Does Congress have the right under the Constitution to extend
copyright protection for ever-longer periods of time? Should the law
treat intellectual and physical property differently? What are the
key economic aspects of digital property? How much, if any, control
should we put over the Internet? How does the evolution of creative
culture build on past creation?

These are just some of the questions that Lawrence Lessig of Stanford
Law School has been thinking and writing about. He is the author of
Code and Other Laws of Cyberspace: How Will the Architecture of
Cyberspace Change the Constitution?
and The Future of Ideas: The Fate
of the Commons in a Connected World.
He recently argued before the
Supreme Court in Eldred v. Ashcroft that Congress’s extension of
copyright protection is unconstitutional.

I recently sat down with Lessig to discuss some of the economics of
intellectual property.

Russell Roberts
Features Editor

“So long as each copyright extension is itself a limited term, then you still have a limited term…. It’s the sort of thing your child says when you say, take one cookie and the child takes five. The child says, I did take one. Five times.”
Roberts: Let’s talk about the Eldred case that ended up in the Supreme Court challenging the Sonny Bono
Act. Give us a little background on the Sonny Bono Act and the goal of the case.

Lessig: The Constitutional background is that the Constitution requires that copyrights be granted for the
purpose of promoting progress, the progress of science, and they be granted for only limited terms.
But our Congress has gotten into the practice of extending the terms of copyright that they’ve already
granted. So in the last forty years, they’ve extended the terms of existing copyrights eleven times. In
1998, Congress extended the term again, this time, the longest they’ve ever extended existing terms,
20 years. So for the next 20 years after that passage, no work would pass into the public domain
from copyright expiration at all.

To keep that in context, in the same 20 years, one million patents would pass into the public
domain. So we brought a challenge after the Bono act was passed claiming that this practice
showed that Congress was no longer respecting the requirement that the terms be limited, but in
effect, copyright had become perpetual, on the “installment plan” as Peter Jazsi put it.

Our claim was that the court should step in to attempt cut back on this practice to guarantee that the
constitutional vision of work once created and earning its copyrighted return should pass into the
public domain for others to build upon.

Roberts: Seems kind of open and shut. The Constitution says copyright should be for a limited duration.
The Congress seems to make it perpetual. What issue came into play in the 7-2 decision upholding
the extension?

Lessig: There’s an argument that what Congress is doing is respecting the Constitution. And then there’s
the historical practice which led the Court to do what it did. The argument is, Well, as long as each
extension is itself a limited term, then you still have a limited term. That’s an argument which
ordinary people laugh at. It’s the sort of thing your child says when you say, take one cookie and the
child takes five. The child says, I did take one. Five times. But it’s a technical way of saying
Congress is complying with the Constitution. And what the Supreme Court said was that because
Congress had done this in the past, that had established a practice of deference to Congress’s
decisions in the past.

Roberts: Let’s go back to the details. Any copyrighted material before 1923 is in the public domain.
Anything after that is protected. Correct?

LL: It’s a little bit more complicated. We used to have a very sensible system. It required that you
both register and renew your copyright in order to gain copyright protection. So work after 1923
had to have been renewed in order to continue the copyright protection. But in the 1990s, Congress
passed a statute that basically said you didn’t even have to renew any existing copyrights. So there’s
a period of time where copyrighted works were subject to falling into the public domain if they
were not renewed and a bunch of that work did fall into the public domain. But from now on it’s
automatic and will continue to be.

Another part of this problem which we emphasized but the Court didn’t take account of, was that it’s
so hard to know what material is available and what material is not available. There are no good
records of who copyright owners are (because renewal isn’t required anymore) and not even a
requirement of registration. You can’t even know who’s claiming a copyright over what. So there’s
this mass of unsorted material out there that could or could not be available for public use creating
vast uncertainty. As we said, just at the time that technology is enabling all sorts of new creativity,
to build on this material and do stuff with it, the law is getting in the way and locking it up.
Supposedly for just another 20 years, but I’d bet a lot that—

Roberts: Just by chance it might be extended again?

Lessig: Exactly.

Roberts: Any thoughts on a voluntary system that might be a clearinghouse for the issue of information as
to who holds the copyright and resolve the uncertainty issue?

Lessig: One of the projects I’m putting most of my time into now is called “Creative Commons.”
Creative Commons has a number of projects that are trying to solve this and related problems.
Trying to move more material voluntarily into a place where people can build on it. We’re about to
announce a project called the Public Domain Project which will attempt to figure out which stuff is
properly registered and what is not. So there are voluntary efforts to do this but it’s an extraordinary
amount of effort to do what we argued the Constitution already said had to happen.

Roberts: Let’s turn to the economics and incentives of copyright. What’s the economic case for limiting
copyright privilege? Some people would argue that extending copyright protection gives people the
incentives through higher profits to create more intellectual property, music, art and so on. Why
should it be limited?

Lessig: You have to distinguish between extending the term of existing copyrights and extending
copyrights into the future. If you’re talking about extending copyrights into the future, then the
question is what’s the marginal incentive that the next twenty years creates. Given the length of
copyrights right now, the answer is: almost nothing.

Roberts: Because?

Lessig: Because the copyright term right now for corporate works, before the Bono Act, was 75 years.
It’s now 95 years. If you ask, what’s the discounted present value of that additional 20 years, it’s
almost nothing.

Roberts: You’re talking about a new work, created today.

Lessig: Right. Prospectively. We did a calculation. Copyright term right now gives the copyright
owner 99.8% of the value of a perpetual term. Nobody can in good faith argue that any new
incentives are being created by this new extension going forward. With respect to existing works,
by definition it’s not creating any incentives to produce because you’re just granting a windfall to
works that have already been produced. No matter what we do, Gershwin will not produce anything
else. That extension is nothing more than what economists would call “rent-seeking,” using property
as a cover. I’m working on a piece right now on this. It’s an interesting twist on public choice
theory. We’re now in an era where rent-seekers typically turn to property as their technique of
choice. Property sounds so harmless and good. The natural conception is that it’s always
incentive-producing. But property can be just as much a rent-seeking device as monopoly. And
that’s increasingly what happens.

Roberts: What’s the difference between copyrights and patents? Why doesn’t the political process
respond to that rent-seeking opportunity there as well in the case of patents?

Lessig: There are a couple of differences. The patent term, at least, has been more rational over the last
200 years. Copyrights and patents began at the same length. Patents got fourteen years, copyrights
could be renewed after fourteen years. But patents have stayed around there. It’s now just twenty
years from the time of filing the patent. I think that the real reason is that the people who get the
benefit from patents are also the people who pay the price of longer terms. Most invention in this
context is invention that builds on other works so if you increase the term you might get a benefit but
you’re also paying the cost because of the additional terms that you get. There has been a tendency in
Congress to try and extend term-drug patents is the best example. But because the political interests
are so strong on the other side, there’s been a nice political movement against the extension of
patents in the context of drugs. So it happened for a while but now there’s a fairly strong political
movement that would resist any effort by drug companies to extend the terms of existing patents. So
the political process hasn’t failed in as significant way as in the case of copyright.

Roberts: You argue in The Future of Ideas that copyright holders are often shortsighted or highly
risk-averse. They overestimate the costs of losing their protection. The creators of content are very
apprehensive, perhaps rationally, of losing their copyright or intellectual property right. But when
information is free, will the benefits ultimately redound to the creators?

Lessig: I would distinguish between three groups. One is creators. One is holders of copyrights who
need not be the creators. One is a subgroup of sorts—the families and relatives of the creators. With
respect to creators, I’m a strong believer in the copyright system for creativity. Creators get a
copyright. They get to control it, for a limited time and it should be more narrowly limited than it is
right now. But still, I think they deserve that type of protection. They, once they’ve created the
work, aren’t in the position of continually exerting control over how the work is used or who gets to
use it. It’s really the publishers, which is the second group, and the family, which is the third group.

The publishers, such as the recording industry or the movie industry, aren’t so much defending the
rights of creators, they’re defending a certain business model. They have a certain vision about how
they’re going to make money. The music industry, for example, is going to make money by selling
copies of pieces of plastic. They’re going to control distribution as much as they can. They’re going
to earn rents by controlling the distribution. They have a concentrated market-that’s their ticket, their
cash cow for earning their returns. The Internet comes along and threatens that way of doing
business. So they launch a holy war, Jack Valenti calls it a terrorist war, against these new
technologies. Not so much because he’s keen to protect creators, because creators have all sold
their rights to these people. They don’t have any more they’re going to get from it. It’s more because
they’re trying to protect a business model. That is completely illegitimate-to use the law to protect a
business model as opposed to protect the return from a particular kind of creative work. It seems to
me inconsistent with what has been our tradition in the context of technology changing the way we
distribute content.

The third group, the relatives, have a much more invidious type of interest. A lot of them just want
to make money. That’s fine.

Roberts: A pretty common urge.

Lessig: Yes. But a bunch of them really have a strong desire to control how that work is used. So you
can’t produce Porgy and Bess without an African-American cast. You can produce Shakespeare
however you want to produce Shakespeare. You can produce Shakespeare with Peter Pan
characters. You can do anything you want with Shakespeare because it’s in the public domain and
that produces an extraordinary incentive for people to be innovative with how they’re going to
produce it. They’re going to create new versions and it’s going to be constantly alive the way
Shakespeare companies around the world constantly keep Shakespeare alive. But Porgy and Bess is
going to stay the way Porgy and Bess was.

Roberts: Because?

Lessig: Because they continually control the copyright.

Roberts: The Gershwin estate?

Lessig: Yes. And they get to say how the copyright gets to be used and they say it only gets to be used in
these ways. Again, I don’t have a problem with that control for a limited time. But when it’s over a
century after the work is created? At some point the work should become free for culture to build
on it. The most dramatic example of this is Margaret Mitchell’s Gone With the Wind and the recent
book, The Wind Done Gone by Alice Randall. They basically had to litigate through two courts to
have the right to publish that book, essentially a critical commentary on Gone With the Wind.
People say, eventually the courts got it right, but what they forget is that on the way to getting it right
you had to spend tons of money on lawyers. But publishers don’t have money to spend on lawyers.
And that produces a publishing industry that’s extraordinarily conservative. Never willing to take
any risk. Because just having to answer a complaint is enough to destroy any profit that existed.

Roberts: Going back to Porgy and Bess, if Gershwin were composing today, in today’s intellectual
property regime, surely he could bequeath the rights to
Porgy and Bess to his estate with the proviso
that they allow it to be liberated. Or he could freeze it the way it’s been frozen. Shouldn’t he have
the right to keep it static or liberate it as he sees fit?

Lessig: Not for this length of time, no. Copyright shouldn’t be anywhere close to what it is right now. In
my book I proposed a system where you’d have to renew after every five years and you get a
maximum term of 75 years. I thought that was pretty radical at the time. The Economist, after the
Eldred decision, came out with a proposal—let’s go back to 14 years, renewable to 28 years.
Nobody needs more than 14 years to earn the return back from whatever they produced.

Roberts: The alternative view is that it’s their property. Maybe not exactly the same as physical
property, but isn’t the creator entitled to control his or her creation?

Lessig: I think all property is the same. All property should be protected and limited in the public
interest. All property is. You own a house, you can’t say, no you can’t put a sidewalk in front of my
house—that’s an easement that’s forced on you by the law. You own a house—there are a million things
you can’t do with your house. And how many bits of property sitting around your house are 150
years old? There’s a formal sense in which you’re allowed to own your property forever, but what
property do we have that’s survives more than ten years? Real property naturally limits itself
through its own destruction and limitations so that it’s not really a terribly destructive burden to say
that real property goes on forever subject to lots of different restraints.

Copyright has always been understood as a way to create enough incentive for someone to create
something and then to allow that creation to pass into the public domain. The copyright question is
how long do you have the right to control whether people can build upon the ideas you’ve released
into the culture. You take a bunch of ideas and you bend culture in a certain way. Margaret
Mitchell’s work bent American culture in a certain way. I grew up with a Southern mother who had
a vision of the South as informed by Margaret Mitchell’s work. If you’re going to bend culture in a
certain way, culture has the right to bend back. The idea that the reaction is going to be 100 years
after you’ve produced your work is crazy.

Roberts: Mickey Mouse’s first cartoon, “Steamboat Willie” built upon the Buster Keaton movie, Steamboat
Bill, Jr. and if today’s world of copyright had existed then, maybe Buster Keaton would have been
able to stop the creation of Mickey Mouse. That’s the road to stagnation. But where do you draw
the line for physical property? Is eminent domain’s power unlimited? We can’t force you to put up
blue drapes inside your house in the name of the public interest. And even in the case of eminent
domain, political forces often determine the definition of public interest.

Lessig: In both types of property, our legal tradition has said we should define and enforce property
rights that benefit the public good. The difference between copyright and real property was
reflected in the Constitution itself, which says that if the State takes your house through eminent
domain, it must pay you compensation. The Takings Clause says if you take for public purpose, you
must give compensation. And the Constitution says that if Congress gives you a copyright, it must
take it back after a limited time without any compensation at all. There’s no “compensation clause”
for the copyright law. I agree that they’re both in some sense property, but the law and our tradition
has understood a wide range of property. The legal limitations on this wide range of property are
very different. But the one thing that’s clear is that there’s a night and day difference between the
limitations built into the property protection under copyright vs. real property. Copyrights are
supposed to be taken back after a limited time with no compensation at all, whereas real property is
supposed to be forever.

Roberts: Let’s talk about the Digital Millennium Copyright Act, the DMCA. What is its significance and
why are some people so mad about it?

Lessig: When cyberspace was born, everyone said it would be the end of copyright. And that’s because
the architecture of cyberspace made it possible to perfectly copy digital copy and distribute it for
almost nothing. That made it hard for businesses to depend on controlling copies to survive in that
world. Many of us said that’s just a temporary phase that cyberspace will go through. There’s a lot
of incentive for people to go out there now and to build lots of technologies to re-impose control
over digital objects. And as we’ve seen in the last ten years, that’s exactly what has happened.
There has been an explosion of technologies for controlling copyrighted material. These are
copyright protection systems.

But whenever you have a copyright protection system, there’s an incentive to circumvent the system.
So if you lock up your material, people have an incentive to break the locks and get access to that
material. What the Digital Millennium Copyright Act makes it a crime to develop or use
technologies that are designed to circumvent copyrighted material. Now that sounds fine. That
sounds like making it a crime to develop lock-picking devices or to pick a lock and break into
people’s houses. The problem is that copyright protection systems can protect the copyrighted
material more strongly than the law does. So for example, the law guarantees fair use. As the Court
said in the Eldred case, this is a constitutional requirement of the First Amendment, that you have
fair use. But if you lock your copyrighted material using a digital wrapper, there’s no guarantee that
anyone will be able to exercise fair use with respect to that copyrighted material.

Roberts: But wouldn’t creators of content have an incentive to insure that fair use and other uses were
still possible and therefore limit how technology interferes with sharing created material?

Lessig: We haven’t seen that. The technology has gone in the opposite direction. And that’s because fair
use isn’t a rational thing for individuals to choose, it’s a rational thing for the system as a whole. I as
an individual author would like to say you can’t quote my work unless you promise to say something
nice about it. Or you can’t quote my work in a negative review. So individuals always have an
incentive to avoid fair use—

Roberts: Some fair use.

Lessig: Yes, but the point is that the law guarantees fair use and the technology takes it away. The
Digital Millennium Copyright Act comes in and says if you circumvent the technology, you’ve
violated the law. And the strong complaint against that statute is that even if you violate the
technology for a purpose that would have been completely legal under copyright law, you’ve
violated the law. So for example, if you wanted to get access to a copyrighted work to enable it to
be read aloud to a blind person, that’s fair use. If you circumvent to enable that, that itself should be
a completely protected circumvention. But tools to circumvent for that purpose are banned by the
Digital Millennium Copyright Act.

It’s not even clear you needed the law to back up the technology because the technology is very
good. But if you needed the law to back up the technology, the law should only have backed up the
technology as broadly as copyright law extends, not broader. But instead it has expanded the scope
of copyright protection beyond anything that was originally intended by the Copyright Act.

Roberts: You’ve written eloquently about threats to the creativity of distribution of material over the
Internet that come from what we’ve been calling “publishers,” people who control content ex post.
The Future of Ideas you talk about emergent order, the spontaneous order that is the Internet and
the creativity that order engendered. That book was really an alarm bell to wake people up and say
there’s a lot of creativity that emerges from this uncontrolled Internet, but the people with an
economic stake in the old order are going to try and guide that system in various ways. Are you still
as pessimistic as you were when you wrote that book a few years ago?

Lessig: I’ve written two very pessimistic books and after each book, someone has said to me, your
book’s too pessimistic. And in both cases those people have come back to me later on and said they
weren’t pessimistic enough. There are no good signs right now in the context of the issues we’re
talking about. Things are actually much worse than I imagined they would be. I expected the
Supreme Court to step in with the Eldred case and set a tone that would help us achieve some sort of
balance. But the Supreme Court has absolved itself of any responsibility. So it’s now just a
political battle where all the money in the world is aligned on one side of these issues. The stakes
are clearly strongly tilted against the positions that we’ve taken.

Roberts: And by “we,” you mean?

The interested reader can find more information at these sites covering the Eldred U.S. Supreme Court decisions and dissents:

Eldred v. Ashcroft
Majority Decision (Ginsburg)
Stevens Dissent
Breyer Dissent

Lessig: People who want to preserve a platform for innovation and growth. That should include the
technology industries and more and more they’re getting it. Intel for example, has been very good at
understanding the threat to its business if the systems to control things are expanded and developed.
So there has been some recognition on that side. But look at Hollywood. An extraordinary lobbying
campaign has been waged in Washington for forty years to get them to see Hollywood’s view of
what content protection should be. And Hollywood’s view does not maximize the incentive for
innovation and creativity. It’s a view that maximizes the power of existing industries of creativity.
History has taught us that when we have this conflict, we should let the underdogs compete and not
use the law to crush the underdogs.

Roberts: But isn’t there evidence for a more cheerful and optimistic outlook? I understand your concerns
and yet content today is still profuse—an extraordinary array of creative material is being created
across every form of human creativity—movies, books, art, music, technology, medicine and so on.
You could argue that it could be even more extraordinary or that future creativity will wither. But
the world around us looks pretty good. And even if it does wither, isn’t there always the possibility
of an “end run” where the market responds to these alleged straitjackets and offers alternative forms
of distribution?

Lessig: There’s been this bizarre inverted set of trends. You’re right. On the one hand, as technology
makes it easier for people to be creators, there’s been an explosion of types of creativity. But my
question and focus has been, to what extent is creativity allowed into the mainstream of distribution.
In 1970, 10% of the films run in major first run theaters were foreign films. That number is now
down below half of one percent. Is that a product of foreigners not knowing how to make films
anymore? Or is it a product of the increased concentration of distribution that favors a certain types
of films over others? As the market structure of major media distribution has changed, the flavor of
the content has changed. More creative work is being produced, yet the major channels won’t allow
it in.

One thing I talk about in the beginning of The Future of Ideas is this bizarre world of copyright
clearances you need in order to do a film. It sounds almost trivial. But the consequences of this is,
if you’ve produced a film that hasn’t gone through this copyright clearance, you just won’t be
released for major distribution.

That separates the market between independents who can’t afford this sort of absurdity when they
produce a film, and people within this traditional system who can afford to have a gaggle of lawyers
follow them around watching what they do and clearing all the rights. The legal system is creating a
barrier for independent non-mainstream creators to get their work passed easily into the
mainstream. I’m not saying it will never happen. You take a video camera and do something about a
haunted event on a mountainside. That movie can be released. But you want to do a critical
commentary on some issue in popular culture today?

Todd Haynes did this amazing movie called The Karen Carpenter Story. Karen Carpenter was a
bulimic who basically starved herself to death. So Todd Haynes did this movie, the Karen
Carpenter story as played out through Barbie dolls. It’s just Barbie dolls in the whole movie with
Karen Carpenter music in the background. He wasn’t allowed to release that movie. He was sued
into silence because of the use of the Barbie dolls and the use of the music.

The First Amendment limits the ability of law to be used by powerful people to protect themselves
against criticism. It’s bizarre that when we switch channels to the copyright channel people use the
law to stop criticism.

Roberts: You could argue there’s a distinction between Barbie dolls and a powerful politician, but our
culture’s an important part of our political and economic system.

Lessig: I gave this talk once and someone said, you don’t understand. You’re always free to make a
movie as long as you don’t use popular culture in the movie. You look around and we live in a
world which is completely suffused with popular culture. You’re not allowed to talk about it unless
you get permission of the culture owners? It’s a kind of slavery over culture.

The next book I’m writing is called Free Culture and it’s meant to evoke a link to the free labor
movement, the first effort to express limits on the power of people to exercise control through
private contracts over how other people create and express their creativity. People who were in
favor of free labor were not against labor contracts, they were not against being paid for labor, they
were not against the market-they were against extremes in all three of those cases. It’s the same
thing with the free culture movement. It’s against extremes, especially when it stifles the opportunity
for people to be critical. Especially right now.

We live in a time when our culture is increasingly tone-deaf to legitimate criticisms around the
world. If there’s ever a time when we have to open up the opportunity for people to be critical and
spread their creative message it’s now. Yet, just at this time, there’s this copyright war that’s shutting
down channels of communication in the name of defending property rights. But in defending those
property rights what you’re also doing is disabling an extraordinary system of expression that could
be doing our democracy an extraordinary bit of good.


*Lawrence Lessig is Professor of Law at Stanford University. His website is

To post or read followups to this essay, see “Lessig on Copyright” in EconLog.