losing
So I've got to go get onto a plane to go to my least favorite city (DC). My inbox is filling with kind emails from friends. Also with a few of a different flavor. It's my nature to identify most closely with those of the different flavor. David Gossett at the law firm of Mayer Brown wrote Declan, "Larry lost Eldred, 7-2." Yes, no matter what is said, that is how I will always view this case. The constitutional question is not even close. To have failed to get the Court to see it is my failing.
It has often been said that movements gain by losing in the Supreme Court. Some feminists say it would have been better to lose Roe, because that would have built a movement in response. I have often wondered whether it would ever be possible to lose a case and yet smell victory in the defeat. I'm not yet convinced it's possible. But if there is any good that might come from my loss, let it be the anger and passion that now gets to swell against the unchecked power that the Supreme Court has said Congress has. When the Free Software Foundation, Intel, Phillis Schlafly, Milton Friedman, Ronald Coase, Kenneth Arrow, Brewster Kahle, and hundreds of creators and innovators all stand on one side saying, "this makes no sense," then it makes no sense. Let that be enough to move people to do something about it. Our courts will not.
I will always be grateful to Eric Eldred, and our other plaintiffs, for putting his faith in this case. I will always regret not being able to meet that faith with the success it deserves.
What the Framers of our constitution did is not enough. We must do more.
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Comments (147)
We will do more, Mr. Lessig. Thank you for your efforts so far.
Thanks. Thank you, Larry. When I hear people talk about IP, your name comes up. Your name comes up because you are the voice of us, the people who read and listen and learn from the works you fought for us to have freely. You were right. But we do live in an era in our country where what is right will often come in second to protecting our economy and national security, ad infinitum. Hang in there. We need people like Larry Lessig and Robin Gross and Linus Torvalds, et. al. One day, your for will catch on.
-Bill
...your goals rather. I can type. ;)
-Bill
7-2 is a lot better than 9-0. An excellent effort. We'll try harder now.
If picking sides, it would seem the court is on ours. They strongly imply that the law is ``debatable and unwise'', if not unconstitutional.
At least Breyer got it, and Stevens was close. I'm shocked that the original intent of the Framers didn't pull Scalia and Thomas in too.
You've fought a good fight, and we all live to battle another day.
Chad
We have now lost the battle, but the war has just begun. From reading the majority opinion, I never got the idea that "Larry lost Eldred." I believe that the majority was simply facing an argument that had never been conceived before and was not entirely comfortable with going down the road we wanted at this time. While the textual arguments for the Copyright Clause's limitations are strong, I don't think the Court knew how to square them with history and exactly what accepting them would mean for the future of copyright law. The task now is to simply push forward. Since Lessig has consistently used parallels to the Interstate Commerce Clause, it bears noting that Lopez was a decision that was a long time in the making. Maybe we have lost Eldred I, and we might even lose Eldred II (which, of course, will occur in another 20 years). But as long as we keep the fight alive, the war is never over. It just changes form.
I just sent this to Larry via e-mail, but wanted to post it publicly as well:
Larry: Someone just told me that I should look at your blog. I owe you an apology; I really didn't mean to imply that you lost the case. I think you did a fabulous job all along with it, and continue to believe that you should have won. That short-hand was the quickest way to tell Declan what I just learned had happened -- and when I sent it I hadn't realized he was going to circulate my e-mail. (He sent me a message saying he was going to, and I guess I could have instantly replied asking him not to -- but I didn't think through the implications of my one-liner.) In any event, my apologies if you took offense at the politech circulation.
Best,
David
I'm half-way through the majority and I keep being suprised as they continue to fall back on "parity" with the EU, as if that legislative intent has any bearing on the constitutionality of the act. I wouldn't call 7-2 "good," although of course it is better than 9-0. I think it says that we're going to the wrong source. With the court paticularilty worried at the present time about stepping on legislative toes (especially after past highly publicized decisions), they seen reluctant to consider interpretations that grant rights to the consumer at the expense of the big businesses who would quickly start a highly public media smear campaign. This defferance to the legislature implies that a) the legislature must be educated or changed, and; b) we need to go to the source -- the people. "Free Mickey" is a great slogan, we need more like that, and we need more mainstream press, advertisements, and the like that emphasise the sheer lunacy of the current copyright scheme. Happy Birthday isn't free? People will think about that.
Indeed, Larry, thank you. Like so many others, I did not appreciate or understand the issues behind and consequences of the Sonny Bono act. And in ignorance, did nothing. But now, understanding what is fundamentally at stake, I am so *incredibly* motivated to take this to the next level. For that awakening, I am grateful to you and all the others who've led the battle so far. As with so many examples in U.S. history, the initial skirmish may have been lost, but the war is just beginning. Without you, though, that skirmish might never have taken place. That's really something to be proud of.
Hang in there Larry. You got through to a lot of new people with Eldred v Ashcroft. The Supreme Court won't save us when it's a matter of money, but they will (I believe) when it's a matter of freedom.
Larry, please don't despair. While you may have lost the case, you won me. You've won many others. Step out of being a lawyer for a moment and realize that SCOTUS is not the final judge. The future will grant you your peace; we'll make you proud.
Even if the movement is not better off losing the case, it's better off from your having filed it and argued it. We're talking about a paradigm shift here, and those don't come easily.
The hypocrisy of Disney et al stinks to high heaven--they make millions from Alice in Wonderland, Rudyard Kipling, etc., and then try to turn around and deny others the same opportunity? I did not see the possibility of defeat, and blame myself for complacency. We've got to fight it in Congress. It will be a long slog but as the implications of the decision sink in, even Congresspeople will act. Thanks for your efforts. You are needed more than ever now. The courts are simply NOT the way to go these days--the legislature is.
I just posted my thoughts on Slashdot. This ruling is equivalent to the Great Library Fire of Alexandria -- many one-of-a-kind films, books, and recordings are falling to dust and being lost forever, and nobody can do anything about it for fear of lawsuit.
Larry, I know you must feel terrible right now, but the fight has just begun. These people CANNOT stop change; it will happen.
We will proceed to make sure the change happens now, bloodlessly, because that is our mandate by history. We are living in the frontier, my friends. We must prevail, because the alternative is unthinkable.
Thank you for all your work, Professor Lessig.
You've given us something to fight for, and the war is far from over.
-kd
Dear Professor Lessig:
David Gossett may write ``Larry lost Eldred'', but
he's wrong. As you observe, ``[t]he constitutional
question is not even close'', and the fact that seven of the
Justices cannot see it is due to their own blinders, not to
any failing of yours, nor of the amici, nor those at
Openlaw, nor
the EFF, nor any of the rest on the
proud list of combatants for the right.
I'm all too aware of the pain inflicted by self-doubt, but you
must recognize the opposing, informed opinions of the tens (hundreds?) of
thousands who followed your fight with the closest scrutiny. None of
us believe you failed---the Supreme Court has failed the people, who
must now use the Legislative branch to rebalance the law.
Thank you for the sacrifices you, your family, and your friends
have made on my behalf. I, for one, will now bring the fight to the
political arena, to see that our common objective will be achieved.
--
Best wishes,
Max Hyre
DMCA + Paladium + this + the rest
o/' I'm gonna wait till they knock on my door
o/' I'm gonna wait till they dig up the floor boards
o/' Poland in Disneyland, wet dream control
o/' Super computer, the new contraband
o/' I'm gonna wait, we must make a stand
o/' Come with me now, stand with me now one more time
-- Midnight Oil - Tin Legs and Tin Mines
Hear, hear, Max.
We must win this fight -- we WILL win this fight. I was angry about this subject before, but not I'm REALLY ticked off.
Hell, some of Sherlock Holmes is still copyrighted. When's the last time you took a horse and buggy for a taxi every day?!?
I had the privilege of watching your argument in Eldred. Just wanted to say you have my thanks and gratitude for fighting the good fight for us all.
The feminists are somewhat right. But more importantly look at how the
story is being covered. Everywhere it's about corporate influence and
takings. For once it's not about protecting artists, but about misuse of
power and influence. The rhetoric of the AP and Reuters articles are
nothing like what they would have been 2 years ago.
BTW no one thinks "Larry lost Eldred" it's been a funking wonder that it's
been kept alive and even more kept interest and built a strong public
following.
You are doing a great service to us all -- and everyone (except perhaps
Rosen -- I think Valenti is enjoying a challenge) is glad, delighted, to work with you and knows more and more how important the work is.
Thank you for everything. This is not defeat. More people know about, and are beginning to understand the abuse of Copyright now than ever before. The war is not over, it is just beginning.
It is a sad day.
What is the next step? Who is working on the specifics? Who can I contact?
Never give up!
Thank you for all your hard work.
I am sorry this is the outcome. I am indeed struck with a sense of grief for the future that may come if this is not turned around.
You gave it your best, nothing more can be asked.
I think you are on the right track with the creative commons.
Thanks you again,
One of many individuals that were pulling for you and your cause.
Larry:
It sounds like you are beating yourself up a little too much. I think you may have gotten too attached to your position. If it makes you feel any better, I never thought you would get the cert. petition granted, much less win two justices.
I'm deeply disappointed in the Supreme Court verdict and
have to agree that the unchecked powers of Congress regarding copyright are too omnipotent. Your efforts, however, have not gone unnoticed by those of us offended by the power of the media, and I appreciate your zeal and dedication to this worthy fight.
While I am profoundly saddened by the short-sighted decision of today, I and many others will not let freedom and culture be locked away under key.
I thank you for your work, your passion, your insightfulness. Know that your voice has resonated far and wide and that you are a light for many of us at this darkest hour.
Get some sleep, take a break, a walk by the ocean if you can and let your spirit rest.
Someone who has only met you through your writing but considers himself a humble friend.
The utility of a corporation is its ability to adapt rapidly to change. The driving force behind this adaptation is the degree of a corporation's exposure to the threat of loss or liquidation. This separates it from government, which is usually percieved as adapting at a slower pace.
If corporations are seeking and receiving increased protection from the correcting influence of the market, then they are casting doubt on their reason for existence. If they cannot survive in a free-market without heavy governmental intervention one area, it casts doubt on the wisdom of granting them the freedom from government intervention they seek in other areas. If they follow their current line to it's logical conclusion, there is little need for a free market, only a market regulated to produce maximum revenue for monopolies, olgiopolies, and their controlling interests. That trend casts serious doubt upon the possibility of "free" markets to continue without self-destructing.
At best this will result in a limited but livable environment dominated by a creeping fascism. At worst it will lead to corporations that believe they have a right to guaranteed markets allocated to them by governmental action and using increasingly totalitarian measures to secure them. Or it will produce a violent populist counter-reaction that will dissolve any of the benefits a proper free-market can convey in exchange for the gray but predictable security of a new command economy.
"For when the One Great Scorer comes to mark beside
your name, He marks not that you won nor lost,
but how you played the game." (Grantland Rice)
Dear Professor Lessig,
Thank you for all your efforts. They have not been in vain.
This battle is lost, but the war is far from over.
A general that loses a battle but still has a fantastic backup plan for resistance--Creative Commons--is still an excellent general and can still win the war.
So, to borrow from Cory Doctorow's Creative Commons licensed text, we may still see a Bitchun Society where the people oust the corporations.
The golden coin of humility is bought dearly.
This majority ruling is built on the slender weak reed, the minoroty opinions are stronger.
I also fear the reed that this was built on. It burdens Congress with too much authority. Both the terms
"general welfare" and "limited times" must have meaning.
If we can't build on the past, let's hyper-create the future. Thanks for inspiration, and fighting the fight.
Larry,
Your writings and your arguments have brought yet another beacon of light to the conflict between corporate desires and liberty. There will be more battles. SCOTUS has delivered a decision, but the court of public opinion has only begun to hear the arguments.
Regards,
Abner
You know, it takes great character to go up against the Supreme Court, lose, and then keep going and posting to your weblog no less. Just remember: life is a process, not an event. Keep fighting for us. You have my utmost respect.
I'm not very great at posting comments. But something comes to mind whenever I see IP, copyright, or human rights battles. So here goes (it's a bit cheesey, nothing profound):
I remember in the movie "A Bug's Life", the grasshoppers kept ordering the lowly ants around. One ant in particular figured out that because of sheer amount of ants to grasshoppers, they could fight the grasshoppers and win. Well the grasshoppers also knew this, and made sure to be more and more fierce each time they engaged this ants. Well one day, the single ant was able to rally all the other ants together to fight the grasshoppers. Well, they fought, and they won.
I guess I think of us, the citizens, as ants. And government, evil big business, etc., as the grasshoppers. One day when they're are enough of us, we will all fight together and win.
Larry, thanks for taking up this probably unwinnable (for the moment) battle, and I hope you can take heart from the fact that many of us who are out here in the trenches creating stuff (often free stuff, and for the past few thousand years, almost exclusively derivative stuff) are grateful for your effort.
I'd like to reply to your comment, "We must do more."
I'm still hopeful that the war (which I take to be against the government's erosion of basic freedoms, and intellectual freedom in particular) can be won through other avenues. Perhaps there's little we can do if Disney wants to protect Mickey, and both Congress and the courts want to help them. That said, if the original patrons of Disney had had advance warning about these kinds of abuses, we can optimistically imagine they would have had the foresight and decency to find other sources of entertainment, and we wouldn't have to live in this world. Perhaps they would have recognized that the price for that mouse and those movies was crushingly high.
If the majority of creators are indeed on the same side of the fence on this issue, then there should be opportunities to be far-sighted about this now. I don't expect the next big bestseller to come stamped with "we cede this book to the public domain as of 2023." But if a smaller publisher did that, I'd buy their books and read them. And I'd send my own next book to that publisher first.
Mr. Lessig, your efforts were indeed worthy, if for no other reason bringing the issue to the light of public scrutiny, where none would have fallen otherwise.
The Court majority took the easy route of ruling on the letter of the arguments involved rather than dealing with the larger issues at hand. That you had dissention (and such good, lucid dissents), showed that your arguments did get across.
As an attorney, it must be nearly impossible not to think in terms of winning vs. losing, considering the nature of the system.
However, this case has put you at the forefront of the issue in the legal world, either way. You do and will have an influence over how things proceed in the future. You will, should you choose, be involved in future challenges to this law, and certainly invovled in future fights against further extensions of copyright.
Whether it seems so currently, know that you did well.
Was very sorry to hear the news on npr on my way in to work. I know this is small consolation, but here is one person who's disappointment at the decision is leading to a stronger sense of mobilization. Larry, one major accomplishment is that you have pushed this into general public consciousness and debate.
Losing is losing but the good from this is public awareness. Public awareness does help nurture movements and those movements can influence congress to change the laws. While I doubt congress would ever reverse the existing law it will be much, much more difficult for them now to continue extending the copyright limits.
If that's a silver lining then it's not a very satisfying one but it is a potential result of this entire ordeal. Who knows, maybe congress will actually decide to do the right thing regarding IP in the future. Great work!
This is a bad day, and it's a short-term win for what many of us think is the wrong side.
It's hard to be cheerful about this (duh!) but please try, because certainly somebody like yourself who has spent years of his life fighting this thing legally should be basically cheerful. You're responsible for being good, not for being omnipotent. And the next round of political struggle will necessarily go more easily because this one was fought out.
Ditto what Dave Winer and Kevin Werbach wrote. This will take a paradigm shift. That's a long-term project. Losing one case — no matter how much that disappoints us — is just a minor setback.
Hearty praise to Eric Eldred, to you, and to the rest of your legal team for all your hard work.
Congratulations on making the case so clearly and strongly. This is, of course, the Dred Scott (sp?) decision of free speech issues, and your name will be remembered with honor.
It's not your fault that the Supreme Court didn't respect the Consistution. It didn't respect the right to vote, either (Bush v. Gore). It didn't respect legislative intent or the plain meaning of words (in the ADA cases). The only conclusion I can come to is that the majority of the U.S. Supreme Court are not qualified to be judges, and deserve impeachment. Unfortunately, it won't happen.
I see several things happening. One is the civil disobedience movement. Putting on the Internet 'copyrighted' works which are really in the public domain will grow more and more common, and more people will be honest and upfront about the fact that this *is* civil disobedience, and it is something to be proud about, not something to be ashamed about.
Another is the development of international courts. I wonder how long it will take before a country can be sued in an international court for violating its own Consistution. Once it happens, this case belongs there.
Finally, the disaffection of the people of the United States with antidemocratic government is growing. Look -- we now have a President who lost the election -- a Senate where well over half the population is represented by less than 10 senators out of 50 -- and a House so heavily gerrymandered that it has almost no contested elections, and its makeup is nowhere close to representive of the people. As long as this is the case, we can expect little from the legislature or the executive.
But this is not sustainable in the long run. People are refusing to answer polls, making gerrymandering much harder. The "corporatocracy" is being recognized, and consciously voted against, by more and more people every year. Eventually we will elect a new government which will reform the Supreme Court and enact a new Statute of Monopolies. I just don't know when.
The justices may have failed to see the point but hundreds of thousands of others have and are "doing more". Your case persuaded me and many more people to lisence our stuff under a creative commons lisence, to release our ideas, and share our knowledge.
What sucks is that it isn't just your loss, it's everyone's.
But your efforts have made the trial possible and the loss lighter. We can now suffer because you've told us what we suffer, and that makes it all less sufferable.
Professor Lessig,
You see this as a personal failure because you have too much faith in the wisdom of the law; the law is not reason free from passion, it is the body of codes men create to restrain one another. Three people, ordinary men like you and I, did not vote the way they should have. Nothing more has happened today.
As someone who is just now applying to law school, I want to thank you for being an inspiration to me and the many others like me. Private interest and greed prevailed over public good and reason this time; then again, such was the case in every great political advance of the past 150 years, from the income tax, to the New Deal, to desegregation. They eventually succeeded despite the Supreme Court. So will we.
Thank you for your valiant effort, Mr. Lessig. This is not a total loss. The Court has just thrown the ball back into the hands of Congress, where the People have more sway. The war is far from over. If Congress can extend copy right to their liking, then they can chop it back down to size to the liking of the People.
Again, thank you for your dedication. It has not gone unnoticed or unappreciated.
- Aaron
Dear Professor Lessig
Much more appropriate is “Larry started Eldred”, for it was your continuous effort, leading this case, that brought the situation, the fight and the implications to the forefront of our consciousness. Of course, as you say, we should do more, but I am sure that this decision will certainly mobilize much more people. We take our rights for granted, and only when confronted by events such as this 7-2 we react, and open our collective eyes.
Thank you, Professor Lessig, for opening our eyes, doing it so well and so thoroughly. We will do more.
I agree with everyone who says you shouldn't despair--you did great work, and if nothing else, you've helped planted the seeds for a future generation to finish the task.
Worst-case scenario: It's only 15 years until the Bono act expires. A long time, but not a lifetime. 15 years ago no one but Richard Stallman was talking about copyright as a threat to freedom; now there are masses of us who understand the problem. In 15 more years, think how many more people will have tuned in to the issue! And a lot of them will be voters, and Congress will know it. Disney's not going to find it so easy next time around.
So let's just keep fighting the fight. Victory usually goes to those with the long view.
Meantime, I'd also like to suggest another line of attack. So Congress officially has the authority to protect Mickey Mouse and the other 2% of contemporary copyrights that still have commercial value. Could Congress also allow the copyrights to lapse on anything that hasn't been in print for, say, 20 years? Can we lobby for such a change to the law? 98% of a loaf is better than none...
Prof. Lessig,
Don't beat yourself up over this. You didn't fail. It was 7 justices who failed. And even though they didn't get the message, I did, and a lot of my friends did as well. Thank you for your efforts in pulling this case together and getting it out there for all to see.
So, go punch something (preferably not a justice, because given the opportunity, we will be sending you back to deal with them again! :) ), have a beer, take a breather, take a nap and when you've had a little down time, we'll all get back to work for the next big battle. This was just our Alamo. It's a tragic loss, but it's the kind of tragic loss that gets people pumped to do more.
Thank you again for your hard work,
cam
...and you will be going back, probably. Someone has to defeat the 'restoration' provisions of the URAA, in Golan v. Ashcroft.
Thanks to your efforts, Larry, the public has taken notice of the true worth of the public domain. Never again will Congress dare to make such a massive gift of public resources to corporate America. Though I don't for a minute think Congress will turn on its benefactors and repeal the extension, nor that the IRS will consider it to be a taxable event, I wonder . . . how about a Constitutional Amendment that sets a limit on "limited times"? Hmmmm.
I can't believe what an outrage this is! Yes! The passions stirred up, and the strange bedfellows (Schlafley and Kahle!) created will lead to a new consciousness and we'll get the law repealed by Congress. (well the next one) We'll get people dedicating their works, and using new ways to create and share.
You did a great job, and we appreciate it.
o/' The word is about there's something evolving
o/' What ever msy come the world keeps revolving
o/' They say the next big thing is here
o/' That the revolution's near
o/' But to me it seems quite clear
o/' That it's all just a little bit of history repeating
-- Propellerheads - History Repeating
o/' The word is about there's something evolving
o/' What ever may come the world keeps revolving
o/' They say the next big thing is here
o/' That the revolution's near
o/' But to me it seems quite clear
o/' That it's all just a little bit of history repeating
-- Propellerheads - History Repeating
Anyone else interested in starting a organization to promote and support civil disobedience actions regarding 'extended' copyrights? Something to think about.
I'm so sorry.
Amanda
Justice is sweet and musical; but injustice is harsh and discordant.
—Henry David Thoreau
Larry,
A heartfelt 'thank you' for helping to bring this issue to the bright light of day, and doing your level best within the letter of the law to create change. You tried, and did your best; that's what matters most.
An alternate view: Failure is incidental to the process of change; in fact, failure is necessary to achieve optimal change in organized, systemic environments. Thus, this 'failure' can be viewed as a necessary step to change - for the better - that we all know will eventually occur.
It has been (your) initial effort - springing from passionate belief, based on studied intuition of what the contitution intends - that has provided a stimulus to change in copyright.
Thus - idle flattery aside - all citizens owe you and your cause a debt. We can repay that debt through further, conscious diligence as regard our given rights in this matter.
There's an old Japanese acronym"
"Fall down seven times, get up eight" - anonymous
The above acronym reflects the determination inherent in the cause to change copyright. From your effort, we'll see an intensification of the effort to change copyright law for the benefit of the greater good - a good that will untimately end with what you and those on your side have argued for all along.
You have done good work...I encourage you to keep it up...
I started my own site because of Mr. Eldred's case.
It's not over.
I started my own site because of Mr. Eldred's case.
It's not over.
Breathe deep and reflect on the "victory of awareness." Thank you for your work -- and your continued work on the next step.
Mr. Moynihan comments (twice...;) that he's started his own site as a result of this case; that's probably true of more people that you might think. The Internet community is just beginning to find its voice and presence. Thanks to people like you, this voice will grow and strengthen.
I think it is possible to lose a case and yet smell victory in the defeat. The many comments here are more than a tribute. They are but a small sampling of the support and appreciation that you have. In any event, you didn't "lose" the case. The case was made, but the argument rejected, because it didn't fit the mindset of the 7 judges in the majority. But mindsets change, and judges get replaced, and the battles go on. And the War sometimes ends in a surprising and (now) unimaginable way. I was never hopeful that the Supreme Court would decide Eldred the right way, but I do believe that more people will understand what is going on and that the law will start to shift in a direction that treats intellectual property not just as an asset to the grantee of the right, but also as an asset that has public value. And if it has public value then at some point the public interest is going to get protection too.
Thank you so much Larry. You did your best. For that, we can never repay you. Today is a dark day, but eventually, we WILL overcome!
Prof. Lessig:
You care. Mr. Eldred and others care. Because you care, others have come to care. Because of this Court's failure to check Congress, still others will come to care. The battle will continue. We will do more.
"Nothing in the world can take the place of persistence. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent." - Calvin Coolidge
Prof. Lessig,
Many thanks for taking up this case and arguing it with such vigor and insight. No apologies permitted--you’ve done us all a great favor, and we are not so ungracious as to hold you responsible for others’ lack of insight.
Please keep up the fight on your front, and (as one who’s working at this from another angle) please use your prominence and influence to encourage and support as many of the constructive responses of resistance as you can. Remember that if the Supreme Court found your case dubious, the rest of us are having a terrible time convincing bosses, VCs, grant committees, partners, colleagues, loan officers, benefactors, and all the rest. We will win this struggle not principally with one decisive blow--great and strong though your case may be--but with hundreds of compelling demonstrations that unlimited-term copyright actually stifles the public interest, harms commerce, and undermines the general welfare. Help us make our case on the ground, and we'll help you make your case in Washington.
Read between the lines of this statement from the majority opinion:
In sum, we find that the CTEA is a rational enactment;
we are not at liberty to second-guess congressional deter-
minations and policy judgments of this order, however
debatable or arguably unwise they may be.
In other words, the law is stupid, but constitutional. I also read between the lines of the angry words directed at the dissent to detect fear and uncertainty on the majority's part. They aren't entirely happy with their decision, so they make up for it with angry posturing.
Yes, I would have pursued the case a little differently. I would have emphasized copyright clause balancing more, and first amendment balancing less. I would not have abandoned Prof. Patry's argument that the CTEA provides nothing "to authors". But I don't see how anyone could have done better than Larry did. Ignorance of the importance of the public domain in literary expression has now infected even the Supreme Court. Until this court, or a subsequent one, clears its mind of this prejudice against an important safeguard of human intellectual freedom, the copyright interests will win in the courts as readily as in Congress.
Prof. Lessig,
Thank you for the great effort - the real result here wasn't the ruling but instead the added level of knowledge about the harms of current system. After this ruling it's painfully clear that the fight against ever widening copyright has to be done in international level. Hopefully that process starts now.
Ville Oksanen
Electronic Frontier Finland
Larry, no need to hang your head. You presented the case well. The problem was that the justices were more interested in interpreting the Constitution literally than looking outward at the future. Right there in black & white the majority opinion says (I paraphrase) "the plaintiffs contention that the CTEA represents the next stage in an open-ended extension of copyright terms is not supportable. We are not faced with a situation where terms have been extended over and over again." So we must wait until the terms get extended again, then we can go back to them and ask them to check the power of the Congress. They read the law and the Constitution literally, and in that light the case had to be decided the way it was.
Really, our problem was never with the Supreme Court; it just represented the easiest way to address the issues. What really needs to happen is we need to take back our government from the monied interests that control it; and I'm afraid that isn't going to happen anytime soon.
Thank you for fighting. I'm very grateful for what you did. Even those two dissenting opinions are a victory, a small one. Thank you.
Someone suggested copying and distributing copyrighted works as an act of civil disobedience. I don't think I can condone that idea, as long as a copyright is legally held, but I do believe that the content owners have, through this case, created a situation where this will happen more, rather than less, often. Their enforcement and technology costs will constantly increase in an escalating war against the "pirates". We saw this long ago with computer game copyrights. The ruling will not stop illegal copying, it will however possibly cause people to think twice before using a copyrighted item in a "fair use" way.
A travesty of a ruling, which will have reverberations for decades to come. Let's not forget this is the same court that was capable of installing a president by judicial fiat.
Now the challenge before us is to take this cause out of the courts and into the public arena. We need to lay out the issues to the body politic, and then gain redress once the public understands what is at stake -- and what rights they have just lost.
Larry,
Thank you.
Sebastian
Being a sore loser is sometimes the right thing. This is one of those times. I am curious about whether this ruling has any sort of global consequence aside from the US being the most powerful/influential nation in the world.
Jeppe: yes of course it does. US trade negotiators will continue to press other countries to extend copyright laws to the same length as in the US, in the name of "harmonisation". If the law had been overturned, they would have to have stopped doing this.
Well, a nice effort, Larry. Too bad the majority (it seems to me) got scared at the idea of declaring openly just how badly congress has overstepped it's grant of power, and for how long. They seem to have quailed at the vision of the 1976 extension going down as well. That's my reading, anyway.
For myself, I'm more inclined to agree with Steven's dissent. The main purpose of the Patent/Copyright clause is to enliven the public domain, and only secondarily to reward authors and inventors. It's the old MEANS vs. ENDS quandry....
Larry, I'm not sure it is as dark a day as all that.
Sure it would be better if the justices had seen it your way. But they did go out of their way to acknowledge that CETA stretches "limited times" to its logical maximum (note their comparisons with 99 year leases and the limits to perpetuities being a lifetime plus 21 years). And they also went out of their way to reaffirm their support of the the "fair use" provisions of the copyright act.
At the very least you successfully put a serious obstacle in front of any future effort to further extend copyright.
Well done.
Cheers, Bob.
Professor Lessig,
Your fight matters not only to US citizen, but all over the world, and especially in Europe, without which there would not be the present escalation in lengthening copyright duration beyond any common sense. See Ville Oksanen's post, above.
For Europeans like us, you are a great hope - no matter if you have lost this battle. For us, you represent the struggle for freedom of speech on the internet - but not only: you are also the living demonstration that Eurocrats' simplified view ot the "US peril" is deeply wrong.
Sincerely,
(from Switzerland, perhaps an even more luddite and restricted place than the EU)
Larry,
I'm not much of a poster, just a lurker, but this time I must say something. Thank you very much for your efforts. A few years ago I would have never thought this was wrong in any way. I was then shocked (but happy) to find out you got the cert. Now I'm sad and upset about the ruling, but at least I know the difference between where I was and where I am. It may be the same location, but the outlook and action to take are totally different, and that is only because of your efforts.
Thumps up, Lawrence Lessig. This fight can't be won in single combat. There is no freedom without people defending it. It's just as simple as this.
Sir Lessig:
YOU didn't lose today, society did . . . . . for all the great research, briefs and presentation that went into your case, much of what the Justices decide seems to come solely from inside their heads, and not from the presentation of the case by opposing counsel.
To put it another way, the Justices most definitely ARE NOT voting on which side best presented its legal case, they're instead voting on . . . . well, something else, anyway.
The fact is it's not the role of the Supreme Court to overturn bad law, or even to overturn gosh-awful, enough-to-make-a-buzzard-puke law - their job is to overturn Unconstitutional law.
Now the fight goes back to the legislature, where the bad guys won the first round but maybe not the last.
Larry, you did good. I doubt this case could have been won by anyone, and you did a great job of shining the light of publicity on the abuses committed by Disney and Congress. Thanks for your efforts, and keep up the good fight.
Hell man, you put up the good fight.
And as dozens have already said, much better than I could, the war is not lost, and you have brought it to the attention of many who would not have otherwise been aware of what was going on.
I know it's easier to believe the crtisisms than the support, but realize that the support is what's real, the critisism rarely is.
Be strong, and continue the good fight.
Mr. Lessig, it will be you who is remembered as the good guy with the rare gift of foresight. You have forced technology and intellectual property issues to the essential public policy point of "critical mass." You have started a movement, and you're the best leader we could have asked for. Thank you.
You fought a battle that was well worth fighting for - even if it didn't lead to the success anticipated it (although you might not grasp it yet) *did* indeed start a movement. Your engagement for Creative Commons, the many websites and content creators already employing Creative Commons licenses, the thousands of websites linking to eldred.cc - if this isn't a really powerful movement I don't know what. While the Sonny Bono Act might not have been unconstitutional following the literal words of the constitution it is definitely unconstitutional considering the spirit of the constitution that the fouding fathers had in mind. But I think the Supreme Court was partly right: This is something that shouldn't be resolved through the Courts but through political change - and your work did a lot to foster this political change that starts with an awareness of the people for the problems of the current copyright law. An awareness that you created - I'm from Europe and only due to your writings I came to realizing the problems and ridicolousness of the EU copyright law. This is one of the few things were the EU was the leading player and the U.S. followed behind - and it isn't something we Europeans should be too proud of. I wish you the very best for your struggle for the public domain - keep up your good work!
I've only ever watched these kinds of copyright and freedom issues from the sidelines, more with passing interest than passion, so I am surprised to find myself *extremely* upset by this Supreme Court ruling.
Just one question: what can I, an average joe, do to help change things?
Thank you, Mr Lessig.
You did a wonderful job, and you have my undying thanks. But the game was already rigged. This is a phenomenon I call "winning the debate, but losing the vote."
Congress is ruled utterly by Disney's dollars, and will NEVER relent on making copyrights perpetual, whatever we few who understand the issues may say or do. The Supreme Court was our last and only hope -- but our hope was misplaced. The dark future is here.
I looked at cnn.com to see how the decision would be
presented to more-casual observers. Some highlights:
"A contrary ruling would have cost entertainment giants like
The Walt Disney Co. and AOL Time Warner Inc. hundreds of
millions of dollars."
This allows readers to think that this issue will affect directly
their pocketbook - as the majority of Americans own stock, and
many of those own stock in these companies, either directly or
indirectly (in mutual funds).
"AOL Time Warner, CNN's parent company, had said that
would threaten copyrights for such movies as 'Casablanca,'
'The Wizard of Oz' and 'Gone With the Wind.'"
So, the story suggests that still-popular works would be
"threatened," as though the works would disappear in a cloud
of smoke were the copyrights to end.
The general public has a curious blind spot when it comes to
the issue of increasing copy rights. Contrast this with the
uproar that is heard when pharmaceutical companies apply for
patent extensions (which often are granted because the FDA
approval process is so lengthy). Imagine if Congress tried to
grant pharmaceutical corporations 20 additional years of
patent protection. I almost can see the red-faced politicians on
the Sunday talk shows, decrying it as a pillaging of the
American purse. This dichotomy causes me to wonder if the
public's blind spot results from the fact that virtually all major
news sources are, necessarily, copyright holders themselves.
Could this fact affect whatever "objectivity" we've come to
expect from those who report news to us?
Professor Lessig,
I just wanted to say thank you. Please don't beat yourself up, for you really have won by educating so many people (myself included) about the importance of this issue. The amount of time and energy you have spent so far on this case has been nothing short of amazing. If nothing else, you have woken many of us who were asleep at the wheel.
Others have already said "thank you"; I won't be the last to do so. You've done us all a very great service in fighting a pernicious abuse of the system the Founders set up. That the Court ruled for or against you is of no relevance to that fact. As long as we keep up that fight and do not lose heart, eventually, things will be made right.
They have ignored us. They have laughed at us. Now they are fighting us. All that is left is for us to win.
Well done, Larry for fighting the good fight, setting a strong example and helping shape the future for the commons.
It starts now and all of us must find ways to make our views heard and recognized.
This is not a loss.
This is not the end.
This is merely the call to arms....
Dean
Not a loss, but a warning shot. Time to start a campaign to change the law in Congress. Disney, of course, are runnning advertisements again about 'putting movies back in the vault', just as they did a year ago.
I am SO disappointed. How sad that Justice Breyer was the only one who really 'got it.'
Prof. Lessig,
It isn't a rationalization to say that this defeat could do more for the cause in the long term than a victory would have. When I first heard about the decision, I felt nothing but sadness. It has taken approximately 20 minutes for that sadness to turn into anger. And about one more minute to direct that energy toward the EFF's PayPal account.
Rocky Balboa wasn't any less heroic for losing, and neither are you. (And I have no doubt your sequels will be better.) Eldred created a dramatic focal point, and it has helped to inspire untold numbers like me. I'm an indie filmmaker who never thought about copyright in any way but the Standard Valenti Dogma. Now it's my mission in life to enlist other filmmakers in this struggle.
The Supreme Court simply showed us how much harder we need to fight. Your heroic effort, which I have no doubt was the best that is humanly possible, will help to provide the inspiration we'll need.
Thanks for doing it.
Brian Flemming
You did an amazing job for this case. You've inspired me to join the fight, and I look forward to hearing of your next step. Artists and authors all over the world need you more than ever now.
Larry,
The 'Free Culture' presentation was a turning point. It helped explain your argument like no other. With that presentation getting it was accessible to anyone.
This decision is wrong. We'll keep moving.
Thank you.