Professor Lessig led a discussion on one of his favorite themes -- "free culture" -- at iLaw yesterday. He described at length the evolution of the copyright system in the United States and its impact on our culture. As a basic underpinning of his argument is his philosophical belief that our culture can only flourish with the free exchange of thought -- because our culture is by its nature self-referential and evolutionary, culture can not be free and flourish if laws can be used to restrict the degree to which future media can refer to past media. (No doubt, at this point, I owe an apology to Professor Lessig and the other iLaw professors for my vast simplifications of their arguments -- in this forum I am trying to be as succinct as possible, which no doubt massively bulldozes the subtleties of their arguments.)
Given his strong belief that free culture needs the ability to be self-referential and adaptive, Professor Lessig views time limitation to be a key feature -- if not the key feature -- of the copyright clause of the Constitution ("To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"). While there is clear value in allowing copyright monopolies to promote the creation of media, the founding fathers understood the need for that monopoly to be limited in scope and time. Despite that understanding by the founding fathers, Professor Lessig points out that copyright protection has expanded vastly in recent years. Not only has the length of the copyright monopoly ballooned, copyright protection is now afforded to all copyrightable material regardless of registration. A copyright holder need do nothing to secure his rights. The result is that the amount of material that is subject to copyright protection has burgeoned.
Professor Lessig put his money where his mouth was (or, rather, his time where his philosophy was) and fought the Sonny Bono Copyright Extension Act, which further expanded copyrights. The challenge made it all the way to the Supreme Court. He argued that "for limited time" required that Congress cut it out already -- the Constitution envisioned limited rights and the continued expansion of copyrights was contrary to the intent of the founders. Not surprisingly, the Supreme Court felt differently. The Supreme Court held that it was up to Congress to determine the balance between cultural freedom and the promotion of the "useful arts." The Sonny Bono Act was upheld.
To his great credit, Professor Lessig has reacted very pragmatically to this loss in court -- he is now working to get Congress to change the law. Better yet, he is trying to get Congress to modify the copyright laws in a way that would free up a substantial portion of the presently protected material, while allow those copyright holders who are still deriving substantial value from their copyrighted material (e.g., Disney) to maintain the additional protection afforded by the Sonny Bono Act (Lessig's proposal would essentially require a small fee and registration to extent a copyright holders protection, thus resulting in most content reaching the public domain earlier). The compromise is pragmatic in that it attempts to return a substantial amount of copyrighted material to the public domain without angering the media giants.
While Professor Lessig's compromise makes good sense, it should come as no surprise that lobbyists for the content industry (the record and movie studios) are still fighting hard against it. Any dilution of the media world's "hard won" expanded rights is met with resistence, no matter how minimal the impact may be on the media giants themselves. It points to the big danger of government imposed monopolies. The ability to affect legislative change is decidedly easier for market leaders than upstarts and diffuse interests (like those who support Professor Lessig's compromise legislation). As a result, state sponsored monopolies (copyright, patent) necessarily advantage the incumbents. This is obviously of concern to the startup world.