
distribution that threaten the existing establishment.

Congress can address the increased exposure to theft, however, 
without a protectionist regime for existing media control. Control, 
however, is precisely Hollywood's and the recording labels' 
objective. In the context of copyright law, the industry has been 
very clear: Its aim, as RIAA president Hilary Rosen has described it, 
is to assure that no venture capitalist invests in a start-up that 
aims to distribute content unless that start-up has the approval of 
the recording industry. This industry thus demands the right to veto 
new innovation, and it invokes the law to support its veto right.

Some see these cases (in particular the MP3.com and Napster cases) as 
simple; I find them very hard. But whether they are simple or hard, 
Congress could intervene to strike a balance between the right of 
copyright holders to be compensated and the right of innovators to 
innovate.

The model for this intervention is the compulsory license. The first 
real Napster case was cable television. Congress's aim in part was to 
assure that the cable industry could develop free of the influence of 
the broadcasters. The broadcasters were a powerful industry; Congress 
felt-rightly-that cable would grow more quickly and innovate more 
broadly if it was not beholden to the power of broadcasters. So 
Congress cut any dependency that the cable industry might have, by 
assuring it could get access to content without yielding control.

The same solution-compensation without control-is available today. 
But instead, copyright interests are in effect getting more control 
over copyright in cyberspace than they had in real space, even though 
the need for more control is less clear. We are locking down the 
content layer, and handing over the keys to Hollywood.

Intellectual property is both an input and an output in the creative 
process; increasing the "costs" of intellectual property increases 
both the cost of production and the incentives to produce. Which side 
outweighs the other can't be known a priori. "An expansion of 
copyright protection," Judge Posner argues, "might^Êreduce the output 
of literature^Êby increasing the royalty expense of writers." Thus the 
idea mix cannot be found simply by increasing the power of copyright 
holders to control.

Other conservatives are a bit more colorful about the point. 
Consider, for example, Judge Alex Kozinski, one of the brightest 
stars of the Ninth Circuit Court of Appeals-the "Hollywood Circuit." 
When his fellow justices upheld game-show hostess Vanna White's right 
to control the use of her symbolic image, Kozinski sharply dissented. 
As he wrote:
Something very dangerous is going on here. Private property, 
including intellectual property, is essential to our way of life. It 
provides an incentive for investment and innovation; it stimulates 
the flourishing of our culture; it protects the moral entitlements of 
people to the fruits of their labors. But reducing too much to 
private property can be bad medicine.

Why? For the same reasons we've been tracking.
Private land^Êis far more useful if separated from other private land 
by public streets, roads and highways. Public parks, utility 
rights-of-way and sewers reduce the amount of land in private hands, 
but vastly enhance the value of the property that remains.

The state must therefore find a balance, and this balance will be 
struck between overly strong and overly weak protection.
Overprotecting intellectual property is as harmful as underprotecting 
it. Creativity is impossible without a rich public domain.

But is that unfair? Is it unfair that someone gets to profit off 
someone else's ideas? No, says Kozinski:
Intellectual property law assures authors the right to their original 
expression, but encourages others to build freely on the ideas that 
underlie it. This result is neither unfair nor unfortunate: It is the 
means by which intellectual property law advances the progress of 
science and art. We give authors certain exclusive rights, but in 
exchange we get a richer public domain.

This balance reflects something important about this kind of 
creativity: that it is always building on something else.
Nothing today, likely nothing since we tamed fire, is genuinely new: 
Culture, like science and technology, grows by accretion, each new 
creator building on the works of those who came before. 
Overprotection stifles the very creative forces it's supposed to 
nurture.

This balance is necessary, Kozinski insists, "to maintain a free 
environment in which creative genius can flourish." Not because 
"flourish[ing]" innovation is the darling of the Left; but because 
innovation and creativity was the ideal of our founding, 
Enlightenment Republic.

THE DIGITAL DILEMMA

In proliferating forms of signatures, searches, sorts and 
surveillance, digital technology, tied to law, now promises almost 
perfect control over content and its distribution. And it is this 
perfect control that threatens to undermine the potential for 
innovation that the Internet promises.

To reestablish a balance between control and creativity, our aim 
should be to give artists enough incentive to produce, while leaving 
free as much as we can for others to build upon and create.

We live in a world with "free" content, and this freedom is not an 
imperfection. We listen to the radio without paying for the songs we 
hear; we hear friends humming tunes that they have not licensed. We 
refer to plots in movies to tell jokes without the permission of the 
director. We read books to our children borrowed from a library 
without any payment for performance rights to the original copyright 
holder. The fact that content at any particular time is free tells us 
nothing about whether using that content is "theft." Similarly, an 
argument for increasing control by content owners needs more than 
"they didn't pay for this use" to back up the argument.

Creation is always the building upon something else. There is no art 
that doesn't reuse. And there will be less art if every re-use is 
taxed by the earlier appropriator. Monopoly controls have been the 
exception in free society; they have been the rule in closed 
societies. Before a monopoly is permitted, there should be reason to 
believe it will do some good-for society, and not just for monopoly 
holders.

With these ideals in mind, here are some first steps to freeing culture:

BLACK HOLE OF COPYRIGHT

Authors and creators deserve to receive the benefits of their 
creation. But when those benefits stop, what they create should fall 
into the public domain. It does not do so now. Every creative act 
reduced to a tangible medium is protected for upward of 150 years, 
whether or not the protection benefits the author. This work thus 
falls into a copyright black hole, unfree for over a century.

The solution to this black hole of copyright is to force those who 
benefit from copyright to take steps to protect their state-backed 
benefit. And in the age of the Internet, those steps could be 
extremely simple.

Work that an author "publishes" should be protected for a term of 
five years once registered, and that registration can be renewed 
fifteen times. If the registration is not renewed, then the work 
falls into the public domain.

Registration need not be difficult. The U.S. Copyright Office could 
run a simple Web site where authors register their work. That Web 
site could be funded by charges for copyright renewals. When an 
author wants to renew the copyright, the system could charge the 
author a renewal fee. That fee might increase over time or depend 
upon the nature of the work.

  "Unpublished works" would be different. If I write an e-mail and 
send it to a group of my friends, that creativity should be treated 
differently from the creativity of a published book or recorded song. 
The e-mail should be protected for privacy reasons, the song and book 
protected as a quid pro quo for a government-backed monopoly. Thus, 
for private, unpublished correspondence, I think the current 
protection is perfectly sensible: the life of the author plus seventy 
years, automatically created, with no registration or renewal 
requirements.

One of the strongest reasons that the copyright industry has raised 
for the elimination of this renewal requirement is the injustice that 
comes from a family's or author's losing copyright protection merely 
because of a technicality. If "technicality" means something like the 
registration was lost in the mail or was delivered two hours late, 
then the complaint is a good one. There is no reason to punish 
authors for slips. But the remedy for an overly strict system is a 
more relaxed system, not no system at all. If a registration is lost, 
or a deadline missed by a short period of time, the U.S. Copyright 
Office should have the power to forgive.

A change in the copyright term would have no effect on the incentives 
for authors to produce work today. There is no author who decides 
whether or not to write a book depending upon whether he or his 
estate will receive money three-quarters of a century from now. The 
same with a film producer: Hollywood studios forecast revenues a few 
years into the future, not ninety-five. The effect on expected income 
from this change would therefore be tiny.

But the benefit for creativity from more works falling into the 
commons would be large. If a copyright isn't worth it to an author to 
renew a copyright for a modest fee, then it isn't worth it to society 
to support-through an array of criminal and civil statutes-the 
monopoly protected. But the same work that the original author might 
not value could well be used by other creators in society.

Software is a special case. The current protection for software is 
the life of an author plus 70 years or, if work-for-hire, 95 years. 
This is a parody of the Constitution's requirement that copyright be 
for "limited times." When Apple's Macintosh operating system falls 
into the public domain, there will be no machine that could possibly 
run it. The term of copyright for software is effectively unlimited.

Worse, the copyright system protects software without getting any new 
knowledge in return. When the system protects Hemingway, we at least 
get to see how Hemingway writes. We get to learn about his style and 
the tricks he uses to make his work succeed. We can see this because 
it is the nature of creative writing that the writing is public. 
There is no such thing as language that doesn't simultaneously 
transmit its words.

The reason copyright law doesn't include source code is that it is 
believed that that would make the software unprotectable. The open 
code movement might throw that view into doubt, but even if one 
believes it, the remedy-no source code-is worse than the harm. There 
are plenty of ways for software to be protected without the 
protection of law. Copy protection systems, for example, give the 
copyright holder plenty of control over how and when the software is 
copied.

If society is to give software producers more protection than they 
otherwise would take, then we should get something in return. And one 
thing we could get would be access to the source code after the 
copyright expires. Thus, I would protect software for a term of five 
years, renewable once. But that protection would be granted only if 
the author submitted a copy of the source code to be held in escrow 
while the work was protected. Once the copyright expired, that 
escrowed copy would be publicly available from the Copyright Office 
server.

PROTECTING MUSIC

The Net has created a world where content is free. Napster is the 
most salient example of this world, but it is not the only one. At 
any time a user can select the channel of music he or she wants. A 
song from your childhood? Search on the lyrics and find a recording. 
Within seconds you can hear any music you want.

This freedom the recording industry calls theft. But they don't call 
it theft when I hear an old favorite of mine on the radio. They don't 
call it theft when they are recording takeoffs of prior recorded 
music. And they don't call it theft when they make a new version of 
"Jingle Bells." They don't, in other words, call it theft when they 
are using music for free that has been defined by the copyright 
system to be fair and appropriate use.

Artists should be paid, but it doesn't follow that selling music like 
chewing gum is the only possible way. Congress has often had to 
balance the rights of free access against the rights of control. When 
the courts said piano rolls were not "copies" of sheet music, 
Congress balanced the rights of composers against the rights to 
mechanically reproduce what was composed. It balanced these rights 
through a compulsory license that enabled payment to artists while 
assuring free access to the work produced. A similar solution was 
reached for cable TV. Congress protected rights holders, but not 
through a property right.

The same solution is possible in the context of music on the Net. But 
here, rather than balance, the rhetoric is about "theft" and "crime." 
Congress should empower file sharing by recognizing a similar system 
of compulsory licenses. These fees should not be set by an industry 
set on killing this new mode of distribution. They should be set, as 
they have always been set, by a policy maker keen on striking a 
balance. If only such a policy maker were somewhere to be found.

REBUILDING THE COMMONS

Copyright was originally simply a restriction on commercial entities, 
regulating "publishers" and those who "vend" "maps, charts and 
books." Because the law slipped into using the term "copy" in 1909, 
it has now extended its reach to every act of duplication, by 
printing press or computer memory. It now therefore covers actions 
far beyond the "commercial" exploitation of anything.

The Net itself, however, has now erased any effective distinction 
between commercial and noncommercial. Napster no doubt is a 
commercial activity, though the sharing that Napster enables is not. 
This line-drawing problem reinforces my own view that the better 
solution is simply to go back to the Framers' notion of limited times.

If copyright were returned to a meaningfully "limited time," then we 
wouldn't need to worry so much about drawing commercial vs. 
noncommercial distinctions. For five, or maybe 10 years, commercial 
entities would hold these rights exclusively. Beyond that, the music, 
like culture generally, would be freely available.

The urgency in the field of patents is even greater. Here again, 
patents are not per se evil; they are evil only if they do no social 
good. They do no social good if they benefit certain companies at the 
expense of innovation generally. And as many have argued 
convincingly, that's just what many patents today do.

If Congress determines that business method patents are justified, it 
should also consider the proposals of Jeff Bezos and Tim O'Reilly to 
grant patent protection for business methods for only a very short 
period. Bezos proposes five years, but an even shorter period may 
make sense. Network technologies move so quickly that a longer period 
of protection is not really needed; and whatever distortions this 
system might produce, they can be minimized by shortening the period 
of protection.

Congress should also, and most obviously, radically improve funding 
for the Patent Office, and mandate fundamental improvements in its 
functioning.

These changes are just beginnings, but they would be significant 
beginnings if done. They would together go a great distance in 
assuring that the space for innovation remains open and that the 
resources for innovation remain free. They would commit us to an 
environment that would preserve the innovation we have seen and help 
fulfill the liberating promise of the Net.

Lawrence Lessig is professor of law at Stanford Law School and author 
of The Future of Ideas, from which this is excerpted. Reprinted with 
permission of Random House. 
January / February 2002 * The American Spectator