The Future of Copyright

The Future of Copyright FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY. By Lawrence Lessig.[dagger] New York: The Penguin Press, 2004. Pp. xvii, 346. $24.95. Somebody once said: "Information wants to be free. "1 -Roger Clarke There's no such thing as a free lunch.2 -Alvin Hansen I. Introduction: Idea Slingers and Norm Entrepreneurs Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems-Napster, Gnutella, KaZaA, Grokster, and Freenet3-are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. The video tape recorder begat the Sony "substantial noninfringing use" defense.4 The digital cassette recorder begat the Audio Home Recording Act.5 The internet begat the Digital Millennium Copyright Act.6 Napster begat Napster.7 We see the law morph right in front of our eyes, but its ultimate form is still obscure. As a consequence, the future of copyright is up for grabs. We live in a magical, exhilarating, and frightening time: Many alternative copyfutures8 shimmer on the horizon, sometimes coming into sharper focus and sometimes fading away. In this heady atmosphere, the idea slingers are at work. Richard Posner and William Landes have proposed indefinitely renewable copyrights.9 Neil Netanel,10 William Fisher,11 and others propose to legalize P2P filesharing and replace the lost revenues with a tax on hardware and internet service. Joseph Liu suggests that the scope of fair use should grow with time.12 Mark Lemley is debunking ex post justifications for intellectual property.13 No surprise, the academics do not have a monopoly on idea slinging. The Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) have gone on the offensive, proposing legislation like the "Induce Act," targeted at shutting down P2P filesharing services that allow third parties to share copyrighted content.14 In a very real sense, we are in the midst of an intellectual, moral, and legal struggle over the future of copyright. Intellectually, the "copyright,"15 the struggle over the future of the rights to duplicate and transform information, takes place in the realm of ideas-between the covers of law reviews, in position papers, on editorial pages, and online in the blogosphere.16 Legally, major skirmishes have already occurred in the federal courts, from the United States Supreme Court's decision to uphold the Sonny Bono Copyright Term Extension Act (CTEA)17 in Eldred v. Ashcroft18 to the recent split between the Seventh19 and Ninth Circuits20 over the question whether P2P filesharing services are contributory copyright infringers. Heated copyfighting takes place in the back rooms of Congress and elsewhere inside the beltway, where the consumer electronic industry recently refused to come to terms with the RIAA and the MPAA over the terms of the Induce Act.21 Last, but not least, the copyfight includes a moral and ideological battle for the hearts and minds of an increasingly global public. The RIAA and the MPAA labor (mostly without success) to convince a generation that has grown up ripping, burning, and downloading that the use of a P2P filesharing program is the moral equivalent of shoplifting a CD.22 No copywarrior is more prominent and influential than Larry Lessig. Lessig was the brilliant architect of Eric Eldred's failed challenge to the CTEA's retroactive twenty-year extension of copyright terms-effectively a twenty-year moratorium on new works entering the public domain.23 (Just getting Eldred to the Supreme Court was no mean accomplishment; getting votes to strike down the CTEA was truly remarkable.) Lessig is an idea slinger par excellence, the author of Code and Other Laws of Cyberspace24 and The Future of Ideas25-enormously influential books. …