Lessig

What follows is Mr. Manes' latest, excerpted at places where a response is required. I've cut some of the personal attacks, so if you want to get a true measure of this man, be certain to read the originals. But here's his charges of error, and the errors they manifest. Manes' words are in bold.

It's always fun to watch an intellectual bully stumbling over his shoelaces when he finally gets pushed back.

"bully"? the only bullies I know are the sort of people who find it "fun" to watch people "stumbl[e]".

One point I made was that "Disney reworked public-domain material like 'Snow White,' gratis, but paid to use copyrighted works like Peter Pan." Lessig says I got that wrong: "...Mr. Manes does the great master a great disservice when he underplays the significance of his 'reworked public-domain material.' Here's a list of those 'reworkings': Snow White (1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), Song of the South (1946), Cinderella (1950), Alice in Wonderland (1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp (1955), Sleeping Beauty (1959), 101 Dalmatians (1961), The Sword in the Stone (1963) and The Jungle Book (1967)--not to mention a recent example that we should perhaps quickly forget, Treasure Planet (2003)." When the Great Oz asserts it, it must be true. Alas, Lessig apparently cut and pasted this list from his book complete with the final jape, without paying much attention. A half-hour of lazy Googling would have revealed that at least seven of these titles--Dumbo, Bambi, Peter Pan, Lady and the Tramp, 101 Dalmatians, The Sword in the Stone and The Jungle Book were based on literary material that was in copyright--and paid for by The Walt Disney Co. (nyse: DIS - news - people )--when they were made. Fantasia had many public-domain sources for music, and Goethe, of all sources, for the concept of "The Sorcerer's Apprentice," but the visuals were otherwise largely original, and it appears Walt Disney opened his wallet for the Dukas piece that backs Mickey-as-sorcerer as well as for Igor Stravinsky's The Rite of Spring. Just to be magnanimous, I'll give the Perfessor that one. And though some Web sites indicate that Disney paid for the rights to use John Tenniel's Alice in Wonderland illustrations, I haven't been able to confirm it, so I'll let that one slide for now.

This statement is plainly false in one way, and plainly misleading in another.

Mr. Manes is plainly right that the list I pasted from my book in my blog response to his article is incorrect. All the works on that list are not works that were in the public domain when Disney built upon them. That was the carelessness of a blog entry, and I apologize for the error. (Though I will note as cite below that The Jungle Book story is apparently more complicated than Mr. Manes suggests).

But that is not how I use the list in the book, and it is plainly false to suggest that I make it appear as if the list I included in the book was said to be a list of works in the public domain. That is not what the book says. As you can see here, what I say in introducing this list is this: "Indeed, the catalog of Disney work drawing upon the work of others is astonishing when set together." Not "works in the public domain" but "works of others." The point is about how "Disney Creativity" works -- drawing upon others work, and changing it in importantly creative ways. I did not say that the only work he drew upon was work in the public domain.

The misleading part in Mr. Manes' post is the suggestion that somehow my point about Disney Creativity is negated because Disney paid for the right at time -- and as I said in the last exchange with Mr. Manes, even sometimes when there was no reason to pay (e.g., Peter Pan, as that plainly is in the public domain, isn't it Mr. Manes?). Again, missing the point. Compare: Sampling is a genre in music. It is much like Walt Disney Creativity. Many great sampling groups begin by simply sampling without paying. If they become successful, they pay for what they sample. But in both cases, the kind of creativity is the same -- a kind of "Walt Disney Creativity."

Others have made the stronger argument against Disney the company, if not Disney the man. E.g., this article alleges (contrary to Mr. Manes' claim) that the Jungle Book was released exactly one year after Kipling's copyrights expired. And of course there's a huge controversy over whether Disney (the company) "stole" Tezuka's story "Kimba" in making the Lion King. (this site does a good job mapping the argument). But I am not criticizing Disney, or at least the Walt Disney part of Disney. I am criticizing the change in legal cultures that makes Disney Creativity less and less possible.

Apparently 9-for-16 on the facts is good enough in the Emerald City of Palo Alto--hey, it's a better ratio than the two of nine U.S. Supreme Court justices Lessig managed to win over to his flaccid arguments in the Eldred case.

"Flaccid"? I've already taken responsibility for failing to persuade in Eldred. But this is the most astonishing part of Manes's argument. He really does believe that it makes sense for Congress to extend -- again and again and again -- the term of existing copyrights. He might find the arguments against that "flaccid." But Steve Forbes, Milton Friedman, Ronald Coase, James Buchanan, Phyllis Schlafly -- as well as a bunch of right thinking sorts from the other side -- disagree. Does Manes really want to argue that it was right to extend copyright terms?

In his bloggy rage

! Mr. Manes, if you think my entry was a "bloggy rage" you've obviously not read many blogs.

after being taken to task by a mere non-lawyer,

So this is totally misleading. I made one comment about Mr. Manes not being a lawyer -- that I love it when non-lawyers talk about the wonderful virtues of "fair use."

Lessig demonstrates that he doesn't really know or care what the public domain really is, apparently blinded by his grand wish that damn near everything be put there.

My view is that everything that has no continue copyright-related reason to be protected by copyright (ie, commercially exploited, or similar reasons) should be in the public domain. If Manes disagrees, I guess that's because he thinks it fine that lots that doesn't have any copyright-related reason to be protected still be regulated by the law.

He seems to think that anything that seems old--never mind whether it is or not--must be in the public domain. And if it isn't, it should be.

This is a common confusion. If I take the Grimm stories, and make a new derivative work out of them, I get a new copyright, even though the old work is still in the public domain. So you can have lots of stuff that "seems old" but that is not in the public domain.

Lessig doesn't care much about protecting intellectual property, but he's downright monomaniacal about the public domain. What really gets Lessig's dander up--it's what got him the Supreme Court spanking

"Spanked" for my "flaccid" arguments. Wow, what images rage in Mr. Manes head.

--is the supposedly creativity-stifling length of copyright under today's laws. But it's worth noting (as I don't recall he ever has) that by 1937, when Disney made Snow White, the property would have been in the public domain and ripe for Disney's free plucking, even under today's supposedly draconian life-of-author-plus-70-years term. Jakob Grimm, who survived his brother Wilhelm, died in 1863. Even if current law had been in effect when Disney made Cinderella, Robin Hood and Sleeping Beauty, he would have found them in the public domain, too. Could it be that modern copyright law is not quite as onerous as Lessig pretends?

Again, totally missing the point. (1) The whole challenge in the Eldred case was that there was no reason to be extending existing terms. We did not challenge the length itself. (2) And totally missing from this story is the fundamental change in copyright law that happened beginning in 1976 -- that copyright today applies to everything, automatically, for the full term, while in Disney's time, it applied to only registered and renewed work.

Before leaving Disney, let me also note a whopper Lessig has been retailing for a couple of years and repeats in his book: that Disney's first sound short, "Steamboat Willie," somehow swiped material from Buster Keaton's feature Steamboat Bill Jr., which was released earlier in 1928. In a July 2002 speech, he stated, "But what you probably don't recognize about Steamboat Willie and his emergence into Mickey Mouse is that in 1928, Walt Disney, to use the language of the Disney Corporation today, 'stole' Willie from Buster Keaton's 'Steamboat Bill.' It was a parody, a take-off; it was built upon Steamboat Bill. Steamboat Bill was produced in 1928, no [waiting] 14 years--just take it, rip, mix, and burn, as he did [laughter] to produce the Disney empire." On National Public Radio's "Talk of the Nation" just last week, Lessig called Steamboat Willie "a Buster Keaton knockoff." Lessig is in love with this story. Given that Disney is regarded as one of the forces behind the copyright extension act he so detests, it's deliciously ironic. Alas, it happens to be wrong in every material detail. All you have to do is watch the two films--they're both available on DVD--to see that all the two have in common is that both are set in part on steamboats and both include brief jokes about chewing tobacco--different jokes. The Keaton is a deadpan silent comedy about an effete college lad who comes home to a rough-and-tumble small town and by his heroism wins the daughter of his father's wealthier competitor in the steamboat business. The Disney is a raucous musical about an oversized cartoon rodent playing "Turkey in the Straw" on a variety of animals. To even hint that the Disney film somehow infringes on the Keaton (except for the non-copyrightable title and perhaps as some sort of vague inspiration) is about as accurate as saying Disney's The Wind in the Willows derives from Gone With the Wind. This isn't even a close call: It's not fair use, it's no use. Lessig may retort that both films derived from the popular song "Steamboat Bill," which Disney paid to use in his film. I'll save him the trouble: That song is largely about a steamboat race that ends in Bill's death; no such elements appear in either the Keaton or the Disney movie.

I am amazed Mr. Manes thinks he has made a point here. I do not at all criticize Walt Disney. I am celebrating the kind of creativity he demonstrated. So when I use the word "stole" I really mean the scare quotes -- "stole" in the sense people speak of it today. But I don't think, nor do I think anyone then would have thought, that the use of Keaton or Disney would have been stealing.

My point is that the environment of freedom Disney took for granted cannot be presumed today. For example: Disney made (with Pixar's help) a great movie, Finding Nemo. Does anyone really think you could go make a Keaton-like take-off of Finding Nemo, calling it Finding Nemie, without asking permission first?

More generally, I don't know anyone who disagrees with the claim that the reach and extent of the copyright regulation has changed. But maybe everything I've read and everyone I've spoke to is wrong. What is the authority for the other claim? That it is as easy, or easier, to use, or reuse the creativity of other?

UPDATE: I'm sorry I left the most important part of the response here out before. As to the "whopper" I've committed by saying that Steamboat Willie was a parody of Steamboat Bill, Jr: this (true) claim is not original to me, and if Mr. Manes was really doing his research by using Google (as opposed to having his research fed to him by whom?), he'd discover the following among the many entries out there -- including entries on Disney's own sites! Once again, Mr. Manes is mistaken:

• TalkDisney.com ("The inspiration was Steamboat Bill Jr, a Buster Keaton comedy, adjudged "rather flat" by critics of the time.")
• TutorGig Encyclopedia ("This short was intended as a parody of Buster Keaton 's Steamboat Bill, Jr. , first released on May 12 , 1928")
• This Day in Disney History ("The Buster Keaton 1924 film The Navigator and his 1928 Steamboat Bill, Jr. were the inspiration for Disney's Steamboat Willie.")
• Encyclopedia4U("parody of the Buster Keaton film Steamboat Bill Jr")
• DVD.net.au ("[speaking of Steamboat Bill, Jr.] The inspiration for the animated short film Steamboat Willie, which represented the debut of Walt Disney�s most famous creation, Mickey Mouse, Buster Keaton�s 1928 classic Steamboat Bill Jr. proved to be the last of his nine independent feature films for producer Joseph Schenck.")
• DisneyShorts at Toonzone ("The short was based on an earlier Buster Keaton silent film (which was in turn based on an even earlier vaudeville routine) "Steamboat Bill, Jr.")

Any many others.

Oh, and by the way, I too recommend you buy both. I bought the Steamboat Willie short in a very cool collection Disney was selling, which you can get from Amazon here. As Mr. Manes says, you can also get the DVD of Steamboat Bill, Jr., here. When you go to buy that copy of Steamboat Bill, Jr., you'll see the following noted as "trivia" about the movie: "This movie was used as a model for Steamboat Willie (1928)."

Stay tuned: Reviews of Steamboat Willie from 1928 and 1929 to confirm the same point.

In my review, I noted that copyright law offers a wildly expansive view of fair use--basically the right to infringe legally on the copyright of others.

"infringe legally" -- that would be an interesting trick.

To this, Lessig splutters, "Fair use is the right to hire a lawyer." Once again, he has the facts precisely backward; the truth nowadays

"nowadays"?

is that copyright is the right to hire a lawyer. People infringe on copyrighted material all the time and get away with it, in part because there are so many fair-use exceptions, in part because it's expensive to bring and win infringement suits.

If someone is allowed to use a work because of fair use, it is not an "infringement." In that case, there's nothing to "get away with" -- it is permitted.

To hear Lessig rant, you'd think copyright holders were hauling infringers into court in the manner of a cattle roundup. In fact, copyright suits are stunningly rare. You can look it up here. In the 16 years from 1988 through 2002, the average was 2,252 per year, less than 1% of all cases in the U.S. federal courts. Is the number rising drastically in Lessig's beloved cut-and-paste era of the Web? Nope: The high-water annual mark in that period was 2,828, back in 1994, just as the public Web was barely getting started. In 2003, the caseload was just 2448, presumably including all the Recording Industry Association of America's suits against egregious file "sharers." The trend is slightly downward. Given billions of copyrighted works, from Web pages to feature films, the stats show that it's probably harder to get sued in a copyright case than to get hit by lightning. Yet infringement--much of it fair use--happens all the time. The philosopher-Oz isn't much good on reality, but the reality is that even when use is not remotely fair, as much of it isn't, it's broadly tolerated.

So here Mr. Manes is exactly right. The way the law is written today, and as applied to what people do on the net all the time, "infringement--much of it fair use[sic]--happens all the time." And my point is a law that makes what ordinary people do "all the time" illegal ought to be rethought.

But the other part is just plain silly. To think you can measure the effect of copyright regulation by counting cases is absurd. Copyright law regulates businesses directly. They impose its burden on creators. The burden they impose has no real relation to the law of fair use.

Don't take my word for it. Consider instead the word of Judge Posner and William Patry. In a forthcoming paper in the California Law Review (cited here but not yet online), the authors survey publishers about the "fair use" rules they apply to their authors. As they write:

The fly in the ointment is this. Copyright owners and their lawyers are likely to continue advising would-be copiers that they are infringers even when the proposed copy would be a fair use; and the copiers will be reluctant to provoke litigation over the issue. We mentioned the Little Rascals case. The Copyright Society of the U.S.A. advises on its website that the copying even of just a few seconds of a movie or a television program is not fair use: �if film clips or photographs from motion pictures, television programs, or other sources are used, consent is required from the copyright owner to use clips or photographs in a motion picture, no matter de minimis or short.� That is not the law, as we has pointed out. Recently the New York Review of Books published a newly discovered notebook entry by Virginia Woolf, and a note at the end of the article states: �Copyright � 2003 by the Estate of Virginia Woolf. No part of this text may be reproduced without the express prior consent of Hesperus Press.� No part? That is ridiculous. A journalist, biographer, literary critic, or historian writing about Virginia Woolf or Lady Ottoline would be entitled by the fair use doctrine to quote a brief passage from the article. The note is pure bluff, but a public-domain publisher threatened by a lawyer representing Hesperus Press with legal action would think twice about publishing even the briefest passage without consent. Someone in Eldred�s shoes would worry that if, even after exhaustive inquiry justified him in believing that there was no living owner of the copyright on a work that he wished to publish, a copyright owner should jump out of the woodwork and seek to enjoin publication, the ensuing legal struggle would cost more than it was worth. In Margaret Atwood�s recent novel Oryx and Crake, the author thanks �John Calder Publications and Grove Atlantic for permission to quote eight words from Samuel Beckett�s novel, Mercier and Camier.� Eight words? Please. Atwood, a highly successful author, can afford to negotiate with two publishers for permission to quote eight words; other authors cannot; and in any event the time and expense required to make and process such a request are a social waste. According to the copyright officer at one distinguished university press, the press presumes that if you come to them asking for permission to quote, the quoted material is not within the scope of fair use. But if the copyright officer senses that the person he�s talking to is a complete novice�in his words, �blind and lame��he will instruct him on the fair use privilege, but this does does not happen very often. The same press instructs its authors as follows with regard to fair use: "Permission is not required for brief excerpts quoted for the purpose of scholarly review or analysis or for supporting arguments. This is clearly �fair use.� In determining whether a use is �fair,� a number of factors must be considered, but extensive quotation from a chapter or article, or the reproduction of an illustration or a complete poem can rarely be considered �fair use.�

This is somewhat vague, and very narrow. Another distinguished university press instructs its authors that

in general, poetry requires permission when quoted for any purpose other than literary analysis or commentary�. You may quote from published prose works in copyright if you are making fair use of the work. How much is �fair� has never been spelled out, but usually you may quote up to 1,000 words from any book-length work of prose without specific permission as long as you acknowledge author, title, and publisher�. The number of quoted words considered fair use may be much smaller for a shorter published work (an article, short story, or letter, for instance). Do not use any complete unit, such as a case history, letter, or complete description, even if it is less than 1,000 words, without permission.

Among the mistakes in the quoted passage are the implication that no quotations of poetry are fair use; the arbitrary 1,000-words �safe harbor�; the mistaken implication that copyright law requires acknowledgments of fair use copying; and the assertion that copying a �complete unit� can never be fair use. The impression conveyed is of a fair use privilege far narrower, and therefore a copyright owner�s right fair broader, than the law recognizes. Crews�s study, cited earlier, similarly concludes that universities adopt guidelines for their faculty and librarians that are excessively conservative with regard to the fair use privilege.
These examples could be multiplied indefinitely.

Nobody ever seems to sue in cases of plagiarism. A broader example is the nearly $2 billion worth of blank CDs sold last year, at least a few of which were not used to back up hard drives. To get yourself hauled into court over copyright infringement, it generally takes truly egregious behavior--say, offering your purloined MP3 collection free to all comers. But Lessig seems to think that sort of behavior is OK.

I'm not sure just how someone who actually read the book could say I think "offering your purloined MP3 collection free to all comers" is ok. I of course say exactly the opposite.

Lessig gives me, a mere "technology writer," the back of his hand because I'm not a lawyer and can't presume to be an expert on copyright history. I plead guilty to not being part of the legal profession, but this particular "technology writer" also has published many books of fiction and nonfiction, as well as screenplays, TV scripts and software. For some reason, I've been invited to speak before audiences of lawyers at continuing legal-education seminars and a reasonably prestigious law school. I've gone to Washington to support fair-use rights. And I've lived through some of that copyright history. I'm old enough to have signed contracts that date back to the old law that Lessig wants us to return to--an Oz-like paradise when the U.S. went its own manly way in copyright and spurned the effete conventions of the rest of the world.

So I am wildly against professional disses, and if that's what Mr. Manes read what I wrote to be, I apologize. But what I actually said was "that a technology writer feels so confident about his views about the history of copyright law that he could write a review like this shows just how much more work is left to be done." Anyone should be proud to have written "many books of fiction and nonfiction, as well as screenplays, TV scripts and software." But I'm not sure how one could read works on the history of copyright -- Ray Patterson, Mark Rose, Judge Kaplan -- and think I'm the extremist.

In those days, if you wanted to claim copyright in a work published in the U.S., you had to slap a notice on it and register it with the government. Forget to do that or not know you had to, and your work fell into the public domain. But way back in 1886, the Berne Convention came up with a much simpler approach, one that still works wonderfully today without cluttering every Web page, photo and song with copyright notices--and one that protects creators who may not fully understand how wonderful or potentially lucrative their work may be at the moment they send it crawling out into the world. It even protects unpublished work, an issue that was a mess under prior rules.

Under Berne, everything gets copyright protection the minute it's fixed in a tangible form--no registration or marking required. It's simple: If you copy or adapt somebody else's stuff, and it's not in the public domain, you have to ask permission. But there are tons of exceptions, including facts, ideas, excerpts and parodies.

"It's simple"! Are you kidding? I will grant you that before the internet, it was relatively simple. The people who would want to "use" a copyrighted work in a way that infringed on one of the exclusive rights were likely to be commercial publishers. They could handle the burden relatively simply (except for film, but let's put that aside).

But now the same rules apply to anyone doing anything with content on the internet -- and exactly how is it "simple" now. Content is not marked, so there's no way to know what's in the public domain or what's not. Nor is there any way to know necessarily who owns what you want to use. And even if you did, and could, "you have to ask permission first."

That's just the point, Mr. Manes. You may like the soviet-like world where Oliver Twist like, everyone must come begging to someone before they can "adapt" someone's work. I'm happy to live in that world for a small segment of creative work, for something that really is a limited term. But there is no doubt that the range of permission one needs to beg for today is much greater than it was for most of our history. Hence my claim: we are moving from a free culture, to a permission culture.

And as for "tons of exceptions, including facts, ideas, excerpts and parodies." I weighed those exceptions on my own scale. They weigh exactly 6 ounces. "Facts" are an exception -- till Congress passes the Database Protection Bill. "Ideas" is an important exception for text. But what is the "idea" in Gershwin's Rhapsody? "Excerpts" -- tell it to the publisher. And "parodies"?! That's a joke, right?

In his book and a freshly minted federal lawsuit, Lessig would have us go back to the unwieldy old marking-and-registration stuff that we abandoned years ago to become one with the rest of the copyright world under Berne.

Actually, as I describe in the book, I would do no such thing. I would propose we move into a future and vastly more efficient system to achieve the same end -- narrowing copyright's regulation to those places it is needed, and free culture from regulation where it serves no useful purpose.

Lessig likes the idea that if it's unmarked, the rule would be "use unless someone complains." So what happens when you steal some kid's screenplay and make a movie of it, and the kid objects when you take it to Sundance? In a footnote, Lessig admits this sort of thing might create problems. So wouldn't it just be better to ask permission? And wouldn't this policy enhance the hand of Lessig's hated big-media corporations, who have lawyers to make sure their stuff is marked and registered, at the expense of artists who don't know better?

The inefficiency of the old system was awful. And any system that relied upon the copyright office exclusively would be awful. But every federal system of IP has a registration and maintenance requirement -- patents, trademarks -- except copyright. Why?

Lessig doesn't bother to mention the strange things that happened in the manly U.S.-against-the-world era.

"manly"?

Authors insisted that American publishers bring out their volumes simultaneously in Canada to ensure that they could claim their Berne rights around the world. In the retro-Larryland of marking and registration, I envision Canadian server farms offering to host Web sites to maintain users' protection without need for marking or registration--which the U.S. as a signatory to Berne would be forced to honor. Under the Larryland double standard, would-be "creative" copiers would have to make sure that their borrowings didn't come from unmarked material on foreign servers protected under Berne--making the whole issue of "marking" even more complex than it was in the old days. Like the great good of consistent international law in copyright, this sort of detail is completely absent from the Great Oz's purview.

It was awful and stupid, true. And this system today is awful and stupid, too. (Oh wait, I forgot, the current system is "simple".)

In the great tradition of populist demagogues, Lessig preemptively calls his opponents radicals when he's the one who's throwing the bombs. Although he claims in his blog that he'd "be totally satisfied with copyright law as it was in 1975," one Lessig nuke that goes way beyond that era's rules is the idea of a mandatory license to make derivative works of unregistered material.

Actually, Mr. Manes, for the reasons you just described, this proposal does not go beyond the rules in 1975 at all. If you didn't register a work back then (as you noted above), then you didn't get protection at all. That meant anyone could simply use your work without your permission at all. So my proposal is less radical than the law back then.

Simply put, if you self-published a novel in Larryland and neglected to mark and register it, anybody would be able to make a movie out of it. Or a TV show, a stage play, or a McDonald's (nyse: MCD - news - people ) Happy Meal with the names of your characters. The reuser would simply have to pay a small percentage of his profits. Oh, and Lessig also proposes limiting copyright on works derived from registered material.

Same point as above.

This is an outrageous perversion of the long-standing law that the creator has the exclusive right to license his work. As usual with Lessig, the creator who truly creates gets the short end of the stick; the "creator" who swipes gets a free pass. In Lessig's Oz, as nowhere else in the world, points are deducted for starting with a blank page. Perhaps he considers legal briefs, chockablock with specific references, the height of creativity.

So again, this is very misleading. The "long-standing law" was that if you didn't satisfy certain formalities -- registration, notice, renewal -- you lost protection totally. That means you had no "exclusive right to license" at all. Now I agree the old system was cumbersome and difficult -- it was run by the government, what do you expect? But as I describe in the book, given the technology of today, it need not be cumbersome or difficult, and need not be run by the government.

Lessig's model here is "cover" versions of songs, which anybody can make by paying the original artist a set fee. But Lessig omits the fact that this is a special exception for a performance right only, and one that doesn't apply to other performances, such as stage plays.

Ok, so you're getting tired here, Mr. Manes. I don't omit any such fact. As you can see in this cool paragraph version of the book created by Trevor Smith, I expressly limited the cover right to "musical" works, and go on in the next few paragraphs to describe exactly how unique this right is.

And if you want to make a movie based on a song lyric, the law works the same way as it does for everything else: You have to get permission.

Yes, permission. More permission. Lots of permission!

One reason copyright gives creators the exclusive right to decide how their work can be used or adapted is to put the creator in the driver's seat. When it comes time for a movie deal or a play, she can do it herself, work with people she likes, or simply sell out to the highest bidder; she created the thing, after all. Exclusivity also means that the producer can invest tens of millions of dollars in the certainty that a competing version won't jeopardize that investment.

As I describe, I am not opposed to the derivative right in these cases. Perhaps you missed that too, Mr. Manes.

This has worked fine for years, but Lessig spies something wrong because that's not the way the Founding Fathers saw it--in an era when "the media" were limited primarily to print.

Lessig has avoided serious scrutiny in part because he's a sound-bite master

You've obviously never heard me speak or teach.

who makes everything sound simple.

Wait, I thought you were the one who said "It's simple."

Unfortunately, this stuff is complicated, which is why thoughtful law professors with their one-hand and other-hands tend to make for lousy interviews. But the truth is that copyright largely works fine. It has changed over the years to adapt to new technologies, particularly those that offer great new strides in the potential for piracy. It protects creators like the kid who develops software in his bedroom, the makers of epics like Lord of the Rings, the purveyors of cell phone ring tones--and you, if you create something other people want. Yet it lets an enormous amount of harmless and useful infringement slip through the cracks.

So you say.

But copyright always has room for improvement, and legislation--not litigation--is the way it traditionally has been accomplished.

Oh yes, be sure to remind the RIAA of that.

Out there on the radical fringe, Lessig knows he's unlikely to persuade the U.S. Congress to adopt his nutty proposals

You mean like the proposal that Steve Forbes endorsed? Is he too "on the radical fringe"? Another "idiot" "buffoon" "moron"?

so now he's back in court, claiming a 28-year-old law is unconstitutional on grounds that include violation of the First Amendment.

It's true. We've filed a suit on behalf of Brewster Kahle and Rick Prelinger challenging Congress' decision in 1992 to automatically renew all copyrights from 1964 on. History shows that 85% (at least) of copyright owners would never have renewed their copyright. Yet the law extended the term for all this work automatically -- so that people, like Brewster, who want to build a digital library of out of print works, or Rick, who wants to make film available on the net -- have to track down the current owners of those copyrights. But I'll be certain to tell Rick and Brewster what you've advised, Mr. Manes. "It's simple."

But as Justice Ruth Bader Ginsburg wrote in giving Lessig the back of her hand last time around,

more violence, Mr. Manes. Really.

"The First Amendment securely protects the freedom to make--or decline to make--one's own speech; it bears less heavily when speakers assert the right to make other people's speeches."

What Justice Ginsburg also said was this: �when �Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.� This case is all about Congress "alter[ing] the traditional contours of copyright protection." For the first 201 years of our Republic, no copyright term was ever extended that did not, or would not, pass through a filter of renewal. Congress changed that tradition in 1992. We'd like the Court to evaluate that change under the First Amendment.

For all his talk about creativity, Lessig isn't any true creator's friend. His assault on copyright largely helps a ragtag bunch of gleaners who claim that copying is "creativity" because they can't create anything without directly reusing copyrighted material, except when it comes to fictions about Disney's use of other works. Only if Mickey Mouse can be wrestled into the public domain will their true "creativity" be unleashed.

Well, I've not really argued that, but you did spell my name correctly.

Of course, unless you're a lawyer named Larry Lessig or one of his merry band, you really can't hope to understand why copying is really creativity and originality deserves little protection.

Copying spreads knowledge and culture -- and the framers wanted it to be done free of restriction after a "limited time." Your argument is with the framers. And originality does deserve a great deal of protection. Nothing in my book contradicts that.

Lessig claims I clearly didn't finish the book. I admit it took longer than I expected, given all the "idiot!" and "buffoon!" outbursts I kept penning in the margins, but I did in fact get all the way to the very last page. On the one before it, he makes a typically oversimplified recommendation: "Fire lots of lawyers."

That's the title to a section, Mr. Manes. It's not an argument. The argument is summarized in the last paragraphs:

The law should regulate in certain areas of culture -- but it should regulate culture only where that regulation does good. Yet lawyers rarely test their power, or the power they promote, against this simple pragmatic question: "Will it do good?" When challenged about the expanding reach of the law, the lawyer answers, "Why not?"

We should ask, "Why?" Show me why your regulation of culture is needed. Show me how it does good. And until you can show me both, keep your lawyers away."

I take it you disagree.