4.2 Creativity in the ‘dark ages’
Chapter 7 analyses creativity in the arts and commerce prior to the internet, imagining the real world divided up into content, code and physical layers. Along the way we learn of the author's concerns about the expansion of copyright, an expansion which he believes is undermining the traditional balance between the rights of the copyright holder and those of the general public (and hence a special subgroup of the general public – future creators).
At the content layer, some of the history of copyright's interaction with new technology is described. The stories of how copyright law coped with the advent of player pianos and cable TV are good examples of how balance was maintained in the face of new technology. In the case of the player pianos, for example, compulsory licensing meant that the rights of the sheet music publishers were balanced with those of the people who had created new markets with new technology. The sheet music publishers got paid for the use of their work in an innovative way but did not get to control the new market.
Despite admitting balance in those two cases, Lessig still believes that the trend is towards giving more control to copyright holders. He is concerned about the increase in scope (the number of things covered), but especially vexed about the increase in the term (timespan) of copyright.
We should note that Lessig was the lead counsel in a case challenging a 1998 law extending the term of copyright by 20 years. The case, Eldred v Ashcroft (see below) was heard by the US Supreme Court in the Autumn of 2002. The decision of the Supreme Court was handed down in January 2003. Lessig's client lost.
Eldred v Ashcroft
This case is outlined on pages 196–199 of The Future of Ideas. There have been a number of developments since the book was published, the most significant being that the US Supreme Court heard the case in the Autumn of 2002 and made a decision in January 2003.
Lessig and Eldred claimed that the 1998 Copyright Term Extension Act was unconstitutional. The US constitution gives Congress the power to grant authors an exclusive right to their writings for ‘limited times’. Lessig argued before the Court that Congress had extended the term of copyright eleven times in forty years and that allowing Congress to repeatedly extend copyrights undermines the ‘limited times’ provision of the Constitution.
The Supreme Court rejected that argument by a 7:2 majority. Justice Ginsburg, who wrote the majority opinion, said that the Supreme Court was ‘not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be’.
Eric Eldred has a short web page about the case, and Harvard University's Berkman Center OpenLaw facility, which has done the legal legwork supporting Eldred, maintains a web page with the details of the case, if you are interested in looking into it further. The Department of Justice also have the legal documents available at their website. Lessig's immediate reflections on the loss were recorded in his weblog at Stanford on 16 January 2003:
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.
The Wind Done Gone case, which is also mentioned in this section of The Future of Ideas, was settled out of court in May 2002, with the Mitchell Trust representatives agreeing to let Alice Randall's book go ahead, labelled as an unauthorised parody. The details of the settlement are confidential, but included Randall's publishers, Houghton Mifflin, making a financial contribution to Morehouse College. The publishers maintain a website on their perspective of the case.
The statistics quoted on Lessig page 117 illustrate that the control of the media has become concentrated in a few hands. This is important in relation to Lessig's arguments in a later part of the book.
Chapter 7 concludes that, owing to the laws of nature – that is, the ‘architecture’ or code layer of the real world – creativity was largely controlled before the Net existed. It was controlled at the code and physical layers because only a few have the resources to market and distribute books, papers and CDs, for example. Those with such resources act as or employ gatekeepers such as editors, and they decide what creative work gets published and distributed.
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