EBy Lawrence Lessig
Code Breaking: Racing Against Time
In 1998, Congress passed the Sonny Bono Copyright Term Extension Act, which extended the term of existing and future copyrights by 20 years—from 75 to 95 years for corporate works, and life plus 50 to 70 years for literary works by authors. This was the eleventh time in 40 years that Congress extended copyright terms. Its effect is to stop, or "toll" the passing of copyrighted work into the public domain. When it expires, the public domain will have been tolled for 39 out of 55 years, or 70 percent of the time since 1962.
These perpetual extensions of existing terms harm Internet growth. They make it harder for content to be deployed on the Internet; they increase the cost of innovation. Thus, in a constitutional challenge to the Sonny Bono Act, argued before the Supreme Court in October, the Internet was offered as Exhibit 1 against the statute. The Internet, the court was told, makes it critically important that copyright terms actually be, as the Constitution requires, "limited."
This is a hard argument to make. I know, because I argued the case before the U.S. Supreme Court in October, on behalf of plaintiffs who depend upon the public domain for their livelihood. It is difficult for lawyers and for businesses to see how the Internet changes things—hard for lawyers because they are typically far removed from the Internet, and difficult for businesses because they often don't see just how the law really regulates. But it is crucial for the future of innovation and growth that both sides come to see why a new technology makes an original constitutional value so much more important.
Copyright law is a crucial part of the system of incentive necessary to spur creative work. But the law affects creativity differently in cyberspace than in real space. Content owners have been quick to argue that cyberspace weakens copyright protection, since digital copies are so easy to make and distribution costs are so low. That may be true. But it is also true that the Internet can strengthen the power of copyright owners far beyond anything imagined by the framers of our copyright act.
Think, for example, about the difference between a book and an e-book. When a book is published in real space, copyright law controls who may print and initially distribute the book. If you reprint John Grisham’s latest novel and sell copies without permission, you will be hunted down and prosecuted—and rightfully so. Copyright properly assures that the author, or copyright holder, has an "exclusive right" to the profits from the initial sale of the book. Thieves who invade that right are punks.
But once the book is out there, ordinary uses of the book in real space are untouched by the law. If you read the book 10 times, copyright law doesn't care. If you buy a copy at a local used bookstore, or borrow it from a library, the author doesn't get a royalty (in the U.S., at least). These uses are unregulated by copyright law. They are not "fair uses" of copyrighted works; they are simply unregulated.
The life of an e-book is quite different. Because of a simple technical feature of the Internet, copyright law regulates much more of the life of an e-book in cyberspace than of the life of a book in real space. As every action (on a digital network) produces a copy, and every copy (under the current regime of copyright) is presumptively within the reach of copyright law, every use of a copyrighted work in cyberspace amounts to a copyright event. Thus, to give an e-book to a friend involves a copy; it is therefore regulated by copyright law. To borrow an e-book from an Internet library involves a copy; it is therefore regulated by copyright law. Indeed, to have the computer read an e-book aloud involves making a copy; it, too, is therefore regulated by copyright law. All these "uses" of an e-book are within the reach of copyright's regulation, while the very same uses of a book in real space would not be.
It is this difference that creates the worry about extending copyright terms. Just at the moment that the Internet creates the opportunity for unimagined cultivation of our culture, the law is locking up yet another generation of our culture through copyright control. If a museum wants to create a Web-based exhibit about the New Deal, for example, including pictures and songs from the period, for another 20 years it must check the copyright status for all the material it might use, and get permission from copyright owners for any material still under copyright. If an archive such as Brewster Kahle’s Internet Archive wants to digitize those books published in 1930 that are now out of print (all but 174 of the 10,027 books published in that year), it would have to trace the copyrights on each of these books for another generation. Or most urgently, if a film restorer wanted to digitize films from the 1930s, which, because printed on nitrate-based film, are all currently decaying, he or she would have to race against this inevitable decay to locate all the owners of the different copyrights bundled into a single film.
This additional 20 years of protection means 20 more years of licensing before content can be easily used on the Internet. And while lawyers don’t often recognize the burden the law imposes on business, businesses can easily recognize the burden of 20 more years of licensing. Imagine a world where used bookstores would have to pay royalties each time a used book was sold: Would there be any used bookstores? Or imagine a world where you had to sign a contract before you were allowed to link to another site on the World Wide Web. Would there be a World Wide Web? And if you think that’s bad, imagine having to deal with copyright term extensions for works created in 1923. You’d need to get the permission of unknown and effectively untraceable owners before you could put content on the Web. That is our future if copyright terms continue to grow.
The purpose of copyright law is to create incentives that "promote...Progress." But extensions of copyright for works that already exist do not promote progress. Only 2 percent of the work copyrighted during the first 20 years affected by the Sonny Bono Act have any continuing commercial life. That 2 percent is benefited by the extension, while the rest of the creative work still under copyright is thrown into a black hole of legal regulation. These extensions only harm the creative process, especially when technology makes it possible for so many more to become creators.
Shorter terms, on the other hand, would increase the lawyer-free zone that we call the public domain. They would, therefore, lower the costs to companies that want to distribute and build upon the public domain. Just as there are scores of competing editions of public domain books, there would be scores of competing content providers serving film, and eventually music, from one of the most creative periods in American history. This competition would, in turn, increase demand for bandwidth, which would fuel Internet growth.
The framers of our Constitution didn’t know about the Internet. They had no clue about the opportunity for creativity it would present. But they committed our tradition to a rule that requires that copyright terms be limited. That requirement may not have mattered much for 200 years, since for most of that time, only commercial publishers could produce and distribute creative work. But now that technology has given that power to anyone with a T1, the wisdom in the framers’ plan is again becoming obvious. Government-granted monopolies, as the framers called them, make sense when they create incentives. But even the United States Congress can’t create incentives in the past. No matter what Congress says, George Gershwin will not create anything more. We should thank and honor him and others for their extraordinary work. But we should also honor our framers' plan—that terms be limited.
Lawrence Lessig is a professor of law at Stanford Law School and the author of The Future of Ideas: The Fate of the Commons in a Connected World and Code and Other Laws of Cyberspace. His next column will appear in March.