Lessig

Congress has the power to promote the Progress of Science ... by securing for limited Times to Authors ... exclusive Right to their Writings.

If you take that seriously, then it is just not like building a house. If the government takes your house, it must pay you. This says if the government gives you a copyright, it must, after a "limited Time" take it away.

Sifry nicely summarizes the argument (which has been remarkably civil) and David raises the ultimate question: How long? I still like Justice Story's formula: "at as early a period as possible."

Graham and Zerbe have a nice piece that doesn't exist here, but in which they try to estimate how long is long enough. Answer: surprisingly short.

Economically Efficient Treatment of Computer Software: Reverse Engineering, Protection, and Disclosure" (with Lawrence D. Graham), Rutgers Computer and Technology Law Review, 22(1), 1996, pp. 61-142.

Back to taking "limited Times" way too seriously ...

So the brief is finished, and though I'm happy with it, nothing ever will be as compelling as Spider Robinson's Melancholy Elephants, which Kevin Marks found online. (Check out the Marks link: That too is a great idea out there.) Bumperactive is still giving away "Free the Mouse!" bumperstickers, and Matt Haughey (who has been building and running the Eldred site for free, along with Wendy Seltzer who did everything before him) has put together a cool link campaign. So for all who've written helpfully, "what can I do?," here's one thing at least.

No one will ever know just how much help went into this case, no matter how much we say. We started this case on an openlaw model, and though in these last stages we could not post drafts online, there have been scores of people vetting drafts and supplying ideas over the past month. If this case goes south, I'm happy to take the blame, so long as someone would help tell the story of these volunteers if we win.

One of many favorite volunteers is the University of Illinois at Urbana-Champaign Archivist, William Maher. He was puzzled by an argument that the government has been making: that in 1790. Congress extended the terms of copyrights, so they should be allowed to do the same today. Maher went back to the records of copyrights between 1790 and 1800. After extraordinarily tedious and careful research, he discovered that of the 21,000 titles published during the period 1790 to 1800, there are exactly 12 copyrights (<.05%) for work published before 1790. Nothing like numbers to deflate legal rhetoric.

Now to the 523 emails in the "must be answered" box, and the interesting follow-ups in weblog space...

So this person is insanely brave.

Ok, so this is insanely cool. Get yours quick.

Say what you will about Florida. I'm a new fan.

Tomorrow the Supreme Court will hear arguments in Eldred v. Ashcroft. In the past weeks, and especially the past week, I've received an extraordinary amount of mail, ranging from wishes of good luck, to demands that I "win." And as well has the press been extraordinary. (Check out Google's cool new service for a list. Even Declan is reporting the story, if only to report that the Ayn Rand Institute has pronounced me a Marxist (along with Milton Friedman, Ronald Coase, James Buchanan and Phyllis Schlafly I assume.)).

When we brought this case 4 years ago, there were many allies who said that there was no way we could win. The reason they were right four years ago is that the world did not yet see how important these issues are, and just what's at stake. In four years, that has changed. Not because we brought this case, or because of anything I've done in this case, but because of an extraordinary number of people who have been pushing to make this issue understandable.

It is extremely hard to win a case like this. I have given it everything I have, and I believe we are right, and have a good shot in showing it. But the important lesson from the attention this case is getting now is this: There is an extraordinary passion and energy out there for the ideals that Eric Eldred and others represent, and that if we do something to push these ideas, we can have an effect.

Thank you for the extraordinary outpouring of support. But please, regardless of what happens here, let us not lose the momentum. Freeing culture is what our framers did; we can do it again, regardless of what 5 justices on the Supreme Court say.

So there's an extraordinary (and extraordinarily interesting) range of reporting about the argument before the Court. As I was on the front line, let me add a bit more. My hope in doing this is to put this in a bit of context, and to highlight at least what we should be looking for. (EV predicts a 6-3 victory, which is significant, because he and I have a bet, and he took the other side.)

Aaron reports Brewster's statement to him that "it was a dance for which I don't know the steps." That's close. I think the better analogy for someone viewing an oral argument for the first time is the first time you see a cricket match. There are some moves you are certain you know are bad (a swing and a miss); but there's lots that plays into something you can't quite get till you know the context of the game. Here, then, the context of the game, as well as the moves from last Wednesday.

This is an amazing story of activism and political will. Lots to learn from this amazing nation.

Long before I downloaded Mosaic 1.0, my obsession was constitutional law. It still is. If there is one intellectual passion that has lived the longest in my life, it is how a country makes sure its constitution lives. I spent many years studying the emerging democracies in the former soviet republics. I spent many years writing about how our Court can best protect our constitutional values over time. This, it turns out, is an extraordinarily hard question, for which we have no good answer.

So as a constitutionalist, I must confess that the greatest part of this debate about Eldred is that it has now become framed -- at least in the public space -- as a debate about what the appropriate role of the Supreme Court is. This is precisely the right question to ask, as the Washington Post's very smart editorial asks it. As Eldred's attorney, it is of course my role to say that the answer is easy, and indeed, the nice thing about picking one's cases is that the proper answer in my role is the answer I genuinely believe. There has been great controversy about the Court's intervention in the context of federalism, but as I firmly believe, there should be no similar controversy in the context of the Copyright Clause (again, the text is clear, and the Court unanimously has affirmed that the text is a grant of power and a limitation).

But however the Court resolves this case, it will be teaching us something important about what a constitution means: either that the Court can interpret express limits to give them effect (and hence my clients win), or that the Court interprets the limits on its own power such that there is only so much it can do to police a Congress out of control (and hence, a principle of judicial restraint wins). I, of course, prefer giving the constitution's limits effect over a restraint that defeat the constitution's aim. But either way, these are results of principle, not politics. As one person emailed me, either result "reaffirms something important and good" of at least this part of our government.

Herein the difference between a brilliant mind and a lawyer's mind. While we brought a law suit, Brewster built a bookmobile. A public domain bookmobile, which he drove across the country to show the value of the public domain in a tangible, and unmistakable, way. Richard Korman has written an excellent account of this perfect way to make the Eldred point.

It is wonderful to see that the spirit of my hero, Walt Disney, still lives at that amazing company. See their latest work drawn from the public domain. Creativity the way it was meant to be.

I've just finished replying to the more than 500 emails I received about the Eldred case. Despite my con-law musings, it is extraordinarily hard to read these emails without a profound sense of just what's at stake. Missive after missive describes the burden of the existing system, and how 20 more years of control will stifle creative work. These half-a-thousand emails should be worth one word at least -- REVERSED.

In a bunch of these emails, however, there were two recurring questions that I wanted to clarify.

Aaron points to a wonderful page by John Mark Ockerbloom at the University of Pennsylvania listing books that are in the public domain elsewhere but not, because of the Copyright Term Extension Act, in the United States. Check out the books you are not allowed to download. Makes me proud to be an alum.

Dennis Karjala has been fighting copyright term extensions just about as long as anyone. His wonderful page has some of the best material from the beginning of this battle through the case in the Supreme Court. Check out the letter from artist Daryl Hanson about the effects of CTEA on his ability to create.

Aaron makes the nice point that there should be an analog to "fair use" in the context of patent law. This is actually a point explored by a number of legal scholars, most extensively by Maureen A. O'Rourke in a 2000 paper that does not seem to be online. But he grounds his claim on the "the conflict between these two have, in copyright at least, traditionally been resolved by the concept of 'fair use.'"

Not true, or better, that's government speak. "Fair use" is one mediating device between the First Amendment and copyright. The Court has never held, and it would make not sense to hold, it is the only mediating device. It is a central part of our First Amendment claim in Eldred that there are other mediating devices between the First Amendment and copyright -- i.e., duration. And that just as the government concedes that if "fair use" were changed by Congress, or if Congress decided to copyright ideas as well as expressioin, then "undoubtedly" ordinary First Amendment analysis would apply, so too if Congress changes the duration of existing copyrights, ordinary First Amendment analysis should apply. This was the argument of the author of the notion (adopted by the Supreme Court in Harper) that there is a "definitional balance" between the First Amendment and copyright--Nimmer--as he concluded that retrospective changes of copyright violated the First Amendment and the Copyright Clause.

I'm trying to think about other things, but when my Dad won't stop sending me articles about the case, it gets hard. Today he sent me this piece by Professor Marci Hamilton which concludes that "Mickey has the better of the argument." But I wonder whether Mickey would have the better argument if the real arguments that we make are considered.

The Right on Eldred. See here.

In Eldred v. Ashcroft, we challenged the 1998 Sonny Bono Copyright Term Extension Act. During oral argument, the Court asked whether our rule would affect the 1976 Act's extension. Though this issue had not been briefed, we indicated that it would, but that the Court's own caselaw gave it a way to strike the 1998 Act without striking the 1976 Act.

Justice Bryer in particular was concerned about the effect on contracts entered into in reliance on the 1976 Act. His view seemed to be that there would be "chaos" if those contracts were invalidated.

Jason Schultz of Fish and Richardson and Deirdre Mulligan of the Berkeley Center for Law and Technology (both of whom worked on a great amicus brief in the case) have now looked at the numbers. Their work is great, and the numbers surprising. See the chart on books here and the brief analysis here. Bottom line: a surprisingly small amount of work would be affected.

In an otherwise great piece for CNET (not run on his list), Declan reported last week that Judge Posner expressed skepticism about expanding IP rights, and that he "praised [me] for challenging the CTEA." Declan's a careful reporter, but there is exactly zero chance that Posner said that. Whatever his views about the economic merits of the Sonny Bono Act, federal judges (and especially this seasoned and careful federal judge) don't go around expressing personal views about the merits of pending lawsuits.

Jason Schultz has done more amazing work calculating any "chaos" that would come from striking the 1976 Act. Using the Internet Movie Database, he confirmed the Copyright Office's numbers that about 37,000 movies were released in the period 1927-46. (IMDb reports 36,386). Of those, only 2,480 are currently available in any format, or 6.8%. 93.2% of the films during that period are are commercially dormant. Another way to put this: Jack Valenti's crowd says exclusive rights are the only way to assure content gets distributed. So we have a nice experiment: For the films between 1927-46, exclusive rights fails to make available 93.2% of the content produced. Does anyone really doubt the public domain would do better? Jason's email is here.

After some questions by readers, and suggestions by friends, Jason Schultz has produced his final report about the effect of invalidating the 1976 Copyright Act's extension of copyrights. Bottom line: more support for the public domain.

This is my co-counsel in the case, Jonathan Zittrain. An obvious mole. (A mouse like mole actually). No assessment of damage done yet.

Two weeks ago at the Creative Commons launch, I tried to sell the virtues of building rather than suing. The reality is that we need to do both. As Stanford's Center for Internet and Society has announced, we filed a lawsuit last week to defend the right of Emily Somma to distribute a children's book that builds upon the story of Peter Pan.

Peter Pan was created by Scottish playwright James M. Barrie (1860-1937). The character was born in a 1902 book called The Little White Bird and then developed into the play Peter Pan, or The Boy Who Wouldn't Grow Up, in 1904. In 1906, the section of The Little White Bird that originated Peter Pan was published separately as a book called Peter Pan in Kensington Gardens. Finally, Barrie turned his highly successful play into a book called Peter and Wendy in 1911.

All these works have entered the public domain in America. But because Barrie continued to produce works based on the Peter Pan story, the holders of those copyrights claim that there can be no derivative works using the Peter Pan character so long as those later works remain under copyright. (In England, by special law, the copyright for Barrie's work is perpetual). Thus, the holders of Barrie's copyright claim a perpetual right to control derivative works based on Peter Pan, even though the original work passed into the public domain.

Emily Somma, a Canadian, has written a wonderful children's book, After the Rain, that uses some of the Peter Pan story, but for very different ends. Peter Pan, you might remember, is afraid of growing up. In Somma's story, children rescue Peter Pan from this fear. Thus, like the best of derivative works, Somma's story builds on the past, but does something different with it.

Yet Somma is now threatened with a legal action in the United States if she distributes her book in the United States, even though her work plainly builds on work that is in the public domain. This, we believe, is wrong. It is just one example of an important class of cases where current copyright holders demand the right to control the use of work that is in the public domain just because their work builds upon work that is now in the public domain.

Stay tuned for more news, or tune your reader to the CIS RSS feed for updates on the case. Peter Pan is already free. It's time the law (and lawyers) to recognize it.

Richard Koman has written a great article about Brewster's brilliant bookmobile.

There's a very interesting article in the Times (registration blah blah blah) about a new push in Europe to increase copyright terms. Let's remember the sequence here. Germany increased its terms to compensate for WWII. The EU then increased its terms to match Germany. The US then increased its terms to "harmonize" with the EU. That was the Sonny Bono Act. But of course, the "harmony" of the Sonny Bono Act was like some of the worst of the Bono and Cher acts -- disharmony. (For a chart showing how the Sonny Bono Act actually increased disharmony between US and EU terms, see Dennis Karjala's page). So to respond to the disharmony caused by the Sonny Bono Act, now Europe is calling for another increase in their term. Japan too is doing the same.

Jason Schultz's work shows clearly what we've been arguing for a very long time: Longer terms lock up much more than it could ever benefit. This spiral of increasing terms will mean that less will be available, not more. Obviously, there is a world of work to do before this message is understood.

I had never looked this up, but thanks to "thumbtacks" for sending this. If the Sonny Bono Act is unconstitutional, then "Happy Birthday!" will be free!

There were three opinions. The majority was written by Justice Ginsburg. Justice
Stevens wrote a dissent, as did Justice Breyer.

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.

It is the middle of the night. Sleep is awol, scared off by this question that won�t stop pestering me: Is there a principle here? Is there a way to read these opinions as consistent with a principle? (Updated)

My inbox is a testament to the kindness of strangers. Thank you. Many ask, is there anything more that could be done?

The easy answer is no. The Supreme Court has ruled that Congress has the power perpetually to extend the terms of existing copyrights. This brief "experiment with the public domain," as the NYT eloquently put it, is over. In twenty years, we can expect terms will be extended again. There is no good reason to expect anything different.

The hard answer is, well, yes, there is always the possibility of an amendment, except that an amendment would be impossibly hard. Article V of the Constitution maps two paths to an amendment. (1) is for Congress to propose an amendment (which would not happen here -- ever); (2) is for the state legislatures to call for a "convention" which may propose amendments. In either case, amendments must be ratified by 3/4s of the states.

The second path has never been followed. People are afraid of it because the convention could in principle propose any amendment at all. As 3/4s of the states must ratify any amendment, that doesn't seem terribly dangerous to me. But clearly, it would take a massive campaign to march through the states to succeed in getting such a proposal passed.

One kind soul asks, "would you be willing to work to amend the constitution." If there were a commitment of sufficient resources to make the campaign real, obviously yes. Impossibly difficult tasks seems my calling these days. I'd be happy to become Mr., rather than Professor, Lessig, if there were a good reason to believe such a campaign could be supported.

But short of the impossible, there are many battles yet to be won. The opinion of the Court gives no support to restoring copyrights once expired. That means the challenges in Golan and related cases survives. And, as Jack Balkin forcefully argues, Eldred does nicely frame the unconstitutionality in the DMCA.

More importantly, there is a political campaign that must now be waged. The many organizations that have been fighting these issues have done an extraordinary job getting people to see what's at stake. That battle has only begun. My hero Siva (which is easier to spell than Vaidhyanathan) has a great piece on Salon on just this point. And Bill Moyers has a piece on PBS tonight that will do lots to help others to see.

I, meanwhile, will be answering email. I should have that finished before the next Sonny Bono Act.

Jesse Walker, who has written many wonderful things for Reason, and lots of great things about the harms to copyright extension, has a brilliant piece interviewing Mickey Mouse about the result in Eldred. My first laugh in 52 hours.

Among the hundreds who have written, Kevin Kelly writes "[y]our stand before the court will only be a failure if we fail to follow through with what is next." Many more ask, "what can we do next."

Here is something you can do right now. In this NYT op-ed, I describe a proposal that would move more work into the public domain than a total victory in the Supreme Court would have. The basic idea is this: 50 years after a work has been "published," a copyright owner would be required to pay a copyright tax. That tax should be extremely low--this proposal says $50, but it could be $1. If the copyright holder does not pay the tax for 3 years, then the work is forfeit to the public domain. If the copyright holder does pay the tax, then its contacting agent would be made a matter of public record. Very quickly we would have a cheap, searchable record, of what work is controlled and what work is free.

If Justice Breyer is right that only 2% of the work from the initial period affected by the Sonny Bono Act continues to have any commercial value at all, then this proposal would mean that all but 2% will move into the public domain within three years. And as the proposal applies to all work that is more than 50 years old, it would apply to a much larger range of work than would have been affected had we prevailed in the Supreme Court. This could give us (almost) everything we wante--98% of the public domain that our framers intended. Not bad for government work.

Of course it would not give us everything. Mickey would not be free. Nor would any of the works that led Congress to pass the Sonny Bono Act in the first place be free.

But without an amendment to the Constitution, or a revolution in Congress, there is nothing we can do about that now. The key now, as Kelly wrote, is "to follow through with what is next." This bridge--between those who want copyright to be forever, and those who want a public domain--should be next.

If enough join this next campaign, then unlike the last, our numbers will matter. Congress counts more votes than five. They race to the reasonable position. Where there is no continuing commercial use of a published copyrighted work at all, then what possible reason could there be for continuing to lock it up?

There is a FAQ about the proposal that will be updated to reflect great questions raised by many.

Read it, and think. And if you agree, then please, do something about it. Write your congressman or congresswoman. Donate via PayPal to free.mickey@foobox.com to help us spread the idea.

And most importantly, write about it in this space. My teacher Dave is right about many things. He is certainly right that the future of begins here.

I've posted an Eric Eldred Act FAQ.

There's a growing and interesting thread at the Volokh Conspiracy about the Lopez argument that we made. Glenn Reynolds had a sensible post on the tension between strict constructionists (or as I have called it, the silent 5) and the result in Eldred. Juan non-Volokh agrees, disagreeing with Orin Kerr.

Orin argues that Lopez/Morrison were federalism cases; Eldred was clearly not. That's no doubt true, but missing from the opinion in Eldred is an explanation why enumerated powers get limited in the context of federalism, but not elsewhere. Judge Sentelle couldn't find such a reason. Maybe there is one. But the principle that would justify limiting power in one context but not in another should have been articulated.

But Juan says that the "strict textualist argument" that Glenn advanced was not advanced by us. He says this argument was Erik Jaffe's. It is true that Jaffee made this argument in the Court of Appeals. But it is not true that we failed to make a strict constructionist argument in the Supreme Court. Indeed, a section of our brief expressly argues that the "grant of power" was the "to promote progress" clause, and that that clause is not a "preamble."

The only difference between Jaffe's position and ours was that Jaffe's would have authorized a court to evaluate any copyright act to test whether it "promoted the progress of science." We thought that was too aggressive a position to take (on at least this point we were right!). Our argument instead was simply that the grant of power must at least be used to interpret the scope of "limited times." That while it was not an independent substantive constraint, it should be used to interpret the scope of the power. This is more "textualist" than Lopez itself: Lopez grounds its reductio on a background view about federalism; we grounded our reductio on a view about "to promote the progress of science."

Eugene passes on Eugene Kontorovich's view that this case was really about original-congress interpretations -- that the silent 5 could vote as they did because they were simply ratifying what the original congress did. That is indeed the most charitable read, though again, it is just bad history. Abstracting the fact that in 1792 the framers had not yet fixed on what it would mean for a law to be unconstitutional, in 1790, there is zero evidence that the framers would have believed the extension of an existing term was within Congress's power. For the reasons argued extensively by the historians, Stevens, and us in our brief, the 1790 Act was not that. Thus it may well be that this case was all about one-step originalism. But on that basis, it was poorly reasoned.

Have called for a 14 year copyright term, renewable once. Talk about changing the debate.

So as the cruel master of fate would have it, on the day that the Eldred case officially ended, I was at Disney World. I was tricked into going to Disney World. I thought the conference was "in Orlando." But Orlando has apparently morphed into Disney World, and so when yesterday the Court refused a request to rehear the case (totally expected), I learned the news while drinking coffee from a Mickey mug.

With that decision, a self-imposed silence about these things ends too. I accepted this silence after a respectful but strong rebuke by a friend. He objected that it was wrong for me to suggest that "the silent five" were acting without principle. I disagree. I do believe their decision lacked principle, but I also see that it was right to complain about the context within which I was making that charge.

So we filed a petition to rehear the case that made the claim of principle in as careful and balanced a way as possible. Again, such petitions are never granted any more. But if there is a place to express such criticism, respectful of the institution and tradition that these justices serve, it was in this form, without the pressure of publicity.

This stage is now over. I apologize for the silence. More hopeful stuff soon.

Orin Kerr is a careful and powerful critic (in the good sense of that term) of much in the law of cyberspace. He has posted a careful and powerful criticism of my post yesterday. So too have others. But the line I agree with most strongly in Orin's post is: "the public domain will be best served if Eldred is treated as a launching point for legislative reform, not an example of judicial foul play."

Agreed. And as I'm the least qualified person to comment on the matter (as I'm the most biased person who has a view on the matter), my efforts are devoted to the future, not this past. My claim was not "foul play" or, as others have said, "corruption." It was instead the sort of criticism that one can only make of an institution one respects: consistency. The obligations of consistency about principle across cases extend at least to those justices who believe in the principle. They don't extend to justices who have dissented from the principle. Thus the burden or justifying and distinguishing Lopez falls on those who signed the Lopez/Morrison opinions. The other four (three of whom wrote the opinions in this case) are not, in my view, bound by that principle to say anything.

The point is not that a distinction couldn't be drawn. The point is that they didn't draw it. And the point is not that the Court must respond to every argument an advocate makes. But when two federal judges frame their dissent on the basis of a principle that also frames the petition upon which cert was granted, a certain decency would suggest something more than silence.

But I leave it to others to resolve the ethics of judicial principle as they apply to this case. There is lots of work to do that will matter much more.

So I received a copy of the March 31 issue of Forbes with a note from the editor in chief: "You might be interested in one of the editorials on page 28." On page 27-28, Steve Forbes endorses the idea of the Eldred Act. More good news about progress on that front soon, but I am proud to count Mr. Forbes as someone who gets it. Now if we could only find an equivalently prominent Democrat.

The Mexican Congress is about to consider a revision to its copyright law. Among it many changes, the law will extend the term of copyright from life-plus-70 to life-plus-100. (And no doubt thus beginning yet another cycle of "harmonization" around the world.) Worse, at the end of the copyright term, the government has the right to charge royalties for works in the "public domain."

This is apparently something new for government regulators. Usually governments nationalize first, and then (and as a result) kill the industry nationalized. Mexico plans to innovate on this pattern: kill the public domain first, and then nationalize after.

The insanity in this system is astonishing. But here's the message Mexico has got to understand: it will be easier for Mexicans to consume Hollywood content over the next 150 years than it will be for Mexicans to cultivate and preserve their own culture. Is promoting Hollywood really what the Mexican Congress is for?

About a month ago, I started sounding optimistic about getting a bill introduced into Congress to help right the wrong of the Sonny Bono Copyright Term Extension Act. I was optimistic because we had found a congressperson who was willing to introduce the bill. But after pressure from lobbyists, that is no longer clear. And so we need help to counter that pressure, and to find a sponsor.

The idea is a simple one: Fifty years after a work has been published, the copyright owner must pay a $1 maintanence fee. If the copyright owner pays the fee, then the copyright continues. If the owner fails to pay the fee, the work passes into the public domain. Based on historical precedent, we expect 98% of copyrighted works would pass into the public domain after just 50 years. They could keep Mickey for as long as Congress lets them. But we would get a public domain.

The need for even this tiny compromise is becoming clearer each day. Stanford's library, for example, has announced a digitization project to digitize books. They have technology that can scan 1,000 pages an hour. They are chafing for the opportunity to scan books that are no longer commercially available, but that under current law remain under copyright. If this proposal passed, 98% of books just 50 years old could be scanned and posted for free on the Internet.

Stanford is not alone. This has long been a passion of Brewster Kahle and his Internet Archive, as well as many others. Yet because of current copyright regulation, these projects -- that would lower the cost of libraries dramatically, and spread knowledge broadly -- cannot go forward. The costs of clearing the rights to makes these works available is extraordinarily high.

Yet the lobbyists are fighting even this tiny compromise. The public domain is competition for them. They will fight this competition. And so long as they have the lobbyists, and the rest of the world remains silent, they will win.

We need to your help to resist this now. At this stage, all that we need is one congressperson to introduce the proposal. Whether you call it the Copyright Term Deregulation Act, or the Public Domain Enhancement Act, doesn't matter. What matters is finding a sponsor, so we can begin to show the world just how extreme this debate has become: They have already gotten a 20 year extension of all copyrights just so 2% can benefit; and now they object to paying just $1 for that benefit, so that no one else might compete with them.

If you believe this is wrong, here are two things you can do: (1) Write your Representative and Senator, and ask them to be the first to introduce this statute; point them to the website http://eldred.cc, and ask them to respond. And even more importantly, (2) blog this request, so that others who think about these issues can get involved in the conversation.

I have given this movement as much as I can over the past four years, and I will not stop until we have reclaimed the public domain. Stay tuned for more litigation, and more ideas from Creative Commons. But please take these two steps now.

So I've gotten tons of mail from people who have taken up the challenge to spread the idea of the Eldred Act. I'll be reporting on this feedback over time. Christopher Kantarjiev sent a letter to Congresswoman Eshoo (CA, Democrat) who represents Stanford. Here's her reply:

> Thank you for your e-mail about the U.S. Supreme Court's decision to
> uphold the constitutionality of the Sonny Bono Copyright Term Extension
> Act (CTEA), which adds 20 years to the terms of existing and future
> copyrights.
>
> The case of Eldred v. Ashcroft challenged the constitutionality of CTEA,
> charging that CTEA fails constitutional review under both the Copyright
> Clause's "limited times" prescription and the First Amendment's free
> speech guarantee. The framers of the Constitution wanted to promote
> science and arts by allowing Congress to grant exclusive rights to
> creations "for limited times." Congress has extended this period
> gradually over time and the Court held that Congress acted within its
> authority and did not transgress Constitutional limitations when it passed
> CTEA.
>
> While I appreciate the importance of the public domain and I remain
> dedicated to preserving such fundamental rights as freedom of speech and
> freedom of the press, I do believe that Congress must also act to ensure
> the international protection of copyrighted works. We must balance the
> tensions between these two sets of interests carefully.
>
> As you mentioned in your email, one possible compromise is the Eric Eldred
> Act, which takes a common sense approach to move unused copyrighted work
> with no continuing commercial value into the public domain. The Eric
> Eldred Act has not yet been introduced in the Congress, but I shall
> continue to monitor this issue, keeping your important thoughts in mind.
>
>
> If you have any other questions or comments, let me hear from you. I
> always appreciate hearing from my constituents and ask that you continue
> to inform me on issues you care about. I need your thoughts and benefit
> from your ideas.
>
>
> Sincerely,
>
> Anna G. Eshoo
> Member of Congress

"common sense" -- I count that as good news. Keep those letter going...

Here's a better link to locate Congress-critters who you can write to about the Eldred Act. And here's a description of the proposal and its purposes.

Derek Slater has put together an excellent letter that you can use to ping your Congresscritter. A much improved version of the 4 page "two pager" that I posted. Use it and ping your congressperson here.

Timothy Phillips, one of the most active people pushing to reclaim the public domain, writes in a comment to my post yesterday,

"�Monitor the issue ?� Why doesn�t the representative introduce the bill, if it has not already been introduced ?"

Why Timothy? Because as one person who had spoken to someone on the hill wrote me, "no congressperson yet sees ANY possible benefit to them from introducing this bill, and they all see SIGNIFICANT political costs. This is like taking on the NRA, but these people have more than one movie star on their side."

Re: the agreement to extend copyright terms:

But when you read this criticism of them, remember, it applies doubly to us.

So if you get a chance to read the Supreme Court's opinion in Dastar, keep in mind this brilliant observation by Duke Law Professor James Boyle:

So we now know that while the word "origin" in an IP statute must be carefully defined in order to prevent rights-creep that would undermine the careful limitiations struck in a statutory scheme, the words "promote," "progress," "limited" and even "author" can be defined any way Congress wanted to even if that upsets the careful balance struck in a constitutional clause, because they are only words in the Constitution, and thus much less fundamental.
Got it.

Over 1,000 people have signed our petition in just a couple hours! One-hundred times this and we will have something powerful to show. Thanks to all who have helped � and especially those who have translated this argument into terms more people can understand. The net builds power the way Google ranks content -- one link tied to another.

Our count has doubled in the last hour. We're now up to over 2,000 signing our petition.

Update: over 3,500. Aaron's got a great graph of the growth.

We have gathered over 6,000 signatures on our petition in a single day. That is extraordinary progress.

Yet there are many who are frustrated that this doesn't go far enough. Many on Slashdot, for example, demand that we "hold out" for something much more radical. That this would be a "compromise" and that we should never "compromise."

We should never compromise. But we must take first steps. We are where we are because most people don't believe in the public domain. Most people don't even understand it. We live in a time when the public domain is more than 75 years old. Yet for most of our history, the public domain was no more than 30 years old. If ordinary people could see the creativity that would be inspired if the 1960s were in the public domain, they would understand again the importance of limiting the regulation that copyright law has become.

They will only understand it if we build it. They will only get it when they see the creativity it would inspire, and the knowledge it will spread. We need to show them why the public domain is important, by building it again.

The Public Domain Enhancement Act would do this. And when not 5,000, but 50,000 people join together to say that it should be our first step, Congress will take it up. Then the burden will be on the otherside to explain why this obvious change should not occur.

But if you think our petition is too tame � if you think it accepts too much of current law, and would be read to endorse the status quo � then sign this alternative. It makes clear that the current system is broken; it demands radical reforms. But as any reform we achieve can apply to future copyrights only, we still have to deal with the current law, and the control it imposes. It therefore also endorses this first step.

Let's see which view of copyright law better reflects this democracy. Let's see just how radical the democracy has become. But on either view, we should take first steps now. We should build support around obvious reforms. And we should force them to resist what seems sensible to everyone else.

The only thing that we should not do is sit back and do nothing, "holding out" for "radical reform" that will never come on its own.

If you want "radical reform," than produce 500,000 signatures on this Reclaim Copyright Law petition. If you want a first step of reform, then help us get 50,000 signatures to Reclaim the Public Domain.

But either way, do something. Now.

for the Reclaim the Public Domain petition.

We are approaching 10,000 on our petition. That is our goal for this week -- so please use the excuse of the weekend to pester your friends. There are more announcements next week, but please do what you can to help now.

So we've hit 10,000. This is extraordinarily great news. Thank you to everyone.

We have posted another letter written to members of Congress from directors and actors about the threat that endless copyright terms creates for our culture. As the letter argues, most of the film from the 1920s and 1930s is not commercially exploited, which means most of the film from the 1920s and 1930s sits unpreserved and rotting away. But because of copyright regulations, it is effectively impossible to restore this film until the copyright expires. And when weill that be exactly?

Meanwhile, we're approaching 12,000 signatures, which is great great news. Please help spread the news.

Cabinet Magazine has a great graf that shows the stagnation of the public domain, as well as an interactive version showing the same. If the numbers are right, then this battle to restore (in effect) a renewal requirement is the most important battle to reclaim the public domain that we could wage.

Commons-blog has a nice link to a story about Milwaukee libraries being defunded. Yet at the same time, extensions of copyright terms simply increase the cost of getting access to content. If every librarian signed our Reclaim the Public Domain Petition, then perhaps we could rebuild a public domain that could make the costs of libraries fall.

Matthew Rimmer has a careful and insightful piece about Eldred v. Ashcroft. He has some good criticism of the Eldred Act.

Or at least, in the best of all possible worlds it would be good criticism. He says we need more radical reform. He worries about the burden on creators. True, the registration system was broken -- because a government agency ran it. That needs to be fixed if any rebirth of registration is to do any good.

But the point about the need for something more radical bothers me. Sure, absolutely, we need something more. But how are we going to get there? There is no substantial push by ordinary people for the public domain. (Of course, there are 13,000 extraordinary people who get this, but only when you multiply them by 1,000 will we have a movement.)

Why don't ordinary people get it? Because few understand why the public domain is valuable. Why don't more see why the public domain is valuable? Because today the public domain is over 75 years old. It is ancient history for us, irrelevant to much of ordinary culture.

If the public domain were as young as it was for most of our history (30 years old, max), then losing it would mean something to most people. If the work of the 1960s and 1970s could easily be built upon, then taking that work away would excite a revolution. But the (brilliant) strategy of the copyright extremists has been to slowly remove the public domain, by slowing extending copyright. (Remember Hal in 2001, as Dave turns off his brain?) They have succeeded in making it irrelevant to most. The question now is how to make it relevant again.

In my view, reclaiming it would make it relevant. Exploding the content within the public domain in a context where it can be built upon and spread (ie, now, with the internet) will make people see again why the public domain is important. And if they see that, then they will again defend it.

It is this first step that the Eldred Act would achieve. The revival of a registration requirement would move content into a public domain quickly. (You can see the point with this Cabinet Magazine graphic.) And only then might we expect a public to demand more.

There are many who have written brilliantly about what is right in this context. Rimmer's piece is an addition to that. But the hard problem is how to make the right real. That is what this movement needs now.

John Laurence Poole runs Editions Poole. Editions Poole publishes piano ensemble "repertoire, specializing in transcriptions and eight hand piano music." As a 4th of July gift, Poole is giving away a free arrangement of the Star Spangled Banner composed by John Stafford Smith and arranged by Leopold Godowsky. In return, he is asking people to help free more music by signing the petition to Reclaim the Public Domain. See his offer posted to rec.music.classical here.

Thanks, John!

I have just arrived in DC, where I was planning on meeting with staffers on the Hill tomorrow to drum up support for the Public Domain Enhancement Act. We've got CD's of all 15k+ of the signatures on our Reclaim the Public Domain petition to hand out. It was going to be a fun day (as fun as any DC day gets) in DC.

But we've now learned that Congresswoman Lofgren (D-CA) and Congressman Doolittle (R-CA) have agreed to introduce the bill into Congress. We're having an event at 1pm tomorrow at the Capitol to announce this first step on a long road to Reclaiming the Public Domain.

Count this as great news, and spread the word: there are two great souls on Capitol Hill. I'll see if I can find some more.

It was a great day in DC.

Public Knowledge had arranged the meetings, with members and their staff from both sides of Congress, and both sides of the isle. We met with the staffs of Senators Cantwell, McCain and Leahy, then met with Congressman Cannon and Boucher. And -- at her request -- we met with Congresswoman Bono.

It was a strongly positive meeting with everyone, though of course Congresswoman Bono started most skeptically. By the end, however, she demonstrated a genuine openness to the issue, and a willingness to consider the proposal. It is of course very easy to demonize the otherside. But after listening to her talk about both this and the Sonny Bono Act, her motivations seemed quite genuinely to be about securing to artists continued reward from creativity. Not a bad motivation, all things considered, if we can balance it with protection of the public domain.

Others began closer to where we were, and so we ended even closer to where we wanted them to be. Congressman Boucher agreed to join as a sponsor -- so at least three good souls in DC.

The best part, of course, was Congresswoman Lofgren's press conference, announcing the bill that she and Congressman Doolittle will introduce, and explaining the reasons. She gets it, and she is powerful and right in her explanation. We owe her a great deal.

Indeed, I had that thought about everyone we met today. This was a strange day of feeling Congress sometimes somehow might work. It's very early, and we have yet to weather the criticism and opposition. And of course, if money lines on this one, we will not prevail. But every, from Members to staff, took this as seriously as anyone could hope. Let's see what happens.

One point was clear however: The work of the petition was extremely important. At least one Member indicated to me that he/she had been made aware of this issue by someone signing the petition. Another member indicated they had heard from people who had signed the petition. The more of this we can build, the more likely it is that we can build enough support to prevail.

Stay tuned for the next stages. But thanks to Public Knowledge, and the 15k+, who have helped carry this idea one step closer to reality.

Willem is a month old today. It has been an extraordinary month. I apologize for the absence, and am astonished by the kindness in the comments to my last post. Thank you.

But it's time to restart this space.

Judge Stanley Birch provides the perfect incentive. Howard Bashman has a wonderful interview with Judge Birch, in the course of which he offers "With all respect, Eldred was wrongly decided."

Thank you, Judge. It's nice to be back.

Some important news in the continuing struggle to reckon the First Amendment and copyright. For those not following this in depth, here's the story so far:

In Eldred v. Ashcroft, the Court was asked to subject a copyright statute to First Amendment analysis. The Court declined that request. Instead, the Court held that so long as copyright act does not change the "traditional contours of copyright protection," further First Amendment review is not required.

That standard left open the question of what the "traditional contours of copyright protection" were. In three follow on cases, lower courts have now addressed the question. In all three of these lower court cases, the government has argued that by "traditional contours of copyright protection," the Eldred court meant simply the "idea/expression" dichotomy and "fair use." Thus, the only possible First Amendment challenge to a copyright statute, according to the government, is if the statute changes one of these two "traditional First Amendment safeguards," as the Court in Eldred referred to them.

Plaintiffs in these three lower court cases have taken a broader view of the meaning of "traditional contours of copyright protection." Rather than limited to the two "First Amendment safeguards," plaintiffs have argued that "traditional contours" means, well, traditional contours. That if plaintiffs allege a change in the "traditional contours of copyright protection" implicating First Amendment interests, that change should be subject to First Amendment review.

In two of these lower court opinions, one in the Ninth Circuit (Kahle v. Mukasey) and one in a district court in the DC Circuit (Luck's Music v. Ashcroft), the courts have agreed with the government. In one of these lower court opinions, (Golan v. Mukasey), the 10th Circuit agreed with the plaintiffs.

This split was the focus of a cert petition (Petition, Reply, Supplemental Brief) to the Supreme Court in Kahle. The government responded (response) that there was no need for Supreme Court to review Kahle, because the "mistaken" decision by the 10th Circuit would be reversed when the Court of Appeals granted the government's motion to rehear the case en banc.

On Friday, the 10th Circuit denied the government's motion. But on Friday, the Supreme Court accepted the government's recommendation not to recognize the split, by denying cert. Thus, though the reason the government offered for not granting cert turned out to be false, cert has not been granted.

There's no chance the government will allow the 10th Circuit's decision to stand unreviewed. But while the 10th Circuit opinion is fantastically well done, it is unfortunate, in my view, that the Court did not take the opportunity to resolve the split in the context of Kahle. The issues in that case are clearer; they provide a better context within which to review the meaning of the Eldred rule -- indeed, they make the wisdom of the Eldred rule seem obvious.